W. Va. Code R. § 175-5-31

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

Section 175-5-31 - Revocation of License For Failure to Operate Retail Outlet & Forfeiture of Retail Outlet for Failure to Operate Retail Outlet

31.1. Revocation. -- The Commissioner may revoke a Class A retail license if the licensee fails to operate a freestanding liquor retail outlet authorized under the license and may revoke a Class B retail license if the licensee fails to operate a mixed retail liquor outlet authorized under the license.

31.1.a. The Commissioner may revoke a retail licensee who fails to meet the requirements of section 9.

31.1.b. The Commissioner may revoke a retail licensee who fails to meet the requirements of section 10.

31.1.c. The Commissioner may revoke a retail licensee who fails to meet the requirements of this rule and the code.

31.2. Disqualification of current licensee whose license is revoked. -- When a license is revoked under W. Va. Code § 60-3A-27a(a), the Commissioner may not accept the bid of the person who has had a license revoked, or of a related person, when the license is offered for bid following the revocation. As used in this subsection, a bidder is a "related person" when the relationship between the bidder and the person whose license was revoked is such that the latter indirectly owns or controls the bidder under the provisions set forth in section 4 of this rule.

31.3. Procedural due process. -- A revocation of a Class A retail license or Class B retail license under W. Va. Code § 60-3A-27a is subject to the provisions for notice, hearing and judicial review prescribed in W. Va. Code § 60-3A-28.

31.4. Forfeiture of authorization to operate retail outlet. -- When a person operates a retail outlet authorized under a Class A retail license but fails to operate another retail outlet authorized as a separate license, the Commissioner may, after employing criteria prescribed by the Board, reduce the number of retail outlets the person is authorized to operate by the number not being operated. As used here, "failure to operate a retail outlet" includes, but is not limited to:

31.4.a. Total failure to open and operate a retail outlet within ninety (90) days after July 1, 2000, and July 1^st for every ten year license period thereafter or the day the person is awarded the license, whichever day occurs last;

31.4.b. Failure to reopen the retail outlet within 90 days after it is closed, unless the closure was due to fire, flood or other act of God, war, riot, or other catastrophe as to which negligence or willful misconduct on the part of the licensee or a person under the control of the licensee was not the proximate cause, unless the reopening is prevented by a matter in controversy pending judicial adjudication on or before the 60th day;

31.4.c. Failure to reopen the retail outlet within 180 days after it was closed due to fire, flood or other act of God, war, riot, or other catastrophe as to which negligence or willful misconduct on the part of the licensee or a person under the control of the licensee was not the proximate cause, unless the reopening is prevented by a matter in controversy pending judicial adjudication on or before the 180th day; or

31.4.d. Failure to operate a retail outlet in a commercially reasonable manner as defined in section 3 of this rule.

Example 1. -- The holder of a Class A license authorizing the operation of two retail stores opens the second retail outlet but operates it only six hours per week.

31.5. Issuance of Class B license. -- The Board may authorize the Commissioner to issue, subject to the bid requirements of W. Va. Code § 60-3A-1, et seq., a Class B license for each retail outlet for which authority to operate is forfeited under this section of this rule. The Board shall set a minimum bid for each Class B license.

31.6. Procedural due process. -- A reduction in the number of retail outlets that may be operated by the holder of a Class A retail license under W. Va. Code § 60-3A-27a is subject to the provisions for notice, hearing and judicial review prescribed in W. Va. Code § 60-3A-28.

W. Va. Code R. § 175-5-31