W. Va. Code R. § 175-4-5

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

Section 175-4-5 - Licensed Retailers

5.1. Licensure application; form. -- The application for licensure as a licensed retailer shall be made a form designated "Application for Retail Wine License," Alcohol Beverage Control Commissioner Form ABCC-WS-2.

5.2. Licensure application; content. -- The application for licensure as a licensed retailer shall contain and include the following:

5.2.a. The name and address of the applicant and shall state whether the applicant is an individual, corporation, partnership, association or other business entity;

5.2.b. The business trade name of the applicant;

5.2.c. The exact location of the business establishment;

5.2.d. 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.e. The date upon which the applicant began the operation of the business;

5.2.f. 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.g. 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.h. 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.i. 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.j. If the applicant is an individual, whether the applicant is a citizen of the United States, and a bona fide resident of the State of West Virginia and the length of such residence and whether the applicant has attained the age of eighteen (18) years;

5.2.k. 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 the age of eighteen (18) years;

5.2.l. 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 the age of eighteen (18) years;

5.2.m. Whether the applicant or any partner, member, manager, officer, director or person owning twenty percent (20%) or more of the stock or beneficial interest in the applicant:

5.2.m.1. 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.m.2. 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.m.3. 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.n. 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 twenty percent (20%) or more of the stock or beneficial interest in the applicant;

5.2.o. Whether the business premises of the applicant are located within an incorporated municipality or within one (1) mile of the corporate limits of one (1) or more incorporated municipalities, and, if so, the name of each municipality;

5.2.p. Whether the applicant is licensed either as a private club under the provisions of W. Va. Code § 60-7-1et seq., or as either a Class A nonintoxicating beer retailer or a Class B nonintoxicating beer retailer under the provisions of W. Va. Code § 11-16-1et seq.;

5.2.q. 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 three thousand dollars ($3,000) and whether the average monthly inventory, exclusive of wines, exceeds three thousand dollars ($3,000);

5.2.r. Background checks. The Commissioner shall conduct background investigations for the purpose of determining whether an applicant 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 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 private club license pursuant Article 7, Chapter 60 of the W. Va. Code. The applicant will complete and submit West Virginia Alcohol Beverage Control Administration Release of Information and Waiver of Confidentiality of Records Form ABCA-Lic.RIWCR.2 to the Commissioner. Applicant will complete and submit a full set of fingerprints to facilitate a criminal background check and the ABCC 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 ABCC. The applicant will reimburse the ABCC for all fees or charges that are incurred as a result of the investigation; and

5.2.s. Such other information as the Commissioner may require.

5.3. Licensure application; signature and acknowledgement required. -- Each application shall be signed by the applicant, 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 twenty percent (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 annual 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.a. If the application is for licensure as a retailer or wine specialty shop is for less than an entire fiscal year, then such fee shall be proportionate to the remainder of such year according to the date of application, as follows:

5.5.a.1. If the application is made at any time from July 1 through December 31, the fee shall be the full annual fee, or one hundred fifty dollars ($150) for a retailer license or two hundred fifty ($250) dollars for a wine specialty shop license.

5.5.a.2. If the application is made at any time from January 1 through June 30, the fee shall be one half (1/2) of the annual fee, or seventy-five dollars ($75) for a retailer license or one hundred twenty-five ($125) dollars for a wine specialty shop license;

5.5.b. Fees shall be payable to the West Virginia Alcohol Beverage Control Commissioner by certified check, cashier's check or money order.

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 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, who;

5.7.a. Submits an application for licensure that containing a false statement;

5.7.b. 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 twenty percent (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.b.1. Is not twenty-one (21) years of age or older;

5.7.b.2. 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.b.3. 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.b.4. 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.b.5. Is not a person of good moral character or repute;

5.7.b.6. 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.b.7. 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.b.8. Has maintained a noisy, loud, disorderly or unsanitary establishment;

5.7.b.9. Has demonstrated, either by his or her police record or by his or her record as a former licensee under W. Va. Code chapter 60, a lack of respect for law and order;

5.7.b.10. Is unable to speak, understand and read the English language in a reasonably satisfactory manner;

5.7.b.11. Is a person to whom alcoholic beverages may not be sold under the provisions of W. Va. Code chapter 60;

5.7.b.12. Has the general reputation of drinking alcoholic beverages to excess or is addicted to the use of narcotics;

5.7.b.13. Is physically unable to carry on the business or has been adjudicated an incompetent; or

5.7.b.14. Is an officer or employee of the Alcohol Beverage Control Commissioner.

5.7.c. 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.a. 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 twenty percent (20%) or less thereof, the Commissioner shall be notified in writing by the retailer with respect thereto within ten (10) days next succeeding such transfer. If there is a change in the beneficial ownership in excess of twenty percent (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.b. 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, the provisions of chapter 60 of the Code 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 thirty (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 thirty (30) day requirement upon request of the affected licensed retailer.

5.10. Licensure of licensed retailer as private club or Class A nonintoxicating beer retailer.

5.10.a. No person licensed as a private club 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 or Class A nonintoxicating beer retailer establishment.

5.10.b. This rule may not be construed to prohibit the holder of a private club 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 or Class A nonintoxicating beer retailer establishment.

5.11. Connection between licensed retailer and private club 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 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.

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 so to do by the Commissioner for that purpose.

5.13. Transfers of wine between retailers prohibited. -- A licensed retailer who operates more than one (1) licensed retail establishment may transfer wine from one (1) 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 shops 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 than fifteen percent (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 twenty-two percent (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.

5.16. Packaging of wine sold after purchase required. -- All wine sold by any licensed retailer, private wine restaurant or private club licensed to sell at retail shall be placed in a paper bag or container sufficient to hold the wine purchased prior to delivery of such wine to the customer. No licensee shall permit or allow wine to be carried from the licensed premises by any customer unless it has been placed in a paper bag or container.

5.17. 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.

5.18. 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.

W. Va. Code R. § 175-4-5