WEST VIRGINIA LEGISLATURE
2024 REGULAR SESSION
ENROLLED
Committee Substitute for House Bill 5294
BY DELEGATES W. CLARK, ESPINOSA, HOWELL, HARDY,
HORST, DITTMAN, MILLER, HOUSEHOLDER, HITE,
CROUSE, AND HORNBY
[Passed March 9, 2024; in effect May 1, 2024.]
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1 AN ACT to amend and reenact the provisions of §11-16-6a and §11-16-11a of the Code of West
2 Virginia, as amended; to amend and reenact §60-3A-3a of said code; to amend and
3 reenact §60-4-3a and §60-4-3b of said code; to amend and reenact §60-6-1 of said
4 code; to amend and reenact §60-7-2, §60-7-8a, and §60-7-8d of said code; to amend
5 and reenact §60-8-2, §60-8-3, §60-8-6c of said code; to amend said code by adding
6 thereto a new section designated §60-8-8; to amend and reenact §60-8-32a of said
7 code; and to amend and reenact §60-8A-5 of said code, all relating to wine, alcoholic
8 liquors, hard cider and non-intoxicating beer generally; defining terms; removing
9 requirement that certain samples must be complimentary; allowing on-premises
10 consumption of alcoholic beverages at wineries, farm wineries, distilleries, mini
11 distilleries, micro distilleries, brewers or resident brewers under specified conditions;
12 increasing number of samples per patron per day; allowing licensed alcohol
13 representatives to purchase West Virginia product for approved sampling events;
14 modifying sample sizes; authorizing alcohol manufacturers to attend private fairs and
15 festivals, wine festivals, and one day charitable events and sell their manufactured
16 alcohol by the drink or glass for on-premises consumption or by the bottle for off-
17 premises consumption; clarifying that certain alcohol manufacturers may sell sealed
18 bottles for off-premises consumption and on premises bottle service by the glass;
19 modifying definition of close proximity to 300 feet; removing or limiting the ability of
20 political subdivisions to regulate certain conduct of alcohol manufacturers, distilleries,
21 mini-distilleries, micro-distilleries, wineries and farm wineries; removing private
22 manufacturer club licensees' 15 hours per week food service requirement; authorizing
23 simultaneous dual licensing in some circumstances; allowing sale and serving of alcohol,
24 wine, nonintoxicating beer, nonintoxicating craft beer and cider in various types of
25 containers, including glasses and bottles by specified licensees on specified premises;
26 authorizing Class B retail licensees to conduct nonintoxicating beer and liquor sampling
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27 events; modifying sample sizes for Class A retail licenses and Class B retail licenses;
28 authorizing licensed brewers and resident brewers to enter into alternating partnership
29 agreements; providing that wineries or farm wineries possessing certain licenses are not
30 subject to the food requirements for private wine restaurants; authorizing licensed
31 representatives to purchase bottles for Class A retail licenses and Class B retail licenses
32 who conduct events; permitting licensed representatives to serve samples; providing for
33 treating fair and festival sales by licensees as on premises sales for the purpose of
34 calculating the two percent of gross sales price of each retail liquor sale for market zone
35 calculations; providing that temporary out of state licensees for one day events are not
36 exempt from background checks required of full licensees; providing that certain licenses
37 are not subject to specified background check requirements; allowing Class A wine
38 licensees to serve food that does not require kitchen preparation; and allowing wineries
39 or farm wineries providing hard cider samples to serve food that does not require kitchen
40 preparation.
Be it enacted by the Legislature of West Virginia:
CHAPTER 11. TAXATION.
ARTICLE 16. NONINTOXICATING BEER.
§11-16-6a. Brewer and resident brewer license to manufacture, sell, and provide samples.
1 (a) Legislative findings. — The Legislature hereby finds that it is in the public interest to
2 regulate, control, and support the brewing, manufacturing, distribution, sale, consumption,
3 transportation, and storage of nonintoxicating beer and nonintoxicating craft beer and its
4 industry in this state in order to protect the public health, welfare, and safety of the citizens of
5 this state, and promote hospitality and tourism. Therefore, this section authorizes a licensed
6 brewer or resident brewer with its principal place of business and manufacture located in this
7 state to have certain abilities in order to promote the sale of nonintoxicating beer and
8 nonintoxicating craft beer manufactured in this state for the benefit of the citizens of this state,
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9 the state’s growing brewing industry, and the state’s hospitality and tourism industry, all of which
10 are vital components for the state’s economy.
11 (b) Sales of nonintoxicating beer. — A licensed brewer or resident brewer with its
12 principal place of business and manufacture located in the State of West Virginia may offer only
13 nonintoxicating beer or nonintoxicating craft beer manufactured by the licensed brewer or
14 resident brewer for retail sale to customers from the brewer’s or resident brewer’s licensed
15 premises for consumption off of the licensed premises only in the form of kegs, bottles, cans, or
16 growlers for personal consumption and not for resale. A licensed brewer or resident brewer may
17 not sell, give, or furnish nonintoxicating beer for consumption on the premises of the principal
18 place of business and manufacture located in the State of West Virginia, except for the limited
19 purpose of samples as permitted in subsection (c) of this section.
20 (c) Samples. — A licensed brewer or resident brewer with its principal place of business
21 and manufacture located in the State of West Virginia may only offer samples of nonintoxicating
22 beer or nonintoxicating craft beer brewed at the brewer’s or resident brewer’s principal place of
23 business and manufacture located in the State of West Virginia. The samples may be no greater
24 than two ounces per sample per patron, and a sampling shall not exceed 10 two-ounce samples
25 per patron per day. A licensed brewer or resident brewer providing samples shall provide
26 complimentary food items to the patron consuming the samples; and prior to any sampling,
27 verify, using proper identification, that the patron consuming the samples is 21 years of age or
28 over and that the patron is not visibly intoxicated.
29 (d) Retail sales. — Every licensed brewer or resident brewer under this section shall
30 comply with all the provisions of this article as applicable to nonintoxicating beer retailers when
31 conducting sales of nonintoxicating beer or nonintoxicating craft beer and is subject to all
32 applicable requirements and penalties in this article. In the interest of promoting tourism
33 throughout the state, every licensed brewer or resident brewer manufacturing nonintoxicating
34 beer or nonintoxicating craft beer in this state is authorized, with a limited off-site retail privilege
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35 at private fairs and festivals, for on-premises consumption sales and off-premises consumption
36 sales of only the brewer or resident brewer’s nonintoxicating beer or nonintoxicating craft beer.
37 At least five days prior to an approved private fair and festival, an authorized brewer or resident
38 brewer shall provide a copy of a written agreement to sell only nonintoxicating beer or
39 nonintoxicating craft beer manufactured by the brewer or resident brewer at the private fair and
40 festival’s licensed premises. If approved, an authorized brewer or resident brewer may conduct
41 on-premises and off-premises consumption sales of their nonintoxicating beer or nonintoxicating
42 craft beer from a designated booth at the private fair and festival as set forth in §60-7-8a of this
43 code. All authorized and approved brewers or resident brewers conducting the on-premises and
44 off-premises consumption sales shall comply with all retail requirements in §11-16-1 et seq. of
45 this code, and specifically with respect to all markups, taxes, and fees. Additionally, an
46 authorized brewer or resident brewer may provide, sell, and serve its nonintoxicating beer or
47 nonintoxicating craft beer samples in the amount set forth in subsection (c) of this section and
48 its nonintoxicating beer or nonintoxicating craft beer by the glass or drink, or by the bottle or can
49 for on-premises consumption when licensesd as set forth in this article to patrons who are 21
50 years of age or over and who are not intoxicated in the amounts set forth in subsection (c).
51 (e) Payment of taxes and fees. — A licensed brewer or resident brewer under this
52 section shall pay all taxes and fees required of licensed nonintoxicating beer retailers, in
53 addition to any other taxes and fees required, and meet applicable licensing provisions as
54 required by this chapter and by rule of the commissioner.
55 (f) Advertising. — A licensed brewer or resident brewer under this section may advertise
56 a particular brand or brands of nonintoxicating beer or nonintoxicating craft beer produced by
57 the licensed brewer or resident brewer and the price of the nonintoxicating beer or
58 nonintoxicating craft beer subject to state and federal requirements or restrictions. The
59 advertisement may not encourage intemperance.
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60 (g) Growler requirements. — A licensed brewer or resident brewer under this section
61 shall fill a growler and patrons are not permitted to access the secure area or fill a growler. A
62 licensed brewer or resident brewer under this section shall sanitize, fill, securely seal, and label
63 any growler prior to its sale. A licensed brewer or resident brewer under this section may only
64 offer for retail sale growlers no larger than 128 fluid ounces of nonintoxicating beer or
65 nonintoxicating craft beer manufactured by the licensed brewer or resident brewer for personal
66 consumption off of the licensed premises and not for resale. A licensed brewer or resident
67 brewer under this section may refill a growler subject to the requirements of this section. A
68 licensed brewer or resident brewer shall visually inspect any growler before filling or refilling it. A
69 licensed brewer or resident brewer may not fill or refill any growler that appears to be cracked,
70 broken, unsafe, or otherwise unfit to serve as a sealed beverage container.
71 (h) Growler labeling. — A licensed brewer or resident brewer under this section selling
72 growlers shall affix a conspicuous label on all sold and securely sealed growlers listing the
73 name of the licensee selling the growler, the brand of the nonintoxicating beer or nonintoxicating
74 craft beer in the growler, the alcohol content by volume of the nonintoxicating beer or
75 nonintoxicating craft beer in the growler, and the date the growler was filled or refilled. All
76 labeling on the growler shall be consistent with all federal labeling and warning requirements.
77 (i) Growler sanitation. — A licensed brewer or resident brewer authorized under this
78 section shall clean and sanitize all growlers he or she fills or refills in accordance with all state
79 and county health requirements prior to its sealing. In addition, the licensed brewer or resident
80 brewer shall sanitize, in accordance with all state and county health requirements, all taps, tap
81 lines, pipelines, barrel tubes, and any other related equipment used to fill or refill growlers.
82 Failure to comply with this subsection may result in penalties under §11-16-23 of this code.
83 (j) Fee. — There is no additional fee for a licensed brewer or resident brewer authorized
84 under this section to sell growlers.
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85 (k) Limitations on licensees. — To be authorized under this section, a licensed brewer or
86 resident brewer may not produce more than 25,000 barrels per calendar year at the brewer’s or
87 resident brewer’s principal place of business and manufacture located in the State of West
88 Virginia. No more than one brewer or resident brewer license may be issued to a single person
89 or entity and no person may hold both a brewer and a resident brewer license. A licensed
90 brewer or resident brewer under this section may only conduct tours, give samples, and sell
91 growlers during the hours of operation set forth in §11-16-18(a)(1) of this code. A licensed
92 brewer or resident brewer authorized under this section is subject to the applicable penalties
93 under §11-16-23 of this code for violations of this section.
94 (l) (1) Alternating Proprietorship Agreements. - A licensed brewer or resident brewer may
95 enter into alternating proprietorship agreements with another licensed brewer or resident brewer
96 with its principal place of business and manufacture located in the State of West Virginia for
97 purposes of sharing brewing equipment or facilities as part of the manufacture of nonintoxicating
98 beer or nonintoxicating craft beer. Any such alternating proprietorship agreement shall be
99 provided to the West Virginia Alcohol Beverage and Control Administration and set forth the
100 following terms and conditions:
101 (A) The licensed brewer or resident brewer serving as the brewer of record and retaining
102 ownership, rights, title, and interest in the nonintoxicating beer or nonintoxicating craft beer
103 recipe and brand;
104 (B) The licensed brewer or resident brewer who will be responsible for executing any
105 brew of nonintoxicating beer or nonintoxicating craft beer;
106 (C) The location of the facilities to be used for the manufacture of the nonintoxicating
107 beer or nonintoxicating craft beer;
108 (D) Specifications regarding the packaging of all nonintoxicating beer or nonintoxicating
109 craft beer manufactured under the contract brewing services agreement; and
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110 (E) The manner of payment of any and all federal and state excise taxes associated with
111 the manufactured nonintoxicating beer or nonintoxicating craft beer.
112 (2) The licensed brewer or resident brewer serving as the brewer of record is
113 responsible for the transportation of the finished and packaged product to its licensed facility,
114 where it must come to rest tax determined. Any nonintoxicating beer or nonintoxicating craft
115 beer manufactured pursuant to an alternating proprietorship agreement shall be credited to the
116 specified brewer of record for purposes of the barrel limitations set forth in §11-16-6a(k) of this
117 code, and not the licensed brewer or resident brewer responsible for executing any brew on
118 behalf of the brewer of record.
119 (m) Rules. — The commissioner, in consultation with the Bureau for Public Health
120 concerning sanitation, may propose rules for legislative approval, pursuant to §29A-3-1 et seq.
121 of this code, to implement this section.
§11-16-11a. Nonintoxicating beer sampling.
1 (a) Notwithstanding any provision of this code to the contrary, a Class A retail licensee or
2 Class B retail licensee may, with the written approval of the commissioner, conduct a
3 nonintoxicating beer sampling event on a designated nonintoxicating beer sampling day.
4 (b) At least five business days prior to the nonintoxicating beer sampling, the Class A
5 retail licensee or Class B retail licensee shall submit a written proposal to the commissioner
6 requesting to hold a nonintoxicating beer sampling event, including:
7 (1) The day of the event;
8 (2) The location of the event;
9 (3) The times for the event;
10 (4) The names of up to three specific brands, types, and flavors, if any, of the
11 nonintoxicating beer to be sampled; and
12 (5) A statement indicating that all the nonintoxicating beer brands have been registered
13 and approved for sale in the state by the commissioner.
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14 (c) Upon approval by the commissioner, a Class A retail licensee or Class B retail
15 licensee may serve the complimentary nonintoxicating beer samples of the approved brands,
16 types, and flavors that are purchased by the Class A retail licensee or Class B retail licensee,
17 with all taxes paid, from its inventory.
18 (d) The complimentary nonintoxicating beer sample on any nonintoxicating beer
19 sampling day shall not exceed:
20 (1) Three separate and individual sample servings per brand, type, and flavor per
21 customer verified to be 21 years of age or older; and
22 (2) Four ounces in total volume per brand, type, and flavor.
23 (e) Servers at the nonintoxicating beer sampling event shall:
24 (1) Be employees of the Class A retail licensee or Class B retail licensee;
25 (2) Be at least 21 years of age or older; and
26 (3) Have specific knowledge of the nonintoxicating beer being sampled to convey to the
27 customer.
28 (f) All servers at the nonintoxicating beer sampling event shall verify the age of the
29 customer sampling nonintoxicating beer by requiring and reviewing proper forms of
30 identification. Servers at the nonintoxicating beer event may n