Current through Register Vol. XLI, No. 50, December 13, 2024
Section 175-2-5 - Violations5.1. 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 § 60-7-1et seq. and W. Va. Code § 60-8-1et 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 § 11-16-1et 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; gambling or any slot machine, multiple coin console machine, multiple coin console slot machine, or device in the nature of a slot machine: 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 § 47-20-1et seq.; and charitable raffle games conducted by a duly licensed charitable or public service organization (or its auxiliaries), pursuant to W. Va. Code § 47-21-1et 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-1-1et 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; or5.1.1.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 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.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 private 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.5.2. Public nuisance. - If it is determined by law that any club which is licensed pursuant to W. Va. Code § 60-7-1et 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 § 11-16-1et 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; and5.3.4. Impose a monetary penalty not to exceed $1,000 for each violation, where revocation is not imposed.