W. Va. Code R. § 175-10-14

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

Section 175-10-14 - Violations, Penalties and Hearings

14.1. A distillery, mini-distillery, micro-distillery or their employees, licensed representatives, or brokers may not:

14.1.a. Sell or permit the sale of more than 10 gallons of alcoholic liquors to a person for off-premises personal use and consumption, at one time, without approval of the Commissioner.

14.1.b. Sell, offer to sell, or permit the sale of any alcoholic liquor in other than the original package or container.

14.1.c. Sell, give, or procure, or permit the sale, gift, or procurement of any alcoholic liquor for or to any person under the age of 21 or who is visibly intoxicated.

14.1.d. Permit the consumption of any alcoholic liquors on the distillery, mini-distillery, or micro-distillery's licensed premises by any person, except for free complimentary samples to any person over the age of 21 or who is not visibly intoxicated.

14.1.e. Alter, change or misrepresent or permit the alteration, change or misrepresentation of the quality, quantity, or brand name of any alcoholic liquor.

14.1.f. Permit any person under age 18 to sell, furnish, or give alcoholic liquor to any other person.

14.1.g. Purchase or otherwise obtain its or any other alcoholic liquors in any manner other than that authorized in the West Virginia Code, West Virginia Code of State Rules, and ABCA policies and procedures.

14.1.h. Permit any person to break the seal on any package or bottle of alcoholic liquor, except for the limited purpose of on-premises free complimentary samples.

14.1.i. Permit any person other than a distillery, mini-distillery, or micro-distillery licensee, or a regular employee thereof, to unpack, shelve, arrange, shift, or otherwise manipulate bottles or other receptacles containing distilled spirits, except for the purpose of purchasing same.

14.1.j. Sell or permit the sale of its alcoholic liquors purchased from the Commissioner, via actual or constructive bailment, at a price which is less than 110% of the wholesale cost of the West Virginia product. For the purposes of determining the minimum price, the distillery, mini-distillery, or micro-distillery shall multiply the Commissioner's wholesale cost of the product contained in the Quarterly Spirits Price List or the ABCA Tradeshow Catalog, available on the ABCA website at www.abca.wv.gov, by 110% (See also 175 CSR 1 and 175 CSR 5).

14.1.k. Sell or permit the sale of its alcoholic liquors through a window at a drive-in or drive-through retail establishment.

14.1.l. Sell or permit the sale of its alcoholic liquors on Sunday before 1:00 p.m., Easter Sunday, and Christmas day or other than during the hours permitted for sale of alcoholic liquors.

14.1.m. As the distillery, mini-distillery, or micro-distillery are not licensed retail liquor outlets, these licensees may not:

14.1.m.1. Offer for sale, sell, or permit the sale of alcoholic liquors to private clubs or other ABCA licensees; and

14.1.m.2. Offer for sale, sell, or permit the sale of alcoholic liquors manufactured by another distillery, mini-distillery, micro-distillery, or other manufacturer.

14.2. Violations of this section, this rule, or Chapter 60 of the West Virginia Code are subject to an assessment by the Commissioner of a civil penalty which shall not be more than $1,000.00 for each violation by a distillery, mini-distillery, micro-distillery, or their employee or a licensed representative/broker. Each violation shall constitute a separate offense. The Commissioner shall consider the distillery, mini-distillery, or micro-distillery's history of previous violations, the appropriateness of such penalty to the size of such business, the gravity of the violations, and the demonstrated good faith of the distillery, mini-distillery, or micro-distillery charged in attempting to achieve rapid compliance after notification of the violation. Further, violations that necessitate a suspension in the interest of public safety, as determined by the Commissioner, where the public and or patrons' safety is at risk may be conducted immediately by the Commissioner.

14.3. A civil penalty shall be assessed by the Commissioner only after giving at least 10 days' notice to the licensed distillery, mini-distillery, or micro-distillery. Notice shall be in writing, shall state the reason for the proposed civil penalty and the amount, and shall designate a time and place for a hearing where the licensed distillery, mini-distillery, or micro-distillery may show cause why the civil penalty should not be imposed. Notice shall be sent by certified mail to the address for which the licensed distillery, mini-distillery, or micro-distillery was issued. The licensed distillery, mini-distillery, or micro-distillery may, at the time designated for the hearing, produce evidence in his or her behalf and be represented by counsel.

14.4. The hearing and the administrative procedures prior to, during, and following the hearing are governed by and shall be conducted in accordance with the provisions of W.Va. Code § 29A-5-1et seq.

14.5. Any person adversely affected by a final order entered following the hearing has the right of judicial review by the circuit court of Kanawha County or the circuit court in the county where the proposed or licensed premises is located and will or does conduct sales: Provided, That in all other respects, such review shall be conducted in the manner provided in Chapter 29A of the West Virginia Code. The petition for the review must be filed with the circuit court within 30 days following entry of the final order issued by the Commissioner. An applicant or licensee obtaining the review is required to pay the costs and fees incident to transcribing, certifying, and transmitting the records pertaining to the matter to circuit court.

14.6. The judgment of the circuit court reviewing the order of the Commissioner is final unless reversed, vacated, or modified on appeal to the Supreme Court of Appeals in accordance with the provisions of W. Va. Code § 29A-6-1et seq.

W. Va. Code R. § 175-10-14