Current through Register Vol. XLI, No. 50, December 13, 2024
Section 176-1-2 - DefinitionsAs used in these rules and unless the context clearly requires a different meaning, the following terms shall have the meaning ascribed in this section.
2.1 The "ABCA" refers to the West Virginia Alcohol Beverage Control Administration or Commission.2.2. "Alcoholic Liquor" or "Liquor" means alcohol, beer, fortified wine, and distilled spirits, and any liquid or solid capable of being used as a beverage, but shall not include wine with an alcohol content of 14% or less by volume, nonintoxicating beer or nonintoxicating beverages.2.3. "Beer" means any beverage obtained by the fermentation of barley, malt, hops, or any other similar product or substitute and containing more alcohol than that of nonintoxicating beer, including nonintoxicating craft beer, and shall be included in the definition of "liquor" and "alcoholic liquor", as used in W.Va. Code § 11-16-1et seq.: Provided, that in the Liquor Control Act, "beer" shall not be construed to include or embrace nonintoxicating beer or nonintoxicating craft beer.2.4. "Brand" means a nonintoxicating beer product manufactured, brewed, mixed, concocted, blended, bottled, or otherwise produced, imported, or transhipped by a brewer or manufacturer, the labels of which have been registered and approved by the Commissioner that is being offered for sale or sold in West Virginia by a distributor who has been appointed in a valid franchise agreement or a valid amendment thereto.2.5. "Brewer" or "Manufacturer" means any person, firm, association, partnership, or corporation, including agents and employees, who is manufacturing, brewing, mixing, concocting, blending, bottling, or otherwise producing or bottling, or importing, or transshipping from a foreign country nonintoxicating beer or nonintoxicating craft beer for sale at wholesale to any licensed distributor. Brewer or manufacturer may be used interchangeably. A brewer, its subsidiaries, parent entities, contracted entities, affiliated entities, or other related entities, may obtain only one brewer's license for its nonintoxicating beer or nonintoxicating craft beer. Upon review of a brewer's licensure, the Commissioner, may, but is not limited to, consider the percentage of ownership of subsidiaries, parent entities, contracted entities, affiliated entities, or other related entities. Any importer who obtains a brewer's license must submit to the Commissioner an appointment letter or other letter of authorization from a brand owner granting the importer the rights to the brand in West Virginia, and the importer will have to meet all requirements of a brewer.2.6. "Brewer's License" means a license issued by the Commissioner to a brewer or manufacturer of nonintoxicating beer which authorizes that person to engage in activities of a brewer in this state.2.7. "Brewer's Products" means all malt-based beverages produced or imported by a brewer and offered for sale in the state of West Virginia.2.8. "Brewpub" means a portion of a resident brewer's place of manufacture of nonintoxicating beer or nonintoxicating craft beer, subject to federal and state regulations and guidelines, where a portion of the resident brewer's licensed premises is designated for retail sales of nonintoxicating beer or nonintoxicating craft beer manufactured or brewed by the resident brewer who owns the brewpub.2.9. "Class A License" means the license issued by the Commissioner which authorizes a retailer to sell at retail nonintoxicating beer for consumption either on the premises where sold or off the premises: Provided, that for railroads operating in this state, nonintoxicating beer may be sold at retail only for consumption in the licensed dining, club, or buffet car where sold.2.10. "Class A retail license" means a retail license permitting the retail sale of liquor at a freestanding liquor retail outlet licensed pursuant to chapter 60 of the Code.2.11. "Class B License" means the license issued by the Commissioner which authorizes the retailer to sell nonintoxicating beer at retail in bottles, cans, or other sealed containers only, and only for consumption off the licensed premises: Provided, that a Class B license may only be issued to the proprietor or owner of a grocery store.2.12. "Class B retail license" means a retail license permitting the retail sale of liquor at a mixed retail liquor outlet licensed pursuant to chapter 60 of the Code.2.13. "Class S License" means the special license issued by the Commissioner for the retail sale of nonintoxicating beer at a fair or festival sponsored or endorsed by the municipality or county wherein the fair or festival is conducted, and at other special events approved by the Commissioner.2.14. "Code" means the official Code of West Virginia, 1931, as amended.2.15. "Commissioner or Alcohol Beverage Control Commissioner" means the Commissioner of the West Virginia Alcohol Beverage Control Administration (ABCA or Commission) or his or her delegate.2.16. "Contract Brewing" means an arrangement documented by a written agreement between a brewer located in West Virginia and at least one other party who may or may not be located in West Virginia. Further, the party who is operating in West Virginia as the importer or owner of the brand shall obtain a brewer's license. The brewer who is actually brewing the nonintoxicating beer or nonintoxicating craft beer is responsible for meeting all federal requirements. If the other party or parties are operating in West Virginia, then only one of the parties may operate as the only licensed brewer or importer of the brand. This party or licensed brewer shall make the payment of all beer barrel taxes. If the parties are not operating in West Virginia, then the brewer located in West Virginia shall make all payments of beer_barrel taxes. A resident brewer who must brew at certain volumes from its place of manufacture is not permitted to contract brew its products or brew on contract for another brewer or resident brewer. In no event shall contract brewing be used as an arrangement to circumvent any franchise agreement or franchise distributor network.2.17. "Delivery Day" means any day that a distributor is open for business.2.18. "Distributor" means any person, including that person's agents or employees, jobbing or distributing nonintoxicating beer or nonintoxicating craft beer to licensed retailers at wholesale and whose warehouse and chief place of business is located within this state. A distributor may make arrangement to receive nonintoxicating beer or nonintoxicating craft beer from a brewer, located in the state, or a resident brewer to transport the nonintoxicating beer or nonintoxicating craft beer to the distributor's warehouse from the place of manufacture, prior to distributing the nonintoxicating beer or nonintoxicating craft beer at wholesale to licensed retailers. For the purposes of a "distributor" only, the term "person" means and includes an individual firm, trust, partnership, limited partnership, limited liability company, association, or corporation. Any trust licensed as a distributor or any trust that is an owner of a distributor licensee, and the trustee or other persons in active control of the activities of the trust relating to the distributor license, is liable for acts of the trust or its beneficiaries relating to the distributor license that are unlawful acts or violations of W.Va. Code § 11-16-1et seq., notwithstanding the liability of trustees in W.Va. Code § 44D-10-1001et seq.2.19. "Distributor License" means a license issued by the Commissioner to a distributor which authorizes the distributor to engage in the commercial activities described in section 2.18 above, except that sub-distributing is an impermissible practice.2.20. "Food" and "Food Products" means and includes edible foodstuffs intended for human consumption and items commonly thought of as food, including by way of illustration and not by limitation, cereals and cereal products, meat and meat products, fish and fish products, poultry and poultry products, fresh and salt water animal products, eggs and egg products, vegetables and vegetable products, fruit and fruit products, flour and flour products, sugar and sugar products, stevia and stevia products, milk and milk products, coca and coca products, coffee and coffee substitutes, tea, herbs, spices, salt and salt substitutes, condiments, soft drinks, soft drink mixes and syrups, tenderizers, food coloring, bottled drinking water, sugar substitutes, oleo, margarine, shortening, gelatins, baking and cooking ingredients, mushrooms, spreads, relishes, desserts, flavorings, edible seeds, nuts, and berries: Provided, that the terms "food" and "food for meals" does not include medicines, vitamins and dietary supplements whether in liquid, powdered, granular, tablet, capsule, lozenge, or pill form; spirituous, malt or vinous liquors or beer; ice; tobacco or tobacco products; candy and confections; chewing gum; cake letters; breath mints; or food sold through a vending machine.2.21. "Franchise Agreement" means the written agreement between a brewer and a distributor that is identical as to terms and conditions between the brewer and all its distributors, which agreement has been approved by the Commissioner. The franchise agreement binds the parties so that a distributor, appointed by a brewer, may distribute all of the brewer's nonintoxicating beer products, brands or family of brands imported and offered for sale in West Virginia, including, but not limited to, existing brands, line extensions and new brands all in the brewer's assigned territory for the distributor. All brands and line extensions being imported or offered for sale in West Virginia must be listed by the brewer in the franchise agreement or a written amendment to the franchise agreement. A franchise agreement may be amended by mutual written agreement of the parties as approved by the Commissioner with identical terms and conditions for a brewer and all of its distributors. Any approved amendment to the franchise agreement becomes a part of the franchise agreement. A brewer and a distributor may mutually agree in writing to cancel a franchise agreement. A distributor terminated by a brewer in accordance with the Code and rules no longer has a valid franchise agreement. If a brewer has reached an agreement to cancel a distributor or has terminated a distributor, then a brewer may appoint a successor distributor who accedes to all the rights of the cancelled or terminated distributor.2.22. "Franchise Distributor Network" means the distributors who have entered into a binding written franchise agreement, identical as to terms and conditions, to distribute nonintoxicating beer products, brands, and line extensions in an assigned territory for a brewer. A brewer may only have one franchise distributor network. Provided, That a brewer that has acquired the manufacturing, bottling or other production rights for the sale of nonintoxicating beer at wholesale from a selling brewer as specified in W. Va. Code § 11-16-21(a)(2) shall continue to maintain and be bound by the selling brewer's separate franchise distributor's network for any of its existing brands, line extensions, and new brands.2.23. "Grocery Store" means any retail establishment commonly known as a grocery store or delicatessen, where at least $500.00 worth of food or food products are sold as average monthly sales for consumption off premises and $500.00 food or food products are held as monthly inventory, and includes a separate and segregated portion of any other retail store which is dedicated solely to the sale of food, food products, and food supplies for the table for consumption off the premises.2.24. "Growler" means a container or jug that is made of glass (also a 32 ounce glass container which is commonly referred to as a howler), ceramic, metal (also a canned type of metal growler referred to as a crowler) or other material approved by the Commissioner, that may be no larger than 128 fluid ounces in size and must be capable of being securely sealed. The growler is utilized by an authorized licensee for purposes of off-premises sales only of nonintoxicating beer or nonintoxicating craft beer for personal consumption not on a licensed premises, and not for resale. A securely sealed growler is not an open container under state and local law. A growler with a broken seal is an open container under state and local law unless it is located in an area of the motor vehicle physically separated from the passenger compartment. The secure sealing of a growler requires the use of a tamper-evident seal, shrink wrap, or other material, as approved by the Commissioner, placed on or over the growler's opening. The seal, shrink wrap, or other material must be clearly marked with the date of the secure sealing by the authorized licensee who is selling the growler. Additional requirements are set forth in W. Va. Code § 60-8-1et seq., for wine growlers, and in W. Va. Code § 60-7-1et seq., and 175 CSR 2, for craft cocktail growlers.2.25. "Licensed Retailer" means any person, including the person's agents and employees selling, servicing, or otherwise dispensing nonintoxicating beer and all products regulated by W. Va. Code § 11-16-1et seq., including, but not limited to, any malt beverages or malt coolers, at the retailer's established and licensed place of business or premises.2.26. "Licensee" means any person licensed in accordance with W. Va. Code § 11-16-1et seq. to brew, manufacture, distribute, or sell, at wholesale or retail, any nonintoxicating beer.2.27. "Line Extension" means any nonintoxicating beer product that is an extension of brand or family of brands that is labeled, branded, advertised, marketed, promoted, or offered for sale with the intent or purpose of being manufactured, imported, associated, contracted, affiliated, or otherwise related to a brewer's existing brand through the use of a brewer, its subsidiaries, parent entities, contracted entities, affiliated entities, or other related entities. In determining whether a nonintoxicating beer product is a line extension, the Commissioner may consider, but is not limited to, the following factors: name or partial name; trade name or partial trade name; logos; copyrights; trademarks or trade design; product codes; and advertising promotion or pricing.2.28. "Manager" means an individual who is the applicant's or licensee's on-premises employee, member, partner, shareholder, director, or officer who meets the licensure requirements of W. Va. § 11-16-1et seq. and this rule who actively manages, conducts, and carries on the day-to-day operations of the applicant or licensee with full and apparent authority or actual authority to act on behalf of the applicant or licensee. Such duties include but are not limited to: coordinating staffing; reviewing and approving payroll; ordering and paying for inventory, such as nonintoxicating beer, wine, and liquor, as applicable; and managing security staff, security systems, video, and other security equipment; and any further acts or actions involved in managing the affairs of the business, on behalf of owners, partners, members, shareholders, officers, or directors.2.29. "Non-alcoholic beer" means natural cereal malt beverages or products of the brewing industry commonly referred to as a malt beverage, cereal beverage, or near beer and all other mixtures and preparations produced by the brewing industry, including malt coolers, frozen beer based products, and nonintoxicating craft beers, all with no caffeine infusion or any additives masking or altering the alcohol effect, containing less than 0.5% alcohol by volume. Non-alcoholic beer products brewed by a brewer or resident brewer or distributed by a distributor must prior to any sale in West Virginia first submit, on a form provided by the Commissioner, the brand or brands for verification of the non-alcoholic claims and status, and the approval of the Commissioner for sale in West Virginia. Non-alcoholic beer must meet federal labeling requirements for 0.00% beer or for beer less than 0.5%. All labeling shall clearly convey the non-alcoholic nature of the beer.2.30. "Nonintoxicating Beer or Nonintoxicating Craft Beer" means all natural cereal malt beverages or products of the brewing industry commonly referred to as beer, lager beer, ale, IRC beer and all other mixtures and preparations produced by the brewing industry, including malt coolers, frozen beer based products, and nonintoxicating craft beers, all with no caffeine infusion or any additives masking or altering the alcohol effect containing at least 0.5% alcohol by volume, but not more than 11.9% of alcohol by weight, or 15% by volume, whichever is greater. The word "liquor" as used in W. Va. Code § 60-1-1et seq., does not include or embrace nonintoxicating beer nor any of the beverages, products, mixtures, or preparations included within this definition. For the purposes of this definition "infusion" means and includes to artificially add, input, or otherwise deliver caffeine or any other additive, not a true flavoring or coloring, that would mask or alter the alcohol effect in nonintoxicating beer. Furthermore, low or no alcohol beers which are less than 0.5% alcohol by volume manufactured or brewed by a brewer or resident brewer must provide the ABCA with a certified lab analysis that the low or no alcohol beer is below 0.5% alcohol by volume prior to the low or no alcohol beer being sold in West Virginia, such beer must list the exact alcohol percentage on the product's label.2.31. "Nonintoxicating beer sampling day" means any days and hours of the week where Class A retail licensees (See section 2.10 above) only may sell nonintoxicating beer pursuant to W. Va. Code § 11-16-11a and W. Va. Code § 11-16-18 (a)(1), and is approved, in writing, by the Commissioner to conduct a nonintoxicating beer sampling event.2.32. "Original Container" means the container used by the resident brewer or brewer at the place of manufacturing, bottling or otherwise producing nonintoxicating beer for sale at wholesale, such original container may only include bottles, cans, pouches, sealed growlers sealed by the resident brewer or brewer, other containers sealed and manufactured by the brewer or resident brewer and as approved by the Commissioner, and kegs.2.33. "Person" means and includes an individual, firm, partnership, limited partnership, limited liability company, association, or corporation. A trust is not included in the definition of "person", however an appointed trustee or authorized trust representative that meets licensure requirements may be listed on a retail license application provided that the Commissioner is satisfied that the true ownership is reflected on the retail license application. A distributor license has separate trust requirements.2.34. "Private Club" means any corporation or unincorporated association licensed in accordance with W. Va. Code § 60-7-1et seq. which:2.34.a. belongs to or is affiliated with a nationally recognized fraternal or veteran's organization, which: 2.34.a.1. is operated exclusively for the benefit of its members;2.34.a.2. pays no part of its income to its shareholders or individual members;2.34.a.3. owns or leases a building or other premises;2.34.a.4. admits only duly elected or approved dues paying members in good standing of the corporation or association and their guests while in the company of a member, and does not admit the general public; and,2.34.a.5. maintains in the building or on the premises a suitable kitchen and dining facility with related equipment for serving food to members and their guests.2.34.b. is a nonprofit social club, which: 2.34.b.1. is operated exclusively for the benefit of its members;2.34.b.2. pays no part of its income to its shareholders or individual members;2.34.b.3. owns or leases a building or other premises;2.34.b.4. admits only duly elected or approved dues paying members in good standing of the corporation or association and their guests while in the company of member, and does not admit the general public; and,2.34.b.5. maintains in the building or on the premises a suitable kitchen and dining facility with related equipment for serving food to members and their guests.2.34.c. is organized and operated for legitimate purposes, which has at least 100 duly elected or approved dues paying members in good standing, which: 2.34.c.1. owns or leases a building or other premises, including any vessel licensed or approved by any federal agency to carry or accommodate passengers on navigable waters of this state; and,2.34.c.2. maintains in the building or on the premises a suitable kitchen and dining facility with related equipment and employs a sufficient number of persons for serving meals to members and their guests.2.34.d. is organized for legitimate purposes and which:2.34.d.1. owns or leases a building or other limited premises in any state, county, or municipal park, or at any airport, in which a club has been established;2.34.d.2. admits only duly elected and approved dues paying members in good standing and their guests while in the company of a member, and does not admit the general public; and,2.34.d.3. maintains in connection with the club a suitable kitchen and dining facility and related equipment and employs a sufficient number of persons for serving meals in the club to the members and their guests.2.34.e. any other private club set forth in W. Va. Code § 60-7-1et seq., such as a private club bar, private club restaurant, private caterer, private wedding venue or barn, private nine-hole golf course, private farmers market, private professional sports stadium, private multi-sport complex, private manufacturer club, private tennis club, private hotel, private golf club (18 hole), private resort hotel, private fair and festival, private multi-vendor fair or festival, and one-day charitable rare, antique, or vintage liquor auction.2.35. "Private wine bed and breakfast" means any business, such as a hotel motel or other establishment properly zoned in accordance with local ordinances, with the sole purpose of providing, in a residential or country setting lodging and meals which:2.35.a. is a partnership, limited partnership, corporation, unincorporated association, or other business entity which provides meals on its premises to its members and their guests;2.35.b. is licensed under the provisions of W. Va. Code § 60-8-1et seq. to serve up to two glasses of wine on its premises to its members and their guests when the sale accompanies the serving of food or meals; and,2.35.c. admits only duly elected and approved dues paying members and their guests while in the company of a member, and does not admit the general public.2.36. "Private Wine Restaurant" means a restaurant licensed in accordance with W. Va. Code § 60-8-1et seq. which:2.36.a. is a partnership, limited partnership, corporation, unincorporated association, or other business entity which has its principal purpose the business of serving meals on its premises to its members and their guests;2.36.b. is licensed under the provisions of W. Va. Code § 60-8-1et seq. as to all of its premises or as to a separate segregated portion of its premises to serve wine to its members and their guests when the sale accompanies the serving of food or meals; and,2.36.c. admits only duly elected and approved dues paying members and their guests while in the company of a member, and does not admit the general public.2.37. "Private wine spa" means any business with the sole purpose of providing commercial facilities devoted especially to health, fitness, weight loss, beauty, therapeutic services, and relaxation, including a licensed massage parlor or salon with licensed beauticians or stylists, and which:2.37.a. is a partnership, limited partnership, corporation, unincorporated association, or other business entity which provides meals on its premises to its members and their guests;2.37.b. is licensed under the provisions of W. Va. Code § 60-8-1et seq. to serve up to two glasses of wine on its premises to its members and their guests when the sale accompanies the serving of food or meals; and,2.37.c. admits only duly elected and approved dues paying members and their guests while in the company of a member, and does not admit the general public.2.38. "Resident Brewer" means and includes any brewer or manufacturer of nonintoxicating beer or nonintoxicating craft beer whose principal place of business and manufacture is located in the State of West Virginia and which does not brew or manufacture more than 25,000 barrels of non-intoxicating beer or nonintoxicating craft beer annually, and does not self-distribute more than 10,000 barrels thereof in the State of West Virginia annually. For purposes of this rule, a barrel is 31 gallons of nonintoxicating beer or nonintoxicating craft beer.2.39. "Retailer" means a licensed Class A or Class B retail dealer as set forth in W. Va. Code § 11-16-1et seq.