W. Va. Code R. § 175-4-6

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

Section 175-4-6 - Private Wine Restaurant

6.1. Licensure application; form. -- The application for licensure as a private wine restaurant shall be made upon forms designated "Application for Private Wine Restaurant," Alcohol Beverage Control Commissioner Form ABCC-WS-5.

6.2. Licensure application; content. -- The application shall contain and include the following:

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

6.2.b. The name, address, date of birth and length of West Virginia residency of the manager or steward;

6.2.c. The complete description, including photographs and a diagram of every room, of the proposed private wine restaurant;

6.2.d. The name and address of the property owner, and if the property is leased, the expiration date of the lease;

6.2.e. Verification that monthly sales of food, exclusive of wine and nonintoxicating beer, exceed twenty-five hundred dollars ($2,500), and if the restaurant is not yet in operation, verification that such monthly sales will exceed twenty-five hundred dollars ($2,500);

6.2.f. Verification that the place of business conforms to health and fire laws, rules or regulations and zoning ordinances;

6.2.g. Whether the premises is located within municipal boundaries, within one (1) mile of municipal boundaries, or within one (1) mile of the boundaries of two (2) or more municipalities and if so, the names of the municipalities;

6.2.h. Whether the premises is currently licensed as a Class A Nonintoxicating Beer Retailer;

6.2.i. If the applicant is an individual, whether the or she has attained the age of eighteen (18) years;

6.2.j. If the applicant is a partnership, association or other business entity, as to each member, whether such member has attained the age of eighteen (18) years;

6.2.k. If the applicant is a corporation, whether the person or persons who are or will be conducting or managing the business of the corporation have attained the age of eighteen (18) years;

6.2.l. 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 has:

6.2.l.1. Been convicted of a felony or other crime involving moral turpitude within three (3) years next preceding the filing date of the application;

6.2.l.2. 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

6.2.l.3. Had a 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;

6.2.m. If the applicant is a firm, partnership or association, the names, addresses, residence and length thereof and percentage of ownership of all persons having an ownership interest of twenty percent (20%) or more in the applicant; and

6.2.n. If the applicant is a corporation, the names, addresses and corporate title of all officers, and the name, address and age of each person having twenty percent (20%) or more of the stock or beneficial interest in the applicant.

6.3. Background checks. The Commissioner shall conduct background investigations for the purpose of determining whether an applicant for a private wine restaurant'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 private club 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 wine restaurant license pursuant article 7, chapter 60 of the W. Va. Code. The applicant will submit West Virginia Alcohol Beverage Control Administration Release of Information and Waiver of Confidentiality of Records Form ABCA-Lic.RIWCR.2 for this purpose. The applicant will also 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 Alcohol Beverage Control Commission. The applicant will reimburse the ABCC for all fees or charges that are incurred by the ABCC for the background investigation; and any other information as the Commissioner may require.

6.4. Licensure application; signature and acknowledgement required. -- Each application shall be signed by the applicant, made under oath and acknowledged or verified.

6.4.a. In the case of a partnership, the application shall be signed by each of the partners.

6.4.b. 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.

6.4.c. In the case of a voluntary association, each member of the governing board shall sign the application.

6.4.d. In the case of a corporation, the president or vice president of the corporation shall sign the application.

6.5. Corporate charter, partnership agreement or association bylaws required. -- A corporation applying for licensure as a private wine restaurant shall furnish with its application a copy of its corporate charter, including any amendments thereto. A partnership, limited partnership or association applying for a license shall provide a copy of the partnership agreement or a copy of the association's bylaws.

6.6. Fees.

6.6.a. The annual fee for a private wine restaurant license is two hundred fifty dollars ($250).

6.6.a.1. If the application is filed at any time from July 1 through December 31, the applicant shall pay the full annual fee, or two hundred fifty dollars ($250).

6.6.a.2. If the application is filed at any time from January 1 through June 30, the applicant shall pay one half (1/2) of the annual fee, or one hundred twenty-five dollars ($125).

6.6.b. The annual fee for a private wine restaurant license, that maintains on its premises an appropriate supply of wine to conduct its operations and that selects the option of selling sealed, never consumed bottles of wine for off premises consumption to customers who have purchased food or a meal provided that no more than one bottle per each person twenty-one years of age or older, as verified (checking proper identification) by the private wine restaurant or qualifying private club, is one hundred dollars ($100), regardless of when the application is filed.

6.6.c. 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.

6.6.d. The fees imposed by this subsection shall accompany the application and are payable to the Commissioner by certified check, cashier's check or money order.

6.7. Investigations. -- Upon receipt of an application for licensure as a private wine restaurant and of the fee, bond and other documents required to be provided with such application, the Commissioner shall make a thorough investigation to determine, among other things, whether the applicant and any location and premise to be operated by the applicant qualify for licensure and whether granting a license will adversely affect the public welfare, health and morals.

6.8. Refusal of license. -- No license may be issued to any applicant who;

6.8.a. Submits an application for licensure containing any false statement;

6.8.b. Is affirmatively shown to be not a suitable person in the community or communities in which it operates or will operate. The Commissioner may refuse to grant any license if he or she has reasonable cause to believe that the applicant, any partner, member, corporate officer, director or manager on the application, shareholder on the application 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:

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

6.8.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;

6.8.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;

6.8.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;

6.8.b.5. Is not a person of good moral character or repute;

6.8.b.6. Is not the legitimate owner of the business proposed to be licensed, or other persons have ownership interests in the business which have not been disclosed;

6.8.b.7. Does not possess or has not demonstrated sufficient financial responsibility to adequately meet the requirements of the business proposed to be licensed;

6.8.b.8. Has maintained a noisy, loud, disorderly or unsanitary establishment;

6.8.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;

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

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

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

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

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

6.8.c. Fails to satisfy the requirements of the liquor laws or the rules or regulations of either this state, other states or of the United States.

6.9. License not transferable.

6.9.a. A license issued to a private wine restaurant is valid only for the person, firm or corporation named thereon and only for the premises for which the license was 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 licensee shall notify the Commissioner in writing of any change in beneficial ownership within ten (10) days next succeeding such transfer. If there is a change in the beneficial ownership in excess of twenty percent (20%), then such license shall be voided and the licensee must make application for a new license.

6.9.b. If there is any transfer in the beneficial ownership of any interest in a private wine restaurant the new owner of the beneficial interest must satisfy all of the requirements of the laws of the United States and any rules or regulations promulgated pursuant thereto, and of the laws, rules or regulations of the State of West Virginia.

6.10. Change of location. -- A licensed private wine restaurant which desires or intends to change the location of the premises for which the license was issued prior to the renewal of the license shall notify the Commissioner in writing at least thirty (30) days before the date of proposed relocation. The relocation may occur only upon the written approval of the Commissioner. In the event of flood or fire, the Commissioner may waive the thirty (30) day notice upon request of the affected licensee.

6.11. Licensure of private wine restaurant as private club or Class A nonintoxicating beer retailer.

6.11.a. No person licensed as a private club may be issued a private wine restaurant license if the business is to be conducted upon the same premises as the private club. However, a private wine restaurant may also be licensed as a Class A retail dealer in nonintoxicating beer. This rule does not prohibit the holder of a private club license from holding or being a part owner in any private wine restaurant whose business premises are totally separate, distinct and apart from the premises of the private club to the extent as provided in the following subsection.

6.11.b. Connection between private wine restaurant and private club prohibited. -- In the event a licensed retailer, private wine bed and breakfast, private wine restaurant, or private wine spa applicant is located within the same building or structure as a licensed private club, there may be no internal interconnection or door between the premises of the licensed retailer, private wine bed and breakfast, private wine restaurant or private wine spa and the premises of the licensed private club.

6.12. Transportation of wine by private wine restaurant. -- A private wine restaurant may not transport any wine unless the licensee has been issued a transportation permit by the Commissioner.

6.13. Transfers of wine between retailers prohibited. -- A person who operates more than one (1) private wine restaurant, private wine bed and breakfast, or private wine spa may transfer wine from one (1) such licensee to another private wine restaurant, private wine bed and breakfast or private wine spa. However, a private wine restaurant may not transfer, sell or convey wine to a licensed retailer or to a private wine restaurant, private wine bed and breakfast, or private wine spa licensed to another person. A private wine restaurant may purchase wine only from a distributor licensed pursuant to W. Va. Code § 60-8-1et seq., or a farm winery licensed pursuant to W. Va. Code § 60-8-1 et seq.

6.14. Charts.

6.14.a. Blood alcohol chart. -- Each private wine restaurant 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.

6.14.b. Fetal alcohol syndrome chart. -- Each private wine restaurant 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.

6.15. Recork and reseal requirements. -- Each licensed private wine restaurant may sell and serve wine for consumption on the premises of the licensee and recork and reseal partially consumed wine when such sale accompanies the serving of food or a meal to its members and their guests, if the licensee:

6.15.a. Has verified, by checking proper identification, that the member or guest purchasing the wine is over twenty-one years of age so as to consume the wine and recork or reseal the partially consumed wine bottle and carry it off premises;

6.15.b. Uses a one-time tamper resistant cork, seal, or bag approved by the Commissioner (with the Commissioner maintaining a list of approved tamper resistant corks, seals, or bags at his offices) to secure the partially consumed wine before the wine is taken off the licensee's premises, and affixes the receipt to the sealed bottle or sealed bag to prevent the partially consumed wine from opening while in transit;

6.15.c. Recorks, seals or bags no more than two separate bottles of partially consumed wine in conjunction with serving of food or a meal to its members and their guests for consumption off premises; and

6.15.d. Has provided the purchaser with food or a meal which the total price was, excluding beverage purchases, taxes, gratuity or other fees, at least fifteen dollars.

W. Va. Code R. § 175-4-6