Title 175 W. Va. C.S.R.

Alcohol Beverage Control Commission Alcohol Beverage Control Commission

Series 01 Licensed Retailer Operations

W. Va. Code R. § 175-1-1 General

1.1. Scope. -- This rule explains and clarifies, the process for ordering, transporting and advertising alcoholic liquors by licensed retailers. This rule also explains and clarifies the permissible activities of a licensed retailer and the relationship between the manufacturer of alcoholic liquors and a licensed retailer.

1.2. Authority. -- W. Va. Code §60-3A-6.

1.3. Filing Date. -- May 1, 2012.

1.4. Effective Date. -- May 1, 2012.

1.5. Forms. -- All forms are available at the ABCC office or on the internet at www.abca.wv.gov.

W. Va. Code R. § 175-1-2 Definitions

As used in this rule, and unless the context clearly requires a different meaning, the following terms have the following meaning and apply in the singular and in the plural.

2.1. “Active retail license” means a current license for a retail outlet that has been open and in continuous operation for a period of not less than 12 months prior to July 1, 2010, or July 1st for every ten year license period thereafter.

2.2. “Active retail licensee” means a person who holds an active retail license as of June 2, 2009, that person’s successor or any person who holds and operates an active retail license when it expires at the end of a ten-year period.

2.3. “Advertisement” means any audio, visual or other electronic display promoting alcoholic liquors through the medium of billboards, newspapers, magazines, or similar publications and display materials or equipment. The term advertisement does not include:

2.3.a. Any label, affixed to a container of alcoholic liquors or any individual covering, carton or other wrapper of the container, or

2.3.b. Any editorial or other reading matter in any periodical or publication for the preparation or publication of which no money or other valuable consideration is paid or promised, directly or indirectly, by any person subject to this rule.

2.4. “Alcohol” means ethyl alcohol, whatever its origin, and includes synthetic ethyl alcohol but not denatured alcohol.

2.5. “Alcoholic liquor” or “liquor” means alcohol, beer, fortified wine and distilled spirits, and any liquid or solid capable of being used as an alcoholic beverage. The term alcoholic liquor does not include wine with an alcohol content of fourteen percent (14%) or less by volume, nonintoxicating beer or nonintoxicating beverages.

2.6. “Alcohol Beverage Control Commission” or “ABCC” or “Commissioner” means the West Virginia Alcohol Beverage Control Commissioner (Administrator) or his or her designee.

2.7. “Alcohol-related products” means any non-alcoholic beer or beverages; non-alcoholic mixers; decanters; glass or plastic cups; openers, corks, or stoppers; gift bags; books, magazines or novelties; traditional West Virginia lottery products, such as: instant games, Keno, Powerball, Hot Lotto, daily games and Cash 25, but not limited video lottery; or such other alcohol related items as determined by the Commissioner, on a case by case basis, after receipt of a written request from an active retail licensee which must be sent to the Commissioner’s office via certified mail.

2.8. “Beer” means any beverage obtained by the fermentation of barley, malt, hops, or any other similar product or substitute, and containing more alcohol than that of nonintoxicating beer, including nonintoxicating craft beer, and shall be included in the definition of “liquor” and “alcoholic liquor”, as used in chapter eleven, section sixteen and in chapter sixty of the West Virginia Code and shall not be construed to include or embrace nonintoxicating beer or nonintoxicating craft beer.

2.9. “Brewery” means an establishment where beer is manufactured or in any way prepared.

2.10. “Case Lot” means a complete case of distilled spirits.

2.11. “Class A retail license” means a retail license permitting the retail sale of West Virginia product or alcoholic liquors at a freestanding liquor retail outlet, subject to the requirements of the rules and code.

2.12. “Class B retail license” means a retail license permitting the sale of West Virginia product or alcoholic liquors at a mixed retail liquor outlet, subject to the requirements of the rules and code.

2.13. “Department” means the West Virginia Department of Revenue.

2.14. “Displayed inventory” means the current inventory of West Virginia product in the quantity as required for a Class A retail license or a Class B retail license that is available for sale in the set square footage of retail floor space of a retail outlet as established for a freestanding liquor retail outlet or a mixed retail liquor outlet and in sufficient quantities to service consumer demand at the retail outlet.

2.15. “Distilled spirits” means ethyl alcohol, ethanol or spirits, or wine, including all dilutions and mixtures thereof, from whatever source or by whatever process produced, for beverage use, and includes, but is not limited to, neutral spirits, whiskey, brandy, rum, gin, vodka, cordials and liqueurs. Any alcoholic beverage or other food product containing more than 24% of alcohol by volume is considered distilled spirits.

2.16. “Distillery” or “distiller” means an establishment where alcoholic liquor other than wine and beer is manufactured or in any way prepared.

2.17. “Electronic funds transfer” or “EFT” means the transfer electronically of funds from one bank account to another bank account without the necessity of a personal or business check to initiate the transaction.

2.18. “Equipment” means all functional items such as tap boxes, glassware, pouring racks, and similar items used in the conduct of a retail licensee's business.

2.19. “Federal law” means the laws and regulations of the United States and any court decisions interpreting them.

2.20. “Freestanding liquor retail outlet” means a retail outlet that sells only liquor, beer, nonintoxicating beer and other alcohol-related products, including tobacco-related products.

2.21. “Fortified wine” means any wine to which brandy or other alcohol has been added. For purposes of this rule, “fortified wine” includes dessert wines which are fortified but which have an alcohol content by volume of at least fourteen and one-tenths percent (14.1%) and not exceeding sixteen percent (16%).

2.22. “Immediate family” means and includes, but is not necessarily limited to: spouse, brother, sister, son, daughter, mother, mother-in-law, father, father-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, uncle, aunt or cousin of a licensed retailer, a partner, and a corporation’s directors, officers and employees.

2.23. “Importer” means a person who brings in goods from a foreign country for sale in this country.

2.24. “Intoxicated” means having one's faculties impaired by alcohol or other drugs to the point that physical or mental control or both are markedly diminished.

2.25. “Inventory” means the inventory of West Virginia product available at a retail outlet that is maintained in non-retail floor space of the retail outlet.

2.26. “Licensed representative” means a manufacturer’s representative licensed and who has paid the fee under the provisions of W. Va. Code §60-4-22 or a broker authorized, in writing, by a manufacturer to represent the manufacturer’s product in the State of West Virginia and who has paid the same fee to the ABCC. A licensed representative may contact a licensed retailer for the purpose of selling, offering to sell, soliciting, negotiating or promoting the sale of alcoholic liquor or distilled spirits, or conducting surveys, studies or similar activities pertaining to the sale, distribution or availability of alcoholic liquors or distilled spirits.

2.27. “Licensed retailer” means a person licensed under W. Va. Code §60-3A-1, et seq. to operate a retail outlet holding a Class A retail license or Class B retail license and who must have computer(s) with web or internet access that meet ABCC requirements to order West Virginia product or alcoholic liquors from the ABCC’s web or other internet based ordering system.

2.28. “Manufacture” means to distill, rectify, ferment, brew, make, mix, concoct, process, blend, bottle or fill an original package with any alcoholic liquor.

2.29. “Manufacturer” means a person engaged in the manufacture of any alcoholic liquor, including, among others, a producer, bottler, importer, processor, broker, wholesaler, distributor, supplier, distiller, rectifier, winemaker or brewer.

2.30. “Mixed retail liquor outlet” means a retail outlet that sells liquor, beer, nonintoxicating beer and other alcohol-related products, including tobacco-related products, in addition to convenience and other retail products.

2.31. “Neutral spirits” means ethyl alcohol of 190 proof or higher used especially for blending other alcoholic liquors.

2.32. “Nonintoxicating beer” means any cereal malt beverages, or products of the brewing industry commonly referred to as beer, lager, 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 (.5%) alcohol by volume, but not more than nine and six-tenths percent (9.6%) of alcohol by weight, or twelve percent (12%) of alcohol by volume, whichever is greater, all of which are declared to be nonintoxicating beer and the word “liquor” as used in W. Va. Code §60-1-1, et seq., shall not be construed to include or embrace nonintoxicating beer or any of the beverages, products, mixtures or preparations included within this definition.

2.33. “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 (.5%) by volume and not more than twelve percent (12%) alcohol by volume or nine and six-tenths (9.6%) percent alcohol by weight.

2.34. “Original package” means a closed or sealed container or receptacle used for holding alcoholic liquor.

2.35. “Person” means an individual, partnership, joint stock company, business trust, association, limited liability company, corporation or other form of business enterprise, including a receiver, trustee or liquidating agent.

2.36. “Product” means alcoholic liquors whether located in the ABCC warehouse or on or off the premises of a retail outlet.

2.37. “Public place” means any place, building or conveyance to which the public has, or is permitted to have access, including, but not limited to, establishments that provide lodging, sell food for consumption on or off the premises which includes but is not limited to vessels, parks, airports, highways, streets, lanes, parks or places of public resort or amusement. The term “public place” does not include any place or any portion thereof which qualify and are licensed by the Commissioner to sell alcoholic liquors for consumption on the premises.

2.38. “Retail outlet” means a specific location or store where West Virginia product or alcoholic liquors may be lawfully sold by a Class A retail license or Class B retail license in the original package for consumption off the premises.

2.39. “Sale” means any transfer, exchange of goods or services in exchange for money, currency, checks, credit cards, or barter in any manner or by any means, for a consideration, and includes all sales made by principal, proprietor, agent or employee.

2.40. “Selling” means solicitation or receipt of orders, possession for sale, or possession with intent to sell.

2.41. “Spirits” means any alcoholic liquor obtained by distillation and mixed with potable water and other substances in solution including, but not limited to brandy, rum, whiskey, cordials and gin.

2.42. “Tobacco-related products” means tobacco; snuff; chew tobacco; pipe tobacco, cigarettes, specialty cigarettes; cigars; pipes; hookahs; rolling papers; matches; lighters; lighter fluid; tobacco water; tobacco topical paste; cigar cutters or punches; humidors and products to maintain a humidor; nicotine gum; smoking prevention products; smoke cleaning products or smoke smell erasing products; other tobacco-related products or accessories; or such other tobacco-related items as determined by the Commissioner, on a case by case basis, after receipt of a written request from an active retail licensee which must be sent to the Commissioner’s office via certified mail.

2.43. “West Virginia product” means all bourbon, brandy, cognac, cordials, gin, grain alcohol, rye, rum, scotch, tequila, vermouth, vodka, whisky, apertifs, pre-mixed cocktails, fortified wines, spirit blends, marsala, sake, sherry and all other liquor types and classes as approved by the Commissioner and maintained on the ABCC retail liquor product list.

2.44. “Wine” means any alcoholic beverage obtained by the fermentation of the natural content of grapes, other fruits or honey or other agricultural products containing sugar to which no alcohol has been added. Fortified wine and any product defined as or embraced within the definition of nonintoxicating beer under the provisions of article sixteen, chapter eleven of this code are not included in the definition of “wine” for the purpose of this rule.

2.45. “Winery” means an establishment where wine is manufactured or prepared.

W. Va. Code R. § 175-1-3 Authorized Licensed Retailer Activities

3.1. Only a retail outlet licensed in accordance with W. Va. Code §60-3A-1, et seq., may sell West Virginia product or alcoholic liquors at retail in West Virginia. A licensed retail outlet may, in addition to selling alcoholic liquors for consumption away from the premises or off the premises of the retail outlet, do all things common and ordinary in the operation of such an establishment as permitted by its Class A retail license (freestanding liquor retail outlet) or Class B retail license (mixed retail liquor outlet). A licensed retailer that operates more than one (1) retail outlet within a market zone may transfer alcoholic liquors only from one retail outlet to another within the same market zone. Any other transfers of alcoholic liquors require prior written authorization from the ABCC.

3.1.a. A Class A retail license or freestanding liquor retail outlet shall only sell West Virginia product, wine, beer, nonintoxicating beer and other alcohol related products, including tobacco related products, throughout the entire retail floor space of the retail outlet which shall, at minimum, be 750 square feet, as measured by the Commissioner, and further shall maintain displayed inventory and inventory as required by 175CSR5, all subject to the requirements in the rules.

3.1.b. A Class B retail license or mixed retail liquor outlet shall only sell West Virginia product, wine, beer, nonintoxicating beer and other alcohol related products, including tobacco related products, in addition to convenience and other retail products. West Virginia product, wine, beer and nonintoxicating beer shall only be sold in the prominently marked restricted area retail floor space of the mixed retail liquor outlet, which shall, at minimum, be 150 square feet, and such products shall not be highly visible, displayed or available for sale outside the restricted area, and further shall maintain displayed inventory and inventory as required by 175CSR5, all subject to the requirements in the rules.

3.1.c. A licensed retailer may establish the hours during which the business is open to the public. However, alcoholic liquors and fortified wine, may not be sold on Sundays, Christmas or between 12:00 midnight, and 8:00 a.m. on weekdays and Saturdays; wine may not be sold between 2:00 a.m. and 1:00 p.m. on Sundays or between 2:00 a.m. and 7:00 a.m. on weekdays and Saturdays.

3.1.d. A licensed retailer may employ whom he or she pleases so long as:

3.1.d.1. An employee must be at least eighteen (18) years of age in order to sell alcoholic liquors to customers.

3.1.d.2. An employee must be at least twenty-one (21) years of age to take delivery of alcoholic liquor at the ABCC warehouse.

3.1.d.3. A retail outlet may employ a person between sixteen (16) and eighteen (18) years of age to work in a retail outlet if the Commissioner has beforehand provided written approval to employ such persons. The Commissioner's approval must be requested in the initial application or annual license renewal form and such approval will not be unreasonably withheld. The authorization to employ persons under eighteen (18) years of age must be clearly stated on the retail liquor license.

3.1.d.4. The age restrictions in this section apply to the minor children of the licensee.

3.1.e. A licensed retailer may purchase any equipment deemed necessary to the operation of the retail outlet and in so doing may enter into appropriate contracts and financing agreements;

3.1.e.1. The Commissioner has discretion to purchase or authorize another person to purchase, all or any portion of the liquor displayed inventory or inventory of a retail licensee. The creditor of the retail licensee or the retail licensee shall sell the inventory as directed by the Commissioner, and upon the terms determined by the Commissioner. The creditor will be paid the price of the sale of the retail outlet’s displayed inventory and inventory.

3.1.e.2. The creditor is required to pay the applicable shipping and handling charge set by the Commissioner.

3.1.e.3. A creditor, when foreclosing on the assets of a licensed retailer, is required to abide by W. Va. Code §60-3A-29.

3.2. A licensed retailer is required to purchase all distilled spirits and fortified wines or West Virginia product from the Commissioner. However, nonintoxicating beer, nonintoxicating craft beer, port, sherry and Madeira wines, wine other than fortified wine and other alcoholic liquors which are not distilled spirits shall be purchased through a manufacturer or distributor licensed to do business within this state.

3.3. A licensed retailer may only sell alcoholic liquors which are listed as West Virginia product and which have been purchased from the Commissioner, wine other than fortified wine which was purchased from a licensed distributor or licensed farm winery, including port, sherry and Madeira wine, nonintoxicating beer and nonintoxicating craft beer purchased from a licensed manufacturer or distributor. Any violation of this section may result in the immediate suspension or revocation of a retail outlet’s license.

3.3.a. Every licensed retailer shall maintain records of all purchases, sales, receipts and other pertinent papers required by the Commissioner. All records shall be preserved for at least four (4) years. The Commissioner may inspect the books, accounts and records of any licensed retailer relating to the purchase and sale of any alcoholic liquors and examine, under oath, any officer, agent or employee of any licensed retailer. The Commissioner may require the production, within this state, at the time and place he may designate, of any books, accounts, papers or records kept within or without the state, or verified copies in lieu thereof for the purpose of examination by the Commissioner.

3.3.b. Every retail licensee must keep a record in book form showing the date all West Virginia product, alcoholic liquors, wine and beer were received on his or her premises, and from whom the product was received. In addition a retail licensee shall maintain records showing the merchandise code and quantity for each sale to a religious organization or to a private club as defined in W. Va. Code §60-7-2(a). In the case of sales to a private club, the retail licensee must identify each club by name, address and ABCC license number, and provide the full name of the person receiving the order.

3.3.c. Records required to be maintained pursuant to this subsection may not be destroyed, erased or altered for at least four (4) complete calendar years or until the year the retail licensee is audited and accepted by the Department.

3.4. Each retail licensee shall post in an open and prominent place within each retail outlet operated by such person a blood-alcohol chart in the form prescribed by W. Va. Code §60-6-24; and the fetal alcohol syndrome warning of birth defects in the manner prescribed by W. Va. Code §60-6-25, both in a form provided by the ABCC.

3.4.a. Each mixed retail liquor outlet shall post, at minimum, the signage as required by 175CSR5 in and around its restricted area, subject to the requirements and penalties of the Code.

3.5. A licensed retail outlet may not:

3.5.a. Sell or permit the sale of more than ten (10) gallons of alcoholic liquor to a person at one time without approval of the Commissioner, except that:

3.5.a.1. A religious organization may purchase more than ten (10) gallons of wine for sacramental purposes;

3.5.a.2. This prohibition does not apply to purchases of private clubs as defined in W. Va. Code §60-7-3.

3.5.b. Sell or offer to sell or permit the sale or offer to sell any alcoholic liquor in other than the original package or container.

3.5.c. Sell, give or procure, or permit the sale, gift, or procurement of any alcoholic liquor for or to any person under age twenty-one (21) or who is visibly intoxicated.

3.5.d. Permit the consumption of any alcoholic liquors on the retail outlet premises by any person.

3.5.e. Alter, change or misrepresent or permit the alteration, change or misrepresentation of the quality, quantity or brand name of any alcoholic liquor.

3.5.f. Permit any person under age eighteen (18) to sell, furnish or give alcoholic liquor to any other person.

3.5.g. Purchase or otherwise obtain alcoholic liquors in any manner other than that authorized in W. Va. Code §60-3A-1, et seq., and this rule.

3.5.h. Permit any person to break the seal on any package or bottle of alcoholic liquor.

3.5.i. Permit any person other than a retail licensee or a regular employee thereof to unpack, shelve, arrange, shift, or otherwise manipulate bottles or other receptacles containing distilled spirits, except for the purpose of purchasing same.

3.5.j. Sell or permit the sale of alcoholic liquors or fortified wine purchased from the ABCC at a price which is less than one hundred ten percent (110%) of the wholesale cost of the product. For the purposes of determining the minimum price, the retailer shall multiply the ABCC wholesale cost of the product contained in the Quarterly Spirits Price List or the ABCC Tradeshow Catalog, available on the ABCC website at www.abca.wv.gov, by one hundred ten percent (110%).

3.5.k. Sell or permit the sale of alcoholic liquors or fortified wine through a window at a drive-in or drive-through retail establishment.

W. Va. Code R. § 175-1-4 Alcoholic Liquors -- Ordering, Receiving and Paying

4.1. The ABCC will provide to retail outlets or make available on the ABCC website at www.abca.wv.gov, a Quarterly Spirits Price List on a quarterly basis. The Quarterly Spirits Price List includes all price changes imposed by distillers, importers, suppliers and others. The Commissioner shall provide price changes no more often than four (4) times per twelve (12) month period, on the effective dates of February 1, May 1, August 1 and November 1. Distillers, importers, suppliers and others are required to provide notice of price increases at least sixty (60) days prior to the beginning of the next quarter. Failure to provide advance notice of price changes may result in the Commissioner delisting certain or all of the products of the noncompliant distiller, importer, supplier or other purveyor of alcoholic liquors. The Commissioner will provide a licensed retail outlet with an updated copy of the Quarterly Spirits Price List approximately two weeks in advance of each effective date or make it available on the ABCC website at www.abca.wv.gov.

4.1.a. In addition to complete West Virginia product information and pricing structure, the Quarterly Spirits Price List will contain all alcoholic liquor products normally listed and available from the ABCC. Further pricing is disseminated by the annual publication of the ABCC Tradeshow Catalog with pricing as submitted by manufacturers or suppliers for wholesale sales at the annual ABCC Tradeshow to licensed retailers for his or her retail outlet. Following is a line by line explanation of information in the Quarterly Spirits Price List and the ABCC Tradeshow Catalog.

4.1.a.1. “Class Code.” This line indicates the type of product in the respective listing; i.e., “bottled-in bond.” Products are listed alphabetically and by ascending size within their respective class.

4.1.a.2. Column 1 -- “Brand Name.” An abbreviated twenty-five (25) character description of the distilled spirit.

4.1.a.3. Column 2 -- “Unit Size.” The product bottle size is listed in metric measurement.

Metric Conversion Table Metric Size Converted to Ounces 50 ml. 1.7 oz. 200 ml. 6.8 oz. 375 ml. 12.7 oz. 500 ml. 16.9 oz. 750 ml. 25.4 oz.

1. Liter 33.8 oz. 1.75 Liter 59.2 oz.

4.1.a.4. Column 3 -- “Proof.” Indicates the alcoholic proof of the product.

4.1.a.5. Column 4 -- “Case Pack.” Indicates the number of bottles in a full case.

4.1.a.6. Column 5 -- “Merchandise Code.” This is the code number which identifies the product and is to be used when ordering from ABCC. The number can range from one (1) to four (4) digits in length.

4.1.a.7. Column 6 -- “Case Price Wholesale.” The wholesale price charged for a full case.

4.1.b. The Commissioner will correct any mischarges due to an error in the Quarterly Spirits Price List or the ABCC Tradeshow Catalog at the earliest possible date after discovery of the error.

4.2. Special order spirits.

4.2.a. The ABCC warehouse does not stock all West Virginia product and spirits brands or sizes at the ABCC warehouse. Those brands or sizes must be ordered through the Special Order Program. Any spirit product ordered through the Special Order Program must be ordered in case lots only.

4.2.b. A licensed retail outlet must use the “Special Order” form, developed and provided by the ABCC, to order non-listed alcoholic liquors.

4.2.c. The Commissioner may charge a Uniform Special Order Fee not exceeding ten dollars ($10.00) per case for each case specially ordered.

4.2.d. When a Special Order is received at the ABCC warehouse, the order will be automatically added to the retail outlet’s next order. The Special Order dollar amount including service and handling charges may be included in the dollar total provided to the retail outlet when it accepts delivery of the regular order in which the special order is included for delivery.

4.2.e. The Commissioner will not refund price, fees, or costs or accept returns on any Special Order spirits product unless the product is deemed to be unsalable by ABCC.

4.3. Official Notice of Price Change.

4.3.a. The ABCC’s spirit suppliers are authorized to add product and price changes on a quarterly interval as provided by subsection 4.1. of this section. Retail outlets will be notified of wholesale price changes by an Official Notice of Price Change. Price change notices generally will be provided to the licensed retailer two (2) weeks in advance of the change. Official Notice of Price Change will be provided, regardless of whether the change is permanent or temporary.

4.3.b. The price change sheet will contain the code number and corresponding West Virginia product that is changing price, the old wholesale price, new wholesale price and the effective date of the change. Any product ordered on or after the date of a price change will be invoiced at the new price until the product changes price again. The Official Notice of Price Change shall be used to update prices until an updated version of the Quarterly Spirits Price List or the ABCC Tradeshow Catalog is issued. The order date determines the wholesale price to be charged to the retailer.

4.4. Temporary price reductions. -- Special Purchase Allowances (SPA).

4.4.a. Distillers and importers may occasionally give temporary price reductions called special purchase allowances or SPAs on certain products for a limited period of time. The Commissioner may pass on these price reductions to retail outlets on a dollar-for-dollar basis.

4.4.b. The Commissioner will notify retail outlets approximately two (2) weeks in advance of upcoming temporary price reductions by an Official Notice of Price Change. The Commissioner will also issue a flyer containing the period of time that the product will be eligible for purchase at discount. The retail outlet must order during the temporary price reduction period to take advantage of the discount.

4.4.c. A SPA price reduction reflected in the Quarterly Spirits Price List or a price reduction for the ABCC Tradeshow in the ABCC Tradeshow Catalog will be allowed on orders regardless of whether or not the retailer specifically requests it.

4.5. Payment for purchases.

4.5.a. A licensed retailer is required to pay for West Virginia product or alcoholic liquors prior to delivery to the retail outlet. Payment must be made by an electronic funds transfer (EFT) initiated by the ABCC on the business day following the retailer's order day, or by a money order, certified check or cashier's check which the ABCC must receive at least twenty-four (24) hours prior to shipping.

4.5.b. In order to utilize electronic funds transfers, the licensed retailer shall provide to the ABCC the necessary written authorization to debit the retailer’s checking account for purchases of West Virginia product or alcoholic liquors at the time of initial licensing.

4.5.c. An EFT may be made only for the amount of the purchase.

4.5.d. The ABCC will not deliver West Virginia product or alcoholic liquors purchased by methods other than EFT if the money order, certified check or cashier's check is not received at least twenty-four (24) hours prior to the shipping date.

4.5.e. An EFT that is not completed due to nonsufficient funds will result in the ABCC not processing any other orders by the licensee until payment is received either by a valid EFT, money order, certified check or cashier's check. Any retail licensee with two or more EFTs with insufficient funds in any calendar year may be required by the Commissioner to purchase only West Virginia product or alcoholic liquors by payment in advance via money order, certified check or cashier's check.

4.5.f. When a licensed retailer picks up West Virginia product or alcoholic liquors at the ABCC warehouse, only a money order, EFT, certified check or cashier's check may be used as payment.

4.6. Ordering West Virginia product or alcoholic liquors.

4.6.a. Each retail outlet will be assigned a specific day of the week or a regular order day to order from the ABCC. West Virginia product or alcoholic liquors ordered on Monday or Tuesday will be delivered on the following Wednesday or Thursday, respectively, and alcoholic liquors ordered on Thursday or Friday will be delivered on the following Monday or Tuesday, respectively. Additional days will be added to the delivery schedule for any week in which a holiday occurs. The ABCC will notify the licensed retail outlet of such amendments. Extenuating circumstances may also occasionally adjust the order day schedule for a week.

4.6.b. The Commissioner may modify the time of the day and the days of the week during which alcoholic beverages may be ordered from the ABCC. Notice shall be provided to each retailer at least ten (10) days prior to the changes taking effect.

4.6.c. Orders for West Virginia product or alcoholic liquors must be made by licensed retailers utilizing the ABCC’s web or other internet based ordering system. Only during emergency situations, as authorized by the Commissioner, are licensed retailers permitted to place telephone or fax orders with the ABCC placed between the hours of 8:30 a.m. and 3:30 p.m. on the assigned order days or as otherwise required by the Commissioner. Orders will not be accepted after 3:30 p.m. Orders may be tape recorded or otherwise documented when received.

4.6.d. A licensed retailer is able to order using ABCC’s web or other internet based ordering system in advance of the retail outlet’s regular order day and may change an order at any time up to 2:30 p.m. of the retail outlet 's regular order day.

4.6.e. The ABCC shall not deliver a regular or special order for fewer than twenty-five (25) cases of West Virginia product or alcoholic liquors to a licensed retailer. Any order not amounting to 25 cases will not be delivered and the order will be held until such time the licensed retailer’s regular order amounts to twenty-five (25) cases or more. Upon approval of the Commissioner, a licensed retailer may purchase with a money order, certified check or cashier's check delivered to the ABCC offices and pick up at the ABCC warehouse a properly placed regular order on the retail outlet’s regular delivery day that is more than five (5) cases and less than twenty-five (25) cases.

4.6.f. Order placement procedure.

4.6.f.1. The licensed retailer must enter its order in the ABCC’s web or other internet based ordering system either in advance of the licensed retailer’s regular order day or between 8:30 a.m. and 3:30 p.m. on the licensed retailer’s regular order day. The licensed retailer is responsible to verify the accuracy of the West Virginia product or alcoholic liquor codes entered in the ABCC’s web or other internet based ordering system. In emergency situations, as authorized by the Commissioner, the licensed retailer will be directed to call the Order Department at a specific telephone or fax number to order between 8:30 a.m. and 3:30 p.m. on the assigned order day.

4.6.f.2. The licensed retailer must login to the ABCC’s web or other internet based ordering system using its username, secure password and any other requirements to verify the licensed retailer’s identity. In an emergency situation, as authorized by the Commissioner, the licensed retailer must provide, via telephone or fax, the licensed retailer’s name and last four (4) digits of the account number.

4.6.f.3. The licensed retailer may check messages, browse new and existing West Virginia product listings and then place its order by selecting or entering full case merchandise codes and the quantity of full cases in the order section of the ABCC’s web or other internet based ordering system. In an emergency situation, as authorized by the Commissioner, full cases must be ordered, via telephone or fax, first by giving first the merchandise code from the catalog and then the quantity of full cases.

4.6.f.4. The ABCC will give the licensed retailer a dollar total of delivered cost when the order has been placed, a confirmation that all items are in the ABCC warehouse and available for shipment and an invoice number for the order. The licensed retailer may reorder out-of-stock product on its next regular order date. The licensed retailer must verify the accuracy of all orders before finalizing its West Virginia product selections as to case code, quantity, size, flavor and any other distinguishing characteristic. All orders are final when entered by the licensed retailer and the licensed retailer will be charged accordingly or its accounts deducted electronically.

4.6.g. Order pick-up procedure (“will-call”).

4.6.g.1. A licensed retailer may order alcoholic liquors and pick up its order at the ABCC warehouse. This procedure is available only as a supplement to the regular ordering procedure and may not be used to circumvent the regular ordering procedure. The Commissioner may assess penalties against any licensed retailer abusing the order pick-up procedure.

4.6.g.2. The ABCC will sell West Virginia product or alcoholic liquor only ordered for pick up in full case lots.

4.6.g.3. A licensed retailer must order items for pickup between the hours of 8:30 a.m. and 3:30 p.m. All orders will be processed for pickup on the following work day.

4.6.g.4. When ordering, the licensed retailer must provide the store name and account number.

4.6.g.5. The licensed retailer must pay for the order, by prior to loading, completing payment by money order, EFT, certified check or cashier's check.

4.6.g.6. No claim for breakage or shortage will be honored after the order has been loaded. The licensed retailer shall give to the warehouse a signed receipt, “Invoice, State of West Virginia Alcohol Beverage Control Administration”, signifying acceptance of the order.

4.7. Delivery of West Virginia product or alcoholic liquors.

4.7.a. The ABCC will deliver Monday, Tuesday, Wednesday, Thursday, and Friday on a regular basis. Orders will generally be delivered between the hours of 6:00 a.m. and 6:30 p.m., depending upon the licensed retailer’s assigned regular ordering day and the distance of the retail outlet from the ABCC warehouse. Deliveries will be made only to the retail outlet and not to a warehouse or other location where West Virginia product or alcoholic liquors are stored. The Commissioner may, for good cause shown, permit a licensed retailer holding three or more private club licenses to receive and store West Virginia product or alcoholic liquors at warehouses or sites off premises.

4.7.b. Transport drivers must assist in unloading the alcoholic liquors at the licensed retailer’s retail outlet. The order must be placed inside the door of the retail outlet.

4.7.c. The transport driver will provide the retail outlet with a complete set of Invoice Forms so that the retail outlet can check the delivery for accuracy. All licensed retailers must verify the accuracy of the delivered order and acknowledge the verification of the order. Failure to do so could result in the Commissioner denying returns for misordered West Virginia product or alcoholic liquors. All alcoholic liquors must be kept separate from the retail outlet’s normal reserve until the delivery is completed and checked for accuracy. “Dry” breakage claims or other defects discovered after the driver has left will not be accepted unless reported to the ABCC (on the ABCC’s form) within twenty-four (24) hours after delivery to the retail outlet and then only when the claim complies with any additional requirements provided in subsection 4.9 of this section. Except for concealed shortages or dry breakage, no claims for shortages or breakage will be allowed if the broken or shorted goods are not identified and noted on the Invoice Form before the driver has left the retail outlet.

4.7.d. Both the transport driver and the authorized representative of the retail outlet must sign the Invoice Form after it has been checked and any amendments or corrections made. The transport driver will return any claim made for breakage, shortage and overage on the Invoice Form, Exception Section, and Retailer Claim Form to the ABCC warehouse.

4.7.e. Delivery Breakage. -- Any product that is broken during delivery or during unloading will be the responsibility of the transport driver, who will complete the “Invoice Exception” portion of the Invoice Form detailing the breakage, a copy of which will be retained by the retail outlet. The Invoice Exception will be processed by the ABCC and a credit memo will be applied to the next order after the claim has been approved.

4.7.f. Short Delivery. -- This occurs when a case that was ordered is not delivered. The transport driver and the retailer will complete their sections of an Invoice Exception Form for the shortage and they will also complete a Retailer Claim Form. A copy of these forms will be retained by the transport driver and the retailer. The ABCC will process the Invoice Exception and apply any applicable credit memo to the retail outlet’s next order.

4.7.g. Over Delivery. -- Returned to Warehouse. An over delivery will be returned to the warehouse. The transport driver will complete the Invoice Exception portion of the Invoice Form and return the overage to the ABCC warehouse. There will be no credit in this instance because the retail outlet was not billed for the product on the invoice.

4.7.h. No further changes may be made after all invoices and Invoice Exceptions have been signed.

4.8. Misordered product and defective product discovered after delivery.

4.8.a. Returns of product received in error due to wrong order number or not having been ordered will be authorized if the following procedures are adhered to:

4.8.a.1. The licensed retailer must notify the ABCC warehouse of a product received in error within twenty-four (24) hours following the date of delivery. Claims made after twenty-four (24) hours following delivery will not be approved. The transport driver is not authorized to return items on any day except the day delivery actually occurred.

4.8.a.2. The licensed retailer may return the entire quantity of the misordered product.

4.8.a.3. The licensed retailer may not return “Special Orders,” “Decanter Collector Series” or one-time buy offerings.

4.8.a.4. Appropriate warehouse personnel will schedule pickup of the alcoholic liquors to be returned.

4.8.a.5. The driver, when picking up the misordered product, will verify the code and quantity, leave a copy of the Invoice Form and Retailer Claim Form with the retail outlet and return the misordered product to the warehouse.

4.8.a.6. The ABCC will process the claim and apply a credit memo to the licensed retailer’s next order after the claim has been approved.

4.8.b. Concealed shortage.

4.8.b.1. To receive credit for bottles missing inside full case, the licensed retailer must save the original carton in which the product was delivered. Credit will not be issued if the carton is unavailable for inspection by the ABCC.

4.8.b.2. The ABCC will dispose of the carton and record the concealed shortage on a “Concealed Shortage and Defective Merchandise” report.

4.8.b.3. The ABCC representative will provide a copy of the Invoice Form and Retailer Claim Form to the licensed retailer.

4.8.b.4. The ABCC will process the claim and apply a credit to the next order after the claim has been approved.

4.8.c. Dry breakage.

4.8.c.1. To return and receive credit for breakage discovered inside full case the licensed retailer must return the breakage to the ABCC warehouse:

4.8.c.1.A. The neck of the broken bottle with cap/seal, label intact, any piece of glass where the seal or symbol is recognizable, or any label. The licensed retailer must follow shipping instructions for glass and shards of glass that may be dangerous.

4.8.c.1.B. The carton in which the breakage was discovered.

4.8.c.1.C. No credit will be issued without the above-mentioned items being available for inspection by the ABCC.

4.8.c.2. The ABCC will dispose of the carton and bottle neck and record the breakage on a “Concealed Shortage and Defective Merchandise” report.

4.8.c.3. The ABCC will provide the licensed retailer with a copy of the Invoice Form and Retailer Claim Form.

4.8.c.4. The ABCC will process the claim and apply a credit to the licensed retailer’s next order after the claim has been approved.

4.8.d. Defective or spoiled merchandise.

4.8.d.1. To obtain a credit for a product discovered by the licensed retailer or returned by a consumer as unsalable (or unused portion) the licensed retailer must return the product to the ABCC warehouse. No credit will be issued if the product is not returned to the ABCC warehouse accompanied by an Invoice Form and Retailer Claim Form.

4.8.d.2. The ABCC will dispose of the unsalable product and apply a credit memo to the licensed retailer’s next order. The ABCC will process the claim and apply a credit to the next order after the claim has been approved.

4.8.e. Wrong product in case.

4.8.e.1. To obtain a credit for a mismarked case the licensed retailer must set aside and return the case and the entire contents to the ABCC warehouse.

4.8.e.2. The ABCC will send all documentation, Invoice Form and Retailer Claim Form, to the warehouse where pickup of the mismarked case from the licensed retailer will be scheduled as soon as possible.

4.8.e.3. When the transport driver picks up the mismarked case, a copy of the Invoice Form and Retailer Claim Form, will be left at the retail outlet.

4.8.e.4. The ABCC will process the claim and a credit will be applied to the licensed retailer’s next order after the claim has been approved.

4.9. Credit pricing policy.

4.9.a. The ABCC will make every attempt to issue credit based on the invoice price the licensed retailer was charged for that product. In the event that such price cannot be determined, the licensed retailer will be credited using the price found on the most recent invoice containing that particular product. If the actual purchase price or the most recent price paid by the licensed retailer cannot be determined, the current wholesale price will be used for credit purposes.

4.9.b. The ABCC is not responsible for any breakage, shortage or spoiled product which was caused by the owner/manager, employees or customers of a retail outlet.

W. Va. Code R. § 175-1-5 Manufacturer Prohibitions

5.1. Improper inducements. -- Federal and state law prohibits a manufacturer from providing inducements, directly or indirectly, to any licensed retailer to purchase alcoholic liquors from the manufacturer to the exclusion, in whole or in part, of products sold or offered for sale by another manufacturer. Prohibited inducements include:

5.1.a. Acquiring or holding any interest in any license with respect to the retail outlet or any other premises which is owned, occupied or used in any manner by the licensed retailer or his or her immediate family;

5.1.b. Acquiring any interest in real or personal property which is owned, occupied, or in any manner used by the licensed retailer or his or her immediate family in the conduct of the retail outlet or any other of his or her businesses;

5.1.c. Furnishing, giving, renting, lending, or selling to the licensed retailer or his or her immediate family any equipment, fixtures, exterior signs, supplies, money, services or other things of value, except that a manufacturer may furnish to a licensed retailer items of nominal value for in-store display or sales purposes for use only within the licensed retail outlet.

5.1.d. Paying or crediting the licensed retailer or his or her immediate family for any advertising, display, or distribution services;

5.1.e. Guaranteeing any loan for the repayment of any financial obligation of the licensed retailer or his or her immediate family; or

5.1.f. Requiring the licensed retailer to take and dispose of a certain quota of any distilled spirits.

5.2. Interest in the retail outlet. -- A manufacturer may not acquire or hold any interest in any license required to be obtained by the licensed retailer or his or her immediate family, with respect to the retail outlet or any other premises which are owned, occupied or in any manner used by the licensed retailer or his or her immediate family. This prohibition applies equally to:

5.2.a. The licensed retailer’s officers, partners, employees, other representatives, and their immediate family;

5.2.b. Any separate corporation in which the manufacturer or its officers, partners, employees or other representatives, and their immediate family hold any ownership interests or with which such persons are otherwise affiliated.

5.3. Interest in real or personal property of the licensed retailer.

5.3.a. A manufacturer may not acquire or hold any interest in real or personal property which is owned, occupied, or in any manner used by the licensed retailer or his or her immediate family in the conduct of the retail outlet or of other businesses of the licensee and his or her immediate family. This prohibition also applies to:

5.3.a.1. Any interest acquired by the manufacturer’s corporate officials, partners and employees or other representatives, or their immediate family; and

5.3.a.2. To any interest which is acquired by a separate corporation in which the manufacturer or its officers, partners, employees or other representatives, or their immediate family hold any ownership interest or in which they are otherwise affiliated.

5.3.b. A manufacturer may not acquire a mortgage on a licensed retailer’s real or personal property or on the real or personal property of the licensed retailer’s immediate family.

5.3.c. A manufacturer may not rent display space or shelf space at a retail outlet.

5.4. Furnishing things of value.

5.4.a. A manufacturer may not furnish, give, rent, or lend to a licensed retailer or his or her immediate family any equipment, fixtures, exterior signs, supplies, money, services or other things of value. The prohibition does not apply to sales of goods by a manufacturer to a licensed retailer of goods that are to be resold to the general public and which are not alcoholic liquors so long as the licensed retailer pays the normal sales price for the goods.

5.4.a.1. This prohibition also applies to any similar activity which occurs through a third party, such as a retailer association or display company, where the benefits resulting to the licensed retailer may be considered as providing the licensed retailer with a thing of value without the payment of an appropriate purchase price.

5.4.a.2. This prohibition does not apply to signs and other display-related materials that are of negligible monetary value. As long as the manufacturer or retailer has prior written approval from the Commissioner.

5.4.b. A manufacturer must sell any equipment, supplies or fixtures to a licensed retailer at the current market value and may not provide a special price advantage for purchasing from one manufacturer as opposed to another manufacturer.

5.4.c. A manufacturer may not provide any assistance (financial, legal, administrative or influential) to a licensed retailer in acquiring the license required to operate a licensed retail outlet.

5.4.d. A manufacturer may not furnish any exterior advertising signs, but may provide interior signs to the licensed retailer. The manufacturer may advertise by billboards which display alcoholic liquors, wine or nonintoxicating beer, but may not identify any licensed retailer in or on the advertisement.

5.4.e. A manufacturer may not furnish things of value to the licensed retailer at less than the normal sale price, such as nonalcoholic mixers and pouring racks which the licensed retailer may market or sell in his or her business.

5.5. Paying for advertising, display or distribution service. A manufacturer may not provide a licensed retailer with free advertisement, exterior display or distribution services, or any similar types of services.

5.6. Quota sales. A licensed retailer may not be required to purchase any alcoholic liquors in order to purchase nonalcoholic liquors or other products from a manufacturer.

5.7. Other.

5.7.a. A manufacturer may not touch, disturb or otherwise interfere with the product or displays of another manufacturer.

5.7.b. No person except a licensed representative may contact a licensed retailer, or any employee thereof, or enter a retail outlet for the purpose of:

5.7.b.1. Selling or offering to sell;

5.7.b.2. Soliciting, negotiating or promoting the sale of alcoholic liquor or distilled spirits; or

5.7.b.3. Conducting a survey, study or similar activity pertaining to the sale, distribution or availability of alcoholic liquors or distilled spirits.

W. Va. Code R. § 175-1-6 Advertising

6.1. General prohibition. -- All advertising of West Virginia product or alcoholic liquor which encourages intemperance, makes the consumption of alcoholic liquor appear to be glamorous, is lewd or obscene, induces minors to purchase, or tends to deceive or misrepresent, is prohibited. Federal law which provides guidelines relative to acceptable and prohibited advertising of alcoholic liquors must be followed.

6.2. Permissible media. -- Printed advertising of West Virginia product or alcoholic liquor shall be limited to billboards, newspapers, magazines and similar publications. Radio and television may not be utilized to advertise alcoholic liquors.

6.3. Application. -- No person engaged in business as a producer, processor, broker, manufacturer, bottler, importer, wholesaler or retailer of alcoholic liquors or wine, directly or indirectly or through an affiliate, may publish or disseminate or cause to be published or disseminated in any billboard, newspaper, magazine or similar publication any advertisement of alcoholic liquors or wine, unless the advertisement is in conformity with this rule. This prohibition does not apply to the publisher of a newspaper, magazine or similar publication or the standardized outdoor advertising company which owns a billboard, unless such publisher or outdoor advertising company is engaged in business as a producer, manufacturer, bottler, importer, wholesaler or retailer of alcoholic liquors or wine, directly or indirectly or through an affiliate.

6.4. Mandatory statements.

6.4.a. Responsible advertiser. -- An advertisement for alcoholic liquors shall state the name and address of the producer, manufacturer, bottler, importer or wholesaler responsible for its publication.

6.4.b. Class, type and distinctive designation. -- An advertisement for alcoholic liquors shall contain a conspicuous statement of the class and type or other designation of the product corresponding with the complete designation which appears on the brand label of the product.

6.4.c. Alcoholic content. -- An advertisement shall state the alcoholic content of the product advertised in the manner and form the information appears on the label.

6.4.d. Percentage of neutral spirits and name of commodity. -- An advertisement of distilled spirits (other than cordials, liqueurs and specialties) produced by blending or rectification, if neutral spirits shall state the percentage of neutral spirits used and the name of the commodity from which the neutral spirits have been distilled in substantially the manner and form in which the information appears on the labels of the product advertised. An advertisement of neutral spirits or of gin produced by a process of continuous distillation, shall state the name of the commodity from which the neutral spirits or gin have been distilled substantially in the manner and form in which the information appears on the label.

6.4.e. “Line” or “Brand” advertisements. -- An advertisement that does not mention a specific product but merely refers to a class of distilled spirits such as “Whiskey” or refers to several classes of distilled spirits (such as “Whiskey,” “Brandy,” “Rum,” “Gin,” “Liquor,” etc.) marketed under a single brand, the only information required by subsection is the name and address of the responsible advertiser.

6.5. Lettering. -- Statements required by this rule to be stated in any written, printed or graphic advertisement shall appear in lettering or type of a size, kind and color sufficient to render them both conspicuous and readily legible. In particular:

6.5.a. Required information shall be stated against a contrasting background and in type or lettering that is at least the equivalent of eight (8) point type.

6.5.b. Required information shall be stated as to appear to be a part of the advertisement and shall not be separated in any manner from the remainder of the advertisement.

6.5.c. Where an advertisement relates to more than one product, the required information shall appear in a manner as to clearly indicate the particular products to which it is applicable.

6.5.d. Required information may not be buried or concealed in unrequired descriptive matter or decorative designs.

6.6. Prohibited statements. -- Generally.

6.6.a. Restrictions. -- An advertisement may not contain:

6.6.a.1. Any statement that is false or misleading in any material particular. For example, the reproduction of medals or facsimiles of awards that were not given on a competitive or comparative basis is prohibited;

6.6.a.2. Any statement that is disparaging of a competitor's product. For example, an advertisement may not contain statements such as “Contains no neutral spirits or alcohol” or “This rum will not turn dark in the bottle;”

6.6.a.3. Any statement, design, device or representation that is obscene, lewd or indecent;

6.6.a.4. Any statement, design, device or representation of, or relating to, analyses, standards or tests, regardless of truth, which is likely to mislead the consumer; for example, an advertisement may not contain a statement such as “Analyzed by the laboratory and found to be pure and free from deleterious ingredients,” or “Tested and approved. Signed by the Research Institute;”

6.6.a.5. Any statement, design, device or representation of, or relating to, any guaranty, regardless of truth, that is likely to mislead the consumer. However, nothing in this section prohibits the use of any enforceable guaranty in substantially the following form: “We will refund the purchase price to the purchaser if he is in any manner dissatisfied with the contents of this package.” (Blank to be filled in with the name of person making guaranty.)

6.6.a.6. Any statement that the product is produced, blended, made, bottled, packed or sold under or in accordance with any authorization, law or regulation of any municipality, county or state, federal or foreign government unless the such statement is required or specifically authorized by the laws or regulations of such government; if a municipality, county, state or federal permit number is stated, the permit number may not be accompanied by any additional statement relating thereto.

6.6.b. Statements inconsistent with labeling. -- An advertisement may not contain any statement concerning a brand or lot of distilled spirits that is inconsistent with any statement on the labeling;

6.6.c. Curative and therapeutic effects. -- An advertisement may not contain any statement, design or device representing that the use of any distilled spirits has curative or therapeutic effects, if such statement is untrue in any particular or tends to create a misleading impression. For example, advertisements may not contain statements such as “___________ is good for you” or “Conducive to well-being;”

6.6.d. Place of origin. -- An advertisement may not represent that the distilled spirits were manufactured in, or imported from, a place or country other than that of their actual origin, or were produced or processed by one who was not in fact the actual producer.

6.6.e. Flags, seals, coats of arms, crests and other insignia. -- No advertisement may contain any statement, design, device or pictorial representation of, or relating to, or capable of being construed as relating to the armed forces of the United States, or of the American Flag, any state flag or any emblem, seal, insignia or decoration associated with any such flag or entity. No advertisement may contain any statement, device, design or pictorial representation of or concerning any flag, seal, coat of arms, crest or other insignia, likely to falsely lead the consumer to believe that the product has been endorsed, made or used by, or produced for under the supervision of, or in accordance with the specifications of the government, organization, family or individual with whom such flag, seal, coat of arms, crest or insignia is associated.

6.7. Prohibited statements. -- Distilled spirits.

6.7.a. Restrictions. -- An advertisement for distilled spirits may not contain:

6.7.a.1. The words “Bond,” “Bonded,” “Bottled In Bond,” “Aged In Bond” or phrases containing these or synonymous terms, unless the words or phrases appear upon the label of the distilled spirits advertised and are stated in the advertisement in the manner and form as they appear upon the label; and

6.7.a.2. Statements of age. -- An advertisement for distilled spirits may not contain any statement, design or device directly or by implication concerning age or maturity of any brand or lot of distilled spirits unless a statement of age appears on the label of the advertised product. When any statement, design or device concerning age or maturity is contained in any advertisement, it shall include (in direct conjunction and with substantially equal conspicuousness) all parts of the statement concerning age and percentages, if any, which appear on the label. However, an advertisement for any whiskey or brandy which does not bear a statement of age on the label or an advertisement for rum that is four (4) years or more old may contain general inconspicuous age, maturity or other similar representations, e.g., “Aged In Wood,” “Mellowed In Fine Oak Casks.”

6.8. Prohibited statements. -- An advertisement for wine may not contain:

6.8.a. Any statement of bonded wine cellar and bonded winery numbers unless stated in direct conjunction with the name and address of the person operating such winery or storeroom. A statement of bonded wine cellar and bonded winery number may be made in the following form: “Bonded Wine cellar No. _______,” “Bonded Winery No. _________ ,” “B.W.C. No. _________ ,” “ B.W. No. _________ .” No additional reference may be made nor may any use be made of such a statement that may convey the impression that the wine has been made or matured under United States government or state government supervision or in accordance with United States government or state government specifications or standards;

6.8.b. Any statement, design, device or representation which relates to alcoholic content or tends to create the impression that a wine is “Unfortified”, has been “Fortified,” has intoxicating qualities, or contains distilled spirits (except for a reference to distilled spirits in a statement of composition where such statement is required by this rule to appear as a part of the designation of the product).

W. Va. Code R. § 175-1-7 Transportation

7.1. Transportation permits. Any person, including any common carrier hired by a direct shipper or a direct shipper as defined in W. Va. Code §60-8-1, et seq. and 175CSR4, who transports, for hire, any alcoholic liquors to be sold commercially in quantities in excess of one (1) gallon within, into or through the State of West Virginia, shall first give a surety bond, approved by the Attorney General as to form and execution, and by the Commissioner as to sufficiency, payable to the State of West Virginia in the penalty of one thousand dollars ($1,000.00) on condition that the person will exercise the privileges granted by the permit in conformity with the provisions of the Liquor Control Act and the rules of the Commissioner. A bonded person who defaults on condition of the surety forfeits to the state school fund the sum of one hundred dollars ($100.00) for each breach, recoverable by the ABCC upon motion with ten (10) days notice in any court having jurisdiction of the parties. Each person transporting alcoholic liquors, in addition to the bond aforesaid, shall pay the Commissioner an annual fee of ten dollars ($10.00) for the first permit and one dollar ($1.00) for each duplicate permit issued. In the case of motor carriers for hire, a permit issued by the Commissioner under seal showing that the required bond has been given and the fee paid shall accompany the alcoholic liquors at all times during transportation. In the case of air carriers and rail carriers for hire, a permit issued by the Commissioner under seal showing that the required bond has been given and the fee paid shall be filed in the principal office of such carrier in this state. Any person holding a transportation permit who transports any alcoholic liquors in violation of this rule and the code is subject to all penalties available in the code for each violation. Further, any person holding a transportation permit who transports product for an unlicensed direct shipper and who fails to verify that the direct shipper is licensed in West Virginia prior to shipment is subject to all penalties available in the code for each violation.

7.2. Any wine distributor or wine retailer, licensed pursuant to W. Va. Code §60-8-3, any private club licensed pursuant to W. Va. Code §60-7-5, any representative licensed under W. Va. Code §60-4-22, and any licensed retailer licensed under W. Va. Code §60-3A-12, may by virtue of his or her license, transport within West Virginia any alcoholic beverages that are deemed to be transported in connection with the purpose for which such license was granted without a transportation permit issued by the Commissioner. All shipments by a direct shipper must be made in accordance with the direct shipping requirements in W. Va. Code §60-8-1, et seq. and 175CSR4.

7.3. A licensed retailer who operates more than one (1) retail outlet within a market zone may transfer alcoholic liquors only from one (1) retail outlet to another within the same market zone without obtaining written approval from the Commissioner. Two or more such transfers require prior written authorization by the Commissioner.

7.4. A licensed retailer who operates retail outlets in more than one (1) market zone may not transfer alcoholic liquors from one market zone to another without first obtaining written approval from the ABCC.

7.5. A licensed retailer, upon picking up alcoholic liquors at the ABCC warehouse, may transport them to the retail outlet for which the alcoholic liquors were purchased. The receipt provided by the ABCC warehouse is the written approval provided by the ABCC.

7.6. All permits provided for in this rule shall be issued for the period of the calendar year, and the fee therefor shall not be prorated.

7.7. A person may transport in this state up to ten (10) gallons of alcoholic liquors not for resale. Any amount of alcohol to be transported that is in excess of ten (10) gallons requires prior written authorization of the Commissioner.

175CSR1

175CSR1

Series 02 Private Club Licensing

W. Va. Code R. § 175-2-1 General

1.1. Scope. -- This legislative rule specifies the licensure requirements, reasons for denial of a license, reasons for revocation or sanctioning and/or suspending a license, as well as hearing procedures.

1.2. Authority. -- W. Va. Code §60-2-16, §60-2-17, and §60-7-10.

1.3. Filing Date. -- April 7, 2026

1.4. Effective Date. -- June 1, 2026.

1.5. Sunset Date. -- This rule shall terminate and have no further force or effect upon August 1, 2031.

W. Va. Code R. § 175-2-2 Definitions

As used in this rule and unless the context clearly requires a different meaning, the following terms shall have the meaning ascribed herein, and apply in the singular and in the plural. 2.1 The “ABCA” refers to the West Virginia Alcohol Beverage Control Administration or Commission.

2.2. “Alcoholic liquor” means alcohol, beer, including barley beer, wine, including barley wine, distilled spirits, and any liquid or solid capable of being used as an alcoholic beverage, but does not include wine with an alcohol content of 15.5% or less by volume, nonintoxicating beer or nonintoxicating craft beer, or nonintoxicating beverages.

2.3. “Applicant” means a private club applying for a license under the provisions of W. Va. Code §60-7-1 et seq.

2.4. “Beer” means any beverage obtained by the fermentation of barley, malt, hops, or any other similar product or substitute, and containing more alcohol than that of nonintoxicating beer or nonintoxicating craft beer and shall be included in the definition of “liquor” and “alcoholic liquor”, as used in W.Va. Code §11-16-1 et seq.: Provided, That in the Liquor Control Act, “beer” shall not be construed to include or embrace nonintoxicating beer or nonintoxicating craft beer.

2.5. “Code” means the official Code of West Virginia, 1931, as amended.

2.6. “Commissioner” or “Alcohol Beverage Control Commissioner” means the Commissioner of the West Virginia Alcohol Beverage Control Administration (ABCA or Commission) or his or her delegate.

2.7. Commissioner’s Forms: “ABCA” form designation means documents used by ABCA.

2.8. “Distilled spirits” means ethyl alcohol, ethanol or spirits, or wine, including all dilutions and mixtures thereof, from whatever source or by whatever process produced, for beverage use including, but not limited to, natural spirits, whiskey, brandy, rum, gin, vodka, cordials, and liqueurs. Any alcoholic beverage containing more than 24% alcohol by volume shall be deemed to be distilled spirits.

2.9. “Fortified wine” means any wine to which brandy or other alcohol has been added where alcohol content by volume does not exceed 24% and includes nonfortified dessert wine where the alcohol content by volume is greater than 17% and does not exceed 24%.

2.10. “Growler” means a container or jug that is made of glass (also a 32 ounce glass container, referred to as a howler), ceramic, metal (also a canned type of metal growler referred to as a crowler) or other material approved by the Commissioner, that may be no larger than 128 fluid ounces in size and must be capable of being securely sealed. The growler is utilized by an authorized licensee for purposes of off-premises sales only of nonintoxicating beer or nonintoxicating craft beer for personal consumption not on a licensed premises and not for resale. A securely sealed growler is not an open container under state and local law. A growler with a broken seal is an open container under state and local law unless it is located in an area of the motor vehicle physically separated from the passenger compartment. The secure sealing of a growler requires the use of a tamper-evident seal, shrink wrap, or other material, as approved by the Commissioner, placed on or over the growler’s opening. The seal, shrink wrap, or other material must be clearly marked with the date of the secure sealing by the authorized licensee who is selling the growler. Additional requirements are set forth in W. Va. Code §60-8-1 et seq., for wine growlers, and in W. Va. Code §60-7-1 et seq., and this rule for craft cocktail growlers.

2.11. “Intoxicated” means having one’s faculties impaired by alcohol or other drugs to the point where physical or mental control or both are markedly diminished.

2.12. “Nonintoxicating beer” means any beverage, obtained by the fermentation of barley, malt, hops, or similar products or substitute and containing at least one-half of one percent (.5%) alcohol by volume, but not more than 11.9% of alcohol by weight, or 15% by volume, whichever is greater, with no caffeine infusion or any additives masking or altering the alcohol effect. The word “liquor” as used in W. Va. Code §60-1-1 et seq., does not include or embrace nonintoxicating beer nor any of the beverages, products, mixtures, or preparations included within this definition. For the purposes of this definition “infusion” means and includes to artificially add, input, or otherwise deliver caffeine or any other additive, not a true flavoring or coloring, that would mask or alter the alcohol effect in nonintoxicating beer.

2.13. “Nonintoxicating craft beer” means any beverage obtained by the natural fermentation of barley, malt, hops, or any other similar product or substitute and containing not less than 5% percent by volume and not more than 15% alcohol by volume or 11.9% alcohol by weight with no caffeine infusion or any additives masking or altering the alcohol effect. For the purposes of this definition “infusion” means and includes any artificially added, input, or otherwise delivered caffeine or any other additive, not a true flavoring or coloring, that would mask or alter the alcohol effect in nonintoxicating craft beer.

2.14. “Liquor Control Act” means Chapter 60 of the Code.

2.15. “Manager” means an individual who is the applicant’s or licensee’s on-premises employee, member, partner, shareholder, director, or officer who meets the licensure requirements of W. Va. §60-7-1 et seq. and rules promulgated thereunder who actively manages, conducts, and carries on the day-to-day operations of the applicant or licensee with full and apparent authority or actual authority to act on behalf of the applicant or licensee. Such duties include but are not limited to: coordinating staffing; reviewing and approving payroll; ordering and paying for inventory, such as nonintoxicating beer, wine, and liquor, as applicable; and managing security staff, security systems, video, and other security equipment; and any further acts or actions involved in managing the affairs of the business, on behalf of owners, partners, members, shareholders, officers, or directors.

2.16. “Market zone” means the geographical area designated as such by the Retail Liquor Licensing Board for the purpose of issuing retail liquor outlet licenses.

2.17. “Person” means an individual, firm, partnership, limited partnership, corporation, limited liability company, or voluntary association, and any trust which has disclosed all persons or entities involved in the trust.

2.18. “Public place” means any place, building, or conveyance to which the public has, or is permitted to have access, including, but not limited to establishments that provide lodging, places that sell food, for consumption on or off the premises including, but not limited to, vessels, parks, airports, and any highway, street, lane, park, or place of public resort or amusement: Provided, That the term “public place” does not mean or include any of the above-named places or any portion or portions thereof which qualify and are licensed by the Commissioner to sell alcoholic liquors for consumption on the premises, nor shall the term “public place” mean or include any legally demarcated area designated solely for the consumption of beverages and freshly prepared food that directly connects and adjoins any portion or portions of a premises that qualifies and is licensed under the provisions of Chapter 60 of the West Virginia Code to sell alcoholic liquors for consumption thereupon, which may include certain legally demarcated deck areas or other areas that meet the requirements specified in this proviso and further that legal demarcation includes, but is not limited to, ABCA rules; local ordinances; county zoning requirements; Americans with Disabilities Act requirements; State Fire Marshal requirements; any other applicable laws, including, but not limited to, state and federal law; public safety requirements and so forth: Provided however, That the term “public place” also does not include a facility constructed primarily for the use of a Division I, II, or III college that is a member of the National Collegiate Athletic Association, or its successor, and used as a football, basketball, baseball, soccer, or other Division I, II, or III sports stadium and also which holds a special license to sell wine pursuant to the provisions of W.Va. Code §60-8-3, in the designated areas of sale and consumption of wine and other restrictions established by that section and the terms of the special license issued thereunder.

2.19. “Private outdoor designated area” or “PODA” means certain public property that is legally demarcated and authorized by a municipality’s ordinance pursuant to W. Va Code §8-12-26 for the lawful consumption of liquor, wine, and nonintoxicating beer or nonintoxicating craft beer within the legally demarcated public property that now has a private purpose as part of the PODA for the lawful sale and service of liquor, wine, and nonintoxicating beer or nonintoxicating craft beer by qualified permit holders who are permitted pursuant to W. Va. Code §60-7-8g, and further a PODA may be dual licensed with Class S, S1, S2, S3, S4 and S4N licensees as qualified permit holders subject to WVABCA and municipal approval.

2.20. “Private caterer” means a licensed private club restaurant authorized by the Commissioner to cater and serve food and sell and serve alcoholic liquors, or non-intoxicating beer, or non-intoxicating craft beer. A private caterer shall purchase wine sold or served at a catering event from a wine distributor. A private caterer shall purchase nonintoxicating beer and nonintoxicating craft beer sold or served at the catering event from a licensed beer distributor. A private caterer shall purchase liquor from a retail liquor outlet authorized to sell in the market zone, where the catering event is held. The private caterer or the persons or entity holding the catering event shall:

2.20.1. Have at least 10 members and guests attending the catering event;

2.20.2. Have obtained an open container waiver, be conducted inside a person’s private home in accordance with W.Va. Code §60-6-1, or have otherwise been approved by a municipality or county in which the event is being held;

2.20.3. Operate a private club restaurant on a daily operating basis;

2.20.4. Only use its employees, independent contractors, or volunteers to sell and serve alcoholic liquors who have received certified training in verifying the legal identification, the age of a purchasing person, and the signs of visible, noticeable, and physical intoxication;

2.20.5. Provide to the Commissioner, at least 7 days before the event is to take place:

2.20.5.a. The name and business address of the unlicensed private venue where the private caterer is to provide food and alcohol for a catering event, which can be an unlicensed business or a private home;

2.20.5.b. The name of the owner or operator of the unlicensed private venue;

2.20.5.c. A copy of the contract or contracts between the private caterer, the person contracting with the caterer, and the unlicensed private venue;

2.20.5.d. A floorplan of the unlicensed private venue to comprise the private catering premises, which shall only include spaces in buildings or rooms of an unlicensed private venue where the private caterer has control of the space for a set time period where the space safely accounts for the ingress and egress of the stated members and guests who will be attending the private catering event at or on the catering premises. The unlicensed private venue’s floorplan during the set time period as stated in the contract shall comprise the private caterer’s licensed premises, which is authorized for the lawful sale, service, and consumption of alcoholic liquors, nonintoxicating beer and nonintoxicating craft beer, and wine throughout the licensed private catering premises; Provided, that the unlicensed private venue shall:

2.20.5.d.1. Be inside a building or structure;

2.20.5.d.2. Have other facilities to prepare and serve food and alcohol;

2.20.5.d.3. Have adequate restrooms, and sufficient building facilities for the number of members and guests expected to attend the private catering event; and

2.20.5.d.4. Otherwise be in compliance with health, fire, safety, and zoning requirements.

2.20.6. Not hold more than 15 private catering events per calendar year. Upon reaching the 16th event, the unlicensed venue shall obtain its own private club license type;

2.20.7. Submit to the Commissioner, evidence that any noncontiguous area of an unlicensed venue is within 150 feet of the private caterer’s submitted floorplan, and may submit a floorplan extension for authorization to permit alcohol and food at an outdoor event;

2.20.8. Meet and be subject to all other private club requirements, as applicable; and

2.20.9. Use an age verification system approved by the Commissioner.

2.21. “Private club” means any corporation, limited liability company, or unincorporated association which either:

2.21.1. Belongs to or is affiliated with a nationally recognized fraternal or veterans organization that is operated exclusively for the benefit of its members and pays no part of its income to its shareholders or individual members; owns or leases a building or other premises such as vessels, parks, and airports; admits only duly elected or approved dues paying members in good standing of such corporation or association and their guests while in the company of a member and does not admit the general public; and maintains in said building or premises a suitable kitchen and dining facility with related equipment for serving food to members and their guests; or

2.21.2. Is a nonprofit social club operated exclusively for the benefit of its members; pays no part of its income to its shareholders or individual members; owns or leases a building or other premises; grants admission to only duly elected or approved dues paying members in good standing of such corporation or association and their guests while in the company of a member and does not allow admission of the general public; and maintains in said building or on said premises a suitable kitchen and dining facility with related equipment for serving food to members and their guests; or

2.21.3. Is organized and operated for legitimate purposes and has at least 100 duly elected or approved dues paying members in good standing; owns or leases a building or other premises, including any vessel licensed or approved by any federal agency to carry or accommodate passengers on navigable waters of this State; admits only duly elected or approved dues paying members in good standing of such corporation or association and their guests while in the company of a member and does not admit the general public; maintains in said building or on said premises a suitable kitchen and dining facility with related equipment and employs a sufficient number of persons for serving meals to members and their guests; or

2.21.4. Is organized for legitimate purposes and owns or leases a building or other limited premises in any state, county, or municipal park or at any airport, in which building or premises a club has been established; grants admission to only duly elected and approved dues paying members in good standing and their guests while in the company of a member and does not admit the general public; maintains in connection with said club a suitable kitchen and dining facility and related equipment; and employs a sufficient number of persons for serving meals in said club to their members and guests.

2.22. “Private bakery” means an applicant for a private club or a private club licensee that has a primary function of operating a food preparation business that produces baked goods, including brownies, cookies, cupcakes, confections, muffins, breads, cakes, wedding cakes, and other baked goods where the applicant or licensee desires to sell baked goods infused with liquor, wine, or nonintoxicating beer or nonintoxicating craft beer, included: (A) In the icing, syrup, drizzle, or some other topping; (B) as an infusion where the alcohol is not processed or cooked out of the baked goods; or (C) from an infusion packet containing alcohol no greater than 10 milliliters where the purchaser adds the alcohol. This applicant or licensee may not sell liquor, wine, or nonintoxicating beer or nonintoxicating craft beer for on-premises or off-premises consumption. The applicant or licensee may sell the baked goods with alcohol added as authorized for on-premises and off-premises consumption to members and guests, and meets the following criteria:

2.22.1. Has at least 50 members;

2.22.2. Operates a kitchen that produces baked goods, as specified in this subdivision, including at least: 2.22.2.a A baking oven and a four-burner range or hot plate;

2.22.2.b. A sink with hot and cold running water;

2.22.2.c. A 17 cubic foot refrigerator or freezer, or some combination of a refrigerator and freezer which is not used for alcohol cold storage;

2.22.2.d. Baking utensils and pans, kitchen utensils, and other food consumption apparatus as determined by the commissioner; and

2.22.2.e. Food fit for human consumption available to be served during all hours of operation on the licensed premises;

2.22.3. Maintains, at any one time, a food inventory capable of being prepared in the private bakery's kitchen. In calculating the food inventory, the commissioner shall include television dinners, bags of chips or similar products, microwavable food or meals, frozen meals, pre-packaged foods, baking items such as flour, sugar, icing, and other confectionary items, or canned prepared foods;

2.22.4. Uses an age verification system approved by the commissioner for the purpose of verifying that persons under the age of 21 who are in the private bakery are not sold items containing alcoholic liquors, nonintoxicating beer or nonintoxicating craft beer, or wine. A person under 21 years of age may enter the shop and purchase other items not containing alcoholic liquors; and

2.22.5. Meets and is subject to all other private club requirements.

2.23. “Private cigar shop” means an applicant for a private club or a private club licensee that has a primary function of operating a cigar shop for sales of premium cigars for consumption on or off the licensed premises. Where permitted by law, indoor on-premises cigar consumption is permitted with a limited food menu, which may be met by using a private caterer, for members and guests while the private club applicant or licensee is selling and serving liquor, wine, or nonintoxicating beer or nonintoxicating craft beer for on-premises consumption, and meets the following criteria:

2.23.1. Has at least 50 members;

2.23.2. Operates a cigar shop and bar with a kitchen, including at least:

2.23.2.a. A two-burner hot plate, air fryer, or microwave oven;

2.23.2.b. A sink with hot and cold running water;

2.23.2.c. A 17 cubic foot refrigerator or freezer, or some combination of a refrigerator and freezer which is not used for alcohol cold storage;

2.23.2.d. Kitchen utensils and other food consumption apparatus as determined by the commissioner; and

2.23.2.e. Food fit for human consumption available to be served during all hours of operation on the licensed premises;

2.23.3. Maintains, at any one time, not less than a food inventory capable of being prepared in the private club bar's kitchen or have on hand at least $150 in food provided by a private caterer. In calculating the food inventory, the commissioner shall include television dinners, bags of chips or similar products, microwavable food or meals, frozen meals, pre-packaged foods, or canned prepared foods;

2.23.4. Uses an age verification system approved by the commissioner for the purpose of verifying that persons under the age of 21 who are in the private club bar are accompanied by a parent or legal guardian, and if a person under 21 years of age is not accompanied by a parent or legal guardian, that person may not be admitted as a guest; and

2.23.5. Meets and is subject to all other private club requirements.

2.24. “Private club bar” means an applicant for a private club or licensed private club licensee that has a primary function for the use of the licensed premises as a bar for the sale and consumption of alcoholic liquors and nonintoxicating beer or nonintoxicating craft beer when licensed for such sales, while providing a limited food menu for members and guests, and meeting the following criteria which:

2.24.1. Has at least 100 members;

2.24.2. Operates a bar with a kitchen, including at least:

2.24.2.a. A two-burner hot plate, air fryer, or microwave oven;

2.24.2.b. A sink with hot and cold running water;

2.24.2.c. A 17 cubic foot refrigerator or freezer, or some combination of a refrigerator and freezer, which is not used for alcohol cold storage;

2.24.2.d. Kitchen utensils and other food consumption apparatus, as determined by the Commissioner; and

2.24.2.e. Food fit for human consumption available to be served during all hours of operation on the licensed premises;

2.24.3. Maintains, at any one time, food inventory capable of being prepared in the private club bar’s kitchen. In calculating the food inventory, the Commissioner shall include television dinners, bags of chips or similar products, microwavable food or meals, frozen meals, prepackaged foods, or canned prepared foods;

2.24.4. Uses an age verification system approved by the Commissioner for the purpose of verifying that persons under the age of 18 who are in the private club bar are accompanied by a parent or legal guardian, and if a person under 18 years of age is not accompanied by a parent or legal guardian that person may not be admitted as a guest; and

2.24.5. Meets and is subject to all other private club requirements.

2.25. “Private club restaurant” means an applicant for a private club or licensed private club licensee that has a primary function of using the licensed premises as a restaurant for serving freshly prepared meals and dining in the restaurant area. The private club restaurant may have a bar area separate from or commingled with the restaurant, however seating requirements for members and guests must be met by the restaurant area. The applicant for a private club restaurant license shall meet the following criteria which:

2.25.1. Has at least 100 members;

2.25.2. Operate a restaurant and full kitchen with at least:

2.25.2.a. Ovens and four-burner ranges;

2.25.2.b. Refrigerators or freezers, or some combination of refrigerators and freezers, greater than 50 cubic feet, or a walk-in refrigerator or freezer;

2.25.2.c. Other kitchen utensils and apparatus, as determined by the Commissioner; and

2.25.2.d. Freshly prepared food fit for human consumption available to be served during all hours of operation on the licensed premises;

2.25.3. Maintains a fresh food inventory capable of being prepared in the private club restaurant’s full kitchen; and

2.25.4. Uses an age verification system approved by the Commissioner for the purpose of verifying that persons under 18 years of age who are in the bar area of a private club restaurant are accompanied by a parent or legal guardian. The licensee may not seat a person in the bar area who is under the age of 18 years and who is not accompanied by a parent or legal guardian, but may allow that person, as a guest, to dine for food and nonalcoholic beverage purposes in the restaurant area of a private club restaurant;

2.25.5. Corkage Fee:

2.25.5.a. May uncork and serve members and guests up to two bottles of wine that a member purchased elsewhere when the purchase is for personal use and, not for resale.

2.25.5.b. May charge a corkage fee of up to $10 dollars per bottle.

2.25.5.c. May not permit a member or a group of members and guests to exceed up to two sealed bottles or containers of wine to carry onto the licensed premises for uncorking and serving by the private club restaurant and for personal consumption by the member and guests.

2.25.5.d. May cork and reseal any unconsumed wine bottles as provided in W. Va. Code §60-8-3(j) and the legislative rules, for carrying unconsumed wine off the licensed premises.

2.25.6. Must have at least two restrooms for members and their guests: Provided, that this requirement may be waived by the local health department upon supplying a written waiver of the requirement to the Commissioner: Provided, however, that the requirement may also be waived for a historic building by written waiver supplied to Commissioner of the requirement from the historic association or district with jurisdiction over a historic building: Provided, further that in no event shall a private club restaurant have less than one restroom; and

2.25.7. Shall meet and be subject to all other private club requirements.

2.26. “Private farmers market” means an applicant for a private club or licensed private club licensee that operates as an association of bars, restaurants, and retailers who sell West Virginia made products among other products, and other stores who open primarily during daytime hours of 6:00 a.m. to 6:00 p.m., but may operate in the day or evenings for special events where the sale of food and alcoholic liquors and nonintoxicating beer or nonintoxicating craft beer may occur for on-premises consumption, such as reserved weddings, reserved dinners, pairing events, tasting events, reunions, conferences, meetings, or other special events and does not maintain daily or regular operating hours as a bar or restaurant, and all business that are members of the association have agreed in writing to be liable and responsible for all sales, service, furnishing, tendering, and consumption of alcoholic liquors and nonintoxicating beer or nonintoxicating craft beer occurring on the entire licensed premises of the private farmer’s market, including indoor and outdoor bounded areas, and further the applicant shall:

2.26.1. Have at least 100 members;

2.26.2. Have one or more members operating a private club restaurant and full kitchen with ovens, four-burner ranges, a refrigerator, or freezer (or some combination of the two), and other kitchen utensils and apparatus as determined by the Commissioner on the licensed premises and serves freshly prepared food at least 15 hours per week;

2.26.3. Have one or more members operating who maintains a fresh food inventory capable of being prepared for events conducted at the private farmers market in the private club restaurant’s full kitchen;

2.26.4. Have an association that owns or leases, controls, operates, and uses acreage amounting to more than one acre, which is contiguous acreage of bounded or fenced real property which would be listed on the licensee’s floorplan and would be used for large contracted for reserved weddings, reserved dinners, pairing events, tasting events, reunions, conferences, meetings, or other special events;

2.26.5. Have an association that lists in the application for licensure the entire property and all adjoining buildings and structures on the private farmers market’s floorplan which would comprise the licensed premises, which would be authorized for the lawful sales, service, and consumption of alcoholic liquors and nonintoxicating beer or nonintoxicating craft beer throughout the licensed premises whether these activities were conducted in a building or structure or outdoors while on the private farmers market’s licensed premises and as noted on the private farmers market’s floorplan;

2.26.6. Have an identified person, persons, or entity that has right, title, and ownership or lease interest in the real property buildings and structures located on the proposed licensed premises;

2.26.7. Have at least two separate and unrelated vendors applying for the license and certifying that all vendors in the association have agreed to the liability, and responsibility associated with a private farmers market license;

2.26.8. Only use its employees, independent contractors, or volunteers to purchase, sell, furnish, or serve liquor, wine, or nonintoxicating beer or nonintoxicating craft beer;

2.26.9. Provide adequate restroom facilities, whether permanent or portable, to serve the stated members and guests who will be attending the private farmers market;

2.26.10. Provide a security plan indicating all vendor points of service, entrances, and exits in order to verify members, patrons, and guests ages, whether a member, patron, or guest is intoxicated and to provide for the public health and safety of members, patrons, and guests;

2.26.11. Use an age verification system approved by the Commissioner; and

2.26.12. Meet and be subject to all other private club requirements.

2.27. “Private fair and festival” means an applicant for a private club or a licensed private club meeting the requirements of W. Va. Code §60-7-8a for a temporary private club event or Class S2 license, and the criteria set forth in this subsection which:

2.27.1. Has at least 100 members;

2.27.2. Has been sponsored, endorsed, or approved, in writing, by the governing body (or its duly elected or appointed officers) of either the municipality or of the county wherein the festival, fair, or other event is to be conducted;

2.27.3. Shall prepare, provide, or engage a food caterer to provide adequate freshly prepared food or meals to serve its stated members and guests who will be attending the temporary festival, fair, or other event, and further shall provide any documentation or agreements of such to the Commissioner prior to approval;

2.27.4. Shall not use third-party entities or individuals to purchase, sell, furnish, or serve alcoholic liquors (liquor and wine), nonintoxicating beer, or nonintoxicating craft beer;

2.27.5. Shall provide adequate restroom facilities, whether permanent or portable, to serve the stated members and guests who will be attending the festival, fair, or other event;

2.27.6. Shall provide a floorplan for the proposed premises with a defined and bounded area to safely account for the ingress and egress of stated members and guests who will be attending the festival, fair, or other event; and

2.27.7. Utilizes an age verification system approved by the Commissioner.

2.28. “Private food court” means an applicant who qualifies for a private club restaurant or a private club restaurant licensee that operates in a facility within a licensed premises with one licensed floorplan that includes an association of other inter-connected licensed private club restaurants or unlicensed restaurants that operate legally without alcohol sales, where all businesses that are licensed members of the association have agreed in writing to be liable and responsible for all sales, service, furnishing, tendering, and consumption of alcoholic liquors and nonintoxicating beer or nonintoxicating craft beer occurring on the entire licensed premises of the private food court, and the applicant meets the following criteria:

2.28.1. Has at least 100 members;

2.28.2. Has at least one member of its association who qualifies for a private club restaurant containing a full kitchen with ovens, four-burner ranges, a refrigerator or freezer or some combination of a refrigerator and freezer, and other kitchen utensils and apparatus as determined by the commissioner on the licensed premises and be capable of serving freshly prepared food at least 15 hours per week in the private food court;

2.28.3. Has at least one member of its association who qualifies for a private club restaurant who maintains, at any one time, fresh food capable of being prepared in the private club restaurant's full kitchen, and in calculating the food inventory the commissioner may not include television dinners, bags of chips or similar products, microwavable meals, frozen meals, pre-packaged foods, or canned prepared foods;

2.28.4. Has an association that owns or leases, controls, operates, and uses a facility that meets requirements of this article, and the entire facility is listed on the licensee's floorplan as its licensed premises;

2.28.5. Has an association that lists in the application for licensure the entire facility and any inter-connected and adjoining structures on the private food court's floorplan which would compromise the licensed premises, and which would be authorized for the lawful sales, service, and consumption of alcoholic liquors and nonintoxicating beer or nonintoxicating craft beer throughout the licensed premises whether these activities were conducted in a building or structure while on the private food court's licensed premises and as noted on the private food court's licensed floorplan;

2.28.6. Has identified a person, persons, or entity that has right, title, and ownership or lease interest in the real property buildings and structures located on the proposed licensed premises;

2.28.7. Has at least one separate and unrelated business applying for the license and certifying that all licensed businesses in the association have agreed to the liability and responsibility associated with a private food court license;

2.28.8. Only use its employees, independent contractors, or volunteers to purchase, sell, furnish, or serve liquor, wine, or nonintoxicating beer or nonintoxicating craft beer;

2.28.9. Provides adequate restroom facilities, whether permanent or portable, to serve the stated members and guests who will be attending the private food court;

2.28.10. Provides a security plan indicating all businesses who will be selling and serving alcoholic liquors and nonintoxicating beer or nonintoxicating craft beer, list non-licensees who will be selling and serving food, list all entrances, and list all exits, provide a plan to verify the ages of members, patrons, and guests, a plan to verify whether a member, patron, or guest is intoxicated, and a plan to provide for the public health and safety of members, patrons, and guests;

2.28.11. Uses an age verification system approved by the commissioner; and

2.28.12. Meet and be subject to all other private club requirements.

2.29. “Private food truck” means an applicant for a private club, private club licensee, or private manufacturer's club licensee that has a primary function of operating a food preparation business using an industrial truck, van, or trailer to prepare food and meals for sale at various locations within the state while using a propane or electric generator powered kitchen. The private food truck applicant shall obtain county or municipal approval to operate for food and liquor, wine, hard cider, and nonintoxicating beer or nonintoxicating craft beer sales and service, while providing a food menu for members and guests, and shall meet the following criteria:

2.29.1. Has at least 10 members;

2.29.2. Operates with a kitchen, including at least:

2.29.2.a. A two-burner hot plate, air fryer, or microwave oven;

2.29.2.b. A sink with hot and cold running water;

2.29.2.c. At least a 10 cubic foot refrigerator or freezer, or some combination of a refrigerator and freezer which is not used for alcohol cold storage; and

2.29.2.d. Plastic or metal kitchen utensils and other food consumption apparatus as determined by the Commissioner;

2.29.3. Maintains, at any one time, not less than $200 of food inventory that is fit for human consumption and capable of being prepared and served from the private food truck's kitchen during all hours of operation;

2.29.4. Is sponsored, endorsed, or approved by the governing body or its designee of the county or municipality in which the private food truck is to be located and operated. Each location shall have a bounded and defined area and set hours for private food truck operations, sales, and consumption of alcohol that are not greater than a private club's hours of operation;

2.29.5. Provides the commissioner with a list of all locations, including a main business location, where the private food truck operates, and is approved for sales pursuant to paragraph 2.29.4., and immediately update the commissioner when new locations are approved by a county or municipality;

2.29.6. Requires all nonintoxicating beer and nonintoxicating craft beer sold, furnished, tendered, or served pursuant to the license created by this section to be purchased from the licensed distributor where the private food truck has its home location or from a resident brewer acting in a limited capacity as a distributor, all in accordance with §11-16-1 et seq. of this code;

2.29.7. Requires wine or hard cider sold, furnished, tendered, or served pursuant to the license created by this section to be purchased from a licensed distributor, winery, or farm winery in accordance with §60-8-1 et seq. of this code;

2.29.8. Requires liquor sold, furnished, tendered, or served pursuant to the license created by this section shall be purchased from a licensed retail liquor outlet in the market zone or contiguous market zone where the private food truck has its main business location, all in accordance with §60-3A-1 et seq. of this code;

2.29.9. Uses bona fide employees to sell, furnish, tender, or serve the nonintoxicating beer or nonintoxicating craft beer, wine, or liquor;

2.29.10. A brewer, resident brewer, winery, farm winery, distillery, mini-distillery, or micro-distillery may obtain a private food truck license;

2.29.11. Licensed representatives of a brewer, resident brewer, beer distributor, wine distributor, wine supplier, winery, farm winery, distillery, mini-distillery, micro-distillery, and liquor broker representatives may attend a location where a private food truck is located and discuss their respective products but may not engage in the selling, furnishing, tendering, or serving of any nonintoxicating beer or nonintoxicating craft beer, wine, or liquor.

2.29.12. Uses an age verification system approved by the commissioner for the purpose of verifying that persons under the age of 21 who are in the private club bar are not permitted to be served any alcoholic liquors, nonintoxicating beer or nonintoxicating craft beer, or wine but may be permitted to purchase food or other items;

2.29.13. Obtains all permits required by §60-6-12 of this code; and

2.29.14. Meets and is subject to all other applicable private club requirements.

2.30. “Private hotel” means an applicant for a private club or licensed private club licensee which:

2.30.1. Has at least 2,000 members;

2.30.2. Offers short-term, daily rate accommodations or lodging for members and their guests amounting to at least 30 separate bedrooms, and also offers a conference center for meetings;

2.30.3. Operates a restaurant and full kitchen with ovens, four-burner ranges, walk-in freezers, and other kitchen utensils and apparatus, as determined by the Commissioner, on the licensed premises and serves freshly prepared food at least 20 hours per week;

2.30.4. Maintains, at any one time, fresh food inventory capable of being prepared in the private hotel’s full kitchen, and in calculating the food inventory the Commissioner may not include microwavable, frozen, or canned foods;

2.30.5. Owns or leases, controls, operates, and uses acreage amounting to more than one acre but fewer than three acres, which are contiguous acres of bounded or fenced real property which would be listed on the licensee’s floorplan and would be used for hotel and conferences and large contracted for group-type events such as weddings, reunions, conferences, meetings, and sporting or recreational events;

2.30.6. Lists in the application the acreage referenced in subsection 2.30.5. and the entire property and all adjoining buildings and structures on the private hotel’s floorplan which would comprise the licensed premises, which would be authorized for the lawful sales, service, and consumption of alcoholic liquors throughout the licensed premises whether these activities were conducted in a building or structure or outdoors while on the private hotel’s licensed premises and as noted on the private hotel’s floorplan;

2.30.7. Has an identified person, persons, or entity that has right, title and ownership or lease interest in the real property buildings and structures located on the proposed licensed premises; and

2.30.8. Utilizes an age verification system approved by the Commissioner.

2.30.9. May provide members and guests who are verified by proper form of identification to be 21 years of age or older to have access via key or key card to an in-room mini-bar, a small refrigerator not in excess of 3.2 cubic feet, for the sale of nonintoxicating beer, nonintoxicating craft beer, wine, hard cider, and liquor sold from the original sealed container. The refrigerator may contain: any combination of: (i) 12 fluid ounce cans or bottles not exceeding 144 fluid ounces of nonintoxicating beer or nonintoxicating craft beer; (ii) cans or bottles of wine or hard cider not exceeding one and a half liters of wine or hard cider; (iii) liquor in bottles sized from 50 ml, 100 ml, 200 ml, and 375 ml with such liquor bottles not exceeding one and a half liters; and (iv) canned or packaged food valued at least $50, all to be stored in the refrigerator. All markups, fees, and taxes shall be charged on the sale of alcohol and food from the mini-bar. All nonintoxicating beer or nonintoxicating craft beer available for sale shall be purchased from the licensed distributor in the area where licensed. All wine or hard cider available for sale shall be purchased from a licensed wine distributor or authorized farm winery. All liquor available for sale shall be purchased from the licensed retail liquor outlet in the market zone of the licensed premises. The mini-bar shall be checked daily by the licensee and replenished as needed.

2.31. “Private resort hotel” means an applicant for a private club or licensed private club licensee which:

2.31.1. Has at least 5,000 members;

2.31.2. Offers short-term, daily rate accommodations or lodging for members and their guests amounting to at least 50 separate bedrooms;

2.31.3. Operates a restaurant and full kitchen with ovens, six-burner ranges, walk-in freezers, and other kitchen utensils and apparatus, as determined by the Commissioner, on the licensed premises and serves freshly prepared food at least 25 hours per week;

2.31.4. Maintains, at any one time, fresh food inventory capable of being prepared in the private resort hotel’s full kitchen, and in calculating the food inventory the Commissioner may not include microwavable, frozen, or canned foods;

2.31.5. Owns or leases, controls, operates, and uses acreage amounting to at least 10 contiguous acres of bounded or fenced real property which would be listed on the licensee’s floorplan and would be used for destination, resort, and large contracted for group-type events such as weddings, reunions, conferences, meetings, and sporting or recreational events;

2.31.6. Lists the entire property from subsection 2.31.5 and all adjoining buildings and structures on the private resort hotel’s floorplan which would comprise the licensed premises, which would be authorized for the lawful sales, service, and consumption of alcoholic liquors throughout the licensed premises whether these activities were conducted in a building or structure or outdoors while on the private resort hotel’s licensed premises and as noted on the private resort hotel’s floorplan;

2.31.7. Has an identified person or persons or entity that has right, title, and ownership or lease interest in the real property buildings and structures located on the proposed licensed premises;

2.31.8. Utilizes an age verification system approved by the Commissioner; and

2.31.9. May have a separately licensed resident brewer with a brewpub license inner-connected via a walkway, doorway, or entryway, all as determined and approved by the Commissioner, for limited access during permitted hours of operation for tours and complimentary samples at the resident brewery.

2.31.10. May provide members and guests who are verified by proper form of identification to be 21 years of age or older to have access via key or key card to an in-room mini-bar, a small refrigerator not in excess of 3.2 cubic feet, for the sale of nonintoxicating beer, nonintoxicating craft beer, wine, hard cider, and liquor sold from the original sealed container. The refrigerator may contain: Any combination of: (i) 12 fluid ounce cans or bottles not exceeding 144 fluid ounces of nonintoxicating beer or nonintoxicating craft beer; (ii) cans or bottles of wine or hard cider not exceeding one and a half liters of wine or hard cider; (iii) liquor in bottles sized from 50 ml, 100 ml, 200 ml, and 375 ml with such liquor bottles not exceeding one and a half liters; and (iv) canned or packaged food, all to be stored in the refrigerator. All markups, fees, and taxes shall be charged on the sale of alcohol and food from the mini-bar. All nonintoxicating beer or nonintoxicating craft beer available for sale shall be purchased from the licensed distributor in the area where licensed. All wine or hard cider available for sale shall be purchased from a licensed wine distributor or authorized farm winery. All liquor available for sale shall be purchased from the licensed retail liquor outlet in the market zone of the licensed premises. The mini-bar shall be checked daily by the licensee and replenished as needed.

2.32. “Private golf club” means an applicant for a private club or licensed private club licensee which:

2.32.1. Has at least 100 members;

2.32.2. Maintains at least one 18-hole golf course with separate and distinct golf playing holes, not reusing nine golf playing holes to comprise the 18 golf playing holes, and a clubhouse;

2.32.3. Operates a restaurant and full kitchen with ovens, as determined by the Commissioner, on the licensed premises and serves freshly prepared food at least 15 hours per week;

2.32.4. Owns or leases, controls, operates, and uses acreage amounting to at least 80 contiguous acres of bounded or fenced real property which would be listed on the private golf club’s floorplan and could be used for golfing events and large contracted for group-type events such as weddings, reunions, conferences, meetings, and sporting or recreational events;

2.32.5. Lists the entire property from subsection 2.32.4. and all adjoining buildings and structures on the private golf club’s floorplan which would comprise the licensed premises, which would be authorized for the lawful sales, service, and consumption of alcoholic liquors throughout the licensed premises whether these activities were conducted in a building or structure or outdoors while on the private golf club’s licensed premises and as noted on the private golf club’s floorplan;

2.32.6. Has an identified person or persons or entity that has right, title, and ownership interest in the real property buildings and structures located on the proposed licensed premises; and

2.32.7. Utilizes an age verification system approved by the Commissioner.

2.33. “Private manufacturer club” means an applicant for a private club or licensed private club licensee which is also licensed as a distillery, mini-distillery, micro-distillery, winery, farm winery, brewery, or resident brewery that manufacturers liquor, wine, or nonintoxicating beer or nonintoxicating craft beer, which may be sold, served, and furnished to members and guests for on-premises consumption at the licensee’s licensed premises and in the area or areas denoted on the licensee’s floorplan, and which meets the following criteria which:

2.33.1. Has at least 100 members;

2.33.2. Offers tours, may offer complimentary samples, and may offer space as a conference center or for meetings;

2.33.3. Operates a restaurant and full kitchen with ovens, four-burner ranges, a refrigerator, freezer, or some combination of a refrigerator and freezer, and other kitchen utensils and apparatus as determined by the Commissioner on the licensed premises and serves freshly prepared food at least 15 hours per week;

2.33.4. Maintains, at any one time, a fresh food inventory capable of being prepared in the private manufacturer club’s full kitchen;

2.33.5. Owns or leases, controls, operates, and uses acreage amounting to at least one acre which is contiguous bounded or fenced real property that would be listed on the licensee’s floorplan and may be used for large events such as weddings, reunions, conferences, meetings, and sporting or recreational events;

2.33.6. Lists the entire property from subsection 2.33.5., and all adjoining buildings and structures on the private manufacturer club’s floorplan that would comprise the licensed premises, which would be authorized for the lawful sale, service, and consumption of alcoholic liquors, nonintoxicating beer or nonintoxicating craft beer, and wine throughout the licensed premises, whether these activities were conducted in a building or structure or outdoors while on the private manufacturer club’s licensed premises, and as noted on the private manufacturer club’s floorplan;

2.33.7. Identifies a person, persons, an entity, or entities who or which has right, title, and ownership or lease interest in the real property, buildings, and structures located on the proposed licensed premises;

2.33.8. Uses an age verification system approved by the Commissioner; and

2.33.9. Meets and is subject to all other private club requirements.

2.34. “Private multi-sport complex” means an applicant for a private club or licensed private club licensee that is open for multiple sports events to be played at the complex facilities, reserved weddings, concerts, reunions, conferences, meetings, or other special events, and which:

2.34.1. Has at least 100 members;

2.34.2. Maintains an open air multi-sport complex primarily for use for sporting events, such as baseball, soccer, basketball, tennis, frisbee, quidditch, curling, or other sports, but may also conduct weddings, concerts, reunions, conferences, meetings, or other events where parties must reserve the parts of the sports complex in advance of the sporting or other event;

2.34.3. Operates a restaurant and full kitchen with ovens in the licensee’s main facility, as determined by the Commissioner, on the licensed premises and capable of serving freshly prepared food, or meals to serve its stated members, guests, and patrons who will be attending the event at the private multi-sport complex. A licensee may contract with temporary food vendors or food trucks for food sales only, but not on a permanent basis, in areas of the multi-sport complex not readily accessible by the main facility, such food vendor or food truck contracts must be approved by the Commissioner;

2.34.4. Maintains, at any one time, fresh food inventory capable of being prepared in the private multi-sport complex’s full kitchen. In calculating the food inventory, the Commissioner may not include television dinners, bags of chips, or similar products, microwavable meals, frozen meals, prepackaged foods, or canned prepared foods;

2.34.5. Owns or leases, controls, operates, and uses acreage amounting to at least 50 contiguous acres of bounded or fenced real property, as determined by the Commissioner, which would be listed on the private multi-sport complex’s floorplan and could be used for contracted for sporting events, group-type weddings, concerts, reunions, conferences, meetings, or other events;

2.34.6. Lists the entire property from subsection 2.34.5., and all adjoining buildings and structures on the private multi-sport complex’s floorplan which would comprise the licensed premises, which would be authorized for the lawful sales, service, and consumption of alcoholic liquors throughout the licensed premises whether these activities were conducted in a building or structure or outdoors while on the private multi-sport complex’s licensed premises and as noted on the private multi-sport complex’s floorplan. The licensee may sell alcoholic liquors from a golf cart or food truck owned or leased by the licensee and also operated by the licensee when the golf cart or food truck is located on the private multi-sport complex’s licensed premises;

2.34.7. Has an identified person, persons, or entity that has right, title, and ownership interest in the real property buildings and structures located on the proposed licensed premises;

2.34.8. Meets and is subject to all other private club requirements; and

2.34.9. Uses an age verification system approved by the Commissioner.

2.35. “Multi-vendor private fair and festival” means a special license designated Class S3 private multivendor fair and festival license for the retail sale of liquor, wine, and nonintoxicating beer or nonintoxicating craft beer for on-premises consumption at an event where multiple vendors shall share liability and responsibility, and apply for this license. Each vendor may temporarily purchase, sell, furnish, or serve liquor, wine, and nonintoxicating beer or nonintoxicating craft beer as provided in this section.

2.35.1. To be eligible for the private multivendor fair and festival or other event shall:

2.35.1.a. Have at least two separate and unrelated vendors applying for the license and certifying that at least 100 members will be in attendance;

2.35.1.b. Provide freshly prepared and provide food or meals, or engage a food vendor to prepare and provide adequate freshly prepared food or meals to serve its stated members and guests who will be attending the temporary festival, fair, or other event, and provide any written documentation or agreements of the food caterer to the Commissioner prior to approval of the license;

2.35.1.c. Only use its employees, independent contractors, or volunteers to purchase, sell, furnish, or serve liquor, wine, and nonintoxicating beer or nonintoxicating craft beer;

2.35.1.d. Provide adequate restroom facilities, whether permanent or portable, to serve the stated members and guests who will be attending the private multi-vendor festival, fair, or other event;

2.35.1.e. Provide a security plan indicating all vendor points of service, entrances, and exits in order to verify members’, patrons’, and guests’ ages, and whether a member, patron, or guest is intoxicated, to provide for the public health and safety of members, patrons, and guests;

2.35.1.f. Provide a floorplan for the proposed premises with one defined and bounded indoor and/or outdoor area to safely account for the ingress and egress of stated members, patrons, and guests who will be attending the festival, fair, or other event, and the floorplan that would comprise the licensed premises, which would be authorized for the lawful sales, service, and consumption of liquor, wine, and nonintoxicating beer or nonintoxicating craft beer throughout the licensed premises whether these activities were conducted in a building or structure, or outdoors while on the licensed premises and as noted on the floorplan;

2.35.1.g. Meet and be subject to all other private club requirements; and

2.35.1.h. Use an age verification system approved by the Commissioner.

2.36. “Private nine-hole golf course” means an applicant for a private club or licensed private club licensee meeting the criteria set forth in this subsection which:

2.36.1. Has at least 50 members;

2.361.2. Maintains at least one nine-hole golf course with separate and distinct golf playing holes;

2.36.3. Operates a restaurant and full kitchen with ovens, as determined by the Commissioner, on the licensed premises and serves freshly prepared food at least 15 hours per week;

2.36.4. Owns or leases, controls, operates, and uses acreage amounting to at least 30 contiguous acres of bounded or fenced real property which would be listed on the private nine-hole golf course’s floorplan and could be used for golfing events and large contracted for group-type events such as weddings, reunions, conferences, meetings, and sporting or recreational events;

2.36.5. Lists the entire property from subsection 2.36.4. and all adjoining buildings and structures on the private nine-hole golf course’s floorplan which would comprise the licensed premises, which would be authorized for the lawful sales, service, and consumption of alcoholic liquors throughout the licensed premises whether these activities were conducted in a building or structure or outdoors while on the private nine-hole golf course’s licensed premises and as noted on the private nine-hole golf course’s floorplan;

2.36.6. Has an identified person, persons, or entity that has right, title, and ownership interest in the real property buildings and structures located on the proposed licensed premises; and

2.36.7. Utilizes an age verification system approved by the Commissioner.

2.37. “Private coliseum or center” means an applicant for a private club or private club licensee that is open for various events including, but not limited to, musical concerts, bands, sporting events, monster trucks, sports entertainment events, circuses, expos, hobby events, tradeshows, health events, reserved weddings, reunions, retreats, conventions, conferences, meetings, or other special events. The licensee may not sell alcoholic liquors, wine, or nonintoxicating beer or nonintoxicating craft beer when conducting or hosting events focused on patrons who are less than 21 years of age, and further the applicant meets the following criteria: 2.37.1 Has at least 5,000 members;

2.37.2. Maintains an enclosed coliseum or center venue with at least 80,000 square feet of event space primarily used for events where parties reserve the coliseum or center venue in advance of the event;

2.37.3. Operates a restaurant and full kitchen with ovens, as determined by the commissioner, on the licensed premises and be capable of serving freshly prepared food or meals to its stated members, guests, and patrons who will be attending events at the private coliseum or center;

2.37.4. Owns or leases, control, operates, and uses acreage amounting to at least two contiguous acres of bounded or fenced real property, as determined by the commissioner, which would be listed on the private coliseum or center's floorplan and could be used for contracted-for events, or a private fair and festival, as authorized by the commissioner per dual licensing requirements as set forth in W. Va. Code §60-7-2a;

2.37.5. Lists the entire property from section 2.37.4., and all adjoining buildings and structures on the private coliseum or center's floorplan comprising the licensed premises which would be authorized for the lawful sales, service, and consumption of alcoholic liquors and nonintoxicating beer or nonintoxicating craft beer throughout the licensed premises whether these activities were conducted in a building or structure or outdoors while on private coliseum or center's licensed premises;

2.37.6. Has identified a person, persons, or entity that has right, title, and ownership interest in the real property buildings and structures located on the proposed licensed premises;

2.37.7. Meets and is subject to all other private club requirements; and

2.37.8. Uses an age verification system approved by the commissioner.

2.38. “Private college sports stadium” means an applicant for a private club or a private club licensee that operates a college or university stadium or coliseum for Division I, II, or III sports and that involves a college public or private or university that is a member of the National Collegiate Athletic Association, or its successor, and uses the facility for football, basketball, baseball, soccer, or other Division I, II, or III sports, reserved weddings, reunions, conferences, meetings, or other special events and does not maintain daily or regular operating hours as a bar or restaurant. The licensee may sell alcoholic liquors and nonintoxicating beer or nonintoxicating craft beer when conducting or temporarily hosting non-collegiate sporting events. This license may be issued in the name of the National Collegiate Athletic Association Division I, II, or III college or university or the name of the primary food and beverage vendor under contract with that college or university. All alcohol sales shall take place within the confines of the college or university stadium: Provided, That any outside area approved for alcohol sales and nonintoxicating beer or nonintoxicating craft beer shall be surrounded by a fence or other barrier prohibiting entry except upon the college or university's express permission, and under the conditions and restrictions established by the college or university, so that the alcohol sales area is closed in order to prevent entry and access by the general public, and also meets the following criteria:

2.38.1. Has at least 100 members;

2.38.2. Maintains an open-air or enclosed stadium or coliseum venue primarily used for sporting events, such as football, basketball, baseball, soccer, or other Division I, II, or III sports, and also weddings, reunions, conferences, meetings, or other events where parties shall reserve the college stadium venue in advance of the event;

2.38.3. Operates a restaurant and full kitchen with ovens and equipment that is equivalent or greater than a private club restaurant, as determined by the commissioner, on the licensed premises that is capable of serving freshly prepared food or meals to its stated members, guests, and patrons who will be attending the event at the private college sports stadium;

2.38.4. Owns or leases, controls, operates, and uses acreage amounting to at least two contiguous acres of bounded or fenced real property, as determined by the commissioner, which would be listed on the private college stadium's floorplan and could be used for contracted-for temporary non-collegiate sporting events, group-type weddings, reunions, conferences, meetings, or other events;

2.38.5. Lists the entire property from section 2.38.4., and all adjoining buildings and structures on the private college sports stadium's floorplan which would comprise the licensed premises, which would be authorized for the lawful sales, service, and consumption of alcoholic liquors and nonintoxicating beer or nonintoxicating craft beer throughout the licensed premises whether these activities were conducted in a building or structure or outdoors while on the private college sports stadium's licensed premises and as noted on the private college sports stadium's floorplan;

2.38.6. Has an identified a person, persons, or entity that has right, title, and ownership interest in the real property buildings and structures located on the proposed licensed premises;

2.38.7. Meets and is subject to all other private club requirements; and

2.38.8. Uses an age verification system approved by the commissioner.

2.39. “Private professional sports stadium” means an applicant for a private club or licensed private club licensee that is only open for professional sporting events when such events are affiliated with or sponsored by a professional sporting association, reserved weddings, reunions, conferences, meetings, or other special events and does not maintain daily or regular operating hours as a bar or restaurant. The licensee may not sell alcoholic liquors when conducting or hosting non-professional sporting events, and further the applicant meets the following criteria: 2.39.1 Has at least 1000 members;

2.39.2. Maintains an open air or closed air stadium venue primarily used for sporting events, such as football, baseball, soccer, auto racing, or other professional sports, and also weddings, reunions, conferences, meetings, or other events where parties must reserve the stadium venue in advance of the event;

2.39.3. Operates a restaurant and full kitchen with ovens, as determined by the Commissioner, on the licensed premises and capable of serving freshly prepared food, or meals to serve its stated members, guests, and patrons who will be attending the event at the private professional sports stadium;

2.39.4. Owns or leases, controls, operates, and uses acreage amounting to at least 3 contiguous acres of bounded or fenced real property, as determined by the Commissioner, which would be listed on the professional sports stadium’s floorplan and could be used for contracted for professional sporting events, group-type weddings, reunions, conferences, meetings, or other events;

2.39.5. List the entire property from subsection 2.39.4., and all adjoining buildings and structures on the private professional sports stadium’s floorplan which would comprise the licensed premises, which would be authorized for the lawful sales, service, and consumption of alcoholic liquors throughout the licensed premises whether these activities were conducted in a building or structure or outdoors while on the private professional sports stadium’s licensed premises and as noted on the private professional sports stadium’s floorplan;

2.39.6. Have an identified person, persons, or entity that has right, title, and ownership interest in the real property buildings and structures located on the proposed licensed premises;

2.39.7. Meet and be subject to all other private club requirements; and

2.39.8. Use an age verification system approved by the Commissioner.

2.40. “Private tennis club” means an applicant for a private club or licensed private club licensee meeting the criteria set forth in this subsection which:

2.40.1. Has at least 100 members;

2.40.2. Maintains at least four separate and distinct tennis courts, either indoor or outdoor, and a clubhouse or similar facility;

2.40.3. Has a restaurant and full kitchen with ovens, as determined by the Commissioner, on the licensed premises and is capable of serving freshly prepared food;

2.40.4. Owns or leases, controls, operates, and uses acreage amounting to at least two contiguous acres of bounded or fenced real property which would be listed on the private tennis club’s floorplan and could be used for tennis events and large events such as weddings, reunions, conferences, tournaments, meetings, and sporting or recreational events;

2.40.5. Lists the entire property from subsection 2.40.4., and all adjoining buildings and structures on the private tennis club’s floorplan that would comprise the licensed premises, which would be authorized for the lawful sales, service, and consumption of alcoholic liquors throughout the licensed premises whether these activities were conducted in a building or structure or outdoors while on the private tennis club’s licensed premises and as noted on the private tennis club’s floorplan;

2.40.6. Has identified a person, persons, an entity, or entities who or which has right, title, and ownership interest in the real property buildings and structures located on the proposed licensed premises;

2.40.7. Meets and is subject to all other private club requirements; and

2.40.8. Uses an age verification system approved by the Commissioner.

2.41. “Private wedding venue or barn” means an applicant for a private club or licensed private club licensee that is only open for reserved weddings, reunions, conferences, meetings, or other events and does not maintain daily or regular operating hours, and which:

2.41.1. Has at least 25 members;

2.41.2. Maintains a venue, facility, barn, or pavilion primarily used for weddings, reunions, conferences, meetings, or other events where parties must reserve or contract for the venue, facility, barn, or pavilion in advance of the event;

2.41.3. Operates a restaurant and full kitchen with ovens, as determined by the Commissioner, on the licensed premises and is capable of serving freshly prepared food, or may engage a food caterer to provide adequate freshly prepared food or meals to serve its stated members, guests, and patrons who will be attending the event at the private wedding venue or barn. The applicant or licensee shall provide written documentation including a list of food caterers or written agreements regarding any food catering operations to the Commissioner prior to approval of a food catering event;

2.41.4. Owns or leases, controls, operates, and uses acreage amounting to at least two contiguous acres of bounded or fenced real property. The applicant or licensee shall verify that, the property is less than two acres and is remotely located, subject to the Commissioner’s approval. The bounded or fenced real property may be listed on the private wedding venue’s floorplan and may be used for large events such as weddings, reunions, conferences, meetings, or other events;

2.41.5. Lists the entire property from subsection 2.41.4., and all adjoining buildings and structures on the private wedding venue or barn’s floorplan that would comprise the licensed premises, which would be authorized for the lawful sales, service, and consumption of alcoholic liquors throughout the licensed premises whether these activities were conducted in a building or structure or outdoors while on the private wedding venue or barn’s licensed premises and as noted on the private wedding venue or barn’s floorplan;

2.41.6. Has an identified person, persons, or entity that has right, title, and ownership interest in the real property buildings and structures located on the proposed licensed premises;

2.41.7. Meets and is subject to all other private club requirements; and

2.41.8. Uses an age verification system approved by the Commissioner.

2.42. “Qualified permit holder” means the holder of a: Class A private club type, Class S3 license (multivendor fair and festival), or Class S2 license (private fair and festival license) issued under W. Va. Code §60-7-1 et seq.; Class A private wine restaurant, private wine bed and breakfast, or private wine spa issued under W. Va. Code §60-8-1 et seq.; Class A tavern license or brewpub license or Class S (nonintoxicating beer fair or festival) or S1 license (one day charitable beer license) issued under W. Va. Code §11-16-1 et seq.; Class A hard cider license issued under W. Va. Code §60-8A-1 et seq.; or a Class S4N permit issued under W. Va Code §60-7-8h that may operate within a private outdoor designated area and is issued a Class S4 qualified permit to operate in a PODA created pursuant to W. Va Code §8-12-26 and W. Va. Code §60-7-8g to conduct on-premises sales of liquor, wine, hard cider, nonintoxicating beer, or nonintoxicating craft beer in the PODA.

2.43. “Qualified non-profit permit holder” means a non-profit corporate entity organized pursuant to W. Va. Code §31E-1-101 et seq. (WV Nonprofit Corporation Act), that elects to operate an event solely within a PODA, and who has applied, paid the annual fee, and been approved for a Class S4N special permit pursuant to W. Va. Code §60-7-1 et seq., to conduct on-premises sales of liquor, wine, hard cider, nonintoxicating beer, or nonintoxicating craft beer in the PODA subject to a municipality’s approval with other Class S4 qualified permit holders.

2.44. “Record” means any manner of recording from which a transcript can be made.

2.45. “Retail liquor outlet” means the establishment where the private club is authorized to purchase alcoholic liquors. Such retail liquor outlet must be licensed to sell alcoholic liquors in the original package for consumption off the premises, to the public in West Virginia by the Commissioner as authorized by either W. Va. Code §60-3-1 et seq. or W. Va. Code §60-3A-1 et seq.

2.46. “Sale” means any transfer or exchange of goods or services, in exchange for money, currency, checks, credit cards, or barter in any manner or by any means, for a consideration, and shall include all sales made by principal, proprietor, agent, or employee.

2.47. “Selling” includes solicitation or receipt of orders, possession for sale, and possession with intent to sell.

2.48. “Wine” means any beverage obtained by the fermentation of the natural content of fruits, or honey, or other agricultural products, containing sugar to which no alcohol has been added and includes, but is not limited to, table wines, hard cider, nonfortified dessert wine, wine coolers, still wines, champagne, and other sparkling wines, carbonated wines, imitation wines, vermouth, hard cider, perry, sake, or other similar wine-based beverages offered for sale or sold as wines containing not less than 0.5 percent nor more than 24% alcohol by volume (See 175 CSR 4 – Sale of Wine).

W. Va. Code R. § 175-2-3 Licensure

3.1. License application. - The application for license to operate any type of private club shall include the following:

3.1.1. The name signatures, citizenship, address, and residence of the applicant and manager.

3.1.2. The place at which such applicant will conduct its operations, whether it is owned or leased by applicant; and if leased, from whom, giving names and addresses of all lessors.

3.1.3. If the applicant is an unincorporated association, the names and addresses of members of its governing board.

3.1.4. If the applicant is a corporation, the names and addresses of its officers and directors. If such person be a limited liability company, the names and addresses of the members and/or managers.

3.1.5. The size and nature of the dining and kitchen facilities operated by applicant and the specific proportions of any structure used in conjunction with other purposes that will constitute the type of private club.

3.1.6. Arrest record, if any, of the applicant and manager, and if the applicant is a corporation, limited liability company, partnership or association the arrest record, if any, of the officers, directors, partners, members, managers, or stewards including disposition of same.

3.1.6.a. The Commissioner shall conduct background investigations for the purpose of determining whether the applicant or the applicant’s manager has been charged with, indicted for, or convicted of a crime that may have bearing upon the applicant or the applicant’s manager’s fitness to hold a private club license. For purposes of this paragraph, “background investigation” means a criminal investigation of an applicant and an applicant’s manager who has applied for the issuance or renewal of a private club license pursuant to W. Va. Code §60-7-1 et seq. The applicant will submit West Virginia Alcohol Beverage Control Administration Release of Information and Waiver of Confidentiality of Records Form on the form provided by the Commissioner. The applicant and applicant’s manager will obtain a fingerprinting service code from the ABCA. The applicant and applicant’s manager will contact the current background check service provider to schedule fingerprinting for completion of the background check. The current background check service provider will receive the background check results from the West Virginia State Police and the Federal Bureau of Investigation. The results will be shared with the ABCA.

3.1.6.b. The Commissioner will conduct background investigations for the purpose of determining whether an applicant and the applicant’s manager has been charged with, indicted for, or convicted of a crime that may have bearing upon the applicant’s or applicant’s manager’s fitness to hold a license. For purposes of this paragraph, “background investigation” means a criminal investigation of an applicant and the applicant’s manager who has applied for the issuance or renewal of a license. The applicant and the applicant’s manager will submit West Virginia Alcohol Beverage Control Administration Release of Information and Waiver of Confidentiality of Records Form as provided by the Commissioner. The applicant and the applicant’s manager will obtain a fingerprinting service code from the ABCA. The applicant and applicant’s manager will contact the current background check service provider to schedule fingerprinting for completion of the background check. The current background check service provider will receive the background check results from the West Virginia State Police and the Federal Bureau of Investigation. The results will be shared with the ABCA.

3.1.6.c. The applicant will reimburse the ABCA for all fees or charges that are incurred by the ABCA for the background investigation.

3.1.7. Manager requirement. - No licenses shall be given to any applicant or renewed for any licensee who has not listed a manager on the applicant’s license application, or a licensee’s renewal application, and further that the manager shall meet all other requirements of licensure, including, but not limited to, United States citizenship or naturalization, passing a background investigation, being at least 21 years of age, not have been convicted of a felony in the previous five years before the date of application, not have been convicted of a crime involving fraud, dishonesty, or deceit in the previous five years before application, and not have been convicted of a felony crime for violating alcohol-related distribution laws in the previous five years, being capable of operating a bona fide private club of good reputation in the community, and other requirements, all as set forth in the code and the legislative rules, in order for the manager to be able to meet and conduct any regulatory matters, including, but not limited to: licensure or enforcement matters related to the applicant or licensee all in the interest of protecting public health and safety and being a suitable applicant or licensee. In order to maintain active licensure, any change by a licensee in any manager listed on a license or renewal application shall be made immediately to the Commissioner, to verify that the new manager meets licensure requirements.

3.1.8. A statement of purpose or purposes for which the club is organized (social, recreation, benevolent, charitable, fraternal or profit).

3.1.9. How long the club has been in existence prior to the date of the application.

3.1.10. What national organization it is affiliated with, if any, and the date of affiliation and nature thereof.

3.1.11. Number of employees.

3.1.12. Number of members of the applicant.

3.1.13. West Virginia consumers sales tax identification number.

3.1.14. West Virginia business franchise tax number.

3.1.15. West Virginia Health Department permit number to operate a restaurant.

3.1.16. Type of license applied for.

3.1.17. Application shall only be made on the form provided by the Commissioner or available on the ABCA website at www.abca.wv.gov. This form must be completed in its entirety and failure to complete all questions shall constitute grounds for refusal to grant a license.

3.1.18. Whether the applicant is the holder of a federal gambling stamp.

3.1.19. Whether the applicant is the holder of a retail liquor dealer special tax stamp.

3.2. Refusal of license.

3.2.1. No license shall be issued by the Commissioner to any private club:

3.2.1.a. That is located on any college campus, state university campus, or branch thereof, unless it is located in an on-campus structure listed on the National Register of Historic Places located within a designated National Historic Landmark District or such private club type is located upon the premises of a National Collegiate Athletic Association, or its successor, approved Division I, II, or III sports stadium used for revenue generating sports by a college or university on its campus and no classes are held at the sports stadium or at a private college sports stadium.

3.2.1.b. That is the holder of a federal gambling stamp or whose manager or employee is a holder of a federal gambling stamp.

3.2.1.c. That discriminates against any person or group of persons in violation of applicable state or federal law: Provided, that a license cannot be refused based on unlawful discrimination.

3.2.1.d. That submits an application for license that contains any false statement, and any statement found to be false after granting of said license shall be grounds for revocation or suspension of said license.

3.2.1.e. That is not a bona fide private club of good reputation in the community in which it operates. For purposes of making such a determination, the Commissioner shall take into consideration whether the ownership and management of the private club will involve persons that have not been convicted of a felony in the previous five years before the date of application, not have been convicted of a crime involving fraud, dishonesty, or deceit in the previous five years before application, and not have been convicted of a felony crime for violating alcohol-related distribution laws in the previous five years and whether the premises to be used by the private club is a suitable place.

3.2.1.f. That fails to have the applicant and manager attest that the information in the application is true and accurate.

3.2.2. The Commissioner may refuse to grant any license if he or she has reasonable cause to believe, as indicated by documented evidence, that the applicant, or any officer, director or manager thereof, or shareholder owning 20% or more of its capital stock, beneficial or otherwise, or other person conducting or managing the affairs of the applicant or of the proposed licensed premises, in whole or part:

3.2.2.a. Has not been convicted of a felony in the previous five years before the date of application, has not been convicted of a crime involving fraud, dishonesty, or deceit in the previous five years before application, and has not been convicted of a felony crime for violating alcohol-related distribution laws in the previous five years;

3.2.2.b. Has maintained a noisy, loud, disorderly, or unsanitary establishment;

3.2.2.c. Has demonstrated, either by his or her police record or by his record as a former licensee under W. Va. Code §11-16-1 et seq. or Chapter 60 of the West Virginia Code a lack of respect for law and order, generally, or for the laws and rules governing the sale and distribution of alcoholic beverages or nonintoxicating beer;

3.2.2.d. Has misrepresented a material fact in applying to the Commissioner for a license; or

3.2.2.e. Has not listed accurate and complete ownership information.

3.2.3. For purposes of this rule, the Commissioner shall refuse to grant any license if he or she has reasonable cause to believe, as indicated by documented evidence that the applicant, or any officer, director or manager thereof, or shareholder owning 20% or more of its capital stock, beneficial or otherwise, or other person conducting or managing the affairs to the applicant or of the proposed licensed premises, in whole or part:

3.2.3.a. Is not 21 years of age or older;

3.2.3.b. Has been convicted of a felony or other crime involving fraud, dishonesty, or deceit, and upon such conviction the applicant will not be eligible for licensure within five years next preceding successful completion of all conditions of probation, discharge from parole supervision, or expiration of sentence;

3.2.3.c. Has been convicted of violating any alcoholic liquor laws, rules, or regulations, or any beer laws, rules, or regulations of any state or the United States, and upon such conviction the applicant shall not be eligible for licensure within five years next preceding successful completion of all conditions of probation, discharge from parole supervision, or expiration of sentence;

3.2.3.d. Has had any license revoked under the alcoholic liquor laws, rules, or regulations, or the beer laws, rules or regulations of any state or the United States within five years next preceding the filing date of the application;

3.2.3.e. Is not the legitimate owner of the business proposed to be licensed, or other persons have ownership interests in the business, which have not been disclosed;

3.2.3.f. Is a person to whom alcoholic beverages may not be sold under the provisions of Chapter 60 of the West Virginia Code;

3.2.3.g. Has been adjudicated an incompetent;

3.2.3.h. Is an officer or employee of the Alcohol Beverage Control Commissioner of West Virginia; or

3.2.3.i. Is violating or allowing the violation of any provision of Chapter 60 or Chapter 61 of the West Virginia Code or W. Va. Code §11-16-1 et seq. in its establishment at the time its application for a license is pending or at any time during either the current licensed period or the immediately preceding licensing period.

3.2.4. No license shall be issued by the Commissioner to any type of private club if the place to be occupied by the applicant:

3.2.4.a. Does not conform to the requirements of applicable laws of the State with respect to sanitation, health, construction, or equipment, or to any similar requirements established by the rules of the Commissioner.

3.2.4.b. Is so located that violations of W. Va. Code §60-1-1 et seq., or of the rules of the Commissioner, or the laws of this State relating to peace and good order would result from the issuance of such license and operation by the applicant.

3.2.4.c. Is so situated with respect to any church, hospital, school, college, or university, public or private playground or other similar recreational facilities, or any state, local, or federal government-operated facility, that operation under the license will adversely affect or interfere with normal, orderly conduct of the affairs of such facilities or institutions.

3.2.4.d. Is so situated with respect to any residence or residential area that its operation will adversely affect real property values or substantially interfere with the usual quietude and tranquility of the residential area.

3.2.5. The Commissioner may refuse to issue a license if he or she has reasonable ground to believe that the number of licenses existent in the locality is such that the issuance of an additional license would be detrimental to the interests, morals, safety, or welfare of the public, and, in reaching his or her conclusion in this respect, the Commissioner may consider the character, population, and number of similar licensees in the particular town, city, or county and the immediate neighborhood concerned, and the effect which a new license may have on such town, city, county, or neighborhood in conforming with the purposes of the Liquor Control Act.

3.2.5.a. Any person applying for a license to operate a private club at any location within a municipality must file a notice of such intention using the zoning form provided by the Commissioner or available on the ABCA website at www.abca.wv.gov, with the clerk or recorder of the municipality at least 10 calendar days prior to filing an application for a private club license with the ABCA as required by W. Va. Code §60-7-4a.

3.2.5.b. Any person applying for a license to operate any type of private club that is not within a municipality, must submit a letter from the county commissioner stating that the location of the club is in compliance with zoning ordinances for that county.

3.2.6. In the process of determining whether or not a license should be issued, the Commissioner must investigate the accuracy of all allegations, that could lead to denial of the license. The Commissioner may request such other information as the Commissioner may reasonably require of the applicant and a manager which shall include, but not be limited to, all pecuniary or financial interest in the applicant and the criminal records, if any, of each member of the applicant’s governing board.

3.2.7. Upon receipt of a completed application, together with the accompanying fee and bond, the Commissioner shall conduct an investigation to determine the accuracy of the matters contained in such completed application and whether applicant is a bona fide private club of good reputation in the community in which it shall operate. For the purpose of conducting such investigation, the Commissioner may withhold the granting or refusal to grant the license for a period not to exceed 30 calendar days or until the applicant has completed the conditions set forth in the code, all as determined by the Commissioner. The Commissioner may issue a license authorizing the applicant to sell alcoholic liquors if it appears that the applicant is a bona fide private club of good reputation in the community in which it shall operate and that the applicant and the manager listed in the application or renewal application have not made any false statement, material misrepresentation, or omissions; have no hidden ownership or undisclosed pecuniary interests; and have complied with all applicable requirements in the West Virginia Code and Code of State Rules, which are all subject to investigation by the Commissioner and as determined by the Commissioner.

3.3. Type of license. - The Commissioner, upon a decision to grant a license, will issue said license in one of two categories:

Type I. - This is for a private club license issued to a nationally recognized fraternal or veterans organization, and or any other nonprofit social club, all of the same being operated exclusively for the benefit of its members and pays no part of its income to shareholders or individual members, and maintains on its premises a suitable kitchen and dining facility with related equipment for serving food to members and their guests.

Type II. - This is for social organizations or corporations operated for legitimate purposes and for profit, that pays part of its income to shareholders or individual members, and maintains on its premises a suitable kitchen and dining facility with related equipment, and employs a sufficient number of persons for the serving of meals to members and their guests at all times during the hours of operation.

As to each of the categories above, a license will only be granted upon a certification that the general public is not and will not be admitted on the premises, and only duly elected or approved dues paying members in good standing, and their guests, while in the company of a member, are permitted to enter said premises. The membership list requirement may be met through social media members and guests, actual member and guest list, or other lists of members, either electronically or manually, maintained by the licensee. Any type of private club that does not maintain a membership list may not be afforded the rights and protections of the private club privilege.

3.3.1. A private fair and festival, one-day charitable rare, antique, or vintage liquor auction, and a private multi-vendor festival are temporary Type II licenses, and a private club bar, private club restaurant, private manufacturers club, private hotel, private resort hotel, private golf club, private nine-hole golf course, private caterer, private farmers market, private multi-sport complex, private professional sports stadium, private tennis club, and private wedding venue or barn are Type II licenses.

3.4. Fees, additional license types and license services.

3.4.1. The annual fee for licenses issued under the provisions of W. Va. Code §60-7-1 et seq. shall be as follows:

3.4.1.a. For a fraternal or veterans organization or a nonprofit social club, $750.00.

3.4.1.b. For a private club bar or private club restaurant other than a private club of the type specified in subdivision 3.4.1.a. of this subsection, $1,000.00 if determined by the Commissioner that such private club has less than 1,000 members and $2,500.00 if such private club bar or private club restaurant has 1,000 or more members. A private club bar or private club restaurant licensee with 1,000 or more members may, in the Commissioner’s discretion, operate Class B license for the off-premises sale of nonintoxicating beer and wine in a connected but separately operated area of the private club premises: Provided, that each business is licensed separately and operates separate cash registers and maintains separation barriers between the different licensed operations. Failure of a licensee to license two inner-connected businesses shall subject the licensee to the penalties under W.Va. Code §60-7-1 et seq. and this rule. The fee for any license issued following the first day of January of any year, to expire on the 30th day of June of each year, will be 1/2 of that previously prescribed. Such fee shall be made payable to the “West Virginia Alcohol Beverage Control Administration Commissioner” and paid by certified check, cashier's check, business check, personal check, or money order, or by credit card paid only on the ABCA website at www.abca.wv.gov. All payments must accompany or be made simultaneously with the filing of an application.

3.4.1.b.1. For a private hotel, private golf club (18 holes), private coliseum or center, private food court, private nine-hole golf course, private farmers market, private food truck, private college sports stadium, private professional sports stadium, private multi-sport complex, private manufacturer club, or a private tennis club of the type specified in W. Va. Code §60-7-6(b), $2,000.00.

3.4.1.b.2. For a private resort hotel of the type specified in W. Va. Code §60-7-6(b): with 5 or fewer designated areas, $7,500.00; with at least 6 but no more than 10 designated areas, $12,500.00; with at least 11 but no more than 15 designated areas, $17,500.00; and with no fewer than 15 nor more than 20 designated areas, $22,500.00.

3.4.1.b.3. For a private wedding venue or barn or a private cigar shop of the type specified in W. Va. Code §60-7-6(b), $1,500.00.

3.4.1.b.4. For a private caterer, that is already licensed as private club restaurant, private hotel, or private resort hotel, of the type specified in W. Va. Code §60-7-6(b), $1,000.00.

3.4.1.b.5. For a private bakery of the type specified in W. Va. Code §60-7-6(b), $500.00.

3.4.1.b.6. For a qualified permit holder operating in a PODA as set forth in W. Va. Code §60-7-8g, $100.00, which is annual, nonrefundable, and non-prorated, however an approved licensee who has a Class S1, Class S2 or Class S3 license does not have to pay the $100.00 permit fee but must complete the qualified permit application.

3.4.1.b.7. For a qualified non-profit permit holder, as set forth in W. Va. Code §60-7-8h, operating in any statewide authorized and approved PODA, and as such qualified non-profit permit holder has also been further approved by the municipality who authorized the PODA, as set forth in W. Va. Code §60-7-8g, $1,500.00, which is annual, nonrefundable, and non-prorated.

3.4.2. A private resort hotel having obtained a license and paid the $22,500.00 annual license fee may, upon application to and approval of the Commissioner, designate additional areas for a period not to exceed seven calendar days for an additional fee of $150.00 per day, per designated area.

3.4.3. A private fair and festival shall be designated a Class S2 private fair and festival license for the retail sale of liquor, wine, nonintoxicating beer, and nonintoxicating craft beer for on-premises consumption at a temporary event and shall pay a nonrefundable nonprorated license fee of $500.00.

3.4.4. A private multi-vendor fair and festival shall be designated a Class S3 private multi-vendor fair and festival license for the retail sale of liquor, wine, and nonintoxicating beer or nonintoxicating craft beer for on-premises consumption at a temporary event and shall pay a nonrefundable nonprorated license fee of $500.00.

3.4.5. A one-day charitable rare, antique, or vintage liquor auction shall be a one-day special license issued to any licensed private club type in partnership with a duly organized and federally approved nonprofit organization or entity to conduct a charitable auction of rare, antique, or vintage liquor, as determined by the Commissioner, on the licensed private club’s licensed premises for consumption off-premises and shall pay a nonrefundable nonprorated $150.00 license fee per one-time event.

3.4.6. Growler requirements.

3.4.6.a. Nonintoxicating beer or nonintoxicating craft beer growler requirements. - Any type of licensed private club who pays the $100.00 fee set forth in W. Va. Code §11-16-6b and meets the requirements of this section may offer nonintoxicating beer or nonintoxicating craft beer for retail sale to patrons from their licensed premises in a growler for personal consumption only off of the licensed premises and not for resale.

3.4.6.a.1. Prior to a growler sale, the licensee shall verify, using proper identification, that any patron purchasing nonintoxicating beer or nonintoxicating craft beer is 21 years of age or over and that the patron is not visibly intoxicated.

3.4.6.a.2. A licensee may not sell, give, or furnish alcoholic liquors, including wine, for consumption off of its licensed premises, unless it is any type of private club licensed to sell sealed wine for consumption off of the licensed premises and meets the requirements set forth in the W. Va. Code §60-8-1 et seq., and in subsection 3.4.7. or 3.4.6.b., for the sale of sealed wine growlers, not liquor, and further unless a private club restaurant or private manufacturer club is licensed for sale of liquor in craft cocktail growlers as set forth in subsection 3.4.6.c. and W. Va. Code §60-7-1 et seq.

3.4.6.a.3. A licensee shall comply with all the retail sales, payment of taxes and fees, advertising, nonintoxicating beer or nonintoxicating craft beer growler requirements, nonintoxicating beer or nonintoxicating craft beer growler labeling, nonintoxicating beer or nonintoxicating craft beer growler sanitation, nonintoxicating beer or nonintoxicating craft beer growler sampling and limitations provisions of W. Va. Code §11-16-6b and shall be subject to all applicable requirements and penalties in W. Va. Code §11-16-1 et seq.

3.4.6.b. Wine Growler requirements. Any type of licensed private club who pays the $100.00 fee set forth in W. Va. Code §60-8-6d and meets the requirements of this section may offer wine for retail sale to patrons from their licensed premises in a growler for personal consumption only off of the licensed premises, and not for resale.

3.4.6.b.1. Prior to a growler sale, the licensee shall verify, using proper identification, that any patron purchasing wine is 21 years of age or over and that the patron is not visibly intoxicated.

3.4.6.b.2. A licensee may not sell, give, or furnish alcoholic liquors, including wine, for consumption off of its licensed premises, unless it is any type of private club licensed to sell sealed wine for consumption off of the licensed premises and meets the requirements set forth in the W. Va. Code §60-8-1 et seq., and in subsection 3.4.7. or 3.4.6.b., for the sale of sealed wine growlers, not liquor, and further unless a private club restaurant or private manufacturer club is licensed for sale of liquor in craft cocktail growlers as set forth in subsection 3.4.6.c. and W. Va. Code §60-7-1 et seq.

3.4.6.b.3. A licensee shall comply with all the retail sales, payment of taxes and fees, advertising, wine growler requirements, wine growler labeling, wine growler sanitation, wine growler sampling and limitations provisions of W. Va. Code §60-8-6c and §60-8-6d and shall be subject to all applicable requirements and penalties in W. Va. Code §60-8-1 et seq.

3.4.6.c. Craft Cocktail Growler requirements.

3.4.6.c.1. Craft cocktail growler defined. - “Craft Cocktail Growler” means a container or jug that is made of glass (may include a howler), ceramic, metal, plastic (any plastic must be certified as BPA free and any plastic that generates BPAs in the cleaning and sanitization process, which are hazardous to public health, will not be approved), or other material approved by the Commissioner, that may be no larger than 128 fluid ounces in size and must be capable of being securely sealed and may be sold in accordance with the Code. 3.4.6.c.2 Sales of craft cocktail growlers. - A licensed private club restaurant or private manufacturer club that is authorized under a current and valid license and meets the requirements of this section may offer a craft cocktail growler in the ratio of up to one fluid ounce of liquor to four fluid ounces of nonalcoholic beverages or mixers, not to exceed 128 fluid ounces for the entire beverage in the craft cocktail growler, for retail sale to patrons from their licensed premises in a sealed craft cocktail growler for personal consumption only off of the licensed premises.

3.4.6.c.2.A. There shall be a $100 non-prorated, non-refundable annual fee to sell craft cocktail growlers and sales must be completed in accordance with the Code.

3.4.6.c.2.B. Every licensee licensed under this section shall pay all taxes and fees required by the Code and shall comply with the required markup specified in W. Va. Code §60-3A-17(e)(2) when conducting sealed craft cocktail growler sales.

3.4.6.c.2.C. Every licensee licensed under this section may only advertise a particular brand or brands of liquor manufactured by a distillery, mini-distillery, or micro-distillery upon written approval from the distillery, mini-distillery, micro-distillery, or an authorized and licensed broker to the licensee. Advertisements may not encourage intemperance or target minors.

3.4.6.c.3. Craft cocktail growler requirements.

3.4.6.c.3.A. A licensee licensed under this section may refill a craft cocktail growler from a secure area only accessible by the authorized licensee and its staff and not accessible by patrons, subject to the requirements of this section. The Commissioner has discretion to determine a secure area on a case-by-case basis for each authorized licensee.

3.4.6.c.3.B. A licensee licensed under this section must sanitize, inspect, fill, securely seal, and label any craft cocktail growler prior to its sale (See 3.4.6.c.5.) in accordance with the Code.

3.4.6.c.4. Craft cocktail growler labeling. - A licensee licensed under this section selling craft cocktail growlers shall affix a conspicuous label on all sold and securely sealed craft cocktail growlers listing the name of the licensee selling the craft cocktail growler, the brand of the liquor in the craft cocktail growler, the type of craft cocktail or name of the craft cocktail, the alcohol content by volume of the liquor in the craft cocktail growler, and the date the craft cocktail growler was filled or refilled, and, all labeling on the craft cocktail growler shall be consistent with all federal labeling and warning requirements.

3.4.6.c.5. Craft cocktail growler sanitation. - A licensee licensed under this section shall clean and sanitize all craft cocktail growlers he or she fills or refills in accordance with all state and county health requirements prior to its sealing. In addition, the licensee licensed under this section shall sanitize, in accordance with all state and county health requirements, all taps, tap lines, pipe lines, barrel tubes, and any other related equipment used to fill or refill craft cocktail growlers. Failure to comply with this subsection may result in penalties under this article: Provided, That, if the reuse or refilling of a craft cocktail growler would violate federal law such craft cocktail growler must only be used one-time, for one filling, and be discarded after the one-time use. Any approved craft cocktail growler made from plastic must be certified BPA-free, sanitized at the place of manufacture and prior to filling must remain in the original sanitized package in order to meet sanitization requirements, thus such a one-time use approved craft cocktail growler made from plastic is permissible when meeting the requirements of the Code and rule. A plastic cup with a lid does not qualify as craft cocktail growler.

3.4.6.c.6. Pre-mixing of a craft cocktail. - A licensee licensed under this section may pre-mix the nonalcoholic beverages or mixers in the advance of a craft cocktail growler purchase and sealing, and add the liquor, as set forth in this section, upon a member or guest’s purchase of a craft cocktail growler. A licensee licensed under this section must dispose of any expired premixed nonalcoholic beverages or mixers pursuant to Bureau for Public Health requirements when such premixed nonalcoholic beverages or mixers are no longer fit for human consumption. A licensee authorized under W. Va. Code §60-6-8(7) may use a premixed beverage meeting the requirements therein and is also subject to the requirements of this section for a craft cocktail growler.

3.4.6.c.7. Limitations on licensees.

3.4.6.c.7.A. Sales of craft cocktail growlers to member and guests only. A licensee licensed under this section shall not sell craft cocktail growlers to other licensees, but only to its members and guests.

3.4.6.c.7.B. Sales of craft cocktail growlers may be made: to a person ordering to-go while physically at the licensed premises, to a person who dined in-person on a food or meal and wants a craft cocktail growler to-go, to a person ordering by telephone, mobile application, web-based ordering for in-person or in-vehicle pickup while picking up food or a meal.

3.4.6.c.7.B.i. A licensee licensed under this section must provide food or a meal along with one sealed craft cocktail growler to a patron, subject to verification that the purchasing person is 21 years of age or older, and not visibly or noticeably intoxicated, and as otherwise specified, except for the person who has dined with the licensee and seeks to purchase craft cocktail growler to-go.

3.4.6.c.7.B.ii. A licensee licensed under this section may only sell one sealed craft cocktail growler to a patron or one craft cocktail growler per food or meal in the order delivered per W. Va. Code §60-7-8f.

3.4.6.c.7.C. A licensee licensed to sell craft cocktail growlers shall be subject to the applicable Bureau for Public Health legislative rules and requirements concerning sanitation.

3.4.6.d. Pre-mixing Permits. - It is generally unlawful for any licensee to sell, furnish, tender, or serve pre-mixed alcoholic liquor that is not in the original container, except:

3.4.6.d.1. Any type of private club licensee may sell, furnish, tender, and serve up to 15 recipes of pre-mixed beverages consisting of alcoholic liquors and nonalcoholic mixer (Examples of pre-mixed cocktails: margarita, sangria, old fashioned, and cosmopolitan), when approved by the Commissioner and in accordance with public health and safety standards;

3.4.6.d.1.A. Any type of private club licensee shall use approved dispensing and storage equipment which shall be cleaned after each use or after each batch of the pre-mixed beverage is made and at the end each business day; and

3.4.6.d.1.B. A licensee that obtains a permit shall maintain a written record reflecting the cleaning and sanitizing of the storage and dispensing equipment for inspection by the Commissioner and health inspectors, and shall abide by the requirements regarding disposal of premixed beverages or nonalcoholic beverages pursuant to the Bureau of Public Health;

3.4.6.d.2. Any type of private club licensee desiring to pre-mix alcoholic beverages shall complete the Pre-Mixing Permit application found on the ABCA website and list up to 15 drink recipes for pre-mixing approval by the Commissioner, and shall also submit the type of dispensing and storage equipment for each pre-mix recipe for approval by the Commissioner;

3.4.6.d.3. The licensee applying for a pre-mixing permit must specify if alcohol is being added to the pre-mixed recipe before storage, after storage, or at the time of purchase.

3.4.6.d.4. A violation or violations of this subdivision may result in the suspension or revocation of the permit and may result in additional sanctions under W. Va. Code §60-1-1 et seq.

3.4.6.e. Private delivery license for a licensed private club restaurant, private manufacturer club, or a third party; craft cocktail growler delivery requirements; limitations; third party license fee; private cocktail delivery permit; and requirements.

3.4.6.e.1. A licensed private club restaurant or private manufacturer club licensed to sell liquor for on-premises consumption may apply for a private delivery license permitting the order, sale, and delivery of liquor and a nonalcoholic mixer or beverage in a sealed craft cocktail growler, when separately licensed for craft cocktail growler sales as set forth in the Code and rules.

3.4.6.e.1.A. The order, sale, and delivery of a sealed craft cocktail growler is permitted for off-premises consumption when completed by the licensee to a person purchasing the craft cocktail growler through a telephone, a mobile ordering application, or web-based software program, authorized by the licensee’s license.

3.4.6.e.1.B. There is no additional fee for a licensed private club restaurant or private manufacturer club to obtain a private delivery license.

3.4.6.e.2. A third party, not licensed for liquor sales or distribution, may apply for a private delivery license for the privilege of ordering and delivery of craft cocktail growlers, from a licensee with a craft cocktail growler license.

3.4.6.e.2.A. The order and delivery of a sealed craft cocktail growler is permitted by a third party who obtains a license under this section when a private club restaurant or private manufacturer club sells to a person purchasing the sealed craft cocktail growler through telephone orders, a mobile ordering application, or a web-based software program.

3.4.6.e.2.B. The private delivery license nonprorated, nonrefundable annual fee is $200 for each third party entity, with no limit on the number of drivers and vehicles.

3.4.6.e.3. Sale Requirements: A craft cocktail growler purchase must accompany the purchase of prepared food or a meal, must be sold to a person at least 21 years of age who is not visibly or noticeably intoxicated at the time of the sale, may not be in excess of 128 fluid ounces; and must otherwise comply with W. Va. Code §60-7-1 et seq., and specifically W. Va. Code §60-7-8f.

3.4.6.e.4. Craft Cocktail Growler Delivery Requirements: A craft cocktail growler may be delivered to a person if the delivery driver verifies that the person is at least 21 years of age, is not noticeably or visibly intoxicated at the time of delivery and is the purchasing person as defined in the Code. Any delivery driver that cannot complete a delivery in accordance with W. Va. Code §60-7-8f may leave the food or meal that was ordered with the person at the delivery location, but must return any craft cocktail growler or growlers to the licensee since the delivery requirements were not met.

3.4.6.e.5. Telephone, mobile ordering application, or web-based software requirements. – The delivery person must permit only the person who placed the delivery order through telephone order, mobile ordering application, or web-based software to accept the prepared food or meal and a craft cocktail growler delivery. The delivery person must verify the person’s age using the person’s legal identification. The delivery must otherwise comply with W. Va. Code §60-7-8f(f).

3.4.6.e.6. Private Cocktail Delivery Permit.

3.4.6.e.6.A. The licensed private club restaurant, private manufacturer club, or third party private delivery licensee shall:

3.4.6.e.6.A.i. Obtain and maintain a retail transportation permit for its delivery drivers for the delivery of prepared food and a sealed craft cocktail growler;

3.4.6.e.6.A.ii. Provide vehicle and driver information, requested by the Commissioner. Upon any change in vehicles or drivers, the licensee shall update the driver and vehicle information with the Commissioner within 10 days of the change; and

3.4.6.e.6.B. Per W. Va. Code §60-6-12, a private cocktail delivery permit shall meet the requirements of a transportation permit which authorizes the permit holder to transport liquor.

3.4.7. Wine bottle requirements. - A license to sell wine granted to any private club entitles the operator to sell and serve wine, for consumption on the premises of the licensee when the sale accompanies the serving of food or a meal:

3.4.7.a. Any licensed private club for no additional license fee may permit a person over 21 years of age to purchase wine, consume wine, and recork or reseal, using a tamper resistant cork or seal, up to two separate bottles of unconsumed wine in conjunction with the serving of food or a meal to its members and their guests in accordance with the provisions of W. Va. Code §60-8-1 et seq. for the purpose of consumption of said wine off-premises;

3.4.7.b. Any licensed private club who shall apply, pay a $100.00 license fee, and is approved by the Commissioner may offer for sale, for consumption off the premises, sealed bottles of wine to its customers in conjunction with the serving of food or a meal: Provided, that no more than one bottle is sold per each person over 21 years of age, as verified by the private club, for consumption off the premises. Such licensees are authorized to keep and maintain on their premises a supply of wine in quantities appropriate for the conduct of operations thereof. Any sale of wine is subject to all restrictions set forth in W. Va. Code §60-8-20.

3.4.7.c. Corkage or uncorking of wine is permitted for a private club restaurant as set forth in the requirements in subsection 2.25.5.

3.4.8. Liquor bottle service. - A private club licensed under W. Va. Code §60-7-1 et seq., that is in good standing with the Commissioner may apply for the Commissioner’s approval, and shall pay a $1,000.00 annual fee which is nonrefundable and non-prorated, to sell or serve liquor by the bottle to two or more persons for personal consumption, not for resale, on the licensed premises only in a designated area set forth on the license’s approved floorplan.

3.4.9. Operational fee. - All Class A and private club type licensees shall pay, with their annual fee, an annual $100.00 operational fee per licensed premises.

3.4.10. Reactivation fee. - A licensee that fails to complete a renewal application and make payment of its annual license fee in renewing its license on or before June 30 of any subsequent year, after initial application, shall be charged an additional $150.00 reactivation fee. The fee payment may not be prorated or refunded. The reactivation fee must be paid prior to the processing of any renewal application and payment of the applicable full year annual license fee. A licensee who continues to operate upon the expiration of its license is subject to all fines, penalties, and sanctions available in W. Va. Code §60-7-13 and W.Va. Code §60-7-13a, all as determined by the Commissioner.

3.4.11. Private outdoor dining and private outdoor street dining.

3.4.11.a. Private outdoor dining. - With prior approval of the Commissioner a private club licensee may sell, serve, and furnish alcoholic liquor and, if also licensed to sell, serve, and furnish nonintoxicating beer or nonintoxicating craft beer to be consumed on premises in a legally demarcated area which may include a temporary private outdoor dining area. The emphasis of this authorization is to permit outdoor dining only. The Commissioner may, at his or her discretion, authorize entertainment or alcoholic beverage service in the private outdoor dining area. The Commissioner may determine not to authorize entertainment but must provide a written statement indicating why such entertainment is not authorized.

3.4.11.b. Private outdoor street dining. - With prior approval of the Commissioner a private club licensee may sell, serve, and furnish alcoholic liquor and, if also licensed to sell, serve, and furnish nonintoxicating beer or nonintoxicating craft beer to be consumed on premises in a legally demarcated area which may include a temporary private outdoor street dining area. The emphasis of this authorization is to permit outdoor street dining only. The Commissioner may, at his or her discretion, authorize entertainment or alcoholic beverage service in the private outdoor street dining area. The Commissioner may determine not to authorize entertainment but must provide a written statement indicating why such entertainment is not authorized.

3.4.11.b.1. A temporary private outdoor street dining area shall be approved by the municipal government or county commission in which the licensee operates. The Commissioner shall develop and make available an application form to facilitate the purposes of this subsection.

3.4.11.c. A private club licensee shall submit to the Commissioner:

3.4.11.c.1. An application available on the Commissioner’s website;

3.4.11.c.2. The municipal or county written approval, either a letter from the municipality or county or a form on the Commissioner’s website, of the private outdoor dining area or private outdoor street dining area; and,

3.4.11.c.3. A revised floorplan requesting to sell alcoholic liquors, and when licensed for nonintoxicating beer or nonintoxicating craft beer, then nonintoxicating beer or nonintoxicating craft beer, subject to the Commissioner’s requirements, in an approved and bounded outdoor area in accordance with W. Va. Code §60-7-8d.

3.4.11.d. In the absence of legal demarcation by resolution or ordinance of a municipality or county, the Commissioner may, at his or her discretion, provide for temporary legal demarcation based on a written and executed authorization letter from a municipality or county, subject to passage of a resolution or ordinance for a private outdoor dining area or private outdoor street dining area.

3.4.12. PODA affects certain public property that is legally demarcated, authorized, and with boundaries clearly set by a municipality’s ordinance for the lawful consumption of liquor, wine, and nonintoxicating beer or nonintoxicating craft beer. Within a properly approved PODA, a private property owner may allow or refuse access to patrons utilizing PODA cups and who are consuming liquor, wine, and nonintoxicating beer or nonintoxicating craft beer. Further, public property, within a properly approved PODA, where a separate or different purpose or event from the PODA which has been contracted for via a written agreement between a municipality and a person or entity may choose to include or exclude patrons who are utilizing PODA cups and who are consuming liquor, wine, and nonintoxicating beer or nonintoxicating craft beer. Persons who refuse access or who exclude patrons utilizing PODA cups must create a clear and enforceable barrier to prevent access to their property for an an event occurring on that property in order to separate the event from activity in the the PODA.

3.4.12.a. Permit requirements. - the qualified permit holder shall:

3.4.12.a.1. Operate in a private outdoor designated area created by municipal ordinance as set forth in W. Va. Code §8-12-26, and provide the commissioner a copy of the certified ordinance from the municipality;

3.4.12.a.2. Apply to the commissioner for the special permit prior to operating in an approved PODA on an application provided by the commissioner;

3.4.12.a.3. Pay the fee set forth in sub-division 3.4.1.b.6., or otherwise qualify as set forth in sub-division 3.4.1.b.6.;

3.4.12.a.4. Be in compliance with all state and federal laws and be in good standing with the commissioner;

3.4.12.a.5. Be approved by the municipality to operate in the PODA;

3.4.12.a.6. Provide the days and hours of operation in the PODA;

3.4.12.a.7. Provide, in conjunction with the municipality, adequate restroom facilities, whether permanent or portable, to serve the members and guests who will be attending the PODA;

3.4.12.a.8. Provide a security plan for the PODA indicating: All qualified permit holders' licensed premises where alcohol will be served in approved non-glass containers; all entrances and exits in order to verify members', patrons', and guests' ages, and to assess whether a member, patron, or guest is under 21 years of age or intoxicated; and a plan to provide for the public health and safety of members, patrons, and guests;

3.4.12.a.9. Provide a floorplan for the PODA indicating a legally demarcated area that is bounded or utilizes signage to safely account for the ingress and egress of members, patrons, and guests who will be within the PODA and also be permitted to carry liquor, wine, and nonintoxicating beer or nonintoxicating craft beer on and off of the qualified permit holders' licensed premises and within the PODA when contained in an approved non-glass container (PODA cup). The PODA's floorplan does comprise a separate licensed premises authorized only for the lawful consumption of liquor, wine, and nonintoxicating beer or nonintoxicating craft beer throughout the licensed premises when lawfully purchased from a qualified permit holder;

3.4.12.a.10. Meet and be subject to all other applicable license requirements;

3.4.12.a.11. Provide a plan to prevent members, guests, and patrons from bringing, consuming, or selling alcohol not in an approved non-glass container in the PODA;

3.4.12.a.12. Obtain approval from the municipality and the commissioner of a non-glass container, not greater than 18 fluid ounces, for the sale and serving of liquor, wine, and nonintoxicating beer or nonintoxicating craft beer; provided that such cups must bear an approved logo for the PODA to correctly identify the container as PODA approved;

3.4.12.a.13. If a Class S, Class S1, Class S2, or Class S3 licensee, obtain written approval of all Class S4 and Class S4N qualified permit holders, if any, in the PODA in order to conduct their event on and during the PODA and subject to all PODA requirements, including use of PODA cups; and

3.4.12.a.14. Use an age verification system approved by the commissioner.

3.4.12.b. Class S, Class S1, Class S2, Class S3, Class S4, or Class S4N licensee may operate simultaneously with the qualified permit holders in a PODA subject to the requirements in sub-section 3.4.12.

3.4.12.c. A municipality shall be responsible for the enforcement of any criminal violations occurring in a PODA and shall report such violations to commissioner for a determination of any violation of W. Va. Code §11-16-1 et seq. and W. Va. Code §60-1-1 et seq.

3.4.12.d. The commissioner shall enforce any violations of W. Va. §11-16-1 et seq. and W. Va. Code §60-1-1 et seq. committed by qualified permit holders against their permit and their Class A, Class S, Class S1, Class S2, Class S3, Class S4, or Class S4N license.

3.4.12.e. A qualified non-profit permit holder or Class S4N permit shall:

3.4.12.e.1. Have an approved outdoor location that operates solely in a PODA created by a municipal ordinance as set forth in W. Va. Code §8-12-26, and provide the commissioner a copy of the certified ordinance from the municipality, and operate only on dates and times designated within for the operation of the PODA;

3.4.12.e.2. Apply to the commissioner for the special S4N permit prior to operating in an approved PODA on an application provided by the commissioner which will provide verification of non-profit corporate status with the West Virginia Secretary of State per W. Va. Code §31E-1-101 et seq.;

3.4.12.e.3. Pay the fee specified in sub-division 3.4.1.b.7. Note, the annual one-time permit covers as many approved events at as many approved PODA locations (subject to municipal approval) that can be held during the permit annual time period;

3.4.12.e.4. Be in compliance with all state and federal laws and be in good standing with the commissioner;

3.4.12.e.5. Provide the dates, days, and hours of operation of all events to be held in any statewide authorized and approved PODA between July 1 of the application year and June 30 of the year following the application year within the dates of operation of the PODA within that timeframe: Provided, That the S4N permit applicant may list future dates within the permit annual time period as to be determined so long as the qualified non-profit permit holder notifies the commissioner of the specific future event dates not later than 60 days prior to the event.

3.4.12.f. A qualified permit holder that is separately authorized for an outdoor dining area, outdoor street dining area, or sidewalk dining area may continue to operate those areas in conjunction with the PODA subject to the commissioner's requirements. Furthermore, where a municipality has authorized sidewalk dining areas by ordinance, a qualified permit holder has obtained a sidewalk dining permit from the municipality and the Commissioner, and additionally the municipality has authorized by ordinance that a qualified permit holder in the PODA may provide for the lawful sale, service, and tendering of alcohol (such alcohol as authorized for sale by the licensee’s license) from an approved sidewalk dining area in approved PODA cups to patrons, and the qualified permit holder has added the sidewalk dining area as a part of its WVABCA floorplan comprising its licensed premises, then such qualified permit holder may conduct such lawful sales, service, and tendering of alcohol (such alcohol as authorized for sale by the licensee’s license) from the sidewalk dining area without the dining requirement for such to-go alcoholic beverage sales.

3.4.12.g. A licensee permitted under this section is subject to all other provisions of W. Va. Code §60-7-1 et seq., and the rules and orders of the commissioner: Provided, That the commissioner may, by rule or order, allow certain waivers or exceptions with respect to those provisions, rules, or orders as required by the circumstances of for the operation of qualified permit holders in each PODA. The commissioner may revoke or suspend immediately any permit issued under this section prior to any notice or hearing, notwithstanding W. Va. Code §60-7-13a of this code: Provided, however, That under no circumstances may the provisions of W. Va. Code §60-7-12 of this code be waived or an exception granted with respect thereto.

3.5. Bond. - No license will be issued until the applicant has executed a bond in the penal sum of $5,000.00, payable to the State of West Virginia. The surety on the bond shall be executed by a corporate surety authorized to transact business in the State of West Virginia, which bond will be conditioned on the payment of all fees prescribed by law and on the faithful performance of, and compliance with the provisions of W. Va. Code §60-7-1 et seq. and this rule duly promulgated thereunder, and the same shall be done on Alcohol Beverage Control Commissioner's Form No. ABCA 193. Also required is a bond in the penal sum of $1,000.00, payable to the State of West Virginia for the same surety as above for Nonintoxicating Beer Bond and will be submitted on Alcohol Beverage Control Commissioner’s Form No. ABCA-194 Nonintoxicating Beer Bond.

3.6. License not transferable. - A license issued under the provision of this rule will be valid only for the organization named to conduct a private club on the premises thereon described and is not transferable. If there is a change in ownership, the new owners must make application as prescribed, then such violation shall constitute grounds for revocation of their license that they are then operating under.

3.7. License application form. - The application form for a license to sell alcoholic liquors by any private club type is available from the Commissioner or on the ABCA website at www.abca.wv.gov.

3.8. Dual licensing. –

3.8.1. A private coliseum or center may be dually licensed with a private fair festival to conduct a temporary special event subject to the requirements in this section.

3.8.1.a. A private coliseum or center may permit a private fair and festival licensee within, or on the private coliseum or center licensee's licensed premises, in order to create tourism opportunities that will promote brewers, resident brewers, wineries, farm wineries, distilleries, mini-distilleries, and micro-distilleries.

3.8.1.b. A private coliseum or center licensee may host a special event for a private fair and festival licensee on the licensee's licensed premises if both licensees are in good standing with the commissioner and submit to the commissioner the temporary floorplan revisions of the private coliseum or center in which the special event would be held to comprise the special event's lawful premises, which shall only include spaces in buildings or rooms of the private coliseum or center's licensed premises.

3.8.1.c. By written contractual agreement between the private coliseum or center licensee and the private fair and festival licensee, the parties shall agree that the private coliseum or center maintains control of its licensed premises, but for a set contracted rental time period. The private fair and festival licensee shall safely account for the ingress and egress of the stated members and guests who will be attending the special event at the licensed premises. During the contracted rental time period, the private fair and festival licensee is wholly responsible and liable for the proper sale and serving of alcoholic liquors and nonintoxicating beer in the area designated as the private fair and festival's temporary floorplan. The private fair and festival's temporary floorplan shall comprise the private fair and festival's licensed premises for the temporary special event, which is authorized for the lawful sale, service, and consumption of alcoholic liquors and nonintoxicating beer throughout the private fair and festival's licensed premises during this dually licensed temporary special event.

3.8.1.d. The private fair and festival's licensed premises dually shared and licensed with the private coliseum or center shall:

3.8.1.d.1. Have facilities to prepare and serve food and alcohol;

3.8.1.d.2. Have adequate restrooms and sufficient building facilities for the expected number of members and guests attending the event;

3.8.1.d.3. Comply with all other requirements of its license in this article; and

3.8.1.d.4. Comply with health, fire, safety, and zoning requirements.

3.8.1.e. There is no limit on the number of private fair and festivals that may be held at a private coliseum or center.

3.8.2. The ability for a private outdoor designated area as defined in W. Va. Code §8-12-26 and §60-7-8g to simultaneously have multiple qualified permit holders as defined in W. Va. Code §60-7-1 et seq., is expressly authorized.

3.9. Self-pour automated systems for nonintoxicating beer, hard cider, and wine for private club type licensees.

3.9.1. A private club may apply to operate a WVABCA approved self-pour automated system that utilizes a self-pouring computerized system for pouring nonintoxicating beer, hard cider, or wine that is activated by a payment card issued by the private club licensee for use:

3.9.1.a. by the licensee’s employee who is authorized by law to serve alcoholic beverages; or

3.9.1.b. by a person or patron whom the licensee or its employee has verified to be 21 years of age or older who displays a valid government issued identification that matches the name on the payment card.

3.9.2. Upon submission of materials detailing the specifications and safeguards of self-pouring automated system, the WVABCA will approve the system or reply back to the licensee submitting the system with problems with the system with respect to W. Va .Code §60-7-3.

3.9.3. A self-pour automated system must account for the price differential and the ounce differential between and among the various nonintoxicating beers, hard ciders, and wines being self-poured. If a system is unable to calculate the system for the ounce differential in a wine, a separate card may be used for wine self-pouring only.

3.9.3.a. A self-pouring automated system may not dispense a serving of more than 32 ounces of nonintoxicating beer before the payment card is reactivated and the person is re-verified to be over 21 years of age and match the name on the payment card to the government issued identification.

3.9.3.b. A self-pouring automated system may not dispense a serving of more than 32 ounces of hard cider before the payment card is reactivated and the person is re-verified to be over 21 years of age and match the name on the payment card to the government issued identification.

3.9.3.c. A self-pouring automated system may not dispense a serving of more than 10 ounces of wine before the payment card is reactivated and the person is re-verified to be over 21 years of age and match the name on the payment card to the government issued identification.

3.9.3.d. As submitted and approved, the WVABCA will maintain a list of approved self-pour automated systems on its website to assist licensees in selection of approved systems.

3.9.4. No liquor may be served through a self-pour automated system and such conduct is subject to the penalties in this rule.

W. Va. Code R. § 175-2-4 Operation of Private Club Types

4.1. Sale to members and guests. - No licensee is authorized to sell alcoholic liquor or nonintoxicating beer for consumption on the premises of said licensee except to its members and their guests, while in the company of a member, and said alcoholic liquors must have been purchased from the West Virginia Alcohol Beverage Control Commissioner. No open container or mixed alcoholic liquor drink, nonintoxicating beer or nonintoxicating craft beer, or wine, may be carried into or out of any type of private club or any premises licensed by the Commissioner, except as provided in the Code and this rule.

4.2. Age for purchase of alcoholic beverages. - No licensee shall sell any alcoholic beverage or nonintoxicating beer to individuals below the age of 21 years. The licensee must verify an individual’s age by requiring proof of age from at least one of the following documents certifying the age and depicting the identity of the holder of the document:

4.2.1. A valid West Virginia driver's license showing that the holder is at least 21 years of age and the photograph on the license matches the holder.

4.2.2. A valid West Virginia Commercial Driver’s license (CDL) showing that the holder is at least 21 years of age and the photograph on the license matches the holder.

4.2.3. A valid West Virginia Department of Motor Vehicles (WV DMV) identification or a valid West Virginia Mobile ID issued by the WV DMV showing that the holder is at least 21 years of age and the photograph on the identification or WV Mobile ID matches the holder.

4.2.3.a. In order to accept a valid West Virginia Mobile ID, a licensee must download a West Virginia DMV approved reader/verifier application or "APP". Approved WV DMV reader/verifier APP vendors include, but are not limited to Credence mID, Idemia (Mobile ID Verify), TapID, and any other WV DMV approved reader/verifier APP vendors. Note, any other digital identification or any other photograph/copy of an identification is not an acceptable form of identification.

4.2.3.b. Utilizing a WV DMV approved reader/verifier APP that has age verification, the licensee must first confirm the validity of a holder’s WV Mobile ID. A holder would need to share data with the licensee which at minimum includes their name, photo, and birthdate to complete the validation process. If a holder chooses to not share the pertinent data with the licensee, then the licensee cannot complete a sale of alcohol using the WV Mobile ID.

4.2.3.c. Upon a holder sharing the data set forth in section 4.2.3.b., a licensee using a WV DMV approved reader/verifier APP with age verification shall confirm the holder's WV Mobile ID is valid. Simultaneously, the WV DMV approved reader/verifier APP with age verification will verify if the holder is 21 years of age or over, or that the holder is not 21 years of age or over. Additionally, the licensee must verify the photograph on the WV Mobile ID matches the holder before completing the sale of any alcohol to a holder that is 21 years of age or older. If a holder's purported WV Mobile ID is not confirmed as valid or the holder is not 21 years of age, then the licensee cannot complete the sale of alcohol. Note, the licensee using a WV DMV approved reader/verifier APP with age verification remains responsible to confirm the proper age and identity of the holder, as with any other valid form of identification.

4.2.4. A valid driver's license from another state showing that the holder is at least 21 years of age and the photograph on the license matches the holder may be accepted if there is no indication or evidence that the license has been altered.

4.2.5. Any other valid means of satisfactory proof with picture identification showing the holder to be at least 21 years of age and the photograph on the document matches the holder, such as a valid government issued passport, United States military identification, United States VISA documents, or a United States issued permanent resident card.

The failure to produce satisfactory proof of age with a valid form of identification upon demand requires the licensee to refuse to sell alcoholic beverages to the individual

4.3. Age of manager. - No licensee whose manager is under the age of 21 years shall be eligible for license.

4.4. Inspection. - The licensee shall at reasonable times permit the immediate inspection of the licensed premises by the Commissioner, in order to ensure that the laws and rules of the State of West Virginia are enforced. Upon the presentation of credentials the licensee will allow the Commissioner immediate access to the licensed premises, and there shall be no occasion for delay in the conduct of such inspection. No licensee shall personally or by an agent or employee hinder or interfere with an inspection of the licensed premises nor shall any licensee allow patrons or others to hinder or interfere with the inspection.

Any evidence of a violation found during an inspection will be seized and impounded by the Commissioner and shall be admissible into evidence to prove such violation.

4.5. Posting license, door markers, and signage. - Each licensee shall post:

4.5.1. All licenses issued to the licensee pursuant to Chapter 60 of the West Virginia Code in a conspicuous area inside the licensed premises.

4.5.2. At, above, or on the licensee’s main entrance to its private club in letters no higher than 6 inches, a statement “ABCC License No. _________” which lists the license’s license number in the blank space.

4.5.3. In an open and prominent place a blood-alcohol chart in the form prescribed by W. Va. Code §60-6-24 as provided by the Commissioner.

4.5.4. In an open and prominent place the fetal alcohol syndrome warning of birth defects in the manner prescribed by W. Va. Code §60-6-25 in the form as provided by the Commissioner.

4.5.5. In each public restroom the human trafficking notice required by W. Va. Code §15A-2-5.

4.6. Licensee's purchases of alcoholic liquors. - After the granting of any type of private club license, each holder shall purchase alcoholic liquors for resale from a retail liquor outlet. Any private club license type may purchase alcoholic liquors only from the retail liquor outlet in whose market zone it is located or from a retail liquor outlet located in a market zone that is contiguous to the market zone in which the private club is located. Upon a showing of good cause to the Commissioner, any type of private club will be authorized to purchase alcoholic liquors from any retail liquor outlet within the State. Whenever the ABCA continues to operate a retail liquor outlet in a market zone for which no retail liquor outlet license has been issued, all private clubs located in that same market zone are required to purchase all alcoholic liquors from such ABCA licensed retail liquor outlet.

4.7. Hours for sale of alcoholic beverages. - No licensee shall sell, give or dispense alcoholic liquor or nonintoxicating beer, or permit the consumption thereof, on any licensed premises or in any rooms directly connected therewith between the hours of 3:00 a.m. and 6:00 a.m. on any Sunday: Provided, That alcohol sales may not begin until 1:00 p.m. in a county that has voted to forbid alcohol sales until that time, as provided in W. Va. Code §7-1-3ss; nor shall any licensee sell, give, or dispense alcoholic liquors or nonintoxicating beer, or permit the consumption thereof, on any licensed premises or in any rooms directly connected therewith, between the hours of 3:00 a.m. and 6:00 a.m. on any weekday. A private resort hotel holding a license issued pursuant to W. Va. Code §60-7-1 et seq. may sell, tender, or dispense nonintoxicating beer, wine, or alcoholic liquors in or on the licensed premises when also licensed under W. Va. Code §29-22A-1 et seq. and W. Va. Code §29-22C-1 et seq. or W. Va. Code §29-25-1 et seq. during hours of operation authorized by those provisions.

4.8. Hours of operation. - The licensed premises of all private clubs shall be closed for operation and cleared of all members and guests 30 minutes after the hours of sale of alcoholic liquors and nonintoxicating beer have expired, except for: (i) a private resort hotel holding a license issued pursuant to W. Va. Code §60-7-1 et seq. may sell, tender, or dispense nonintoxicating beer, wine, or alcoholic liquors in or on the licensed premises when also licensed under W. Va. Code §29-22A-1 et seq. and W. Va. Code §29-22C-1 et seq. or W. Va. Code §29-25-1 et seq.; (ii) members and guests staying at a private resort hotel, but the members and guests must clear any bar and restaurant areas 30 minutes after the hours of sale of alcoholic liquors and nonintoxicating beer have expired; and (iii) members and guests staying at a private hotel, but the members and guests must clear any bar and restaurant areas 30 minutes after the hours of sale of alcoholic liquors and nonintoxicating beer have expired. Employees of the licensee shall leave the licensed premises no later than one hour after the premises are closed for operation. Licensed premises shall not be occupied by members and guests any sooner than 30 minutes prior to the hours of sale of alcoholic liquors and nonintoxicating beer, except for: (i) a private resort hotel holding a license issued pursuant to W. Va. Code §60-7-1 et seq. may sell, tender, or dispense nonintoxicating beer, wine, or alcoholic liquors in or on the licensed premises when also licensed under W. Va. Code §29-22A-1 et seq. and W. Va. Code §29-22C-1 et seq. or W. Va. Code §29-25-1 et seq.; (ii) members and guests staying at a private resort hotel where the members and guests may not enter any bar and restaurant areas until 30 minutes before the hours of sale of alcoholic liquors and nonintoxicating beer; and (iii) members and guests staying at a private hotel where the members and guests may not enter any bar and restaurant areas until 30 minutes before the hours of sale of alcoholic liquors and nonintoxicating beer. Employees may not enter any bar and restaurant serving areas until one hour before the hours of sale of alcoholic liquors and nonintoxicating beer.

4.9. Doors. - During the hours for sale of alcoholic liquors and nonintoxicating beer, all doors to and from the licensed premises shall be closed except for the ingress and egress of the members and their guests. However, for legally demarcated deck or other outdoor (not enclosed, having no walls, roof or combination of walls and roof) area of any type of licensed private club in good standing with the State and the ABCA and that meets the requirements of section 2.18. of this rule, the Commissioner may approve, on a case-by-case basis, a limited exception for doors that access only the legally demarcated deck or other outdoor area to be open during the hours of 11 a.m. to midnight. All other doors of entrance and exit of any type of private club obtaining this privilege would still remain closed except for ingress and egress of patrons. Prior to any consideration of this open-door limited exception by the Commissioner, the county or municipality where the private club is located must have authorized this open door limited exception within an ordinance, zoning, or other written authorization by the governing body of a county or municipality. Any type of private club violating this section’s requirements shall be subject to the penalties in the Code and rules and cancellation of this privilege, and further all private clubs operating under this open door limited exception shall be in compliance with all state, county, and local noise ordinances and all ordinances or requirements affecting the peace, good order, and quietude of the community. Further, the open-door limited exception may be cancelled for any type of private club that fails to stay in good standing with the State and ABCA or has other violations of the Code and the rules.

4.10. Suitability of kitchen and dining facilities.

4.10.1. Prior to the issuance of any private club license, all kitchen and dining facilities are to be checked by agents or employees of the Commissioner for their suitability in serving food to their members and their guests. Equipment in the kitchen shall be capable of preparing a freshly cooked meal on the licensed premises. In addition, licensees shall have at least enough food to meet any dollar value for the Licensee’s private club type and serve 1/4 the number of seats in any private club at any one time.

4.10.2. A suitable kitchen shall contain equipment as follows, unless otherwise specified by the requirements for licensure:

4.10.2.a. A private club bar that operates primarily as a bar must have a kitchen with at least:

4.10.2.a.1. One range with oven and no fewer than two burners, or a microwave oven which has a variable control and a separate range with two burners;

4.10.2.a.2. One sink with hot and cold running water;

4.10.2.a.3. One cold storage unit or refrigerator at least 17 cubic feet in size;

4.10.2.a.4. Cooking utensils and pots and pans sufficient for preparation of the required meals.;

4.10.2.a.5. Food fit for human consumption available to be served during all hours of operation on the licensed premises; and

4.10.2.a.6. Maintain, at any one time, food inventory capable of being prepared in the private club bar’s kitchen. In calculating the food inventory, the Commissioner shall include television dinners, bags of chips or similar products, microwavable food or meals, frozen meals, prepackaged foods, or canned prepared foods.

4.10.2.b. For a private club restaurant that operates primarily as a restaurant and full kitchen with at least:

4.10.2.b.1. Ovens and four-burner ranges, and a microwave oven or four single or two double burner hot plates will not meet the requirements; 4.10.2.b.2 One - two bowl sink with hot and cold running water;

4.10.2.b.3. Refrigerators or freezers, or some combination of refrigerators and freezers, greater than 50 cubic feet, including a walk-in refrigerator or freezer;

4.10.2.b.4. Cooking utensils and pots and pans sufficient for preparation of the required meals;

4.10.2.b.5. Freshly prepared food fit for human consumption available to be served during all hours of operation on the licensed premises; and

4.10.2.b.6. Maintain, at any one time, fresh food inventory capable of being prepared in the private club restaurant’s full kitchen. In calculating the food inventory, the Commissioner may not include television dinners, bags of chips, or similar products, microwavable meals, frozen meals, prepackaged foods, or canned prepared foods;

4.10.2.c. All other private club types shall meet any kitchen and food requirements set forth in section 2 of this rule or, if not specified, shall meet the kitchen and food requirements of a private club restaurant.

4.10.3. A suitable dining facility shall include food apparatus, such as: Plates (other than of paper or similar construction), metal knives, forks, and spoons, drinking glasses and cups, and as otherwise determined by the Commissioner, in sufficient quantities to serve no fewer meals than 1/4 the number of membership seats in any type of private club.

4.10.4. Meals shall be available from opening of the club until closing. Limited menus will be acceptable after 10:00 PM., for a private club bar, such as cold sandwiches which can be prepared in advance and refrigerated for use after 10:00 PM is one example of an acceptable limited menu.

4.11. Age of membership. - No licensee shall admit to membership any individual below the age of 21 years, and no individual below the age of 18 years shall be permitted on the licensed premises of a licensee as a guest unless accompanied by the individual’s parent or legal guardian, except that a private club restaurant may permit an individual or individuals below the age of 18 years when such individual is seated in the restaurant area of the private club restaurant, and not the bar area.

4.12. Lighting of licensed premises. - The interior of all licensed premises shall be adequately lighted at all times while the licensee is conducting business or has employees on such premises.

4.13. Purchase and delivery of alcoholic beverages.

4.13.1. Retail Liquor Outlets Payments For Purchases. - When any licensed private club purchases alcoholic liquors from a retail liquor outlet authorized by W. Va. Code §60-3A-1 et seq., money orders, certified checks, cashier’s checks, traveler's checks, and cash are acceptable for payment of a purchase. In addition, a personal check from a licensed private club will be treated as cash if a guaranty bond issued from a bonding company licensed to do business in West Virginia is posted in advance with the Commissioner in a sum sufficient to bond the total amount of such purchase(s); provided that such purchase(s) do not exceed the total of the bond and in this regard, purchases, insofar as the bond is concerned shall be treated as cumulative until such time as the check(s) clears and is honored by the bank upon which the check is drawn.

4.13.1.a. Any licensed private club may, in addition to the method provided above, purchase by personal check if a line of credit issued by a duly organized national or State banking institution is posted in advance with the Commissioner: Provided, that such purchase(s) may not exceed the total of the posted line of credit and in this regard and purchases, insofar as the line of credit is concerned, shall be treated as cumulative until such time as the check or checks clear and be honored by the making bank or the bank upon which the check or checks are drawn.

4.13.1.b. Application for the purpose of purchasing by personal check when guaranteed by a guaranty bond or line of credit shall be obtainable from the Commissioner at his office in Charleston, West Virginia.

4.13.1.c. In the event that any check is returned for insufficient funds then the Commissioner shall notify the bonding company or bank issuing the line of credit and make demand for payment and they shall be charged a handling fee of $50.00, such sum to be charged in addition to the amount shown due on the face of the subject check.

4.13.2. Credit by retail liquor outlets to private clubs forbidden. - A retail liquor outlet is authorized to establish its policy of negotiable instruments allowed to be utilized for payment of purchases by a duly licensed private club. No credit may be extended by the retail liquor outlet to any type of duly licensed private club. A validly issued credit card may be determined by a retail liquor outlet to be an acceptable negotiable instrument.

4.13.3. Any type of duly licensed private club may, by contract approved by the Commissioner, receive deliveries of liquor from a retail liquor outlet. For the purposes of this activity the provisions of W. Va. Code §60-6-12 and §60-6-13 are not applicable. Without an approved delivery contract, the private club type is subject to penalties and sanctions in the Code and this rule.

4.13.4. Any licensed retail liquor outlet that sells liquor to any private club license type that is not located in its market zone or the next contiguous market zone is subject to penalties and sanctions in the Code and this rule.

4.14. Operation of a private fair and festival – Class S2 license. - To be eligible for the license authorized by this subsection, the private fair and festival or other event shall:

4.14.1. Be sponsored, endorsed, acknowledged, or approved by the governing body or its designee of the county or municipality in which the private fair and festival or other event is located;

4.14.2. Make application, including a floor plan, age verification policies and sales policies, with the commission at least 15 calendar days prior to the private fair, festival, or other event;

4.14.3. Be approved by the Commissioner to operate the private fair, festival, or other event.

4.14.4. Be for a duration of no more than 10 consecutive calendar days.

4.14.5. Offer to sell, sell, and serve nonintoxicating beer and nonintoxicating craft beer sold, furnished, tendered, or served pursuant to the license created by this section, which must be purchased from licensed distributors that service the area in which the private fair and festival is held or from a resident brewer acting in a limited capacity as a distributor, all in accordance W. Va. Code §11-16-1 et seq.

4.14.5.a. Additionally, nonintoxicating beer or nonintoxicating craft beer may be sold and served by the drink or glass, or by the bottle or can for on-premises consumption and in sealed bottles or cans for off-premises consumption if the nonintoxicating beer and nonintoxicating craft beer is being sold by an authorized brewer or resident brewer, as set forth in W. Va. Code §11-16-6a, who manufactures the nonintoxicating beer or nonintoxicating craft beer in this state.

4.14.5.b. These on-premises and off-premises consumption sales shall be made pursuant to a written agreement between the private fair and festival and an authorized brewer or resident brewer. Prior to the start of the private fair or festival, an authorized brewer or resident brewer who agrees to offer on-premises and off-premises consumption sales of nonintoxicating beer or nonintoxicating craft beer from a booth or other facility on the private fair and festival's licensed premises must meet the requirements of W. Va. Code §11-16-6a(d) of this code. The written agreement with each authorized brewer or resident brewer shall account for lawful sales of nonintoxicating beer and nonintoxicating craft beer sold for off-premises consumption as set forth in W. Va. Code §11-16-1 et seq.

4.14.5.c. The authorized and approved brewer, resident brewer, or its licensed representatives may give or sell approved promotional items to private fair and festival members and guests, but not to the private fair and festival's volunteers, independent contractors, or employees.

4.14.6. Offer to sell, sell, and serve wine sold, furnished, tendered, or served pursuant to the license created by this section which must be purchased from a licensed wine distributor, winery, or farm winery in accordance with W. Va. Code §60-8-1 et seq.

4.14.6.a. Wine or hard cider may be sold and served for on-premises consumption by the drink or glass, or by the bottle when consumed by the glass and by the sealed bottle for off-premises consumption by the sealed bottle if the wine or hard cider is being sold by an authorized winery or farm winery, as set forth in W. Va. Code §60-4-3b and W. Va. Code §60-8A-5, who manufactures that wine or hard cider in this state.

4.14.6.b. The on-premises and off-premises consumption sales shall be made pursuant to a written agreement between the private fair and festival and an authorized winery or farm winery. An authorized winery or farm winery which agrees to offer for sale and service its wine or hard cider for on-premises consumption by the drink or glass, or by the bottle when consumed by the glass pursuant to W. Va Code §60-7-1 et seq. and for off-premises consumption sealed bottle sales from a booth or other facility on the private fair and festival's licensed premises prior to the start of the private fair or festival shall meet the requirements of W. Va. Code §60-4-3b and §60-8A-5, as applicable. The written agreement with each authorized winery or farm winery shall account for lawful sales of wine or hard cider sold for on premises or off-premises consumption as set forth in W. Va. Code §60-8-1 et seq. and W. Va. Code §60-8A-1 et seq., as applicable.

4.14.6.c. The authorized and approved winery, farm winery or its licensed representatives may give or sell approved promotional items to private fair and festival members and guests, but not to the private fair and festival's volunteers, independent contractors, or employees.

4.14.7. Offer to sell, sell, and serve liquor sold, furnished, tendered, or served pursuant to the license created by this section which must be purchased from a licensed retail liquor outlet in the market zone or contiguous market zone where the private fair or festival is occurring, all in accordance with W. Va. Code §60-3A-1 et seq. and W. Va. Code §60-7-1 et seq.

4.14.7.a. Liquor may be sold and served for on-premises consumption by the drink and off-premises consumption by the sealed bottle, if the liquor is being sold by an authorized distillery, mini-distillery, or micro-distillery, as set forth in W. Va. Code §60-4-3a, who manufactures its liquor in this state. Off-premises consumption sales shall comply with W. Va. Code §60-3A-17 and W. Va. Code §60-4-3a(c) shall not apply to these sales.

4.14.7.b. The on-premises and off-premises consumption sales shall be made pursuant to a written agreement between the private fair and festival and an authorized distillery, mini-distillery, or micro-distillery. An authorized licensed distillery, mini-distillery, or micro-distillery who agrees to offer off-premises consumption sales of their manufactured liquor by the bottle from a booth or other facility on the private fair and festival's licensed premises prior to the start of the private fair, festival, or other event must meet the requirements as set forth in W. Va. Code §60-4-3a. An authorized licensed distillery, mini-distillery, or micro-distillery which agrees to offer on-premises consumption sales of its manufactured liquor by the drink or glass from a booth or other facility on the premises of the licensed fair and festival must meet the requirements set forth and in W. Va. Code §60-7-1 et seq. The written agreement with each authorized distillery, mini-distillery, or micro-distillery shall account for lawful sales of liquor sold for off-premises consumption as set forth in W. Va. Code §60-3A-1 et seq.

4.14.7.c. An authorized and approved distillery, mini-distillery, micro-distillery or its licensed representatives may give or sell approved promotional items to private fair and festival members and guests, but not to the private fair and festival's volunteers, independent contractors, or employees.

4.14.8. Utilize bona fide employees, independent contractors, volunteers, or in limited circumstances licensed representatives to sell, furnish, tender, or serve the nonintoxicating beer, nonintoxicating craft beer, wine, or liquor. Licensed representatives of an authorized and approved brewer, resident brewer, beer distributor, wine distributor, wine supplier, winery, farm winery, distillery, mini-distillery, micro-distillery, and liquor broker representatives may attend a private fair and festival and discuss their respective products and may engage in the selling, furnishing, tendering, or serving of any nonintoxicating beer, nonintoxicating craft beer, wine, hard cider, or liquor. However, licensed representatives of a brewer, resident brewer, winery, farm winery, distillery, mini-distillery, or micro-distillery that has agreed in writing to conduct sampling, on-premises consumption sales, and off-premises consumption sales of their respective licensee's products at the private fair and festival, may discuss their respective products and engage in sampling must do so in accordance with W. Va. Code §11-16-6a, W. Va. Code §60-4-3a, and W. Va. Code §60-4-3b; and the selling of only their respective nonintoxicating beer, nonintoxicating craft beer, wine, hard cider, or liquor products for on-premises consumption or off-premises consumption as specified in this section. All taxes and fees must be paid on lawful sales.

4.14.9. Be subject to all other provisions W. Va. Code §60-7-1 et seq. and the rules and orders of the Commissioner: Provided, that the Commissioner may by rule or order allow certain waivers or exceptions with respect to those provisions, rules, or orders as the circumstances of each private fair and festival require and has the right to revoke or suspend immediately any license issued under this section prior to any notice or hearing, notwithstanding W. Va. Code §60-7-13a: Provided, however, that under no circumstances may the provisions of W. Va. Code §60-7-12 be waived or an exception granted with respect thereto.

4.14.10. Dual licensing is permitted for private fairs and festivals pursuant to W. Va. Code §60-7-2a, including but not limited to a dual licensing simultaneous to any other qualified permit holders as defined in W. Va. Code §60-7-1, et seq.

4.14.11. A private fair and festival licensee who executes a written agreement with a licensed brewer, resident brewer, winery, farm winery, distillery, mini-distillery, or micro-distillery to conduct limited on-premises and off-premises consumption sales shall not have any pecuniary interest, share, or percentage in any sales of sealed nonintoxicating beer, nonintoxicating craft beer, wine, hard cider, or liquor.

4.15. Operation of a private multi-vendor fair and festival. - To be eligible for the license authorized by this subsection, the private multi-vendor fair and festival shall complete the following requirements and additional requirements set forth in W. Va. Code §60-7-8c and W. Va. Code §60-7-1 et seq:

4.15.1. Be sponsored, endorsed, or approved by the governing body or its designee of the county or municipality in which the private multi-vendor fair and festival or other event is located. The Commissioner may make a form available;

4.15.2. Jointly apply to the Commissioner for the special license at least 15 days prior to the private fair, festival, or other event; and

4.15.3. Be approved by the Commissioner to operate the private multi-vendor fair, festival, or other event. In no event, may members or guests carry alcoholic liquors or nonintoxicating beer or nonintoxicating craft beer on or of the private multi-vendor fair and festival’s licensed floorplan;

4.16. Operation of a one-day charitable rare, antique, or vintage liquor auction.

4.16.1. For purpose of this section: “Auction or auctioning” means any silent, physical act, or verbal bid auction, where the auction requires in-person bidding at a licensed private club or online internet-based auction bidding, with bidders present at the licensed private club during the nonprofit auction, through a secure internet-based application or website.

4.16.2. To be eligible for the license authorized by this subsection, the one-day charitable rare, antique, or vintage liquor auction shall:

4.16.2.a. Be a one-day special license issued to any licensed private club type in partnership with a duly organized and federally approved nonprofit organization or entity to conduct a charitable auction of rare, antique, or vintage liquor, as determined by the Commissioner, on the licensed private club’s licensed premises for consumption off-premises when raising money for athletic, charitable, educational, scientific, or religious purposes;

4.16.2.b. Not receive more than 12 licenses per any type of private club under this section per year;

4.16.2.c. Have the licensed private club and nonprofit jointly complete an application, which may require information relating to the date, time, place, floorplan of the charitable event and any other information the Commissioner may require, that least 15 days prior to the event;

4.16.2.d. Include with the application a written signed and notarized statement that at least 80% of the net proceeds from the charitable event will be donated directly to the nonprofit. The Commissioner may audit the licensed private club and nonprofit to verify the 80% requirement has been met;

4.16.2.e. Be in good standing with the Commissioner, and the applicants must receive the Commissioner’s approval prior to the charitable event in accordance with W. Va. Code §60-7-8b and W. Va. Code §60-7-1 et seq.;

4.16.2.f. Not deliver, mail, or ship sealed or unsealed rare, antique, or vintage liquor bottles;

4.16.2.g. Require the winning bidder of the auctioned rare, antique, or vintage liquor to pay and receive the sealed rare, antique, or vintage liquor bottle before the conclusion of the event; and

W. Va. Code R. § 175-2-5 Violations

5.1. Prohibited acts.

5.1.1. No licensee, nor any agent, employee, or member thereof, shall on such licensee's premises:

5.1.1.a. Sell, offer for sale, tender, or serve any alcoholic liquors other than by the individual drink, or nonintoxicating beer other than from the original package or container, exceptions to liquor by the drink are in the following circumstances:

5.1.1.a.1. Any private club who has: applied (on a form provided by the Commissioner), paid the bottle service fee, and been approved by the Commissioner, may sell or serve liquor by the bottle to two or more persons for consumption on the licensed premises only in a designated area, as required by the Commissioner, and any liquor bottle sold by such a private club shall be sold at retail for personal use, and not for resale, to a person for not less than 300% of the private club’s cost, and no such liquor bottle shall be removed from the licensed premises by any person or the licensee and such bottle must be removed from the licensed premises by being disposed of in the trash and not reused by the licensee.

5.1.1.a.2. A Class A licensee licensed under W. Va. Code §60-7-1 et seq. and W. Va. Code §60-8-1 et seq. may sell or serve wine by the bottle to two or more persons for consumption on the licensed premises only, unless such licensee has obtained a license or privilege authorizing off-premises wine bottle sales when patrons purchase food or a meal.

5.1.1.a.3. Any private club who maintains a written record reflecting daily emptying, cleaning, and sanitizing of a frozen drink machine or other pre-mixed dispensing equipment may sell, furnish, tender, or serve pre-mixed alcoholic liquor consisting of alcoholic liquors, nonalcoholic mixer, and ice that is not in the original container if the pre-mixed alcohol liquor is dispensed from the frozen drink machine or other pre-mixed dispensing equipment: Provided, That such written records are readily available for inspection by the Commissioner and health inspectors and records are retained for at least 3 years.

5.1.1.a.4. Any private club that has obtained a growler license is permitted to break the seal of the original container for the limited purpose of filling a growler or providing complimentary samples as provided in this section. Any unauthorized sale of nonintoxicating beer or nonintoxicating craft beer or any consumption not permitted on the licensee’s licensed premises is also subject to penalties under W. Va. Code §11-16-1 et seq.

5.1.1.b. In so far as these activities are prohibited by law, authorize or permit any disturbance of the peace; or any obscene, lewd, immoral or improper entertainment, conduct, or practice: Provided, that various games, gaming, and wagering conducted by duly licensed persons of the West Virginia State Lottery Commission; charitable bingo games conducted by duly licensed charitable or public service organization (or its auxiliaries), pursuant to W. Va. Code §47-20-1 et seq.; and charitable raffle games conducted by a duly licensed charitable or public service organization (or its auxiliaries), pursuant to W. Va. Code §47-21-1 et seq. are permissible on a licensee’s licensed premises when operated in accordance with the West Virginia Code and Code of State Rules.

5.1.1.b.1. Guidelines for exotic entertainment, conduct, or practice.

5.1.1.b.1.A. Performers in “a state of undress” must be apart and separate from patrons.

5.1.1.b.1.B. There can be no physical contact during a performance between the performers and the patrons or employees of the club. This means no patron or employee may touch a performer.

5.1.1.b.1.C. Actions by the performers may not include the actual accomplishment of any sexual acts, which would be considered inappropriate for public view by the public generally.

5.1.1.b.1.D. All acts during which performers are in a state of undress will take place on stage, which must be separate and apart from patrons and/or employees. Upon leaving the stage, performers must go directly to the assigned dressing room where he or she must dress adequately by covering himself or herself prior to mingling among patrons and other employees.

5.1.1.c. Sell, give away, or permit the sale of, gift to, consumption of or the procurement of any alcoholic liquors or nonintoxicating beer, for any person under the age of 21 years, any person who is mentally incompetent, or any person who is visibly physically incapacitated due to the consumption of alcoholic liquor or nonintoxicating beer or the use of any controlled substance as specified in W. Va. Code §60A-1-1 et seq.

5.1.1.d. Permit the consumption by, or serve, on the licensed premises, any alcoholic liquors or nonintoxicating beer, to any person under the age of 21 years.

5.1.1.e. With the intent to defraud, alter, change, or misrepresent the quality, quantity, or brand name of any alcoholic liquor or nonintoxicating beer.

5.1.1.f. Have a drive-through (including, but not limited to a window, pass through, garage, etc.) or sell or permit the sale of alcoholic liquors, including wine and nonintoxicating beer, through such a drive-through, except that a private club restaurant licensee may request written permission from the Commissioner to operate a drive through window that is located on the licensee’s licensed premises, upon the Commissioner’s approval, the private club restaurant shall be permitted to sell and serve food, non-alcoholic beverages or alcoholic beverages when separately licensed for such sales. Sales of alcoholic beverages, such as nonintoxicating beer, nonintoxicating craft beer, wine, or liquor must accompany the purchase of food or a meal and sales of alcoholic beverages may consist of:

5.1.1.f.1. sealed nonintoxicating beer or nonintoxicating craft beer when in bottles, cans, or beer growlers;

5.1.1.f.2. sealed wine or hard cider whether in bottles, cans, or wine growlers; or

5.1.1.f.3. sealed craft cocktail growlers.

5.1.1.g. Sell, offer for sale, give away, facilitate the use of, or allow the use of carbon dioxide, cyclopropane, ethylene, helium, or nitrous oxide for purposes of human consumption except as authorized by the Commissioner.

5.1.1.h. Employ any person who is less than 16 years of age in any capacity that includes, even incidentally, the selling, furnishing, tendering, serving, or giving of nonintoxicating beer, wine, or alcoholic liquors to any person;

5.1.1.i. Employ any person who is between 16 years of age and younger than 21 years of age who is not directly supervised by a person aged 21 or over in a position where the primary responsibility for such employment is to sell, furnish, tender, serve or give nonintoxicating beer, wine, or alcoholic liquors to any person;

5.1.1.j. Violate any reasonable rule of the Commissioner.

5.1.2. No licensee, nor any agent, servant, or employee of said licensee, may at any time violate any of the foregoing provisions. Any violation by said licensee, agent, servant, or employee shall be grounds for revocation or suspension of its private club license.

5.1.3. Any holder of a private club license who has its license suspended shall cease and desist from any and all operation as a private club during the period of suspension.

5.1.4. A licensee shall notify, in a timely manner, emergency medical services or law enforcement if a licensee knows, or has reason to know, of a life-threatening medical emergency occurring on the licensed premises. In addition to the grounds for revocation, suspension, or other sanction of a license set forth in this section, the Commissioner may, in his or her discretion, revoke, suspend, or otherwise sanction a licensee for failing to comply with the provisions of this subsection.

5.1.4.a. If a life-threatening medical emergency occurs on a licensee’s licensed premises requiring notification of emergency medical services or law enforcement under W. Va. Code §60-7-13(d), the licensee shall notify the Commissioner within 48 hours of the emergency’s occurrence.

5.1.4.b. As used in this section, a life-threatening medical emergency includes, but is not limited to, respiratory distress or cessation of breathing, severe chest pains, shock, uncontrolled bleeding, poisoning, prolonged unconsciousness, overdose, any complaint or observation which indicates significant head or spinal injury, and life-threatening physical injury caused by a crime of violence against the person on or emanating from the licensed premises.

5.1.5. Any licensee who pleads or is found guilty of a criminal citation or guilty of an administrative citation for the sale of hemp products or kratom products to a person under 21 years of age, for the sale of unregistered hemp products or kratom products, or for selling hemp products or kratom products without a Department of Agriculture permit as set forth in W. Va. Code §19-12E-12 and §19-12F-1 et seq., is further subject to all the penalties and sanctions in section 5.3., as determined by the Commissioner.

5.2. Public nuisance. - If it is determined by law that any club which is licensed pursuant to W. Va. Code §60-7-1 et seq. and this rule constitutes a public nuisance to any church, school, hospital, public institution, or otherwise, then such license may be revoked or suspended, the same being at the sound discretion of the Commissioner, until such nuisance is abated.

5.3. Upon a determination by the Commissioner that a licensee has: (i) violated the provisions of W. Va. Code §11-16-1 et seq., Chapter 60 of the West Virginia Code, or this rule; (ii) acted in such a way as would have precluded initial or renewal licensure; or (iii) violated any rule or order of the Commissioner, the Commissioner may impose any one or a combination of the following sanctions:

5.3.1. Revoke the licensee’s license;

5.3.2. Suspend the licensee’s license;

5.3.3. Place the licensee on probationary status for a period not to exceed 12 months; and

5.3.4. Impose a monetary penalty not to exceed $1,000 for each violation, where revocation is not imposed.

W. Va. Code R. § 175-2-6 Hearing and Appeal Procedure

6.1. Order refusing license, suspending, or revoking same. - If the Commissioner refuses to issue a license or suspends or revokes a license, he or she shall make and enter an order to that effect and mail by certified mail, return receipt requested, a copy of the order to the licensee, or serve it as provided for the service of legal process in accordance with the West Virginia Rules of Civil Procedure.

6.2. Petition for hearing. - Any applicant or licensee adversely affected by an order of the Commissioner shall have the right to a hearing before the Commissioner or a person designated by him or her as hearing examiner. A petition in writing requesting a hearing must be served upon the Commissioner within 10 calendar days following the receipt of the order by the applicant or licensee.

6.3. Petition requirements. - The petition for a hearing shall be in writing. An original and one copy of the petition shall be served upon the Commissioner. It shall be complete in itself so as to fully state the issues. No telegram, facsimile transmission, electronic mail, telephone call, letter, or similar communication will be regarded as a petition. The petition must contain the following:

6.3.1. A clear and concise assignment of each error that the petitioner alleges to have been committed by the Commissioner in the determination of a licensee’s violation or denial of application for license, with each assignment of error being shown in separately numbered paragraphs.

6.3.2. A clear and concise statement of fact upon which the petitioner relies as sustaining its assignment of error.

6.3.3. A prayer setting forth the relief sought.

6.3.4. The signature of the petitioner or its officers signing such petition.

6.3.5. A verification by the petitioner.

Form for petition. - A petition for hearing shall be in the form set forth below.

Petition for Hearing To: West Virginia Alcohol Beverage Control Administration Commissioner 900 Pennsylvania Avenue, 4th Floor Charleston, WV 25302 (For Commission Use Only)

Docket No. _______ Date of Order of Suspension or Revocation or Denial of Application for License:

Whether Suspension or Revocation or Denial of Application for License In the Matter of: Petitioner's Business Name Petitioner's ABCA License No.

Address The above named against whom you have issued an order of (Revocation or Suspension or Denial of Application for License), and in support of such petition avers as follows:

First: Your petitioner admits as true and correct all of the determinations made by the Commissioner and set forth in the above order and basis thereof, except the following: (Specify here each error which the petitioner alleges to have been made by the Commissioner.)

Second: (Set forth clear and concise statements of fact upon which the petitioner relies as sustaining the assignment of error.)

Wherefore, your petitioner prays (insert relief sought, i.e., this order be set aside).

State of ___________________)

Business Name ________________________________)

SS Signature of Affiant__________________________)

County Of ____________________________________)

Title ____________, being duly sworn according to law, deposes and says that the facts alleged in this petition, including any sheets attached hereto, are true and affiant is the petitioner or is duly authorized to represent the petitioner.

By: _________________ Sworn to and subscribed before me this __________ day of ________, 20 ___ at ___________. ______________________________ Notary Public My commission expires ___________ Notary Public

6.5. Hearings. - Cost deposit. - The person demanding a hearing shall give security for the cost of the hearing in the amount of $300.00. The cost deposit will be advanced by certified check, cashier's check, or money order and shall accompany the petition demanding a hearing.

6.6. Subpoenas and subpoenas duces tecum. - In all hearings held under W. Va. Code §60-7-1 et seq. and this rule, the evidence of witnesses and the production of documentary evidence may be required through the use of subpoenas and subpoenas duces tecum. Such subpoenas or subpoenas duces tecum may be issued at the request of the Alcohol Beverage Control Commissioner or by the licensee, the same to be issued by either the Commissioner or his duly appointed hearing examiner.

6.6.1. Every such subpoena and/or subpoena duces tecum shall be served at least five calendar days before the return date thereof, either by personal service made by any person 18 years of age or older or by registered mail, but a return acknowledgment signed by the person to whom the subpoena or subpoena duces tecum is directed shall be required to prove service by registered or certified mail.

6.6.2. All subpoenas and subpoenas duces tecum will be issued in the name of the Alcohol Beverage Control Commissioner, but any party requesting their issuance must see that they are properly served. Service of subpoenas and subpoenas duces tecum issued at the insistence of the Alcohol Beverage Control Commissioner are to be the responsibility of the Commissioner. Any person who serves any such subpoena or subpoena duces tecum is entitled to the same fee as sheriffs who serve witness subpoenas for the circuit courts of this State, and fees for the attendance and travel of witnesses shall be the same as for witnesses before the circuit courts of this State W. Va. Code §55-1-1 et seq.

6.6.3. All such fees shall be paid by the Commissioner if the subpoena or subpoena duces tecum is issued, without the request of an interested party, at the insistence of the Commissioner.

6.6.4. All such fees related to any subpoenas or subpoena duces tecum issued at the insistence of a licensee shall be paid by the licensee who asks that such subpoena or subpoena duces tecum be issued, out of the hearing deposit.

6.6.5. All requests by the licensee or the Commissioner for subpoena and subpoena duces tecum shall be in writing and shall contain a statement acknowledging that the requesting party agrees to pay such fees.

6.6.6. Any person receiving a subpoena or subpoena duces tecum issued hereunder shall honor the same as though it was issued by a circuit court of the State and shall appear as witness and/or produce such books, records, or papers in response to the subpoena or subpoena duces tecum. In case of disobedience or neglect of any subpoena or subpoena duces tecum served on any person or the refusal of any witness to testify to any matter regarding which he or she may be lawfully interrogated, the circuit court of the county in which the hearing is being held or the judge thereof in vacation, upon application by the Commissioner, shall compel obedience by attachment proceedings for contempt as in the case of disobedience of the requirements of a subpoena or subpoena duces tecum issued from such circuit court or a refusal to testify therein.

6.7. Stay of suspension or revocation order. - The service of a petition for hearing upon the Commissioner shall operate, other than herein provided, to suspend the execution of any revocation of suspension of a private club license with respect to which a hearing is being demanded except:

6.7.1. An order suspending a license for failure of said license to keep the bond, required by W. Va. Code §60-7-4 in full force and effect.

6.7.2. A suspension or revocation order issued pursuant to Section 4.2. of this rule, and

6.7.3. A suspension order suspending a license in the interest of public safety, as specified in W. Va. Code §60-7-13a.

6.8. Hearing date. - The Commissioner shall set a date for any hearing demanded and notify the person demanding the hearing of the date and time of the hearing.

6.9. Place of hearing. - Hearings will be held in Charleston, West Virginia, unless the Commissioner determines otherwise.

6.10. Continuances. - Hearings will not be delayed by a motion for continuance, unless it is timely made and sets forth good and sufficient cause. Conflicting engagements of counsel or the employment of new counsel will never be regarded as good ground for a continuance, unless set forth in a motion filed promptly after the notice of hearing has been mailed, or unless extenuating circumstances are shown which the Commissioner deems adequate.

6.11. Absence of petitioner, counsel or his representative. - The absence of the petitioner, his legal counsel or his representative at a hearing, after service of notice of time, place and date, shall not be the occasion for delay or continuance. The hearing shall proceed and the case be regarded as having been submitted for decision on the part of the absent petitioner or petitioners.

6.12. Hearing. - The Commissioner may designate a hearing examiner to conduct the hearing.

6.12.1. The petitioner may appear individually, or by legal counsel, or by duly authorized representative. In the absence of the petitioner, written evidence of a representative's agent's authority must be presented to the satisfaction of the Commissioner.

6.12.2. The petitioner or his or her duly authorized representative or agent, may with the approval of the Commissioner, waive the right to a hearing and agree to submit the case for decision upon the petition and record, with or without a written brief. Such waivers and agreements are to be in writing or upon the record.

6.13. Argument and briefs. - Petitioners will be given an opportunity for argument within the time limits fixed by the Commissioner following submission of evidence. The Commissioner may accept briefs in lieu of argument. Briefs must be filed within 10 calendar days after receipt of the record of the hearing or as otherwise specified by the Commissioner or the designated hearing examiner, or as otherwise agreed to by the parties.

6.14. Evidence admissible at hearing. - The Commissioner may admit any relevant evidence, except that he or she shall observe the rules of privilege recognized by law relating to communications and topics. A finding is to be supported by the kind of evidence commonly relied upon by reasonably prudent men in the conduct of their affairs, whether or not the evidence would be admissible before a jury. The Commissioner may exclude any evidence, which is irrelevant, unduly repetitious, or lacking in substantial probative effect.

6.15. Record of proceedings. - There shall be a record made at all hearings held pursuant to W. Va. Code §60-7-1 et seq. and this rule.

6.16. Commissioner's decision. - After the conclusion of the hearing or within 10 calendar days of receipt of the transcript, the person designated by the Commissioner as hearing examiner shall prepare a recommended decision supported by findings of fact and conclusions of law affirming, modifying, or vacating the earlier order of the Commissioner. Thereafter, the Commissioner, within 10 calendar days of receipt of the recommended decision, shall either accept or reject the recommended decision. If he or she accepts the decision, he or she shall sign and acknowledge the same as his or her own after having reviewed the transcript and all exhibits attached and affixed thereto. If he or she rejects the decision, he or she shall, within 10 calendar days of receipt of the recommended decision, prepare a decision setting forth his or her own findings of fact and conclusions of law. In either event, the order signed by the Commissioner shall be final unless vacated or modified upon judicial review. A copy of the order shall be served upon each party to the hearing and attorneys of record, if any, in person or by registered or certified mail.

6.17. Appeal to court. - An appeal may be taken by the applicant or licensee to the Intermediate Court of Appeals as set forth in W. Va. Code §51-11-4(a)(4), if filed within 30 calendar days after the charge upon which the party received notice of the final order of the Commissioner.

175CSR2

175CSR2

175CSR2

175CSR2

Series 03 Farm Wineries

W. Va. Code R. § 175-3-1 General

1.1. Scope. -- This rule repeals and replaces 175CSR3 and is promulgated to establish procedures for the licensing and operation of farm wineries.

1.2. Authority. -- W. Va. Code §§60-2-16, 60-4-3b, 60-8-1 et seq., and 29A-3-1 et seq.

1.3. Filing Date. -- June 6, 2014.

1.4. Effective Date. -- July 6, 2014.

W. Va. Code R. § 175-3-2 Definitions

As used in this rule and unless the context clearly requires a different meaning, the following terms shall have the meaning ascribed herein, and shall apply in the singular and in the plural.

2.1. "Advertisement" means any audio, visual or other electronic display promoting alcoholic liquors through the medium of billboards, newspapers, magazines, or similar publications, and display materials or equipment. The term advertisement does not include:

2.1.a. Any label, affixed to a container of alcoholic liquors or any individual covering, carton or other wrapper of the container, or

2.1.b. Any editorial or other reading matter in any periodical or publication for the preparation or publication of which no money or other valuable consideration is paid or promised, directly or indirectly, by any person subject to this rule.

2.2. "Alcohol Beverage Control Commissioner" or "ABCC" or "Commissioner" means the West Virginia Alcohol Beverage Control Commissioner (Administrator) or his designee.

2.3. "Alcoholic liquor" means alcohol, beer, fortified wine and distilled spirits, and any liquid or solid capable of being used as a beverage, but does not include wine with an alcohol content of fourteen percent (14%) or less by volume, nonintoxicating beer or nonintoxicating beverages.

2.4. "Bottle" and "Container" means any bottle or container authorized by this rule or packaging wine for sale at retail.

2.5. "Department" means the West Virginia Department of Revenue.

2.6. "Distilled spirits" means ethyl alcohol, ethanol or spirits of wine, including all dilutions and mixtures thereof, from whatever source or by whatever process produced, for beverage use, and includes, but is not limited to, natural spirits, whiskey, brandy, rum, gin, vodka, cordials and liqueurs. Alcoholic beverages containing more than 24% of alcohol by volume are considered distilled spirits.

2.7. "Distributor" means any person:

2.7.a. Whose principal place of business is within the State of West Virginia;

2.7.b. Who sells or distributes wine to retailers, grocery stores, private wine bed and breakfasts, private wine restaurants, private wine spas, private clubs or wine specialty shops;

2.7.c. Who sells or distributes nonfortified dessert wine and port, sherry and Madeira wines to wine specialty shops pursuant to chapter 60, article 8 of the West Virginia Code; and

2.7.d. Who actually maintains a warehouse in this state for the distribution of wine.

2.8. "Farm winery” means an establishment which:

2.8.a. In any year manufactures more than fifty thousand gallons of:

2.8.a.1. wine and nonfortified dessert wine exclusively by natural fermentation from grapes, other fruits, honey or other agricultural products containing sugar and

2.8.a.2. port, sherry and Madeira wine matured in wooden barrels or casks, the alcohol content of which does not exceed twenty-two percent by volume; or

2.8.a.3. any combination of paragraphs 1 and 2;

2.8.b. Grows or produces at least twenty-five percent of the raw products used to make wine on the premises of the farm winery; and

2.8.c. Imports no more than twenty-five percent (25%) of the raw products used to make the wine from any source outside this state.

2.8.d. A farm winery may include one off-farm location.

2.8.e. Where the owner of a farm winery provides evidence, supported by written findings of the West Virginia Commissioner of Agriculture, that young nonbearing fruit plants have been planted on the premises of the farm winery, the Commissioner may grant the farm winery owner permission to use products from one off-farm location, in an amount equal to that reasonably expected to be produced when the non-bearing fruit plants planted on the farm winery come into full production, to produce wine. The duration of the off-farm location permit shall be determined by the Commissioner after consultation with the Commissioner of Agriculture.

2.9. "Fortified wine" means any wine to which brandy or other alcohol has been added. For purposes of this rule, “fortified wine” includes dessert wines which are fortified but which have an alcohol content by volume of at least fourteen and one-tenths percent (14.1%) and not exceeding sixteen percent (16%).

2.10. "Intoxicated" means having one’s faculties impaired by alcohol or other drugs to the point that physical or mental control or both are markedly diminished.

2.11. "Licensed retailer" means a person licensed in accordance with W. Va. Code §§60-3-1, 60-3A-1 et seq. or §60-8-1 et seq. to sell wine at retail to the general public.

2.12. "Manufacture" means to ferment, make, mix, concoct, process, blend bottle or fill an original package with any alcoholic liquor or wine.

2.13. "Manufacturer" means any person engaged in the manufacture of any alcoholic liquor or wine, and among others includes a producer, bottler, importer, wholesaler, or winemaker.

2.14. “Multi-capacity winery or farm winery” means a license which authorizes a winery or farm winery to operate as a retailer, wine specialty shop, a supplier and a direct shipper without obtaining a separate license for each capacity the winery or farm winery operates.

2.15. "Original package" means any closed or sealed container or receptacle used for holding alcoholic liquor or wine.

2.16. "Person" means any individual, partnership, joint stock company, business trust, association, corporation or other form of business enterprise, including a receiver, trustee or liquidating agent.

2.17. "Private club" means a corporation or association licensed as a private club in accordance with W. Va. Code §60-7-1 et seq. and §60-8-1 et seq.

2.18. “Private wine bed and breakfast" means any business with the sole purpose of providing, in a residential or country setting, a hotel, motel, inn or other such establishment properly zoned as to its municipality or local ordinances, lodging and meals to its customers in the course of their stay at the establishment, which also:

2.18.a. Is a partnership, limited partnership, corporation, unincorporated association or other business entity which as part of its general business purpose provides meals on its premises to its members and their guests;

2.18.b. Is licensed under the provisions of article eight, chapter 60 of the West Virginia Code as to all of its premises or as to a separate segregated portion of its premises to serve wine to its members and their guests when such sale accompanies the serving of food or meals; and

2.18.c. Admits only duly elected and approved dues paying members and their guests while in the company of a member and does not admit the general public.

2.19. "Private wine restaurant" means a restaurant which:

2.19.a. Is a partnership, limited partnership, corporation, unincorporated association or other business entity which has as its principal purpose the business of serving meals on its premises to ifs members and their guests;

2.19.b. Is licensed under the provisions of article 8, chapter 60 of the West Virginia Code as to all of its premises or as to a separate segregated portion of its premises to serve wine to its members and their guests when such sale accompanies the serving of food or meals; and

2.19.c. Admits only duly elected and approved dues paying members and their guests while in the company of a member, and does not admit the general public. Private clubs that meet the private wine restaurant requirements stated in subdivisions a., b., and c. of this definition shall be considered private wine restaurants.

2.20. "Private wine spa" means any business with the sole purpose of providing commercial facilities devoted especially to health, fitness, weight loss, beauty, therapeutic services and relaxation, and may be also a licensed massage parlor or a salon with licensed beauticians or stylists which also:

2.20.a. Is a partnership, limited partnership, corporation, unincorporated association or other business entity which as part of its general business purpose provides meals on its premises to its members and their guests;

2.20.b. Is licensed under the provisions of article eight, chapter 60 of the West Virginia Code as to all of its premises or as to a separate segregated portion of its premises to serve up to two glasses of wine to its members and their guests when such sale accompanies the serving of food or meals; and

2.20.c. Admits only duly elected and approved dues paying members and their guests while in the company of a member, and does not admit the general public.

2.21. "Public place" means any place, building or conveyance to which the public has, or is permitted to have access, including restaurants, soda fountains, hotel dining rooms, lobbies, and corridors of hotels and any highway, street, lane, park or place of public resort or amusement: "Public Place" does not include any of the above-named places or any portion or portions thereof which qualify and are licensed under the provisions of W. Va. Code §60-1-1 et seq. to sell alcoholic liquors for consumption on the premises.

2.22. "Retail liquor store" means a store established and operated under the authority of either W. Va. Code §60-3-1 et seq. or §60-3A-1 et seq. to sell alcoholic liquors in the original package for consumption off the premises.

2.23. "Sale" means any transfer, exchange or barter in any manner or by any means, for a consideration, and includes all sales made by a principal, proprietor, agent or employee.

2.24. "Selling" includes solicitation or receipt of orders, possession for sale, or possession with intent to sell.

2.25. "Supplier" means any manufacturer, producer, processor, winery, farm winery, national distributor or other provider of wine which sells or offers to sell or solicits or negotiates the sale of wine to any licensed West Virginia distributor.

2.26. "Wine" means any alcoholic beverage obtained by the fermentation of the natural content of grapes, other fruits, honey or other agricultural products containing sugar and to which no alcohol has been added, including table wine. “Wine” does not include fortified wine or nonintoxicating beer as that term is defined in article sixteen, chapter eleven of the West Virginia Code (See Section 2.3. for alcohol content percentage).

2.27. "Wine sampling” means a special event conducted at a licensed wine specialty shop’s location during regular hours of business at which no more than three complimentary samples of wine, consisting of no more than one ounce each may be served, to any one consumer in one day. Persons serving complimentary samples must be 21 years of age or over and an authorized representative and employee of the licensed wine specialty shop. Only a licensed representative of a winery, farm winery, licensed distributor or licensed wine supplier may participate, educate and attend a wine sampling. No licensee, employee or representative may furnish, give or serve complimentary samples of wine to any person less than twenty-one years of age or to a person who is physically incapacitated due to the consumption of alcoholic liquor or the use of drugs. The wine specialty shop shall notify and secure permission from the commissioner for all wine sampling events one month prior to the event. Wine sampling events may not exceed six hours per calendar day. Licensees must purchase all wines used during these events from a licensed farm winery or a licensed distributor.

2.28. "Wine specialty shop" means a retailer who:

2.28.a. Deals principally in the sale of table wine, certain nonfortified dessert wines, wine accessories and food or foodstuffs normally associated with wine;

2.28.b. Maintains in its inventory:

2.28.b.1. a representative number of wines for sale which are designated by label as varietal wine, vintage, generic and/or according to region of production; and

2.28.b.2. not less than fifteen percent vintage or vintage-dated wine by actual bottle count; and

2.28.c. May maintain an inventory of port, sherry and Madeira wines which have been matured in wooden barrels or casks and which have an alcoholic content of not more than twenty-two percent (22%) alcohol by volume.

2.29. "Wine tasting" means an activity in which members of a wine taster’s club, which has at least fifty duly-elected and approved dues-paying members in good standing, meet on the premises of a licensed wine specialty shop not more than one time per week either at a time when the premises are closed to the general public or in a segregated facility on the premises to which the general public is not admitted for the purpose of tasting and comparing different wines. Persons serving at the wine tasting must be 21 years of age or over.

W. Va. Code R. § 175-3-3 Licensure

3.1. The application for license to operate a farm winery shall include the following:

3.1.a. License application.

3.1.a.1. The name of the applicant;

3.1.a.2. The address where the applicant will conduct its operations; 3.1.a.3.

3.1.a.3.A. If the applicant is an individual or partnership, the names and addresses of all owners having ten percent (10%), or more, ownership interest;

3.1.a.3.B. If the applicant is an unincorporated association or any other business entity, the names and addresses of the members of its governing board;

3.1.a.2.C. If such applicant be a corporation, the names and addresses of its officers and directors and of all stockholders owning ten percent (10%), or more, of the common stock;

3.1.a.4. Arrest record, if any, of the applicant and of its principals, officers, directors, owners, employees and manager/steward, including disposition of all such arrests;

3.1.a.5. West Virginia consumer sales tax identification number;

3.1.a.6. West Virginia business registration certificate number;

3.1.b. Application may be made only on ABCC Form 200-FW. The form must be completed in its entirety, and failure to compete all questions thereon constitutes grounds for refusing to grant a license.

3.1.c. The application shall be signed by the applicant. In the case of a partnership, the application shall be signed by each of the partners. In the case of a limited partnership, the application shall be signed by each of the general partners and by each limited partner who owns ten percent (10%) or more of the capital or profits of such limited partnership. In the case of a voluntary association, all members owning ten percent (10%) or more of the capital or profits shall sign. In the case of a corporation, the application shall be signed by an officer and under the seal of the corporation.

3.1.d. An applicant applying for other licenses under 175 CSR 4 or W. Va. Code §60-8-1 et seq. must complete the applicable forms provided by the Commissioner’s office, pay the applicable fees, and qualify for such other licenses independently of qualifying for a farm winery license.

3.1.e. Every applicant who is licensed must have its representatives licensed to solicit or consummate sales in this state and to attend or conduct tastings, samplings, off-premises sales at licensed fairs and festivals. An Application for Representative's License, available from the Commissioner, must be completed for each representative.

3.2. Refusal of license.

3.2.a. No license may be issued to any applicant that submits an application that contains any false statement, and any statement found to be false after the granting of such license shall be grounds for revocation or suspension of such license;

3.2.b. Upon receipt of an application for a license, the Commissioner shall make a thorough investigation to determine whether the applicant and the premises for which a license is applied qualify for a license and whether the licensing provisions of the law have been complied with. The Commissioner shall investigate all matters connected with the application which may affect the public welfare, health and morals. The Commissioner shall deny an application for a license if either the applicant or the premises for which a license is applied do not qualify for a license. The applicant may appeal denial of the license in accordance with Section 9 of this rule.

3.3. License not transferable. -- A license issued under the provisions of this rule authorizes only the person(s)/organization named on the license to operate a farm winery on the premises described and is not transferable.

3.4. Change of corporate directors or officers; issuance or transfer of corporate stock. - A corporate licensee shall, within thirty (30) days of a majority change of the members of the board of directors, a change in any corporate officers or the issuance or transfer of shares of its stock which results in a person not previously approved owning ten percent (10%) or more of its stock, and report to the Commissioner the information with respect to the new person that is required to be furnished by an applicant for a license.

3.5. Change in ownership; change in management. -- A licensee shall report any change in ownership of the business which results in a person not previously approved owning ten percent (10%) or more of its stock or the change in the management control of the licensed establishment, and report to the Commissioner the information with respect to the new person that is required to be furnished by an applicant for a license.

3.6. Federal basic permit information. -- An applicant for a license authorizing a farm winery shall submit to the Commissioner a copy of the applicant's federal basic permit, as required under the Federal Alcohol Administration Act, including copies of all data, written statements, affidavits or other documents prepared in connection therewith. The applicant shall submit a copy of the federal basic permit with the request for the application.

3.7. License application form. -- The application for a license to operate a farm winery, ABCC Form 200-FW, is available from the West Virginia Alcohol Beverage Control Commissioner's office.

3.8. Certain personnel not to hold license. -- No farm winery license may be held by, or issued to, any person employed by the Alcohol Beverage Control Commissioner when the duties of such person have to do with the enforcement of the Liquor Control Act or any other penal provisions of law of this State prohibiting or regulating the sale, use, possession or manufacture of alcoholic beverages.

3.9. Bonded winery -- A farm winery license may be issued only to, or held by, an applicant qualified to operate or who is operating a winery or wine cellar bonded under the laws and regulations of the United States.

3.10. Pricing. -- For the purpose of establishing pricing, the Commissioner shall consider wines produced by farm wineries to be a separate class of alcoholic liquor under the provisions of section nine, article three, chapter sixty of the West Virginia Code.

W. Va. Code R. § 175-3-4 Operation of Farm Wineries

4.1. Application of Federal Alcohol Administration Act.

4.1.a. The Commissioner hereby finds and declares that for control of farm wineries, the adoption of the laws, rules and regulations of the United States relating to the operations of wineries will:

4.1.a.1. Simplify the licensing of farm wineries in this state;

4.1.a.2. Improve enforcement of production and sanitation standards through better use of information obtained from federal sources; and

4.1.a.3. Aid interpretation of the farm winery law through use of federal judicial and administrative determinations and precedents.

4.1.b. The Commissioner declares that this rule is to be construed so as to accomplish the foregoing purposes with specific regard to:

4.1.b.1. Standards of identity for wine;

4.1.b.2. Labeling requirements for wine;

4.1.b.3. Requirements for approval of labels of wine domestically bottled or packed;

4.1.b.4. Advertising of wine; and

4.1.b.5. Standards of fill for wine.

4.1.c. The Commissioner incorporates by reference all applicable provisions of the Federal Alcohol Administration Act and regulations adopted thereunder by the United States Department of the Treasury, Alcohol and Tobacco Tax Trade Bureau (the "TTB"), in effect on the effective date of the Rules and Regulations herein, and as the same may be amended.

4.2. Licenses and fees.

4.2.a. A farm winery must be licensed by the Commissioner. A licensed farm winery may serve or sell or both serve and sell the wine it manufactures

4.2.b. A farm winery may also hold licenses to conduct business as a retailer, wine specialty shop, supplier, direct shipper or private wine restaurant only. A farm winery may obtain separate licenses to conduct business in each capacity named above. A farm winery may also obtain a multi-capacity license authorizing the farm winery to conduct business as a retailer, wine specialty shop, supplier and direct shipper.

4.2.c. A farm winery may obtain a special license to sell its wine at retail at any fair or festival endorsed or sponsored by the governing body of a municipality or county commission and that applies for and obtains a fair and festival license from the Commissioner.

4.2.c.1. The special license may be issued for a term no longer than ten (10) consecutive days.

4.2.c.2. The application for the special license must be submitted to the Commissioner at least thirty (30) days prior to the date on which the wine will first be sold.

4.2.c.3. The special license authorizes the exhibit, tasting, selling of samples and selling of wine for consumption off the premises of the fair or festival. Any licensee opening or selling wine, not being used for a tasting or sampling of wine, for consumption of wine at the fair or festival is subject to penalties under this rule, 175CSR4, and W. Va. Code §60-8-1 et seq. Any served tastings or samplings may not exceed a reasonable serving of 3 ounces at the fair or festival.

4.2.c.4. The special license fee – the fee for a special license is $250.00, if the fair or festival takes place on the winery or farm winery’s premises or at a designated off-farm winery location, then the license fee is $50.00 for events described in W. Va. Code §60-8-3.

4.2.d. The annual fees for the following authorized activities are as follows:

4.2.d.1. Farm winery - $50.00;

4.2.d.2. Retailer - $150.00;

4.2.d.3. Wine Specialty Shop - $250.00;

4.2.d.4. Supplier - $150.00;

4.2.d.5. Direct Shipper - $150.00;

4.2.d.6. Direct Shipper Wine Specialty - $250.00;

4.2.d.7. Private Wine Bed and Breakfast - $150.00;

4.2.d.8. Private Wine Restaurant - $250.00;

4.2.d.9. Private Wine Spa - $150.00;

4.2.d.10. Wine Sampling - $150.00;

4.2.d.11. Wine tasting - $150.00; and

4.2.d.12. Multi-capacity winery or farm winery - $300.00.

4.2.e. A farm winery licensed as a direct shipper or direct shipper wine specialty must meet all the requirements for licensure under 175CSR4 and the West Virginia Code.

4.3. Inspection.

4.3.a. The Commissioner or his or her agents may inspect, at any reasonable hour, the records, stocks and premises of a licensee to determine if the licensee is complying with all provisions of applicable laws and rules. An agent desiring to make an inspection shall identify himself/herself by suitable credentials. Any denial or interference with an inspection by the farm winery owner, his agents or employees is a violation of this rule and will be reported.

4.3.b. Any evidence of a violation found during an inspection shall be seized and impounded and the is admissible into evidence to prove such violation.

4.4. Age for purchase or consumption of farm wine. - No farm winery may serve or sell farm wine to individual under the age of twenty-one (21) for consumption of farm wine or any other alcoholic liquors on the premises of the farm winery. A farm winery may not sell wine to any person who is visibly intoxicated.

4.5. Hours for sale of farm wine. -- No farm winery licensee may sell, give, serve or dispense or permit the consumption of wine, on any licensed premises, or in any rooms directly connected therewith between the hours of one a.m. and one p.m. on any Sunday. Nor may any licensee sell, give or dispense farm wine, or permit the consumption of wine, on any licensed premises, or in any rooms directly connected therewith, between the hours of twelve midnight and ten a.m. on any week day. These prohibitions do not apply to those rooms in the structure which are used for the farm winery owners' normal, usual and customary residential activities. A farm winery licensee may conduct tasting, samples and off-premise sales under the hours of operation at a licensed fair or festival as specified above and in W.Va. Code §60-8-1 et seq., except that for any licensed fair or festival operating on Sundays, no farm winery licensee may conduct tastings, samples and off-premise sales between the hours of 2 a.m. and 10 a.m.

4.6. Wine tastings. -- A farm winery licensee which has acquired a wine tasting license and a wine specialty shop license may conduct wine tastings on its licensed premises, or in any rooms or areas directly connected therewith, or at an off-farm winery location, of wine produced or bottled by such licensee as provided in W. Va. Code §60-8-3.

4.7. Wine samplings. -- A farm winery licensee which has acquired a wine sampling license and a wine specialty shop license may conduct wine samplings on its licensed premises, or in any rooms or areas directly connected therewith, or at an off-farm winery location, of wine produced or bottled by such licensee as provided in W. Va. Code §60-8-3.

4.8. Authorized sales. A farm winery licensed as a retailer or a wine specialty shop may sell wine directly to consumers at the farm winery, at one off-farm winery location, and through the ABCC warehouse. A farm winery licensed as a supplier may sell to any private club, private wine bed and breakfast, private wine restaurant, private wine spa, retailer or wine specialty shop licensed under W. Va. Code §§60-8-3 and 60-8-3(k).

4.9. Shipping.

4.9.a. A farm winery licensed as a direct shipper may ship wines from the farm winery to a consumer without the bonding requirements of a transporter, but must use a licensed and bonded common carrier or some other bonded transporter.

4.9.b. A direct shipper licensed in West Virginia may ship for personal use and not for resale, not more than two (2) cases per month to any adult resident in this State.

4.10. Return by purchaser. -- A person who has purchased wine from a licensed farm winery and has taken delivery of such wine within this state may return all or any portion of such wine to the licensed premises of such farm winery. To make such return, the purchaser need not obtain any license in this state, and may return the wine in a vehicle owned or controlled by him or her.

4.11. Tax on sales. -- A licensee shall collect the tax imposed under West Virginia Code §60-3-9d and be held accountable for it in accordance with applicable rules of the Department of Revenue.

4.12. West Virginia liter tax -- Every winery and farm winery licensed as a supplier or as direct shipper must pay the liter tax as specified in W. Va. Code §60-8-4.

4.13. Wine brand review and registration. -- Every farm winery licensed as a supplier offering wine for sale under the authority of W. Va. Code §60-8-1 et seq. shall submit its brand and all of its labels to Commissioner for review, and register with the Commissioner each label which the farm winery offers for sale in West Virginia. A farm winery licensed as a supplier shall pay a fee of $100.00 for each brand registered. No wine may be sold in this state until the brand and labels have been reviewed and registered by the Commissioner. The Commissioner will further specify the wine brand review and registration requirements and the forms to be used by a farm winery and other licensees in 175CSR`4. Forms will be available at the Commissioner’s offices.

4.14. Annual report and tax information. -- Every licensed farm winery shall report to the Commissioner its total gallonage of wine it produced or blended for the twelve (12) month period ending June 30 of each year or partial year. The report shall be submitted by letter report within thirty (30) days after the end of the fiscal year. Each farm winery must submit a copy of its wine liter tax return and sales tax distribution return to the Tax Commissioner and the Commissioner.

4.15. Blood alcohol chart. -- Each farm winery shall post in an open and prominent place within the licensed premises, where it can be observed by customers, a blood alcohol chart in the form prescribed by W. Va. Code §60-6-24.

W. Va. Code R. § 175-3-5 Reserved For Future Use

W. Va. Code R. § 175-3-6 Advertising

6.1. General prohibition. -- All advertising of wine which encourages intemperance, makes the consumption of alcoholic liquor appear to be glamorous, is lewd or obscene, induces minors to purchase, or tends to deceive or misrepresent, is hereby prohibited. Federal law, as interpreted by the ABCC, provides the following guidelines relative to acceptable and prohibited advertising of wine.

6.2. Permissible media. -- A farm winery in West Virginia may advertise off premises in any media including, but not limited to, billboards, newspapers, magazines and similar publications, radio and television.

6.3. Application. -- No person engaged in the business of a farm winery, directly or indirectly, or through an affiliate, shall publish or disseminate, or cause to be published or disseminated, any advertisement of the wine produced or manufactured at such farm winery, unless such advertisement is in conformity with this rule. These provisions do not apply to the publisher or standardized outdoor advertising company of any billboard, newspaper, magazine or similar publication, unless the publisher or outdoor advertising company is engaged in business of a farm winery.

6.4. Mandatory statements for advertising wine.

6.4.a. Responsible advertiser. -- The advertisement shall state the name and address of the farm winery. Street name and number may be omitted in the address.

6.4.b. Class, type and distinctive designation. -- The advertisement shall contain a conspicuous statement of the class and type, or other designation of the product, corresponding with the complete designation which appears on the brand label of the product.

6.4.c. Alcoholic content. -- The alcoholic content shall be stated in the manner and form in which it appears on the labels of the wine advertised.

6.5. Lettering.

6.5.a. Conspicuousness of mandatory statements. -- Statements required by this part to be stated in any written, printed or graphic advertisement shall appear in lettering or type of a size, kind and color sufficient to render them both conspicuous and readily legible.

6.5.b. In particular:

6.5.b.1. Required information shall be stated against a contrasting background and in type or lettering which is at least the equivalent of eight (8) point type.

6.5.b.2. Required information shall be so stated as to appear to be a part of the advertisement and shall not be separated in any manner from the remainder of the advertisement.

6.5.b.3. Where an advertisement relates to more than one product, the required information shall appear in such a manner as to clearly indicate the particular products to which it is applicable.

6.5.b.4. Required information shall not be buried or concealed in unrequired descriptive matter or decorative designs.

6.6. Prohibited statements. -- An advertisement may not contain:

6.6.a. Any statement that is false or misleading in any material particular. For example, the reproduction of medals or facsimiles of awards, when no medals or awards have been given or where the medals or awards were not given on a competitive or comparative basis are prohibited;

6.6.b. Any statement that is disparaging of a competitor's product;

6.6.c. Any statement, design, device or representation which is obscene, lewd or indecent;

6.6.d. Any statement, design, device or representation of, or relating to, analyses, standards or tests, irrespective of falsity which is likely to mislead the consumer. For example, an advertisement may not contain a statement such as "Analyzed by the laboratory and found to be pure and free from deleterious ingredients," or "Tested and approved. Signed by the Research Institute;"

6.6.e. Any statement, design, device or representation of, or relating to, any guaranty, irrespective of falsity, which is likely to mislead the consumer. Nothing in this section shall prohibit the use of any enforceable guaranty in substantially the following form:

"We will refund the purchase price to the purchaser if he is in any manner dissatisfied with the contents of this package."

(Blank to be filled in with the name of person making guaranty);

6.6.f. Any statement that the product is produced, blended, made, bottled, packed or sold under, or in accordance with, any authorization, law, rule or regulation of any municipality, county or state, federal or foreign government unless the statement is required or specifically authorized by the laws, rules or regulations of the government. If a municipal county, state or federal permit number is stated, the permit number shall not be accompanied by any additional statement relating thereto;

6.6.g. Any statement of bonded wine cellar and bonded winery numbers unless stated in direct conjunction with the name and address of the person operating such winery or storeroom. Statement of bonded wine cellar and bonded winery number may be made in the following form: "Bonded Wine Cellar No.," "Bonded Winery No.," "B.W.C. No._," "B.W. No.__." No additional reference or use shall be made of any such statement that may convey the impression that the wine has been made or matured under United States government or any state government supervision or in accordance with United States government specifications or standards;

6.6.h. Any statement, design, device or representation which relates to alcoholic content or which tends to create the impression that a wine is "Unfortified" or has been "Fortified," or has intoxicating qualities, or contains distilled spirits (except for a reference to distilled spirits in a statement of composition where such statement is required by this rule to appear as a part of the designation of the product);

6.6.i. Any statement concerning a brand or lot of wine that is inconsistent with any statement on the labeling thereof;

6.6.j. Any statement, design, or device representing that the use of any wine has curative or therapeutic effects, if such statement is untrue in any particular or tends to create a misleading impression. For example, advertisements may not contain statements as "_____ is good for you" or "Conducive to well being;"

6.6.k. Any representation that the wine was produced or processed by one who was not in fact the actual producer; or

6.6.l. Any statement, design, device or pictorial representation of, or relating to, or capable of being construed as relating to the armed forces of the United States, or of the American Flag, any state flag or any emblem, seal, insignia or decoration associated with any such flag or the Armed Forces of the United States; nor shall any advertisement contain any statement, device, design or pictorial representation of or concerning any flat, seal, coat of arms, crest or other insignia, likely to falsely lead the consumer to believe that the product has been endorsed, made or used by, or produced for, or under the supervision of, or in accordance with the specifications of the government, organization, family or individual with whom such flag, seal, coat of arms, crest or insignia is associated.

W. Va. Code R. § 175-3-7 Violations

7.1. Prohibited acts. -- The Commissioner may suspend or revoke any farm license for violation of any of the applicable provisions W. Va. Code §60-1-1 et seq., W. Va. Code §60-4-3b, W. Va. Code §60-8-1 et seq. or of any lawful rule of the Commissioner. The Commissioner may also suspend or revoke a farm winery for the following causes:

7.1.a. Conviction of the licensee or his or her agent or employee for a felony related to business operations of the licensee;

7.1.b. Making any false material statement in an application for license;

7.1.c. Assigning, transferring or pledging a license contrary to the rules of the Commissioner;

7.1.d. Selling farm wine to a wholesale or retail dealer who is not a holder of a proper ABCC license at the time of the sale;

7.1.e. Failing to pay an excise tax together with any penalties imposed by the law relating thereto and violating any rule of the Department of Revenue in pursuance thereof.

7.2. Employment of minors. -- No person under the age of eighteen (18) years may be employed or permitted by any licensee to participate in any manner whatsoever in the serving, sale or delivery of wine.

7.3. Imitation and substandard wine -- application of these regulations. -- The production, importation or sale within this state of any product as or under the designation of wine, which fails to conform to the standards prescribed in this rule, and by reference therefore to the Federal Alcohol Administration Act, and regulations duly promulgated thereunder, or of any wine fermented from raisins, dried fruits, or dried berries or of any imitation or substandard wine as hereinafter defined, is hereby prohibited.

7.4. Coined names.

7.4.a. The sale in this State of wines identified on labels or in advertisements by a type or brand designation which implies mixtures of wine for which standards of identity are established in this rule, or which identifying type or brand designation resembles an established wine type name such as "Angelica," "Madeira," "Muscatel," "Port," "Sherry," "Tokay," "Sauterne," "Claret," "Burgundy," is hereby prohibited.

7.4.b. The sale in this state of wine or combinations of wine and other alcoholic beverages which contain on the label statement such as "Whiskey Wine," "Rum and Wine," "Gin and Wine," "Beer and Wine," or simulations of such combinations, is hereby prohibited.

7.5. Containers.

7.5.a. The sale of wine in any container originally designed for a product other than wine, or in any container the design or shape of which would tend to mislead the consumer as to the nature of the contents, is hereby prohibited.

7.5.b. The sale of wine in containers which have blown, branded or burned therein the name or other distinguishing mark of any person engaged in business as a wine producer, importer, wholesaler or bottler or any other person different from the person whose name is required to appear on the brand label, is hereby prohibited.

7.5.c. The capacity of containers for wine shall conform to standards of fill provided by the rules and regulations of the TTB.

W. Va. Code R. § 175-3-8 Enforcement

8.1. Samples required. -- Every farm winery licensee shall, upon demand of the Commissioner, furnish, without cost to the Commissioner, samples of any wines upon its premises for purposes of analysis.

8.2. Suspension or revocation of license. -- The license of a farm winery may be suspended or revoked upon proof of violation of any of the provisions of this rule, as provided by the laws of this State.

8.3. Seizure of substandard and imitation wine. -- Imitation, substandard or misbranded wine offered for sale in violation of this rule may be seized and disposed of, as provided by the laws of this State.

8.4. Every farm winery is subject to the penalties available to the Commissioner under W. Va. Code §60-8-1 et seq.

W. Va. Code R. § 175-3-9 Hearing and Appeal Procedure

9.1. Whenever the Commissioner refuses to issue a license, or suspends or revokes a license, he shall enter an order to that effect, and cause a copy of the order to be served in person or by certified mail, return receipt requested, on the licensee or applicant.

9.2. Hearings.

9.2.a. Any applicant or licensee, as the case may be, adversely affected by an order refusing to issue or suspending or revoking a license has a right to a hearing before the Commissioner, upon written demand served upon the Commissioner within ten (10) days following the receipt by the applicant or licensee of the order. The service of a written demand for a hearing upon the Commissioner suspends the execution of the order with respect to which a hearing is being demanded, except when the order addresses an issue involving public health or safety and then the order is not be suspended by such service; further except that an order suspending a license because a distributor refuses or fails to keep the bond required by W. Va. Code §60-8-18(b) will itself not be suspended by such service. The person demanding a hearing shall give security for the cost of the hearing in the form and amount as the Commissioner may reasonably require. If the person demanding the hearing does not prevail, the Commissioner shall assess the full costs of the hearing against him or her and may be collect by an action at law or other proper remedy.

9.2.b. Upon receipt of a demand for a hearing, the Commissioner shall immediately set a date for a hearing and notify the person demanding the hearing thereof, which hearing shall be held within thirty (30) days after receipt of the demand. At the hearing, the Commissioner shall hear evidence and enter an order supported by findings of facts which will affirm, modify or vacate the order which is the subject of the hearing. The order resulting from the hearing is final unless vacated or modified upon judicial review thereof.

9.2.c. A hearing and the administrative procedure prior to, during and following the hearing shall be governed by the provisions of W.Va. Code §60-8-18, and in all other respects not specified W. Va. Code §29A-5-1 et seq., and W.Va. Code §60-8-1 et seq., in circuit court.

9.3. Appeal procedure.

9.3.a. Any person adversely affected by an order entered following a hearing before the Commissioner has a right to seek judicial review in the Circuit Court of Kanawha County, West Virginia or in accordance with the provisions of W. Va. Code §60-8-18.

9.3.b. The judgment of the circuit court shall be final unless reversed, vacated or modified on appeal to the West Virginia Supreme Court of Appeals in accordance with the provisions of W. Va. Code §29A-6-1 et seq.

9.3.c. The Attorney General and his or her assistants shall provide legal counsel and services for the Commissioner in all proceedings in circuit court and the Supreme Court of Appeals without additional compensation.

175CSR3

175CSR3

Series 04 Sale of Wine and Hard Cider

W. Va. Code R. § 175-4-1 General

1.1. Scope. -- This rule establishes the procedure for the supply, distribution, and retail sale of wine and hard cider in the State of West Virginia by retailers, grocery stores, direct shippers, wine specialty shops, private wine bed and breakfasts, private wine restaurants, and private wine spas licensed to sell wines and hard ciders.

1.2. Authority. -- W. Va. Code §§60-2-16, 60-8-1 et seq., 60-8-23, and 29A-3-1 et seq.

1.3. Filing Date. -- May 2, 2025.

1.4. Effective Date. -- May 15, 2025.

1.5. Sunset Date. -- This rule shall terminate and have no further force or effect upon August 1, 2035.

W. Va. Code R. § 175-4-2 Definitions

Definition of terms used. -- As used in this rule, unless the context clearly requires otherwise, the following terms shall have the meaning ascribed herein, and shall apply in the singular and in the plural.

2.1. "Advertisement" means any audio, visual, or other electronic display promoting alcoholic liquors through the medium of billboards, newspapers, magazines, or similar publications and display materials or equipment. The term advertisement does not include:

2.1.1. Any label, affixed to a container of alcoholic liquors, or any individual covering, carton, or other wrapper of the container; or

2.1.2. Any editorial or other reading matter in any periodical or publication for the preparation or publication of which no money or other valuable consideration is paid or promised, directly or indirectly, by any person subject to this rule.

2.2. "Alcohol" means ethyl alcohol, whatever its origin, and includes synthetic ethyl alcohol but not denatured alcohol.

2.3. "Alcoholic liquor" or "liquor" means alcohol, beer, including barley beer, wine, including barley wine, fortified wine, distilled spirits, and any liquid or solid capable of being used as an alcoholic beverage, but does not include wine with an alcohol content of 15.5% or less by volume, nonintoxicating beer, nonintoxicating craft beer, or nonintoxicating beverages.

2.4. "Average Monthly Inventory" means the amount of food, food products, and consumable supplies for the table which are maintained in the inventory of a licensed retailer. Average Monthly Inventory does not include stock or inventory of wine. Grocery stores which have no demonstrable history of inventory maintenance of such products on an average monthly basis, may not be licensed as a retailer until the applicant demonstrates such history for three months prior to the date on which licensure is granted. Applicants for licensure as a retailer whose business is primarily seasonal because of their association with or close dependence upon a lodge, resort, or similar establishment may select any quarter during the 12 months before application was made to demonstrate that the requisite inventory was maintained by the applicant for each month during such quarter. All other grocery stores applying for licensure as a retailer grocery store must demonstrate maintenance of the requisite inventory over the 12 months period next preceding the year or part thereof for which licensure is sought.

2.5. "Average Monthly Sales" means the amount of food, food products, and consumable supplies for the table sold by a licensed retailer "Average Monthly Sales" does not include sales of wine. A grocery store which has no demonstrable history of sales of such products on an average monthly basis may not be licensed as a retailer until the applicant can demonstrate such history for the three months prior to the filing of the application. An applicant for licensure as a retailer whose business is primarily seasonal because of its association with or close dependence upon a lodge, resort, or similar establishment may select any quarter during the 12 months next preceding the month in which the application for licensure was filed to demonstrate the requisite sales level for each month during such quarter. All other grocery stores applying for licensure as a retailer must demonstrate the requisite sales over the 12 month period next preceding the year or part thereof for which licensure is sought.

2.6. "Case" means any combination of packages with two or more wine bottles, enclosed in a box, or fastened together by some other method, containing not more than nine liters of wine.

2.7. "Case lot" means a complete case of distilled spirits.

2.8. “Commissioner” or “Alcohol Beverage Control Commissioner” means the Commissioner of the West Virginia Alcohol Beverage Control Administration (ABCA or Commission) or his or her delegate.

2.9. "Code" means the official Code of West Virginia, 1931, as amended.

2.10. "Department" means the West Virginia Department of Revenue.

2.11. "Direct shipper" means any winery, farm winery, supplier, or retailer of wine that is licensed and in good standing in its domicile state who sells and ships wine up to a maximum of two cases of wine per month directly to an adult West Virginia resident who is 21 years of age or over for such resident’s personal use and consumption and not for resale. A "direct shipper" must obtain a direct shipper’s license from the State of West Virginia and meet the requirements in W. Va. Code §60-8-1 et seq. and this rule.

2.12. "Distilled spirits" means ethyl alcohol, ethanol, or spirits of wine, including all dilutions and mixtures thereof, from whatever source or by whatever process produced, for beverage use, and shall include, but not be limited to, neutral spirits, whiskey, brandy, rum, gin, vodka, cordials and liqueurs. Any alcoholic beverage containing more than 24% of alcohol by volume is considered to be distilled spirits.

2.13. "Distributor" means any person whose principal place of business is within this state and who:

2.13.1. makes purchases from a supplier to sell or distribute wine to retailers, grocery stores, private wine bed and breakfasts, private wine restaurants, private wine spas, private club types, or wine specialty shops;

2.13.2. sells or distributes nonfortified dessert wine, port, sherry, and madeira wines to wine specialty shops, private wine bed and breakfasts, private wine restaurants, private wine spas, private club types, or retailers under the authority of W. Va. Code §60-8-1 et seq., and actually maintains a warehouse in this state for the distribution of wine.

2.13.3. 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 or any trust that is an owner of a distributor licensee, 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 this article, notwithstanding the liability of trustees in W. Va. Code §44D-10-1 et seq.

2.14. "Farm Winery" means an establishment where in any year 50,000 gallons or less of wine, which includes hard cider, and nonfortified dessert wine are manufactured exclusively by natural fermentation from grapes, apples, pears, peaches, other fruits or honey, or other agricultural products containing sugar and where port, sherry, and Madeira wine may also be manufactured, with 25% of such raw products being produced by the owner of the farm winery on the premises of that establishment and no more than 25% of such produce originating from any source outside this state. Any port, sherry, or Madeira wine manufactured by a winery or a farm winery shall not exceed an alcoholic content of 22% alcohol by volume and shall be matured in wooden barrels or casks.

2.15. "Food or a meal" means food that has been cooked, grilled, fried, deep-fried, air-fried, smoked, boiled, broiled, twice baked, blanched, sautéed, or in any other manner freshly made and prepared, and does not include pre-packaged food from the manufacturer.

2.16. "Food" and "food products" means edible foodstuffs intended for human consumption and items commonly thought of as food, including, by way of illustration and not by limitation, cereals and cereal products, meat and meat products, fish and fish products, poultry and poultry products, fresh and salt water animal products, eggs and egg products, vegetables and vegetable products, fruit and fruit products, flour and flour products, sugar and sugar products, milk and milk products, cocoa and cocoa products, coffee and coffee substitutes, tea, herbs, spices, salt and salt substitutes, condiments, soft drinks, soft drink mixes and syrups, tenderizers, food coloring, bottled drinking water, sugar substitutes, oleomargarine, shortening, gelatins, baking and cooking ingredients, mushrooms, spreads, relishes, desserts, flavorings, edible seeds, nuts, and berries. The terms "food" and "food for meals" do not include medicines, vitamins, and dietary supplements, whether in liquid, powdered, granular, tablet, capsule, lozenge, or pill form; spiritous, malt or vinous liquors, or beer, ice, tobacco, or tobacco products, candy and confections, chewing gum, cake letters, breath mints, or food sold through a vending machine.

2.17. "Food or Foodstuffs Normally Associated with Wine" means food and food products but does not include:

2.17.1. Any product containing alcohol, other than wine, permitted to be sold at retail pursuant to W. Va. Code §60-8, including, but not limited to, nonintoxicating beer;

2.17.2. Soft drinks;

2.17.3. Tobacco and tobacco products, and other products associated with the use of tobacco; and

2.17.4. Any other product exempt from consumer sales and service tax.

2.18. "Fortified wine" means any wine to which brandy or other alcohol has been added where alcohol content by volume does not exceed 24%, and includes nonfortified dessert wine where the alcohol content by volume is greater than 17% and does not exceed 24%.

2.19. "Grocery Store" means any retail establishment, commonly known as a grocery store, supermarket, delicatessen, caterer, or party supply store where food, food products, and supplies for the table are sold for consumption off the premises with average monthly sales (excluding sales of wines) of not less than $500 and an average monthly inventory (excluding inventory of wine) of not less than $500. The term "grocery store" also includes and means a separate and segregated portion of any other retail store which is dedicated solely to the sale of food, food products, and supplies for the table for consumption off the premises with average monthly sales with respect to the separate or segregated portion (excluding sales of wine) of not less than $500 and an average monthly inventory (excluding inventory of wine) of not less than $500.

2.20. "Hard Cider" means a type of wine that is derived primarily from the fermentation of apples, pears, peaches, honey, or another fruit, or from apple, pear, peach, or another fruit juice concentrate and water; contains no more than 0.64 grams of carbon dioxide per 100 milliliters; contains at least one half of one percent and less than 12.5% alcohol by volume; and is advertised, labeled, offered for sale, or sold, as hard cider or cider containing alcohol, and not as wine, wine product, or as a substitute for wine.

2.21. "Hard Cider Distributor" means any person whose principal place of business is within the State of West Virginia who makes purchases from a supplier to sell or distribute hard cider, but not other types of wine per section, to retailers, grocery stores, private wine bed and breakfasts, private wine restaurants, private wine spas, private club types, or wine specialty shops under authority of this code and maintains a warehouse in this state for the distribution of hard cider (but not other types of wine). 2.21.1 For the purpose of a hard cider distributor, 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 or any trust that is an owner of a distributor licensee, and the trustee, or any other person or 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 this article, notwithstanding the liability of trustees in W. Va. Code §44D-10-1 et seq.

2.22. "Immediate family" means and includes, but is not necessarily limited to:

2.22.1. The spouse, brother, sister, son, daughter, mother, mother-in-law, father, father-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, uncle, aunt, or cousin of a licensed retailer, private wine bed and breakfast, private wine restaurant, or private wine spa who is not a partnership or corporation;

2.22.2. The spouse, mother, father, brother, sister, son, daughter, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, uncle, aunt, or cousin of each partner of a licensed retailer, private wine bed and breakfast, private wine restaurant, or private wine spa which is a partnership;

2.22.3. The spouse, mother, father, brother, sister, son, daughter, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, uncle, aunt, or cousin of each such director, officer or employee of a licensed retailer, private wine bed and breakfast, private wine restaurant, or private wine spa which is a corporation, the corporation’s director, officer or employee.

2.23. "Importer" means a person who brings or carries goods from a foreign country for the purpose of sale in this country.

2.24. "Intoxicated" means having one's faculties impaired by alcohol or other drugs to the point that physical or mental control or both are markedly diminished.

2.25. "Licensed retailer" means a person including, but not limited to: grocery stores, certain private wine restaurants, and certain private club types licensed in accordance with W. Va. Code §60-8-3(i) and (s); farm wineries when licensed as a retailer, wine specialty shop, or multi-capacity licensee, or wine specialty shops, all licensed in accordance with W. Va. Code §§60-3-1 et seq., 60-3A-1 et seq. or 60-8-1 et seq. by the Commissioner to sell wine at retail to the public for off-premises consumption.

2.26. "Manager" means an individual who is the applicant's or licensee's on-premises employee, member, partner, shareholder, director, or officer who meets the licensure requirements of W. Va. §60-8-1 et seq., and rules and actively manages, conducts, and carries on the day-to-day operations of the applicant or licensee with full and apparent authority or actual authority to act on behalf of the applicant or licensee. Such duties include but are not limited to: coordinating staffing; reviewing and approving payroll; ordering and paying for inventory, such as nonintoxicating beer, wine, and liquor, as applicable; and managing security staff, security systems, video, and other security equipment; and any further acts or actions involved in managing the affairs of the business, on behalf of owners, partners, members, shareholders, officers, or directors.

2.27. "Manufacture" means to distill, rectify, ferment, brew, make, mix, concoct, process, blend, bottle, or fill an original package with any alcoholic liquor or wine.

2.28. "Manufacturer" means any person engaged in the manufacture of any alcoholic liquor or wine, among others and including but not limited to, a producer, broker, processor, bottler, importer, distiller, rectifier, winemaker, or brewer.

2.29. "Multi-capacity winery or farm winery license" means a license which authorizes a winery or farm winery to operate as a retailer, wine specialty shop, a supplier, and a direct shipper without obtaining a separate license for each capacity the winery or farm winery operates.

2.30. "Municipal Tax" means, for purposes of this rule, the tax imposed by any municipality upon purchases of wine pursuant to the provisions of W. Va. Code §8-13-7. "Municipal Tax" includes taxes imposed upon all purchases of wine made under the provisions of W. Va. Code §60-3-9d.

2.31. "Nonintoxicating beer" means all natural cereal malt beverages or products of the brewing industry, commonly referred to as beer, lager beer, ale, and all other mixtures or preparations produced by the brewing industry, including malt coolers and nonintoxicating craft beers, all with no caffeine infusion or any other additives masking or altering the alcohol effect, containing at least one half of one percent (.5%) alcohol by volume, but not more than 11.9% of alcohol by weight, or 15% by volume, whichever is greater, which is designated by W. Va. Code §11-16-3 to be nonintoxicating. The word "liquor" as used in W. Va. Code §60-1-1 et seq., does not include or embrace nonintoxicating beer nor any of the beverages, products, mixtures, or preparations included within this definition. For the purposes of this definition "infusion" means and includes artificially add, input, or otherwise deliver caffeine or any other additive, not a true flavoring or coloring, that would mask or alter the alcohol effect in nonintoxicating beer.

2.32. "Nonintoxicating craft beer" means any beverage obtained by the natural fermentation of barley, malt, hops, or any other similar product or substitute and containing not less than 0.5% by volume and not more than 15% alcohol by volume or 11.9% alcohol by weight, whichever is greater, with no caffeine infusion or any additives masking or altering the alcohol effect. For the purposes of this definition "infusion" means and includes to artificially add, input, or otherwise deliver caffeine or any other additive, not a true flavoring or coloring, that would mask or alter the alcohol effect in nonintoxicating craft beer.

2.33. "Nonfortified dessert wine" means a wine that is a dessert wine to which brandy or other alcohol has not been added, and which has an alcohol content by volume of at least 15.6 % and less than or equal to 17%.

2.34. "One day nonprofit wine license" means a special one day license issued to duly organized, nonprofit corporations and associations allowing the sale and serving of wine, and may, if applicable, also allow the charitable auctioning of certain sealed bottles of wine for off-premises consumption only, when raising money for athletic, charitable, educational, or religious purposes.

2.35. "Original package" means any closed or sealed container or receptacle from the manufacturer used for holding alcoholic liquor or wine.

2.36. "Person" means an individual, firm, partnership, limited partnership, corporation, limited liability company, or voluntary association, and any trust which has disclosed all persons or entities involved in the trust.

2.37. "PODA" or "Private outdoor designated area" means certain public property that is legally demarcated and authorized by a municipality’s ordinance pursuant to W. Va Code §8-12-26 for the lawful consumption of liquor, wine, nonintoxicating beer, and nonintoxicating craft beer within the legally demarcated public property that now has a private purpose as part of the PODA for the lawful sale and service of liquor, wine, or nonintoxicating beer or nonintoxicating craft beer by qualified permit holders who are permitted pursuant to W. Va. Code §60-7-8g, and further a PODA may be dual licensed with a private fair and festival as a qualified permit holder subject to WVABCA and municipal approval.

2.38. "Post-off" means any temporary discount (irrespective of its denomination by the supplier) a supplier gives to a distributor which relates to a specific brand, class, and type of wine or size thereof and which bears no relationship to the amount or quantity of wine purchased by the distributor from the supplier.

2.39. "Private club" means a corporation or association licensed as a private club type in accordance with W. Va. Code §60-7-1 et seq., and §60-8-1 et seq.

2.40. "Private fair and festival" means an applicant for a private club type or a licensed private club type meeting the requirements of W. Va. Code §60-7-8a for a temporary private club type event or Class S2 license.

2.41. "Private manufacturer club" means an applicant for a private club type or licensed private club type which is also licensed as a distillery, mini-distillery, micro-distillery, winery, farm winery, brewery, or resident brewery that manufacturers liquor, wine, or nonintoxicating beer or nonintoxicating craft beer, which may be sold, served, and furnished to members and guests for on-premises consumption at the private manufacturer club licensee’s licensed premises and in the area or areas denoted on its floorplan, and which meets the criteria set forth in W. Va. Code §60-7-1 et seq., and 175 CSR 2.

2.42. "Private wine bed and breakfast" means any business such as a hotel, motel, inn, or other such establishment properly zoned as to its municipality or in accordance with local ordinances, with the sole purpose of providing, in a residential or country setting, lodging and meals to its customers in the course of their stay at the establishment, which also:

2.42.1. Is a partnership, limited partnership, corporation, unincorporated association, or other business entity;

2.42.2. Provides meals on its premises to members and their guests as part of its general business purpose;

2.42.3. Is licensed under the provisions of W. Va. Code §60-8-1 et seq., to serve wine on the premises to its members and their guests in conjunction with the serving of food or meals; and

2.42.4. Admits only duly elected and approved dues-paying members and guests while in the company of a member and does not admit the general public.

2.43. "Private wine restaurant" means a restaurant which:

2.43.1. Is a business the principal purpose of which is serving meals on its premises to members and their guests and which;

2.43.1.a. Is a partnership, limited partnership, corporation, unincorporated association, or other business entity;

2.43.1.b. Is licensed under the provisions of W. Va. Code §60-8-1 et seq., to serve wine on its premises to members and their guests in conjunction with the serving of food or meals; and

2.43.1.c. Admits only duly elected and approved dues paying members and guests in the company of a member and does not admit the general public.

2.43.2. A private wine restaurant shall have at least two restrooms.

2.43.2.a. The two-restroom requirement may be waived: 2.43.2.a.1 By a written waiver provided from a local health department to the commissioner;

2.43.2.a.2. For a private wine restaurant located in an historic building, if a historic association or district with jurisdiction over a historic building provides a written waiver to the commissioner.

2.43.2.b. In no event shall a private wine restaurant have less than one restroom.

2.43.2.c. A winery or farm winery holding a private wine restaurant license or a multi-capacity winery or farm winery license is not subject to the food service requirements of this subdivision.

2.44. "Private wine spa" means any business with the sole purpose of providing commercial facilities devoted especially to health, fitness, weight loss, beauty, therapeutic services, and relaxation, including a licensed massage parlor or a salon with licensed beauticians or stylists, and which:

2.44.1. Is a partnership, limited partnership corporation, unincorporated association, or other business entity;

2.44.2. Provides meals on its premises to its members and their guests as part of its general business purpose;

2.44.3. Is licensed under W. Va Code §60-8-1 et seq., to serve up to two glasses of wine on the premises to members and their guests in conjunction with the serving of food or meals; and

2.44.4. Admits only duly elected and approved dues paying members and guests while in the company of a member and does not admit the general public.

2.45. "Public place" means any place, building, or conveyance to which the public has, or is permitted to have access to, including, but not limited to establishments that provide lodging, places that sell food, for consumption on or off the premises including, but not limited to, vessels, parks, airports, and any highway, street, lane, park, or place of public resort or amusement: Provided, That the term "public place" does not mean or include any of the above-named places or any portion or portions thereof which qualify and are licensed by the Commissioner to sell alcoholic liquors for consumption on the premises, nor shall the term "public place" mean or include any legally demarcated area designated solely for the consumption of beverages and freshly prepared food that directly connects and adjoins any portion or portions of a premises that qualifies and is licensed under the provisions of W. Va. Code §60-8-1 et seq., to sell alcoholic liquors for consumption thereupon, which may include certain legally demarcated deck areas or other areas that meet the requirements specified in this proviso and further that legal demarcation includes, but is not limited to, ABCA rules; local ordinances; county zoning requirements; Americans with Disabilities Act requirements; State Fire Marshal requirements; any other applicable laws, including, but not limited to, state and federal law; public safety requirements and so forth: Provided however, That the term "public place" also does not include a facility constructed primarily for the use of a Division I, II, or III college that is a member of the National Collegiate Athletic Association, or its successor, and used as a football, basketball, baseball, soccer or other Division I, II, or III sports stadium and also which holds a special license to sell wine pursuant to the provisions of W.Va. Code §60-8-3, in the designated areas of sale and consumption of wine and other restrictions established by that section and the terms of the special license issued thereunder.

2.46. "Qualified permit holder" means the holder of a Class A, Class B, or Class S2 license (private fair and festival license) issued under W. Va. Code §60-7-1 et seq., that elects to operate within a private outdoor designated area and is issued a Class S4 qualified permit to operate in a PODA created pursuant to W. Va Code §8-12-26 and W. Va. Code §60-7-8g. There are no Class B licenses issued pursuant to W. Va. Code §60-7-1 et seq.

2.47. "Retail liquor outlet" means a licensed outlet established and operated under the authority of W. Va. Code §60-3-1 et seq., or W. Va. Code §60-3A-1 et seq., for the sale of alcoholic liquor in the original package for consumption off the premises.

2.48. "Sacramental Wine" means wine purchased at wholesale from or through the ABCA or a distributor for industrial, or scientific uses, or for use in religious and other institutions as provided in W. Va Code §60-6-5.

2.49. "Sampling" means the special privilege to permit on-premises sampling of wine in limited quantities during hours of operation (See W. Va Code §60-8-34) conferred upon certain licensees as set forth in W. Va Code §60-8-1 et seq., and is not considered to be "Wine Sampling" for the purpose of this rule.

2.50. "Sale" means any transfer, exchange, or barter in any manner or by any means, for a consideration, and includes all sales made by principal, proprietor, agent, or employee.

2.51. "Selling" includes solicitation or receipt of orders, possession for sale, or possession with intent to sell.

2.52. "Soft drink" means any non-alcoholic product as set forth in W. Va. Code §11-19-1 et seq.

2.53. "Spirits" means any alcoholic liquor obtained by distillation and mixed with potable water and other substances in solution and includes brandy, rum, whiskey, cordials, and gin.

2.54. "Supplier" means any manufacturer, producer, processor, winery, farm winery, national distributor, or other supplier of wine which sells, offers to sell, solicits, or negotiates the sale of wine to any licensed West Virginia distributor.

2.55. "Varietal wine" means any wine labeled according to the grape variety from which such wine is made.

2.56. "Vintage wine" or "vintage-dated wine" means wines from which the grapes used to produce such wine are harvested during a particular year or wines produced from the grapes of a particular harvest in a particular region of production.

2.57. "Unlicensed Winery" means a winery not physically located in the State of West Virginia who upon application and approval may obtain a limited authorization to attend a licensed wine fair and festival or a private fair and festival with all of the authorizations as set forth in W. Va. Code §60-7-8 and §60-8-3.

2.58. "Wine" means any alcoholic beverage including table wine or hard cider, obtained by the natural fermentation of the natural content of grapes, other fruits or honey or other agricultural products containing sugar to which no alcohol has been added. The term "wine" does not include fortified wine or nonintoxicating beer as defined in W. Va. Code §11-16-1 et seq. For purposes of this rule, "wine" includes: table wine; hard cider; nonfortified dessert wine; wine coolers; wine or wine based products that are contained in a can, bottle, growler, or a ouch; and similar wine based beverages containing not less than 0.5% nor more than 15.5% alcohol by volume. (See Section 2.3. for alcohol content percentage).

2.59. "Wine accessories" means any product or item directly associated with the use and consumption of wine, e.g.: (1) Glasses and wine growlers; (2) carafes; (3) decanters; (4) wine racks; (5) books, magazines, and other publications devoted principally to foods and wines; (6) napkins; or (7) items or products similar in nature and/or use to any of the foregoing.

2.60. "Winery" means an establishment where wine is manufactured or prepared as defined in W. Va Code §60-8-1 et seq.

2.61. "Wine Growler" — means a container or jug that is made of glass, ceramic, metal, or other material approved by the commissioner, that may be no larger than 128 fluid ounces in size and is capable of being securely sealed. The growler may be used by an authorized licensee for purposes of off-premises sales only of wine for personal consumption, and not for resale. The wine served and sold in a sealed wine growler may include ice or water mixed with the wine to create a frozen alcoholic beverage. Any frozen alcoholic beverage machine used for filling wine growlers shall be sanitized daily and shall be under control and served by the licensee from the secure area. A securely sealed wine growler is not an open container under state and local law. A wine growler with a broken seal is an open container under state and local law unless it is located in an area of the motor vehicle physically separated from the passenger compartment. A secure seal means using a tamper evident seal, such as: (1) A plastic heat shrink wrap band, strip, or sleeve extending around the cap or lid of wine growler to form a seal that shall be broken when the container is opened; or (2) A screw top cap or lid that breaks apart when the wine growler is opened.

2.62. "Wine sampling" means a special event conducted at a licensed wine specialty shop’s location during regular hours of business at which no more than six complimentary samples of wine, consisting of no more than three fluid ounces each may be served, to any one consumer in one day. Persons serving complimentary samples must be 21 years of age or over and an authorized representative and employee of the licensed wine specialty shop. Only a licensed representative of a winery, farm winery, licensed distributor or licensed wine supplier may attend and educate at a wine sampling, but such licensed representative may not serve samples. No licensee, employee or representative may furnish, give or serve complimentary samples of wine to any person less than 21 years of age or to a person who is physically incapacitated due to the consumption of alcoholic liquor or the use of drugs. The wine specialty shop shall notify and secure permission from the commissioner for all wine sampling events one month prior to the event. Wine sampling events may not exceed six hours per calendar day. Licensees must purchase all wines used during these events from a licensed farm winery or a licensed distributor.

2.63. "Wine specialty shop" means a licensed retailer who deals principally in the sale of table wine, certain nonfortified dessert wines, wine accessories and food, or foodstuffs normally associated with wine and who:

2.63.1. Maintains a representative number of wines for sale in his or her inventory which are designated by label as varietal wine, vintage, generic, and/or according to region of production and the inventory shall contain not less than 15% vintage or vintage-dated wine by actual bottle count; and

2.63.2. Any other provisions of the West Virginia Code or this rule to the contrary notwithstanding, may maintain an inventory of port, sherry, and Madeira wines, having an alcoholic content of not more than 22% alcohol by volume, which have been matured in wooden barrels or casks. All wine available for sale shall be for off-premises consumption except where wine tasting, or wine sampling is separately authorized by this code.

2.64. "Wine tasting" means an activity in which members of a wine taster’s club, which has at least fifty duly-elected and approved dues-paying members in good standing, meet on the premises of a licensed wine specialty shop not more than one time per week either at a time when the premises are closed to the general public or in a segregated facility on the premises to which the general public is not admitted for the purpose of tasting and comparing different wines. Persons serving at the wine tasting must be 21 years of age or over.

2.65. "Wine Tasting Club" means a club organized in association a licensed wine specialty shop which has at least 50 duly elected or approved dues-paying members in good standing. Club meetings shall be on the wine specialty shop’s licensed premises and shall not occur more than one time per week and shall either meet at a time when the licensed premises are closed to the general public or meet in a separate segregated facility on the licensed premises to which the general public is not admitted. Attendance at wine tastings shall be limited to duly elected or approved dues-paying members and their guests. Membership may be collected or maintained manually in written form or electronically via a website or social media platform.

W. Va. Code R. § 175-4-3 Suppliers

3.1. Licensing of suppliers and sales representatives. -- All suppliers are required to be registered and licensed by the Commissioner prior to entering into any sales transactions with a licensed West Virginia distributor. Every supplier must have a representative licensed to solicit or consummate sales in this state. A supplier or its representatives must complete an application on a form provided by the Commissioner or available on the ABCA website at www.abca.wv.gov. This form must be completed in its entirety and failure to complete all questions shall constitute grounds for refusal to grant a license. The licensing of one (1) representative shall not preclude the required registration and licensure of other persons acting as representative for the same supplier.

3.2. Monthly report of supplier.

3.2.1. Every supplier must file with the Commissioner a properly completed monthly report stating the amount of wine, in liters, or liter equivalents, it sold and shipped to licensed West Virginia distributors during the previous month. The monthly report must be filed before the 16th day of the month following the month for which the report is filed and shall be made on Monthly Summary Report of Total Liters Sold, Shipped and Delivered to Distributors, West Virginia Alcohol Beverage Control Commissioner Form and Wine Shipped Into the State of West Virginia State Tax Form WV/WNE-01. A supplier is required to file only one (1) monthly report even though the supplier may have more than one (1) licensed sales representative in the state.

3.2.2. A monthly report shall contain the following information:

3.2.2.a. The name and address of the supplier;

3.2.2.b. The name and address of the supplier’s licensed West Virginia representative. If the supplier has more than one licensed representative, the supplier is required to report only the name and address of the licensed representative primarily responsible for the State of West Virginia. If all of a supplier’s representatives are of equal status, the supplier may report the name and address of only one (1) representative;

3.2.2.c. The calendar month for which the report is being made;

3.2.2.d. The name, address, and ABCA license number of every licensed West Virginia distributor to whom the supplier sold or delivered wine;

3.2.2.e. The total number of liters the supplier sold and delivered to each West Virginia distributor; and

3.2.2.f. The name and business telephone number of the person who prepared the report on behalf of the supplier.

3.2.3. All monthly reports shall be completed in the manner provided upon such form and shall be considered tax returns under W. Va. Code §11-10-1 et. seq.

3.2.4. At the time of shipment, the supplier shall forward to the Commissioner one (1) copy of the invoice of each shipment the supplier made to a licensed West Virginia distributor during the reporting period. The invoice shall identify the licensed West Virginia distributor to whom the shipment was delivered, the items shipped by label identification, the quantity of wine delivered, stated in liters, and the alcohol content of each item sold, shipped, and delivered to the distributor.

3.2.5. The supplier shall file each monthly report in duplicate with the Tax Commissioner and the ABCA Commissioner. The supplier shall collect and remit to the Tax Commissioner at the close of each month all taxes, including sales taxes, municipal taxes, and liter tax, due to the State of West Virginia, together with the supplier's monthly return reflecting the taxes paid for all sales and shipments to residents in West Virginia. The supplier shall provide the Commissioner with a copy or a receipt of payment of the taxes. A supplier who fails to file a monthly report by the 21st calendar day of the month after the reporting period is subject to the penalties provided in W. Va. Code §60-8-1 et seq.

3.3. Post-offs permitted; limitations, and restrictions. -- Post-offs are permitted subject to the limitations and restrictions of this section.

3.3.1. No supplier shall offer to any distributor in this state any post-off which is conditioned upon either:

3.3.1.a. A requirement that the distributor pass through such post-off to any retailer, or

3.3.1.b. That the distributor participate in such post-off in such a way that the distributor is required to match, either in whole or in part such post-off. Every post-off shall be offered under equal terms and conditions to every distributor carrying the product of the supplier to which the post-off applies.

3.3.1.c. Nothing herein prohibits a distributor from participating in any post-off offered by a supplier or from passing the post-off on to any licensed retailer, private wine bed and breakfast, private wine restaurant or private wine spa so long as the same satisfies requirements of this rule and so long as such post-off is passed on to all persons, in whole or in part, equally.

3.4. Prohibited supplier sales. -- No supplier, except a farm winery, may sell or furnish wine to a licensed retailer, private wine bed and breakfast, private wine restaurant, or private wine spa except through a licensed distributor or the Commissioner.

3.5. Duration of license. The annual licensing period shall begin on July 1 of the year for which an application for licensure is made and shall end on June 30 of the following year.

3.6. Fees

3.6.1. The annual license fee for a supplier’s license is $150. If the application for licensure is made at any time from July 1 through December 31, the applicant shall remit with the application the operational fee (See W. Va. Code §60-2-17b) and the full license fee. If an application for licensure for the expiring fiscal year is filed at any time from January 1 through June 30, the applicant shall remit with the operational fee, and also the application one half (1/2) of the annual license fee, or $75;

3.6.2. The annual license fee for a supplier’s representative is $100. If the application for licensure is made at any time from July 1 through December 31, the applicant shall remit with the application the full license fee.

3.6.3. The annual license fee and operational fee shall be made payable to the West Virginia Alcohol Beverage Control Administration Commissioner by certified check, cashier's check, business check, personal check, or money order, or by credit card only on the ABCA website at www.abca.wv.gov. All payments must accompany or be made simultaneously with the filing of an application. The Commissioner will refund any license fee paid by an applicant who fails to qualify for licensure.

3.6.4. Any licensee that fails to complete a renewal application and to make payment of its annual license fee to renew its license on or before June 30 of any year, after initial application, shall be charged an additional $150 reactivation fee. The licensee must pay the applicable operational fee, full-year annual license fee, and the reactivation fee prior to the processing of any renewal application. Any licensee who continues to operate upon the expiration of its license is subject to all fines, penalties, and sanctions available in W. Va. Code §60-8-1 et seq., as determined by the commissioner.

3.7. Wine brand registration and review. No supplier, distributor, or direct shipper may sell or ship wine to or within West Virginia until a licensed supplier or a licensed direct shipper has registered the wine brand and the corresponding labels of that brand with and paid all registration fees to the Commissioner.

3.7.1. The licensed supplier or direct shipper shall submit an application for wine brand registration on a form provided by the Commissioner or available on the ABCA website at www.abca.wv.gov. The application shall contain the following:

3.7.1.a. The name, address, and West Virginia supplier or direct shipper license number of the applicant;

3.7.1.b. The name of any licensed West Virginia distributor to which the applicant will sell the wine brand;

3.7.1.c. The name of a licensed West Virginia representative of the applicant. If the applicant has more than one (1) licensed representative, it may give only the name of the representative dealing primarily with the West Virginia distributor;

3.7.1.d. The brand name of the wine to be registered and the name of the winery or farm which manufactured the wine;

3.7.1.e. The class and/or type of wine to be registered;

3.7.1.f. The alcohol content of the wine by volume;

3.7.1.g. The date of the registration application;

3.7.1.h. The signature and title of the person who completed the registration application form; and

3.7.1.i. Any other information the Commissioner may specify on the wine brand registration form.

3.7.2. The applicant shall submit the brand registration form to the Commissioner along with:

3.7.2.a. Unattached labels of all wines to be registered under the brand and any other information describing each label;

3.7.2.b. The Department of Treasury Alcohol and Tobacco Tax and Trade Bureau (TTB) Certificate of Label Approval (COLA);

3.7.2.c. The TTB number; and

3.7.2.d. A fee of $100 for each brand to be registered to be paid by certified check, cashier's check, business check, business check, personal check, or money order payable to the Alcohol Beverage Control Commissioner.

3.7.3. The applicant for registration is required to file only one (1) registration application for each brand of wine, regardless of the number of labels or the various sizes of the wine to be sold.

3.7.4. Before registering any brand of wine, the Commissioner shall review the brand's labels, including, but not limited to, the alcohol content, corporate or product information, marketing and advertising to determine whether the wine is intended to be marketed to persons under 21 years of age.

3.7.5. The Commissioner will refund any registration fee submitted for a wine brand that is not registered for sale in West Virginia.

3.7.6. Brand registration remains effective for three (3) years. During that time, the supplier or direct shipper must submit each new label added to the wine brand for review by the Commissioner before the label may be sold in West Virginia.

3.7.7. A supplier or direct shipper who fails to submit all labels, to register a wine brand, to obtain certification, or to pay the registration fee or any licensee who sells or ships unregistered wine in West Virginia is subject to the penalties provided in W. Va. Code §60-8-1 et seq.

3.7.8. At the end of the three-year registration period, a supplier or direct shipper may renew its brand registration for an additional three years by:

3.7.8.a. Submitting a new application for registration;

3.7.8.b. Submitting or resubmitting all labels for each brand to be sold in or shipped to West Virginia;

3.7.8.c. Paying a $100 renewal fee for each brand to be registered.

3.7.9. The Commissioner may remove any wine brand or label that is not renewed at the end of the registration period.

3.8. Primary Source.

3.8.1. Prior to selling, shipping, or delivering any wine to a licensed distributor, a supplier must file a letter of primary source authorization with the Commissioner granting the distributor the right to distribute their brand or brands of wine in West Virginia.

3.8.2. All distributor terminations require a notice of termination to be sent to the distributor with a copy filed with the Commissioner subject to the requirements of this rule.

W. Va. Code R. § 175-4-4 Wine Distributors

4.1. Licensure application; form. -- The application for licensure as a wine distributor shall be made on a form provided by the Commissioner or available on the ABCA website at www.abca.wv.gov. This form must be completed in its entirety and failure to complete all questions may constitute grounds for refusal to grant a license.

4.2. Licensure application; content. -- The application for licensure as a wine distributor shall contain and include the following:

4.2.1. The name and address of applicant and the applicant’s manager, and also whether the applicant is an individual, corporation, partnership, association, or other business entity;

4.2.2. The business trade name of the applicant;

4.2.3. The exact location of the principal place of business;

4.2.4. The number and exact location of all warehouses to be operated by the applicant for the purpose of distribution of wine;

4.2.5. The date upon which the applicant began the operation of the business;

4.2.6. Whether the applicant is the owner of all business premises for which the license is issued, and if not, whether the applicant is the actual and bona fide lessee of any or all such premises, including the lessor's name and address for each business premises so leased;

4.2.7. Whether the applicant intends to carry on the business for which he or she is to be licensed personally or under his or her immediate supervision or direction, and if not, the name, age, and address of the person who will manage or conduct the affairs of the distributorship;

4.2.8. Whether the premises for which the license is sought conforms to all applicable health and fire laws and regulations and to existing zoning ordinances;

4.2.9. Whether the applicant, if an individual, or whether any partner, member, officer, director or stockholder of the applicant holds or owns any interest in any licensed retailer, and if so, the extent and nature of such ownership;

4.2.10. If the applicant or the applicant’s manager is an individual, a statement whether such applicant or the applicant’s manager are citizens of the United States, bona fide residents of the State of West Virginia, the length of such residency for each, and whether each has attained 18 years of age;

4.2.11. If the applicant is a partnership, association, or other business entity, whether each member, is a citizen of the United States, a bona fide resident of the State of West Virginia and the length of such residency and whether such member has attained 18 years of age;

4.2.12. If the applicant is a corporation, a statement whether the person who is or will be conducting or managing the business of the applicant is a citizen of the United States, resident of the State of West Virginia and whether such person has attained 18 years of age;

4.2.13. Whether the applicant or any partner, member, manager, officer, director, or person owning 20% or more of the stock or beneficial interest in the applicant:

4.2.13.a. Has been convicted of a felony or other crime involving moral turpitude within three (3) years next preceding the filing date of the application;

4.2.13.b. Has been convicted of a violation of the liquor laws of any state or the United States within two (2) years next preceding the filing date of the application; or

4.2.13.c. Had any license revoked under the liquor laws of any state or of the United States within five (5) years next preceding the filing date of the application;

4.2.14. Whether the applicant has entered into any exclusive franchise agreement with any manufacturer, producer, processor, distributor, or supplier of wine which grants the applicant the exclusive right within the State of West Virginia or within any given territory thereof to distribute the product or products of the manufacturer, producer, processor, distributor, or supplier;

4.2.15. If the applicant is a corporation, the names, addresses, and corporate title of all officers, which statement shall include the name, address, and age of all persons having 20% or more of stock or beneficial interest in the applicant;

4.2.16. Termination provision requirement. -- In addition to the application, the applicant must file with the Commissioner a copy of any written agreement between the applicant and any manufacturer, winery, farm winery, or supplier for inclusion in the distributor's file at the Commissioner's office. Unless the parties have provided otherwise in the written agreement, either party may terminate the agreement upon serving written notice of termination by certified mail to the Commissioner and all parties to the agreement at least 90 days prior to termination. Once appropriate notice of termination has been received, the distributor may use the termination period to deplete its affected wine inventory or to reach a written agreement with the manufacturer, winery, farm winery, or supplier to return unused salable wine inventory or receive payment for unused salable wine inventory. During the termination period, the manufacturer, winery, farm winery, or supplier may not appoint a new distributor to sell its products in this state. For purposes of this subsection, "salable" means inventory fit for human consumption. The ABCA expects the parties to cooperate in good faith during the termination period. The Commissioner has discretion to allow a terminated distributor additional time to sell the terminated wine brands, if the supplier fails to reach an agreement with the distributor.

4.3. Licensure application; signature and acknowledgment required. -- All applications shall be signed by the applicant and the applicant’s manager and shall be made under oath and acknowledged or verified. In the case of a partnership, the application shall be signed by each of the partners. In the case of a limited partnership, the application shall be signed by each of the general partners and each limited partner who owns 20% or more of the capital or profits of such limited partnership. In the case of a voluntary association, all members of the governing board shall sign. In the case of a corporation, each officer and director shall sign.

4.4. Monthly report of distributor; form; content.

4.4.1. Every distributor must furnish a properly completed monthly report of the quantity of wine purchased and received from suppliers and sold to licensed retailers, private wine bed and breakfasts, private wine restaurants, and private wine spas. This quantity shall be reported in liters or liter equivalents. The report must be filed before the 16th day of the month next succeeding the month for which the report is made and shall be made on "Distributor’s Summary of Wine Purchases, Sales & Inventory form", or a form provided by the Commissioner. Each monthly report shall be considered tax returns under W. Va. Code §11-10-1 et seq.

4.4.2. A monthly report shall contain the following information:

4.4.2.a. The name, address, and telephone number of the distributor;

4.4.2.b. The month for which the report is being made;

4.4.2.c. The beginning and ending wine inventory for the month;

4.4.2.d. The name, address, and license number of each supplier from which deliveries were received;

4.4.2.e. The total number of liters of wine purchased or received, and the total number of liters wine sold or transferred to licensed retailers, private wine bed and breakfasts, private wine restaurants, and private wine spa;

4.4.2.f. The total amount of wines rendered unsalable by reasons of breakage, leakage, spoilage, shortages, and use as samples as reported on a form provided by the Tax Commissioner or available on his or her website at www.tax.wv.gov;

4.4.2.g. Any transfers of wine in or out of the distributorship;

4.4.2.h. The identification, business telephone number, and signature of the person preparing the report on behalf of the distributor attesting under the penalty of perjury under state law that the report is true and correct; and

4.4.2.i. Such other information as the Commissioner requires.

4.5. Invoices required; content. -- Each distributor shall forward to the Commissioner with the monthly report one (1) copy of all invoices of all sales made to licensed retailers, private wine bed and breakfasts, private wine restaurants, and private wine spas during the month for which the report is made. The invoice shall identify the licensed retailer, private wine bed and breakfast, private wine restaurant, or private wine spa to which the distributor made sold to, the items sold by label identification and the quantity, stated in liters, and the alcohol content of each item sold.

4.6. Each monthly report must be filed in duplicate with the Tax Commissioner and the Commissioner. Distributors must report, collect, and remit all taxes, sales taxes, municipal taxes, and the liter tax due to the state to the Tax Commissioner at the close of each month with the Distributor’s monthly return and include the taxes paid for all sales and shipments to residents in West Virginia. The Tax Commissioner shall provide the Commissioner with a copy or a receipt of payment of the taxes. Failure to timely file the monthly reports within five calendar days before the sixteenth day of the month will subject the distributor to penalties under W. Va. Code §60-8-18. (See The Tax Commissioner’s website, www. tax.wv.gov, for applicable tax forms).

4.7. Corporate charter, partnership agreement, or association bylaws required. -- If the applicant for licensure as a wine distributor is a corporation, the applicant shall furnish the Commissioner a copy of its corporate charter, including any amendments thereto. If the applicant is a partnership, limited partnership, or association, it shall provide a copy of the partnership agreement or the association's bylaws.

4.8. Fees. -- An applicant for licensure as a wine distributor shall remit with the application, the operational fee (See W. Va. Code §60-2-17b) and the annual distributor license fee is $2,500 for the distributor's license and a like amount for each separate warehouse or facility from which the distributor sells, transfers, or delivers wine. The annual licensing period begins on July 1 of the year for which the application is made and ends on June 30 of the following year.

4.8.1. If the application is for licensure for less than an entire fiscal year, the annual license fee shall be proportionate to the remainder of such year according to the date of application, as follows:

4.8.1.a. If application is made at any time from July 1 through December 31, the distributor shall pay the full annual license fee.

4.8.1.b. If the application is made at any time from January 1 through June 30, the distributor shall pay one half (1/2) of the annual license fee.

4.8.2. The operational fee and the annual license fee or proportional share shall be made payable to the West Virginia Alcohol Beverage Control Administration Commissioner by certified check, cashier's check, business check, personal check, or money order, or by credit card only on the ABCA website at www.abca.wv.gov. All payments must accompany or be made simultaneously with the filing of an application.

4.8.3. Any licensee that fails to complete a renewal application and to make payment of its annual license fee to renew its license on or before June 30 of any year, after initial application, shall be charged an additional $150 reactivation fee. The licensee must pay the applicable operational fee, full-year annual license fee, and the reactivation fee prior to the processing of any renewal application. Any licensee who continues to operate upon the expiration of its license is subject to all fines, penalties, and sanctions available in W. Va. Code §60-8-1 et seq., as determined by the commissioner.

4.9. Investigations. -- Upon receipt of an application the annual fee, and other documents required to be provided with an application, the Commissioner shall make a thorough investigation to determine whether the applicant and the applicant’s manager and all locations and premises to be operated by the applicant pursuant to the license applied for qualify for licensure as a distributor and shall investigate all matters connected therewith, including, but not limited to, any matters which may affect the public welfare, health, and morals.

4.10. Refusal of license. -- No license shall be issued to any applicant or applicant’s manager:

4.10.1. That submits an application for licensure that contains any false statement;

4.10.2. That is affirmatively shown to be not a suitable person in the community or communities in which it operates;

4.10.3. In which any partner, member, manager, officer, director, or stockholder owning 20% or more stock or other person conducting or managing the affairs of the applicant or of the proposed licensed premises, in whole or in part:

4.10.3.a. Has been convicted of a felony or other crime involving moral turpitude within three years next preceding the filing date of the application;

4.10.3.b. Has been convicted of violating the liquor laws of any state or the United States within two years next preceding the filing date of the application;

4.10.3.c. Had any license revoked under the liquor laws of any state or the United States within five years next preceding the filing date of the application; or

4.10.3.d. Fails to comply with the liquor laws or the rules or regulations of either this state or of the United States.

4.11. License not transferable. -- A license issued to a distributor is valid only for the person, firm, or corporation named thereon. The license shall extend to all warehouses utilized by the licensee, firm, or corporation for the distribution of wine to licensed retailers, private wine bed and breakfasts, private wine restaurants, and private wine spas. A distributor license is not transferable. If there is a change in beneficial ownership of the distributor to the extent of 20% or less, the Commissioner shall be notified in writing by the distributor or the person changing the beneficial ownership of the distributor within 10 days next succeeding such transfer. If there is a change in the beneficial ownership of the distributor in excess of 20%, the license shall be voided by the Commissioner and the licensee must make application for a new license. If there is a transfer in the beneficial ownership of any interest in a licensed distributor, irrespective of the amount thereof, the new ownership of such beneficial interest must comply with all laws of the United States and any rules and regulations promulgated pursuant thereto and with the laws of the State of West Virginia, including, but not limited to, the provisions of W. Va. Code §60-1-1 et seq., and any promulgated rules and regulations.

4.12. Warehousing; copies of license to be posted; records required to be maintained at each warehouse; interdistributor commingling of stock prohibited.

4.12.1. Each licensed distributor must have, prior to licensure sufficient and adequate warehouse facilities for the storage and distribution of wine. Facilities shall be located in a building which:

4.12.1.a. Which has adequate floor space to stock projected wine inventory in a safe manner;

4.12.1.b. Is not used as a dwelling place or a garage; and

4.12.1.c. Has adequate egress and ingress for delivery trucks.

4.12.2. If a distributor maintains separate warehouse facilities, a copy of his license must be displayed at each warehouse location.

4.12.3. If a licensed distributor has more than one warehouse to which the license applies and from which wine is distributed, each warehouse shall be regarded as a separate entity and any record, invoice or other document required by law or this rule to be kept by such distributor shall be physically maintained at each warehouse with respect to all wine received at and/or distributed from the warehouse.

4.12.4. Except as to interdistributor transfers that may be authorized by the laws of this State or by this rule, no licensed distributor may utilize in any manner the warehouse facilities of another licensed distributor or commingle the wine stock of any one distributor in any way with the wine stock of any another licensed distributor.

4.13. Change of location. -- Any distributor who desires or intends to change the location of his or her principal place of business or of any warehouses, or to acquire and utilize an additional warehouse for the distribution of wine during the period for which his her distributor license is current, shall notify the Commissioner in writing at least 30 days before the date of the relocation or acquisition. No relocation or acquisition is permitted until the Commissioner issues his or her written approval. Provided, that in the case of fire or flood, the commissioner may waive the 30 day advance notice upon request of the affected distributor.

4.14. Wine brand registration and review required. -- No wine may be sold by a supplier to a licensed distributor or by a licensed distributor to a licensed retailer, private wine bed and breakfast, private wine restaurant, or private wine spa until the brand and the corresponding labels of such wine are reviewed and registered with the Commissioner and fees for such registration have been paid to the Commissioner.

4.15. Presales required; sales by route delivery men prohibited; invoices or purchase orders required.

4.15.1. No route delivery man or other person delivering wine from a distributor to a licensed retailer, private wine bed and breakfast, private wine restaurant, or private wine spa may sell or deliver to the licensee any wine which the license did not previously order. All sales of wine from a distributor to a retailer, private wine bed and breakfast, private wine restaurant, or private wine spa shall be upon order made by such licensee prior to the delivery thereof. All such sales shall be paid for in their entirety upon delivery. No distributor may transport any wine for which there is no invoice or purchase order.

4.15.2. No delivery shall be increased in the amount of wine delivered beyond that which has been previously ordered nor shall there by any substitution of any particular wine for another which has not been previously ordered.

4.16. Credit sales prohibited.

4.16.1. No distributor shall extend credit to a licensed retailer, private wine bed and breakfast, private wine restaurant, or private wine spa, either in whole or in part, for any wine product received by the licensee. Every delivery of wine to a licensee shall be paid for in its entirety no later than the completion of such delivery. Credit sales include consignment sales. Each distributor must immediately, and in the regular course of business, deposit in a bank all checks given by a licensed retailer, private wine bed and breakfast, private wine restaurant, or private wine spa, for the purchase of wine. No distributor may individually or through his or her agents or employees, enter into any agreement or understanding with any licensed retailer, private wine bed and breakfast, private wine restaurant, or private wine spa, to hold any checks beyond the time required by this rule.

4.16.2. The giving of a worthless check by the licensed retailer, private wine bed and breakfast, private wine restaurant or private wine spa, to a distributor or the distributor’s acceptance of a worthless check from the licensed retailer, private wine bed and breakfast, private wine restaurant, or private wine spa, is prima facie evidence of an extension of credit and is, in the discretion of the Commissioner, grounds for the revocation or suspension of the licensed retailer's, private wine bed and breakfast’s, private wine restaurant’s, private wine spa’s, or distributor's license.

4.17. Split case sales permitted; charges. -- A distributor may distribute wine to a licensed retailer, private wine bed and breakfast, private wine restaurant or private wine spa, in either full cases containing only one (1) size and type of wine or a "split case" which is a case of wine which contains not more than one (1) size and type of wine. The distributor may impose a surcharge for a split case which shall be applied equally to every licensed retailer, private wine bed and breakfast, private wine restaurant, or private wine spa to whom the distributor sells wine.

4.18. Transportation of wine or other alcoholic liquors by distributors. -- A distributor, by virtue of his or her license, may transport within this State any wine permitted to be sold at retail under the provisions of W. Va. Code §60-8-1 et seq. which wine has either been consigned to him, or for which the person actually transporting such wine has either an invoice or purchase order in his possession. A distributor may not transport any other alcoholic liquor without a transportation permit issued by the Commissioner.

4.19. Platform deliveries permitted. -- Platform deliveries or truck pickups at the licensed premises of a distributor by a licensed retailer, private wine bed and breakfast, private wine restaurant, or private wine spa, are permitted so long as the person taking possession at the time of delivery is 21 years of age or older.

4.20. Identification of distributor representatives and employees. -- Every representative or other person soliciting (including, but not limited to, phone/internet/other media solicitation, in-person solicitation or other contact with retailers, suppliers, or manufacturers) sales on behalf of a distributor must be licensed and must have an identification card provided by the distributor identifying the person as the distributor’s representative and must exhibit the identification card on demand by any licensed retailer, private wine bed and breakfast, private wine restaurant, private wine spa, wine specialty shop, fair and festival, private club types, or representative of the Commissioner. Every person (including, but not limited to, drivers and other delivery persons) delivering wine for a distributor must have an identification card provided by the distributor identifying the person as the distributor’s employee and must exhibit the identification card on demand by any licensed retailer, private wine bed and breakfast, private wine restaurant, private wine spa, or representative of the Commissioner.

4.21. Samples. -- With the approval of the Commissioner, distributors may give a sample to a licensed retailer, private wine bed and breakfast, private wine restaurant, or a private wine spa, samples of any wine not then currently carried in the inventory of the licensee when such sample has been approved by the Commissioner and provided the licensee has an appropriate wine sampling or tasting license. No licensed retailer, private wine bed and breakfast, private wine restaurant, or private wine spa may sell samples. All samples provided shall be noted on the distributor’s monthly report required to be filed under the provisions of W. Va. Code §60-8-4, and attached to the Commissioner’s form available at www.abca.wv.gov and on a form provided by the Tax Commissioner or available on his or her website at www.tax.wv.gov. Samples may be no greater in amount than 750 milliliters, must be labeled with the word "Sample" clearly printed thereon in at least one inch point type and shall indicate that the product is not for sale.

4.21.1. Only a licensed distributor or its licensed representatives may give samples to a licensed retailer, private wine bed and breakfasts, private wine restaurants or private wine spas. Suppliers, and employees and representatives of suppliers, may not give samples to licensed retailers, private wine bed and breakfasts, private wine restaurants or private wine spas, but may accompany any distributor, or the representative or employee of any distributor, at the time the sample is given or delivered to any retailer, licensed retailer, private wine bed and breakfast, private wine restaurant, or private wine spa.

4.21.2. Any person, firm, or corporation who holds more than one (1) licensed retailer, private wine bed and breakfast, private wine restaurant, or private wine spa license, may receive one (1) sample of any wine bearing the same label for each licensed establishment: Provided, That the sample must be delivered separately to each such licensed establishment.

4.22. A distributor may rotate and stock wine in a grocery store or wine specialty shop; provided, that products purchased from other distributors are not altered or disturbed. Any shelf planning or diagramming provided by a distributor to a retailer must comply with the federal law and be offered to all retailers.

4.23. Every distributor representative must be licensed by the Commissioner and submit information as required by the Commissioner prior to licensure. No person may conduct wine samplings or wine tastings on a distributor’s licensed premises.

4.24. With the approval of the supplier, a distributor may sell, transfer, or deliver wine to another licensed distributor a particular brand or brands of wine of which the other distributor may be temporarily out of stock for sale at wholesale. The distributor must retain records of such sale or transfer.

W. Va. Code R. § 175-4-5 Licensed Retailers

5.1. Licensure application; form. -- The application for licensure as a licensed retailer shall be made on a form provided by the Commissioner or available on the ABCA website at www.abca.wv.gov.

5.2. Licensure application; content. -- The application for licensure as a licensed retailer shall contain and include the following:

5.2.1. The name and address of the applicant and the applicant’s manager, and shall state whether the applicant is an individual, corporation, partnership, association, or other business entity;

5.2.2. The business trade name of the applicant;

5.2.3. The exact location of the business establishment;

5.2.4. Whether the application is for the sale of wine in a bona fide grocery store, a separate and segregated portion of any other retail store dedicated solely to the sale of food, or a wine specialty shop;

5.2.5. The date upon which the applicant began the operation of the business;

5.2.6. Whether the applicant is the owner of the business premises for which the license is sought, and if not, whether the applicant is the actual and bona fide lessee of such premises including the lessor's name and address;

5.2.7. Whether the applicant intends to carry on the business for which he or she is to be licensed for personally or under his or her immediate supervision or direction, and if not, the name, age, and address of the person who will manage or conduct the affairs of the retail business;

5.2.8. Whether the place of business for which the license is sought conforms to all applicable health and fire laws, rule or regulations, and existing zoning ordinances;

5.2.9. Whether the applicant, if an individual, or whether any partner, member, officer, director, or stockholder of the applicant holds or owns any interest in any licensed wine distributor, and if so, the extent and nature of such ownership;

5.2.10. If the applicant or the applicant’s manager is an individual, whether the applicant or the applicant’s manager is a citizen of the United States, a bona fide resident of the State of West Virginia and the length of such residence, and whether the applicant or the applicant’s manager has attained 18 years of age;

5.2.11. If the applicant is a partnership, association, or other business entity, whether each member, is a citizen of the United States, a bona fide resident of the State of West Virginia and length of such residence and whether such member has attained 18 years of age;

5.2.12. If the applicant is a corporation, whether the person who is or will be conducting or managing the business of such applicant is a citizen of the United States, resident of the State of West Virginia and whether the person has attained 18 years of age;

5.2.13. Whether the applicant or any partner, member, manager, officer, director, or person owning 20% or more of the stock or beneficial interest in the applicant:

5.2.13.a. Has been convicted of a felony or other crime involving moral turpitude within three (3) years next preceding the filing date of the application;

5.2.13.b. Has been convicted of a violation of the liquor laws of any state or of the United States within two (2) years next preceding the filing date of the application; or

5.2.13.c. Has had any license revoked under the liquor laws of any state or of the United States within five (5) years next preceding the filing date of the application;

5.2.14. If the applicant is a corporation, the name, address, and corporate title of each officer, and the name, address, and age of any persons owning 20% or more of the stock or beneficial interest in the applicant;

5.2.15. Whether the business premises of the applicant are located within an incorporated municipality or within one mile of the corporate limits of one or more incorporated municipalities, and, if so, the name of each municipality;

5.2.16. Whether the applicant is licensed either as a private club type under the provisions of W. Va. Code §60-7-1 et seq., or as either a Class A nonintoxicating beer retailer or a Class B nonintoxicating beer retailer under the provisions of W. Va. Code §11-16-1 et seq.;

5.2.17. If the application is for a bona fide grocery store or for any other type of retail store with a separate and segregated portion of the store devoted to the sale of food, food products, and supplies for the table, the application shall indicate whether the average monthly sales of grocery items, exclusive of wines, exceed $500 and whether the average monthly inventory, exclusive of wines, exceeds $500;

5.2.18. Background checks. The Commissioner shall conduct background investigations for the purpose of determining whether an applicant or the applicant’s manager for a licensed retailer’s license has been charged with, indicted for, or convicted of a crime that may have bearing upon the applicant’s fitness to hold a license. For the purposes of this paragraph, "background investigation" means a security, criminal, and credit investigation of an applicant who has applied for the issuance or renewal of a license pursuant to W. Va. Code §60-8-1 et seq. The applicant and the applicant’s manager will complete and submit West Virginia Alcohol Beverage Control Administration Release of Information and Waiver of Confidentiality of Records Form to the Commissioner. The applicant and the applicant’s manager will obtain a fingerprinting service code from the ABCA. The applicant(s) and applicant's manager will contact the current background check service provider to schedule fingerprinting for completion of the background check. The current background check provider will receive the background results from the WV State Police and the Federal Bureau of Investigation. The results will be shared with the ABCA by the WV State Police; and

5.2.19. Such other information as the Commissioner may require.

5.3. Licensure application; signature and acknowledgement required. -- Each application shall be signed by the applicant and the applicant’s manager, made under oath and acknowledged or verified. In the case of a general partnership the application shall be signed by each of the partners. In the case of a limited partnership, the application shall be signed by each of the general partners and by each limited partner who owns 20% or more of the capital or profits of such limited partnership. In the case of a voluntary association, all members of the governing board shall sign. In the case of a corporation, the application shall be signed by either its president or a vice president.

5.4. Corporate charter, partnership agreement, or association bylaws required. -- If the applicant for licensure as a licensed retailer is a corporation, the applicant shall furnish with its application a copy of its corporate charter, including any amendments thereto. If the applicant is a partnership, limited partnership, or association, such applicant shall provide a copy of the partnership agreement or a copy of the association's bylaws.

5.5. Fees. -- An applicant for licensure as a licensed retailer shall remit with the application the operational fee (See W. Va. Code §60-2-17b) and the annual license fee for such license. The annual licensing period shall begin on July 1 of the year for which the application is made and shall end on June 30 of the following year.

5.5.1. If the application is for licensure as a retailer or wine specialty shop is for less than an entire fiscal year, then such license fee shall be proportionate to the remainder of such year according to the date of application, as follows:

5.5.1.a. If the application is made at any time from July 1 through December 31, the fee shall be the full annual license fee, or $150 for a retailer license or $250 for a wine specialty shop license.

5.5.1.b. If the application is made at any time from January 1 through June 30, the license fee shall be one half (1/2) of the annual fee, or $75 for a retailer license or $125 for a wine specialty shop license.

5.5.2. Fees shall be payable to the West Virginia Alcohol Beverage Control Administration Commissioner by certified check, cashier's check, business check, personal check, or money order, or by credit card only on the ABCA website at www.abca.wv.gov. All payments must accompany or be made simultaneously with the filing of an application.

5.5.3. Any licensee that fails to complete a renewal application and to make payment of its annual license fee to renew its license on or before June 30 of any year, after initial application, shall be charged an additional $150 reactivation fee. The licensee must pay the applicable operational fee, full-year annual license fee, and the reactivation fee prior to the processing of any renewal application. Any licensee who continues to operate upon the expiration of its license is subject to all fines, penalties, and sanctions available in W. Va. Code §60-8-1 et seq., as determined by the commissioner.

5.6. Investigations. -- Upon receipt of an application for licensure, the fee, the bond and other required documents, the Commissioner shall make a thorough investigation to determine whether the applicant and the applicant’s manager, and all locations and premises to be operated by the applicant pursuant to the license applied for, qualify for licensure. The Commissioner shall investigate all matters, including but not limited to, such matters which may affect the public welfare, health and morals.

5.7. Refusal of license. -- No license may be issued to an applicant or the applicant’s manager, who;

5.7.1. Submits an application for licensure that containing a false statement;

5.7.2. Is affirmatively shown to be not a suitable person in the community or communities in which it operates. The Commissioner may refuse to grant any license if he or she has reasonable cause to believe that the applicant, or if the applicant is a partnership or association, any partner or member thereof, or if the applicant is a corporation, any officer, director or manager thereof, or shareholder owning 20% or more of its capital stock, or other person conducting or managing the affairs of the applicant or of the proposed licensed premises, in whole or in part:

5.7.2.a. Is not 21 years of age or older;

5.7.2.b. Has been convicted of a felony or other crime involving moral turpitude within three (3) years next preceding the filing date of the application;

5.7.2.c. Has been convicted of violating the liquor laws of any state or the United States within two (2) years next preceding the filing date of the application;

5.7.2.d. Has had any license revoked under the liquor laws of any state or the United States within five (5) years next preceding the filing date of the application;

5.7.2.e. Is not a person of good moral character or repute;

5.7.2.f. Is not the legitimate owner of the business proposed to be licensed, or has not disclosed other persons have ownership interests in the business;

5.7.2.g. Is not possessed of or has not demonstrated financial responsibility sufficient to adequately meet the requirements of the business proposed to be licensed;

5.7.2.h. Has maintained a noisy, loud, disorderly, or unsanitary establishment;

5.7.2.i. Has demonstrated, either by his or her police record or by his or her record as a former licensee under W. Va. Code §60-1-1 et seq., a lack of respect for law and order;

5.7.2.j. Is unable to speak, understand, and read the English language in a reasonably satisfactory manner;

5.7.2.k. Is a person to whom alcoholic beverages may not be sold under the provisions of W. Va. Code §60-1-1 et seq.;

5.7.2.l. Has the general reputation of drinking alcoholic beverages to excess or is addicted to the use of narcotics;

5.7.2.m. Is physically unable to carry on the business or has been adjudicated an incompetent; or

5.7.2.n. Is an officer or employee of the Commissioner.

5.7.3. has not listed a manager on the applicant’s license application, or a licensee’s renewal application, and further that the manager shall meet all other requirements of licensure, including, but not limited to, United States citizenship or naturalization, passing a background investigation, being at least 21 years of age, not have been convicted of a felony in the previous five years before the date of application, not have been convicted of a crime involving fraud, dishonesty, or deceit in the previous five years before application, and not have been convicted of a felony crime for violating alcohol-related distribution laws in the previous five years, being capable of operating a bona fide licensed retailer of good reputation in the community, and other requirements, all as set forth in the Code and rules, in order for the manager to be able to meet and conduct any regulatory matters, including, but not limited to: licensure or enforcement matters related to the applicant or licensee all in the interest of protecting public health and safety and being a suitable applicant or licensee.

5.7.4. Fails to meet the requirements of the liquor laws or the rules or regulations of either this state or of the United States.

5.8. License not transferable.

5.8.1. A retailer’s license is valid only for the person, firm, or corporation named thereon and only for the premises for which the license is sought and issued. The license is not transferable. If there is a change in beneficial ownership to the extent of 20% or less thereof, the Commissioner shall be notified in writing by the retailer with respect thereto within 10 days next succeeding such transfer. If there is a change in the beneficial ownership in excess of 20%, then this subsection serves as notice that such license shall be voided and the licensee must make application for a new license.

5.8.2. If there is a transfer in the beneficial ownership of any interest in a licensed retailer, irrespective of the amount thereof, the new owner of such beneficial interest must comply with any and all laws of the United States and any rules or regulations promulgated pursuant thereto and of the laws of the State of West Virginia, including, but not limited to, W. Va. Code §60-1-1 et seq., and of the rules promulgated pursuant thereto.

5.9. Change of location. -- Any licensed retailer who desires or intends to change the location of the premises for which his license is issued during the period for which his or her license is current shall notify the Commissioner in writing at least 30 days next preceding the date of relocation and obtain the written approval of the Commissioner before the relocation may occur. In the event of flood or fire, the Commissioner may waive the 30 day requirement upon request of the affected licensed retailer.

5.10. Licensure of licensed retailer as private club type or Class A nonintoxicating beer retailer.

5.10.1. No person licensed as a private club type or as a Class A nonintoxicating beer retailer may be issued a licensed retailer license if the wine retail business for which the license is sought is to be conducted upon the same premises as either the private club type or Class A nonintoxicating beer retailer establishment.

5.10.2. This rule may not be construed to prohibit the holder of a private club type license or the holder of a Class A nonintoxicating beer license from holding or being a part owner in any licensed retailer whose business premises are totally separate, distinct, and apart from the premises of the private club type or Class A nonintoxicating beer retailer establishment.

5.11. Connection between licensed retailer and private club type and Class A nonintoxicating beer retailer prohibited. A licensed retailer applicant whose premises is located within the same building or structure as a licensed private club type or a Class A nonintoxicating beer retailer, may not have an internal interconnection or door between the premises of the licensed retailer and the other licensed premises. However, a Class A private wine restaurant with a connected but separate Class B wine specialty shop licensed per W. Va. Code §60-8-6g or a Class A private club type with a separately licensed Class B license that is licensed per W. Va. Code §60-7-6a are permissible.

5.12. Transportation of wine by retailer. -- A licensed retailer may not transport any wine or other alcoholic liquor unless he or she has been issued a transportation permit, wine delivery with gift basket license or wine growler delivery license, by the Commissioner for that purpose.

5.13. Transfers of wine between retailers prohibited. -- A licensed retailer who operates more than one licensed retail establishment may transfer wine from one licensed retail establishment to another licensed retail establishment. However, a licensed retailer may not transfer, sell, or convey wine to another licensed retailer. A licensed retailer may purchase wine only from a distributor which is licensed in accordance with W. Va. Code §60-8-1 et seq., or a farm winery licensed in accordance with W. Va. Code §60-8-1 et seq.

5.14. Wine specialty shop. -- A wine specialty shop shall, in addition to maintaining a representative inventory of wines which include varietal wines, generic wines, and wines labeled according to the region or place of production, maintain an inventory of not less 15% by actual bottle count of wines which are vintage or vintage dated, which shall be determined by actual bottle count of the total wine inventory. A wine specialty shop may maintain an inventory of port, sherry, and Madeira wines which have an alcoholic content of not more than 22% alcohol by volume and have been matured in wooden barrels or casks. In addition, a wine specialty shop shall at all times have in its inventory available for sale food or foodstuffs which are normally associated with wines and have a representative inventory of wine accessories. A wine specialty shop may purchase only from a licensed distributor in this state or a licensed farm winery.

5.15. Wine specialty shops and wineries and farm wineries that have obtained a wine specialty shop license may conduct wine samplings and wine tastings when complying with the requirements of such events. A wine tasting license is $150 annually. A wine sampling license is $150 annually.

5.16. Delivery of wine gift basket by a wine specialty shop

5.16.1. Application -- On a form provided by the Commissioner or available on the ABCA website at www.abca.wv.gov, a licensed wine specialty shop may apply for a wine specialty shop delivery license privilege.

5.16.2. Fees -- The nonprorated, nonrefundable fee for the additional wine specialty shop delivery license privilege is $250.

5.16.3. A wine specialty shop may only deliver wine with a gift basket for personal use and not for resale to addresses within the State of West Virgina, and: 5.16.3.a . May only deliver in the county where the wine specialty shop is located with all sales and municipal taxes accounted for and paid, as long as such county or municipality is not a dry county or local option area;

5.16.3.b. Shall not deliver in excess of two cases of wine with a gift basket per month to any person or address;

5.16.3.c. Shall not deliver wine to any private club type, private wine restaurant, private wine bed and breakfast, or private wine spa;

5.16.3.d. Shall ensure that all wine delivered is sealed in the original container and is clearly and conspicuously labeled with the words "CONTAINS ALCOHOL; SIGNATURE OF PERSON 21 OR OLDER REQUIRED FOR DELIVERY";

5.16.3.e. Shall provide proof or records to the Commissioner by filing monthly returns to the Commissioner, on a form provided by the Commissioner, and the Tax Commissioner of all deliveries of wine which were purchased by and delivered to a person at least 21 years of age or older in the wine specialty shop’s county of operation;

5.16.3.f. The wine delivered may be ordered or purchased by telephonic, electronic, mobile, or web-based wine ordering when the purchaser is verified to be 21 years of age or older and must be delivered by an officer or employee of the wine specialty shop licensee who is 21 years of age or older. If the person receiving the delivery is not the purchaser, the licensee must verify that the person receiving the wine is 21 years of age or older and not noticeably intoxicated prior to completing the delivery. Non-licensed third parties may not deliver wine with a gift basket on behalf of a licensed wine specialty shop;

5.16.3.g. Shall ensure any vehicle delivering wine in a gift basket meets the requirements set forth in W. Va. Code §60-8-6b and §60-6-12 requiring the wine specialty shop to obtain a private wine retail transportation permit.

5.18. Wine Growlers. – A licensee who pays the $100.00 fee set forth in W. Va. Code §60-8-6d and meets the requirements of this section may offer wine for retail sale to patrons from their licensed premises in a growler for personal consumption only off of the licensed premises, and not for resale.

5.18.1. Prior to a growler sale, the licensee shall verify, using proper identification, that any patron purchasing wine is 21 years of age or over and that the patron is not visibly intoxicated.

5.18.2. A licensee may not sell, give, or furnish alcoholic liquors, including wine, for consumption off of its licensed premises, unless it is licensed to sell sealed wine for consumption off of the licensed premises and meets the requirements set forth in the W. Va. Code §60-8-1 et seq., for the sale of sealed wine growlers, and further unless a private wine restaurant or private manufacturer club is licensed for sale of wine growlers as set forth in subsection W. Va. Code §60-7-1 et seq.

5.18.3. A licensee shall comply with all the retail sales, payment of taxes and fees, advertising, wine growler requirements, wine growler labeling, wine growler sanitation, wine growler sampling, and limitations provisions of W. Va. Code §60-8-6c and §60-8-6d and shall be subject to all applicable requirements and penalties in W. Va. Code §60-8-1 et seq.

5.19. Private wine delivery license for a Class B licensed retailer or a third party; wine growler delivery requirements; limitations; third party license fee; private wine delivery permit; and requirements.

5.19.1. A licensed retailer licensed to sell wine for on-premises consumption may apply for a private wine delivery license permitting the order, sale, and delivery of wine in the original sealed container of sealed bottles or cans, or a sealed wine growler, when separately licensed for wine growler sales as set forth in the Code and rules.

5.19.2. The order, sale, and delivery of a sealed wine growler is permitted for off-premises consumption when completed by the licensee to a person purchasing the wine growler through a telephone, a mobile ordering application, or web-based software program, authorized by the licensee’s license.

5.19.3. There is no additional fee for a licensed retailer to obtain a private wine delivery license.

5.19.4. A third party, not licensed for wine sales or distribution, may apply for a private wine delivery license for the privilege of ordering and delivery of wine as set forth in 5.19.1. that is sold by a Class B wine licensee.

5.19.5. The order and delivery of wine as set forth in 5.19.1., by a third party who obtains a private wine delivery license when a Class B wine licensee sells to a person purchasing the sealed wine through telephone orders, a mobile ordering application, or a web-based software program.

5.19.6. The private wine delivery license nonprorated, nonrefundable annual fee is $200 for each third party entity, with no limit on the number of drivers and vehicles.

5.19.7. Sale Requirements: A wine purchase, as set forth in 5.19.1., must accompany the purchase of prepared food or a meal, must be sold to a person at least 21 years of age who is not visibly or noticeably intoxicated at the time of the sale, may not be in excess of 128 fluid ounces; and must otherwise comply with W. Va. Code §60-8-1 et seq., and specifically W. Va. Code §60-8-6f.

5.19.8. A class A wine license or a third party privileged wine delivery licensee shall obtain a private wine retail transportation permit for the delivery of sealed wine and prepared food as set forth in W. Va. Code §60-8-6f and §60-6-12.

5.20. Blood alcohol chart. -- Each licensed retailer shall post in an open and prominent place within the licensed premises a blood alcohol chart in the form prescribed by W. Va. Code §60-6-24.

5.21. Fetal alcohol syndrome chart. -- Each licensed retailer shall post in an open and prominent place within the licensed premises a fetal alcohol syndrome chart in the form prescribed by W. Va. Code §60-6-24.

5.22. Human trafficking notice -- Each licensed retailer shall post in an open and prominent place within the licensed premises a human trafficking notice in the form prescribed by W. Va. Code §15A-2-5.

W. Va. Code R. § 175-4-6 Private Wine Restaurant, Private Wine Bed & Breakfast, and Private Wine Spa

6.1. Licensure application; form. -- The application for licensure as a private wine restaurant, private wine bed and breakfast, and private wine spa shall be made upon a form provided by the Commissioner or available on the ABCA website at www.abca.wv.gov.

6.2. Licensure application; content. -- The application shall contain and include the following:

6.2.1. The name and address of the applicant and the applicant’s manager, and also whether the applicant is an individual, corporation, partnership, association, or other business entity;

6.2.2. The name, address, date of birth, and length of West Virginia residency of the applicant or applicant’s manager;

6.2.3. The complete description, including photographs and a diagram of every room, of the proposed private wine restaurant, private wine bed and breakfast, or private wine spa;

6.2.4. The name and address of the property owner, and if the property is leased, the expiration date of the lease;

6.2.5. Verification that:

6.2.5.a. for a private wine restaurant that it will serve food when accompanying the sale of wine, which the verification may be established by providing a copy of the menu depicting wine and food items;

6.2.5.b. for a private bed and breakfast that the applicant’s sole purpose is to provide in a residential or country setting, a hotel, motel, inn, or other such establishment properly zoned as to its municipality or local ordinances, that further provides lodging and meals to its customers in the course of their stay at the establishment, and further that the applicant is capable of providing and serving food or meals: which the verification may be established by providing a copy of the menu depicting wine and food items;

6.2.5.c. for a private wine spa, the applicant’s sole purpose is to provide commercial facilities devoted especially to health, fitness, weight loss, beauty, therapeutic services, and relaxation, and may be also a licensed massage parlor or a salon with licensed beauticians or stylists, and further that the applicant is capable of providing and serving food or meals: which the verification may be established by providing a copy of the menu depicting wine and food items;

6.2.6. Verification that the place of business conforms to health and fire laws, rules, or regulations, and zoning ordinances;

6.2.7. Whether the premises is located within municipal boundaries, within one (1) mile of municipal boundaries, or within one (1) mile of the boundaries of two (2) or more municipalities and if so, the names of the municipalities;

6.2.8. Whether the applicant currently holds any other licenses for the premises, copies of which are to be submitted with the application;

6.2.9. If the applicant or the applicant’s manager is an individual, whether he or she has attained 18 years of age;

6.2.10. If the applicant is a partnership, association, or other business entity, as to each member, whether such member has attained 18 years of age;

6.2.11. If the applicant is a corporation, whether the person or persons who are or will be conducting or managing the business of the corporation have attained 18 years of age;

6.2.12. Whether the applicant or any partner, member, manager, officer, director, or person owning 20% or more of the stock or beneficial interest in the applicant has:

6.2.12.a. Been convicted of a felony or other crime involving moral turpitude within three (3) years next preceding the filing date of the application;

6.2.12.b. Been convicted of a violation of the liquor laws of any state or of the United States within two (2) years next preceding the filing date of the application; or

6.2.12.c. Had a license revoked under the liquor laws of any state or of the United States within five (5) years next preceding the filing date of the application;

6.2.13. If the applicant is a firm, partnership, or association, the names, addresses, residence and length thereof, and percentage of ownership of all persons having an ownership interest of 20% or more in the applicant; and

6.2.14. If the applicant is a corporation, the names, addresses, and corporate title of all officers, and the name, address, and age of each person having 20% or more of the stock or beneficial interest in the applicant.

6.3. Background checks. The Commissioner shall conduct background investigations for the purpose of determining whether an applicant or an applicant’s manager has been charged with, indicted for, or convicted of a crime that may have bearing upon the applicant’s fitness to hold a license. For purposes of this paragraph, "background investigation:" means a security, criminal, and credit investigation of an applicant who has applied for the issuance or renewal of a license pursuant to W. Va. Code §60-8-1 et seq. The applicant will submit West Virginia Alcohol Beverage Control Administration Release of Information and Waiver of Confidentiality of Records Form for this purpose. The applicant will obtain a fingerprinting service code from the ABCA. The applicant(s) and applicant's manager will contact the current background check service provider to schedule fingerprinting for completion of the background check. The current background check provider will receive the background results from the WV State Police and the Federal Bureau of Investigation. The results will be shared with the ABCA by the WV State Police.

6.4. Licensure application; signature and acknowledgement required. -- Each application shall be signed by the applicant, made under oath and acknowledged or verified.

6.4.1. In the case of a partnership, the application shall be signed by each of the partners.

6.4.2. In the case of a limited partnership, the application shall be signed by each of the general partners and by each limited partner who owns 20% or more of the capital or profits of such limited partnership.

6.4.3. In the case of a voluntary association, each member of the governing board shall sign the application.

6.4.4. In the case of a corporation, the president or vice president of the corporation shall sign the application.

6.5. Corporate charter, partnership agreement, or association bylaws required. -- A corporation applying for licensure shall furnish with its application a copy of its corporate charter, including any amendments thereto. A partnership, limited partnership, or association applying for a license shall provide a copy of the partnership agreement or a copy of the association's bylaws.

6.6. Fees. -- An applicant for licensure as a private wine restaurant, private wine bed and breakfast, or private wine spa shall remit with the application the operational fee (See W. Va. Code §60-2-17b) and the annual license fee for such license. The annual licensing period shall begin on July 1 of the year for which the application is made and shall end on June 30 of the following year.

6.6.1. The annual license fee for a private wine restaurant license is $250.

6.6.1.a. If the application is filed at any time from July 1 through December 31, the applicant shall pay the full annual license fee, or $250.

6.6.1.b. If the application is filed at any time from January 1 through June 30, the applicant shall pay one half (1/2) of the annual license fee, or $125.

6.6.1.c. The additional annual fee for a private wine restaurant license, that maintains on its premises an appropriate supply of wine to conduct its operations and that selects the option of selling sealed, never consumed bottles of wine for off premises consumption to customers who have purchased food or a meal provided that no more than one bottle per each person 21 years of age or older, as verified (checking proper identification) by the private wine restaurant or qualifying private club type, is $100, regardless of when the application is filed.

6.6.1.d. The annual licensing period shall begin on July 1 of the year for which the application is made and shall end on June 30 of the following year.

6.6.1.e. The fees imposed by this subsection shall be made payable to the West Virginia Alcohol Control Administration Commissioner by certified check, cashier's check, business check, personal check, or money order, or by credit card only on the ABCA website at www.abca.wv.gov. All payments must accompany or be made simultaneously with the filing of an application.

6.6.2. The annual license fee for a private wine bed and breakfast license or a private wine spa license is $150.

6.6.2.a. If the application is filed at any time from July 1 through December 31, the applicant shall pay the full annual fee, or $150 and the operational fee.

6.6.2.b. If the application is filed at any time from January 1 through June 30, the applicant shall pay one half (1/2) of the annual fee, or $75 and the operational fee.

6.6.2.c. A successful private wine bed and breakfast or private wine spa applicant shall only sell and serve wine, for consumption on the premises of the licensee when such sale accompanies the serving of food or a meal to its members and their guests.

6.6.2.d. The annual licensing period shall begin on July 1 of the year for which the application is made and shall end on June 30 of the following year.

6.6.2.e. The fees imposed by this subsection shall accompany the application and shall be made payable to the West Virginia Alcohol Beverage Control Administration Commissioner by certified check, cashier's check, business check, personal check, or money order or by credit card only on the ABCA website at www.abca.wv.gov. All payments must accompany or be made simultaneously with the filing of an application.

6.6.3. Any licensee that fails to complete a renewal application and to make payment of its annual license fee to renew its license on or before June 30 of any year, after initial application, shall be charged an additional $150 reactivation fee. The licensee must pay the applicable operational fee, full-year annual license fee, and the reactivation fee prior to the processing of any renewal application. Any licensee who continues to operate upon the expiration of its license is subject to all fines, penalties, and sanctions available in W. Va. Code §60-8-1 et seq., as determined by the commissioner.

6.7. Investigations. -- Upon receipt of a complete application for licensure as a private wine restaurant, private wine bed and breakfast, or private wine spa, the fee and other documents required to be provided with such application, the Commissioner shall make a thorough investigation to determine, among other things, whether the applicant or the applicant’s manager and any location and premise to be operated by the applicant qualify for licensure and whether granting a license will adversely affect the public welfare, health and morals.

6.8. Refusal of license. -- No license may be issued to any applicant or applicant’s manager who;

6.8.1. Submits an application for licensure containing any false statement;

6.8.2. Is affirmatively shown to be not a suitable person in the community or communities in which it operates or will operate. The Commissioner may refuse to grant any license if he or she has reasonable cause to believe that the applicant, any partner, member, corporate officer, director, or manager on the application, shareholder on the application 20% or more of its capital stock or other person conducting or managing the affairs of the applicant or of the proposed licensed premises, in whole or in part:

6.8.2.a. Is not 21 years of age or older;

6.8.2.b. Has been convicted of a felony or other crime involving moral turpitude within three (3) years next preceding the filing date of the application;

6.8.2.c. Has been convicted of violating the liquor laws of any state or the United States within two (2) years next preceding the filing date of the application;

6.8.2.d. Has had any license revoked under the liquor laws of any state or the United States within five (5) years next preceding the filing date of the application;

6.8.2.e. Is not a person of good moral character or repute;

6.8.2.f. Is not the legitimate owner of the business proposed to be licensed, or other persons have ownership interests in the business which have not been disclosed;

6.8.2.g. Does not possess or has not demonstrated sufficient financial responsibility to adequately meet the requirements of the business proposed to be licensed;

6.8.2.h. Has maintained a noisy, loud, disorderly, or unsanitary establishment;

6.8.2.i. Has demonstrated, either by his or her police record or by his or her record as a former licensee under W. Va. Code §60-1-1 et seq., a lack of respect for law and order;

6.8.2.j. Is unable to speak, understand, and read the English language in a reasonably satisfactory manner;

6.8.2.k. Is a person to whom alcoholic beverages may not be sold under the provisions of W. Va. Code §60-1-1 et seq.;

6.8.2.l. Has the general reputation of drinking alcoholic beverages to excess, or is addicted to the use of alcohol or narcotics;

6.8.2.m. Is physically unable to carry on the business or has been adjudicated an incompetent; or

6.8.2.n. Is an officer or employee of the Commissioner.

6.8.3. Fails to satisfy the requirements of the liquor laws or the rules or regulations of either this state, other states or of the United States.

6.9. License not transferable.

6.9.1. A license issued to a private wine restaurant, private wine bed and breakfast, or private wine spa is valid only for the person, firm, or corporation named thereon and only for the premises for which the license was sought and issued. The license is not transferable. If there is a change in beneficial ownership to the extent of 20% or less thereof, the licensee shall notify the Commissioner in writing of any change in beneficial ownership within 10 days next succeeding such transfer. If there is a change in the beneficial ownership in excess 20%, then such license shall be voided and the licensee must make application for a new license.

6.9.2. If there is any transfer in the beneficial ownership of any interest in a private wine restaurant, private wine bed and breakfast, or private wine spa the new owner of the beneficial interest must satisfy all of the requirements of the laws of the United States and any rules or regulations promulgated pursuant thereto, and of the laws, rules, or regulations of the State of West Virginia.

6.10. Change of location. -- A licensed private wine restaurant, private wine bed and breakfast, or private wine spa which desires or intends to change the location of the premises for which the license was issued prior to the renewal of the license shall notify the Commissioner in writing at least 30 days before the date of proposed relocation. The relocation may occur only upon the written approval of the Commissioner. In the event of flood or fire, the Commissioner may waive the 30 day notice upon request of the affected licensee.

6.11. Licensure of private wine restaurant, private wine bed and breakfast, or private wine spa as private club type or Class A nonintoxicating beer retailer.

6.11.1. No person licensed as a private club type may be issued a private wine restaurant license, private wine bed and breakfast, or private wine spa if the business is to be conducted upon the same premises as the private club type. However, a private wine restaurant, private wine bed and breakfast, or private wine spa may also be licensed as a Class A retail dealer in nonintoxicating beer. This rule does not prohibit the holder of a private club type license from holding or being a part owner in any private wine restaurant, private wine bed and breakfast, or private wine spa whose business premises are totally separate, distinct, and apart from the premises of the private club type to the extent as provided in the following subsection.

6.11.2. Connection between private wine restaurant, private wine bed and breakfast, or private wine spa, and private club type prohibited. -- In the event a licensed retailer, private wine bed and breakfast, private wine restaurant, or private wine spa applicant is located within the same building or structure as a licensed private club type, there may be no internal interconnection or door between the premises of the licensed retailer, private wine bed and breakfast, private wine restaurant, or private wine spa and the premises of the licensed private club type.

6.12. Transportation of wine by private wine restaurant. -- A private wine restaurant may not transport any wine unless the licensee has been issued a transportation permit by the Commissioner.

6.13. Transfers of wine between retailers prohibited. -- A person who operates more than one (1) private wine restaurant, private wine bed and breakfast, or private wine spa may transfer wine from one (1) such licensee to another private wine restaurant, private wine bed and breakfast, or private wine spa. However, a private wine restaurant may not transfer, sell, or convey wine to a licensed retailer or to a private wine restaurant, private wine bed and breakfast, or private wine spa licensed to another person. A private wine restaurant may purchase wine only from a distributor licensed pursuant to W. Va. Code §60-8-1 et seq., or a farm winery licensed pursuant to W. Va. Code §60-8-1 et seq.

6.14. Charts.

6.14.1. Blood alcohol chart. -- Each private wine restaurant, private wine bed and breakfast, or private wine spa shall post in an open and prominent place within the licensed premises a blood alcohol chart in the form prescribed by W. Va. Code §60-6-24.

6.14.2. Fetal alcohol syndrome chart. -- Each private wine restaurant, private wine bed and breakfast, or private wine spa shall post in an open and prominent place within the licensed premises a fetal alcohol syndrome chart in the form prescribed by W. Va. Code §60-6-24.

6.14.3. Human trafficking notice -- Each private wine restaurant, private wine bed and breakfast, or private wine spa shall post in an open and prominent place within the licensed premises a human trafficking notice in the form prescribed by W. Va. Code §15A-2-5.

6.15. Recork and reseal requirements. -- Each licensed private wine restaurant may sell and serve wine for consumption on the premises of the licensee and recork and reseal partially consumed wine when such sale accompanies the serving of food or a meal to its members and their guests, if the licensee:

6.15.1. Has verified, by checking proper identification, that the member or guest purchasing the wine is over 21 years of age so as to consume the wine and recork or reseal the partially consumed wine bottle and carry it off premises;

6.15.2. Uses a one-time tamper resistant cork, seal, or bag approved by the Commissioner (with the Commissioner maintaining a list of approved tamper resistant corks, seals, or bags at his offices) to secure the partially consumed wine before the wine is taken off the licensee’s premises, and affixes the receipt to the sealed bottle or sealed bag to prevent the partially consumed wine from opening while in transit;

6.15.3. Recorks, seals, or bags no more than two separate bottles of partially consumed wine in conjunction with serving of food or a meal to its members and their guests for consumption off premises; and

6.15.4. Has provided the purchaser with food or a meal which the total price was, excluding beverage purchases, taxes, gratuity, or other fees, at least $15.

6.16. Private wine delivery license for a Class A licensed private wine restaurant, private wine bed and breakfast, private wine spa, or a third party; wine growler delivery requirements; limitations; third party license fee; private wine delivery permit; and requirements.

6.16.1. A licensed private wine restaurant, private wine bed and breakfast, or private wine spa licensed to sell wine for on-premises consumption may apply for a private wine delivery license permitting the order, sale, and delivery of wine in the original sealed container of sealed bottles or cans, or a sealed wine growler, when separately licensed for wine growler sales as set forth in the Code and rules.

6.16.2. The order, sale, and delivery of a sealed wine growler is permitted for off-premises consumption when completed by the licensee to a person purchasing the wine growler through a telephone, a mobile ordering application, or web-based software program, authorized by the licensee’s license.

6.16.3. There is no additional fee for a licensed private wine restaurant, private wine bed and breakfast, or private wine spa to obtain a private wine delivery license.

6.16.4. A third party, not licensed for wine sales or distribution, may apply for a private wine delivery license for the privilege of ordering and delivery of wine as set forth in 6.16.1., that is sold by a class A licensee.

6.16.5. The order and delivery of wine as set forth in 6.16.1., a third party who obtains a private wine delivery license under this section when a class A wine licensee sells to a person purchasing the sealed wine through telephone orders, a mobile ordering application, or a web-based software program.

6.16.6. The private wine delivery license nonprorated, nonrefundable annual fee is $200 for each third party entity, with no limit on the number of drivers and vehicles.

6.16.7. Sale Requirements: A wine purchase, as set forth in 6.16.1., must accompany the purchase of prepared food or a meal, must be sold to a person at least 21 years of age who is not visibly or noticeably intoxicated at the time of the sale, may not be in excess of 128 fluid ounces; and must otherwise comply with W. Va. Code §60-8-1 et seq., and specifically W. Va. Code §60-8-6e.

6.16.8. A Class A wine license or a third party privileged wine delivery licensee shall obtain a retail transportation permit for the delivery of sealed wine and prepared food as set forth in W. Va. Code §60-8-6e and §60-6-12.

W. Va. Code R. § 175-4-7 Special Licenses

7.1. Wine fair and festival -- A license may be issued for the retail sale of wine at any wine fair and festival which is endorsed or sponsored by the governing body of a municipality or a county commission. The license shall be issued for a term of no longer than 10 consecutive days and the fee for the license is $250 regardless of the term of the license. The application for the license shall contain information required by the commissioner and shall be submitted to the commissioner at least 30 days prior to the first day when wine is to be sold at the any wine fair and festival. 7.1.1 Notwithstanding section 7.1., if the applicant for the wine fair and festival license is the manufacturer of the wine, a winery, or a farm winery as defined in §60-1-5a of this code, and the event is located on the premises of a winery or a farm winery, then the license fee is $50 per wine fair and festival.

7.1.2. A licensed winery or a farm winery, which has a wine fair and festival licensee’s written authorization and approval from the commissioner, may, in addition to, or in conjunction with the wine fair and festival licensee; exhibit, conduct complimentary tastings, or sell samples not to exceed six, three-fluid ounce: samples per patron; serve wine by the glass for consumption on the premises during the operation of a fair or festival only; or may sell wine by the bottle for on-premises consumption, when consumed by the glass, and also sell sealed bottles of wine for off-premises consumption. Provided, That for licensed wineries or farm wineries at a licensed wine fair and festival; tastings, samples, on-premises sales, and off-premises sales shall occur during the hours of operation as required in W. Va. Code §60-8-1 et seq.

7.2. Professional baseball stadium. – A special license issued for the retail sale of wine in a professional baseball stadium. The license entitles the licensee to sell and serve wine for consumption in a professional baseball stadium. For this purpose, "professional baseball stadium" means a facility constructed primarily for the use of a major or minor league baseball franchisee affiliated with the National Association of Professional Baseball Leagues, Inc., or its successor, and used as a major or minor league baseball park.

7.2.1. Any such special license issued pursuant to this subsection shall be for a term beginning on the date of issuance and ending on the next following June 30, and its fee is $250 regardless of the length of the term of the license.

7.2.2. The application for the special license shall contain information required by the commissioner and must be submitted to the commissioner at least 30 days prior to the first day when wine is to be sold at the professional baseball stadium.

7.2.3. The special license may be issued in the name of the baseball franchisee or the name of the primary food and beverage vendor under contract with the baseball franchisee. These sales must take place within the confines of the professional baseball stadium.

7.2.4. Any exterior area where wine sales may occur shall be surrounded by a fence or other barrier prohibiting entry except upon the franchisee’s express permission, and under the conditions and restrictions established by the franchisee, so that the wine sales area is closed to free and unrestricted entry by the general public.

7.3. College or university stadium. -- A special license issued for the retail sale of wine in a college or university stadium. The licensee entitles the licensee to sell and serve wine for consumption in a college or university stadium. For this purpose, "college stadium" means a facility constructed primarily for the use of a Division I, II, or III college or university that is a member of the National Collegiate Athletic Association, or its successor, and used as a football, basketball, baseball, soccer, or other Division I, II, or III sports stadium.

7.3.1. Any license issued shall be for a term beginning on the date of its issuance and ending on the next following June 30, and its fee is $250 regardless of the length of the term of the license.

7.3.2. The application for the special license shall contain information required by the commissioner and must be submitted to the commissioner at least 30 days prior to the first day when wine is to be sold.

7.3.3. The special license may be issued in the name of the National Collegiate Athletic Association Division I, II, or III college or university or the name of the primary food and beverage vendor under contract with that college or university. All sales must take place within the confines of the college or university stadium.

7.3.4. Any exterior area where wine sales may occur shall be surrounded by a fence or other barrier prohibiting entry except upon the college or university’s express permission, and under the conditions and restrictions established by the college or university, so that the wine sales area is closed to free and unrestricted entry by the general public.

7.4. Wine heritage fair and festival. -- The commissioner may issue special licenses to wine heritage fairs and festivals allowing the sale, serving, and sampling of wine from a licensed farm winery. The license application shall contain information required by the commissioner and shall be submitted to the commissioner at least 30 days prior to the event. Wines used during these events may be donated by or purchased from a licensed farm winery. Under no circumstances may the provision of W. Va. Code §60-8-20(c) be waived nor may any exception be granted with respect thereto.

7.5. Special one day nonprofit wine. – A special one-day licenses may be issued to duly organized, nonprofit corporations and associations allowing the sale and serving of wine, and may, if applicable, also allow the charitable auctioning of certain sealed bottles of wine for off-premises consumption only, when raising money for athletic, charitable, educational, or religious purposes.

7.5.1. "Auction or auctioning", for this purpose means any silent, physical act, or verbal bid auction, whether or not the auction requires in-presence bidding or online Internet-based electronic bidding through a secure application or website, but shall not include any action in violation of W. Va. Code §47-20-10, §47-20-11, or §61-10-1 et seq.

7.5.2. The license application shall contain information required by the commissioner and shall be submitted to the commissioner at least 30 days prior to the event.

7.5.3. Accompanying the license application, the applicant shall submit a signed and notarized statement that at least 80% of the net proceeds from the charitable event will be donated directly to the nonprofit corporation or organization.

7.5.4. Wines used during these events may be donated by, or purchased from, a licensed retailer, a distributor, winery, or a farm winery.

7.5.5. A licensed winery or farm winery which is authorized in writing by a representative of the duly organized, nonprofit corporation or association which has obtained the one-day license; is in good standing with the state; and obtains the commissioner’s approval prior to the one-day license event may, in conjunction with the one-day licensee, exhibit, conduct complimentary tastings, or sell samples not to exceed six, three-fluid ounce tastings or samples per patron, sell wine by the glass or by the bottle, when consumed by the glass, for consumption on-premises during the operation of the one-day license event, and may sell certain sealed wine bottles manufactured by the licensed winery or farm winery for off-premises consumption.

7.5.6. A licensed winery or farm winery, at a licensed one-day event, may offer tastings, samples, on-premises sales, and off-premises sales of its wine shall occur under the hours of operation permitted by W. Va. Code §60-8-1 et seq., from the one-day licensee’s submitted floor plan for the event subject to the requirements in the code and rules.

7.5.7. Under no circumstances may the provisions of §60-8-20(c) or §60-8-20(f) of this code be waived, nor may any exception be granted with respect to those subsections.

7.6. Wine Clubs. -- A wine fair and festival license may be issued to a "wine club" as defined in W. Va. Code §60-8-3(h)(4) for a license fee of $250. The wine festival and fair committee or the governing body shall designate a person to organize a club under a name which includes the name of the wine fair and festival and the words "wine club". The license shall be issued in the name of the wine club. A licensee may not sell wine until the wine club has at least 50 dues-paying members who have been enrolled, and to whom membership cards have been issued, whether in writing or electronically. A wine club licensed under the provisions of this subdivision may sell wine only to its members, and in portions not to exceed eight ounces per serving.

7.6.1. The sales shall take place in an area cordoned off or segregated so as to be closed to the general public, and the general public shall not be admitted to the premises or area. A wine club licensee under the provisions of W. Va. Code §60-8-3(h)(4) may serve complimentary samples of wine in moderate quantities for tasting.

7.6.2. A wine club is subject to the penalties set forth in W. Va. Code §60-8-1 et seq.

7.7. Alternating wine proprietorships. – A license issued to a licensed winery or farm winery under the provisions of W. Va. Code §60-1-5c et seq. For this section, "alternating wine proprietorship agreement" means an agreement between a licensed winery or farm winery and a farm entity which allows the farm entity to use the premises of the licensed farm winery to produce wine.

7.7.1. The agreement must be between a licensed winery or farm winery and a farm entity located and operating in this state and must be in compliance with all applicable state laws and rules promulgated thereunder.

7.7.2. The farm entity must produce agricultural products containing sugar as certified by the Agriculture Commissioner and required by law;

7.7.3. Wines produced by the parties must be maintained in separate bonded areas and shall not be comingled;

7.7.4. The farm entity participating in the agreement must separately meet all federal and state requirements for a winery or farm winery;

7.7.5. The farm entity party to the agreement may not produce more than 50,000 gallons of wine and nonfortified dessert wine;

7.7.6. Wine produced by the farm entity party to an agreement must be produced exclusively by natural fermentation;

7.7.7. If port, sherry, or madeira wines are produced by the farm entity party to the agreement, a minimum of 25% of the agricultural products used to make the wine must be produced on the farm entity’s property and no more than 25% of the agricultural products used may come from an out-of-state source; and

7.7.8. Port, sherry, or madeira wine produced by a party to an alternating wine proprietorship agreement may not exceed 22% alcohol by volume and must be matured in wooden barrels or casks.

7.8. Unlicensed Winery. -- An unlicensed winery may obtain a temporary license if it meets the requirements set forth in W. Va. Code §60-8-3(q). The temporarily licensed unlicensed winery may conduct the same sampling and sales set forth in W. Va. Code §60-8-3(q) at a licensed wine fair and festival upon approval of the licensee holding the wine fair and festival license and temporary and limited licensure by the commissioner.

7.8.1. An unlicensed winery is subject to the same limits, fees, requirements, restrictions, and penalties in W. Va. Code §60-8-3(q).

7.8.2. The Commissioner may by rule or order provide for certain waivers or exceptions with respect to the provisions, rules, or orders required by the circumstances of each wine fair and festival.

7.8.3. The Commissioner may revoke or suspend any license issued pursuant to W. Va. Code §60-8-3(h)(7) prior to any notice or hearing notwithstanding the provisions of W. Va. Code §60-8-27 and §60-8-28.

7.8.4. Under no circumstances shall the provisions of W. Va. Code §60-8-20(c) or §60-8-20(d) be waived nor shall any exception be granted with respect to those code sections.

7.8.5. An unlicensed winery may also attend and conduct samples at wine fair and festival or a special one-day nonprofit wine license subject to the requirements in W. Va. Code §60-8-3(h)(2) and §60-8-3(q).

7.9. Other and Sacramental Wine License. -- The Commissioner may grant licenses to persons to purchase wine at wholesale from or through the WVABCA for industrial, or scientific uses, or for use in institutions as provided in W. Va. Code §60-6-5, and may, by special permit for such fee as the commission may fix, authorize transactions at wholesale for the purchase of alcohol for scientific, chemical, mechanical, or industrial purposes only; but, no license fee shall be required from institutions, departments, or agencies of the state government, or any political subdivision.

7.9.1. The Commissioner may issue, without fee, special permits authorizing religious organizations to purchase, upon orders approved by the commissioner, wine, at wholesale or retail, for sacramental purposes.

7.10. Note for all licenses in this section, applications and information can be found on the WVABCA website at www.abca.wv.gov.

W. Va. Code R. § 175-4-8 Manufacture and Sale of Hard Cider

8.1. All wine licensure and other wine requirements set forth in W. Va. Code §60-8-1 et seq., §60-4-3b, and §60-6-2, shall apply to the manufacture, distribution, or sale of hard cider. Any person or licensee legally authorized to manufacture, distribute, or sell wine may manufacture, distribute, or sell hard cider in the same manner and to the same persons, and subject to the same limitations and conditions, as such license or legal right authorizes him or her to manufacture, distribute, or sell wine. (See The Tax Commissioner’s website, www. tax.wv.gov, for applicable tax forms).

8.1.1. No additional wine license fees shall be charged for the privilege of manufacturing, distributing, or selling hard cider for a person licensed as a wine distributor or a representative.

8.2. All hard cider distributors are bound by all wine distribution requirements set forth in W. Va. Code §60-8-1 et seq., §60-4-3b, and §60-6-2, which shall apply to distribution of hard cider. Any person or licensee legally authorized to distribute hard cider may distribute hard cider in the same manner and to the same persons, and subject to the same limitations and conditions, as a license or legal right would authorize him or her to distribute wine.

8.2.1. An additional hard cider license fee shall not be charged for the privilege of distributing hard cider.

8.3. Winery or Farm Winery Authorization for hard cider

8.3.1. Sales of hard cider -- A licensed winery or farm winery with its principal place of business or manufacturing facility located in the State of West Virginia may offer hard cider manufactured by the licensed winery or farm winery for retail sale to customers from the winery's or farm winery's licensed premises for consumption off-premises only in approved and registered hard cider kegs, bottles, or cans, or also sealed wine growlers for personal consumption and not for resale. A licensed winery or farm winery may not sell, give, or furnish hard cider for consumption on the premises of the principal place of business or manufacturing facility located in the State of West Virginia, except for the limited purpose of samples as set forth in the Code and the rule. Customers may consume hard cider on-premises when an operator of a winery or farm winery is licensed as a private wine restaurant or a private manufacturer club.

8.3.2. Retail Sales - Every licensed winery or farm winery shall comply with all the provisions applicable to wine retailers when conducting sales of hard cider and is subject to all applicable requirements and penalties.

8.3.2.a. A winery or a farm winery holding a private wine restaurant license or private manufacturer club license may offer for sale and service hard cider by the drink or glass or cider by the bottle when consumed by the glass on the property of the winery or farm winery.

8.3.2.b. In the interest of promoting tourism throughout the state, every licensed winery or farm winery manufacturing cider in this state is authorized, with a limited off-site retail privilege at private fair and festivals, for off-premises consumption sales of the winery or farm winery's sealed hard cider. At least five days prior to an approved wine or private fair and festival, an authorized winery or farm winery shall provide a copy of a written agreement to sell only hard cider manufactured by the licensed winery or farm winery at the wine or private fair and festival's licensed premises.

8.3.2.c. If approved, an authorized winery or farm winery may conduct on-premises and off-premises consumption sales of their hard cider from a designated booth at the private fair and festival as set forth in W. Va. Code §60-7-8a or §60-8-3.

8.3.2.d. All authorized and approved wineries and farm wineries' on-premises and off-premises consumption sales of hard cider shall comply with all retail requirements in W. Va Code §60-8-1 et seq. and §60-8A-1 et seq., and specifically with respect to all markups, taxes, and fees.

8.3.2.e. Additionally, an authorized winery or farm winery may provide, sell, and serve hard cider samples in the amounts set forth in subdivision 8.3.3., hard cider by the glass or drink, or hard cider by the bottle when consumed by the glass of its hard cider for on-premises consumption to patrons who are 21 years of age and older and who are not intoxicated.

8.3.3. Samples - a licensed winery or farm winery with its principal place of business or manufacturing facility located in the State of West Virginia may offer samples of hard cider manufactured at the winery's or farm winery's principal place of business or manufacturing facility located in the State of West Virginia.

8.3.3.a. The samples may be no greater than three fluid ounces per sample per patron, and a sampling shall not exceed six complimentary three fluid ounce samples per patron per day.

8.3.3.b. A licensed winery or farm winery providing samples shall provide food, which may be pre-packaged food not requiring kitchen preparation, items to the patron consuming the samples.

8.3.3.c. Prior to any sampling, verify, using proper identification, that the patron sampling is 21 years of age or older and that the patron is not noticeably or visibly intoxicated.

8.3.3.d. The winery or farm winery is subject to the hours of operation set forth in W. Va. Code §60-8-34.

8.3.4. Wine growler requirements - A licensed winery or farm winery, if offering wine growler filling services, shall meet the filling, labeling, sanitation, and all other wine growler requirements as set forth in the Code and rule.

8.3.5. Advertising. - A licensed winery or farm winery may advertise a particular brand or brands of hard cider produced by the licensed winery or farm winery and the price of the hard cider subject to state and federal requirements or restrictions. The advertisement may not encourage intemperance or target minors.

8.3.6. Fees - There is no additional fee for a licensed winery or farm winery authorized under W. Va. Code §60-8-6c, to sell wine growlers, if a winery or farm winery only desires to sell hard cider in the wine growler, and no other wine, then the annual non-prorated and nonrefundable license fee is $50.

8.4. Payment of taxes and fees.

8.4.1. A licensed winery or farm winery under this section shall pay all taxes and fees required of licensed wine retailers, in addition to any other taxes and fees required, and meet applicable licensing provisions as required by law and by rule of the commissioner.

8.4.2. A hard cider distributors license is $250 per year. Each separate warehouse or other facility from which a distributor sells, transfers, or delivers hard cider shall be separately licensed and there shall be collected with respect to each location the annual license fee of $250.

8.4.2.a. If a licensee is licensed as a nonintoxicating beer or nonintoxicating beer distributor, then there is no additional license fee to distribute hard cider.

8.5. Fruit Sources.

8.5.1. Any farm winery attempting to manufacture hard cider may apply to the Agriculture Commissioner, with a copy to the commissioner, with documentation showing its inability to obtain 75% of the apples, pears, peaches, honey, or other fruits necessary to produce its hard cider from within this state. The Agriculture Commissioner may issue a permit to the applicant to import such fruit, honey, or fruit juice concentrate in an amount determined necessary by the Agriculture Commissioner to allow the farm winery to produce hard cider within the percentage established by W. Va. Code §60-1-5a.

8.5.2. The burden of proof is on the applicant to show that apples, pears, peaches, honey, or other fruits, of the type normally used by the licensee are not available from any other source within the State of West Virginia. The commissioner shall not consider an application for a permit under this section unless it is accompanied by written findings by the Agriculture Commissioner in support of the application.

8.5.3. Notwithstanding any provision in W. Va. Code §60-3-25, to the contrary, any permit issued is effective for a period of up to three years. However, the applicant must file an annual statement of necessity, supported by written findings from the Agriculture Commissioner, with the commissioner. After the three year permit has expired, the applicant shall submit any subsequent application for a permit pursuant to W. Va. Code §60-3-25.

W. Va. Code R. § 175-4-9 Direct Shipment of Wine

9.1. Direct Shipper requirements. Before sending any shipment of wine to an adult resident of West Virginia who is 21 years of age or older for his or her personal use and consumption and not for resale, the direct shipper must meet the direct shipper licensing requirements as specified in W. Va. Code §60-8-1 et seq. The direct shipper shall provide:

9.1.1. File a license application with the Commissioner accompanied by the appropriate background check information, using forms provided by the Commissioner and available at his offices. A criminal background check will not be required of applicants licensed in its state of domicile who can provide a certificate of good standing from its state of domicile;

9.1.2. Pay to the Commissioner the license fee specified in this section;

9.1.3. Obtain a business registration number from the Tax Commissioner;

9.1.4. Register with the office of the Secretary of State, if a corporation or LLC;

9.1.5. Provide the Commissioner a true copy of its current alcoholic beverage license proving the capacity in which the direct shipper is licensed in its domicile state;

9.1.6. Satisfy all other licensing requirements of the W. Va. Code, this rule and provide any other information that the Commissioner may reasonably require; and

9.1.7. Obtain from the Commissioner a direct shipper’s license.

9.2. After licensure the direct shipper shall:

9.2.1. Submit to the Commissioner a list of all brands of wine and all associated labels of said wine brands to be shipped to West Virginia residents; and

9.2.2. If the wine brands are not registered with the Commissioner, then the direct shipper shall submit the wine brands and corresponding labels for review and registration with the Commissioner and pay all fees to the Commissioner in accordance with this rule;

9.2.3. Ensure that all containers of wine shipped directly to a resident in this state are clearly and conspicuously labeled with the words:

"CONTAINS ALCOHOL: SIGNATURE OF PERSON 21 OR OLDER REQUIRED FOR DELIVERY" and "NO DELIVERY TO ANY PERSON INTOXICATED OR PHYSI-CALLY INCAPACITATED DUE TO THE CONSUMP-TION OF NONINTOXI-CATING BEER, AND WINE OR ALCOHOLIC LIQUORS OR THE USE OF DRUGS";

9.2.4. Require every direct shipper or the common carrier to verify, by checking proper identification, that the recipient of a wine shipment in West Virginia is at least 21 years of age or older and if the carrier is not able to obtain a signature of a verified adult resident at least 21 years of age or older, the carrier may not complete the delivery of the wine shipment;

9.2.5. Obtain and keep a record of all written or electronic signatures upon delivery of wine to an adult West Virginia resident;

9.2.6. File monthly returns with the Commissioner and the Tax Commissioner showing the total of wines, by type, sold, and shipped into West Virginia for the preceding month;

9.2.7. Pay to the Tax Commissioner, with the monthly return all sales taxes, municipal taxes and the liter tax due on wine sales and shipments to adult West Virginia residents in the preceding month. The amount of such taxes paid shall be calculated as the sales were made in West Virginia at the location where delivery is made, in the form prescribed by the Commissioner and available at his offices;

9.2.8. Permit the Tax Commissioner or Commissioner or their designees to perform an audit of the direct shipper’s records upon request;

9.2.9. Be deemed to have consented to the jurisdiction of the commissioner or any other state agency, the Intermediate Court of Appeals as set forth in W. Va. Code §51-11-4(a)(4), concerning enforcement of W. Va. Code §60-8-1 et seq., and any other related laws, or rules;

9.2.10. Provide proof or records to the commissioner, upon request, that all direct shipments of wine were purchased and delivered to an adult resident of West Virginia over the age of 21 years of age;

9.2.11. Be subject to enforcement proceedings to suspend or revoke a direct shipper’s license for violations of State laws, code, rules, or regulations, however the Commissioner may accept payment of a penalty or an offer in compromise in lieu of suspension, at the Commissioner’s discretion;

9.2.12. Ship all wine into West Virginia by licensed direct shippers and the direct shipper must be a licensed and bonded shipping carrier or utilize a licensed and bonded shipping carrier, and further the direct shipper and any such carrier must maintain records of each shipment for up to three years;

9.2.13. Be subject to the penalties available to the Commissioner under West Virginia Code §60-8-18 for failure of a direct shipper or such licensee’s carrier to abide by the provisions of W. Va. Code §60-1-1 et seq., and the rules;

9.2.14. Blood alcohol chart. -- Shall place within each shipment a copy of the West Virginia blood alcohol chart in the form prescribed by W. Va. Code §60-6-24 and available at the Commissioner’s offices;

9.2.15. Fetal alcohol syndrome chart. -- Shall place within each shipment a copy of the West Virginia fetal alcohol syndrome chart in the form prescribed by W. Va. Code §60-6-24 and available at the Commissioner’s office; and

9.2.16. Human trafficking notice -- Each direct shipper shall place within each shipment a copy of the human trafficking notice in the form prescribed by W. Va. Code §15A-2-5.

9.2.17. Any other information that the Commissioner may reasonably require.

9.3. A licensed direct shipper may not:

9.3.1. Ship more than two cases of wine per month to any adult West Virginia resident who is 21 years of age or older. Note that a case is defined as any combination of packages containing not more than nine liters of wine;

9.3.2. Ship to any address in an area identified by the Commissioner as a "dry" or local option area. The Commissioner shall maintain a list of dry market area zip codes available at his offices;

9.3.3. Ship to any licensed suppliers, distributors, retailers, private wine bed and breakfasts, private wine restaurants, private wine spas, or wine specialty shops;

9.3.4. Ship wine from overseas or internationally unless it is first shipped to a licensed supplier or distributor;

9.4. Direct shipper application and fee.

9.4.1. Licensure application; form. -- The application form for licensure as a direct shipper is available and on file at the Commissioner’s offices.

9.4.2. License application; content. -- The application for licensure shall elicit the following information:

9.4.2.a. The name of the applicant, including his or her trade name, if any, his or her address and the length of his or her residence at that address;

9.4.2.b. The address of the place of business for which the license is desired, or other description that definitely locates the place of business;

9.4.2.c. Proof that the place of business conforms to all health and fire laws, rules, and regulations applicable to such place;

9.4.2.d. The name of the owner of the premises upon which the business is to be conducted and, if the owner is not the applicant, proof that the applicant is the bona fide lessee of the business;

9.4.2.e. If the applicant is a retailer, whether the applicant is the proprietor or owner of a bona fide grocery store, retailer, private wine bed and breakfast, private wine restaurant, private wine spa, or wine specialty shop;

9.4.2.f. Whether the applicant intends to carry on the business authorized by the license for himself or herself or under his or her immediate supervision or direction;

9.4.2.g. Proof that the applicant is a citizen of the United States;

9.4.2.h. Whether the applicant is an actual bona fide resident of his or her domicile state;

9.4.2.i. That the applicant is at least 18 years of age;

9.4.2.j. Whether the applicant has been convicted of a felony or other crime involving moral turpitude within the three years next preceding the filing of the application;

9.4.2.k. Whether the applicant has within the two years next preceding the filing of the application, been convicted of violating the liquor laws of any state or of the United States; and

9.4.2.l. Whether the applicant has not during the five years next preceding the date of the application had any license revoked under this chapter or under the liquor laws of any other state;

9.4.3. An applicant is a firm, association, or partnership, shall provide information required in subsections 9.4.b.7., 9.4.b.8., 9.4.b.9., 9.4.b.10., and 9.4.b.11., for each of the members thereof, and each of said members must satisfy all the requirements in the subsections;

9.4.4. An applicant who is a corporation, organized, or authorized to do business in this state shall provide the information required in subsections 9.4.b.7., 9.4.b.8., 9.4.b.9., 9.4.b.10., 9.4.b.11., and 9.4.b.12., for each of the officers and directors thereof to any stockholder owning 20% or more of the stock of such corporation and for the persons who conduct and manage the licensed premises for the corporation;

9.4.5. The application shall be verified by the owner or if the applicant is a firm, partnership, or corporation by each member of the firm, each partner, if a partnership, each member of the governing board, if an association, or each corporate officer and director. However, the application of a corporation applying for a retailer's license need be verified only by its president or vice president; and

9.4.6. Each of said individuals must meet all the requirements provided in those subdivisions except that the requirements as to citizenship and residence shall not apply to the officers, directors, and stockholders of a corporation applying for a retailer's license.

9.4.7. The foregoing statements required in a completed application shall constitute mandatory prerequisites for the issuance of a license;

9.5. License fee. The direct shipper annual license fee is:

9.5.1. $150 for a license to ship and sell only wine. If the application is filed at any time from July 1 through December 31, such fee shall be the full annual fee, but if the application is filed at any time from January 1 through June 30, the fee for the remainder of the license year is one half (1/2) of the annual fee, or $75 for the direct shipper’s license;

9.5.2. $250 for a license to ship and sell wine and nonfortified dessert wine, port, sherry, or Madeira wines. If the application is filed at any time from July 1 through December 31, the fee shall be the full annual fee, but if the application is filed at any time from January 1 through June 30, the fee for the remainder of the license year is one half (1/2) of the annual fee, or $125 for the direct shipper’s license; or

9.5.3. $350 for a licensed multi capacity winery or farm winery license which includes all direct shipping licenses.

9.6. A direct shipper may renew its license annually by submitting a renewal application to the Commissioner, paying the direct shipper license fee, providing the Commissioner with a true copy of a current alcoholic beverage license from the direct shipper’s domicile state, and by providing any other information requested by the Commissioner.

9.6.1. Any licensee that fails to complete a renewal application and to make payment of its annual license fee to renew its license on or before June 30 of any year, after initial application, shall be charged an additional $150 reactivation fee. The licensee must pay the applicable operational fee, full-year annual license fee, and the reactivation fee prior to the processing of any renewal application. Any licensee who continues to operate upon the expiration of its license is subject to all fines, penalties, and sanctions available in W. Va. Code §60-8-1 et seq., as determined by the commissioner.

9.7. Licensure application; signature and acknowledgement required. – Every application shall be signed by the applicant, made under oath and acknowledged or verified.

9.7.1. In the case of a partnership the application shall be signed by each of the partners.

9.7.2. In the case of a limited partnership, the application shall be signed by each of the general partners and by each limited partner who owns 20% or more of the capital or profits of such limited partnership.

9.7.3. In the case of a voluntary association, each member of the governing board shall sign the application.

9.7.4. In the case of a corporation, the application the president or vice president shall sign the application.

9.8. Corporate charter, partnership agreement, or association bylaws required. – A corporation applying for licensure as a direct shipper shall furnish with its application a copy of its corporate charter, including any amendments thereto. A partnership, limited partnership, or association, applying for licensure as a direct shipper shall provide a copy of the partnership agreement or of the association's bylaws.

9.9. Investigations. -- Upon receipt of a direct shipper license application and the license fee, bond, and other documents required to be provided with the application, the Commissioner shall make a thorough investigation to determine, among other things, whether the applicant and any locations and premises to be operated by the applicant qualify for licensure and shall investigate all matters connected therewith, including, but not limited to, whether granting the license will adversely affect the public welfare, health, and morals.

9.10. Refusal of license. -- No license may be issued to any applicant who;

9.10.1. Submits an application for licensure that containing any false statement;

9.10.2. Is affirmatively shown to be not a suitable person in the community or communities in which it operates or will operate. The Commissioner may refuse to grant any license if he or she has reasonable cause to believe that the applicant, any partner or member thereof, or corporate applicant, officer, director, or manager for the applicant or any shareholder owning 20% or more of its capital stock, or other person conducting or managing the affairs of the applicant or of the proposed licensed premises, in whole or in part:

9.10.2.a. Is not 21 years of age or older;

9.10.2.b. Has been convicted of a felony or other crime involving moral turpitude within three (3) years next preceding the filing date of the application;

9.10.2.c. Has been convicted of violating the liquor laws of any state or the United States within two (2) years next preceding the filing date of the application;

9.10.2.d. Has had any license revoked under the liquor laws of any state or the United States within five (5) years next preceding the filing date of the application;

9.10.2.e. Is not a person of good moral character or repute;

9.10.2.f. Is not the legitimate owner of the business proposed to be licensed, or other persons have ownership interests in the business which have not been disclosed;

9.10.2.g. Does not possess or has not demonstrated sufficient financial responsibility to adequately satisfy the requirements of the business proposed to be licensed;

9.10.2.h. Has maintained a noisy, loud, disorderly, or unsanitary establishment;

9.10.2.i. Has demonstrated, either by his or her police record or by his or her record as a former licensee under W. Va. Code §60-1-1 et seq., a lack of respect for law and order;

9.10.2.j. May not be sold alcoholic beverages pursuant to W. Va. Code §60-1-1 et seq.;

9.10.2.k. Has the general reputation of drinking alcoholic beverages to excess, or is addicted to the use of alcohol or narcotics;

9.10.2.l. Is physically unable to carry on the business or has been adjudicated an incompetent; or

9.10.2.m. Is an officer or employee of the Commissioner;

9.10.c. Fails to satisfy the requirements of this rule, the liquor laws, rules, or the regulations of this state, the applicant’s domicile state and the United States.

9.11. License not transferable.

9.11.1. A license issued to a direct shipper is valid only for the person, firm, or corporation named thereon and only for the premises for which the license was sought and issued. The license is not transferable. To the extent there is a change in beneficial ownership of 20% or less thereof, the Commissioner shall be notified in writing within 10 days before the transfer. If there is a change in the beneficial ownership in excess of 20%, then the license shall be voided and the licensee must make application for a new license.

9.11.2. If there is any transfer in the beneficial ownership of any interest in a direct shipper, the new owner of the beneficial interest must satisfy all of the requirements of any and all laws of the United States and any rules and regulations promulgated pursuant thereto, and of the laws of the state, including, but not limited to, the provisions of W. Va. Code §60-1-1 et seq., and of the rules promulgated pursuant thereof.

9.12. Change of location. -- Any direct shipper who desires or intends to change the location of the premises for which the license was issued prior to the renewal of the license shall notify the Commissioner in writing at least 30 days next preceding the date of the relocation. In the event of flood or fire, the Commissioner may waive the 30 day notice upon request of the affected licensee.

9.13. Connection between direct shipper prohibited. – If a licensed retailer, private club type, private wine bed and breakfast, private wine restaurant, or private wine spa applicant is located within the same building or structure as a licensed direct shipper, there shall be no internal interconnection or door between the premises of the licensed retailer, private club type, private wine bed and breakfast, private wine restaurant, or private wine spa and the premises of the direct shipper. No person may be simultaneously employed by a direct shipper, distributor, private wine bed and breakfast, private wine restaurant, private wine spa, or private club type.

9.14. Transportation of wine by direct shipper. -- A direct shipper may not transport any wine unless the licensee has been issued a transportation permit by the Commissioner or utilizes a West Virginia licensed and bonded transporter or common carrier who has obtained a transportation permit as specified in this subsection.

9.15. Direct shipper records, inspection.

9.15.1. Every direct shipper shall maintain records of all sales, shipments and deliveries, including invoices, records, receipts, bills of lading, taxes paid to the State of West Virginia and other pertinent papers required by the Commissioner.

9.15.2. The licensed direct shipper shall preserve all records for at least two years.

9.15.3. The Tax Commissioner or the Commissioner, or both, may inspect the books, accounts, and records of any licensee and examine, under oath, any officer, agent, or employee of any licensee or any person engaged in the business of selling, shipping, or delivering wine to a distributor.

9.15.4. The Tax Commissioner or the Commissioner, or both, may require the production, within this state at the time and place the Tax Commissioner or the Commissioner, or both, of any books, accounts, papers or records kept within or without the State, or verified copies in lieu thereof, for examination by the Tax Commissioner, the Commissioner or their duly designated agents.

9.16. Monthly report of direct shipper; form; content.

9.16.1. Direct shippers shall file to the Tax Commissioner and the Commissioner a properly completed monthly report for all purchases and shipments of wine, nonfortified dessert wine, port, sherry, or Madeira wines sent to West Virginia adult residents for personal use and consumption, and not for resale. The report shall be filed before the 16th day of the month next succeeding the month for which the report is made on the Direct Shipper’s Report of Wine Sales & Taxes on Shipments into West Virginia form, provided by the Commissioner and available at www.abca.wv.gov.

9.16.2. The monthly report shall contain the following information:

9.16.2.a. The name and address of the direct shipper;

9.16.2.b. The month for which the report is being made;

9.16.2.c. The names and addresses of all West Virginia adults to whom the direct shipper shipped, wine, nonfortified dessert wine, port, sherry, or Madeira wines. The names and addresses of the common carrier used to ship the wine, nonfortified dessert wine, port, sherry, or Madeira wines;

9.16.2.d. The total number of liters sold and shipped by such direct shipper;

9.16.2.e. The identity and business phone number of the person preparing the report on behalf of the direct shipper;

9.16.2.f. The total amount of the invoice for the wine, nonfortified dessert wine, port, sherry, or Madeira wines shipped.; and

9.16.2.g. Such other information as the Commissioner or Tax Commissioner requires.

9.16.3. All monthly reports shall be considered tax returns pursuant to W. Va. Code §11-10-1 et seq.

9.16.4. Each monthly report must be filed in duplicate with the Tax commissioner and the Commissioner. Failure to timely file the monthly reports within five calendar days after the 16th day of the month will subject the direct shipper to penalties under W. Va. Code §60-8-18.

9.16.5. Every licensed direct shippers must collect and remit to the Tax Commissioner all taxes, sales taxes, municipal taxes and the liter tax due to West Virginia at the close of each month with the direct shipper’s monthly report reflecting the taxes paid for all sales and shipments to West Virginia adult residents who are 21 years of age or older.

9.17. Invoices required; content. -- One copy of each invoice for every sale and shipment made to adult West Virginia residents for personal use and consumption, and not for resale. The invoice shall identify the resident to whom sales and shipments of wine, nonfortified dessert wine, port, sherry, or Madeira wines were made, the resident’s address, the total invoice cost, the items sold by label identification, the quantity stated in liters, and the alcohol content of each item sold.

9.18. Direct shipping and transportation.

9.18.1. A direct shipper may not ship more than two (2) cases of wine, nonfortified dessert wine, port, sherry, or Madeira wines to an adult West Virginia resident consumer, who is 21 years of age or over, for such resident’s personal use and consumption and not for resale, per month.

9.18.2. All transportation of wine, nonfortified dessert wine, port, sherry, or Madeira wines by or on behalf of a direct shipper must be by a bonded and licensed common carrier. A direct shipper may also be a bonded and licensed common carrier.

9.18.3. A direct shipper or bonded and licensed common carrier must obtain a transportation permit from the Commissioner in order to transport wine into or within West Virginia.

9.18.4. Upon delivery a direct shipper or bonded and licensed common carrier must obtain the written or electronic signature of the adult West Virginia resident who is 21 years of age or over, who ordered the wine, nonfortified dessert wine, port, sherry, or Madeira wines. The common carrier shall verify the age of the person who ordered by checking the proper identification.

9.18.5. A direct shipper or bonded and licensed common carrier may not leave direct shipments of wine, nonfortified dessert wine, port, sherry, or Madeira wines at the West Virginia address for the person who ordered without the direct shipper or common carrier having first checking the person’s identification and verifying the person’s signature who ordered the wine, nonfortified dessert wine, port, sherry or Madeira wines and that the person who ordered is 21 years of age or over.

9.18.6. Failure of a direct shipper or its common carrier to satisfy the requirements of this rule and the W. Va. code subjects the direct shipper and common carrier to penalties under W. Va. Code §60-8-18.

9.19. Unlawful direct shipping.

9.19.1. No person may ship wine, nonfortified dessert wine, port, sherry, or Madeira wines directly to consumers in West Virginia without a direct shipper’s license or any other permit or license from the Commissioner.

9.19.2. No person may ship wine, nonfortified dessert wine, port, sherry, or Madeira wines directly to licensed retailers, private club types, private wine bed and breakfasts, private wine restaurants, and private wine spas in West Virginia.

9.19.3. Any person who knowingly makes, participates in, transports, imports, or receives such an unlicensed and unauthorized direct shipment of wine, nonfortified dessert wine, port, sherry, or Madeira wines is guilty of a felony and shall upon conviction thereof, be fined in an amount not to $10,000 per violation or shall be imprisoned in jail for a period not to exceed 72 hours.

9.19.4. Without limitation on any punishment or remedy, criminal or civil, any person who knowingly makes, participates in, transports, imports, or receives such a direct shipment of wine, nonfortified dessert wine, port, sherry, or Madeira wines constitutes an act that is an unfair trade practice.

W. Va. Code R. § 175-4-10 Farm wineries

A farm winery is subject to the requirements under the W. Va. Code and the rules promulgated thereto, including but not limited to this rule and 175 CSR 3. A farm winery must be licensed in every capacity that it operates, have qualified for and paid for each license and satisfy the requirements and expectations for each license held by the farm winery. A farm winery may obtain a multi-capacity winery or farm winery license to operate in several capacities for one fee. See 175 CSR 3 for more farm winery requirements.

W. Va. Code R. § 175-4-11 Wine Liter Tax and Municipal Tax on Wine Sales; Reports Required

11.1. Distributor's purchase order.

11.1.1. All sales of wine, nonfortified dessert wine, port, sherry, or Madeira wines, except retail sales of wine, nonfortified dessert wine, port, sherry, or Madeira wines, must be by purchase order. All forms shall include the following information for each item purchased from the supplier: Brand name, unit size, number of cases and bottles, total quantity in extended liters (the unit size multiplied by the number of bottles will give the extended liters), case price, and the total cost of each item purchased. All purchase orders shall be dated and numbered to identify the purchaser and distributor and are to be signed by the distributor or his agent or employee.

11.1.1.a. The Commissioner shall furnish with each distributor's license a copy of "Purchase Order" form to use for purchase orders. This form need not be followed in exact detail or outline so long as the purchase order form used contains the information required herein; i.e., receiving documents and computer generated receipts may be used if the necessary information is provided.

11.1.1.b. The supplier or distributor shall maintain a copy of all purchase orders for a period of four years for use by the Commissioner for review and audit.

11.1.2. Distributor's wine invoice.

11.1.2.a. Each delivery of wine, nonfortified dessert wine, port, sherry, or Madeira wines from a distributor shall be accompanied by an invoice including the following information: The date of invoice; the date of delivery; the trade name and address of the licensed retailer; private wine bed and breakfast; private wine restaurant; private wine spa; private club types; the licensee’s license number; the number of cases and bottles ordered and the size of each stated in liters; the identity of the product ordered; stated by brand and type; the total number of liters of each; the unit price of each brand and type ordered and the total sales price for each; the total number of liters included upon the invoice; and the total purchase price thereof. The invoice shall also contain a statement to be executed by the licensed retailer, private wine bed and breakfast, private wine restaurant, or private wine spa, indicating the date of receipt of the wine, nonfortified dessert wine, port, sherry, or Madeira wines so purchased and that such distributor was paid in full for all items so received, and name of the person, firm, or corporation from whom the shipment was received or by whom it was delivered. All invoices shall state the mode or method of payment.

11.1.2.b. The Commissioner shall furnish with each distributor a copy of "Distributor's Wine Invoice," form for distributor's wine invoices. This form need not be followed in exact detail or outline so long as the form contains the information required.

11.1.2.c. The distributor and the licensed retailer, private wine bed and breakfast, private wine restaurant, private wine spa, or private club type shall retain a copy of all the distributor’s wine invoices for a period of four (4) years for use by the Commissioner for review and audit.

11.1.3. Taxpayer. -- The taxpayer shall, for the purpose of determining the proper party to claim a refund of wine liter tax, be only the person who pays the wine liter tax to the Tax Commissioner. For purposes of claiming a refund for a casualty loss, the term "taxpayer" may include a distributor, licensed retailer, private wine bed and breakfast, private wine restaurant, private wine spa, or private club type. For the purposes of claiming a credit against such tax, the term "taxpayer "shall include only the supplier or direct shipper claiming the same.

11.1.4. Refund of liter tax by reason of casualty loss. -- A distributor, direct shipper, licensed retailer, private wine bed and breakfast, private wine restaurant, private wine spa, or private club type, who has paid the liter tax on wine declared by the Commissioner to be unfit for sale, as a result of fire or other casualty may apply for a refund of the liter tax paid, if the amount of the tax paid on loss exceeds $50. Neither theft nor breakage occurring on the premises of the distributor, direct shipper, licensed retailer, private wine bed and breakfast, private wine restaurant, private wine spa, or private club type, is a casualty within the meaning of this rule.

11.1.4.a. Any distributor, direct shipper, licensed retailer, private wine bed and breakfast, private wine restaurant, private wine spa, or private club type seeking a refund under this subsection shall contact the Commissioner within five calendar days of the occurrence or casualty resulting in such loss. Upon verification of the loss and the reasons, the Commissioner shall take such steps necessary to effect payment in full to the distributor, direct shipper, licensed retailer, private wine bed and breakfast, private wine restaurant, private wine spa, or private club type having the claim. No refund or claim may be granted or considered by the Commissioner for liter taxes in an aggregate of less than $50.

11.1.4.b. The Commissioner is the source of last resort for a refund under the subsection. No claim for a refund will be honored until any available insurance or other source from which a claim for casualty loss is recoverable has been exhausted. For the purpose of any refund, each casualty shall be regarded separately from any other casualty. No claim for refund may include more than one casualty.

11.1.5. Municipal tax on sales of wine to be collected and remitted to the State Tax Department.

11.1.5.a. All taxes required to be levied and collected on sales of wine made by distributors, suppliers, direct shippers, licensed retailers, private wine bed and breakfasts, private wine restaurants, private wine spas, private club types, and farm wineries pursuant to the provisions of either W. Va. Code §8-13-7, or W. Va. Code §60-3-9d, or both, shall be remitted to and collected by the Department. All such taxes shall be deposited to the State Treasury, which shall be responsible for the distribution to the appropriate county or municipality. All assessments, petitions for reassessment, and hearings required on petitions for reassessment shall be administered and conducted by the Department. Any rulings to be made thereon shall be made by the Department. All statutes, rules and regulations, and procedures adopted by the Department with respect to assessments, reassessments, petitions for reassessment, hearings, administrative appeals, and all matters relating thereto insofar as the same may relate to the imposition and collection of the municipal tax on sales of wine are adopted and incorporated herein by reference to the same extent as if the same were set forth here in extension and shall apply to the imposition and collection of such tax.

11.1.5.b. This section does not apply to the collection, allocation, or distribution of taxes on retail sales made by the Commissioner.

W. Va. Code R. § 175-4-12 Advertising

12.1. General prohibition. -- All advertising of wine which encourages intemperance, makes the consumption of alcoholic liquor appear to be glamorous, is lewd or obscene, induces minors to purchase, or tends to deceive or misrepresent, is hereby prohibited. Federal law, as interpreted by the ABCA, provides the following guidelines relative to acceptable and prohibited advertising of wine.

12.2. Permissible media. -- Printed advertising of wine in West Virginia is limited to billboards, newspapers, magazines and similar publications, internet, other electronic media, radio, and television.

12.3. Application. -- No person engaged in business as a producer, processor, broker, manufacturer, bottler, importer, wholesaler, direct shipper, or retailer of wine, may directly or indirectly, or through an affiliate, publish or disseminate or cause to be published or disseminated in any billboard, newspaper, magazine, or similar publication any advertisement of wine, unless the advertisement is in conformity with this rule. This rule does not apply to the publisher or standardized outdoor advertising company of any billboard, newspaper, magazine, or similar publication, unless he, she or it is engaged in business as a producer, manufacturer, bottler, importer, wholesaler, direct shipper, or retailer of wine, directly or indirectly, or through an affiliate.

12.4. Mandatory statements.

12.4.1. Responsible advertiser. -- An advertisement of wine shall state the name and address of the producer, manufacturer, bottler, importer, direct shipper, or wholesaler responsible for its publication. The advertisement need not state the street name and number.

12.4.2. Class, type, and distinctive designation. -- The advertisement shall contain a conspicuous statement of the class and type, or other designation of the product corresponding with the complete designation which appears on the brand label of the product.

12.4.3. Alcoholic content. -- The advertisement shall state the alcoholic content of the wine advertised in the manner and form in which it appears on the wine labels.

12.5. Lettering. Conspicuousness of mandatory statements. -- Statements required to be stated in any written, printed, or graphic advertisement shall appear in lettering or type of a size, kind, and color sufficient to render them both conspicuous and readily legible. In particular:

12.5.1. Required information shall be stated against a contrasting background and in type or lettering which is at least the equivalent of eight point type;

12.5.2. Required information shall be stated so as to appear to be a part of the advertisement and shall not be separated in any manner from the remainder of the advertisement;

12.5.3. Where an advertisement relates to more than one product, the required information shall appear in such a manner as to clearly indicate the particular product to which it is applicable; and

12.5.4. Required information may not be buried or concealed in unrequired descriptive matter or decorative designs.

12.6. Prohibited statements -- Generally.

12.6.1. Restrictions. -- An advertisement may not contain:

12.6.1.a. Any statement that is false or misleading in any material particular. For example, the reproduction of medals or facsimiles of awards, when no medals or awards have been given or where the medals or awards were not given on a competitive or comparative basis are prohibited;

12.6.1.b. Any statement that is disparaging of a competitor’s product;

12.6.1.c. Any statement, design, device, or representation which is obscene, lewd, or indecent;

12.6.1.d. Any statement, design, device, or representation of, or relating to, analyses, standards, or tests, irrespective of falsity which is likely to mislead the consumer. For example, an advertisement may not contain a statement such as "Analyzed by the laboratory and found to be pure and free from deleterious ingredients," or "Tested and approved. Signed by the Research Institute;"

12.6.1.e. Any statement, design, device, or representation of, or relating to, any guaranty, irrespective of falsity, which is likely to mislead the consumer. Nothing in this section shall prohibit the use of any enforceable guaranty in substantially the following form:

"We will refund the purchase price to the purchaser if he is in any manner dissatisfied with the contents of this package."

Blank to be filled in with the name of person making guaranty; and

12.6.1.f. Any statement that the product is produced, made, bottled, packed, or sold under, or in accordance with, any authorization, law, rule, or regulation of any municipality, county, or state, federal or foreign government unless such statement is required or specifically authorized by the laws, rules or regulations of such government. If a municipal, county, state, or federal permit number is stated, it may not be accompanied by any additional statement relating thereto.

12.6.2. Statements inconsistent with labeling. -- Advertisement may not contain any statement concerning a brand or lot of wine that is inconsistent with any statement on the labeling thereof.

12.6.3. Curative and therapeutic effects. -- Advertisement may not contain any statement, design or device representing that the use of any wine has curative or therapeutic effects if the statement is untrue in any particular or tends to create a misleading impression. For example, advertisements may not contain statements such as " is good for you" or "Conducive to well-being."

12.6.4. Place of origin. -- An advertisement may not represent that wine was manufactured in, or imported from, a place or country other than that of its actual origin, or was produced or processed by one who was not in fact the actual producer.

12.6.5. Flags, seals, coats of arms, crests, and other insignia. -- No advertisement may contain any statement, design, device, or pictorial representation of, or relating to, or capable of being construed as relating to the armed forces of the United States, or of the American Flag, any state flag, or any emblem, seal, insignia, or decoration associated with any such flag or the Armed Forces of the United States. No advertisement may contain any statement, device, design, or pictorial representation of or concerning any flag, seal, coat of arms, crest, or other insignia, likely to falsely lead the consumer to believe that the product has been endorsed, made or used by, or produced for, or under the supervision of, or in accordance with the specifications of the government, organization, family, or individual with whom such flag, seal, coat of arms, crest, or insignia is associated.

12.7. Restrictions.

12.7.1. An advertisement may not contain any statement of a bonded wine cellar and bonded winery numbers unless stated in direct conjunction with the name and address of the person operating the winery or storeroom. The statement of a bonded wine cellar and bonded winery number may be made in the following form: "Bonded Wine Cellar No. __," "Bonded Winery No. __," "B.W.C. No. __," "B.W. No. __." No additional reference to the statement may be made, nor shall any use be made of the statement that may convey the impression that the wine has been made or matured under United States government or any state government supervision or in accordance with United States government or any state government specifications or standards.

12.7.2. Any statement, design, device, or representation which relates to alcoholic content or which tends to create the impression that a wine is "Unfortified" or has been "Fortified," or has intoxicating qualities, or contains distilled spirits (except for a reference to distilled spirits in a statement of composition where such statement is required by this rule to appear as a part of the designation of the product) is prohibited.

W. Va. Code R. § 175-4-13 Trade Practices and Conduct of Business Generally

13.1. Improper Inducements. -- A manufacturer may not induce, directly or indirectly, any distributor, direct shipper, licensed retailer, private wine bed and breakfast, private wine restaurant, private wine spa, or private club type to purchase any wines from the manufacturer to the exclusion, in whole or in part, of products sold or offered for sale by another manufacturer, by:

13.1.1. Acquiring or holding any interest in any license of a distributor, direct shipper, licensed retailer, private wine bed and breakfast, private wine restaurant, private wine spa, private club type, or in any premises owned, occupied or used in any manner by the licensee or his or her immediate family;

13.1.2. Acquiring any interest in the real or personal property which is owned, occupied, or in any manner used by the distributor, direct shipper, licensed retailer, private wine bed and breakfast, private wine restaurant, private wine spa, or private club type or his or her immediate family in the conduct of any business;

13.1.3. Furnishing, giving, renting, lending, or selling to a distributor, direct shipper, licensed retailer, private wine bed and breakfast, private wine restaurant, private wine spa, or private club type or his or her immediate family any equipment, fixtures, exterior signs, supplies, money, services, or other things of value: However, a manufacturer may furnish items of nominal value for in-store display or sales purposes and to be used only within the confines of the commercial establishment.

13.1.4. Paying or crediting a distributor, direct shipper, licensed retailer, private wine bed and breakfast, private wine restaurant, private wine spa, or private club type or his or her immediate family for any advertising, display, or distribution services;

13.1.5. Guaranteeing any loan for the repayment of any financial obligation of a distributor, direct shipper, licensed retailer, private wine bed and breakfast, private wine restaurant, private wine spa, or private club type or his or her immediate family; or

13.1.6. Requiring the distributor, licensed retailer, or private wine restaurant, , private wine spa, or private club type to take and dispose of a certain quota of any wine.

13.2. Interest in the retail license. -- A manufacturer may not acquire or hold any interest in any license required to be obtained by a distributor, direct shipper, licensed retailer, private wine bed and breakfast, private wine restaurant, private wine spa, or private club type, or his or her immediate family or in any other premises owned, occupied, or in any manner used by the distributor, direct shipper, licensed retailer, private wine bed and breakfast, private wine restaurant, private wine spa, or private club type, or his or her immediate family.

13.2.1. This prohibition applies to the officers, partners, employees, other representatives of the manufacturer, and their immediate families.

13.2.2. This prohibition applies to any such interest acquired by a separate corporation in which the manufacturer or its officers, partners, employees, or other representatives, or their immediate families, holding any ownership interests or are otherwise affiliated.

13.3. Interest in real or personal property of a distributor, direct shipper, licensed retailer, private wine bed and breakfast, private wine restaurant, private wine spa, or private club type.

13.3.1. A manufacturer may not acquire or hold any interest in real or personal property which is owned, occupied, or in any manner used by a distributor, direct shipper, licensed retailer, private wine bed and breakfast, private wine restaurant, private wine spa, or private club type or his or her immediate family.

13.3.2. This prohibition applies to any interest acquired by corporate officials, partners and employees, or other representatives of the manufacturer, or their immediate families and to any interest which is acquired by a separate corporation in which the manufacturer or its officers, partners, employees, or other representatives or their immediate families of any such individuals, hold any ownership interest or are otherwise affiliated.

13.3.3. A manufacturer may not acquire a mortgage or similar type of document on the real or personal property of a distributor, direct shipper, licensed retailer, private wine bed and breakfast, private wine restaurant, private wine spa, or private club type, or on the real or personal property of their immediate family members.

13.3.4. A manufacturer may not rent display space or shelf space at any commercial establishment operated by a distributor, direct shipper, licensed retailer, private wine bed and breakfast, private wine restaurant, private wine spa, or private club type or his or her immediate family.

13.4. Furnishing things of value.

13.4.1. A manufacturer may not furnish, give, rent, or lend to a distributor, direct shipper, licensed retailer, private wine bed and breakfast, private wine restaurant, private wine spa, or private club type or his or her immediate family any equipment, fixtures, exterior signs, supplies, money, services, or other things of value. A manufacturer may sell to a distributor, direct shipper, licensed retailer, private wine bed and breakfast, private wine restaurant, private wine spa, or private club type goods other than wine which are to be resold to the general public, or to members of the private wine restaurant, so long as the distributor, direct shipper, licensed retailer, private wine bed and breakfast, private wine restaurant, private wine spa, or private club type must pay the normal sale price for those goods.

13.4.2. This prohibition applies to any similar activity which occurs through a third party, such as a retailer association or display company, where the benefits resulting to the distributor, direct shipper, licensed retailer, private wine bed and breakfast, private wine restaurant, private wine spa, or private club type may be considered as providing a thing of value without the payment of an appropriate purchase price.

13.4.3. The sale of any equipment, supplies or fixtures to a distributor, direct shipper, licensed retailer, private wine bed and breakfast, private wine restaurant, private wine spa, or private club type by a manufacturer must take place at the then current market value. The manufacturer may not offer any special price advantage to purchasing from one manufacturer as opposed to another manufacturer.

13.4.4. A manufacturer may not provide any assistance (financial, legal, administrative, or influential) to a distributor, direct shipper, licensed retailer, private wine bed and breakfast, private wine restaurant, private wine spa or private club type in acquiring any license required by the Commissioner.

13.4.5. A manufacturer may not furnish any exterior advertising signs to a distributor, direct shipper, licensed retailer, private wine bed and breakfast, private wine restaurant, private wine spa, or private club type, but may provide interior signs. The manufacturer may advertise by billboards which display alcoholic liquors, wine, or nonintoxicating beer, but the manufacturer may not identify any distributor, direct shipper, licensed retailer, private wine bed and breakfast, private wine restaurant, private wine spa, or private club type within such advertisement.

13.4.6. A manufacturer may not furnish to a distributor, direct shipper, licensed retailer, private wine bed and breakfast, private wine restaurant, private wine spa, or private club type at less than the normal sale price anything of value which the licensee may merchandise in his or her business. These things of value including nonalcoholic mixers, pouring racks, and similar items.

13.5. Paying for advertising, display, or distribution service. A manufacturer may not provide a distributor, direct shipper, licensed retailer, private wine bed and breakfast, private wine restaurant, private wine spa, or private club type or his or her immediate family of either, with free advertisement, exterior display, or distribution services, or any similar types of services in any business activities.

13.6. Quota sales. A manufacturer may not require a distributor, direct shipper, licensed retailer, private wine bed and breakfast, private wine restaurant, private wine spa, or private club type may not be required to purchase any alcoholic liquors in order to purchase nonalcoholic liquors or other products from that manufacturer.

13.7. Other. A manufacturer may not touch the product or displays of another manufacturer.

W. Va. Code R. § 175-4-14 Unlawful Acts

14.1. It shall be unlawful:

14.1.1. Unless otherwise specifically provided by the provisions W.Va. Code §60-8-1 et seq., for a licensee under W.Va. Code §60-8-1 et seq., to acquire, transport, possess for sale, or sell wine other than in the original package;

14.1.2. For a licensee, his or her servants, agents or employees to sell, furnish, or give wine to any person less than 21 years of age, or to a mental incompetent or person who is physically incapacitated due to the consumption of alcoholic liquor or the use of drugs: Provided, That the provisions of W.Va. Code §60-3A-25a and §60-3A-25 shall apply to sales of wine;

14.1.3. Nothing in this rule shall prevent or be considered to prohibit any licensee from employing any person who is at least 16 years of age to serve in the licensee's lawful employ, including the sale of wine. With the prior approval of the Commissioner, a licensee whose principal business is the sale of food or consumer goods or the providing of recreational activities, including, but not limited to, nationally franchised fast food outlets, family-oriented restaurants, bowling alleys, drug stores, discount stores, grocery stores, and convenience stores, may employ persons who are less than 18 years of age but at least 16 years of age who will be directly supervised by an employee 21 years of age or older. The underage employee’s duties shall not include the delivery of wine to an off-premises location with a private wine delivery permit or for wine delivery with a gift basket. Note, the authorization to employ persons under the age of 18 years shall be clearly indicated on the licensee's license;

14.1.4. for a retailer, farm winery (except as provided in W. Va. Code 60-8-34 and 175 CSR 3), wine specialty shop retailer, private wine bed and breakfast, private wine restaurant, or private wine spa licensee, his or her servants, agents, or employees to sell wine between the hours of 2:00 a.m. and 6:00 a.m. on all days of the week;

14.1.5. for a retailer to sell un-sealed packages per W.Va. Code §60-8-21;

14.1.6. for a retailer to sell or deliver wine purchased or acquired from any source other than a licensed distributor or a farm winery;

14.1.7. for a retailer to permit any person to break the seal on any package or bottle of wine, consume alcoholic liquor, wine, or beer, or loiter while on the retailer’s licensed premises.

14.1.8. for any licensee to fail to meet the requirement for initial or renewal of licensure as specified in W. Va. Code §60-8-1 et seq. and in this rule;

14.1.9. for any winery, farm winery, supplier, or distributor to fail to license its representatives;

14.1.10. for a direct shipper to fail to meet any requirements specified in W. Va. Code §60-8-6, W. Va. Code §60-8-6a and this rule;

14.1.11. for a direct shipper to ship liquor or nonintoxicating beer; or

14.1.12. for a person or licensee to violate any reasonable rule of the commissioner;

14.2. It shall be unlawful for a supplier:

14.2.1. to sell or deliver wine purchased or acquired from any source other than a person registered under the provisions of W. Va. Code §60-8-6(a);

14.2.2. to sell or deliver any brand of wine purchased or acquired from any source other than the primary source of supply of the wine which granted the distributor the right to sell the brand at wholesale. The "primary source of supply" means the vintner of the wine, the importer of a foreign wine who imports the wine into the United States, the owner of a wine at the time it becomes a marketable product, the bottler of a wine or an agent specifically authorized by any of the above-enumerated persons to make a sale of the wine to a West Virginia distributor;

14.2.3. to possess, sell, or deliver any wine that it has not registered per section 3.7. of this rule and pay the appropriate fees;

14.2.4. to appoint only one distributor for the state of West Virginia, as this is an illegal exclusive agreement per W. Va. Code §60-8-30;

14.2.5. to not pay the wine liter tax as required by W.Va. Code §60-8-4; or

14.2.6. to violate any rule of the commissioner.

14.3. It shall be unlawful for a distributor:

14.3.1. to sell or deliver wine purchased or acquired from any source other than a person registered under the provisions of W. Va. Code §60-8-6(a);

14.3.2. to discriminate in price, sales agreements, terms or services offered to retailers, licensees or to any licensee under article seven of this chapter and further it is unlawful for a supplier to discriminate against a distributor in price, sales agreements, terms or services. "Discriminate", as used in this section, means the granting of more favorable prices, agreements, terms or services to one person than to another;

14.3.3. to sell wines authorized by W. Va. Code §60-8-1 et seq., to licensees under W. Va. Code §60-7-1 et seq. and retailers and licensees under W. Va. Code §60-8-1 et seq., at a price which is greater than the price at which such wines are sold and distributed to retailers under this article;

14.3.4. to sell unregistered wine in West Virginia and the distributor has a duty to verify with the Commissioner that wine sold by them has been registered in West Virginia;

14.3.5. to sell or deliver any brand of wine purchased or acquired from any source other than the primary source of supply of the wine which granted the distributor the right to sell the brand at wholesale. The "primary source of supply" means the vintner of the wine, the importer of a foreign wine who imports the wine into the United States, the owner of a wine at the time it becomes a marketable product, the bottler of a wine or an agent specifically authorized by any of the above-enumerated persons to make a sale of the wine to a West Virginia distributor: Provided, that nothing herein is considered to prohibit sales of convenience between distributors licensed in this state wherein one distributor sells, transfers or delivers to another distributor a particular brand or brands for sale at wholesale, of which brand or brands the other distributor has been authorized by a licensed supplier to distribute;

14.3.6. to sell or offer to sell, or a retailer to purchase or receive, any wine except on a cash basis and no right of action exists to collect any claims for credit extended contrary to the to the code and this rule: however nothing prohibits, a credit on any subsequent sale, for crediting the purchase price charged for wine returned by the purchaser because of damage, spoilage, erroneous shipments or orders, and other such reasons customary in the trade; or

14.3.7. to violate any rule of the commissioner.

14.4. The commissioner may on his or her own motion, or shall on the sworn complaint of any person, conduct an investigation to determine if any provisions of W. Va. Code §60-8-1 et seq., any rule of the commissioner or any order issued by the commissioner has been violated by any licensee. After investigation, the commissioner may impose penalties and sanctions as set forth below:

14.4.1. If the commissioner finds that the licensee has violated any provision of W. Va. Code §60-8-1 et seq., any rule of the commissioner or any order issued by the commissioner, or if the commissioner finds the existence of any ground on which a license could have been refused, if the licensee were then applying for a license, the Commissioner may:

14.4.1.a. Revoke the licensee's license;

14.4.1.b. Suspend the licensee's license;

14.4.1.c. Place the licensee on probationary status for a period not to exceed 12 months; and/or,

14.4.1.d. Impose a monetary penalty not to exceed $1,000.00 for each violation where revocation is not imposed.

14.4.2. If the commissioner finds that a licensee has willfully violated any provision of W. Va. Code §60-8-1 et seq., any rule of the commissioner or any order issued by the commissioner, the commissioner shall revoke the licensee's license.

14.4.3. If the commissioner finds that public safety is adversely affected by the licensee’s alleged violations, the commissioner may immediately suspend the licensee’s license in the interest of public safety in order to conduct an investigation and determine whether to hold a hearing on the licensee’s alleged violations; such a suspension is not subject to any stay.

14.5. Any licensee who pleads or is found guilty of a criminal citation or a West Virginia Department of Agriculture administrative citation for sale of hemp or kratom to a person under 21 years of age, for sale of unregistered hemp or kratom, or for selling hemp or kratom without a license as set forth in W. Va. Code §19-12E-12 and §19-12F-1 et seq., is subject to all the penalties and sanctions in section 5.3., as determined by the Commissioner.

W. Va. Code R. § 175-4-15 Refusal, Suspension, or Revocation of License

15.1. Refusal, suspension, or revocation of license; applicant or licensee not a suitable person. -- W. Va. Code §60-8-1 et seq. requires that the Commissioner refuse a license to any applicant if he finds that "such applicant is not a suitable person." The Commissioner may refuse to issue a license to any applicant or may revoke or suspend the license of any licensee whom he or she affirmatively finds not to be of good reputation in the community where the license was sought or granted. In considering whether a person is "not a suitable person," the Commissioner may take into account other factors, including those factors described in Section 4.10, 5.7, 6.8, or 9.10 in addition to the reputation of such person in the community where licensure was sought or granted. This rule includes a person who manages or conducts the affairs of the applicant or licensee.

15.2. Refusal, suspension, or revocation of license; premises not a suitable place. -- If the Commissioner finds that the licensed premises or the premises for which licensure is sought is not a "Suitable Place," fails to meet the requirements of any law, rule, or regulations of this state or of the United States, is in violation of any zoning ordinance for which no variance has been granted or that illegal activities are occurring or are allowed to occur at the premises, the Commissioner may refuse the application for licensure, suspend, or revoke any of the licensee’s license, or may grant a reasonable time within which to correct any violation or condition.

15.3. Refusal, suspension, or revocation of license; disqualification of beneficial owner or of persons managing or conducting affairs of applicant or licensee. -- When, by the provisions of any law, rule or regulation, a person is prohibited from owning any interest in a distributor, a licensed retailer or a private wine restaurant, the prohibition extends and includes any beneficial interest in the licensed distributor, licensed retailer, licensed private wine restaurant, or any other licensee. The Commissioner may refuse to license or suspend or revoke a license at any time he or she finds that a person so prohibited is, in fact, a true and actual owner or part owner in a distributor, licensed retailer, private wine restaurant, or any other licensee. Limitations as to ownership also apply to persons who actually, in whole or part, manage or conduct the affairs for which licensure was sought or granted. The true, beneficial, and actual ownership, management, or the conducting of the affairs of a licensed person, firm, or corporation held, controlled, managed, or conducted by persons not permitted so to do pursuant to either federal or state law, rule, or regulation, is grounds for immediate revocation of the license.

15.4. Dual ownership prohibited. -- No person, including the spouse, unemancipated child, or a child residing in the parent’s home may be licensed or own an interest, including any beneficial interest, simultaneously as a distributor and as a licensed retailer, as a direct shipper, private wine bed and breakfast, private wine restaurant, private wine spa, and a distributor, or as a licensed retailer and as a private wine bed and breakfast, private wine restaurant, private wine spa, or private club type.

15.5. Alcohol Beverage Control Administration employees prohibited from ownership in a private wine bed and breakfast, private wine restaurant, private wine spa, private club type, licensed retailer, direct shipper, supplier, or distributor. The Alcohol Beverage Control Administration Commissioner, any employee of the Alcohol Beverage Control Administration Commissioner may not have, hold, or own any interest of whatsoever nature or kind, beneficial, or otherwise, in any licensed retailer, direct shipper, supplier, distributor, private wine bed and breakfast, private wine restaurant, or private wine spa, spouse, or unemancipated child or any child residing in his or her own residence regardless of age.

15.6. Management or conduct of affairs of licensee by certain persons prohibited. -- No person may be licensed as either a distributor, supplier, direct shipper, or retailer if he or she allows or permits another person to conduct or manage in any way or in any capacity, in whole or in part, the affairs of the applicant when either of such the other person has: (a) been convicted of a felony or other crime involving moral turpitude within three years next preceding the date upon which the application is filed, (b) been convicted in a court of record of violating the liquor laws of any state or the United States within two next preceding the date upon which the application is filed, or (c) had any license revoked pursuant to W. Va. Code §60-1-1 et seq., or under the liquor laws of any other state within five years next preceding the date upon which the application is filed. The Commissioner shall determine whether the applicant or the other person is in compliance with this subsection based upon the substantial duties of the person in question and not upon the title or other extraneous factors relating thereto.

15.6.1. This rule applies only to the extent that the person, firm, or corporation seeking or attaining licensure has employed or engaged another in:

15.6.1.a. The sale or distribution of wine,

15.6.1.b. The acquisition of wine, or

15.6.1.c. Managing in any substantial way or conducting the affairs of the applicant or license renewal.

15.6.2. This rule applies to all license renewals and a violation of its provisions during any period of which licensure has been granted shall be grounds for immediate revocation.

15.7. Refusal, suspension, or revocation of license. -- The Commissioner may refuse to license or may suspend or revoke the license of any supplier, distributor, direct shipper, licensed retailer, private wine bed and breakfast, private wine restaurant, private wine spa, or private club type whom he or she finds not to be in compliance with the provisions of any law, rule or regulation of the United States or of this state relating to the sale or distribution of wine.

W. Va. Code R. § 175-4-16 Hearing and Appeal Procedure

16.1. Order refusing license, suspending, or revoking same. -- If the Commissioner refuses to issue a license or sanctions, suspends, or revokes a license, he or she shall make and enter an order to that effect and mail, by certified mail, return receipt requested, a copy of the order to the licensee, or serve the same as provided for the service of legal process in accordance with the West Virginia Rules of Civil Procedure.

16.2. Petition for hearing. -- Any applicant or licensee adversely affected by such order, has the right to a hearing thereon before the Commissioner or a person designated by him or her as a hearing examiner. A petition in writing for such a hearing must be served upon the Commissioner within 10 calendar days following the receipt of the order by the applicant or licensee.

16.3. Petition requirements. -- The petition for a hearing must be in writing with an original and one (1) copy and must fully state the issues. No telegram, telephone call, facsimile, letter, email, or similar communication will be regarded as a petition. The petition must contain the following:

16.3.1. A jurisdictional statement;

16.3.2. A clear and concise assignment of each error which the petitioner alleges to have been committed by the Commissioner in the determination of a violation, with each assignment of error being shown in separately numbered paragraphs;

16.3.3. A clear and concise statement of fact upon which the petitioner relies as sustaining its assignment of error;

16.3.4. A prayer setting forth the relief sought;

16.3.5. The signature of the petitioner or its officers signing such petition; and

16.3.6. A verification by the petitioner.

16.4. Hearings - cost deposit. -- A person demanding a hearing shall give security for the cost of the hearing in the amount of $300 by certified check, cashier's check, business check, personal check, or money order payable to the Commissioner. The bond shall accompany the petition demanding a hearing and the deposit will be returned if the person demanding the hearing prevails.

16.5. Subpoenas and subpoenas duces tecum. -- In all hearings held under W. Va. Code §60-8-1 et seq., and this rule, the evidence of witnesses and the production of documentary evidence may be required through the use of subpoenas and subpoenas duces tecum, issued at the request of the Commissioner or the licensee, by either the Commissioner or his or her duly appointed hearing examiner.

16.5.1. Every such subpoena and/or subpoena duces tecum shall be served at least five (5) calendar days before the return date, either by personal service made by any person 21 years of age or older or by registered or certified mail. A return acknowledgment signed by the person to whom the subpoena or subpoena duces tecum is directed shall be required to prove service by registered or certified mail.

16.5.2. All subpoenas and subpoenas duces tecum will be issued in the name of the Alcohol Beverage Control Commissioner, but any party requesting their issuance must see that they are properly served. Service of subpoenas and subpoenas duces tecum issued at the insistence of the Commissioner are the responsibility of the Commissioner. Any person who serves any subpoena or subpoena duces tecum is entitled to the same fee as sheriffs who serve witness subpoenas for the circuit courts of this state. Fees for the attendance and travel of witnesses shall be the same as for witnesses appearing before the circuit courts of this state.

16.5.3. The Commissioner shall pay all fees for the issuance of a subpoena or subpoena duces tecum he or she issued.

16.5.4. A party requesting subpoenas or subpoena duces tecum shall pay all fees for their issuance out of the hearing deposit.

16.5.5. All requests by the licensee or the Commissioner for subpoenas and subpoenas duces tecum shall be in writing and contain a statement acknowledging that the requesting party agrees to pay such fees for their issuance.

16.5.6. Any person receiving a subpoena or subpoena duces tecum issued pursuant to this subsection shall honor it as though it was issued by a court of the state and shall appear as witness and/or produce such books, records, or papers in response to such subpoena or subpoena duces tecum. In case of disobedience or neglect of any subpoena or subpoena duces tecum lawfully served pursuant to this subsection, the court in which the hearing is being held or the judge thereof in vacation, upon application by the Commissioner, shall compel obedience by attachment proceeds for contempt.

16.6. Stay of suspension or revocation order. -- The service of a petition for hearing upon the Commissioner suspends the execution of any license revocation or suspension of the distributor, supplier, direct shipper, licensed retailer, private wine bed and breakfast, private wine restaurant, or private wine spa who demanded a hearing, unless the Commissioner determines that such suspension or revocation is in the interest of public safety.

16.7. Hearing date. -- The Commissioner shall set a date for any hearing demanded and notify the person demanding the hearing of the hearing date and time. The hearing shall be held within 30 calendar days after receipt of the demand.

16.8. Place of hearing. -- Hearings will be held in Charleston, West Virginia, unless the Commissioner determines otherwise.

16.9. Continuances. -- Hearings will not be delayed by a motion for continuance, unless it is made no later than 10 calendar days before the date set for the hearing and sets forth good and sufficient cause. Conflicting engagements of counsel or the employment of new counsel will never be regarded as grounds for a continuance, unless set forth in a motion filed promptly after the notice of hearing has been mailed, or unless extenuating circumstances are shown which the Commissioner deems adequate.

16.10. Waiver of hearing. -- In any case involving violation of the alcohol beverage control laws or rules, the Commissioner may afford the licensee or agent an opportunity to waive the formal hearing which has been timely requested. If the licensed retailer or agent so elects to waive a formal hearing, he or she may then state in writing any matter in explanation or mitigation of the violations which he or she desires the Hearing Examiner and the Commissioner to consider in making a decision. The retailer or agent shall thereafter be bound by his or her election and may not request a formal hearing.

16.11. Appearance and practice before the Hearing Examiner.

16.11.1. Petitioner

16.11.1.a. The petitioner shall be present at the hearing unless excused by the Hearing Examiner because of extraordinary circumstances:

16.11.1.b. The petitioner may appear either in person or by counsel to present oral testimony or other evidence;

16.11.1.c. If the petitioner fails to appear and has not been excused, the Hearing Examiner may treat such action as a withdrawal of the petition or request.

16.11.2. Respondent:

16.11.2.a. The respondent may appear at the hearing with or without counsel;

16.11.2.b. Failure of the petitioner to appear does not prevent presentation of the case before the Hearing Examiner or the entering of a final order.

16.11.3. Interested parties. Any person not initially joined in the proceeding may timely petition the Hearing Examiner for intervention.

16.12. Standards of ethical conduct. -- All persons appearing before the Hearing Examiner in a representative capacity shall conform to the standards of ethical conduct required of attorneys before the courts of the State of West Virginia. If any person does not conform to these standards, the Hearing Examiner may decline to permit the person to continue to appear in a representative capacity in the proceeding.

16.13. Hearing. -- The Commissioner may designate a Hearing Examiner to conduct the hearing.

16.13.1. The petitioner may appear individually, or by legal counsel, or by duly authorized representative. In the absence of the petitioner, written evidence of a representative's agent's authority must be presented to the satisfaction of the Commissioner.

16.13.2. The petitioner, his duly authorized representative or agent, may with the approval of the Commissioner, waive the right to a hearing and agree to submit the case for decision upon the petition and record, with or without a written brief. Such waivers and agreements are to be in writing or upon the record.

16.14. Argument and briefs. -- Petitioners will be given an opportunity for argument within the time limits fixed by the Commissioner following submission of evidence. The Commissioner will accept briefs in lieu of argument. Briefs must be filed within 20 calendar days after the hearing, unless otherwise agreed by the parties.

16.15. Discovery. -- Subsequent to the issuance and service of the Notice of Hearing upon a respondent, the parties may employ pre-hearing discovery measures. The Hearing Examiner is to utilize an informal set of guidelines using the West Virginia Rules of Civil Procedure as a model.

16.16. Evidence admissible at hearing. -- The Commissioner may admit any relevant evidence, but shall observe the rules of privilege recognized by law relating to communications and topics. Findings shall be supported by the kind of evidence commonly relied upon by reasonably prudent men in the conduct of their affairs, regardless of whether the evidence would be admissible before a jury. The Commissioner may exclude any evidence which is irrelevant, unduly repetitious, or lacking in substantial probative effect. General principals of West Virginia Rules of Evidence shall be observed.

16.17. Record of proceedings. -- There shall be a record made at all hearings held pursuant to this rule.

16.18. Commissioner's decision. -- After the conclusion of the hearing, within 10 days of receipt of the transcript thereof or after receipt of briefs submitted in lieu of argument, the person designated by the Commissioner as hearing examiner shall prepare a recommended decision supported by findings of fact and conclusions of law affirming, modifying or vacating the earlier order of the Commissioner. Thereafter, the Commissioner, within 10 calendar days of receipt of the recommended decision. If the Commissioner accepts or rejects the recommended decision, and if he or she accepts such decision, he or she shall sign and acknowledge the same as his or her own after having reviewed the transcript and all exhibits attached and affixed thereto. If the Commissioner rejects the recommended decision, he or she shall, within 10 calendar days of receipt of such recommended decision, prepare a decision setting forth his own findings of fact and conclusions of law. In either event, the order signed by the Commissioner shall be final unless vacated or modified upon judicial review. A copy of said order shall be served upon each party to the hearing and his or her attorney of record, if any, in person or by registered or certified mail.

16.19. Motion for reconsideration.

16.19.1. A motion for reconsideration of a final order made by the Commissioner must be made within seven calendar days after being served with the decision. The motion shall identify the matter the party desires to have reconsidered, shall fully state the reasons for reconsideration and shall be served on all parties.

16.19.2. When a motion for reconsideration has been filed, the order of the Commissioner shall not be deemed final for purposes of appeal until the Commissioner has served his or her ruling on the motion.

16.19.3. A motion for reconsideration of a proposed order issued by the Examiner may be appealed through a motion within seven calendar days after the date of service to be proposed initial order. A copy of the exceptions shall be served on all parties. The Commissioner shall issue an order within 30 calendar days after hearing date either affirming or reversing the Hearing Examiner's decision.

16.20. Appeal to court. -- An appeal may be taken by the applicant or licensee to the Intermediate Court of Appeals as set forth in W. Va. Code §51-11-4(a)(4), if filed within 30 calendar days after the charge upon which the party received notice of the final order of the Commissioner.

16.21. Filing and service of documents and orders.

16.21.1. All documents required to be filed in an appeal under this rule shall be filed with the Commissioner either by personal delivery to his office or by mail to the Commissioner’s mailing address.

16.21.2. Filing is effective upon delivery or upon mailing as determined by postmark.

16.21.3. Copies of all documents filed in an appeal under these rules shall be served upon all other parties.

16.21.4. Service of documents shall be accomplished by personal delivery or by registered or certified mail, return receipt requested. Whenever a party is represented by an attorney who has signed any document filed on his or her behalf of such party or otherwise entered an appearance on behalf of such party, service thereafter shall be made upon the attorney.

16.21.5. In the case of personal delivery, service is effective on delivery. In the case of mailing, service is effective upon mailing.

16.21.6. All documents required to be served shall be accompanied by proof of service in the form of a certificate of service. The certificate of service shall include a statement of how service was accomplished. Among those documents required to be served are: Notice of Hearing, Notice of Appeal, the final order, and any motions made. Also included are any documents the Commissioner adopts as being necessary for procedural purposes.

16.22. Supreme Court of Appeals. -- An appeal may be taken by the applicant or licensee or by the Commissioner from the final judgment of the court to which the applicant or licensee has appealed, the same to be taken in the manner and within the time provided by law for civil appeals generally.

Series 05 Licensing Of Retail Outlets

W. Va. Code R. § 175-5-1 General

1.1. Scope. -- This legislative rule explains and clarifies certain powers and duties of the West Virginia Alcohol Beverage Control Commissioner as set forth in W. Va. Code §60-3A-1, et seq., which relate to the sale of 10-year franchises to operate retail outlets to take effect on July 1, 2000, and on July 1st for every ten year license period thereafter. Specific emphasis is given to the Commissioner’s duties relative to the development of recommendations to be made to the West Virginia Retail Liquor Licensing Board relating to the establishment of minimum bids for the new licenses; the number and types of Class A retail licenses and Class B retail licenses to be authorized in each market zone; the development of purchase option licensing process, license bidding procedures and a deferred payment financing option; the award of residential preferences and the award of an additional preference for current licensees and the right to match; and the methodology for the purchase options and selecting successful bidders.

1.2. Authority. -- W. Va. Code §60-3A-1, et seq.

1.3. Filing Date. -- May 1, 2012.

1.4. Effective Date. -- May 1, 2012.

1.5. Type of rule. -- This rule is a legislative rule within the meaning of W. Va. Code §29A-1-2(d).

1.6. Citation. -- This rule may be cited as 175CSR5.

1.7. Short Title. -- This rule shall be known and may be cited as the “Retail Liquor License Rule.”

1.8. Forms. -- All forms are available at the ABCC office or on the internet at www.abca.wv.gov.

W. Va. Code R. § 175-5-2 Definitions

As used in this rule and unless the context clearly requires a different meaning, the following terms shall have the meaning ascribed herein, and shall apply in the singular and the plural.

2.1. “Active retail license” means a current license for a retail outlet that has been open and in continuous operation for a period of not less than 12 months prior to July 1, 2010, or July 1st for every ten year license period thereafter.

2.2. “Active retail licensee” means a person who holds an active retail license as of June 2, 2009, that person’s successor or any person who holds and operates an active retail license when it expires at the end of a ten-year period.

2.3. “Alcohol” means ethyl alcohol, whatever its origin, and shall include synthetic ethyl alcohol but not denatured alcohol.

2.4. “Alcohol Beverage Control Commission,” or “ABCC”, or “Commissioner” means the West Virginia Alcohol Beverage Control Commissioner or his or her designee.

2.5. “Alcoholic liquor” or “liquor” means alcohol, beer, fortified wine and distilled spirits, and any liquid or solid capable of being used as an alcoholic beverage, but shall not include wine with an alcohol content of fourteen percent (14%) or less by volume, nonintoxicating beer or nonintoxicating beverages.

2.6. “Alcohol-related products” means any non-alcoholic beer or beverages; non-alcoholic mixers; decanters; glass or plastic cups; openers, corks, or stoppers; gift bags; books, magazines or novelties; traditional West Virginia lottery products, such as: instant games, Keno, Powerball, Hot Lotto, daily games and Cash 25, but not limited video lottery; or such other alcohol related items as determined by the Commissioner, on a case by case basis, after receipt of a written request from an active retail licensee which must be sent to the Commissioner’s office via certified mail.

2.7. “Applicant” means any person who elects to pay a purchase option for a Class A license, who bids for a retail license or who seeks the Commissioner’s approval to purchase or otherwise acquire a retail license from a retail licensee, in accordance with the provisions of the Retail Liquor Licensing Act and this rule.

2.8. “Application” means the form prescribed by the Commissioner which must be filed with the Commissioner by any person bidding for a retail license.

2.9. “Beer” means any beverage obtained by the fermentation of barley, malt, hops or any other similar product or substitute and containing more alcohol than that of nonintoxicating beer, including nonintoxicating craft beer, and shall be included in the definition of “liquor” and “alcoholic liquor”, as used in chapter eleven, article sixteen and in chapter sixty of the code and shall not be construed to include or embrace nonintoxicating beer or nonintoxicating craft beer.

2.10. “Board” means the retail liquor licensing board created by W. Va. Code §60-3A-5.

2.11. “Class A retail license” means a retail license permitting the retail sale of liquor at a freestanding liquor retail outlet.

2.12. “Class B retail license” means a retail license permitting the sale of liquor at a mixed retail liquor outlet.

2.13. “Current licensee” means a person who holds and operates a retail license on June 2, 2009, on June 2 of the year prior to the end of every ten year license period thereafter or that person’s successor or any person who holds and operates a retail license when it expires at the end of a ten-year (10) period.

2.14. “Designated areas” mean one or more geographic areas within a market zone designated by the Board.

2.15. “Displayed inventory” means the current inventory of West Virginia product in the quantity as required for a Class A retail license or a Class B retail license that is available for sale in the set square footage of retail floor space of a retail outlet as established for a freestanding liquor retail outlet or a mixed retail liquor outlet and in sufficient quantities to service consumer demand at the retail outlet.

2.16. “Distilled spirits” means ethyl alcohol, ethanol or spirits, or wine, including all dilutions and mixtures thereof, from whatever source or by whatever process produced, for beverage use, and shall include, but not be limited to, natural spirits, whiskey, brandy, rum, gin, vodka, cordials and liqueurs. Any alcoholic beverage or other food product containing more than twenty-four percent (24%) of alcohol by volume shall be deemed to be distilled spirits.

2.17. “Deferred payment financing option” means the deferred payment financing available to active retail licensees who elect the purchase option and operate or seek to operate a freestanding liquor retail outlet and requires a down payment and either monthly or quarterly installment payments, plus interest, to pay the balance due in the first five (5) years or sixty (60) months of the ten-year license period.

2.18. “Executive officer” means the president or other principal officer, partner or member of an applicant or retail licensee, any vice president or other principal officer, partner or member of an applicant or retail licensee in charge of a principal business unit or division, or any other officer, partner or member of an applicant or retail licensee who performs a policy making function.

2.19. “Freestanding liquor retail outlet” means a retail outlet that sells only liquor, beer, nonintoxicating beer and other alcohol-related products, including tobacco-related products.

2.20. “Fortified wine” means any wine to which brandy or other alcohol has been added and includes dessert wines which are not fortified and any wine containing greater than fourteen percent (14%) of alcohol by volume.

2.21. “Intoxicated” means having one’s faculties impaired by alcohol or other drugs to the point where physical or mental control or both are markedly diminished.

2.22. “Inventory” means the inventory of West Virginia product available at a retail outlet that is maintained in non-retail floor space of the retail outlet.

2.23. “Liquor” means alcoholic liquor that includes alcohol, beer, wine and distilled spirits, and any liquid or solid capable of being used as a alcoholic beverage or food product, but shall not include nonintoxicating beer and also includes wine which means any alcoholic beverage obtained by the natural fermentation of the natural content of grapes, other fruits or honey or other agricultural products containing sugar and to which no alcohol has been added and shall include table wine, and shall exclude fortified wine and shall also exclude any product defined as or embraced within the definition of nonintoxicating beer; and shall include fortified wine which shall mean any wine to which brandy or other alcohol has been added and shall include dessert wines which are not fortified.

2.24. “Lineal descendant” means that kind of consanguinity which subsists between persons of whom one is descended in a direct line from the other; as between a particular person and his father, grandfather, great-grandfather and so upward, in the direct ascending line; or between the same person and his son, grandson, great-grandson, and so downwards in the direct descending line.

2.25. “Market zone” means a geographical area designated as such by the Board for the purpose of issuing retail licenses.

2.26. “Mixed retail liquor outlet” means a retail outlet that sells liquor, beer, nonintoxicating beer and other alcohol-related products, including tobacco-related products, in addition to convenience and other retail products.

2.27. “Nonintoxicating beer” means any cereal malt beverages or products of the brewing industry commonly referred to as beer, lager, 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 (.5%) alcohol by volume, but not more that nine and six-tenths percent (9.6%) of alcohol by weight, or twelve percent (12%) of alcohol by volume, whichever is greater, all of which are declared to be nonintoxicating beer and the word “liquor” as used in W. Va. Code §60-1-1, et seq., shall not be construed to include or embrace nonintoxicating beer or any of the beverages, products, mixtures or preparations included within this definition.

2.28. “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 (.5%) by volume and not more than twelve percent (12%) alcohol by volume or nine and six-tenths (9.6%) percent alcohol by weight.

2.29. “Original package” means any closed or sealed container or receptacle used for holding alcoholic liquor.

2.30. “Person” means an individual, firm, corporation, association, partnership, limited partnership, limited liability company or other entity, regardless of its form, structure or nature.

2.31. “Public place” means any place, building or conveyance to which the public has, or is permitted to have access, including but not limited to, establishments that provide lodging and/or sell food for consumption on or off the premises, and any highway, street, lane, park or place of public resort or amusement: Provided, that the term “public place” shall not mean or include any of the above-named places or any portion or portions thereof which qualify and are licensed under the provisions of W. Va. Code §60-1-1, et seq. to sell alcoholic liquors for consumption on the premises.

2.32. “Purchase option” means the choice provided to all active retail licensees who operate or seek to operate a Class A retail license or freestanding liquor retail outlet, and who elect, in advance of bidding licenses, to pay ten percent over and above the minimum bid set by the Board for such licensee’s active retail license, all subject to the requirements of this rule.

2.33. “Retail license” means a license issued under the provisions of W. Va. Code §60-3A-1, et seq., and this rule, permitting the sale of liquor at retail.

2.34. “Retail licensee” means the holder of a retail license.

2.35. “Retail outlet” means a specific location or store where West Virginia product may be lawfully sold by a retail licensee in the original package for consumption off the premises.

2.36. “Secretary” means the Secretary of the West Virginia Department of Revenue.

2.37. “State” means the State of West Virginia.

2.38. “Tobacco-related products” means tobacco; snuff; chew tobacco; pipe tobacco, cigarettes, specialty cigarettes; cigars; pipes; hookahs; rolling papers; matches; lighters; lighter fluid; tobacco water; tobacco topical paste; cigar cutters or punches; humidors and products to maintain a humidor; nicotine gum; smoking prevention products; smoke cleaning products or smoke smell erasing products; other tobacco-related products or accessories; or such other tobacco-related items as determined by the Commissioner, on a case by case basis, after receipt of a written request from an active retail licensee which must be sent to the Commissioner’s office via certified mail.

2.39. “TTB” means U.S. Department of the Treasury Alcohol and Tobacco Tax and Trade Bureau.

2.40. “West Virginia product” means all bourbon, brandy, cognac, cordials, gin, grain alcohol, rye, rum, scotch, tequila, vermouth, vodka, whisky, apertifs, pre-mixed cocktails, fortified wines, spirit blends, marsala, sake, sherry and all other liquor types and classes as approved by the Commissioner and maintained on the ABCC retail liquor product list.

2.41. “Wine” means any beverage obtained by the fermentation of the natural content of fruits, or other agricultural products, containing sugar and to which no alcohol has been added, and includes, but is not limited to, still wines, champagne and other sparkling wines, carbonated wines, imitation wines, vermouth, cider, perry, sake or other product offered for sale or sold as wine containing not less than seven percent (7%) nor more than twenty-four percent (24%) alcohol by volume.

W. Va. Code R. § 175-5-3 Criteria, Limitation and Necessity for Retail Operations

3.1. State stores. -- In general, the Commissioner may not operate state retail outlets. However, when circumstances prescribed by law exist, the Commissioner may open and operate a state retail outlet in a market zone provided the Board gives its prior consent.

3.2. Application of Commissioner. -- When the Commissioner desires to operate a state retail outlet in a market zone, the Commissioner shall apply to the Board for consent to operate a state retail outlet in that market zone. Application shall be made by filing a petition with the chairman of the Board and forthwith mailing or otherwise delivering copies of the petition to the other members of the Board. This petition shall:

3.2.a. Identify the market zone in which the state store will be located, the Commissioner’s reason(s) for opening a state store in that market zone including the facts upon which the Commissioner relies, the estimated cost of opening the state store, and the estimated period of time needed to open the store;

3.2.b. Include a map of the market zone and the immediately adjacent market zones that provide state roads, the location of the proposed state retail outlet and the locations of retail outlets in the adjacent market zones; and

3.2.c. Any other information the Commissioner desires to submit.

Upon receipt of the petition, the Chairman of the Board, who is also the Secretary, shall set a date, acquire a meeting place, and conduct a meeting on such date at the prescribed place for purposes of considering the application.

3.3. Evidence that licensee is unable or unwilling to open a retail outlet in a market zone.

3.3.a. Failure of a licensee to open a retail outlet in a market zone and operate it in a commercially reasonable manner within ninety (90) days after June 30, 2000, and after June 30th for every ten year license period thereafter or the date the retail license is issued to the licensee, whichever occurs last, shall be prima facie evidence that the licensee is unable or unwilling to open a retail outlet in that market zone. In any proceeding before the Board on this issue, the burden of proof shall be on the licensee to show by clear and convincing evidence that the licensee is not unwilling and not unable to open a retail outlet in the market zone.

3.3.b. For purpose of this section, the term “commercially reasonable manner” means that the retail outlet has regularly scheduled business hours on all days of the week [or at least four (4) days of the week] during which liquor in sealed containers may be sold to consumers under state law and that those hours reasonably meet expectations of consumers in the market zone desiring to purchase liquor in seal containers. In any proceeding before the Board on this issue, the burden of proof shall be on the licensee to show by clear and convincing evidence that the licensee is operating the retail outlet in a commercially reasonable manner.

3.3.c. Evidence that a licensee is unable to open a retail outlet includes, but is not limited to:

3.3.c.1. Probative evidence that the licensee is unable to obtain financing necessary to open a retail outlet or is unable or unwilling to pay the installment payments required by the deferred payment financing option;

3.3.c.2. Probative evidence that the licensee is unable to obtain liability and fire insurance for the retail outlet; or

3.3.c.3. Probative evidence that the licensee is unable to obtain all necessary permits, stamps and licenses to open a retail outlet.

3.3.d. Evidence that a licensee is unwilling to open a retail outlet includes, but is not limited to:

3.3.d.1. Probative evidence that the licensee failed to make reasonable efforts to obtain, by purchase or lease, a location for the retail outlet or, having a location, the licensee failed to construct a building, or prepare an existing building, to house a retail outlet to operate either a Class A retail license or a Class B retail license.

3.3.d.2. Probative evidence that the licensee failed to make reasonable efforts to:

3.3.d.2.A. Apply for or obtain financing for the retail outlet;

3.3.d.2.B. Interview or hire employees for the retail outlet;

3.3.d.2.C. Apply for or obtain fire and liability insurance for the retail outlet;

3.3.d.2.D. Apply for all necessary certificates, licenses, permits or stamps to do business at a retail outlet including, but not limited to, the basic permit and retail and wholesale stamps issued by the TTB and a business registration certificate issued by the Tax Commissioner.

3.4. Pending Litigation. -- Whether the operation of any retail outlet in the market zone is prevented by a matter in controversy pending judicial adjudication that will continue for such duration that the opening of a state retail outlet is necessary to meet reasonable consumer expectations regarding the availability of liquor in sealed containers is a fact-specific and case-specific issue to be decided by the Board which does not lend itself to governance by a uniform code.

3.5. Reasonable consumer expectations. -- Evidence that liquor in sealed containers is not reasonably available to consumers residing in a market zone in sufficient quantities to service consumer demand includes, but is not limited to:

3.5.a. A resolution filed with the Commissioner adopted upon majority vote of the county commission in whose jurisdiction the market zone is located, in whole or in part, finding that liquor in sealed containers is not reasonably available to individuals residing in that market zone and requesting the Commissioner to open a state store.

3.5.b. A resolution filed with the Commissioner adopted upon majority vote of the governing body of a municipal corporation located, in whole or in part, in a market zone, finding that liquor in sealed containers is not reasonably available to individuals residing in the market zone and requesting the Commissioner to open a state store.

3.5.c. A petition for a state store filed with the Commissioner signed by twenty-five percent (25%) or more of the individuals residing in voting precincts [or magisterial districts] located, in whole or in part, in the market zone based upon the results of the most recently completed decennial census conducted by the United States government.

3.5.d. A petition for a state store filed with the Commissioner signed by a majority of the private clubs located in the market zone.

3.6. When there is no retail outlet operating in a market zone because the current licensee is unwilling or unable to operate a retail outlet in that market zone and the Commissioner receives a resolution or petition filed under section 3.5 of this rule, the Commissioner shall forthwith mail or otherwise deliver a copy of the resolution or petition to each member of the Board. The chairman of the Board, after consultation with the Commissioner, shall then schedule a meeting of the Board to consider the resolution or petition. At this meeting, the Commissioner shall present the Board with the Commissioner’s preliminary assessment of the situation including, but not limited to:

3.6.a. Whether the absence of any operating retail outlet in a market zone is due to the current licensee or licensees’ inability or unwillingness to operate a retail outlet, or is prevented by a matter in controversy pending judicial adjudication that will continue for some duration and the facts upon which the Commissioner relies;

3.6.b. The estimated cost of setting up and operating a state store in the market zone;

3.6.c. The estimated period of time necessary to set up the state store and begin its operation;

3.6.d. The estimated period of time the state store might be in operation before a retail outlet is opened in that market zone by a licensee;

3.6.e. The Commissioner’s evaluation of the assessment or claim that liquor in sealed containers is not reasonably available to individuals residing in the market zone;

3.6.f. A map showing the boundaries of the market zone, municipalities located in whole or in part in the market zone, the location of retail outlets in market zones adjacent to the market zone for which the resolution or petition was filed, and state roads located in the market zone for which the petition was filed and in adjacent market zones;

3.6.g. Any other information the Commissioner believes to be relevant; and

3.6.h. Any information the Board or the chairman may request prior to the meeting.

3.7. At the meeting of the Board called to consider a resolution or petition filed under section 3.5, the Board may, upon majority vote:

3.7.a. Direct that one or more members of the Board, or the entire Board, hold a public hearing in the market zone to solicit public comments on whether or not liquor in sealed containers is reasonably available to individuals residing in that market zone. Notice of the public hearing shall be published in the State Register at least twenty (20) days before the day of the public hearing;

3.7.b. Act upon the petition or resolution;

3.7.c. Defer action on the petition or resolution;

3.7.d. Request additional information from the Commissioner, the person who filed the resolution or petition with the Commissioner or any interested person who appeared at the public meeting; or

3.7.e. Take any other action within the power of the Board.

3.8. In the event the Board approves and consents to the Commissioner’s application to operate a state store in a market zone, the Commissioner shall, as soon as practicable after a licensee opens a retail outlet in that market zone, discontinue operating that state store as provided in W. Va. Code §60-3A-3.

W. Va. Code R. § 175-5-4 Limitations on Licenses

4.1. In general. -- A person may hold, directly or indirectly, one or more Class A retail licenses and one or more Class B retail licenses for a market zone.

4.2. Aggregate limitation rule. -- No individual or other person may directly or indirectly hold a combination of licenses that, in the aggregate, authorizes that person to operate more than thirty percent (30%) of the total number of Class A and Class B retail outlets authorized under the provisions of W. Va. Code §60-3A-1, et seq. to be operated in this state during the ten-year (10) license period that begins July 1, 2010. The following constitutes examples of the instant rule:

Example 1. -- The Commissioner advertises for bid Class A and Class B retail licenses that, in the aggregate, will allow one hundred eighty (180) retail outlets to be operated in this state during the ten-year (10) period that begins July 1, 2010. Thirty percent (30%) of one hundred eighty (180) retail outlets is fifty-four (54) retail outlets. ABC Corporation submits bids for Class A and Class B licenses that would authorize it to operate 55 retail outlets should ABC Corporation be the winning bidder for all of those licenses. After the bids are opened, it is determined that ABC Corporation would be the winning bidder for licenses authorizing it to operate 55 retail outlets. Due to the aggregate limitation rule, ABC Corporation may only be issued licenses that allow it to operate no more than 54 retail outlets.

Example 2. -- The Commissioner advertises for bid Class A and Class B retail licenses that, in the aggregate, will allow one hundred eighty (180) retail outlets to be operated in this state during the ten-year (10) period that begins July 1, 2010. Thirty percent (30%) of one hundred eighty (180) retail outlets is fifty-four (54) retail outlets. ABC Corporation submits bids for Class A and Class B licenses that would authorize it to operate thirty (30) retail outlets should ABC Corporation be the winning bidder for all of those licenses. D&E Corporation submits bids for Class A and Class B licenses that would authorize it to operate thirty (30) retail outlets should D&E Corporation be the winning bidder for all of those licenses. After the bids are opened, it is determined that ABC Corporation would be the winning bidder for licenses authorizing it to operate 30 retail outlets and that D&E Corporation would be the winning bidder for licenses authorizing it to operate 30 retail outlets. However, because ABC Corporation and D&E Corporation are wholly owned subsidiaries of Alphabet Corporation, they are disqualified from holding a license that allows them to operate, in the aggregate, more than 54 retail outlets due to application of the thirty percent (30%) rule. No individual or other person may directly or indirectly hold a license that authorizes the operation of more than 54 retail outlets.

4.3. Indirect ownership. -- A license is indirectly held by a person when that license is held by:

4.3.a. Members of a family. For purposes of this rule, the family of an individual includes only his or her brothers and sisters (whether by whole or half blood), spouse, ancestors, and lineal descendants, whether by birth or adoption and within the degree of consanguinity of second cousins and persons related by current marriage;

4.3.b. An individual and a corporation if more than fifty percent (50%) in value of the outstanding stock of the corporation is owned, directly or indirectly, by or for the individual;

4.3.c. An individual and a partnership or limited liability company if more than fifty percent (50%) in value of the ownership interests is owned, directly or indirectly, by or for that individual;

4.3.d. A partnership and another partnership if the same persons own, directly or indirectly, more than fifty percent (50%) of the capital interest, or the profits interest, in each partnership;

4.3.e. A limited liability company and another limited liability company if the same persons own, directly or indirectly, more than fifty percent (50%) of the capital interest, or the profits interest, in each limited liability company;

4.3.f. A partnership and a limited liability company if the same persons own, directly or indirectly, more than fifty percent (50%) of the capital interest, or the profits interest, in the partnership and the limited liability company;

4.3.g. Two corporations that are members of the same “controlled group” as that term is defined in section 4.6 of this rule;

4.3.h. A grantor of a trust and a fiduciary of a trust created by that grantor;

4.3.i. A fiduciary of a trust and a fiduciary of another trust, if the same person is a grantor of both trusts;

4.3.j. A fiduciary of a trust and a beneficiary of that trust;

4.3.k. A fiduciary of a trust and a beneficiary of another trust, if the same person is a grantor of both trusts;

4.3.l. A fiduciary of a trust and a corporation if more than fifty percent (50%) in value of the outstanding stock of the corporation is owned, directly or indirectly, by or for the trust or by or for a person who is a grantor of the trust;

4.3.m. A corporation and a partnership or limited liability company if the same persons own, directly or indirectly, more than fifty percent (50%) in value of the outstanding stock of the corporation, and more than fifty percent (50%) of the capital interest, or the profits interest, in the partnership or limited liability company;

4.3.n. An S corporation and another S corporation if the same persons own, directly or indirectly, more than fifty percent (50%) in value of the outstanding stock of each corporation; or

4.3.o. An S corporation and a C corporation, if the same persons own, directly or indirectly, more than fifty percent (50%) in value of the outstanding stock of each corporation.

4.4. Constructive ownership of stock. -- For purposes of applying section 4.3 of this rule when determining the ownership of stock:

4.4.a. Stock owned, directly or indirectly, by or for a corporation, partnership, limited liability company, estate, or trust shall be considered as owned proportionately by or for its shareholders, partners, members, or beneficiaries;

4.4.b. An individual shall be considered as owning the stock owned, directly or indirectly, by or for his or her family;

4.4.c. An individual owning (otherwise than by the application of subsection 4.4.b of this section) any stock in a corporation shall be considered as owning the stock owned, directly or indirectly, by or for his or her spouse;

4.4.d. The family of an individual shall include only his or her brothers and sisters (whether by whole or half blood), spouse, ancestors, and lineal descendants, whether by birth or adoption; and

4.4.e. Stock constructively owned by a person by reason of the application of subsection 4.4.a of this section shall, for the purpose of applying subsections 4.4.a, 4.4.b or 4.4.c of this section, be treated as actually owned by that person. However, stock constructively owned by an individual by reason of the application of subsections 4.4.b or 4.4.c of this section shall not be treated as owned by him or her for the purpose of again applying either of these paragraphs in order to make another the constructive owner of the stock.

4.5. Constructive ownership in the case of partnerships and limited liability companies. For purposes of determining ownership of a capital interest, or profits interest, in a partnership or limited liability company, the principles of section 4.4 shall apply, except that:

4.5.a. Subsection 4.4.c of this rule shall not apply, and

4.5.b. Interests owned, directly or indirectly, by or for a C corporation shall be considered as owned by or for any shareholder only if the shareholder owns, directly or indirectly, five percent (5%) or more in value of the stock of that corporation.

4.6. Controlled group of corporations defined; special rules applicable to controlled groups. -- For purposes of this rule, the term "controlled group of corporations" means any group of:

4.6.a. Parent-subsidiary controlled group. -- One or more chains of corporations connected through stock ownership with a common parent corporation if:

4.6.a.1. Stock possessing at least fifty percent (50%) of the total combined voting power of all classes of stock entitled to vote or at least fifty percent (50%) of the total value of shares of all classes of stock of each of the corporations, except the common parent corporation, is owned (within the meaning of subsection 4.7.a of section 4.7) by one or more of the other corporations; and

4.6.a.2. The common parent corporation owns (within the meaning of subsection 4.7.a of section 4.7) stock possessing at least fifty percent (50%) of the total combined voting power of all classes of stock entitled to vote or at least fifty percent (50%) of the total value of shares of all classes of stock of at least one of the other corporations, excluding, in computing such voting power or value, stock owned directly by such other corporations.

4.6.b. Brother-sister controlled group. -- Two or more corporations if 5 or fewer persons who are individuals, estates, or trusts own (within the meaning of subsection 4.7.b of section 4.7) stock possessing:

4.6.b.1. At least fifty percent (50%) of the total combined voting power of all classes of stock entitled to vote or at least fifty percent (50%) of the total value of shares of all classes of the stock of each corporation, and

4.6.b.2. More than fifty percent (50%) of the total combined voting power of all classes of stock entitled to vote, or more than fifty percent (50%) of the total value of shares of all classes of stock of each corporation, taking into account the stock ownership of each such person only to the extent such stock ownership is identical with respect to each corporation.

4.6.c. Combined group. -- Three (3) or more corporations each of which is a member of a group of corporations described in subsections 4.6.a or 4.6.b of this section and one of which:

4.6.c.1. Is a common parent corporation included in a group of corporations described in subsection 4.6.a of this section, and also

4.6.c.2. Is included in a group of corporations described in subsection 4.6.b of this section.

4.7. Rules for determining stock ownership of controlled group.

4.7.a. Parent-subsidiary controlled group. -- For purposes of determining whether a corporation is a member of a parent-subsidiary controlled group of corporations (within the meaning of subsection 4.6.a of section 4.6), stock owned by a corporation means:

4.7.a.1. Stock owned directly by the corporation, and

4.7.a.2. Stock owned with the application of subsections 4.8.a, 4.8.b and 4.8.c of section 4.8.

4.7.b. Brother-sister controlled group. -- For purposes of determining whether a corporation is a member of a brother-sister controlled group of corporations (within the meaning of subsection 4.6.b of section 4.6), stock owned by a person who is an individual, estate, or trust means:

4.7.b.1. Stock owned directly by such person, and

4.7.b.2. Stock owned with the application of section 4.8 of this rule.

4.8. Constructive ownership of stock of corporation.

4.8.a. Options. -- If any person has an option to acquire stock, the stock shall be considered as owned by the person. For purposes of this paragraph, an option to acquire an option, and each one of a series of options, shall be considered as an option to acquire the stock.

4.8.b. Attribution from partnerships and limited liability companies. -- Stock owned, directly or indirectly, by or for a partnership or limited liability company shall be considered as owned by any partner or member having an interest of five percent (5%) or more in either the capital or profits of the partnership or limited liability company in proportion to his or her interest in capital or profits, whichever proportion is the greater.

4.8.c. Attribution from estates or trusts.

4.8.c.1. Stock owned, directly or indirectly, by or for an estate or trust shall be considered as owned by any beneficiary who has an actuarial interest of five percent (5%) or more in the stock, to the extent of his or her actuarial interest. For purposes of this subparagraph, the actuarial interest of each beneficiary shall be determined by assuming the maximum exercise of discretion by the fiduciary in favor of the beneficiary and the maximum use of the stock to satisfy his or her rights as a beneficiary.

4.8.c.2. Stock owned, directly or indirectly, by or for any portion of a trust of which a person is considered the owner under Internal Revenue Code of 1986, as amended; 26 U.S.C. §§671 through 679 (relating to grantors and others treated as substantial owners) shall be considered as owned by the person.

4.8.d. Attribution from corporations. -- Stock owned, directly or indirectly, by or for a corporation shall be considered as owned by any person who owns (within the meaning of section 4.7 of this rule) five percent (5) or more in value of its stock in that proportion which the value of the stock which such person so owns bears to the value of all the stock in the corporation.

4.8.e. Spouse. -- An individual shall be considered as owning stock in a corporation owned, directly or indirectly, by or for his spouse (other than a spouse who is legally separated from the individual under a decree of divorce whether interlocutory or final, or a decree of separate maintenance), except in the case of a corporation with respect to which each of the following conditions is satisfied for its taxable year:

4.8.e.1. The individual does not, at any time during such taxable year, own directly any stock in the corporation;

4.8.e.2. The individual is not a director or employee and does not participate in the management of such corporation at any time during the taxable year;

4.8.e.3. Not more than fifty percent (50%) of the corporation's gross income for the taxable year was derived from royalties, rents, dividends, interest, and annuities; and

4.8.e.4. The stock in the corporation is not, at any time during the taxable year, subject to conditions which substantially restrict or limit the spouse's right to dispose of such stock and which run in favor of the individual or his or her children who have not attained the age of twenty-one (21) years.

4.8.f. Children, grandchildren, parents, and grandparents.

4.8.f.1. Minor children. -- An individual shall be considered as owning stock owned, directly or indirectly, by or for his or her children who have not attained the age of twenty-one (21) years, and, if the individual has not attained the age of twenty-one (21) years, the stock owned, directly or indirectly, by or for his or her parents.

4.8.f.2. Adult children and grandchildren. -- An individual who owns (within the meaning of subsection 4.7.b of this rule, but without regard to this subparagraph) more than fifty percent (50%) of the total combined voting power of all classes of stock entitled to vote or more than fifty percent (50%) of the total value of shares of all classes of stock in a corporation shall be considered as owning the stock in such corporation owned, directly or indirectly, by or for his parents, grandparents, grandchildren, and children who have attained the age of twenty-one (21) years.

4.8.f.3. Adopted child. -- For purposes of this section, a legally adopted child of an individual shall be treated as a child of such individual by blood.

W. Va. Code R. § 175-5-5 General Powers and Duties of Commissioner

5.1. Based upon an evaluation and analysis of relevant economic and demographic factors in each county of the State, the Commissioner shall make recommendations to the Board as to how many market zones are necessary, and the Board shall create market zones in each county and provide for the issue of retail licenses in each market zone. For the ten year license period beginning on July 1, 2010, and for every ten year license period beginning July 1st thereafter, the Commissioner, as authorized by the Board, shall determine the minimum bid based upon a review of the inflation data, demographic data, sales data at each retail outlet and such other factors that are relevant for the State to generate revenues. Thereafter, the Commissioner shall develop recommendations for the Board to consider relating to:

5.1.a. For each market zone, setting the number of Class A retail licenses and Class B retail licenses to be issued, if any, within a market zone;

5.1.a.1. The number of Class A retail licenses is only limited by the total number of licenses issued by the Board for all market zones. Thus, all retail licenses made available by the Board could be Class A retail licenses and meet the freestanding liquor retail outlet requirements;

5.1.a.2. The number of Class B retail licenses in a market zone may not exceed 150% of the Class A retail licenses except as otherwise authorized in W. Va. Code §60-3A-7(d). During the ten year license period beginning July 1, 2010, all mixed retail liquor outlets in existence as of October 31, 2009, must choose between either a Class A retail license or a Class B retail license. The number of Class B retail licenses in a market zone may not exceed the 150% limit. In determining the 150% limit for a market zone, the Commissioner may round up to the next highest whole number if the number of Class A retail licenses is an odd number;

5.1.b. The number, if any, of designated areas recommended for the market zones;

5.1.c. The minimum bid amounts to be established for each Class A and Class B licenses and designated areas to be authorized by the Board;

5.1.d. The bidding procedures to be utilized;

5.1.e. The factors to be considered in determining a bidder’s entitlement to a 5% residential preference (See section 12 of this rule) and a 5% current licensee’s preference and right to match the highest bidder’s bid amount (See section 13 of this rule);

5.1.f. The standards, criteria and formulae utilized by the Board when establishing the minimum bid for each license and the methodology to be followed for the purchase option and in selecting successful bidders.

5.1.g. The formula to calculate the minimum bid, as determined by the Board, which is:

5.1.g.1. Z = X(B) + Ya(B) + [.50(B) + .50(C)].

5.1.g.2. The methodology of the formula is: (i) Z = Current Ten Year Minimum Bid; (ii) B = Previous Ten Year Minimum Bid; (iii) X = Inflation Factor; (iv) Ya = Sales Factor; and (v) C = Previous Ten Year Actual Successful Bid paid for a retail outlet or Previous Ten Year Minimum Bid, whichever is higher; and

5.1.g.3. The Commissioner, as authorized by the Board, may make assumptions on the time periods, indexes and practical application of the formulas and methodology to determine the inflation factor, sales factor and make the necessary calculations.

5.1.g.4. Notwithstanding the above formula to calculate minimum bids in subsection 5.1.g.2, the Commissioner, as authorized by the Board, in the event that a retail outlet’s ten year minimum bid calculated by the formula is below the retail outlet’s previous ten year actual successful bid, shall use the retail outlet’s previous ten year actual successful bid as it current ten year period minimum bid.

5.1.h. The Commissioner or his or her designee, as authorized by the Board, shall calculate the minimum bid.

5.1.i. If during the initial solicitation of bids for the current ten year license period no successful bids are received for a particular retail outlet, the Board may adjust the minimum bid in its statutory discretion and rebid any such remaining retail outlets in subsequent bidding.

5.2. The Commissioner:

5.2.a. Has license application forms available at his office or on the internet at www.abca.wv.gov for persons desiring to acquire retail licenses;

5.2.a.1. The Licensing and Enforcement Divisions of the ABCC work hand-in-hand under the direction of their respective Directors in the investigation, processing and initial evaluation of license applications. Inspectors and Agents are directed to make Initial Inspection Reports which are to be completed promptly. The decision to grant or deny licensure can be made by the Commissioner within 30 days following the receipt of a completed application or until such time as Commissioner has completed all inspections, background investigations, credit checks and any other additional investigation or requests for information.

5.2.b. Will provide information regarding bidding and licensing retail outlets to the public;

5.2.b.1. The Commissioner, as authorized by the Board, shall place advertisements state-wide referencing the procedure to be used for ten-year franchises for retail outlets. These advertisements will direct the public to the www.abca.wv.gov where the public may obtain particulars and a bid package containing information on the bid process for a retail outlet.

5.2.c. Regulates standards for advertising the sale, availability, price and selection of liquor which are set forth in this rule and 175CSR1;

5.2.d. Omitted.

5.2.e. Regulates retail outlets as to: (i) the amount and variety of alcoholic liquors which they make available for sale at each retail outlet; (ii) the size space and design; (iii) the amount of inventory and displayed inventory of liquor (For i, ii, iii, and viii See this rule); (iv) order quantities sufficient to qualify for delivery; (v) phone, computer and internet requirements; (vi) liquor order verification requirements; (vii) liquor delivery dates and routes; and (viii) such other requirements of the Commissioner (For iv, v, vi, vii and viii See 175CSR1);

5.2.e.1. Each retail outlet shall be reviewed by the Commissioner based upon community or market zone needs and best management practices.

5.2.e.2. Class A retail license or freestanding liquor retail outlet standards:

5.2.e.2.A. All such retail outlets must have a minimum of 750 square feet of retail floor space, as measured by the Commissioner, devoted to the retail sale West Virginia product, wine and nonintoxicating beer, and shall maintain a displayed inventory of at least 4 brands of each West Virginia product and sufficient quantities of displayed inventory and inventory to service consumer demand;

5.2.e.2.B. All such retail outlets shall only sell West Virginia product, wine, beer, nonintoxicating beer, and other alcohol related products, including tobacco related products, throughout the entire area of retail outlet including the retail floor space and shelving;

5.2.e.2.C. All such retail outlets must not have direct access to another business and must be separate and apart from other businesses; and

5.2.e.2.D. All such retail outlets must meet the requirements of the rules and the code in order to be licensed and maintain its license and is subject to penalties for failure to meet or maintain these requirements.

5.2.e.3. Class B retail license or mixed retail liquor outlet standards:

5.2.e.3.A. All such retail outlets must have a minimum of 150 square feet of retail floor space, as measured by the Commissioner, devoted solely to the retail sale of West Virginia product and there is no limit on the amount of total retail floor space:

5.2.e.3.A.1. Such retail outlets with 150 square feet to 449 square feet of retail floor space, as measured by the Commissioner, devoted solely to the retail sale of West Virginia product, shall maintain a displayed inventory of at least 2 brands of each West Virginia product and sufficient quantities of displayed inventory and inventory to service consumer demand;

5.2.e.3.A.2. Such retail outlets with 450 square feet up to 749 square feet of retail floor space, as measured by the Commissioner, devoted solely to the retail sale of West Virginia product shall maintain a displayed inventory of at least 3 brands of each West Virginia product and sufficient quantities of displayed inventory and inventory to service consumer demand; and

5.2.e.3.A.3. Such retail outlets with 750 square feet and above of retail floor space as measured by the Commissioner, devoted solely to the retail sale of West Virginia product shall maintain a displayed inventory of at least 4 brands of each West Virginia product and sufficient quantities of displayed inventory and inventory to service consumer demand.

5.2.e.3.B. All such retail outlets must restrict the view of the retail floor space devoted solely to the sale of West Virginia product by constructing barriers, shelving or other apparatus of sufficient height and width, as approved by the Commissioner, that would prevent persons from viewing the liquor items in the restricted area so that such items are not highly visible;

5.2.e.3.C. All such retail outlets must maintain separate retail floor space devoted solely to the sale of West Virginia product, wine and nonintoxicating beer that is prominently marked with signage located in the retail floor space consisting of at least six signs sized at a minimum of 24 inches in height by 24 inches in width with prominent and highly visible uppercase and bold lettering indicating that persons are entering a RESTRICTED LIQUOR AREA, and “NO PERSON UNDER THE AGE OF 21 MAY PURCHASE LIQUOR, WINE OR BEER”, “BE PREPARED TO PRESENT PROPER IDENTIFICATION WHEN MAKING A PURCHASE” all in the form, color, lettering and with the ABCC logo as provided in a format approved by the Commissioner;

5.2.e.3.D. All such retail liquor outlets shall only sell West Virginia product, wine, beer, nonintoxicating beer, and other alcohol related products, including tobacco related products, in addition to convenience and other retail products. West Virginia product and beer shall only be displayed in the restricted area retail floor space of the mixed retail liquor outlet and such products shall not be viewable, displayed or available for sale outside the restricted area; and

5.2.e.3.E. All such retail outlets must meet the requirements of the rules and the code in order to be licensed and maintain a license and are subject to penalties for failure to meet or maintain these requirements.

5.2.f. Regulates, inspects at reasonable times, enforces, imposes civil administrative penalties, provides hearings, issues subpoenas and settles cases in accordance with the provisions of W. Va. Code §60-3A-1, et seq., W. Va. Code §29A-1-1, et seq., and this rule.

W. Va. Code R. § 175-5-6 Duties of Purchase Option Applicants and Applicants who are Successful Bidders for Class A Retail Licenses and Class B Retail Licenses To Open and Operate Its Authorized Stores; Limitation on Number of Retail Outlets a Person May Hold

6.1. An applicant who meets all requirements and who becomes a purchase option applicant or a successful bidder for a Class A ten-year (10) retail license or Class B ten-year (10) retail license to become effective on July 1, 2010, and on July 1st for every ten year license period thereafter shall be required to open and operate all authorized retail stores for each license within ninety (90) days following July 1, 2010, and on July 1st for every ten year license period thereafter, or within ninety (90) days following the date upon which he or she or it is issued a Class A retail license, whichever comes last. The holder of such a license shall operate each of the authorized retail stores for a minimum period of one year.

6.1.a. Any person who acquires such a license subsequent to July 1, 2010, and subsequent to July 1st for every ten year license period thereafter, as a result of a purchase option, purchase made during a competitive, rebid process, or as a result of a license transfer or purchase approved by the Commissioner, shall be required to comply with the opening of all authorized stores on a date specified by the Commissioner and shall open and operate such stores for a minimum period of one year.

6.2. No person may hold a combination of licenses that, in the aggregate, authorizes the operation of more than thirty percent (30%) of the total number of retail outlets authorized to operate in the State.

W. Va. Code R. § 175-5-7 Retail License Application Requirements; Federal Licensing Requirements

7.1. Following the purchase option licensing process and the license bidding procedure for selection of the successful bidders, the successful applicants shall file an “Application For Retail License” form with the Commissioner. In addition to answering the questions asked on the application, the applicant shall attach a copy of its corporate charter or other agreements under which the entity operates to its application, and shall add the name of the market zone and the county.

7.2. A person who purchases alcoholic liquors for resale to retail customers is required to register for and obtain a retail dealer in liquors tax stamp from the TTB. This stamp must be obtained before engaging in any business which will involve the retail sales of alcoholic liquors. As of July 1, 2009, the cost of this tax stamp is two hundred and fifty dollars ($250.00) per year.

7.2.a. Current licensees who are purchase option applicants or who are successful bidders will have an opportunity to have this stamp renewed and the TTB will notify those licensees as to when they must renew.

7.2.b. Purchase option applicants or successful bidders who are not current licensees shall be required to submit Form TTB 5630.5, Special Tax Registration And Return, to TTB, P.O. Box 371962, Pittsburgh, PA 15250-7962 and enclose a check or money order for two hundred fifty dollars ($250.00) to pay the Retail Special Occupation Tax which will result in the issue of a Retail Dealer In Liquors Tax Stamp. This stamp must be purchased and displayed in each retail store before a retail licensee can engage in the retail sale of liquor.

7.3. The Commissioner shall not issue a retail license to an applicant who does not hold a license issued by the TTB pursuant to federal law to sell liquor at wholesale.

7.3.a. Current licensees who are purchase option applicants or successful bidders and who hold a Federal Wholesaler’s Permit and Wholesale Dealer In Liquors Tax Stamp will have an opportunity to have this stamp renewed and the TTB will notify those licensees as to when they must renew.

7.3.b. Successful bidders who are not current licensees shall be required to obtain a Wholesaler’s Basic Permit by submitting Form TTB 5100.24 Application For Basic Permit Under The Federal Alcohol Administration Act and mailing it to TTB, 550 Main Street, Cincinnati, OH 45202-3263. If this permit is issued, the successful bidder shall submit an TTB Form 5630.5, Special Tax Registration and Return, to qualify for a Wholesale Dealer In Liquors Tax Stamp and mailing it along with a check or money order for five hundred dollars ($500.00) made payable to TTB, P.O. Box 371962, Pittsburgh, PA 15250-7962. Questions about this matter can be answered by telephoning TTB, 1-800-937-8865 at its Cincinnati, OH office.

7.3.c. A “NOTICE TO ALL BIDDERS FOR RETAIL LICENSES -- FEDERAL LIQUOR DEALER PERMITS AND TAX STAMPS REQUIRED” will be provided by the Commissioner.

W. Va. Code R. § 175-5-8 Investigation of Applicants for Retail License

8.1. Following receipt of a completed application for a retail license containing additional or supplemental information as the Commissioner may require, the Commissioner may conduct such investigation of an applicant as deemed necessary or desirable in determining whether the applicant is qualified to receive a retail license. The Commissioner may request any additional information necessary to complete a review of an applicant’s application.

8.1.a. The Commissioner will conduct background investigations for the purpose of determining whether an applicant has been charged with, indicted for, or convicted of a crime that may have bearing upon the applicant’s fitness to hold a retail liquor license. For purposes of this paragraph, “background investigation” means a security, criminal and credit investigation of an applicant who has applied for the issuance or renewal of a retail liquor license. The applicant will submit West Virginia Alcohol Beverage Control Administration Release of Information and Waiver of Confidentiality of Records Form for this purpose. The applicant will submit a full set of fingerprints to facilitate a criminal background check and the Commissioner will request the state police to submit the fingerprints and identifying information to the Federal Bureau of Investigation for a national criminal history record check. The results of the fingerprint check will be returned to the West Virginia Lottery Commission and the Alcohol Beverage Control Commission.

8.1.b. The applicant will reimburse the ABCC for all fees or charges that are incurred by the ABCC for a background investigation undertaken pursuant to subdivision 8.1.a. of this rule.

8.1.c. The applicant must verify that it is a United States citizen of good moral character and, if a naturalized citizen, when and where naturalized; and, if a corporation organized and authorized to do business under the laws of West Virginia, 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, that each member is a citizen of the United States and, if a naturalized citizen, when and where naturalized, each of whom must sign the application.

8.1.d. The Commissioner, after initial examination and evaluation of the application may determine that an Initial Inspection Report is warranted and, accordingly, have one made by a staff investigator using the “Initial Inspection Report”.

8.2. Upon completion of any investigation of an applicant, the Commissioner shall inform such applicant in writing whether the application has been approved or denied.

W. Va. Code R. § 175-5-9 Purchase Option and the Purchase Option Licensing Process for Active Retail Licensees operating a Class A retail license

9.1. At least 60 days prior to the bidding process for July 1, 2010, and prior to July 1st for every ten year license period thereafter:

9.1.a. All active retail licensees will receive information from the Commissioner explaining the choice between the purchase option licensing process and the license bidding procedure; and

9.1.b. All active retail licensees will receive information from the Commissioner explaining Class A retail licenses, Class B retail licenses, freestanding liquor retail outlets, mixed retail liquor outlets, the purchase option, the deferred payment financing option, eligibility, forms and other requirements.

9.2. All active retail licensees must respond on the form provided by the Commissioner, in writing, and indicate their choice and intent to operate: (i) a Class A retail license, select the purchase option and select the deferred payment financing option; or (ii) a Class B retail license.

9.2.a. All active retail licensees electing a Class A Retail license must be licensed and operate a freestanding liquor retail outlet either on July 1, 2010, or July 1st for every ten year license period thereafter, or within 90 days of July 1, 2010, or July 1st for every ten year license period thereafter.

9.2.b. All active retail licensees electing a Class B retail license must be licensed and operate a mixed retail liquor outlet either on July 1, 2010, or July 1st for every ten year license period thereafter, or within 90 days of July 1, 2010, or July 1st for every ten year license period thereafter.

9.3. An active retail licensee is limited to applying the purchase option to active retail licenses held and operated by the active retail licensee and to the lesser of: (i) four (4) Class A retail licenses held and operated by the active retail licensee; or (ii) the number of active retail licenses currently held and operated by the active retail licensee.

9.4. Within 30 days prior to the bidding process an active retail licensee electing the purchase option shall either:

9.4.a. Agree to pay and pay in full to the Commissioner an amount equal to ten percent (10%) over and above the minimum bid amount, as determined by the Board, for each active retail license upon which the active retail licensee has elected the purchase option, or

9.4.b. Agree to pay to the Commissioner an amount equal to ten percent (10%) over and above the minimum bid amount, as determined by the Board, for each active retail license upon which the active retail licensee has elected the purchase option, by paying to the Commissioner an amount equal to the down payment required by the deferred payment financing option (See section 10) for each active retail license upon which the active retail licensee has elected the purchase option.

9.5. An active retail licensee electing the purchase option and the deferred payment financing option must make all payments and installment payments timely, subject to the requirements and penalties in section 10 of this rule.

9.6. An active retail licensee electing the purchase option will receive notice that the purchase option was accepted for each active retail license upon which the active retail licensee elected the purchase option.

9.7. An active retail licensee electing the purchase option must complete an application form provided by the Commissioner, meet all other licensure requirements in this rule; be in good standing with all branches of government and meet all requirements to operate a Class A retail license.

9.8. Upon meeting the requirements and paying the annual retail license fee, an active retail licensee electing the purchase option will receive a license, subject to making any installment payments, completing renewal forms, continually meeting Class A retail license requirements and paying the annual retail license fee during the ten year license period beginning July 1, 2010, or July 1 for every ten year license period thereafter, and expiring on June 30, 2020, or on June 30 for every ten year license period thereafter.

9.9. Failure of an active retail licensee, who elected the purchase option and indicated its intent to operate freestanding liquor retail outlets, to open and operate any of its retail outlets on July 1, 2010, or July 1 every ten year license period thereafter, or within 90 days of July 1, 2010, or July 1 for every ten year license period thereafter, shall be weighed as evidence that the licensee also falsified documentation to the Commissioner regarding the operation and licensure of a Class A retail license(s) and result in the immediate suspension of the license(s) and is grounds for revocation of all retail outlet licenses held by the licensee, and also shall result in the forfeiture of all moneys paid to the Commissioner, including any bond or other down payments, installment payments, payments in full or annual retail license fees as agreed to by the active retail licensee in the deferred payment financing agreement (See also section 31).

9.10. The purchase option is not available to any active retail licensee, applicant or subsequent licensee who is a successful bidder or purchaser of a retail license and who subsequently chooses to open and operate a Class A retail license or freestanding liquor retail outlet or who converts a Class B retail license to a Class A retail license.

9.11. This rule and the code do not create any expectation or rights in any retail licensee that the purchase option will or will not be available for any subsequent ten year license period.

W. Va. Code R. § 175-5-10 Deferred payment financing option

10.1. Any active retail licensee who elects the purchase option for a Class A retail license or licenses and complies with the requirements of W. Va. Code §60-3A-10d shall be permitted to apply for the deferred payment financing option for each such license.

10.2. The Commissioner shall require a signed letter of intent and a deferred payment financing agreement, in the form provided by the Commissioner, from any such active retail licensee electing the purchase option and the deferred payment financing option.

10.3. As part of the application for the deferred financing payment option, to be provided by the Commissioner at least 60 days prior to the license bidding procedure, the Commissioner shall require, at a minimum, the following information:

10.3.a. Certification that the applicant elects to pay the purchase option for a Class A retail license or licenses as provided in W. Va. Code §60-3A-10b;

10.3.b. Certification that the applicant is the current holder and operator of the active retail license issued by the Board and for which the purchase option and the deferred payment financing option is elected;

10.3.c. A description of the retail license or licenses currently held by the applicant;

10.3.d. Any information the Commissioner requires to evaluate the creditworthiness of the applicant, including without limitation the applicant’s authorization to perform a criminal background check and credit check; and

10.3.e. Any additional information the Commissioner requires to effectuate the purposes of W. Va. Code §60-3A-10d.

10.4. Any applicant must submit with its deferred payment financing option application, a down payment of fifty percent (50%) of the total amount due under the deferred payment financing agreement and subject to W. Va. Code §60-3A-10d(d) no later than May 1, 2010, or May 1st for every ten year license period thereafter. Installment payments are subject to interest. All payments shall be payable via electronic funds transfer, certified check or money order.

10.4.a. The total amount due is an amount equal to the ten percent (10%) over and above the minimum bid amount, as determined by the Board.

10.4.b. The down payment is fifty (50%) percent of the total amount due.

10.4.c. The remaining balance of the total amount due is the total amount due minus the down payment.

10.4.d. The interest rate is a rate computed by using the adjusted prime lending rate minus one hundred basis points. The interest rate shall be set on the date the financing is approved by the Commissioner.

10.5. Upon review of each applicant’s completed deferred payment financing option application, the Commissioner shall make a determination of the applicant’s eligibility within fifteen (15) days from receipt of a complete application.

10.5.a. If the Commissioner determines an applicant is ineligible for deferred payment financing, is not in good standing with the state or does not otherwise meet the requirements of W. Va. Code §60-3A for the issuance of a Class A retail license, the Commissioner shall notify the applicant that his or her application for deferred payment financing is denied and shall refund in full any moneys paid to the Commissioner as a down payment.

10.5.b. If the applicant’s deferred payment financing application is denied for any reason other than the fact that the applicant is not in good standing with the state or is not otherwise eligible for the issuance of a Class A retail license, the Commissioner shall allow the applicant to pay the full amount of a purchase option for its Class A retail license or licenses as provided in W. Va. Code §60-3A-10d. At the request of the applicant, the Commissioner may credit any moneys received as a down payment towards payment of the full amount of a purchase option for its Class A retail license or licenses.

10.6. All eligible applicants shall enter a deferred payment financing agreement with the Commissioner, which shall contain such terms and conditions as required by the Commissioner but at a minimum shall contain the following:

10.6.a. The total amount due;

10.6.b. The interest amount to be charged on the total amount due; and

10.6.c. The remaining balance of the total amount due, and the installment payments (including interest) which are payable over a period of the first sixty (60) months from July 1, 2010, or for every July 1st for every ten year license period thereafter.

10.6.c.1. The installment payments are payable in monthly or quarterly installment payments as elected by the retail licensee on its deferred payment financing application.

10.6.c.2. If a retail licensee elects to pay monthly, his or her first installment payment is due on August 1, 2010, or on August 1st for every ten year license period thereafter, and successive installment payments are due on the first day of each month thereafter until the remaining balance of the total amount due, plus interest, is retired.

10.6.c.3. If a retail licensee elects to pay quarterly, his or her first installment payment is due on October 1, 2010, or on October 1st for every ten year license period thereafter, and successive installment payments are due on the first day of every third month thereafter until the remaining balance of the total amount due, plus interest, is retired.

10.6.c.4. A retail licensee may elect at some point during the deferred payment financing process to pay the remaining balance of the total amount due, plus interest. There is no prepayment penalty for such a payment in full.

10.7. The failure of a retail licensee to make an installment payment in accordance with the terms of the deferred payment financing agreement shall result in the entire remaining balance of the total amount due, plus interest, becoming immediately due and payable to the Commissioner;

10.7.a. Upon the retail licensee’s payment of remaining balance of the total amount due, plus interest, the Commissioner may review the facts and circumstances surrounding the failure to make an installment payment and determine if the retail licensee should continue to be licensed and operate its Class A retail license or licenses. The Commissioner may choose a number of penalties, including probation, suspension, monetary penalties, any combination of such penalties or revocation;

10.7.b. The revocation of a retail license for non-payment of an installment payment or failure to pay in full of the remaining balance of the total amount due, plus interest, shall result in the forfeiture of the down payment and any moneys paid to the Commissioner in accordance with W. Va. Code §60-3A-10d.

10.8. The failure of a retail licensee to make an installment payment in accordance with the terms of the deferred payment financing agreement, as agreed to by the retail license, within thirty (30) days of the day on which the payment was due shall result in the immediate revocation of the Class A retail license held by the licensee for which the non-payment occurred.

10.9. The Commissioner shall reissue any license revoked pursuant to Section 10.8 and proceed to advertise and offer for sale by sealed competitive bid in accordance with this rule and the code.

10.10. A retail licensee whose retail license is revoked for failure to make payments as provided in the deferred payment financing agreement and pursuant to Section 10.8 is deemed an unsuitable retail licensee who would not qualify to hold a Class A retail license or Class B retail license or any such license provided by the Commissioner and shall be permanently prohibited from bidding on a retail license in any subsequent bids in any ten year license period.

10.11. The purchase option and the deferred payment financing option are not available to any active retail licensee, applicant or subsequent licensee who is a successful bidder or purchaser of a retail license and who subsequently chooses to open and operate a Class A retail license or freestanding liquor retail outlet or who converts a Class B retail license to a Class A retail license.

10.12. This rule and the code do not create any expectation or rights in any retail licensee that the deferred payment financing option will or will not be available for any subsequent ten year license period.

W. Va. Code R. § 175-5-11 License Bidding Procedure

11.1. The issuance of retail licenses shall be based on sealed competitive bids which have been submitted on Bid Forms which have been completed in accordance with written instructions from the Commissioner.

11.1.a. A “BID FORM” and a 2-page “INSTRUCTIONS TO COMPLETE BID FORM” will be provided by the Commissioner.

11.1.b. Bidders submitting bids on forty-five (45) or more of the authorized retail stores shall submit in the bid package a prioritized list of the stores in numerical order for which they have bid. In the event that such bidders are not successful bidders on any of their listed, prioritized stores, such stores shall be removed from the list in descending order, and may be replaced in ascending order with any retail stores listed above number forty-five (45) on their list and for which they are successful bidders.

11.2. Each person desiring to submit a bid shall file the bid with the Commissioner or his or her designee at a date, time and location specified by the Commissioner in the bid information packet. The Commissioner or his or her designee will safeguard the bids and will conduct the opening of the bids on a date and time specified by the Commissioner. The Commissioner or his or her designee will also determine if the bids have been submitted in compliance with the bidding requirements established by the provisions of W. Va. Code §§60-3A-1, et seq., 60-3A-10, 60-3A-10a and 60-3A-10b.

11.2.a. The failure to deliver or the nonreceipt of a bid prior to the appointed date and hour constitutes sufficient reason for the rejection of a bid. After the bid opening process is completed, the Commissioner or his or her designee, shall, by Affidavit, certify the name of each bidder, the correct amount bid after adjusting for each applicable preference, and whether the bid was submitted timely and in correct form. The Commissioner’s designee shall have a secure and bonded delivery firm or its own employees securely deliver all of the bids and the Affidavits to the Commissioner's office.

11.2.b. After the award of the retail license, the Commissioner shall indicate upon the successful bid that it was the successful bid. Thereafter, a copy of the bid and the bidder's application shall be maintained as a public record in the Commissioner's office. It shall be open to public inspection during normal business hours of the Commissioner. These documents shall not be destroyed without the written consent of the Legislative Auditor.

11.3. The Commissioner shall notify the successful bidders of their winning bids and of the deadline for bid payment which shall be by certified mail, return receipt requested, by express delivery with delivery confirmation or by personal service in accordance with Rule 4, West Virginia Rules of Civil Procedure for Trial Courts of Record, the provisions of which are incorporated into this rule by reference.

11.3.a. If the successful bidder fails to pay to the Commissioner the bid price within the deadline date specified by the Commissioner, the bid bond provided for in W. Va. Code §60-3A-11 and 175CSR5-12 shall be forfeited and the bidder shall not be issued the retail license and be prohibited from bidding on or purchasing a retail license for any ten year license period.

11.3.b. A bid bond shall not be forfeited but shall be released if a purchase option applicant or the successful bidder fails to qualify for the Federal Wholesaler’s Basic Permit or the wholesale dealer in liquors tax stamp and the retail dealer in liquors tax stamp, unless the bidder provided false information to the federal government or to the Commissioner and such false information was the basis for denial of the basic permit in which case the bid bond shall be forfeited.

11.3.c. In either event, the Commissioner shall issue the retail license to the next highest bidder for the retail license or reject all bids and rebid the license in accordance with the bid procedures contained in the provisions of W. Va. Code §§60-3A-1, et seq., 60-3A-10, 60-3A-10a, 60-3A-10b and this rule.

11.4. The successful bidder shall remit the bid price and the annual retail license fee, as specified in W. Va. Code §60-3A-10(e), to the Commissioner by electronic funds transfer, money order, certified check, or cashier's check. Payment must be received in the Commissioner’s office no later than the date and time specified by the Commissioner in the bid information packet. In the event that the Board determines that a necessity exists to require additional bids, then bids will be taken pursuant to the provisions of W. Va. Code §60-3A-1, et seq., and this rule.

11.5. In the event two (2) more bids for the same retail license are for the same amount, the following procedure will be followed to determine the successful bidder.

11.5.a. The bidders shall be notified to meet at the Commissioner's office at a specified date and time.

11.5.b. At the time of the meeting the names of the affected bidders shall be written on individual slips of paper, and placed in a hat or similar container.

11.5.c. The Commissioner shall then draw from the hat one of the pieces of paper and the bidder named thereon shall be declared the successful bidder.

W. Va. Code R. § 175-5-12 License Bidding Procedure and the Preference for Resident Bidders

12.1. In determining the highest bidder for purposes of W. Va. Code §60-3A-10a, and 175CSR5-10, the Board shall afford a five percent (5%) preference for West Virginia resident bidders. This preference shall be computed by adding five percent (5) of the bid price to the bid price submitted by the West Virginia resident bidder for a retail license. This preference shall be forfeited by any resident bidder who fails to submit the minimum bid amount specified by the Board for a particular retail license.

12.1.a. This preference shall not be added to the amount of any bid that is less than the minimum amount specified by the Board for that retail license.

12.2. For purposes of W. Va. Code §60-3A-10a and this section of the rule, a bidder shall be considered a West Virginia resident if the bidder:

12.2.a. Being an individual, has resided in West Virginia for at least four (4) years during the 48 consecutive month period immediately prior to the date on which the bid is opened; or:

Example 1. The minimum bid for a Class B retail license is $300,000. Two (2) bids are received. A West Virginia resident bidder submits a bid of $305,000 and a nonresident submits a bid of $310,000 for that license. The bid is awarded to the West Virginia resident bidder. [$305,000 + $15,250.00 (which is five percent (5%) of $305,000) equals $320,250.00 which is greater than the bid of $310,000 submitted by the nonresident bidder.]

Example 2. The minimum bid for a new Class B retail license is $200,000. Two bids are received. A West Virginia resident bidder submits a bid of $200,000 and a nonresident submits a bid of $215,000 for that license. The bid is awarded to the nonresident bidder. [$200,000 + $10,000 (which is five percent (5%) of $200,000.00) equals $210,000, which is less than the bid of $215,000 submitted by the nonresident bidder.]

Example 3. The minimum bid for a new Class B retail license is $200,000. Two bids are received. A West Virginia resident bidder submits a bid of $190,000 and a nonresident submits a bid of $205,000 for that license. The bid is awarded to the nonresident bidder because the resident bidder failed to bid the minimum bid amount. The five percent (5%) resident bidder preference does not apply in this example.

12.2.b. Being a person other than an individual, has had its headquarters or principal place of business in this State for at least four (4) years during the forty-eight (48) consecutive month period immediately prior to the date on which the bid is opened.

12.3. “Headquarters” or “principal place of business” means the place where the majority of the governing power of a bidder resides and is executed.

Example 1. ABC Corporation is a Delaware corporation whose corporate headquarters has been located continuously in West Virginia since July 1, 1990. ABC Corporation is a West Virginia resident for purposes of the preference allowed by W. Va. Code §60-3A-10a and this section of the rule.

Example 2. D & E Corporation is incorporated under the laws of West Virginia. Its corporate headquarters is located in Alpha State. D & E Corporation is not a West Virginia resident for purposes of the preference allowed by W. Va. Code §60-3A-10a and this rule.

Example 3. A corporation, whether incorporated in West Virginia or in another state, that operates retail outlets in this State but does not have its headquarters in this State is not a West Virginia resident.

Example 4. A partnership, limited liability company or other legal entity that is not a corporation, whether formed under the laws of this or another state, that operates one or more retail outlets in this State but does not maintain its headquarters or principal place of business in this State is not a West Virginia resident for purposes of the resident vendor preferences allowed under W. Va. Code §§60-3A-10a and 60-3A-10b and this rule.

12.4. In order to qualify as a resident bidder, a person other than an individual, means a bidder who in each year of the four (4) year period during the forty-eight (48) consecutive months immediately prior to the date on which the bid is opened, did as follows:

12.4.a. Had registered in accordance with W. Va. Code §11-12-1, et seq., [“Business Registration Tax”] to transact business within the State of West Virginia;

12.4.b. Maintained its headquarters or principal place of business in this State:

12.4.b.1. Whether or not the person other than an individual maintained its headquarters or principal place of business in this State for the required period can be certified by the chief operating officer, by whatever name called, of the person certifying, under penalty of perjury, that the period of time the person’s headquarters or principal place of business was continuously located in this State met the time requirement, as of the date the affidavit is signed and properly acknowledged, and stating that address will remain the same as of the date on which the bids are to be opened. In addition to the submission of an affidavit, the person shall also be required to provide documentary proof that person has complied with all other requirements specified in section 12.4. of this rule.

12.4.c. Had actually paid, and not just applied to pay, county personal property taxes on the equipment used in the regular course of its business activity; and

12.4.d. Had actually paid, and not just applied to pay, required business taxes imposed by W. Va. Code §11-1-1, et seq.; a resident bidder shall give written consent to the Tax Commissioner authorizing disclosure to the ABCC Commissioner of appropriate information which will verify that the bidder has paid the required business taxes, but such information shall not contain the amounts of taxes paid nor any other information deemed by the Tax Commissioner to be confidential. An “Authorization to Release Information” will be provided by the Commissioner.

12.5. A bidder who is an individual shall be able to meet the four year continuous residency requirement by providing the Commissioner with documentary proof that he/she has resided continuously in West Virginia for four (4) years during the forty-eight (48) month period immediately preceding the filing of the bid. Copies of receipts from the Sheriff of a County indicating payment of personal property taxes and/or real estate taxes for each of the four (4) years which indicate a West Virginia address for the bidder; copies of Department of Motor Vehicle documents such as a Driver’s License, Registration Card, and Certificate of Title indicating a West Virginia address for the bidder during those four years; copies of Voter Registration office documents indicating a West Virginia residence address for the bidder during those four years; certification from the Tax Commissioner that the bidder had filed Income Tax Returns for the previous four year period prior to the bid which indicated a West Virginia residence address for the bidder are examples of documents which can be submitted to the Commissioner in proof of a bidder’s residence address during the four (4) years in question. Copies of any two documents mentioned above shall be submitted with the bid form and to the Commissioner’s office by any individual bidder who desires to be granted a Preference For Resident Bidders.

12.5.a. An individual may prove that he or she continuously resided in this State during the required period ending with the day the individual’s bid is opened by submitting with his or her bid form an affidavit signed and acknowledged, under penalty of perjury, certifying the period of time the individual continuously resided in this State, as of the date the affidavit is signed and acknowledged, and stating that he or she intends to be a resident of this State on the day his or her bid is opened. In addition to this affidavit, the individual will also be required to submit supporting documents in proof of his or her residency during the required period.

12.6. A bidder who is other than an individual and is claiming a preference for residential bidders, shall submit documents in its bid package which prove its entitlement to this preferential treatment. The documents must establish that the requirements of section 12.4 of this rule have been satisfied.

12.7. A bidder who believes he meets the requirements for residency must affirmatively assert his or her claim on the official application form to receive this preferential treatment.

12.8. A supplemental two-page (2) guideline for bidders seeking a residential preference entitled “Residential Bid Preferences” will be provided by the Commissioner.

W. Va. Code R. § 175-5-13 License Bidding Procedure and the Current Licensee’s Preference and the Current Licensee’s right to match highest bidder

13.1. In determining the highest bidder for purposes of W. Va. Code §60-3A-10b, and 175CSR5-10, the Board shall apply a current licensee preference and a current licensee’s right to match the highest bidder’s bid price. Any current licensee who fails to submit the minimum bid amount specified by the Board for its active retail license or who is not operating a retail outlet for which he or she is authorized under his or her current license is not eligible for the current license preference or the right to match the highest bidder’s bid price.

13.2. No current licensee preference or right to match shall reduce a bid below the minimum bid established by the Board.

13.3. Current licensee preference.

13.3.a. An unsuccessful bidder who is a current licensee and meets the Code and the rule’s requirements shall have a 5% current licensee preference for a retail license it holds and operates.

13.3.b. The 5% current licensee preference for a current licensee who is an unsuccessful bidder shall be computed by subtracting 5% of the highest bid price from that bid price. For any bidder who qualifies for the West Virginia resident bidder preference and who is also a current licensee, this preference shall be an additional 5% preference.

13.4. Current licensee’s right to match the highest bidder’s bid price.

13.4.a. An unsuccessful bidder who is a current and active retail licensee, submitted a bid higher than the minimum bid and who after applying all preferences remains an unsuccessful bidder, shall have the right to match the highest bid for its active retail license subject to complying with the requirements of this rule and W. Va. Code §§60-3A-1, et seq. and 60-3A-10b(e).

13.5. The Commissioner will provide a guideline entitled “Current Licensee Preferences” for bidders seeking a current licensee preference and a current licensee right to match.

W. Va. Code R. § 175-5-14 Criminal Penalties For Unlawful Inducement

14.1. It is unlawful for any person to give another person any thing of value to induce the other to refrain from bidding for a retail license. Any person doing so is guilty of a misdemeanor, and upon conviction, shall be fined not more than ten thousand dollars ($10,000), and in addition, shall be subject to a civil penalty payable to the Commissioner of not more than one million dollars ($1,000,000).

14.2. It is unlawful for any person to give another person any thing of value to induce the other to refrain from operating an outlet authorized under a retail license. Any person doing so is guilty of a misdemeanor and, upon conviction, shall be fined not more than ten thousand dollars ($10,000), and, in addition, shall be subject to a civil penalty payable to the Commissioner of not more than one million dollars ($1,000,000).

W. Va. Code R. § 175-5-15 Bonding Requirements

15.1. Each purchase option applicant or applicant submitting a bid or bids for a retail license under the provisions of this rule, shall furnish to the Commissioner a bond at the time of the purchase option or bidding. The bond shall guarantee the payment of twenty-five percent (25%) of the total price of the purchase option or the bid for each retail license. In the event that a winning bid is not paid, the bond will be forfeited to the State.

15.2. A four-page (4) “Approved Format for an Irrevocable Letter of Credit” will be provided by the Commissioner.

W. Va. Code R. § 175-5-16 Annual Retail License Fee

16.1. The annual retail license fee for a Class A retail license or a Class B retail license is two thousand dollars ($2,000) per each retail license operated by a retail licensee and is due on or before June 30, 2010, or on or before June 30th for every year thereafter during a ten year license period.

W. Va. Code R. § 175-5-17 Sale, Assignment or Transfer of Retail License

17.1. No person may purchase or otherwise acquire a retail license unless the Commissioner has first approved the person’s qualifications to hold a retail license. Those qualifications are the same as those required by W. Va. Code §60-3A-1, et seq. and this rule.

17.2. No person may sell, assign or otherwise transfer a retail license without the prior written approval of the Commissioner. The Commissioner’s approval shall not be unreasonably withheld. For purposes of W. Va. Code §60-3A-14 and this 175-5-14, the merger of a retail licensee or the sale of more than fifty percent (50%) of the outstanding stock of a licensee which is a corporation, or of the partnership or ownership interests of a partnership or other entity that is not a corporation, shall be deemed to be a sale, assignment or transfer of a retail license.

W. Va. Code R. § 175-5-18 Surrender of Retail License

18.1. When a retail licensee surrenders a retail license to the Commissioner or when it is revoked or forfeited, the Commissioner shall then proceed to reissue the retail license by following the bidding and other procedures set forth in W. Va. Code §60-3A-1, et seq., and this rule for the initial issuance of a retail license.

18.2. The effective date of a rebid license under this section shall be only for the portion of the ten-year (10) license remaining after the bid is awarded.

W. Va. Code R. § 175-5-19 Restriction on Location of Retail Outlets

19.1. No retail outlet may be located within the immediate vicinity of a school or church.

19.2. The provisions of W. Va. Code §60-3A-16 and this subsection do not apply to the location of a retail licensee who, on February 27, 1990, held a license for the retail sale of wine, fortified wine or nonintoxicating beer at such a location.

W. Va. Code R. § 175-5-20 Wholesale Prices Set By Commissioner

20.1. The Commissioner has fixed wholesale prices for the sale of liquor, other than wine, to retail licensees. The Commissioner shall sell liquor, other than wine, to retail licensees according to a uniform pricing schedule.

20.1.a. The Commissioner has established wholesale prices for the sale of liquor to retail licensees which is based upon the delivered cost of distilled spirits which ABCC purchases plus a mark-up of 28%, or a percentage the Commissioner may otherwise determine. A shipping, delivery and handling charge per case delivered as periodically set by the Commissioner will be added to the total purchase price. The Commissioner charges additional fees pursuant to 175CSR6 to ensure the efficient operation of the ABCC warehouse.

20.1.b. A uniform pricing schedule is maintained by the publication of an ABCC Quarterly Spirits Price List which is sent to all retail licensees on a quarterly basis on February 1, May 1, August 1 and November 1 of each year or shall be made available by the Commissioner on the ABCC website at www.abca.wv.gov. This catalog contains all alcoholic products normally available from the ABCC in addition to complete product information and pricing structure. Further pricing is disseminated in the annual ABCC Tradeshow Catalog with pricing, as submitted by manufacturers and suppliers, for West Virginia product available for purchase at the ABCC Tradeshow by retail licensees.

W. Va. Code R. § 175-5-21 Days and Hours Retail Licensees May Sell Liquor

Retail licensees may not sell liquor on Sundays, Christmas or between 12:00 midnight and eight o’clock a.m. on weekdays and Saturdays. Wine and fortified wines may not be sold between the hours of two o’clock a.m. and one o’clock p.m. on Sundays, or between the hours of two o’clock a.m. and seven o’clock a.m. on weekdays and Saturdays.

W. Va. Code R. § 175-5-22 Limitation on Amount to be Sold

Not more than ten gallons of alcoholic liquor may be sold by a retail licensee to a person at one time without the approval of the Commissioner. However, a sale in excess of ten gallons may be made to a religious organization purchasing wine for sacramental purposes. This section does not apply to purchases by private clubs as defined in W. Va. Code §60-7-2.

W. Va. Code R. § 175-5-23 Nonapplication of Rules to Retail Sales of Nonintoxicating Beer

23.1. This rule does not apply to retail sales of nonintoxicating beer. 176CSR1 contains the rule for nonintoxicating beer licensing and operations procedures.

W. Va. Code R. § 175-5-24 Tax on Purchases of Alcoholic Liquor

24.1. In addition to the cost of alcoholic liquor, a State tax authorized by W. Va. Code §60-3A-21 of five percent (5%) of the purchase price must be added to all purchases from retail licensees, and the tax must be collected with the purchase price by the retail licensee.

W. Va. Code R. § 175-5-25 Requirement for Posting Information Signs

25.1. Each retail licensee shall post in an open and prominent place within each retail outlet a blood-alcohol chart in the form prescribed by W. Va. Code §60-6-24, the provisions of which are incorporated in this rule by reference. The chart will be provided by the Commissioner.

25.2. All persons licensed to sell alcoholic liquor, wine, beer, nonintoxicating beer, nonintoxicating craft beer or other alcohol product at retail either for consumption off-premises or on-premises, or both, shall display signs provided by the Commissioner warning of the possible danger of birth defects which may result from the consumption of alcohol during pregnancy.

25.3. All Class B retail licensees or mixed retail liquor outlets shall post and display, in and around their restricted area or separate retail floor space devoted solely to the sale of West Virginia product and beer, at least six prominently marked signs as provided in subsection 5.2.e.3.C.

25.4. Upon a determination by the Commissioner that a licensee has failed to comply with these provisions, the Commissioner may impose a civil administrative penalty for not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) for each violation, suspend the retail licensee, or a combination of monetary penalty and suspension.

W. Va. Code R. § 175-5-26 Records Required of Retail Licensees; Inspection of Records

26.1. Each retail licensee must keep a record in book form showing the date that all West Virginia product, distilled spirits, wine and beer were received on his or her, or its premises, and from whom received.

26.2. Each retail licensee shall also maintain records including ABCC Form 190 showing the merchandise code, the total quantity of sales, and the quantity of each sale to a religious organization or to a private club as defined in W. Va. Code §60-7-2. A copy of ABCC Form 190 will be provided by the Commissioner.

26.2.a. In the case of sales to a private club, ABCC Form 190 shall be maintained by the retail licensee and the club must be identified by name, address and ABCC license number, and the full name of the person receiving the order must be clearly listed.

26.2.b. Each retail licensee must send a copy of ABCC Form 190 to the ABCC Warehouse each week, together with the Weekly Invoice which is a computer printout of the products ordered and delivered each week to a retail licensee. The driver of the delivery truck will take the ABCC Form 190 and the ABCC Weekly Invoice to the ABCC Warehouse each week. A copy of the ABCC Weekly Invoice will be provided by the Commissioner.

26.2.c. Failure by a retail licensee to comply with the provisions of subsection 26.2.b will subject him, or her, or it, to assessment of a Civil Penalty under the provisions of W. Va. Code §60-3A-26.

26.3. Records required to be maintained by this Section 26 shall not be destroyed, erased or altered for at least four (4) complete calendar years or until the year the retail licensee is audited and accepted by the Secretary.

W. Va. Code R. § 175-5-27 Unlawful Acts by Persons

27.1. It shall be unlawful for any person under the age of twenty-one (21) years who, for the purpose of purchasing alcoholic liquor from a retail licensee, misrepresents his or her age, or who for such purpose presents or offers any written evidence of age which is false, fraudulent or not actually his or her own, or who illegally attempts to purchase alcoholic liquor from a retail licensee. Any person who violates the provisions of W. Va. Code §60-3A-24(b) is guilty of a misdemeanor, and, upon conviction thereof, shall be fined in an amount not to exceed fifty dollars ($50.00) or imprisoned in the regional jail for a period not to exceed seventy-two (72) hours, or both fined and imprisoned, or, in lieu of such fine and imprisonment, may, for the first offense, be placed on probation for a period not exceeding one (1) year.

27.2. It shall be unlawful for any person to knowingly buy for, give to or furnish to anyone under the age of twenty-one (21) to whom he or she is not related by blood or marriage any alcoholic liquor from whatever source. Any person who violates the provision of W. Va. Code §60-3A-24(c) is guilty of a misdemeanor and shall, upon conviction thereof, be fined in an amount not to exceed one hundred dollars ($100.00) or imprisoned in the regional jail for a period not to exceed ten (10) days, or both fined and imprisoned.

27.3. It shall be unlawful for a person while on the premises of a retail outlet to consume alcoholic liquor or break the seal on any package or bottle of liquor. Any person who violates the provisions of W. Va. Code §60-3A-24(d) and this subsection is guilty of a misdemeanor and shall, upon conviction thereof, be fined in an amount not to exceed one hundred dollars ($100.00) or imprisoned in the regional jail for a period not to exceed ten (10) days, or both fined and imprisoned.

27.4. It shall be unlawful for any person under the age of twenty-one years to purchase, consume, sell, serve or possess alcoholic liquor. Any person who violates the provisions of W. Va. Code §60-3A-24(a) is guilty of a misdemeanor and upon conviction thereof, shall be fined in an amount not to exceed five hundred dollars or shall be incarcerated in the regional jail for a period not to exceed seventy-two hours, or both fined and imprisoned, or, in lieu of such fine and incarceration, may, for the first offense, be placed on probation for a period not to exceed one year.

27.5. Nothing in W. Va. Code §60-3A-24(a), nor any rule of the Commissioner, shall prevent or be deemed to prohibit any person who is at least eighteen years of age from serving in the lawful employment of a licensee which includes the sale and serving of alcoholic liquor.

27.6. Nothing in this subsection shall prohibit a person who is at least eighteen years of age from purchasing or possessing alcoholic liquor when he or she is acting upon the request of or under the direction and control of any member of a State, federal or local law-enforcement agency or the Commissioner while the agency is conducting an investigation or other activity relating to the enforcement of the alcohol beverage control statutes and the rules of the Commissioner.

W. Va. Code R. § 175-5-28 Certain Acts of Retail Licensees Prohibited; Criminal Penalties

28.1. It is unlawful for any retail licensee, or agent or employee thereof, on such retail licensee's premises to:

28.1.a. Sell or offer for sale any alcoholic liquor other than from the original package or container;

28.1.b. Sell, give away, or permit the sale of, gift of, or the procurement of, any alcoholic liquor, for or to any person under the age of twenty-one (21);

28.1.c. Sell, give away, or permit the sale of, gift of, or the procurement of, any alcoholic liquor, for or to any person who is visibly intoxicated;

28.1.d. Sell or offer for sale any alcoholic liquor on any Sunday or other than during the hours permitted for the sale of alcoholic liquor by retail licensees as provided under W. Va. Code §60-3A-1, et seq., and this rule;

28.1.e. Permit the consumption by any person of any alcoholic liquor;

28.1.f. With the intent to defraud, alter, change or misrepresent the quality, quantity or brand name of any alcoholic liquor;

28.1.g. Permit any person under eighteen (18) years of age to sell, furnish or give alcoholic liquor to any other person;

28.1.h. Purchase or otherwise obtain alcoholic liquor in any manner or from any source other than the Commissioner; or

28.1.i. Permit any person to break the seal on any package or bottle of alcoholic liquor.

28.2. Any person who violates any provision of this section is guilty of a misdemeanor, and shall, upon conviction thereof, for each offense be fined not less than one hundred dollars ($100) or no more than five thousand dollars ($5,000), or imprisoned in the regional jail for not less than thirty (30) days nor more than one (1) year or both fined and imprisoned.

28.3. Nothing in W. Va. Code §60-3A-1, et seq., or this rule, or any other rule of the Board or Commissioner, prevents or prohibits any retail licensee from employing any person who is at least eighteen (18) years of age to serve in any retail licensee's lawful employment at any retail outlet operated by such retail licensee, or from having such person sell liquor under the provisions of W. Va. Code §60-3A-1, et seq., and this rule.

28.3.a. With the prior written approval of the Commissioner, a retail licensee may employ persons at any retail outlet operated by such retail licensee who are less than eighteen (18) years of age but at least sixteen (16) years of age, but such persons' duties shall not include the sale of liquor: Provided, that the authorization to employ such persons under the age of eighteen (18) years shall be clearly indicated on the retail license issued to any such retail licensee.

28.3.b. Permission to employ persons who are sixteen (16) or seventeen (17) years of age must be sought on the application for license or on any annual license renewal form only and such approval will not be unreasonably withheld.

28.3.c. The age restrictions in his section apply to minor children of the licensee.

W. Va. Code R. § 175-5-29 Civil Penalties

29.1. Any retail licensee who violates any provision of W. Va. Code §60-3A-1, et seq., any rule promulgated by the Board or any rule promulgated by the Commissioner may be assessed a civil money penalty by the Commissioner. The amount of this money penalty may not exceed one thousand dollars ($1,000) for each violation of the Act, the Board rule or a rule of the Commissioner.

29.2. Each day the violation continues shall constitute a separate violation.

W. Va. Code R. § 175-5-30 Suspension or Revocation of Retail License

30.1. The Commissioner may, upon his or her motion, or upon the sworn complaint of any person, conduct an investigation to determine if any provision of W. Va. Code §60-3A-1, et seq., this rule or of any other rule promulgated by the Board or Commissioner under authority of W. Va. Code §60-3A-6 has been violated by any retail licensee. The Commissioner may immediately suspend a retail licensee for failing to meet and maintain licensure requirements, purchase option requirements or deferred payment financing requirements, or if the Commissioner determines that public safety will be adversely affected by the licensee’s continued operation. The Commissioner may suspend or revoke a retail license if the retail licensee, or any employee thereof acting in the scope of his or her employment, has violated any such provision, and may suspend a retail license without hearing for a period not to exceed twenty (20) days if he or she finds probable cause to believe that the retail licensee, or any employee thereof acting in the scope of his or her employment, has willfully violated any such provision.

30.2. The Commissioner may revoke a retail license for any reason which would constitute grounds for the denial of an application for retail license filed pursuant to W. Va. Code §60-3A-8.

W. Va. Code R. § 175-5-31 Revocation of License For Failure to Operate Retail Outlet & Forfeiture of Retail Outlet for Failure to Operate Retail Outlet

31.1. Revocation. -- The Commissioner may revoke a Class A retail license if the licensee fails to operate a freestanding liquor retail outlet authorized under the license and may revoke a Class B retail license if the licensee fails to operate a mixed retail liquor outlet authorized under the license.

31.1.a. The Commissioner may revoke a retail licensee who fails to meet the requirements of section 9.

31.1.b. The Commissioner may revoke a retail licensee who fails to meet the requirements of section 10.

31.1.c. The Commissioner may revoke a retail licensee who fails to meet the requirements of this rule and the code.

31.2. Disqualification of current licensee whose license is revoked. -- When a license is revoked under W. Va. Code §60-3A-27a(a), the Commissioner may not accept the bid of the person who has had a license revoked, or of a related person, when the license is offered for bid following the revocation. As used in this subsection, a bidder is a “related person” when the relationship between the bidder and the person whose license was revoked is such that the latter indirectly owns or controls the bidder under the provisions set forth in section 4 of this rule.

31.3. Procedural due process. -- A revocation of a Class A retail license or Class B retail license under W. Va. Code §60-3A-27a is subject to the provisions for notice, hearing and judicial review prescribed in W. Va. Code §60-3A-28.

31.4. Forfeiture of authorization to operate retail outlet. -- When a person operates a retail outlet authorized under a Class A retail license but fails to operate another retail outlet authorized as a separate license, the Commissioner may, after employing criteria prescribed by the Board, reduce the number of retail outlets the person is authorized to operate by the number not being operated. As used here, “failure to operate a retail outlet” includes, but is not limited to:

31.4.a. Total failure to open and operate a retail outlet within ninety (90) days after July 1, 2000, and July 1st for every ten year license period thereafter or the day the person is awarded the license, whichever day occurs last;

31.4.b. Failure to reopen the retail outlet within 90 days after it is closed, unless the closure was due to fire, flood or other act of God, war, riot, or other catastrophe as to which negligence or willful misconduct on the part of the licensee or a person under the control of the licensee was not the proximate cause, unless the reopening is prevented by a matter in controversy pending judicial adjudication on or before the 60th day;

31.4.c. Failure to reopen the retail outlet within 180 days after it was closed due to fire, flood or other act of God, war, riot, or other catastrophe as to which negligence or willful misconduct on the part of the licensee or a person under the control of the licensee was not the proximate cause, unless the reopening is prevented by a matter in controversy pending judicial adjudication on or before the 180th day; or

31.4.d. Failure to operate a retail outlet in a commercially reasonable manner as defined in section 3 of this rule.

Example 1. -- The holder of a Class A license authorizing the operation of two retail stores opens the second retail outlet but operates it only six hours per week.

31.5. Issuance of Class B license. -- The Board may authorize the Commissioner to issue, subject to the bid requirements of W. Va. Code §60-3A-1, et seq., a Class B license for each retail outlet for which authority to operate is forfeited under this section of this rule. The Board shall set a minimum bid for each Class B license.

31.6. Procedural due process. -- A reduction in the number of retail outlets that may be operated by the holder of a Class A retail license under W. Va. Code §60-3A-27a is subject to the provisions for notice, hearing and judicial review prescribed in W. Va. Code §60-3A-28.

W. Va. Code R. § 175-5-32 Notice of and Hearing on Boundary Disputes

32.1. Any retail licensee who disputes the placement of any part of the boundary which forms a part of the boundary of the market zone, or designated area within the market zone, within which the retail licensee's retail outlet is located may petition the Commissioner for a resolution of the dispute.

32.1.a. The petition shall be in writing, and shall state the boundary in dispute, the grounds of the petition and all persons who may be affected by the Commissioner's decision.

32.1.b. A copy of the petition shall be concurrently served upon all persons who may be affected by the Commissioner's decision and the petitioner shall verify under oath that such service has occurred.

32.1.c. Within ten (10) days after receipt of the petition, the Commissioner shall schedule a hearing on the matter. At least twenty (20) days' notice of the hearing shall be provided to affected persons. Notice is to be sent by certified mail, return receipt requested to the addresses provided by the petitioner.

32.2. The hearing and the administrative procedures prior to, during and following the same, shall be governed by and in accordance with the provisions of W. Va. Code §29A-5-1, et seq., in like manner as if those provisions were fully set forth in this section.

32.3. Any person adversely affected by an order entered following a hearing shall have the right of judicial review thereof in accordance with the provisions of W. Va. Code §29A-5-4 with like effect as if those provisions of said §29A-5-4 were fully set forth in this section.

32.4. The judgment of a circuit court reviewing such order of the Commissioner shall be final unless reversed, vacated or modified on appeal to the Supreme Court of Appeals in accordance with the provisions of W. Va. Code §29A-6-1.

32.5. Each party shall be responsible for his or her own legal representation.

175CSR5

175CSR5

Series 06 Bailment Policies and Procedures

W. Va. Code R. § 175-6-1 General

1.1. Scope. -- These modified proposed legislative regulations explain and clarify the bailment procedures and policies to be utilized by the ABCC in the operation of the ABCC warehouse and the provision of alcoholic liquor to licensed retail stores.

1.2. Authority. -- W. Va. Code §§60-2-16 and 29A-3-1 et seq.

1.3. Filing Date. – July 1, 2022, Technical Amendment filed June 27, 2022.

1.4. Effective Date. -- September 28, 2022, and Table 1, effective date – June 27, 2022.

1.5. Sunset Date. -- This rule shall terminate and have no further force or effect upon August 1, 2042.

W. Va. Code R. § 175-6-2 Definitions

As used in these regulations and unless the context clearly requires as different meaning, the following terms shall have the meaning ascribed herein, and shall apply in the singular and in the plural.

2.1. "Alcohol" means ethyl alcohol, whatever its origin, and shall include synthetic ethyl alcohol but not denatured alcohol.

2.2. "Alcoholic liquor" or "liquor" means alcohol, beer, fortified wine and distilled spirits, and any liquid or solid capable of being used as a beverage, but shall not include wine having an alcohol content of fourteen percent (14%) or less, nonintoxicating beer or nonintoxicating beverages.

2.3. "Alcohol Beverage Control Commissioner" or "ABCC" or "Commissioner" means the West Virginia Alcohol Beverage Control Commissioner (Administrator) or his delegate.

2.4. "Bailment" means the warehousing method whereby alcoholic liquors owned by the supplier are stored in the ABCC warehouse for subsequent shipment to retail liquor stores.

2.5. "Case lot" means a complete case of distilled spirits.

2.6. "Code" means the designation for a specific brand and container size of alcoholic liquor.

2.7. "Department" shall mean the West Virginia Department of Tax and Revenue.

2.8. "Distilled spirits" means ethyl alcohol, ethanol or spirits, including all dilutions and mixtures thereof, from whatever source or by whatever process produced, for beverage use, and shall include, but not be limited to, neutral spirits, whiskey, brandy, rum, gin, vodka, cordials and liqueurs. In addition to the foregoing, any alcoholic beverage containing more than twenty-four percent (24%) of alcohol by volume shall be deemed to be distilled spirits.

2.9. "Distillery" or "distiller" means an establishment where alcoholic liquor other than wine and beer is manufactured or in any way prepared.

2.10. "Electronic funds transfer" or "EFT" means the transfer electronically of funds from one bank account to another bank account without the necessity of a personal or business check to initiate the transaction.

2.11. "Fortified wine" means any wine to which brandy or other alcohol has been added and includes dessert wines which are not fortified and any wine containing greater than fourteen percent (14%) alcohol by volume.

2.12. "Importer" means a person who brings in or carrys-in goods from a foreign county for the purpose of sale of such goods in this county.

2.13. "Layer" or "layer quantity" means one layer of product cases on a pallet-type portable platform of wood or other material.

2.14. "Licensed retailer" means the person licensed in accordance with W. Va. Code §60-3A to operate a retail liquor store.

2.15. "Manufacture" means to distill, rectify, make, mix, concoct, process, blend, bottle or fill an original package with any alcoholic liquor.

2.16. "Manufacturer" means any person engaged in the manufacture of any alcoholic liquor, and among others includes a producer, processor, bottler, importer, broker, wholesaler, distributor, supplier, distiller, rectifier, winemaker or brewer.

2.17. "Mixed case" or "split case" means a single full case of alcoholic liquors which is comprised of different brand names, different spirits, different proofs, etc.

2.18. "Pallet" or "pallet quantity" means the cases of product which for purposes of shipment and storage are situated on portable platforms of wood or other material, such platforms being forty-eight inches (48") deep by forty inches (40") wide and capable of being moved by materials handling equipment such as a fork-lift; the layers of product cases on the platforms must be eight in number.

2.19. "Neutral spirits" means ethyl alcohol of 190 proof or higher used especially for blending other alcoholic liquors.

2.20. "Original package" means any closed or sealed container or receptacle used for holding alcoholic liquor.

2.21. "Person" means any individual, partnership, joint stock company, business trust, association, corporation or other form of business enterprise, including a receiver, trustee or liquidating agent.

2.22. "Product" means alcoholic liquors whether located in the ABCC warehouse or in retail liquor stores.

2.23. "Public place" means any place, building or conveyance to which the public has, or is permitted to have access, including restaurants, soda fountains, hotel dining rooms, lobbies, and corridors of hotels and any highway, street, lane, park or place of public resort or amusement: Provided, That the term "public place" shall not mean or include any of the above-named places or any portion or portions thereof which qualify and are licensed under the provisions of W. Va. Code Chapter 60 to sell alcoholic liquors for consumption on the premises.

2.24. "Retail liquor store" means a store established and operated under the authority of W. Va. Code §§60-3 or 60-3A for the sale of alcoholic liquor in the original package for consumption off the premises.

2.25. "Sale" means any transfer, exchange or barter in any manner or by any means, for a consideration, and shall include all sales made by principal, proprietor, agent or employee.

2.26. "Selling" shall include solicitation or receipt of orders, possession for sale, or possession with intent to sell.

2.27. "Supplier" means a person who sells or offers to sell, or solicits or negotiates the sale, of alcoholic liquors in West Virginia and the term may include manufacturers, distributors, distillers and importers.

2.28. "Wine" means any alcoholic beverage obtained by the fermentation of the natural content of fruits, or other agricultural products, containing sugar, and includes, but is not limited to, still wines, champagne and other sparkling wines, carbonated wines, imitation wines, vermouth, cider, perry, sake or other product offered for sale or sold as wine.

2.29. "Winery" means an establishment where wine is manufactured or in any way prepared.

W. Va. Code R. § 175-6-3 Conversion to Bailment

3.1. During the time the ABCC converts to a bailment warehousing method, the inventory will consist of product owned by the ABCC and product owned by suppliers.

3.1.1. When conversion commences on July 3, 1990, and at all times subsequent thereto, ABCC inventory will be used first; when the ABCC inventory is insufficient, inventory provided by suppliers will be used.

3.1.2. The ABCC inventory records will at all times maintain a separate identity from all suppliers' inventory.

3.1.3. As the ABCC inventory is depleted, supplier inventory will be increased to the pre-approved level.

3.2. Each supplier is required to furnish the ABCC with the name, address, and phone number of the principal individual who will represent such supplier in all dealings with the ABCC that pertain to bailment.

3.3. Each supplier is required to provide the ABCC with certified copies of such supplier's applicable Bureau of Alcohol, Tobacco and Firearms permit and the Internal Revenue Service Special Tax Permit (form 11).

3.4. Each supplier is required to complete annually the "Bailment Authorization Form" provided by ABCC. This form grants ABCC the authority to effect the removal of the supplier's product from bailment on a shipment-by-shipment or continuing basis.

3.5. Each supplier is required to execute the "HOLD HARMLESS AGREEMENT" provided by ABCC. This agreement states that the supplier will hold ABCC harmless for any losses incurred to the supplier's inventory due to fire, water, or other damage by the elements while the supplier's inventory is stored at the ABCC warehouse. ABCC will not cover costs or carry insurance for such losses.

3.6. All merchandise received from a given supplier will be converted to bailment at the time of receipt at the ABCC warehouse.

3.7. Price changes may occur no more often than four (4) times per twelve (12) month period. New price quotation forms must be submitted at least sixty (60) days in advance of the price increase effective date in order that the Wholesale Spirits Catalog may be amended. Effective dates of the spirits catalog are February 1, May 1, August 1, and November 1. Failure to provide the required advance notice of price changes may result in delisting certain of the suppliers products. Additionally, the price change may not be instituted until the spirits catalog is next published.

3.8. ABCC will provide suppliers with a one (1) year sales history report. This report will list sales, by month, of each of the supplier's products that have been sold by ABCC.

3.9. ABCC will provide suppliers with an initial maximum inventory level for each code. Requests for changes in inventory levels must be made to authorized ABCC personnel who must agree to such changed levels before merchandise which will exceed the maximum inventory level is ordered for placement into bailment storage in the warehouse.

3.10. ABCC will provide suppliers with a current inventory status report. This report will indicate current ABCC inventory and licensed retailer on-order quantities for each item. This report will assist suppliers in determining bailment inventory orders.

W. Va. Code R. § 175-6-4 Delivering Merchandise

4.1. Suppliers will be responsible for determining the quantities of merchandise to be delivered to the ABCC warehouse for bailment storage. ABCC requires that suppliers deliver product in multiples of pallet quantities only. Effective January 1, 1991, product will not be unloaded if it is not shipped and unloaded on pallets.

4.2. Suppliers are required to notify ABCC warehouse personnel at least forty-eight (48) hours in advance of shipment of quantities, by code, of product being delivered to the ABCC Warehouse. The supplier will be provided with an unloading reference number at the time ABCC is notified of shipment.

4.3. The shipment will not be accepted if the quantities to be delivered will place the warehouse inventory of the product being delivered over the maximum level. The supplier will be notified of such nonacceptance within 24 hours of original notification.

4.4. The supplier will be responsible for obtaining the freight carrier. The supplier must provide the carrier with the ABCC unloading reference number.

4.5. The carrier is required to call the ABCC Warehouse to obtain an unloading appointment time. The carrier must indicate the supplier and the ABCC unloading reference number when scheduling the appointment. Carriers should call at least one (1) working day in advance to arrange the unloading time. Trucks arriving without appointments and reference numbers will not be unloaded.

4.5.1. In general, deliveries will not be unloaded from 4:00 p.m. to 7:00 a.m. Monday through Friday, nor at all on Saturdays, Sundays or legal State holidays including primary and general election days.

W. Va. Code R. § 175-6-5 Unloading and Storage

5.1. ABCC Warehouse personnel will unload all products. Carrier drivers are required to witness the unloading.

5.2. ABCC Warehouse personnel will complete a warehouse unloading report form. This report will indicate by code the number of cases unloaded. Shortages and damage will be noted. The driver and ABCC warehouse representative will sign the unloading report form and the Bill of Lading or Delivery Receipt.

5.3. ABCC will provide the supplier with a copy of the warehouse unloading report form and the Bill of Lading or Delivery Receipt. The supplier and the carrier must resolve any shipping discrepancies from the report.

5.4. ABCC will use the warehouse unloading report form to enter information into the computer inventory files. ABCC will be responsible for the accuracy and maintenance of the computer inventory files.

5.5. Only full cases of salable product will be placed into storage for the supplier. Salable is defined as product that can be sold at full retail price. Cases that are short bottles, damaged, or have broken bottles will be unloaded into a vendor holding area. The supplier will be notified and disposition instructions requested. The supplier may send a representative to the warehouse to physically process the reported damage or request that ABCC personnel provide the extra service. ABCC will charge the supplier for extra case handling services.

5.6. Partial Cases of Salable Product:

5.6.1. The supplier may request that partial cases of salable product be transferred to vendor storage for eventual purchase by retail liquor stores.

5.6.2. As an alternative, the supplier must furnish disposition instructions within thirty (30) days subsequent to when such instructions were requested by the ABCC. If the supplier fails to furnish instructions, ABCC may sell the product and retain the proceeds to cover handling costs. ABCC personnel will adjust the computer bailment inventory records. This procedure does NOT constitute a purchase of bailment inventory by ABCC.

5.7. Salvageable Product:

5.7.1. Salvageable product will be retained in the supplier holding area for a period of thirty (30) days. Salvageable product is defined as product that is slightly damaged and cannot be sold at full retail price. If suppliers fail to furnish disposition instructions within the thirty (30) days, ABCC may sell such products and retain the proceeds to cover handling costs. ABCC personnel will adjust the computer bailment inventory records. This procedure does NOT constitute a purchase of bailment inventory by ABCC.

5.8. Unsalable Merchandise:

5.8.1. Unsalable product will be retained in the supplier holding area for a period of thirty (30) days. Unsalable product is defined as product that is not fit for human consumption. If the supplier fails to furnish ABCC with disposition instructions within the thirty (30) day time frame, ABCC may destroy the product and invoice the supplier for handling charges to cover the costs incurred. ABCC personnel will adjust the computer bailment inventory records. This procedure does NOT constitute a purchase of bailment inventory by ABCC.

5.9. General Comments: Merchandise in the ABCC warehouse is the property of the supplier. ABCC will assume responsibility for any non-concealed breakage or shortages that are incurred while bailment inventory is stored in the warehouse; however, ABCC will not cover any losses arising from fire, water, or other damage by the elements.

W. Va. Code R. § 175-6-6 Use of Bailment Inventory

6.1. ABCC maintains a computerized inventory system that keeps a perpetual listing of the inventory in the various warehouse locations. This computerized system is designed to use the ABCC inventory to fill retail liquor store orders before product is requested from the supplier's bailment stock.

6.2. When the ABCC inventory no longer contains a requested code, the computer will issue daily an automatic withdrawal order for each code that is needed from the supplier's inventory. This withdrawal order is printed by code, supplier and in full case quantities. The withdrawal order is generated one (1) working day in advance of shipment of the product to the retail liquor store. ABCC will take possession of the product when it is picked from bailment stock in preparation for shipment.

6.3. At the end of the daily activity on the 15th and last day of each month, the computer will generate for the time period covered a bailment purchase order/receiving report. This report is a compilation of the items transferred to ABCC possession through the use of the automatic withdrawal requests and the manual warehouse transfer transactions. It also provides a recap of all credit memos and other chargebacks that have been processed during this time. Detailed reconciliation of product transfer during each day of the report period will be a part of this report. See Section 15 of these regulations for additional information.

6.4. For most suppliers, the report described in Section 6.3 will be transmitted by an electronic mail transfer to the supplier's business location. This electronic transfer of information will support an electronic fund transfer by the West Virginia State Treasurer to the supplier's preauthorized bank account. Except for certain fiscal constraints in June of each year, fund transfer will occur within three to five working days of the close of the semi-monthly report period.

W. Va. Code R. § 175-6-7 Defective Merchandise and Concealed Damage or Shortage

7.1. Defective alcoholic liquors.

7.1.1. ABCC owned alcoholic liquors.

7.1.1.1. Alcoholic liquors owned by ABCC will be returned to the supplier if found to be defective or unsalable.

a. Defective alcoholic liquors located in retail liquor stores will processed in accordance with the procedure provided in 175 C.S.R. 1, §4.9.

b. Defective alcoholic liquors located in the ABCC warehouse will be disposed of in accordance with instructions provided by the supplier. Such disposition instructions must be provided by the supplier within thirty (30) days after the supplier is notified of the defective alcoholic liquors. ABCC may destroy the defective alcoholic liquors and invoice the supplier for handling charges if the supplier fails to provide disposition instructions.

7.1.2. Bailment alcoholic liquors.

7.1.2.1. Defective alcoholic liquors available through the bailment method of warehousing must be removed from the ABCC warehouse.

7.1.2.2. Defective alcoholic liquors located in retail liquor store and which were obtained from supplier bailment stock must be processed in accordance with the procedures provided in 175 C.S.R. 1, §4.9.

a. ABCC personnel are authorized to direct the return of defective alcoholic liquors from retail liquor stores to the ABCC warehouse and to invoice suppliers for the handling cost.

b. Because retail liquor stores will be credited by the ABCC for defective alcoholic liquors which are returned, suppliers are required to grant a credit of equal amount to the ABCC. Under no circumstances will the ABCC be deemed to purchase any defective alcoholic liquors provided out of bailment stock.

7.2. Concealed damage or shortage.

7.2.1. ABCC owned alcoholic liquors.

7.2.1.1. ABCC will be provided appropriate credit by suppliers for alcoholic liquors which are damaged or shorted and located in the ABCC warehouse.

7.2.1.2. Alcoholic liquors which are damaged or shorted and located in retail liquor stores will be processed in accordance with the procedures provided in 175 C.S.R. 1, §4.9. Appropriate credit will be provided to the respective retail liquor stores and disposition instructions will be requested from suppliers. The ABCC may destroy damaged alcoholic liquors and invoice the supplier for handling charges if disposition instructions are not provided within thirty (30) days after the supplier is notified of damaged alcoholic liquors.

7.2.2. Bailment alcoholic liquors.

7.2.2.1. Damaged or shorted alcoholic liquors which are located in the ABCC warehouse and available through the bailment method of warehousing must be removed from the warehouse.

7.2.2.2. Alcoholic liquors which are damaged or shorted and located in retail liquor stores will be processed in accordance with the procedures provided in 175 C.S.R. 1, §4.9.

a. ABCC personnel are authorized to direct the return of damaged alcoholic liquors to the warehouse and invoice the supplier for all handling charges, regardless of whether the supplier provides disposition instructions within thirty (30) days of being notified of the damaged alcoholic liquors.

b. Appropriate credit will be provided by the supplier to the retail liquor store.

7.3. The ABCC will under no circumstances be deemed to purchase any defective alcoholic liquors from that which is provided for distribution by bailment.

W. Va. Code R. § 175-6-8 Withdrawal of Bailment Inventory by the Supplier

8.1. The supplier may withdraw alcoholic liquors from bailment storage for the following reasons:

8.1.1. The supplier may return product to his warehouse for redistribution to other areas. The supplier cannot redistribute the product to other states or wholesale or retail customers directly from the ABCC Warehouse.

8.1.2. The supplier may return product to his warehouse if the maximum inventory level at the ABCC Warehouse has been exceeded.

8.1.3. The supplier may return product to his warehouse if the product is defective or unsalable.

8.1.4. The supplier must return product to his warehouse if the product has been delisted by ABCC and will no longer be available in the State of West Virginia except through ABCC by special order.

8.2. The ABCC must approve of the removal of any product before it can be removed from the warehouse. Such approval must be provided at least 24 hours in advance of the desired removal. Such removal must only occur during the warehouse delivery hours specified by Section 4.5.1.

8.3. The supplier must provide a motor carrier to be used when removing product from the warehouse. The carrier must make arrangements with the ABCC for a loading time.

8.4. ABCC will load the product onto the truck. The carrier driver will observe the loading. Both the ABCC and the driver must sign the Bill of Lading and a copy of the document will be provided to the supplier. ABCC will adjust the computer bailment inventory records.

8.5. ABCC will charge the supplier a case handling fee to cover the costs resulting from this activity. The charge will be specified by Section 11.1.

W. Va. Code R. § 175-6-9 Maximum Inventory Levels

9.1. The preapproved level will be a sixty-day (60) supply based on a one-year (1) average consumption for each code.

9.2. ABCC will set a maximum level of inventory of each item in storage.

9.3. The maximum inventory levels will be reviewed quarterly and recomputed on a forecasted sales basis. The supplier will be provided with a copy of the quarterly maximum bailment inventory level report listing the codes carried and the computed levels. The maximum inventory level for each code will be used by the ABCC to approve or deny subsequent supplier shipments.

W. Va. Code R. § 175-6-10 Special Orders

10.1. ABCC often receives requests for an item that is not listed in the Wholesale Spirits Catalog.

10.1.1. ABCC will attempt to satisfy these requests through the Special Order procedure provided in 175 C.S.R. 1, §4.3.

10.1.2. Special Order products may be ordered only on a case lot basis.

10.2. Suppliers must notify the ABCC in writing in order to not participate in Special Orders. ABCC will inform retail liquor stores of the supplier's position.

10.3. Suppliers must receive permission from the ABCC to maintain a supply of a Special Order item in storage at the ABCC Warehouse. Maximum levels of inventory for the special order product must be determined.

W. Va. Code R. § 175-6-11 Handling Charges

11.1. Suppliers doing business with ABCC under the bailment inventory system will be charged for routine warehousing services, such charges will be deducted from the amount due the suppliers for withdrawals of their stock from bailment inventory. If a supplier, whose license status is active, does not have sufficient withdrawals of their stock from bailment inventory to allow the charges to be deducted, then such amount shall be carried forward until such time as withdrawals are made in amounts sufficient to allow the charges to be deducted from the amount due the supplier. Should the supplier’s license status become inactive, an invoice will be issued by the ABCC to the supplier for the amount of the charges due the ABCC. The amount of such charges will be approved by the Legislature pursuant to W. Va. Code§29A- 3-1 et seq., then filed in the State Register. The Commissioner is authorized to promulgate an emergency rule in the event of price changes from vendors affecting the routine warehousing charges.

11.2. ABCC may also impose handling fees when extra services are performed. Examples of extra services and charges are as follows: (See Table 1 at the end of this rule.)

11.3. ABCC will complete a special warehouse case handling report when extra services are performed. This form will identify the supplier, type of services rendered, and the charges. ABCC will invoice the supplier based upon the services and charges indicated in the special warehouse case handling report.

W. Va. Code R. § 175-6-12 Reserved for Future Use

W. Va. Code R. § 175-6-13 Physical Count of Inventory

13.1. The ABCC is responsible for maintaining the accuracy of the perpetual computer inventory records. All transactions affecting the files are checked and verified for accuracy daily.

13.2. The ABCC will conduct a physical count of all products in the warehouse on a twice per year basis as of June 30 and December 31. Differences between the physical count and the perpetual records will be resolved by adjusting the perpetual records. Suppliers will be advised of any discrepancies found to affect the product they have in storage.

13.3. Supplier's representatives may perform a physical count of the supplier's inventory. Suppliers are required to make appointments at least 24 (twenty-four) hours in advance of the count time. Representatives may be asked by ABCC to display appropriate credentials prior to commencement of counting activities.

W. Va. Code R. § 175-6-14 Listing and Delisting of Inventory Products

14.1. Listing and delisting of products will be governed through administrative notices issued by the ABCC.

14.2. Where product with an alcohol content in excess of one-half of one percent (.5%) and a distilled spirit base is available for inclusion in the bailment inventory but the product does not fit within the definition of alcoholic liquor, distilled spirit or wine, the ABCC may authorize such product to be included in the bailment inventory and sold by licensed retailers.

W. Va. Code R. § 175-6-15 Reports

15.1. ABCC will produce and make available to the person named as agent on the respective supplier's Bailment Authorization Form different computer-generated reports to assist in managing the bailment inventory.

15.1.1. The agent must choose which of the following reports is to be received.

15.1.1.1. BAIL 100 provides the daily bailment withdrawal information by showing the total cases withdrawn by code and by supplier. The delivered case cost is extended by the total number of cases withdrawn from the bailment inventory to determine the total dollar amount for each code withdrawn.

15.1.1.2. BAIL 110 provides weekly withdrawal information by summarizing the daily reports.

15.1.1.3. BAIL 115 provides the billing report as of the fifteenth (15th) and last day of the month. This report, which is a semi-monthly bailment activity recap, contains for each code the summarized withdrawal-data, the month-to-date receipts, and the current on-hand inventory.

15.1.2. In addition to the foregoing reports, ABCC will provide the BAIL 120 report which will provide the monthly recap of all bailment activity. This report contains information from both semi-monthly BAIL 115 reports.

15.2. The following reports will be available as needed to all of the supplier's agents as designated on the Bailment Authorization Form.

15.2.1. BAIL W100 (Bailment Stock Requirements By Supplier) serves as the guideline for determining warehouse replenishment needs.

15.2.1.1. The report provides the sales.by bottle for a four (4) month period, the two (2) month average, and the number of cases represented by the two (2) month average.

15.2.1.2. The number of cases needed for resupply may be calculated by comparing the current on-hand inventory levels for active product and fortified wines.

15.2.1.3. A negative quantity in "cases needed" indicates the code is in an overstock condition.

15.2.1.4. This report contains only active product and fortified wines.

15.2.2. BAIL W150, Warehouse Inventory Levels/Product List By Supplier, provides the current on-hand inventory levels for active product and fortified wines.

15.3. Additional copies of the reports may be obtained at a cost of five dollars ($5.00) for each additional copy. The designated agent shall notify the ABCC of such additional report requirements and shall designate the name and address of such person.

TABLE 1 – WAREHOUSE CHARGES TO SUPPLIERS

SERVICE CHARGE*

Routine Warehouse Charges per §11.1.

Recouping/Repacking damaged cases $2.00 per case (new carton not needed)

Supplying new cartons for damaged cases $5.00 per box Relabeling or recoding cases $5.00 per label Restacking or hand unloading pallets $15.00 per layer Loading cases for return to supplier $10.00 per pallet + $.80 per case Bailment withdrawal Extra Services Charges per §11.2.

Destruction of cases $2.75 per case Out of stock (inventory level as required by WVABCA) 32% of Vendor’s Delivered Case Cost for each backordered case Delivery no show/no call $100.00 the 1st occurrence, $250.00 the 2nd occurrence $250.00, and on the 3rd occurrence the WVABCA will review the trucking company, manufacturer and broker’s files to determine whether or not to continue to accept deliveries.

Upon a showing of good cause, the Commissioner may, in his sole discretion, waive a charge or fee on this list. * Note: Charges are subject to change with ninety (90) days' notice by ABCC, such notice to be filed in the State Register. (See 175 CSR 6, specifically §§8.5., 11.1. and 11.2.)

Filed: March 29, 2022 Published: March 29, 2022 Effective from: June 27, 2022 175CSR6 175CSR6

Series 08 Cigarettes Produced For Export; Imported Cigarettes

W. Va. Code R. § 175-8-1 General

1.1. Scope. -- This rule establishes policies and operating procedures for the sale of imported cigarettes, cigarettes produced for export, prohibitions and penalties. This rule does not apply to cigarettes allowed to be imported or brought in to the United States for personal use and cigarettes sold or intended to be sold as duty-free merchandise by a duty-free sales enterprise in accordance with the provisions of 19 U.S.C. 1555(b) and any implementing regulations; provided this rule does apply to cigarettes brought back into the customs territory for resale within the customs territory. The penalties provided in this rule are in addition to any other penalties imposed under other law.

1.2. Authority. -- W. Va. Code '60-9-5.

1.3. Filing Date. -- June 1, 2001.

1.4. Effective Date. -- June 1, 2001.

W. Va. Code R. § 175-8-2 Definitions

As used in this rule and unless the context clearly requires a different meaning, the following terms shall have the meaning ascribed herein and apply in the singular and in the plural.

2.1. "ABCC,@ AAlcohol Beverage Control Commissioner,@ or ACommissioner@ means the West Virginia Alcohol Beverage Control Commissioner or his or her delegate.

2.2. ABusiness Registration Certificate@ means the West Virginia Business Registration Certificate required by W. Va. Code '11-12-1 et seq.

2.3. ACigarette@ means any roll for smoking made wholly or in part of tobacco, irrespective of size or shape and whether or not such tobacco is flavored, adulterated or mixed with any ingredient, the wrapping or cover of which is made of paper or any substance or material, except tobacco, or any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packing and labeling, is likely to be offered to, or purchased by, consumers as a cigarette.

2.4. ACigarette wrappers@ means paper or any other material except tobacco prepared for use or is likely to be used by consumers to make cigarettes.

2.5. "Code" means the official Code of West Virginia, one thousand nine hundred thirty-one, as amended.

2.6. AConsumer@ means a person who receives or in any way comes into possession of cigarettes for the purpose of consuming or giving them away or disposing of them in any way other than by sale, barter or exchange.

2.7. ACigarette tax@ or Aexcise tax@ means the tax imposed by the State Tax Commissioner by authority W. Va. Code '11-17-1 et seq.

2.8. AImporter@ means any person in the United States to whom non-taxpaid tobacco products or cigarette papers or tubes manufactured in a foreign country, Puerto Rico, Virgin Islands, or any United States territory, or a possession of the United States shipped or consigned;

2.8.1. Any person who removes cigars or cigarettes for sale or consumption in the United States from a customs bonded manufacturing warehouse;

2.8.2. Any person who smuggles or otherwise unlawfully brings tobacco products or cigarette papers or tubes into the United States.

2.9. AManufacturer@ means a person engaged in an activity where tangible personal property is transformed or converted by physical, chemical or other means into products subject to the excise tax.

2.10. APackage@ means the individual package, box or other container in or from which retail sales of cigarettes are normally made or intended to be made.

2.11. "Person@ means an individual, firm, partnership, limited partnership, company, joint-stock company, corporation, limited liability company, voluntary association, club, agency, syndicate, municipal corporation or other political subdivision of this State, trust, receiver, trustee, fiduciary or conservator, and when used in connection with any penalties imposed by this rule, means officers, directors, trustees or members of any firm, copartnership, association, corporation, trust, limited liability company, trustee or any other form of business enterprise, including receiver or liquidating agent.

2.12. ARetailer@ means and includes every person in this State, other than a wholesaler or sub-jobber, engaged in selling cigarettes at retail to a consumer or to any person for any purpose other than resale pursuant to W. Va. Code '11-17-2.

2.13. "Sale" means any transfer, exchange of goods or services, in exchange for money, currency, checks, credit cards or barter in any manner or by any means, for a consideration and shall include all sales made by principal, proprietor, agent or employee.

2.14. ASale at retail@ or Aretail sale@ means a sale of cigarettes to a consumer or to any person for any purpose other than resale.

2.15. ASale by wholesaler@ means any bona fide transfer of title to cigarettes by a wholesaler for a valuable consideration, made in the ordinary course of trade or in the usual conduct of the wholesaler=s business.

2.16. "Selling" includes solicitation or receipt of orders, possession for sale and possession with intent to sell.

2.17. AStamp@ means any cigarette stamp, whether applied by hand, meter or ink impression, or by heat and authorized by the Tax Commissioner.

2.18. AStamped cigarettes@ means that the stamp as required by W. Va. Code '11-17-1 et seq. has been affixed to the bottom of the package of cigarettes.

2.19. ASub-jobber@ means any person who purchases stamped cigarettes from any other person who purchases from the manufacturer when the other person is located in any state that levies an excise tax on cigarettes and who purchases such cigarettes solely for the purpose of bona fide resale to retailers.

2.20. ATobacco products@ means cigarettes, cigars, smokeless tobacco, pipe tobacco or roll-your-own tobacco.

2.21. AUnstamped cigarettes@ means that the stamp as required by W. Va. Code '11-17-1 et seq. has not been affixed to the bottom of the package of cigarettes.

2.22. AVending machine operator@ means any person engaged in this State in the business of operating one or more cigarette vending machines.

2.23. AWholesaler@ means any person who purchases unstamped cigarettes directly from the manufacturer or importer for resale.

W. Va. Code R. § 175-8-3 Imported Cigarettes B Requirements

3.1. Wholesalers, sub-jobbers, retail dealers, cigarette vending machine operators and any others selling cigarettes or other tobacco products in this State are required to obtain a Business Registration Certificate and a license for selling cigarettes and other tobacco products from the State Tax Department. W. Va. '11-12-1 et seq.

W. Va. Code R. § 175-8-4 Cigarettes Produced for Export B Prohibitions. Unstamped Tobacco Products

4.1. No person will sell or distribute tobacco in this State to consumers or acquire, hold, own, possess or transport, for sale or distribution in this State or to import or cause to be imported for sale or distribution in this State:

4.1.1. Any cigarettes that have a statement, label, stamp, sticker or notice that the manufacturer did not intend the cigarettes to be sold, distributed or used in the United States, including but not limited to labels stating Afor export only,@ A U.S. tax-exempt,@ Afor use outside U.S.@ or similar wording; or

4.1.2. Cigarettes that do not meet federal requirements regarding warnings on packages of cigarettes manufactured, packaged or imported for sale, distribution, or use in the United States including, but not limited to, the precise warning labels specified in the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. 1333 and all federal trademark and copyright laws;

4.1.3. Cigarettes imported into the United States in violation of 26 U.S.C. 5754 or other federal laws or the implementing federal regulations;

4.1.4. Cigarettes that have not submitted the list of ingredients added to tobacco in the manufacture of cigarettes to the secretary of the United States department of health and human services as required by Federal Cigarette Labeling and Advertising Act, 15 U.S.C. 1355a;

4.1.5. Cigarettes in packages that have been altered prior to sale to ultimate consumer by removing, concealing or obscuring:

4.1.5.a. Any statement, label, stamp, sticker or notice indicating that the manufacturer did not intend the cigarettes to be sold, distributed or used in the United States;

4.1.5.b. Any health warning not specified in the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. 1333.

4.2. No person shall affix any stamp required by the State Tax Department pursuant to W. Va. Code '11-17-1 et seq., to any package of cigarettes described in section 4.1 of this rule.

W. Va. Code R. § 175-8-5 Penalties

5.1. Except as otherwise provided in this rule, any tobacco products as noted in Section 4 of this rule, or any tobacco products that are required to have West Virginia tobacco stamps affixed thereto, and are found any place in this State without the proper stamps affixed thereto, or without applicable West Virginia tobacco tax having been paid, unless such products are in the possession of a person or firm currently licensed, qualified and authorized to possess such tobacco products or unless they are in course of transit from and consigned to a person or firm currently licensed, qualified and authorized to possess such tobacco products, or in the possession of a common carrier complying with the provisions of this part, are declared to be contraband goods and will be seized, without warrant, by the Commissioner or by any peace officer of this State.

5.2. Under no condition may such tobacco products be sold, used or otherwise disposed of before having tax stamps affixed thereto and applicable tobacco tax paid thereon.

W. Va. Code R. § 175-8-6 Enforcement of Youth Smoking Laws; ABCC; Use of Minors in Inspections

6.1. The Commissioner, the Superintendent of the West Virginia State Police, the sheriffs of the counties of this State and the chiefs of police of municipalities of this State, may periodically conduct unannounced inspections at establishments where tobacco products are sold or distributed to ensure compliance with the provisions of this rule and in a manner that conforms to the applicable federal and State laws, rules and regulations. Persons under the age of eighteen (18) years may be enlisted by the Commissioner or agents thereof to test compliance with this rule. The minors may be used to test compliance only if the testing is conducted under the direct supervision of the Commissioner or agents thereof and prior written consent of the parent or guardian of such person is first obtained.

W. Va. Code R. § 175-8-7 Administrative Sanctions

7.1. The Commissioner may impose a civil penalty in an amount not to exceed the greater of five hundred percent (500%) of the retail value of the tobacco involved or five thousand dollars ($5,000.00) as authorized for violation of W. Va. Code '60-9-5 et seq.

W. Va. Code R. § 175-8-8 Hearing and Appeal Procedure

8.1. If the Commissioner finds any person in violation of W. Va. Code '60-9-1 et seq., or this rule, the Commissioner shall notify that person of the civil penalty to be applied. Any person aggrieved by this imposition of a civil penalty has the right to request a hearing before the Commissioner pursuant to W. Va. Code '60-9-5 and the Legislative Rule, Title 175, Series 10, Procedural Rule for Alcohol Beverage Control Commissioner.

W. Va. Code R. § 175-8-9 General Enforcement Provisions

9.1. The Commissioner may for the purpose of enforcing W. Va. Code '60-9-1 et seq. and this rule, share information with and request information from other State agencies, constitutional officers, local agencies, federal agencies and any agency or constitutional officer of this or any other state or any local agency thereof, notwithstanding the provisions of confidentiality of the State Code.

9.2. Any person found to be in violation of W. Va. Code '60-9-1 et seq., may be subject to a civil penalty in an amount not to exceed the greater of five hundred percent (500%) of the retail value of the tobacco involved or five thousand dollars ($5,000.00).

W. Va. Code R. § 175-8-10 Unfair Trade Practices

10.1. Unfair trade practice means:

10.1.1. The sale of cigarettes in violation of W. Va. Code '60-9-2;

10.1.2. The failure to comply with W. Va. Code '60-9-3;

10.1.3. The sale of cigarettes at wholesale for less than the invoice cost to the wholesaler plus applicable taxes or the replacement cost thereof within thirty (30) days of the date of the sale, offer of sale, or advertisement of sale, whichever is lower, less any trade discounts except customary discounts for cash, to either of which may be added the following items of expense:

10.1.3.a. Freight charges not otherwise included in the cost of the cigarettes; and

10.1.3.b. Any markup to cover the cost of doing business of four percent (4%) absent proof of a lesser cost.

10.1.4. The sale of cigarettes at retail for less than the invoice cost or replacement cost within 30 days of the sale, offer of sale or advertisement of sale, whichever is lower, less any trade discounts, to either of which may be added:

10.1.4.a. Freight charge; and

10.1.4.b. A markup of seven percent (7%) of the aggregate of the invoice or replacement cost.

10.2. Exception to Unfair Trade Practices:

10.2.1. Proof of a lesser cost of doing business as provided in these rules;

10.2.2. Sales in good faith to meet the legal prices of a competitor selling cigarettes in this State as provided in these rules;

10.2.3. Sales in closing out in good faith an owner=s stock for the purpose of discontinuing the sale of cigarettes;

10.2.4. Sales of cigarettes that are damaged or deteriorated in quality or where cigarettes are sold in bona fide clearance sales and in each case, cigarettes are advertised, marked and sold as such;

10.2.5. Sales by an officer acting under the orders of any court;

10.2.6. Sales for charitable purposes or to relief agencies;

10.2.7. Where cigarettes are sold on contract to departments of the government or governmental institutions.

W. Va. Code R. § 175-8-11 Manufacturers Relationships with Retailers

11.1. Each retailer, that receives funds from manufacturers for cigarette display allowances, shall ensure separate accounting and record keeping for display allowances. A retailer may not use display allowance payments to reduce the cost of cigarettes for sale to consumers.

11.2. Any retailer that offers for sale any cigarettes for which the manufacturer makes a contribution to the retail price paid by a consumer (by means of coupons, stickers, buy-downs, or otherwise) shall post in a conspicuous place a notice advising the public of that fact and any such contribution shall be included in calculating the price for which the cigarettes are sold under this section.

11.3. No retailer may sell cigarettes to consumers that have been provided by the manufacturer as complimentary cigarettes. Such complimentary cigarettes are typically labeled on the package as Acomplimentary,@ Anot for resale@ or words of similar effect.

W. Va. Code R. § 175-8-12 Procedure For Filing Complaint

12.1. Any person who has been aggrieved by the sales of cigarettes by a retailer or wholesaler may file a verified complaint with the Commissioner. Such complaint shall be in writing and filed with the Commissioner in accordance with Legislative Rule, Title 175, Series 10, Procedural Rules for the Alcohol Beverage Control Commissioner.

W. Va. Code R. § 175-8-13 Hearing and Appeal Procedure

13.1. All hearings and appeals shall be held pursuant to W. Va. Code '60-9-5 and Legislative Rule, Title 175, Series 10, Procedural Rules for the Alcohol Beverage Control Commissioner.

175CSR8

Series 09 Tobacco Products in Vending Machines

W. Va. Code R. § 175-9-1 General

1.1. Scope. -- This rule establishes policies and operating procedures for the prohibition of the sale of cigarettes, electronic smoking devices, or tobacco products in vending machines located in the Alcohol Beverage Control Administration Commissioner’s Class A licensees.

1.2. Authority. -- W. Va. Code §16-9A-8 and §29A-3-1 et seq.

1.3. Filing Date. -- May 2, 2025

1.4. Effective Date. – May 15, 2025.

1.5. Sunset Date. -- This rule shall terminate and have no further force effect upon August 1, 2034.

W. Va. Code R. § 175-9-2 Definitions

As used in this rule and unless the context clearly requires a different meaning, the following terms shall have the meaning ascribed herein, and apply in the singular and in the plural.

2.1. "ABCA," "Alcohol Beverage Control Administration Commissioner," or "Commissioner" means the West Virginia Alcohol Beverage Control Administration Commissioner or his or her delegate.

2.2. "Adult" means a person who is at least 21 years of age.

2.3. "Cashier/Manager" means the person who collects retail payments for purchases in an ABCA Class A licensee.

2.4. "Cigarette" means any roll for smoking made wholly or in part of tobacco, irrespective of size or shape and whether or not such tobacco is flavored, adulterated, or mixed with any ingredient, the wrapping or cover of which is made of paper or any substance or material, except tobacco, or any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packing and labeling, is likely to be offered to, or purchased by, consumers as a cigarette.

2.5. "Electronic smoking device" means any device that can be used to deliver any heated, aerosolized or vaporized substance to the person inhaling from the device, including, but not limited to, any e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah. Electronic smoking device includes any component part, or accessory of the device, whether or not sold separately, and includes any substance intended to be heated, aerosolized, or vaporized during the use of the device, whether or not the substance contains nicotine. Electronic smoking device does not include drugs, devices, or combination products approved by the United States Food, Drug, and Cosmetic Act.

2.6. "Minor" means a person who has not attained the age of 21 years.

2.7. "Tobacco products" means any product containing, made, or derived from tobacco, or nicotine, that is intended for human consumption, whether absorbed, inhaled or ingested by any other means, including but not limited, to cigarettes, cigars, cigarillos, little cigars, pipe tobacco, snuff, snus, chewing tobacco, or other common tobacco-containing products. A tobacco product also includes electronic smoking devices and any accessory of a tobacco product or electronic smoking device, whether or not any of these contain tobacco or nicotine, including but not limited to, filters, rolling papers, blunt or hemp wraps, and pipes. Tobacco product does not include drugs, devices, or combination products that are regulated by the United States Food and Drug Administration under Chapter V of the Food, Drug and Cosmetic Act.

2.8. "Vending machine operator" means any ABCA Class A licensee that operates one or more cigarette, electronic smoking device, or tobacco products vending machines.

2.9. "Wholesaler" means any person engaged in this State in the business of purchasing unstamped cigarettes, electronic smoking devices, or tobacco products directly from a manufacturer or importer for resale.

W. Va. Code R. § 175-9-3 Tobacco Registration License Tax

3.1. The license for selling cigarettes, electronic smoking devices, or tobacco products is a part of the West Virginia Tax Department’s Business Registration Certificate Application or the renewal application for same as provided for in W. Va. Code §11-12-4a and 110 CSR 17.

W. Va. Code R. § 175-9-4 Cigarette Vending Machine Operators

4.1. Vending machine operators are subject to the statutes and regulations of the West Virginia Tax Department in W. Va. Code §11-17-1 et seq., and 110 CSR 17. Any violations of the foregoing by a vending machine operator holding an ABCA Class A license may give rise to administrative sanctions pursuant to W. Va. Code §11-16-1 et seq., and §60-7-1 et seq.

4.2. No cigarette, electronic smoking devices, or tobacco products sold in a vending machine shall be placed in operation within this State that is not so constructed as to display at least one package of the cigarettes, electronic smoking devices, or tobacco products in each column. All cigarettes shall be placed in the machines in such a manner that the stamps affixed thereto shall be clearly visible.

W. Va. Code R. § 175-9-5 Enforcement - Standards For ABCA Class A Licensees’ Location of Vending Machines

5.1. In order to comply with W. Va. Code §16-9A-8 the vending machine(s) in an ABCA Class A licensed establishment must be in full view and control of the cashier/manager, i.e., the person who accepts payments for the purchases. If the vending machine is not within full view and control of the cashier/manager, the Commissioner and/or his inspector, agent, or employee shall have the authority to direct the cashier, manager, or licensee to move the machine to a suitable location. Refusal to do so will constitute interference or hindrance with an investigation and may subject the licensee to administrative sanctions for violation of 175 C.S.R. 2., §4.4., 176 CSR 1 §6.1.k., and 175 CSR 4 §14.4.1.

5.2. Control of the vending machine is the responsibility of the cashier/manager as the representative of the ABCA Class A licensee and it is their responsibility to restrict access to the vending machines by any minor.

W. Va. Code R. § 175-9-6 Enforcement at ABCA Class A Licensees

6.1. The Commissioner may periodically conduct unannounced inspections at ABCA licensed establishments and other establishments where cigarettes, electronic smoking devices, or tobacco products are sold to ensure compliance with the provisions of W. Va. Code §16-9A-8 and this rule and in a manner that conforms to the applicable federal and state laws, rules, and regulations.

W. Va. Code R. § 175-9-7 Penalties, Exceptions

7.1. Any ABCA Class A Licensee convicted of a criminal violation of W. Va. Code §16-9A-1 constitutes a violation of W. Va. Code §11-16-1 et seq., and/or §60-7-1 et seq. and shall give rise to the administrative penalties authorized by W. Va. Code §§11-16-23 and 60-7-13.

7.2. Any vending machine located or operated in a manner that violates applicable federal or state law, rule or regulation is contraband and may be seized by the Tax Commissioner without warrant. The Tax Commissioner may at his or her discretion decide the disposition of the vending machines.

7.3. All of the cigarettes, electronic smoking devices, or tobacco products from the vending machine are considered contraband and will be seized, without warrant, by the Tax Commissioner and upon conviction the contraband will be disposed of at the discretion of the Tax Commissioner.

W. Va. Code R. § 175-9-8 Hearing and Appeal Procedure

8.1. An ABCA Class A licensee convicted of a criminal violation of W. Va. Code §16-9A-1 et seq., and penalized by the Commissioner shall be entitled to a hearing before the Commissioner in accordance with W. Va. Code §11-16-24, §60-7-13a, and also any ABCA rules.

W. Va. Code R. § 175-9-9 Education Classes, Diversion Programs, or Community Service

9.1. Any ABCA Class A Licensee convicted of a criminal violation of W. Va. Code §16-9A-1 et seq. may participate in any court approved education class, diversion program, or community service, or any combination of the three programs, to mitigate the criminal penalties, however, the ABCA Class A Licensee will still be subject to the Commissioner’s administrative penalties.

175CSR9

Series 10 Distilleries, Mini-Distilleries, and Micro-Distilleries

W. Va. Code R. § 175-10-1 General

1.1. Scope. -- This rule provides the procedure whereby a distillery, mini-distillery, or micro-distillery located in the State of West Virginia shall comply with bailment procedures, sampling, retail operations, production, retail sales, and reporting of activities and licensing broker representatives.

1.2. Authority. -- W. Va. Code §60-1-5, §60-1-5b, §60-1-5d, §60-2-11, §60-2-15, §60-2-16, §60-4-2, §60-4-3, §60-4-3a, §60-4-15, §60-6-1, and §60-6-2.

1.3. Filing Date. -- May 2, 2025.

1.4. Effective Date. -- June 1, 2025.

1.5. Sunset Date. – This rule shall terminate and have no further force or effect upon August 1, 2035.

W. Va. Code R. § 175-10-2 Definitions

2.1. The “ABCA” refers to the West Virginia Alcohol Beverage Control Administration or Commission.

2.2. “Alcoholic liquor” or “liquor” means alcohol, beer, fortified wine, and distilled spirits, and any liquid or solid (including powdered alcohol) capable of being used as an alcoholic beverage, but shall not include: (a) wine with an alcohol content of 15.5% or less by volume, (b) nonintoxicating beer or nonintoxicating craft beer, or (c) nonintoxicating beverages.

2.3. “Bailment” for purposes of this rule means a warehousing method whereby the transfer of possession through actual or constructive delivery, but not ownership, to the Commissioner, of alcoholic liquors manufactured at a distillery, mini-distillery, or micro-distillery which is available as bailment inventory for purchase by licensed retail outlets or a distillery, mini-distillery, or micro-distillery with all applicable markups, fees, and taxes as provided by the West Virginia Code and West Virginia Code of State Rules. Alcoholic liquors actually possessed in bailment by the Commissioner are delivered to retail outlets and distilleries, mini-distilleries, and micro-distilleries located in the state of West Virginia.

2.4. “Beer” means any beverage obtained by the fermentation of barley, malt, hops, or any other similar product or substitute and containing more alcohol than that of nonintoxicating beer, including nonintoxicating craft beer, and shall be included in the definition of “liquor” and “alcoholic liquor”, as used in W. Va. Code §11-16-1 et seq.: Provided, That in Chapter 60 of the West Virginia Code, “beer” shall not be construed to include or embrace nonintoxicating beer or nonintoxicating craft beer.

2.5. “Class A retail license” means a retail license permitting the retail sale of West Virginia product or alcoholic liquors at a freestanding liquor retail outlet, subject to the requirements of the West Virginia Code and Code of State Rules.

2.6. “Class B retail license” means a retail license permitting the sale of West Virginia product or alcoholic liquors at a mixed retail liquor outlet, subject to the requirements of the West Virginia Code and Code of State Rules.

2.7. “Commissioner” means the West Virginia Alcohol Beverage Control Commissioner (Administrator) or his or her designee.

2.8. “Distilled spirits” means ethyl alcohol, ethanol, or spirits, including all dilutions and mixtures thereof, from whatever source or by whatever process produced, for beverage use, and shall include, but not be limited to, neutral spirits, whiskey, brandy, rum, gin, vodka, cordials, and liqueurs. In addition to the foregoing, any alcoholic beverage containing more than 24% of alcohol by volume shall be deemed to be distilled spirits.

2.9. “Distillery” or “distiller” means an establishment where alcoholic liquor other than wine and beer is manufactured or in any way prepared and as licensed under Chapter 60 of the West Virginia Code.

2.10. “Fortified wine” means any wine to which brandy or other alcohol has been added. For purposes of this rule, “fortified wine” includes dessert wines which are not fortified but which have an alcohol content by volume of at least 17% alcohol by volume and not more than 24% alcohol by volume.

2.11. “Gallon” means the liquid measure equivalent to the volume of 231 cubic inches.

2.12. “Licensed representative” means a manufacturer’s representative licensed by the ABCA, who has paid the fee under the provisions of W. Va. Code §60-4-22 or a broker authorized, in writing, by a manufacturer (including a distillery, mini-distillery, or micro-distillery) to represent the manufacturer’s product in the State of West Virginia and who has paid the same fee to the ABCA. A licensed representative may contact a licensed retailer for the purpose of selling, offering to sell, soliciting, negotiating, or promoting the sale of alcoholic liquor or distilled spirits, or conducting surveys, studies, or similar activities pertaining to the sale, distribution, or availability of alcoholic liquors or distilled spirits as set forth in this rule.

2.13. “Manufacture” means to distill, rectify, ferment, brew, make, mix, concoct, process, blend, bottle, or fill an original package with any alcoholic liquor or wine.

2.14. “Manufacturer” means any person engaged in the manufacture of any alcoholic liquor or wine, among others and including, but not limited to, a producer, broker, processor, bottler, importer, distiller, rectifier, winemaker, or brewer.

2.15. “Micro-distillery” or “Micro-distiller” means an establishment where in any one year no more than 10,000 gallons of alcoholic liquor is manufactured and no more than 25% of raw agricultural products used in manufacture or production may originate from outside this state. A micro-distillery is limited to selling alcoholic liquors manufactured by it, only in this state, in accordance with the provisions of W. Va. §60-4-3, §60-6-2 and §60-3A-1 et seq., as applicable.

2.16. “Mini-distillery” or “Mini-distiller” means an establishment where in any year no more than 50,000 gallons of alcoholic liquor is manufactured with no less than 25% of raw agricultural products being produced by the owner of the mini-distillery on the licensed premises of that establishment (which is one location or address) physically located in West Virginia, and no more than 25% of raw agricultural products originating from any source outside this state: Provided, That the maximum allotted production amounts shall not exceed the annual incremental production limitations provided in W. Va. Code §60-4-3a: Provided, however, That a distillery licensed and operating as of July 8, 2005, that applies for designation by the Commissioner as a mini-distillery, is eligible to be licensed as a mini-distillery without compliance with the requirements for the percentage use of on-premises grown and in-state raw agricultural products.

2.17. “Nonintoxicating beer” means all natural 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 with no caffeine infusion or any additives masking or altering the alcohol effect containing at least .5% alcohol by volume, but not more than 11.9% of alcohol by weight, or 15% by volume, whichever is greater. The word “liquor” as used in W. Va. Code §60-1-1 et seq., does not include or embrace nonintoxicating beer nor any of the beverages, products, mixtures, or preparations included within this definition. For the purposes of this definition “infusion” means and includes to artificially add, input, or otherwise deliver caffeine or any other additive, not a true flavoring or coloring, that would mask or alter the alcohol effect in nonintoxicating beer.

2.18. “Nonintoxicating craft beer” means any beverage obtained by the natural fermentation of barley, malt, hops, or any other similar product or substitute and containing not less than 0.5% by volume and not more than 15% alcohol by volume or 11.9% alcohol by weight with no caffeine infusion or any additives masking or altering the alcohol effect. For the purposes of this definition “infusion” means and includes to artificially add, input, or otherwise deliver caffeine or any other additive, not a true flavoring or coloring, that would mask or alter the alcohol effect in nonintoxicating craft beer.

2.19. “Political subdivision” means any county commission, municipality, and county board of education; any separate corporation or instrumentality established by one or more counties or municipalities, as permitted by law; any instrumentality supported in most part by municipalities; any public body charged by law with the performance of a government function and whose jurisdiction is coextensive with one or more counties, cities, or towns; a combined city-county health department created pursuant to W. Va. Code §16-2-1 et seq.; public service districts; and other instrumentalities including, but not limited to, volunteer fire departments and emergency service organizations as recognized by an appropriate public body and authorized by law to perform a government function: Provided, That the ABCA and its employees are expressly excluded from this term.

2.20. “Private fair and festival” means a fair, festival, or event issued to a special Class S2 licensee licensed pursuant to W. Va. Code §60-7-8a, where, among other things, an authorized distillery, mini-distillery, or a micro-distillery who manufactures its liquor in West Virginia and may conduct sales and service of its liquor for on-premises consumption with liquor samples or liquor sales by the drink, and for off-premises consumption with sealed liquor bottle or can retail sales subject to the requirements of W. Va. Code §60-4-3a, §60-7-8a, §60-3A-17, and the applicable rules.

2.21. “Private manufacturer club” means an applicant for a private club or licensed private club which is also licensed as a distillery, mini-distillery, micro-distillery, winery, farm winery, brewery, or resident brewery that manufacturers liquor, wine, or nonintoxicating beer or nonintoxicating craft beer, which may be sold, served, and furnished to members and guests for on-premises consumption at the private manufacturer club licensee’s licensed premises and in the area or areas denoted on its floorplan, and which meets the criteria set forth in W. Va. Code §60-7-2 and 175 CSR 2.

2.22. “Proof gallons” means a gallon of liquid at 60 degrees Fahrenheit which contains 50% by volume of ethyl alcohol having a specific gravity of 0.7939 at 60 degrees Fahrenheit referred to water at 60 degrees Fahrenheit as unity, or the alcoholic equivalent thereof.

2.23. “Retail outlet” means a specific location or store where West Virginia product or alcoholic liquors may be lawfully sold by a Class A retail license or Class B retail license in the original package for consumption off the premises.

2.24. “West Virginia product” means all bourbon, brandy, cognac, cordials, gin, grain alcohol, rye, rum, scotch, tequila, vermouth, vodka, whisky, apertifs, pre-mixed cocktails, fortified wines, spirit blends, marsala, sake, sherry, and all other liquor types and classes as approved by the Commissioner and maintained on the ABCA retail liquor product list.

2.25. “Wine” means any alcoholic beverage, including table wine or hard cider, obtained by the natural fermentation of the natural content of grapes, other fruits, or honey or other agricultural products containing sugar to which no alcohol has been added. The term wine does not include fortified wine, nonintoxicating beer, or nonintoxicating craft beer. For purposes of this rule, “wine” includes: table wine; hard cider; nonfortified dessert wine; wine coolers; wine or wine based products that are contained in a can, bottle, growler, or a pouch; and similar wine-based beverages containing not less than 0.5% nor more than 15.5% alcohol by volume. (See subsection 2.2.for alcohol content percentage).

2.26. “Year” for purposes of gallons produced and sold shall mean a calendar year.

W. Va. Code R. § 175-10-3 Bailment Policy and Procedures – Actual Bailment and Constructive Bailment

3.1. The Commissioner must take actual or constructive possession through bailment of all alcoholic liquor manufactured for sale by every distillery, mini-distillery, or micro-distillery located in the state of West Virginia. The distillery, mini-distillery, or micro-distillery must follow the requirements for listing alcoholic liquors with the Commissioner as a part of the West Virginia Product list, as specified in the West Virginia Code and in 175 CSR 1, 175 CSR 5, and 175 CSR 6.

3.2. Actual bailment must be utilized for all bailment orders and purchases to retail outlets for a distillery’s, mini-distillery’s, or micro-distillery’s liquor products.

3.2.1. Actual bailment shall apply the wholesale markup fee set by the Commissioner and all applicable bailment, delivery, handling, and other associated fees and taxes to the distillery, mini-distillery, or micro-distillery’s liquor products as set forth in the West Virginia Code and 175 CSR 1, 175 CSR 5, and 175 CSR 6.

3.2.2. Actual bailment shall require the distillery, mini-distillery, or micro-distillery to comply with all applicable requirements in the West Virginia Code and West Virginia Code of State Rules.

3.3. Constructive bailment may be utilized by distilleries, mini-distilleries, and micro-distilleries located in the state of West Virginia whereby their alcoholic liquor products actually stay at the licensed premises of the distillery, mini-distillery, or micro-distillery and various forms are completed to account for production, volume, retail sales, sample bottle retail purchases, markups, fees, taxes, and any other information required by the Commissioner. Alcoholic liquors maintained in constructive bailment at the licensed distillery, mini-distillery, or micro-distillery may only be used for serving samples of its alcoholic liquor products for on-premises consumption and for retail sales for off-premises personal consumption when such sampling or sales occur at the actual licensed premises.

3.3.1. Alcoholic liquor products manufactured at a distillery, mini-distillery, or micro-distillery used for serving on-premises samples of its alcoholic liquor products must be reported on a form provided by the Commissioner which will be used to calculate the amount paid by the distillery, mini-distillery, or micro-distillery for purchasing the alcoholic liquor product used for sampling through constructive bailment where the entire 32% wholesale markup, bailment fees, and delivery fees shall be remitted to the Commissioner as set forth in W. Va. Code §60-3A-17. The amount paid to the Commissioner for cases/bottles used by a distillery, mini-distillery, or micro-distillery conducting on-premises sampling shall be the same as paid by a retail outlet with the wholesale markup fee set by the Commissioner, bailment fees, and delivery fees included. For a distillery, mini-distillery, or micro-distillery conducting on-premises sales and service of liquor by the drink or glass as a licensed private manufacturer club or operating as an authorized distillery, mini-distillery, or micro-distillery at a private fair and festival, the liquor sold must be purchased at a licensed retail liquor outlet located in the zone or contiguous zone of the private manufacturer club or the location of the private fair and festival. When an authorized distillery, mini-distillery, or micro-distillery conducts sales for off-premises consumption at a private fair or festival, the sales to the public must charge a 110% minimum retail markup.

3.3.2. Alcoholic liquor products manufactured at a distillery, mini-distillery, or micro-distillery used for retail sales of its alcoholic liquors at the licensed distillery, mini-distillery, or micro-distillery’s premises for off-premises personal consumption only must be reported monthly on a form provided by the Commissioner which will be used to calculate the amount paid by the distillery, mini-distillery, or micro-distillery for purchasing the alcoholic liquor product used for these retail sales through constructive bailment. The amount paid to the Commissioner for cases/bottles used by a distillery, mini-distillery, or micro-distillery for retail sales to consumers for off-premises consumption shall include a 5% wholesale markup fee and a $.80 per case bailment fee. In the interest of promoting tourism and for the pricing requirements set forth in the code, a distillery, mini-distillery, or micro-distillery conducting off-premises sales from its licensed premises must charge the additional 27% of the full 32% wholesale markup, plus bailment and delivery fees in calculating its wholesale cost prior to the applying the minimum retail markup to liquor purchased by patrons for off-premises personal consumption. The 27% of the 32% wholesale markup for off-premises sales at the distillery, mini-distillery, or micro-distillery’s licensed premises may be retained by the licensed distillery, mini-distillery, or micro-distillery from such sales. In the interest of promoting tourism, a distillery, mini-distillery, or micro-distillery is only required to remit to the WVABCA the 5% wholesale markup fee and $.80 per case bailment fee for the number of bottles or cases of bottles sold from their licensed premises to the public for off-premises consumption. Such remittances for the 1st of the month through the 15th of the month shall occur on the 16th day of the month and from the 16th day of the month to the end of the month shall occur on the 1st day of the next month.

3.3.3. A distillery, mini-distillery, or micro-distillery’s alcoholic liquors used for sampling at the distillery, mini-distillery, or micro-distillery’s licensed premises and used for retail sales of its alcoholic liquors at the licensed distillery, mini-distillery, or micro-distillery’s premises for off-premises personal consumption only must be purchased from the Commissioner but may be constructively delivered to the Commissioner and remain on the distillery, mini-distillery, or micro-distillery’s licensed premises without actual delivery to the Commissioner.

3.3.4. A distillery, mini-distillery, or micro-distillery electing to use constructive bailment shall report all production to the Commissioner, identifying, the amount of alcoholic liquor to remain on premises for purchase by the distillery, mini-distillery, or micro-distillery for on-premises sampling and also purchased for retail sales to consumers for off-premises consumption. Note, barrel sales by a distillery, mini-distillery, or micro-distillery may not be conducted through constructive bailment and must follow the ABCA Private Barrel Selection Policy.

W. Va. Code R. § 175-10-4 On-Premises Sampling; Retail Sales for off-premises personal consumption; and on-premises and off-premises sales at Private fairs and festivals

4.1. Samples of alcoholic liquor manufactured at the distillery, mini-distillery, or micro-distillery’s licensed premises may not exceed moderate quantities not to exceed three separate and individual sample servings six ounces in total volume of its liquor, per customer verified to be 21 years of age or older per day. The liquor samples may be mixed with other liquor manufactured by the distillery, mini-distillery, or micro-distillery and also with nonalcoholic liquids, as long as the total amount of liquor does not exceed six ounces.

Example samples: (a) one six-ounce sample of a distillery, mini-distillery, or micro-distillery’s straight liquor, could be mixed with other nonalcoholic liquids subject to the six ounce liquor limit, per day per customer; (b) two three-ounce samples of its straight liquor, they could mix one of its liquors with its other liquor types, or also with other nonalcoholic liquids subject to the two three-ounce liquor limit per day per customer, i.e. one sample could be 4.5 ounces of Liquor A and 1.5 ounces of Liquor B; or (c) three two-ounce samples of its straight liquor, they could mix one of its liquors with its other liquor types, or also with other nonalcoholic liquids subject to the six ounce liquor limit per day per customers, i.e. one sample could be 1 ounce of Liquor A and 1 ounce of Liquor B. A distillery, mini-distillery, or micro-distillery are not required to serve the maximum amount of liquor samples per day per customer and may always serve less than the maximum amount.

4.2. No person while on the premises of any distillery, mini-distillery, or micro-distillery shall break the seal on any package of alcoholic liquor, other than the licensee, for the limited purpose of on-premises sampling on the property or the limited purpose of on-premises consumption sales, when licensed as a private manufacturer club.

4.3. Prior to permitting any on-premises liquor sampling, a distillery, mini-distillery, or micro-distillery shall verify that each person being served, furnished, or consuming samples are 21 years of age or over and are not noticeably or visibly intoxicated at any point during the consumption of on-premises samples.

4.4. The retail price to the public charged by a distillery, mini-distillery, or micro-distillery for off-premises retail sales of alcoholic liquor manufactured at the distillery, mini-distillery, or micro-distillery and occurring at the licensed premises or the retail price charged when such off-premise sales to the public occur by authorized distillery, mini-distillery, or micro-distillery at a private fair and festival may not be less than 110% of the wholesale cost of the product as contained in the Commissioner’s Wholesale Spirits Catalog which sets the uniform price (in accordance with W. Va. Code §60-3A-17) to a retailer.

4.5. Retail sales of alcoholic liquor manufactured at the distillery, mini-distillery, or micro-distillery are for off-premises personal consumption by the purchaser and resale by the purchaser is prohibited. Private club types must purchase all liquor from the retail liquor outlets in their market zone or a contiguous market zone.

W. Va. Code R. § 175-10-5 Market zone fee payment and taxes

5.1. Each distillery, mini-distillery, or micro-distillery shall submit to the Commissioner 2% of the gross sales price of each retail liquor sale made: for off-premises personal consumption for the value of all sales made at the distillery, mini-distillery, or micro-distillery’s licensed premises; for off-premises sales for personal consumption made by an authorized distillery, mini-distillery, or micro-distillery at a private fair and festival (treated as a sale from the distillery, mini-distillery, or micro-distillery’s licensed premises); and for the liquor bottles used to sell liquor samples or liquor by the drink for on-premises consumption at a private fair and festival (treated as a sale from the distillery, mini-distillery, or micro-distillery’s licensed premises) (See also Section 3.3.a., and 3.3.b.) each month and the sales, information, and calculation shall be submitted to the Commissioner on a form provided by him or her. Note, barrel sales are not permitted at any distillery, mini-distillery, or micro-distillery’s licensed premises unless completed through actual bailment in accordance with the ABCA Private Barrel Selection Policy.

5.1.1. The market zone fee payment shall be collected by the Commissioner and distributed, at least quarterly, to each market zone retail outlet located in the distillery, mini-distillery, or micro-distillery’s market zone, proportionate to each market zone retail outlet’s annual gross prior year’s pretax value sales.

5.1.2. The maximum amount of the market zone fee payments made by a distillery, mini-distillery, or micro-distillery is $15,000 per annum.

5.2. Alcoholic liquors sold at retail for off-premises personal consumption by a distillery, mini-distillery, or micro-distillery are subject to a 6%, 6.5%, or 7% retail sales tax, as applicable, and a 5% tax for the benefit of a municipality or county, as provided in W. Va. Code §60-3-9d and W. Va. Code §60-3A-21.

W. Va. Code R. § 175-10-6 Licensing

6.1. Licenses are issued on an annual basis, valid January 1 to December 31 of the year for which they are issued and must be displayed on the licensed premises in a prominent location.

6.2. The license fee for a distillery license is $1,500.00, a mini-distillery license fee is $50.00, a micro-distillery license fee is $750 and a licensed representative (or broker) license fee is $100 per distillery, mini-distillery, micro-distillery or manufacturer for the license period and may not be pro-rated.

6.3. A licensed distillery, mini-distillery, or micro-distillery located in the state of West Virginia will be assigned a limited retail outlet number to account for limited retail sales for off-premises personal use and consumption of only its own alcoholic liquors manufactured on the licensed premises.

6.4. The Commissioner may issue more than one distillery, mini-distillery, or micro-distillery license to a single person or entity and a person may hold a combination of a distillery and a mini-distillery license.

6.5. A distillery, mini-distillery, or micro-distillery shall not be licensed as a private club, private wine restaurant, or tavern, but may be licensed as a private manufacturer club with a Class A retail dealer license for beer which authorizes on-premises: liquor sales for liquor purchased from a license retail liquor outlet located in its zone or contiguous zone; wine sales for wine purchased from a licensed wine distributor or a farm winer, acting as a limited wine distributor; and nonintoxicating beer or nonintoxicating craft beer sales for nonintoxicating beer or nonintoxicating craft beer purchased from a licensed beer distributor or a resident brewer, acting in a limited capacity as a beer distributor.

6.6. Following receipt of a completed application for a distillery, mini-distillery, micro-distillery, or a representative’s/broker’s license containing additional or supplemental information as the Commissioner may require, the Commissioner may conduct an investigation of an applicant to determine whether the applicant is qualified to receive a distillery, mini-distillery, micro-distillery, or representative/broker’s license. The Commissioner may request any additional information necessary to review an application.

6.6.1. The Commissioner will conduct background investigations for the purpose of determining whether an applicant has been charged with, indicted for, or convicted of a crime that may have bearing upon the applicant’s fitness to hold a license. For purposes of this paragraph, “background investigation” means a security, criminal, and credit investigation of an applicant who has applied for the issuance or renewal of a license. The applicant will submit a West Virginia Alcohol Beverage Control Administration Release of Information and Waiver of Confidentiality of Records Form for this purpose. The applicant will submit a full set of fingerprints to facilitate a criminal background check and the Commissioner will request the state police or its designee to submit the fingerprints and identifying information to the Federal Bureau of Investigation for a national criminal history record check. The results of the fingerprint check will be returned to the ABCA.

6.6.2. The applicant will reimburse the West Virginia Alcohol Beverage Control Commission for all fees or charges that are incurred by the West Virginia Alcohol Beverage Control Commission for a background investigation undertaken pursuant to this subsection.

6.6.3. The applicant must verify that he or she is a United States citizen of good moral character and, if a naturalized citizen, when and where naturalized; and, if a corporation organized and authorized to do business under the laws of West Virginia, 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, that each member is a citizen of the United States and, if a naturalized citizen, when and where naturalized, each of whom must sign the application.

6.6.4. The Commissioner, after initial examination and evaluation of the application may determine that an Initial Inspection Report is warranted and, accordingly, have one made by a staff person using the “Initial Inspection Report”.

6.6.5. Upon completion of any investigation of an applicant, the Commissioner shall inform such applicant, in writing, whether the application has been approved or denied.

6.7. No distillery, mini-distillery, or micro-distillery may be located within the immediate vicinity of a school or church. Immediate vicinity shall mean 100 feet as measured along the streets or street from front door to front door.

6.8. A distillery, mini-distillery, micro-distillery, or representative/broker applicant shall not falsify, make material misrepresentations, or omit any material facts in its application for licensure. Such actions may be considered by the Commissioner as additional grounds for determining an unsuitable person or applicant.

6.9. A distillery, mini-distillery, or micro-distillery shall provide all federal tax stamp, federal licensure approval, and federal registrations to the Commissioner for review.

6.10. A distillery, mini-distillery, or micro-distillery license is not transferable, but with the permission of the Commissioner, the location of the business may be amended.

6.11. The owners of a licensed distillery, mini-distillery, or micro-distillery may operate a winery, farm winery, brewery, or as a resident brewer as otherwise specified in the code.

6.12. Forms for licensing and renewal may be obtained on the ABCA website, accessible at www.abca.wv.gov, or by contacting the offices at 304-356-5500.

6.13. The Commissioner shall refuse to issue a distillery, mini-distillery, micro-distillery or representative/broker license if he or she finds that: (a) the applicant is not a suitable person; (b) the place to be occupied by the applicant is not a suitable place; or (c) a sufficient number of licenses have already been issued in the area where the applicant proposes to locate its premises.

W. Va. Code R. § 175-10-7 Reports

7.1. The distillery, mini-distillery, or micro-distillery located in the state of West Virginia shall report monthly to the Commissioner the total retail sales of alcoholic liquors sold at the licensed premises.

7.1.1. Total retail sales information shall be submitted on forms provided by the Commissioner or in a manner approved by the Commissioner.

7.1.2. The distillery, mini-distillery, or micro-distillery shall submit to the Commissioner, with this report, 2% of the total retail liquor sales at the distillery, mini-distillery, or micro-distillery each month.

7.1.3. Total gross sales reports and payment of the 2% of the total retail liquor sales shall be submitted by the distillery, mini-distillery, or micro-distillery to the Commissioner on or before the 15th day of the month following the month for which the report is made.

7.2. The distillery, mini-distillery, or micro-distillery shall report monthly to the Commissioner the total gallons of alcoholic liquor produced at the distillery, mini-distillery, or micro-distillery. For the purpose of this report gallons will mean proof gallons.

7.2.1. Total production information shall be submitted on forms provided by the Commissioner or in a manner approved by the Commissioner. The distillery, mini-distillery, or micro-distillery may provide a true copy of the Monthly Report of Processing Operations filed with the Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms (ATF F 5110.28), in lieu of the Commissioner's report.

7.2.2. Total production information shall be submitted by the distillery, mini-distillery, or micro-distillery to the Commissioner on or before the 15th day of the month following the month for which the report is made.

7.3. All distilleries, mini-distilleries, and micro-distilleries must annually complete and attest in Form ABCA-AFF-6-2020 (or any form that replaces that form, and as modified) as to the estimated gallons produced and other information required on the form.

7.4. A distillery, mini-distillery, or micro-distillery shall maintain its records for all productions and sales and all reports provided to the Commissioner.

W. Va. Code R. § 175-10-8 Signage

8.1. Any distillery, mini-distillery, or micro-distillery conducting tours, on-premises samples or sales, when licensed as a private manufacturer club, and off-premises retail sales shall post in an open and prominent place within the distillery, mini-distillery, or micro-distillery’s licensed premises:

8.1.1. The licensee’s license;

8.1.2. A blood-alcohol chart in the form prescribed by W. Va. Code §60-6-24 as provided by the Commissioner.

8.1.3. The fetal alcohol syndrome warning regarding birth defects in the manner prescribed by W. Va. Code §60-6-25; and

8.1.4. The human trafficking notice required by W. Va. Code §15A-2-5.

The charts in sub-sections 8.1.2., 8.1.3., and 8.1.4., are available on the Commissioner’s website, www.abca.wv.gov .

8.2. Any advertisements utilized by a distillery, mini-distillery, or micro-distillery shall not encourage intemperance, over-intoxication, or underage consumption.

W. Va. Code R. § 175-10-9 Days and hours distillery, mini-distillery, or micro-distillery may conduct on-premises samples and sales by the drink at a private manufacturer club, and also authorizing off-premises retail sales for personal consumption

9.1. A distillery, mini-distillery, or micro-distillery may not sell or offer alcoholic liquors for retail sales for off-premises consumption or permit on-premises sampling on the property between the hours of midnight and 6:00 a.m., as provided in W. Va. Code §7-1-3ss.

9.2. A distillery, mini-distillery, or micro-distillery may not conduct retail sales for off-premises consumption or offer on-premises samples on Easter Sunday or Christmas Day.

9.3. A distillery, mini-distillery, or micro-distillery may, when licensed as a private manufacturer club, conduct on-premises sales by the drink during the hours of operation specified in 175 CSR 2.

W. Va. Code R. § 175-10-10 Limitations and Expansions

10.1. No distillery, mini-distillery, or micro-distillery may sell more than 3,000 gallons of product at the distillery, mini-distillery, or micro-distillery’s licensed premises during the initial two years of licensure.

10.2. The distillery, mini-distillery, or micro-distillery may increase sales at the distillery, mini-distillery, or micro-distillery location by 2,000 gallons following the initial 24-month period of licensure and may increase sales at the distillery, mini-distillery, or micro-distillery location each subsequent 24-month period by 2,000 gallons, not to exceed 10,000 gallons a year of total sales at the distillery, mini-distillery, or micro-distillery’s location.

10.3. After the initial 2 years, no licensed mini-distillery may produce more than 50,000 gallons per calendar year at the mini-distillery location.

10.4. After the initial 2 years, no licensed micro-distillery may produce more than 10,000 gallons per calendar year at the micro-distillery location.

10.5. A political subdivision of the state may not regulate any of the following activities of a licensed distillery, mini-distillery, or micro-distillery:

10.5.1. The on-premises sale, tasting, or consumption of liquor during business hours set forth in W. Va. Code §60-7-12 and 175 CSR 2;

10.5.2. The storage, warehousing, and wholesaling of liquor in accordance with the rules of the commissioner and federal law or regulations; or

10.5.3. The sale of liquor related items, including but not limited to the sale of pre-packaged food not requiring kitchen preparation that are incidental to the sale of liquor and on-premises consumption.

W. Va. Code R. § 175-10-11 Manufacturer, distillery, mini-distillery, and micro-distillery prohibitions

11.1. Improper inducements. -- Federal and state law prohibit a distillery, mini-distillery, or micro-distillery from providing inducements, directly or indirectly, to any retail outlet to purchase alcoholic liquors from the manufacturer to the exclusion, in whole or in part, of products sold or offered for sale by another manufacturer. Prohibited inducements include:

11.1.1. Acquiring or holding any interest in any license with respect to the retail outlet or any other premises which is owned, occupied, or used in any manner by the licensed retailer or his or her immediate family;

11.1.2. Acquiring any interest in real or personal property which is owned, occupied, or in any manner used by the licensed retailer or his or her immediate family in the conduct of the retail outlet or any other of his or her businesses;

11.1.3. Furnishing, giving, renting, lending, or selling to the licensed retailer or his or her immediate family any equipment, fixtures, exterior signs, supplies, money, services, or other things of value, except that a manufacturer may furnish to a licensed retailer items of nominal value for in-store display or sales purposes for use only within the licensed retail outlet;

11.1.4. Paying or crediting the licensed retailer or his or her immediate family for any advertising, display, or distribution services;

11.1.5. Guaranteeing any loan for the repayment of any financial obligation of the licensed retailer or his or her immediate family; or

11.1.6. Requiring the licensed retailer to take and dispose of a certain quota of any distilled spirits.

11.2. Interest in the retail outlet. -- A distillery, mini-distillery, or micro-distillery may not acquire or hold any interest in any license required to be obtained by the licensed retailer or his or her immediate family, with respect to the retail outlet or any other premises which are owned, occupied, or in any manner used by the licensed retailer or his or her immediate family. This prohibition applies equally to:

11.2.1. The licensed retailer’s officers, partners, employees, other representatives, and their immediate family;

11.2.2. Any separate corporation in which the manufacturer or its officers, partners, employees, or other representatives, and their immediate family hold any ownership interests or with which such persons are otherwise affiliated.

11.3. Interest in real or personal property of the licensed retailer.

11.3.1. A distillery, mini-distillery, or micro-distillery may not acquire or hold any interest in real or personal property which is owned, occupied, or in any manner used by the licensed retailer or his or her immediate family in the conduct of the retail outlet or of other businesses of the licensee and his or her immediate family. This prohibition also applies to:

11.3.1.a. Any interest acquired by the distillery, mini-distillery, or micro-distillery’s corporate officials, partners, and employees or other representatives, or their immediate family; and

11.3.1.b. To any interest which is acquired by a separate corporation in which the distillery, mini-distillery, or micro-distillery or its officers, partners, employees, or other representatives, or their immediate family hold any ownership interest or in which they are otherwise affiliated.

11.3.2. A distillery, mini-distillery, or micro-distillery may not acquire a mortgage on a licensed retailer’s real or personal property or on the real or personal property of the licensed retailer’s immediate family.

11.3.3. A distillery, mini-distillery, or micro-distillery may not rent display space or shelf space at a retail outlet.

11.4. Furnishing things of value.

11.4.1. A distillery, mini-distillery, micro-distillery, or licensed representative/broker may not furnish, give, rent, or lend to a licensed retailer or his or her immediate family any equipment, fixtures, exterior signs, supplies, money, services, or other things of value. The prohibition does not apply to sales of goods by a distillery, mini-distillery, or micro-distillery to a licensed retailer of goods that are to be resold to the general public and which are not alcoholic liquors so long as the licensed retailer pays the normal sales price for the goods.

11.4.1.a. This prohibition also applies to any similar activity which occurs through a third party, such as a retailer association or display company, where the benefits resulting to the licensed retailer may be considered as providing the licensed retailer with a thing of value without the payment of an appropriate purchase price.

11.4.1.b. This prohibition does not apply to signs and other display-related materials that are of negligible monetary value as long as the distillery, mini-distillery, micro-distillery, retailer or licensed representative/broker has prior written approval from the Commissioner.

11.4.2. A distillery, mini-distillery, micro-distillery, or licensed representative/broker must sell any equipment, supplies, or fixtures to a licensed retailer at the current market value and may not provide a special price advantage for purchasing from one manufacturer as opposed to another manufacturer.

11.4.3. A distillery, mini-distillery, micro-distillery, or licensed representative/broker may not provide any assistance (financial, legal, administrative, or influential) to a licensed retailer in acquiring the license required to operate a licensed retail outlet.

11.4.4. A distillery, mini-distillery, micro-distillery, or licensed representative/broker may not furnish any exterior advertising signs but may provide interior signs to the licensed retailer. The distillery, mini-distillery, or micro-distillery may advertise by billboards which display alcoholic liquors, wine or nonintoxicating beer, but may not identify any licensed retailer in or on the advertisement.

11.4.5. A distillery, mini-distillery, micro-distillery, or licensed representative/broker may not furnish things of value to the licensed retailer at less than the normal sale price, such as nonalcoholic mixers and pouring racks which the licensed retailer may market or sell in his or her business.

11.5. Paying for advertising, display, or distribution service. -- A distillery, mini-distillery, micro-distillery or licensed representative/broker may not provide a licensed retailer with free advertisement, exterior display or distribution services, or any similar types of services.

11.6. Quota sales. -- A licensed retailer may not be required to purchase any alcoholic liquors in order to purchase nonalcoholic liquors or other products from a distillery, mini-distillery, or micro-distillery.

11.7. Other requirements and licensed representative/broker requirements:

11.7.1. A distillery, mini-distillery, or micro-distillery, or its licensed representative/broker may not touch, disturb, or otherwise interfere with the product or displays of another distillery, mini-distillery, micro-distillery, or manufacturer.

11.7.2. No person except the licensed representative/broker of a distillery, mini-distillery, or micro-distillery may contact a licensed retailer, or any employee thereof, or enter a retail outlet for the purpose of:

11.7.2.a. Selling or offering to sell;

11.7.2.b. Soliciting, negotiating, or promoting the sale of alcoholic liquor or distilled spirits;

11.7.2.c. Conducting a survey, study, or similar activity pertaining to the sale, distribution, or availability of alcoholic liquors or distilled spirits.

11.7.2.d. Providing educational information, approved promotional material, and authorized samples at a liquor sampling at a freestanding liquor retail outlet or a mixed retail liquor outlet.

11.7.2.e. Observing and providing educational information at an ABCA approved event at a private club or at a private fair and festival.

11.7.3. Any person conducting the activities set forth in subsection 11.7.b. shall obtain a representative/broker’s license by completing the form provided by the Commissioner and paying a non-refundable fee of $100 per distillery, mini-distillery, micro-distillery, or manufacturer, as required by W. Va. Code §60-4-22.

11.7.3.a. Any licensed representative/broker who fails to meet the requirements in the West Virginia Code and the West Virginia Code of State Rules, shall be subject to suspension or revocation of its licenses, as determined by the Commissioner.

11.7.3.b. Any licensed representative/broker who is suspended or revoked may request a hearing on any suspension or revocation of its license.

W. Va. Code R. § 175-10-12 Advertising

12.1. General prohibition. -- All advertising of West Virginia product or alcoholic liquor which encourages intemperance, is lewd or obscene, induces minors to purchase, or tends to deceive or misrepresent, is prohibited. Federal law which provides guidelines relative to acceptable and prohibited advertising of alcoholic liquors must be followed.

12.2. Application. -- No person engaged in business as a producer, processor, licensed representative/broker, manufacturer (distillery, mini-distillery, or micro-distillery), bottler, importer, wholesaler, or retailer of alcoholic liquors or wine, directly or indirectly or through an affiliate, may publish or disseminate or cause to be published or disseminated in any billboard, newspaper, magazine or similar publication any advertisement of alcoholic liquors or wine, unless the advertisement is in conformity with this rule. This prohibition does not apply to the publisher of a newspaper, magazine or similar publication or the standardized outdoor advertising company which owns a billboard, unless such publisher or outdoor advertising company is engaged in business as a producer, manufacturer (distillery, mini-distillery, or micro-distillery), bottler, importer, wholesaler, or retailer of alcoholic liquors or wine, directly or indirectly or through an affiliate.

12.3. Mandatory statements.

12.3.1. Responsible advertiser. -- An advertisement for alcoholic liquors shall state the name and address of the producer, manufacturer (distillery, mini-distillery, or micro-distillery), bottler, importer, or wholesaler responsible for its publication.

12.3.2. Class, type, and distinctive designation. -- An advertisement for alcoholic liquors shall contain a conspicuous statement of the class and type or other designation of the product corresponding with the complete designation which appears on the brand label of the product.

12.3.3. Alcoholic content. -- An advertisement shall state the alcoholic content of the product advertised in the manner and form the information appears on the label.

12.3.4. Percentage of neutral spirits and name of commodity. -- An advertisement of distilled spirits (other than cordials, liqueurs, and specialties) produced by blending or rectification, if neutral spirits, shall state the percentage of neutral spirits used and the name of the commodity from which the neutral spirits have been distilled in substantially the manner and form in which the information appears on the labels of the product advertised. An advertisement of neutral spirits or of gin produced by a process of continuous distillation, shall state the name of the commodity from which the neutral spirits or gin have been distilled substantially in the manner and form in which the information appears on the label.

12.3.5. “Line” or “Brand” advertisements. -- If an advertisement that does not mention a specific product but merely refers to a class of distilled spirits such as “Whiskey” or refers to several classes of distilled spirits (such as “Whiskey,” “Brandy,” “Rum,” “Gin,” “Liquor,” etc.) marketed under a single brand, the only information required by this section (section 12.4) is the name and address of the responsible advertiser.

12.4. Lettering. -- Statements required by this rule to be stated in any written, printed, or graphic advertisement shall appear in lettering or type of a size, kind, and color sufficient to render them both conspicuous and readily legible. In particular:

12.4.1. Required information shall be stated against a contrasting background and in type or lettering that is at least the equivalent of eight point type.

12.4.2. Required information shall be stated as to appear to be a part of the advertisement and shall not be separated in any manner from the remainder of the advertisement.

12.4.3. Where an advertisement relates to more than one product, the required information shall appear in a manner as to clearly indicate the particular products to which it is applicable.

12.4.4. Required information may not be buried or concealed in unrequired descriptive matter or decorative designs.

12.5. Prohibited statements. -- Generally.

12.5.1. Restrictions. -- An advertisement may not contain:

12.5.1.a. Any statement that is false or misleading in any material particular. For example, the reproduction of medals or facsimiles of awards that were not given on a competitive or comparative basis is prohibited;

12.5.1.b. Any statement that is disparaging of a competitor's product. For example, an advertisement may not contain statements such as “Contains no neutral spirits or alcohol” or “This rum will not turn dark in the bottle;”

12.5.1.c. Any statement, design, device, or representation that is obscene, lewd, or indecent;

12.5.1.d. Any statement, design, device, or representation of, or relating to, analyses, standards, or tests, regardless of truth, which is likely to mislead the consumer; for example, an advertisement may not contain a statement such as “Analyzed by the laboratory and found to be pure and free from deleterious ingredients,” or “Tested and approved. Signed by the Research Institute”;

12.5.1.e. Any statement, design, device, or representation of, or relating to, any guaranty, regardless of truth, that is likely to mislead the consumer. However, nothing in this section prohibits the use of any enforceable guaranty in substantially the following form: “We will refund the purchase price to the purchaser if he is in any manner dissatisfied with the contents of this package.” (Blank to be filled in with the name of person making guaranty.)

12.5.1.f. Any statement that the product is produced, blended, made, bottled, packed, or sold under or in accordance with any authorization, law, or regulation of any municipality, county, state, federal, or foreign government unless the such statement is required or specifically authorized by the laws or regulations of such government; if a municipality, county, state, or federal permit number is stated, the permit number may not be accompanied by any additional statement relating thereto.

12.5.2. Statements inconsistent with labeling. -- An advertisement may not contain any statement concerning a brand or lot of distilled spirits that is inconsistent with any statement on the labeling;

12.5.3. Curative and therapeutic effects. -- An advertisement may not contain any statement, design, or device representing that the use of any distilled spirits has curative or therapeutic effects, if such statement is untrue in any particular or tends to create a misleading impression. For example, advertisements may not contain statements such as “___________ is good for you” or “Conducive to well-being;”

12.5.4. Place of origin. -- An advertisement may not represent that the distilled spirits were manufactured in, or imported from, a place or country other than that of their actual origin, or were produced or processed by one who was not in fact the actual producer.

12.5.5. Flags, seals, coats of arms, crests, and other insignia. -- No advertisement may contain any statement, design, device, or pictorial representation of, or relating to, or capable of being construed as relating to the armed forces of the United States, or of the American Flag, any state flag, or any emblem, seal, insignia, or decoration associated with any such flag or entity. No advertisement may contain any statement, device, design, or pictorial representation of or concerning any flag, seal, coat of arms, crest, or other insignia, likely to falsely lead the consumer to believe that the product has been endorsed, made, or used by, or produced under the supervision of, or in accordance with the specifications of the government, organization, family, or individual with whom such flag, seal, coat of arms, crest, or insignia is associated.

12.6. Prohibited statements. -- Distilled spirits.

12.6.1. Restrictions. -- An advertisement for distilled spirits may not contain:

12.6.1.a. The words “Bond,” “Bonded,” “Bottled In Bond” “Aged In Bond” or phrases containing these or synonymous terms, unless the words or phrases appear upon the label of the distilled spirits advertised and are stated in the advertisement in the manner and form as they appear upon the label; and

12.6.1.b. Statements of age. -- An advertisement for distilled spirits may not contain any statement, design, or device directly or by implication concerning age or maturity of any brand or lot of distilled spirits unless a statement of age appears on the label of the advertised product. When any statement, design, or device concerning age or maturity is contained in any advertisement, it shall include (in direct conjunction and with substantially equal conspicuousness) all parts of the statement concerning age and percentages, if any, which appear on the label. However, an advertisement for any whiskey or brandy which does not bear a statement of age on the label or an advertisement for rum that is four years or more old may contain general inconspicuous age, maturity, or other similar representations, e.g., “Aged In Wood,” “Mellowed In Fine Oak Casks.”

W. Va. Code R. § 175-10-13 Transportation

13.1. A distillery or mini-distillery located in the state of West Virginia may sell and ship alcoholic liquors for wholesale sales, which are for re-sale, outside the state of West Virginia, subject to other states’ or jurisdictions’ requirements. A micro-distillery is not authorized to sell and ship alcoholic liquors for wholesale sales, which are for re-sale, outside the state of West Virginia. A distillery, mini-distillery, or micro-distillery may not ship alcoholic liquors via U. S. mail or another mail or package service.

13.2. Transportation permits. -- Any person, including any common carrier hired by a manufacturer, distillery, mini-distillery, or micro-distillery who transports, for hire, any alcoholic liquors to be sold commercially in quantities in excess of one gallon within, into, or through the State of West Virginia, shall first give a surety bond, approved by the Attorney General as to form and execution, and by the Commissioner as to sufficiency, payable to the State of West Virginia in the penalty of $1,000.00 on condition that the person will exercise the privileges granted by the permit in conformity with the provisions of the Liquor Control Act and the rules of the Commissioner. A bonded person who defaults on condition of the surety forfeits to the state school fund the sum of $100.00 for each breach, recoverable by the ABCA upon motion with 10 days’ notice in any court having jurisdiction of the parties. Each person transporting alcoholic liquors, in addition to the bond aforesaid, shall pay the Commissioner an annual fee of $10.00 for the first permit and $1.00 for each duplicate permit issued. In the case of motor carriers for hire, a permit issued by the Commissioner under seal showing that the required bond has been given and the fee paid shall accompany the alcoholic liquors at all times during transportation. In the case of air carriers and rail carriers for hire, a permit issued by the Commissioner under seal showing that the required bond has been given and the fee paid shall be filed in the principal office of such carrier in this state. Any person holding a transportation permit who transports any alcoholic liquors in violation of this rule and the West Virginia Code is subject to all penalties available in the code for each violation. Further, any person holding a transportation permit who transports product for an unlicensed distillery, mini-distillery, or micro-distillery and who fails to verify that the distillery, mini-distillery, or micro-distillery is licensed in West Virginia prior to shipment is subject to all penalties available in the West Virginia Code for each violation.

13.3. Any distillery, mini-distillery, or micro-distillery who has a licensed representative/broker who is licensed under W. Va. Code §60-4-22 may, by virtue of his or her license, transport within West Virginia any sample bottles of alcoholic liquors labeled as “SAMPLE” for the brands represented by the licensed representative/broker that are deemed to be transported in connection with the purpose for which such license was granted without a transportation permit issued by the Commissioner.

13.4. A licensed distillery, mini-distillery, or micro-distillery may deliver or, upon picking up alcoholic liquors at the ABCA warehouse, may transport them to the distillery, mini-distillery, or micro-distillery in order to use the alcoholic liquors for either on-premises samples or for off-premises retail sales for personal consumption and not for resale. The receipt provided by the ABCA warehouse is the written approval provided by the ABCA.

13.5. All permits provided for in this rule shall be issued for the period of the calendar year, and the fee therefor shall not be prorated.

13.6. A person may transport in this state up to 10 gallons of alcoholic liquors not for resale. Any amount of alcohol to be transported that is in excess of 10 gallons requires prior written authorization of the Commissioner.

W. Va. Code R. § 175-10-14 Violations, Penalties and Hearings

14.1. A distillery, mini-distillery, micro-distillery or their employees, licensed representatives, or brokers may not:

14.1.1. Sell or permit the sale of more than 10 gallons of alcoholic liquors to a person for off-premises personal use and consumption, at one time, without approval of the Commissioner.

14.1.2. Sell, offer to sell, or permit the sale of any alcoholic liquor in other than the original package or container, except for on-premises distillery, mini-distillery, or micro-distillery’s samples or sales of liquor by the drink, when licensed as a private manufacturer club.

14.1.3. Sell, give or procure, or permit the sale, gift, or procurement of any alcoholic liquor for or to any person under the age of 21 or who is visibly intoxicated.

14.1.4. Permit the consumption of any alcoholic liquors on the distillery, mini-distillery, or micro-distillery’s licensed premises by any person, except for the distillery, mini-distillery, or micro-distillery’s on-premises samples or sales of liquor by the drink, when licensed as a private manufacturer club, to any person over the age of 21 or who is not visibly intoxicated.

14.1.5. Alter, change or misrepresent, or permit the alteration, change, or misrepresentation of the quality, quantity, or brand name of any alcoholic liquor.

14.1.6. Permit any person under age 18 to sell, furnish, transport, or give alcoholic liquor to any other person; provided further a licensee may employ a person who is less than 18 years of age, but at least 16 years of age, with the prior approval of the Commissioner, when selling liquor and such person must be supervised by a person 21 years of age or older.

14.1.7. Purchase or otherwise obtain its or any other alcoholic liquors in any manner other than that authorized in the West Virginia Code, West Virginia Code of State Rules, and ABCA policies and procedures.

14.1.8. Permit any person to break the seal on any package or bottle of alcoholic liquor, except for the limited purpose of providing its liquor samples or conducting on-premises sales of liquor by the drink when a distillery, mini-distillery, or micro-distillery is licensed as a private manufacturer club.

14.1.9. Permit any person other than a distillery, mini-distillery, or micro-distillery licensee, or a regular employee thereof, to unpack, shelve, arrange, shift, or otherwise manipulate bottles or other receptacles containing distilled spirits, except for the purpose of purchasing same.

14.1.10. Sell or permit the sale of its alcoholic liquors purchased from the Commissioner, via actual or constructive bailment, at a price which is less than 110% of the wholesale cost of the West Virginia product at retail to the public. For the purposes of determining the minimum price, the distillery, mini-distillery, or micro-distillery shall multiply the Commissioner’s wholesale cost of the product contained in the Quarterly Spirits Price List or the ABCA Tradeshow Catalog, available on the ABCA website at www.abca.wv.gov, by 110% (See also 175 CSR 1 and 175 CSR 5).

14.1.11. Sell or permit the sale of its alcoholic liquors on Easter Sunday and Christmas day or other than during the hours permitted for sale of alcoholic liquors, except for on-premises sales by the drink, when licensed as a private manufacturer club,.

14.1.12. Operate as licensed retail liquor outlets, thus these licensees may not:

14.1.12.a. Offer for sale, sell, or permit the sale of alcoholic liquors to private clubs, any private manufacturer club, or other ABCA licensees; and

14.1.12.b. Offer for sale, sell, or permit the sale of alcoholic liquors manufactured by another distillery, mini-distillery, micro-distillery, or other manufacturer, except when the licensed distillery, mini-distillery, or micro-distillery is licensed as a private manufacturer club. Any distillery, mini-distillery, or micro-distillery that is licensed as a private manufacturer club and that chooses to sell liquor not manufactured by the distillery, mini-distillery, or micro-distillery must purchase the other manufacturer’s liquor for the retail price at a licensed retail liquor outlet in its market zone or a contiguous market zone.

14.2. Violations of this section, this rule, or W. Va. Code §60-1-1 et seq., are subject to an assessment by the Commissioner of a civil penalty which shall not be more than $1,000.00 for each violation by a distillery, mini-distillery, micro-distillery, or their employee or a licensed representative/broker. Each violation shall constitute a separate offense. The Commissioner shall consider the distillery, mini-distillery, or micro-distillery’s history of previous violations, the appropriateness of such penalty to the size of such business, the gravity of the violations, and the demonstrated good faith of the distillery, mini-distillery, or micro-distillery charged in attempting to achieve rapid compliance after notification of the violation. Further, violations that necessitate a suspension in the interest of public safety, as determined by the Commissioner, where the public and or patrons’ safety is at risk may be conducted immediately by the Commissioner.

14.3. A civil penalty shall be assessed by the Commissioner only after giving at least 10 days’ notice to the licensed distillery, mini-distillery, or micro-distillery. Notice shall be in writing, shall state the reason for the proposed civil penalty and the amount, and shall designate a time and place for a hearing where the licensed distillery, mini-distillery, or micro-distillery may show cause why the civil penalty should not be imposed. Notice shall be sent by certified mail to the address for which the licensed distillery, mini-distillery, or micro-distillery was issued. The licensed distillery, mini-distillery, or micro-distillery may, at the time designated for the hearing, produce evidence on his or her behalf and be represented by counsel.

14.4. The hearing and the administrative procedures prior to, during, and following the hearing are governed by and shall be conducted in accordance with the provisions of W.Va. Code §29A-5-1 et seq.

14.5. Any person adversely affected by a final order entered following the hearing has the right of judicial review by the by the Intermediate Court of Appeals as set forth in W. Va. Code §51-11-4(a)(4): Provided, That in all other respects, such review shall be conducted in the manner provided in Chapter 29A of the West Virginia Code. The petition for the review must be filed with the court within 30 days following entry of the final order issued by the Commissioner. An applicant or licensee obtaining the review is required to pay the costs and fees incident to transcribing, certifying, and transmitting the records pertaining to the matter to the court.

14.6. The judgment of the court reviewing the order of the Commissioner is final unless reversed, vacated, or modified on appeal to the Supreme Court of Appeals in accordance with the provisions of W. Va. Code §29A-6-1 et seq.

W. Va. Code R. § 175-10-15 Revocation, hearing, and appeals

15.1. The Commissioner may revoke a license upon a finding that: (a) the a distillery, mini-distillery, micro-distillery, or licensed representative/broker is not a suitable person or involves unsuitable persons; (b) the place occupied by the distillery, mini-distillery, or micro-distillery is not a suitable place; (c) the distillery, mini-distillery, or micro-distillery has violated a provision of W. Va. Code §60-1-1 et seq., this rule, or any rule made by the Commissioner under the authority of W. Va. Code §60-1-1 et seq.; or (d) the distillery, mini-distillery, micro-distillery, or licensed representative/broker has failed to comply with the spirit and intent of W. Va. Code §60-1-1 et seq., by encouraging intemperance, the unlawful consumption of alcoholic liquors, or otherwise.

15.2. The Commissioner shall give the distillery, mini-distillery, micro-distillery, or licensed representative/broker at least 10 days’ notice prior to a revocation. The notice shall be in writing, state the reason for revocation, and designate a time and place when the distillery, mini-distillery, or micro-distillery may show cause why the license should not be revoked. Notice shall be sent by certified mail or other express mail to the current address for which the license was issued. The distillery, mini-distillery, or micro-distillery may, at the time designated for the hearing, produce evidence on his or her behalf and be represented by counsel. On the final revocation of a license or licenses the Commissioner shall immediately take over the inventory stocks of liquors possessed by the distillery, mini-distillery, or micro-distillery, and pay to the licensee the amount paid by him or her to the state for such stocks less the amount necessary to defray the costs incurred by the Commissioner in the revocation proceedings and hearing.

15.3. A final decision of the Commissioner granting or revoking, or refusing to grant or to revoke a license authorized by W. Va. Code §60-1-1 et seq., shall be subject to judicial review by the Intermediate Court of Appeals as set forth in W. Va. Code §51-11-4(a)(4) upon the appeal of a distillery, mini-distillery, micro-distillery, licensed representative/broker, or an applicant for a license, as applicable.

176CSR1

175CSR10

Series 11 Retail Enforcement of Select Plant-Based Derivatives and Derivative Products: Hemp and Kratom

W. Va. Code R. § 175-11-1 General

1.1. Scope. -- This legislative rule provides for the retail enforcement conducted by the WVABCA of Select Plant-Based Derivative Products: Hemp and Kratom sold at retail in the State of West Virginia.

1.2. Authority. -- W. Va. Code §11-16-23, §60-7-13; §19-12E-12; and §19-12F-1 et seq.

1.3. Filing Date. -- May 2, 2025.

1.4. Effective Date. -- May 15, 2025.

1.5. Sunset Date. -- This rule shall terminate and have no further force or effect on August 1, 2030.

W. Va. Code R. § 175-11-2 Definitions

2.1. "Alcohol Beverage Control Administration Commissioner" means the West Virginia Alcohol Beverage Control Administration Commissioner or his or her designees.

2.2. "Agriculture Commissioner" means the Commissioner of Agriculture or his or her designees.

2.3. "Contaminated" means as defined in W. Va. Code §19-12E-12 and W. Va. Code §19-12F-3.

2.4. "Department" or "Department of Agriculture" means the West Virginia Department of Agriculture.

2.5. "Final product" means as defined in W. Va. Code §19-12E-12 and W. Va. Code §19-12F-3.

2.6. "Grower" means as defined in W. Va. Code §19-12E-12 and W. Va. Code §19-12F-3.

2.7. "Hemp-derived cannabinoid" means as defined in W. Va. Code §19-12E-12.

2.8. "Hemp-derived cannabinoid product" or “hemp product” means as defined in W. Va. Code §19-12E-12.

2.9. "Kratom" means as defined in W. Va. Code §19-12F-3.

2.10. "Kratom product" means as defined in W. Va. Code §19-12F-3.

2.11. "Non-naturally occurring derivative" means as defined in W. Va. Code §19-12E-12.

2.12. "Processor" or "manufacturer" means a person or entity as defined in W. Va. Code §19-12E-12 and W. Va. Code §19-12F-3.

2.13. "Retailer" or "seller" means a person or entity who has obtained a permit from the Agriculture Commissioner that offers for sale or sells hemp-derived cannabinoids, hemp-derived cannabinoid products, kratom, or kratom products at retail or from a retail facility to persons for personal consumption.

2.14. " Retail sales" means as defined in W. Va. Code §19-12E-12, and the sale of kratom products in a commercial setting by a permitted retailer or seller as determined and set forth in rules promulgated by the Agriculture Commissioner.

2.15. “Tax Commissioner” means the Commissioner of the West Virginia State Tax Division or his or her designees.

2.16. “WVABCA” means West Virginia Alcohol Beverage Contral Administration or its commissioner.

Additional definitions may be referenced in the Agriculture Commissioner’s legislative rule 61 CSR 30 and the Tax Commissioner’s legislative rule 110 CSR 99.

W. Va. Code R. § 175-11-3 Retail enforcement authority

3.1. Pursuant to W. Va. Code §19-12E-12(d)(5), (i)(7), (j) and W. Va. Code §19-12F-4(g) and W. Va. Code §19-12F-8(i), the Agriculture Commissioner shall periodically provide the WVABCA an accurate updated list of registered hemp and kratom products that are legally registered for retail sale in West Virginia.

3.2. Pursuant to W. Va. Code §19-12E-12(d)(7), (i)(7), (j), and W. Va. Code §19-12F-4(e) and W. Va. Code §19-12F-8(g), the Agriculture Commissioner shall periodically provide the WVABCA an updated and accurate list of Agriculture Commissioner permitted hemp product retailers and kratom product retailers to the WVABCA.

3.2.1. The WVABCA will organize the provided list in section 3.2., by county and assign a permit number, if such information is not provided by the Agriculture Commissioner, and will provide the Agriculture Commissioner an editable copy of the revised list. The WVABCA requests that the Agriculture Commissioner provide all future lists in this same format but notating which hemp product retailers and kratom product retailers are newly added to the list and any retailers that were removed.

3.2.2. The permit number shall be used by WVABCA as reference to correlate the retail facility to a location, WVABCA license number, if applicable, and to complete administrative citations to be delivered to the Agriculture Commissioner.

3.3. Upon receiving periodic training from the Agriculture Commissioner, the WVABCA will work with the Agriculture Commissioner and the Tax Commissioner to conduct retail enforcement on the Agriculture Commissioner’s permitted hemp product retailers’ retail facilities and kratom product permitted retailers’ retail facilities.

3.4. The WVABCA’s retail enforcements shall include conducting underage hemp/kratom compliance checks in accordance with WVABCA Policy No. E-106 (and all Hemp/Kratom Compliance Check forms) and utilizing funds received W. Va. Code 19-12E-12(i)(8) and W. Va. Code §19-12F-7(i)(4) at the permitted retailer facilities.

3.5. The WVABCA will upon entering a permitted retailer’s retail facility check that it has its Agriculture Commissioner permit displayed, and if not displayed the WVABCA will note in its report.

3.6. The WVABCA may conduct buys of unregistered hemp products or unregistered kratom products utilizing funds received per W. Va. Code §19-12E-12(i)(8) and W. Va. Code §19-12F-7(i)(4) at a permitted retailer or an unpermitted retailer, but only with the assistance, supervision, and cooperation of state or local law enforcement.

3.7. Upon receiving training and assistance from the Agriculture Commissioner, the WVABCA will check for proper and approved labeling for hemp products and kratom products per W. Va. Code §19-12E-12(e) and (f), and W. Va. Code §19-12F-9.

W. Va. Code R. § 175-11-4 Retail enforcement citations and evidence

4.1. The WVABCA will conduct retail enforcement as set forth in section three, W. Va. Code §19-12E-12 and W. Va. Code §19-12F-1 et seq., at hemp product and kratom product retailers who will be cited if violations of 61 CSR 30, W. Va. Code §19-12E-12 and W. Va. Code §19-12F-1 et seq., occur at their retail facilities.

4.2. The WVABCA will complete administrative citations and provide the citations along with any seized evidence to the Agriculture Commissioner in order for the Agriculture Commissioner to apply the administrative sanctions set forth in 61 CSR 30, W. Va. Code §19-12E-12 and W. Va. Code §19-12F-1 et seq. Note, the administrative citations contain personal protected information regarding WVABCA agents and underage operatives, and this information should be redacted pursuant to any FOIA request per W. Va. Code §29B-1-4.

4.3. The WVABCA will transfer the evidence via an evidence chain of custody document, bag, or box to the Agriculture Commissioner upon delivering the administrative citations to the Agriculture Commissioner.

W. Va. Code R. § 175-11-5 Hearing and sanctions

5.1. The Agriculture Commissioner is solely responsible for levying administrative sanctions and conducting administrative hearings regarding retail enforcement as set forth in 61 CSR 30, W. Va. Code §19-12E-12 and W. Va. Code §19-12F-1 et seq.

5.2. As set forth in sub-section 4.2., the Agriculture Commissioner, if necessary, shall conduct administrative hearings for any permittee that objects to the administrative sanctions imposed by the Agriculture Commissioner as set forth in 61 CSR 30, W. Va. Code §19-12E-12 and W. Va. Code §19-12F-1 et seq.

5.3. The WVABCA will make all reasonable attempts to have its agents available to testify for any hearings scheduled in advance and with proper notice of the hearing.

5.4. Upon completion of a sanction or a hearing, the Agriculture Commissioner will reasonably notify the WVABCA about the sanction or outcome of the hearing, so the WVABCA may maintain accurate records and determine any additional sanctions or penalties for a WVABCA licensee.

W. Va. Code R. § 175-11-6 Memorandum of Understanding, Cooperative Enforcement, and Reports

6.1. If necessary, the Agriculture Commissioner, the Tax Commissioner, and the WVABCA may enter into a memorandum or memoranda of understanding to facilitate the enforcement of W. Va. Code §19-12E-12 and W. Va. Code §19-12F-1 et seq. Topics of the Agriculture Commissioner, the Tax Commissioner, and the WVABCA’s memorandum include the following:

6.1.1. To assist each other in enforcement of W. Va. Code §19-12E-12 and W. Va. Code §19-12F-1 et seq.;

6.1.2. To assist each other in training and cooperating with State and local law enforcement to develop a state-wide plan for implementing the provisions of W. Va. Code §19-12E-12 and W. Va. Code §19-12F-1 et seq.;

6.1.3. To confer among themselves and law enforcement about enforcement of W. Va. Code §19-12E-12 and W. Va. Code §19-12F-1 et seq., on a monthly basis; and

6.1.4. To jointly compile a report to be submitted to the Joint Committee on Government and Finance on or before January 1, 2025, as to actions undertaken to enforce W. Va. Code §19-12E-12 and W. Va. Code §19-12F-1 et seq., and the results.