Wine Institute and other industry representatives met with the Virginia ABC this week concerning their July 22, 2009 circular No. 09-05 governing use of third party service providers in direct shipments. The ABC staff was well aware of the concerns nationwide that their recent opinion has generated, but remained firm in their position that such entities cannot participate in direct shipments into the Commonwealth under current Virginia law. They rely primarily on the portions below of Va. Code sections 4.1-209.1 and 4.1-203.
§ 4.1-209.1. Direct shipment of wine and beer; shipper’s license.
…“Any winery or farm winery located within or outside the Commonwealth may apply to the Board for issuance of a wine shipper’s license that shall authorize the shipment of brands of wine and farm wine identified in such application…..Any person located within or outside the Commonwealth who is authorized to sell wine or beer at retail in their state of domicile and who is not a winery, farm winery, or brewery may nevertheless apply for a wine or beer shipper’s license, or both, if such person satisfies the requirements of this section.”
§ 4.1-203. Separate license for each place of business; transfer or amendment; posting; expiration; carriers.
“A. Each license granted by the Board shall designate the place where the business of the licensee will be carried on. ….a separate license shall be required for each separate place of business……”
In summary, the position of the Virginia ABC is that ONLY wineries and retailers licensed by their home states are eligible to receive a Virginia direct shippers’ license which permits the conduct of business (aka the shipment of wine into Virginia) ONLY at and from the business address listed on their license.
Because of widespread industry concerns, however, the Virginia ABC staff is willing to consider drafting a clarifying circular. While they are not expected to change their interpretation of current law, as part of this clarifying circular, they are willing to consider delaying the effective date of this ruling until April 1, 2010. By this time, the Virginia Legislature will have had an opportunity to change the law to resolve this problem for wine shippers nationwide. The Virginia ABC has suggested they will support the legislative change necessary to enable certain, but not all, third party providers to participate in the direct shipments of retailers and wineries to Virginia consumers.
We will keep you posted as we continue to work with the Virginia ABC on this matter. Please consider their current circular in effect until another one is issued.