W. Va. Code R. § 175-2-4

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 175-2-4 - Operation of Private Club

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 require proof of age by way of at least one of three documents certifying the age of the individual, one form of proof shall be either a valid driver's license, commercial driver's license or Department of Motor Vehicles identification card showing that the holder is at least 21 years of age. The following are considered to be valid proofs of age.

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

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

4.2.3. A West Virginia Department of Motor Vehicles identification card showing that the holder is at least 21 years of age.

4.2.4. A driver's license from another state 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 individual to be at least 21 years of age.

The failure to produce satisfactory proof of age upon demand entitles 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. 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 § 60-7-1et 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-1et seq. and W. Va. Code § 29-22C-1et seq. or W. Va. Code § 29-25-1et 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, $500 of 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, $1,000 of 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 Stores Payments For Purchases. - When any duly licensed private club purchases alcoholic liquors from a retail liquor store authorized by W. Va. Code § 60-3A-1et 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 duly 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 duly 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, hat 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 stores to private clubs forbidden. - A retail liquor store 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.

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.

4.14. Operation of a private fair and festival. - 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 pursuant to the private fair, festival, or other event;

4.15.3. 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: Provided, that no more than six licenses may be issued to the same person or entity in a calendar year.

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 services 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 § 11-16-1et seq.

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 § 60-8-1et seq.

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-1et seq. and W. Va. Code § 60-7-1et seq.

4.14.8. Utilize bona fide employees, independent contractors, or volunteers to sell, furnish, tender, or serve the nonintoxicating beer, nonintoxicating craft beer, wine, or liquor.

4.14.9. Consider permitting licensed representatives of a brewer, resident brewer, beer distributor, wine distributor, wine supplier, winery, farm winery, distillery, mini-distillery, and liquor broker representatives to attend a private fair and festival and discuss their respective products but such representatives shall not engage in the selling, furnishing, tendering, or serving of any nonintoxicating beer, nonintoxicating craft beer, wine, or liquor.

4.14.10. Be subject to all other provisions W. Va. Code § 60-7-1et 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.

4.15. 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 § 60-7-1et 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 multivendor 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 multivendor 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 § 60-7-1et 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. § 175-2-4