Senate Bill No. 649
(By Senators Kessler (Mr. President), Browning, Edgell, Klempa and Beach)
[Originating in the Committee on the Judiciary;
reported February 24, 2012.]
A BILL to amend and reenact §11-16-3 and §11-16-8 of the Code of West Virginia, 1931, as amended, all relating to the Nonintoxicating Beer Act; adding a limited liability company to the definition of “person” under the act; allowing a trust to be an applicant for a distributor license; and requiring certain disclosures by applicants for distributor licenses that are trusts or limited liability companies.
Be it enacted by the Legislature of West Virginia:
That §11-16-3 and §11-16-8 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 16. NONINTOXICATING BEER.
For the purpose of this article, except where the context clearly requires differently:
(1) "Brewer" or "manufacturer" means any person, firm, association, partnership or corporation manufacturing, brewing, mixing, concocting, blending, bottling or otherwise producing or importing or transshipping from a foreign country nonintoxicating beer for sale at wholesale to any licensed distributor.
(2) "Brewpub" means a place of manufacture of nonintoxicating beer owned by a resident brewer, subject to federal regulations and guidelines, a portion of which premises are designated for retail sales.
(3) "Commissioner" means the West Virginia Alcohol Beverage Control Commissioner.
(4) "Distributor" means and includes any person jobbing or distributing nonintoxicating beer to retailers at wholesale and whose warehouse and chief place of business shall be within this state. For the purpose of a distributor only, the term “person” means and includes an individual, firm, trust, partnership, limited partnership, limited liability company, association or corporation. Any trust licensed as a distributor, and the trustee or other persons in active control of the activities of the trust relating to the distributor license, is liable for acts of the trust or its beneficiaries relating to the distributor license that are unlawful acts or violations of article eleven of this chapter notwithstanding the liability of trustees in article ten, chapter forty-four-d of this code.
(5) "Nonintoxicating beer" means all cereal malt beverages or products of the brewing industry commonly referred to as beer, lager beer, ale and all other mixtures and preparations produced by the brewing industry, including malt coolers and nonintoxicating craft beers containing at least one half of one percent alcohol by volume, but not more than nine and six-tenths of alcohol by weight, or twelve percent by volume, whichever is greater. all of which are hereby declared to be nonintoxicating and The word "liquor" as used in chapter sixty of this code shall not be construed to does not include or embrace nonintoxicating beer nor any of the beverages, products, mixtures or preparations included within this definition.
(6) “Nonintoxicating craft beer” means any beverage obtained by the fermentation of barley, malt, hops or any other similar product or substitute and containing not less than one half of one percent by volume and not more than twelve percent alcohol by volume or nine and six-tenths percent alcohol by weight.
(7) "Original container" means the container used by the brewer at the place of manufacturing, bottling or otherwise producing nonintoxicating beer for sale at wholesale.
(8) "Person" means and includes an individual, firm, partnership, limited partnership, limited liability company, association or corporation.
(9) "Resident brewer" means any person, firm, association, partnership or corporation whose principal place of business is within the state.
(10) "Retailer" means any person selling, serving or otherwise dispensing nonintoxicating beer and all products regulated by this article including, but not limited to, any malt cooler, malt coolers, at his or her established and licensed place of business.
(11) “Tax Commissioner" means the Tax Commissioner of the State of West Virginia or the commissioner's designee.
§11-16-8. Form of application for license; fee and bond; refusal of license.
(a) A license may be issued by the commissioner to any person who submits an application, therefore, accompanied by a license fee and, where required, a bond, stating and states under oath:
(1) The name and residence of the applicant, the duration of such residency, that the applicant has been a resident of the state for a period of two years next preceding the date of the application and that the applicant is twenty-one years of age. If the applicant is a firm, association, partnership, limited partnership, limited liability company or corporation, the application shall include the residence of the members or officers for a period of two years next preceding the date of such application. Provided, That if any If a person, firm, partnership, limited partnership, association or corporation limited liability company, association, corporation or trust applies for a license as a distributor, such person, or in the case of a firm, partnership, limited partnership, or association, the members or officers thereof limited liability company, association or trust, the members, officers, trustees or other persons in active control of the activities of the trust relating to the license, shall state under oath that each has been a bona fide resident of the state for four years preceding the date of such application. If the applicant is a trust, the trustees or other persons in active control of the activities of the trust relating to the license, shall provide a certification of trust as described in section one-thousand-thirteen, article ten, chapter forty-four-d of this code. This certification of trust shall include the excerpts described in subsection (e), section one-thousand-thirteen, article ten, chapter forty-four-d of this code and shall state, under oath, the names and addresses of the beneficiaries of the trust and that the trustee and beneficiaries are twenty-one years of age or older. If a beneficiary is not twenty-one years of age, the certification of trust must state that such beneficiary’s interest in the trust is represented by a trustee, parent or legal guardian who is twenty-one years old and who will direct all actions on behalf of such beneficiary related to the trust with respect to the distributor until the beneficiary is twenty-one.
(2) The place of birth of applicant, that he or she is a citizen of the United States and of good moral character and, if a naturalized citizen, when and where naturalized. and, if If the applicant is a corporation organized or authorized to do business under the laws of the state, the application must state when and where incorporated, with the name and address of each officer; that each officer is a citizen of the United States and a person of good moral character. and if a firm, association, partnership or limited partnership, If the applicant is a firm, association, limited liability company, partnership, limited partnership or trust, the application shall provide the place of birth of each member of the firm, association, partnership or limited partnership and that each member limited liability company, partnership or limited partnership and of the trustees, beneficiaries or other persons in active control of the activities of the trust relating to the license and that each member or trustee, beneficiary or other persons in active control of the activities of the trust relating to the license is a citizen of the United States and if a naturalized citizen, when and where naturalized, each of whom must qualify and sign the application. Provided, That The requirements as to residence shall do not apply to the officers of a corporation which shall apply applying for a retailer's license but the officers, agent or employee who shall manage and be in charge manages and is in charge of the licensed premises shall possess all of the qualifications required of an individual applicant for a retailer's license including the requirement as to residence;
(3) The particular place for which the license is desired and a detailed description thereof;
(4) The name of the owner of the building and, if the owner is not the applicant, that such the applicant is the actual and bona fide lessee of the premises;
(5) That the place or building in which is proposed to do business conforms to all applicable laws of health, fire and zoning regulations applicable thereto, and is a safe and proper place or building and is not within three hundred feet of any a school or church measured from front door to front door, along the street or streets. Provided, That This requirement shall does not apply to a Class B license or to any a place now occupied by a beer licensee so long as it is continuously so occupied. Provided, however, That The prohibition against locating any such a proposed business in a place or building within three hundred feet of any a school shall does not apply to any a college or university that has notified the commissioner, in writing, that it has no objection to the location of any such a proposed business in a place or building within three hundred feet of such college or university;
(6) That the applicant is not incarcerated and has not during the five years immediately preceding the date of said application been convicted of a felony;
(7) That the applicant is the only person in any manner pecuniarily interested in the business so asked to be licensed and that no other person shall be is in any manner pecuniarily interested therein during the continuance of the license; and
(8) That the applicant has not during five years next immediately preceding the date of said the application had a nonintoxicating beer license revoked.
(b) The provisions and requirements of subsection (a) of this section are mandatory prerequisites for the issuance, and in the event any applicant fails to qualify under the same, the license shall be refused. In addition to the information furnished in any application, the commissioner may make such additional and independent investigation of each applicant and of the place to be occupied as deemed necessary or advisable and, for this reason, each and all applications, with license fee and bond, must be filed thirty days prior to the beginning of any fiscal year. and if If the application is for an unexpired portion of any a fiscal year, the issuance of license may be withheld for such reasonable time as necessary for investigation.
(c) The commissioner may refuse a license to any applicant under the provisions of this article if the commissioner shall be is of the opinion:
(1) That the applicant is not a suitable person to be licensed;
(2) That the place to be occupied by the applicant is not a suitable place or is within three hundred feet of any school or church measured from front door to front door along the street or streets. Provided, That This requirement shall does not apply to a Class B licensee or to any a place now occupied by a beer licensee so long as it is continuously so occupied. Provided, however, That The prohibition against locating any such place to be occupied by an applicant within three hundred feet of any a school shall does not apply to any a college or university that has notified the commissioner, in writing, that it has no objection to the location of any such place within three hundred feet; of such college or university; or
(3) That the license should not be issued for reason of conduct declared to be unlawful by this article.
(NOTE: The purpose of this bill is to authorize trusts to be applicants for a nonintoxicating beer distributor license and to add limited liability companies to the definition of person in the Nonintoxicating Beer Act.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.)