5-01-16. Direct sale from out-of-state person to consumer - Penalty.
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/nd/title-05/chapter-5-01-general-provisions/5-01-16·A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
1. A person in the business of selling alcoholic beverages may not knowingly or
intentionally ship, or cause to be shipped, any alcoholic beverage from an out-of-state
location directly to a person in this state who is not a licensed wholesaler in this state.
2. A person in the business of transporting goods may not knowingly or intentionally
transport, or cause to be transported, any alcoholic beverage directly to a person in
this state who is not a licensed wholesaler in this state.
3. For a first violation of subsection 1 or 2, the tax commissioner shall notify, by certified
mail, the person and order that person to cease and desist any shipment of alcoholic
beverages in violation of subsection 1 or 2 and shall assess a civil penalty of one
hundred dollars for each illegal shipment. For a second violation of subsection 1 or 2,
the tax commissioner shall assess a civil penalty of two hundred dollars for each illegal
shipment. For any subsequent violation of subsection 1 or 2, the tax commissioner
shall assess a civil penalty of five hundred dollars for each illegal shipment.
4. The alcoholic beverage transported in violation of this section and the vehicle used in
violation of this section are forfeitable property under chapter 29-31.1. 5. This section does not apply to a transaction by a person holding a valid manufacturer's
or retailer's license issued by the state of its domicile and if the person obtains a direct
shipping license from and on a form prescribed by the tax commissioner before
making a shipment. The annual fee for a direct shipping license is fifty dollars.
Licensed direct shippers may sell and ship to an individual twenty-one years of age or
older 7.13 gallons [27 liters] or less of wine, two hundred eighty-eight fluid ounces
[8517.18 milliliters] or less of beer, or 2.38 gallons [9 liters] or less of any other
alcoholic beverages per month for personal use and not for resale.
a. A direct shipper shall ship all containers of alcoholic beverages shipped directly to
a resident of this state using a licensed alcohol carrier and may cause the
alcoholic beverages to be shipped by a licensed logistics company.
b. A direct shipper shall label all containers of alcoholic beverages shipped directly
to an individual in this state with conspicuous words "SIGNATURE OF PERSON
AGE 21 OR OLDER REQUIRED FOR DELIVERY".
c. A licensed direct shipper shall report and pay the wholesaler excise tax and
retailer sales taxes to the tax commissioner on all alcoholic beverages sold to
residents in this state at the rates set forth in sections 5-03-07 and 57-39.6-02.
The excise tax reports are due January fifteenth of the year following the year
sales and shipments were made. When the fifteenth day of January falls on a
Saturday, Sunday, or legal holiday, the due date is the first working day thereafter.
The report must provide such detail and be in format as prescribed by the tax
commissioner and include the identification of any logistics or fulfillment houses
the licensee used for such shipments. The sales and use tax reports are due as
set forth in chapter 57-39.6. The sales and use tax reports must be in a format as
prescribed by the tax commissioner. The tax commissioner may require that the
report be submitted in an electronic format approved by the tax commissioner.
d. All alcoholic beverages that are shipped directly to a resident of this state must be
properly registered with the federal alcohol and tobacco tax and trade bureau and
must be owned by the licensed direct shipper. 6. A licensed alcohol carrier may ship alcoholic beverages into, out of, or within this state.
A licensed alcohol carrier shall pay an annual fee of one hundred dollars and obtain a
license on an application form provided by the tax commissioner and subject to any
requirements determined by the tax commissioner.
a. A licensed alcohol carrier shall ensure all containers of alcoholic beverages
shipped directly to an individual in this state are labeled with conspicuous words
"SIGNATURE OF PERSON AGE 21 OR OLDER REQUIRED FOR DELIVERY". A
licensed alcohol carrier may not deliver alcoholic beverages to a person under
twenty-one years of age, or to a person who is or appears to be in an intoxicated
state or condition. A licensed alcohol carrier shall obtain valid proof of identity and
age before delivery and shall obtain the signature of an adult as a condition of
delivery.
b. A licensed alcohol carrier shall maintain records of alcoholic beverages shipped
into, out of, or within this state which include the name of the licensed direct
shipper, the name of any licensed logistics shipper, the date of each shipment,
the recipient's name and address, and an electronic or paper form of signature
from the recipient of the alcoholic beverages. A licensed alcohol carrier shall
submit a report to the tax commissioner on a monthly basis in the form and
format prescribed by the tax commissioner. The report is due on the last day of
the month following the month of shipment. If the due date falls on a Saturday,
Sunday, or legal holiday, the due date is the first working day after the due date.
The tax commissioner may require that the report be submitted in an electronic
format approved by the tax commissioner.
c. If the tax commissioner has provided notice to a licensed alcohol carrier that a
direct shipper is not licensed, the licensed alcohol carrier must notify the direct
shipper that the direct shipper must obtain a direct shipper permit before
tendering packages to the licensed alcohol carrier for delivery. Any assessed
penalty may be waived by the tax commissioner for good cause upon request by
the licensed alcohol carrier. 7. Licensed logistics shippers must obtain a logistics shipping license from the tax
commissioner and shall pay an annual fee of one hundred dollars before making or
causing a shipment.
a. A licensed logistics shipper shall ensure all containers of alcoholic beverages
shipped directly to an individual in this state are labeled with conspicuous words
"SIGNATURE OF PERSON AGE 21 OR OLDER REQUIRED FOR DELIVERY".
b. All containers of alcoholic beverage shipped directly to a resident of this state
must be shipped using a licensed alcohol carrier as provided in subsection 6.
c. A licensed logistics shipper shall maintain records of alcoholic beverages shipped
which include the license number and name of the licensed direct shipper, the
license number and name of the licensed common carrier, the date of each
shipment, the quantity and kind of alcohol shipped, and the recipient's name and
address for each shipment. A licensed logistics shipper shall submit a report to
the tax commissioner on a monthly basis in the form and format prescribed by the
tax commissioner. The report is due on the last day of the month following the
month of shipment. If the due date falls on a Saturday, Sunday, or legal holiday,
the due date is the first working day after the due date. The tax commissioner
may require that the report be submitted in an electronic format approved by the
tax commissioner.
d. Licensed logistics shippers may not ship alcoholic beverages from unlicensed
direct shippers or through unlicensed carriers. For a violation, a licensed logistics
shipper is subject to the penalties in subsection 3. 8. The tax commissioner may initiate and maintain an action in a court of competent
jurisdiction to enjoin a violation of this section and may request award of all costs and
attorney's fees incurred by the state incidental to that action. Upon determination by
the tax commissioner that an illegal sale or shipment of alcoholic beverages has been
made to a consumer in this state by any person, the tax commissioner may notify both
the alcohol and tobacco tax and trade bureau of the United States department of the
treasury and the licensing authority for the state in which the person is domiciled that a
state law pertaining to the regulation of alcoholic beverages has been violated and
may request those agencies to take appropriate action.
5-01-17. Domestic winery license. 1. The tax commissioner may issue a domestic winery license to the owner or operator of
a winery located within this state to produce wine. A domestic winery may purchase, at
wholesale or retail, brandy for use of onpremises fortification. A domestic winery
license may be issued and renewed for an annual fee of one hundred dollars, which is
in lieu of all other license fees required by this title. 2. A domestic winery may sell wine produced by that winery at on sale or off sale, in retail
lots, and not for resale, and may sell or direct ship its wine to persons inside or outside
of the state in a manner consistent with the laws of the place of the sale or delivery in
total quantities not in excess of twenty-five thousand gallons [94635 liters] in a
calendar year; glassware; wine literature and accessories; and cheese, cheese
spreads, and other snack food items. A licensee may dispense free samples of the
wines offered for sale. Subject to local ordinance, sales at on sale and off sale may be
made on Sundays between eight a.m. and twelve midnight. The tax commissioner may
issue special events permits for not more than forty events per calendar year to a
domestic winery allowing the winery, subject to local ordinance, to give free samples of
its wine and to sell its wine by the glass or in closed containers, at off-premises events.
A domestic winery may not engage in any wholesaling activities. All sales and
deliveries of wines to any other retail licensed premises in this state may be made only
through a licensed North Dakota liquor wholesaler. For any month in which a domestic
winery has made sales to a North Dakota wholesaler, that domestic winery shall file a
report with the tax commissioner no later than the last day of each calendar month
reporting sales made during the preceding calendar month. When the last day of the
calendar month falls on a Saturday, Sunday, or legal holiday, the due date is the first
working day thereafter. 3. A domestic winery may obtain a domestic winery license and a retailer license allowing
the onpremises sales of alcoholic beverages at a restaurant owned by the licensee
and located on property contiguous to the winery. 4. A domestic winery may purchase wine in bulk from within and outside the state,
excluding label approved containers and not to exceed four thousand gallons [15142
liters] per calendar year. 5. A domestic winery is subject to section 5-03-06 and shall report and pay annually to
the tax commissioner the wholesaler taxes due on all wines sold by the licensee at
retail, including all wines shipped directly to consumers as set forth in sections 5-03-07
and 57-39.6-02. The annual wholesaler tax reports are due January fifteenth of the
year following the year sales were made. When the fifteenth of January falls on a
Saturday, Sunday, or legal holiday, the due date is the first working day thereafter. The
report must provide such detail and be in a format as prescribed by the tax
commissioner. The tax commissioner may require that the report be submitted in an
electronic format approved by the tax commissioner.
5-01-18. Alcohol without liquid devices prohibited - Definition - Penalty. 1. A person may not sell, offer to sell, purchase, possess, use, or if that person is a retail
alcoholic beverage licensee, have on the premises an alcohol without liquid device. In
this section, an "alcohol without liquid device" means an apparatus that is advertised,
designed, or used to vaporize an alcoholic beverage to produce a vapor that may be
inhaled by an individual. The term does not include an inhaler, nebulizer, atomizer, or
other device that is designed and intended specifically for medical purposes to
dispense prescribed or over-the-counter medications or water. 2. This section does not apply to a hospital that operates primarily for the purpose of
conducting scientific research, a state institution conducting bona fide research, a
private college or university conducting bona fide research, or a pharmaceutical
company or biotechnology company conducting bona fide research. 3. A violation of this section is a class B misdemeanor.
5-01-19. Domestic distillery. 1. The tax commissioner may issue a domestic distillery license to the owner or operator
of a distillery that is located within this state. A domestic distillery license may be
issued and renewed for an annual fee of one hundred dollars. This fee is in lieu of all
other license fees required by this title. The tax commissioner may not issue the
domestic distillery license until the applicant has established that the applicant has
applied for and obtained the necessary federal registrations and permits, as required
under the Internal Revenue Code of 1986 [26 U.S.C. 5001 et seq.] and the federal
Alcohol Administration Act [27 U.S.C. 203], for the operation of a distilled spirits plant. 2. A domestic distillery may sell spirits produced by that distillery at on sale or off sale, in
retail lots, and not for resale, and may sell or direct ship its spirits to persons inside or
outside the state in a manner consistent with the laws of the place of the sale or
delivery in total quantities not in excess of twenty-five thousand gallons [94635 liters]
in a calendar year. Direct sales within this state are limited to two and thirty-eight
hundredths gallons [9 liters] or less per month per person for personal use and not for
resale. The packaging must conform with the labeling requirements in section 5-01-16.
A licensee may dispense free samples of the spirits offered for sale. Subject to local
ordinance, sales at on sale and off sale may be made on Sundays between eight a.m.
and twelve midnight. A domestic distillery may hold events inside and outside its
premises, but only on contiguous property under common ownership, allowing free
samples of its spirits and to sell its spirits by the glass or in closed containers. The tax
commissioner may issue special event permits for not more than forty events per
calendar year to a domestic distillery allowing the domestic distillery, subject to local
ordinance, to give free samples of its product and to sell its product by the glass or in
closed containers, at off-premises events. A domestic distillery may not engage in any
wholesaling activities. Except as provided by section 5-01-19.1, all sales and deliveries
of spirits to any other retail licensed premises in this state may be made only through a
licensed North Dakota liquor wholesaler. However, a domestic distillery may sell
distilled spirits to a domestic winery if the distilled spirits were produced from products
provided to the domestic distillery by the domestic winery. No later than the last
business day of a calendar month, a farm distillery that has made sales to a North
Dakota wholesaler during the preceding calendar month shall file a report with the tax
commissioner reporting those sales. 3. A domestic distillery may obtain a domestic distillery license and a retailer license
allowing the onpremises sale of alcoholic beverages at a restaurant owned by the
licensee and located on property contiguous to the domestic distillery. A domestic
distillery also may own or operate a winery. 4. A domestic distillery is subject to section 5-03-06 and shall report and pay annually to
the tax commissioner the wholesaler taxes due on all spirits sold by the licensee at
retail or to a retail licensee, including all spirits shipped directly to consumers as set
forth in sections 5-03-07 and 57-39.6-02. The annual wholesaler tax reports are due
January fifteenth of the year following the year sales were made. The report must
provide the detail and be in a format as prescribed by the tax commissioner. The tax
commissioner may require that the report be submitted in an electronic format
approved by the tax commissioner.
5-01-19.1. Direct sale by domestic distilleries. 1. A domestic distillery that produces no more than twelve thousand proof gallons [45425
liters] of spirits per year may sell and deliver, onsite or offsite, the spirits produced by
the distillery directly to licensed retailers. The distillery may sell and deliver spirits
onsite to a licensed retailer that presents the retailer's license or a photocopy of the
license. The distillery may deliver the spirits offsite if the distillery:
a. Uses the distillery's equipment, trucks, and employees to deliver the spirits;
b. Contracts with a licensed distributor to ship and deliver the spirits to the retailer;
or
c. Contracts with a common carrier to ship and deliver the spirits to the retailer
directly from the distillery or the distillery's warehouse. 2. The total amount of spirits each domestic distillery may sell or deliver directly to all
licensed retailers may not exceed two hundred cases per year. Individual shipments
delivered by common carrier may not exceed three cases a day for each licensed
retailer. A case may not exceed two and thirty-eight hundredths gallons [9 liters]. 3. As used in this section, "proof gallon" means a gallon [3.79 liters] of liquid at sixty
degrees Fahrenheit [15.5 degrees Celsius] which contains fifty percent ethyl alcohol by
volume or its equivalent.
5-01-19.2. Manufacturing distillery - Satellite locations. 1. The tax commissioner may issue a manufacturing distillery license to the owner or
operator of a distillery located within this state which uses a majority of North Dakota
farm products to manufacture and sell spirits produced on the premises. A
manufacturing distillery license may be issued and renewed for an annual fee of
one hundred dollars. This fee is in lieu of all other license fees required by this title.
The tax commissioner may not issue the manufacturing distillery license until the
applicant has established the applicant has applied for and obtained the necessary
federal registrations and permits, as required under the Internal Revenue Code of
1986 [26 U.S.C. 5001 et seq.] and the federal Alcohol Administration Act [27 U.S.C.
203], for the operation of a distilled spirits plant.
2. A manufacturing distillery may sell spirits produced by that distillery at off sale, in retail
lots, and not for resale, and may sell or direct ship its spirits to persons inside or
outside the state in a manner consistent with the laws of the place of the sale or
delivery in total quantities not in excess of forty thousand gallons [151416 liters] in a
calendar year.
a. Direct sales within this state are limited to two and thirty-eight hundredths gallons
[9 liters] or less per month per person for personal use and not for resale. The
packaging must conform with the labeling requirements in section 5-01-16. A
licensee may dispense free samples of the spirits offered for sale. Subject to local
ordinance, sales at off sale may be made on Sundays between twelve noon and
twelve midnight.
b. A manufacturing distillery may hold events inside its premises and at its satellite
location. The tax commissioner may issue event permits for not more than forty
event days per calendar year to a manufacturing distillery to allow the
manufacturing distillery, subject to local ordinance, to give free samples of its
product and to sell its product by the glass or in closed containers at events on
the premises, off the premises, and at its satellite location.
c. A manufacturing distillery may not engage in any wholesaling activities. Except as
provided by section 5-01-19.1, all sales and deliveries of spirits to any other retail
licensed premises in this state may be made only through a licensed North
Dakota liquor wholesaler. However, a manufacturing distillery may sell distilled
spirits to a domestic winery if the distilled spirits were produced from products
provided to the manufacturing distillery by the domestic winery. 3. a. As used in this subsection, "samples" means the serving of free tastings of a
manufacturing distillery's products not to exceed six ounces [0.18 liter] of spirits
per individual per day.
b. A manufacturing distillery may operate one satellite location in addition to its
licensed premises for the purpose of providing samples and on sale or off sale
retail sales.
(1)The spirits sampled or sold at the satellite location must be produced by the
manufacturing distillery.
(2)A manufacturing distillery may not produce any spirits at the satellite
location.
(3)An event permit issued to a manufacturing distillery in accordance with
subsection 2 for an indoor or outdoor event held at its satellite location does
not count towards the forty event days per calendar year allowed under
subsection 2. The manufacturing distillery may offer free samples of its
spirits and may sell its spirits by the glass or in closed containers at the
event held at the satellite location.
(4)The satellite location must be owned or leased by the manufacturing
distillery licensee.
(5)A manufacturing distillery may not engage in wholesaling activities at its
satellite location.
c. A manufacturing distillery shall obtain a satellite location license from the tax
commissioner before operating a satellite location. The tax commissioner may
issue and renew a satellite location license for an annual fee of one hundred
dollars. This fee is in addition to all other license fees required by this title.
d. A manufacturing distillery is liable for any violation of alcohol or licensing
requirements committed on the premises of its satellite location. 4. A person may not hold a manufacturing distillery license and a domestic distillery
license. 5. A manufacturing distillery may obtain a manufacturing distillery license and a retailer
license allowing the on-premises sale of alcoholic beverages at a restaurant owned by
the licensee and located at the manufacturing distillery's satellite location. 6. A manufacturing distillery is subject to section 5-03-06 and shall report and pay
annually to the tax commissioner the wholesaler taxes due on all spirits sold by the
licensee at retail or to a retail licensee, including all spirits shipped directly to
consumers as set forth in sections 5-03-07 and 57-39.6-02. The annual wholesaler tax
reports are due January fifteenth of the year following the year sales were made. The
report must provide the detail and be in a format as prescribed by the tax
commissioner. The tax commissioner may require the report to be submitted in an
electronic format approved by the tax commissioner.
5-01-20. Direct sale by licensed wineries. 1. A licensed winery that produces no more than twenty-five thousand gallons [94635
liters] of wine per year may sell and deliver, onsite or offsite, the wine produced by the
winery directly to licensed retailers. The licensed winery may sell and deliver wine
onsite to a licensed retailer who presents the retailer's license or a photocopy of the
license. The winery may deliver the wine offsite if the winery:
a. Uses the winery's equipment, trucks, and employees to deliver the wine;
b. Contracts with a licensed distributor to ship and deliver the wine to the retailer; or
c. Contracts with a common carrier to ship and deliver the wine to the retailer
directly from the winery or the winery's bonded warehouse. 2. The shipments delivered by a winery's equipment, trucks, and employees in a year
may not exceed four thousand five hundred cases. A case may not exceed
2.38 gallons [9 liters]. 3. Individual shipments delivered by common carrier may not exceed three cases a day
for each licensed retailer. The shipments delivered by a common carrier in a year may
not exceed three thousand five hundred cases. A case may not exceed 2.38 gallons
[9 liters].
5-01-21. Brewer taproom license. 1. The tax commissioner may issue multiple brewer taproom licenses to the owner or
operator of a brewery producing no more than twenty-five thousand barrels of malt
beverages annually. A brewer with multiple taproom licenses must produce malt
beverages at each location and the total amount of malt beverages produced at all
locations combined may not exceed twenty-five thousand barrels of malt beverages
annually. Each brewer taproom license may be issued and renewed for an annual fee
of five hundred dollars, which is in lieu of all other state license fees required by this
title. All provisions of this chapter which apply to a retail license must apply to a license
issued under this section unless the provision is explicitly inconsistent with this section. 2. A brewer holding a brewer taproom license may:
a. Manufacture on the licensed premises, store, transport, sell, and export no more
than twenty-five thousand barrels of malt beverages annually.
b. Sell malt beverages manufactured on the licensed premises or through a contract
for consumption on the premises of the brewery or a restaurant owned by the
licensee and located on property contiguous to the brewery.
c. Sell beer manufactured on the licensed premises or through a contract for off
premises consumption in brewery-sealed containers of not more than five and
sixteen-hundredths gallons [19.53 liters].
d. Sell and deliver beer produced by the brewery to licensed beer wholesalers.
e. Dispense free samples of beer offered for sale. Complimentary samples of beer
may not be in an amount exceeding sixteen ounces [.47 liter] per patron.
f. Sell and deliver beer produced by the brewery to licensed retailers within the
state, but only if:
(1)The brewer uses the brewer's own equipment, trucks, and employees to
deliver the beer;
(2)Individual deliveries, other than draft beer, are limited to the case equivalent
of eight barrels per day to each licensed retailer;
(3)The total amount of beer sold or delivered directly to all retailers does not
exceed ten thousand barrels per year; and
(4)A common carrier is not used to ship or deliver the brewery's product to the
public or to licensed retailers. All other sales and deliveries of beer to
licensed retailers in this state may be made only through a wholesaler
licensed in this state.
g. Sell or direct ship beer produced by the brewery to an individual in this state for
consumption in accordance with section 5-01-16. 3. The tax commissioner may issue special event permits for not more than forty events
per calendar year to a brewer taproom licensee allowing the licensee, subject to local
ordinance, to give free samples of its beer, sell its beer by the glass or in closed
containers, or dispense beer manufactured by the licensee, at off-premises events. 4. For any month in which a brewery has made sales to a wholesaler licensed in this
state, that brewery shall file a report with the tax commissioner no later than the last
day of each calendar month reporting sales made during the preceding calendar
month. When the last day of the calendar month falls on a Saturday, Sunday, or legal
holiday, the due date is the first working day after that day. 5. A brewer taproom licensee is subject to section 5-03-06 and shall report and pay
annually to the tax commissioner the wholesaler taxes due on all beer sold by the
licensee at retail or to a retail licensee, including all beer sold directly to consumers as
set forth in sections 5-03-07 and 57-39.6-02. The annual wholesaler tax reports are
due January fifteenth of the year following the year sales were made. When the
fifteenth of January falls on a Saturday, Sunday, or legal holiday, the due date is the
first working day after that day. The report must provide the detail and be in a format
as prescribed by the tax commissioner. The tax commissioner may require the report
be submitted in an electronic format approved by the tax commissioner. 6. A brewer may have multiple taproom licenses, but may not have an ownership interest
in whole or in part, or be an officer, director, agent, or employee of any other
manufacturer, brewer, importer, wholesaler, or retailer, or be an affiliate thereof,
whether the affiliation is corporate or by management, direction, or control. A brewer
may transfer beer in bulk, as defined by section 5-01-01, manufactured by the brewer
to an affiliated brewer. For the purposes of this subsection, an "affiliated brewer
taproom" means a licensed brewer taproom of which at least an eighty-five percent
interest is owned by the brewer taproom, measured annually and:
a. The brewer does not own more than three affiliated brewer taprooms;
b. The licensed brewer taproom receiving the beer in bulk has produced no less
than five thousand gallons [18927.06 liters] of beer on the premises in the
preceding calendar year. For the purpose of calculating the production
requirements, the production must be prorated based on the number of days beer
was produced;
c. The beer in bulk transferred in any calendar year constitutes no more than fifty
percent of the beer being produced by the licensed brewer taproom receiving the
beer; and
d. For purposes of determining whether the twenty-five thousand barrel production
limit under subsections 1 and 2 is being exceeded, the beer being transferred is
credited to the brewer that manufactured the beer. 7. A contractee brewer may contract with a contractor brewer to produce beer for the
contractee brewer to the extent allowed by federal law under the following conditions:
a. The contractee brewer and the contractor brewer must be licensed and owned
separately;
b. The contractee brewer must have a proper license issued under this section and
maintain a physical presence in the state;
c. Beer brewed for a contractee brewer counts toward the contractee brewer's
annual barrels produced, and the beer does not count toward the contractor
brewer's annual barrels produced;
d. The contractee brewer retains ownership of product produced by a contractor
brewer; and
e. Each brewer is separately and distinctly responsible for compliance with this
chapter.
5-01-22. Powdered alcohol products prohibited - Penalty - Exceptions. 1. As used in this section, "powdered alcohol product" means any alcohol prepared or
sold in a powder form for either direct use or reconstitution in a liquid beverage or
food. 2. A person may not sell, offer to sell, purchase, offer to purchase, possess, or consume
a powdered alcohol product. 3. A violation of this section is a class B misdemeanor. 4. This section does not apply to the use of powdered alcohol products for research by a:
a. Health care provider that operates primarily for the purpose of conducting
scientific research;
b. State institution;
c. Private college or university; or
d. Pharmaceutical or biotechnology company.