W. Va. Code R. § 175-5-5

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

Section 175-5-5 - General Powers and Duties of Commissioner

5.1. Based upon an evaluation and analysis of relevant economic and demographic factors in each county of the State, the Commissioner shall make recommendations to the Board as to how many market zones are necessary, and the Board shall create market zones in each county and provide for the issue of retail licenses in each market zone. For the ten year license period beginning on July 1, 2010, and for every ten year license period beginning July 1^st thereafter, the Commissioner, as authorized by the Board, shall determine the minimum bid based upon a review of the inflation data, demographic data, sales data at each retail outlet and such other factors that are relevant for the State to generate revenues. Thereafter, the Commissioner shall develop recommendations for the Board to consider relating to:

5.1.a. For each market zone, setting the number of Class A retail licenses and Class B retail licenses to be issued, if any, within a market zone;

5.1.a.1. The number of Class A retail licenses is only limited by the total number of licenses issued by the Board for all market zones. Thus, all retail licenses made available by the Board could be Class A retail licenses and meet the freestanding liquor retail outlet requirements;

5.1.a.2. The number of Class B retail licenses in a market zone may not exceed 150% of the Class A retail licenses except as otherwise authorized in W. Va. Code § 60-3A-7(d). During the ten year license period beginning July 1, 2010, all mixed retail liquor outlets in existence as of October 31, 2009, must choose between either a Class A retail license or a Class B retail license. The number of Class B retail licenses in a market zone may not exceed the 150% limit. In determining the 150% limit for a market zone, the Commissioner may round up to the next highest whole number if the number of Class A retail licenses is an odd number;

5.1.b. The number, if any, of designated areas recommended for the market zones;

5.1.c. The minimum bid amounts to be established for each Class A and Class B licenses and designated areas to be authorized by the Board;

5.1.d. The bidding procedures to be utilized;

5.1.e. The factors to be considered in determining a bidder's entitlement to a 5% residential preference (See section 12 of this rule) and a 5% current licensee's preference and right to match the highest bidder's bid amount (See section 13 of this rule);

5.1.f. The standards, criteria and formulae utilized by the Board when establishing the minimum bid for each license and the methodology to be followed for the purchase option and in selecting successful bidders.

5.1.g. The formula to calculate the minimum bid, as determined by the Board, which is:

5.1.g.1. Z = X(B) + Y_a(B) + [.50(B) + .50(C)].

5.1.g.2. The methodology of the formula is:

(i) Z = Current Ten Year Minimum Bid;

(ii) B = Previous Ten Year Minimum Bid;

(iii) X = Inflation Factor;

(iv) Y_a = Sales Factor; and

(v) C = Previous Ten Year Actual Successful Bid paid for a retail outlet or Previous Ten Year Minimum Bid, whichever is higher; and

5.1.g.3. The Commissioner, as authorized by the Board, may make assumptions on the time periods, indexes and practical application of the formulas and methodology to determine the inflation factor, sales factor and make the necessary calculations.

5.1.g.4. Notwithstanding the above formula to calculate minimum bids in subsection 5.1.g.2, the Commissioner, as authorized by the Board, in the event that a retail outlet's ten year minimum bid calculated by the formula is below the retail outlet's previous ten year actual successful bid, shall use the retail outlet's previous ten year actual successful bid as it current ten year period minimum bid.

5.1.h. The Commissioner or his or her designee, as authorized by the Board, shall calculate the minimum bid.

5.1.i. If during the initial solicitation of bids for the current ten year license period no successful bids are received for a particular retail outlet, the Board may adjust the minimum bid in its statutory discretion and rebid any such remaining retail outlets in subsequent bidding.

5.2. The Commissioner:

5.2.a. Has license application forms available at his office or on the internet at www.abca.wv.gov for persons desiring to acquire retail licenses;

5.2.a.1. The Licensing and Enforcement Divisions of the ABCC work hand-in-hand under the direction of their respective Directors in the investigation, processing and initial evaluation of license applications. Inspectors and Agents are directed to make Initial Inspection Reports which are to be completed promptly. The decision to grant or deny licensure can be made by the Commissioner within 30 days following the receipt of a completed application or until such time as Commissioner has completed all inspections, background investigations, credit checks and any other additional investigation or requests for information.

5.2.b. Will provide information regarding bidding and licensing retail outlets to the public;

5.2.b.1. The Commissioner, as authorized by the Board, shall place advertisements state-wide referencing the procedure to be used for ten-year franchises for retail outlets. These advertisements will direct the public to the www.abca.wv.gov where the public may obtain particulars and a bid package containing information on the bid process for a retail outlet.

5.2.c. Regulates standards for advertising the sale, availability, price and selection of liquor which are set forth in this rule and 175 CSR 1;

5.2.d. Omitted.

5.2.e. Regulates retail outlets as to:

(i) the amount and variety of alcoholic liquors which they make available for sale at each retail outlet;

(ii) the size space and design;

(iii) the amount of inventory and displayed inventory of liquor (For i, ii, iii, and viii See this rule);

(iv) order quantities sufficient to qualify for delivery;

(v) phone, computer and internet requirements;

(vi) liquor order verification requirements;

(vii) liquor delivery dates and routes; and

(viii) such other requirements of the Commissioner (For iv, v, vi, vii and viii See 175 CSR 1);

5.2.e.1. Each retail outlet shall be reviewed by the Commissioner based upon community or market zone needs and best management practices.

5.2.e.2. Class A retail license or freestanding liquor retail outlet standards:

5.2.e.2.A. All such retail outlets must have a minimum of 750 square feet of retail floor space, as measured by the Commissioner, devoted to the retail sale West Virginia product, wine and nonintoxicating beer, and shall maintain a displayed inventory of at least 4 brands of each West Virginia product and sufficient quantities of displayed inventory and inventory to service consumer demand;

5.2.e.2.B. All such retail outlets shall only sell West Virginia product, wine, beer, nonintoxicating beer, and other alcohol related products, including tobacco related products, throughout the entire area of retail outlet including the retail floor space and shelving;

5.2.e.2.C. All such retail outlets must not have direct access to another business and must be separate and apart from other businesses; and

5.2.e.2.D. All such retail outlets must meet the requirements of the rules and the code in order to be licensed and maintain its license and is subject to penalties for failure to meet or maintain these requirements.

5.2.e.3. Class B retail license or mixed retail liquor outlet standards:

5.2.e.3.A. All such retail outlets must have a minimum of 150 square feet of retail floor space, as measured by the Commissioner, devoted solely to the retail sale of West Virginia product and there is no limit on the amount of total retail floor space:

5.2.e.3.A.1. Such retail outlets with 150 square feet to 449 square feet of retail floor space, as measured by the Commissioner, devoted solely to the retail sale of West Virginia product, shall maintain a displayed inventory of at least 2 brands of each West Virginia product and sufficient quantities of displayed inventory and inventory to service consumer demand;

5.2.e.3.A.2. Such retail outlets with 450 square feet up to 749 square feet of retail floor space, as measured by the Commissioner, devoted solely to the retail sale of West Virginia product shall maintain a displayed inventory of at least 3 brands of each West Virginia product and sufficient quantities of displayed inventory and inventory to service consumer demand; and

5.2.e.3.A.3. Such retail outlets with 750 square feet and above of retail floor space as measured by the Commissioner, devoted solely to the retail sale of West Virginia product shall maintain a displayed inventory of at least 4 brands of each West Virginia product and sufficient quantities of displayed inventory and inventory to service consumer demand.

5.2.e.3.B. All such retail outlets must restrict the view of the retail floor space devoted solely to the sale of West Virginia product by constructing barriers, shelving or other apparatus of sufficient height and width, as approved by the Commissioner, that would prevent persons from viewing the liquor items in the restricted area so that such items are not highly visible;

5.2.e.3.C. All such retail outlets must maintain separate retail floor space devoted solely to the sale of West Virginia product, wine and nonintoxicating beer that is prominently marked with signage located in the retail floor space consisting of at least six signs sized at a minimum of 24 inches in height by 24 inches in width with prominent and highly visible uppercase and bold lettering indicating that persons are entering a RESTRICTED LIQUOR AREA, and "NO PERSON UNDER THE AGE OF 21 MAY PURCHASE LIQUOR, WINE OR BEER", "BE PREPARED TO PRESENT PROPER IDENTIFICATION WHEN MAKING A PURCHASE" all in the form, color, lettering and with the ABCC logo as provided in a format approved by the Commissioner;

5.2.e.3.D. All such retail liquor outlets shall only sell West Virginia product, wine, beer, nonintoxicating beer, and other alcohol related products, including tobacco related products, in addition to convenience and other retail products. West Virginia product and beer shall only be displayed in the restricted area retail floor space of the mixed retail liquor outlet and such products shall not be viewable, displayed or available for sale outside the restricted area; and

5.2.e.3.E. All such retail outlets must meet the requirements of the rules and the code in order to be licensed and maintain a license and are subject to penalties for failure to meet or maintain these requirements.

5.2.f. Regulates, inspects at reasonable times, enforces, imposes civil administrative penalties, provides hearings, issues subpoenas and settles cases in accordance with the provisions of W. Va. Code § 60-3A-1, et seq., W. Va. Code § 29A-1-1, et seq., and this rule.

W. Va. Code R. § 175-5-5