Current through Register Vol. XLI, No. 50, December 13, 2024
Section 175-5-3 - Criteria, Limitation and Necessity for Retail Operations3.1. State stores. -- In general, the Commissioner may not operate state retail outlets. However, when circumstances prescribed by law exist, the Commissioner may open and operate a state retail outlet in a market zone provided the Board gives its prior consent.3.2. Application of Commissioner. -- When the Commissioner desires to operate a state retail outlet in a market zone, the Commissioner shall apply to the Board for consent to operate a state retail outlet in that market zone. Application shall be made by filing a petition with the chairman of the Board and forthwith mailing or otherwise delivering copies of the petition to the other members of the Board. This petition shall: 3.2.a. Identify the market zone in which the state store will be located, the Commissioner's reason(s) for opening a state store in that market zone including the facts upon which the Commissioner relies, the estimated cost of opening the state store, and the estimated period of time needed to open the store;3.2.b. Include a map of the market zone and the immediately adjacent market zones that provide state roads, the location of the proposed state retail outlet and the locations of retail outlets in the adjacent market zones; and3.2.c. Any other information the Commissioner desires to submit. Upon receipt of the petition, the Chairman of the Board, who is also the Secretary, shall set a date, acquire a meeting place, and conduct a meeting on such date at the prescribed place for purposes of considering the application.
3.3. Evidence that licensee is unable or unwilling to open a retail outlet in a market zone. 3.3.a. Failure of a licensee to open a retail outlet in a market zone and operate it in a commercially reasonable manner within ninety (90) days after June 30, 2000, and after June 30th for every ten year license period thereafter or the date the retail license is issued to the licensee, whichever occurs last, shall be prima facie evidence that the licensee is unable or unwilling to open a retail outlet in that market zone. In any proceeding before the Board on this issue, the burden of proof shall be on the licensee to show by clear and convincing evidence that the licensee is not unwilling and not unable to open a retail outlet in the market zone.3.3.b. For purpose of this section, the term "commercially reasonable manner" means that the retail outlet has regularly scheduled business hours on all days of the week [or at least four (4) days of the week] during which liquor in sealed containers may be sold to consumers under state law and that those hours reasonably meet expectations of consumers in the market zone desiring to purchase liquor in seal containers. In any proceeding before the Board on this issue, the burden of proof shall be on the licensee to show by clear and convincing evidence that the licensee is operating the retail outlet in a commercially reasonable manner.3.3.c. Evidence that a licensee is unable to open a retail outlet includes, but is not limited to: 3.3.c.1. Probative evidence that the licensee is unable to obtain financing necessary to open a retail outlet or is unable or unwilling to pay the installment payments required by the deferred payment financing option;3.3.c.2. Probative evidence that the licensee is unable to obtain liability and fire insurance for the retail outlet; or3.3.c.3. Probative evidence that the licensee is unable to obtain all necessary permits, stamps and licenses to open a retail outlet.3.3.d. Evidence that a licensee is unwilling to open a retail outlet includes, but is not limited to: 3.3.d.1. Probative evidence that the licensee failed to make reasonable efforts to obtain, by purchase or lease, a location for the retail outlet or, having a location, the licensee failed to construct a building, or prepare an existing building, to house a retail outlet to operate either a Class A retail license or a Class B retail license.3.3.d.2. Probative evidence that the licensee failed to make reasonable efforts to: 3.3.d.2.A. Apply for or obtain financing for the retail outlet;3.3.d.2.B. Interview or hire employees for the retail outlet;3.3.d.2.C. Apply for or obtain fire and liability insurance for the retail outlet;3.3.d.2.D. Apply for all necessary certificates, licenses, permits or stamps to do business at a retail outlet including, but not limited to, the basic permit and retail and wholesale stamps issued by the TTB and a business registration certificate issued by the Tax Commissioner.3.4. Pending Litigation. -- Whether the operation of any retail outlet in the market zone is prevented by a matter in controversy pending judicial adjudication that will continue for such duration that the opening of a state retail outlet is necessary to meet reasonable consumer expectations regarding the availability of liquor in sealed containers is a fact-specific and case-specific issue to be decided by the Board which does not lend itself to governance by a uniform code.3.5. Reasonable consumer expectations. -- Evidence that liquor in sealed containers is not reasonably available to consumers residing in a market zone in sufficient quantities to service consumer demand includes, but is not limited to: 3.5.a. A resolution filed with the Commissioner adopted upon majority vote of the county commission in whose jurisdiction the market zone is located, in whole or in part, finding that liquor in sealed containers is not reasonably available to individuals residing in that market zone and requesting the Commissioner to open a state store.3.5.b. A resolution filed with the Commissioner adopted upon majority vote of the governing body of a municipal corporation located, in whole or in part, in a market zone, finding that liquor in sealed containers is not reasonably available to individuals residing in the market zone and requesting the Commissioner to open a state store.3.5.c. A petition for a state store filed with the Commissioner signed by twenty-five percent (25%) or more of the individuals residing in voting precincts [or magisterial districts] located, in whole or in part, in the market zone based upon the results of the most recently completed decennial census conducted by the United States government.3.5.d. A petition for a state store filed with the Commissioner signed by a majority of the private clubs located in the market zone.3.6. When there is no retail outlet operating in a market zone because the current licensee is unwilling or unable to operate a retail outlet in that market zone and the Commissioner receives a resolution or petition filed under section 3.5 of this rule, the Commissioner shall forthwith mail or otherwise deliver a copy of the resolution or petition to each member of the Board. The chairman of the Board, after consultation with the Commissioner, shall then schedule a meeting of the Board to consider the resolution or petition. At this meeting, the Commissioner shall present the Board with the Commissioner's preliminary assessment of the situation including, but not limited to:3.6.a. Whether the absence of any operating retail outlet in a market zone is due to the current licensee or licensees' inability or unwillingness to operate a retail outlet, or is prevented by a matter in controversy pending judicial adjudication that will continue for some duration and the facts upon which the Commissioner relies;3.6.b. The estimated cost of setting up and operating a state store in the market zone;3.6.c. The estimated period of time necessary to set up the state store and begin its operation;3.6.d. The estimated period of time the state store might be in operation before a retail outlet is opened in that market zone by a licensee;3.6.e. The Commissioner's evaluation of the assessment or claim that liquor in sealed containers is not reasonably available to individuals residing in the market zone;3.6.f. A map showing the boundaries of the market zone, municipalities located in whole or in part in the market zone, the location of retail outlets in market zones adjacent to the market zone for which the resolution or petition was filed, and state roads located in the market zone for which the petition was filed and in adjacent market zones;3.6.g. Any other information the Commissioner believes to be relevant; and3.6.h. Any information the Board or the chairman may request prior to the meeting.3.7. At the meeting of the Board called to consider a resolution or petition filed under section 3.5, the Board may, upon majority vote:3.7.a. Direct that one or more members of the Board, or the entire Board, hold a public hearing in the market zone to solicit public comments on whether or not liquor in sealed containers is reasonably available to individuals residing in that market zone. Notice of the public hearing shall be published in the State Register at least twenty (20) days before the day of the public hearing;3.7.b. Act upon the petition or resolution;3.7.c. Defer action on the petition or resolution;3.7.d. Request additional information from the Commissioner, the person who filed the resolution or petition with the Commissioner or any interested person who appeared at the public meeting; or3.7.e. Take any other action within the power of the Board.3.8. In the event the Board approves and consents to the Commissioner's application to operate a state store in a market zone, the Commissioner shall, as soon as practicable after a licensee opens a retail outlet in that market zone, discontinue operating that state store as provided in W. Va. Code § 60-3A-3.