Current through Register Vol. XLI, No. 50, December 13, 2024
Section 175-4-2 - DefinitionsDefinition 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.a. Any label, affixed to a container of alcoholic liquors or any individual covering, carton or other wrapper of the container, or2.1.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" means ethyl alcohol, whatever its origin, and includes synthetic ethyl alcohol but not denatured alcohol.2.3. "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 does not include wine with an alcohol content of fourteen percent (14%) or less by volume, nonintoxicating beer or nonintoxicating beverages.2.4. "Alcohol Beverage Control Commissioner" or "ABCC" or "Commissioner" means the West Virginia Alcohol Beverage Control Commissioner (Administrator) or his or her designee.2.5. "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 (3) 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 twelve (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 twelve (12) months period next preceding the year or part thereof for which licensure is sought.2.6. "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 (3) 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 twelve (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 twelve (12) month period next preceding the year or part thereof for which licensure is sought.2.7. "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.2.8. "Case lot" means a complete case of distilled spirits.2.9. "Commissioner" means the West Virginia Alcohol Beverage Control Commissioner or his or her designee.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 (2) cases of wine per month directly to an adult West Virginia resident who is twenty-one 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 West Virginia Code § 60-8-1et 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 twenty-four percent (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.a. 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 clubs or wine specialty shops;2.13.b. sells or distributes nonfortified desert wine, port, sherry and madeira wines to wine specialty shops, private wine bed and breakfasts, private wine restaurants, private wine spas, private clubs or retailers under the authority of W. Va. Code § 60-8-1et seq. and actually maintains a warehouse in this state for the distribution of wine.2.14. "Farm winery" means an establishment which:2.14.a. Manufactures in any year no more than fifty thousand gallons of2.14.a.1. Table wine and/or nonfortified dessert wine exclusively by natural fermentation from grapes, other fruits, honey or other agricultural products containing sugar;2.14.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; or2.14.a.3. Any combination of subdivisions 1 and 2 of this subsection;2.14.b. Grows or produces at least twenty-five percent of the raw products used to make wine on the premises of the farm winery; and2.14.c. Imports no more than twenty-five percent of the raw products used to make the wine from any source outside this state.2.15. "Food or a meal" means food served and provided by a licensee which totals, excluding beverage purchases, taxes, gratuity or other fees, at least fifteen dollars.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.a. 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.c. Tobacco and tobacco products, and other products associated with the use of tobacco; and2.17.d. 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. 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 fourteen and one-tenths percent (14.1%) and not more than sixteen percent (16%).2.19. "Grocery Store" means any retail establishment, commonly known as a grocery store, supermarket or delicatessen, 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 three thousand dollars and an average monthly inventory (excluding inventory of wine) of not less than three thousand dollars. The term "grocery store" includes 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 (excluding sales of wine) of not less than three thousand dollars and an average monthly inventory (excluding inventory of wine) of not less than three thousand dollars.2.20. "Immediate family" means and includes, but is not necessarily limited to: 2.20.a. 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;2.20.b. 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;2.20.c. 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.2.21. "Importer" means a person who brings or carries goods from a foreign country for the purpose of sale in this country.2.22. "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.2.23. "Licensed retailer" means a person including, but not limited to: grocery stores, certain private wine restaurants and certain private clubs licensed in accordance with W. Va. Code § 60-8-3(i) and (k); 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, 60-3A or 60-8 by the Commissioner to sell wine at retail to the public for off-premises consumption.2.24. "Manufacture" means to distill, rectify, ferment, brew, make, mix, concoct, process, blend, bottle or fill an original package with any alcoholic liquor or wine.2.25. "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.2.26. "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.2.27. "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 or consummated outside the corporate limits of any municipality under the provisions of W. Va. Code § 60-3-9d.2.28. "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 nine and six-tenths percent (9.6%) of alcohol by weight, or twelve percent (12%) 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 § 60-1-1et seq. does not include or embrace nonintoxicating beer nor any of the beverages, products, mixtures or preparations included within this definition.2.29. "Original package" means any closed or sealed container or receptacle used for holding alcoholic liquor or wine.2.30. "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.2.31. "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.2.32. "Private club" means a corporation or association licensed as a private club in accordance with West Virginia Code article § 60-7-1et seq. and § 60-8-1et seq.2.33. "Private wine bed and breakfast" means any business, such as a hotel, motel, or other establishment properly zoned in accordance with local ordinances, with the sole purpose of providing, in a residential or country setting, lodging and meals and which: 2.33.a. Is a partnership, limited partnership, corporation, unincorporated association or other business entity;2.33.b. Provides meals on its premises to members and their guests as part of its general business purpose;2.33.c. Is licensed under the provisions of article eight, chapter 60 of the West Virginia Code to serve wine on the premises to its members and their guests in conjunction with the serving of food or meals; and2.33.d. 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.2.34. "Private wine restaurant" means 2.34.a. a business the principal purpose of which is serving meals on its premises to members and their guests and which: 2.34.a.1. Is a partnership, limited partnership, corporation, unincorporated association or other business entity;2.34.a.2. Is licensed under the provisions of article 8, chapter 60 of the West Virginia Code to serve wine on its premises to members and their guests in conjunction with the serving of food or meals; and2.34.a.3. Admits only duly elected and approved dues paying members and guests in the company of a member, and does not admit the general public.2.34.b. A private club that satisfies the requirements of paragraphs 1, 2 and 3, subdivision a. of this subsection shall be considered a private wine restaurant.2.35. "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:2.35.a. Is a partnership, limited partnership corporation, unincorporated association or other business entity;2.35.b. Provides meals on its premises to its members and their guests as part of its general business purpose;2.35.c. Is licensed under the provisions of article 8, chapter 60 of the West Virginia Code 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; and2.35.d. 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.2.36. "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 Chapter 60 of W. Va. Code to sell alcoholic liquors for consumption on the premises.2.37. "Retail liquor store" means a store established and operated under the authority of W. Va. Code §60-3 or W. Va. Code §60-3A for the sale of alcoholic liquor in the original package for consumption off the premises.2.38. "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.2.39. "Selling" includes solicitation or receipt of orders, possession for sale, or possession with intent to sell.2.40. "Soft drink" means any product subject to taxation pursuant to W. Va. Code §11-19.2.41. "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.2.42. "Supplier" means any manufacturer, producer, processor, winery, farm winery, national distributor or other supplier of wine which sells or offers to sell or solicits or negotiates the sale of wine to any licensed West Virginia distributor.2.43. "Varietal wine" means any wine labeled according to the grape variety from which such wine is made."2.44. "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.2.45. "Wine" means any alcoholic beverage, including table wine, 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 article sixteen, chapter eleven of the West Virginia Code. For purposes of this rule, "wine" includes wine coolers and similar beverages containing not less than one-half of one percent (.5%) nor more than seven percent (7%) alcohol by volume(See Section 2.3. for alcohol content percentage).2.46. "Wine accessories" means any product or item directly associated with the use and consumption of wine, e.g.: (5) books, magazines and other publications devoted principally to foods and wines, (7) items or products similar in nature and/or use to any of the foregoing.2.47. "Winery" means an establishment where wine is manufactured or prepared.2.48. "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 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.2.49. "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: 2.49.a. Maintains a representative number of wines for sale in his or her inventory of which not less than fifteen percent (15%) are vintage of or vintage-dated wine by actual bottle count; and2.49.b. 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 twenty-two percent (22%) alcohol by volume, which have been matured in wooden barrels or casks.2.50. "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.