W. Va. Code R. § 175-4-14

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

Section 175-4-14 - Unlawful Acts

14.1. It shall be unlawful:

14.1.a. 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.b. For a licensee, his or her servants, agents or employees to sell, furnish or give wine to any person less than twenty-one 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 shall apply to sales of wine;

14.1.d. For a licensee to permit a person who is less than eighteen years of age to sell, furnish or give wine to any person. Further nothing shall prevent or be considered to prohibit any licensee from employing any person who is at least eighteen years of age to serve in any licensee's lawful employment. 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 eighteen years of age but at least sixteen years of age: Provided, That the person's duties may not include the sale or delivery of nonintoxicating beer or alcoholic liquors: Provided, however, That the authorization to employ persons under the age of eighteen years shall be clearly indicated on the licensee's license.;

14.1.e. 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 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.

14.1.f. for a retailer to sell un-sealed packages per W.Va. Code § 60-8-21;

14.1.g. 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.h. 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.i. 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.j. for any winery, farm winery, supplier or distributor to fail to license its representatives;

14.1.k. for any license to sell wine through a drive through (including, but not limited to a window, pass through or garage) on its licensed premises or in any manner not approved by the Commissioner;

14.1.l. 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.m. for a direct shipper to ship liquor or nonintoxicating beer; or

14.1.n. for a person or licensee to violate any reasonable rule of the commissioner;

14.2. It shall be unlawful for a supplier:

14.2.a. 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.b. 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.c. to possess, sell or deliver any wine that it has not registered per section 3.8 of this rule and pay the appropriate fees;

14.2.d. 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.e. to not pay the wine liter tax as required by W.Va. Code § 60-8-4;

14.2.f. to fail to maintain its bond as specified in W.Va. Code § 60-8-29; or

14.2.g. to violate any rule of the commissioner.

14.3. It shall be unlawful for a distributor:

14.3.a. 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.b. 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.c. his or her agents, servants or employees to transport or deliver wine to any retail licensee or to any licensee under W. Va. Code § 60-7-1 et seq. on Sunday or any general election day;

14.3.d. 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.e. 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.f. 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.g. 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;

14.3.h. to fail to maintain its bond as specified in W.Va. Code § 60-8-29; or

14.3.i. 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.a. 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.a.1. Revoke the licensee's license;

14.4.a.2. Suspend the licensee's license;

14.4.a.3. Place the licensee on probationary status for a period not to exceed 12 months; and/or,

14.4.a.4. Impose a monetary penalty not to exceed $1,000.00 for each violation where revocation is not imposed.

14.4.b. 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.c. If a supplier or distributor fails or refuses to keep in effect the bond required by W. Va. Code § 60-8-29, the commissioner shall automatically suspend the supplier or distributor's license until the bond required by W. Va. Code § 60-8-20 is furnished to the commissioner, at which time the commissioner shall vacate the suspension.

14.4.d. 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.

W. Va. Code R. § 175-4-14