Introduced Version
House Bill 2448 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2448
(By Delegates Hunt, Lawrence and Pethtel)
[Introduced February 14, 2013; referred to the
Committee on the Judiciary then Finance.]
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 and
allowing a trust to be an applicant for a distributor
license.
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.
§11-16-3. Definitions.
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) "Class A retail license" means a retail license permitting
the retail sale of liquor at a freestanding liquor retail outlet
licensed pursuant to chapter sixty of this code.
(4) "Commissioner" means the West Virginia Alcohol Beverage
Control Commissioner.
(5) "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.
(6) "Freestanding liquor retail outlet" means a retail outlet
that sells only liquor, beer, nonintoxicating beer and other
alcohol-related products, as defined pursuant to section four,
article three-a, chapter sixty of this code.
(7) "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 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.
(8) "Nonintoxicating beer sampling event" means an event
approved by the commissioner for a Class A retail Licensee to hold
a nonintoxicating beer sampling authorized pursuant to section
eleven-a of this article.
(9) "Nonintoxicating beer sampling day" means any days and
hours of the week where Class A retail licensees may sell nonintoxicating beer pursuant to sub-section (a)(1), section
eighteen of this article, and is approved, in writing, by the
commissioner to conduct a nonintoxicating beer sampling event.
(10) "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.
(11) "Original container" means the container used by the
brewer at the place of manufacturing, bottling or otherwise
producing nonintoxicating beer for sale at wholesale.
(12) "Person" means and includes an individual, firm,
partnership, limited partnership,
limited liability company,
association or corporation.
(13) "Resident brewer" means any person, firm, association,
partnership, or corporation whose principal place of business is
within the state.
(14) "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.
(15) "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 the
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 the 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 the 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 the 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
the 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
manage and are 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 the 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 if 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.