W. Va. Code R. § 176-1-6

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

Section 176-1-6 - Unlawful Acts

6.1. It shall be unlawful:

6.1.a. except as provided in W. Va. Code § 7-1-3ss, for any licensee, his, her, its, or their servants, agents, or employees to sell, give, or dispense, or to allow any individual to drink or consume, in or on any licensed premises or in any rooms directly connected with the licensed premises, nonintoxicating beer between the hours of 2:00 a.m. and 6:00 a.m., except in private clubs licensed under the provisions of W. Va. Code § 60-7-1et seq., where the hours shall conform with the hours of sale of alcoholic liquors;

6.1.b. for any licensee, his, her, its, or their servants, agents, or employees, to sell, furnish, or give any nonintoxicating beer to any person visibly or noticeably intoxicated, or known to be mentally incompetent;

6.1.c. for any licensee, his, her, its, or their servants, agents, or employees, to sell, furnish, permit the consumption of, or give any nonintoxicating beer to any person who is less than 21 years of age;

6.1.d. for any licensee to permit in his or her premises any lewd, immoral, or improper entertainment, conduct, or practice;

6.1.e. for any licensee except the holder of a license to operate a private club issued under the provisions of W. Va. Code § 60-7-1et seq., or a holder of a license for a private wine restaurant issued under the provisions of W. Va. Code § 60-8-1et seq., to possess a federal license, tax receipt or other permit entitling, authorizing or allowing the licensee to sell liquor or alcoholic drinks other than nonintoxicating beer;

6.1.f. for any licensee to obstruct the view of the interior of his or her premises by enclosure, lattice, drapes, or any means which would prevent plain view of the patrons occupying the premises. The interior of all licensed premises shall be adequately lighted at all times: Provided, that provisions of this section shall not apply to the premises of a Class B licensee, and the premises of any type of private club or the premises of a private wine restaurant;

6.1.g. for any licensee to manufacture, import, sell, trade, barter, possess, or acquiesce in the sale, possession or consumption of any alcoholic liquors on the premises covered by the license or on premises directly or indirectly used in connection therewith: Provided, that the prohibition contained in this section with respect to the selling or possessing, or to the acquiescence in the sale, possession or consumption, of alcoholic liquors is not applicable with respect to the holder of a license to operate any type of private club nor is the prohibition applicable to a private wine restaurant insofar as the private wine restaurant is authorized to serve wine;

6.1.h. for any retail licensee to sell or dispense nonintoxicating beer purchased or acquired from any source other than a distributor or a resident brewer acting in a limited capacity as a distributor of his or her own product as specified in the code, except that a Class A retail dealer may, on a Saturday or Sunday, if no longer having any nonintoxicating beer inventory and the distributor or applicable resident brewer is unable to distribute to the retail account on a Saturday or Sunday (as documented by the Class A retail dealer), purchase nonintoxicating beer from only one Class B retail dealer at retail, with all taxes paid, as a retail sale up to 10 cases of nonintoxicating beer. The Class A retail dealer must retain documentation of such purchase for one year for inspection by the Commissioner;

6.1.h.1. Except as otherwise permitted by law, distributors will make no platform deliveries except to persons known to be licensed retail dealers, or upon a signed notarized order from the known retail dealers.

6.1.i. for any licensee to permit loud, boisterous, or disorderly conduct of any kind upon the licensed premises or to permit the use of loud musical instruments if they may disturb the peace and quietude of the community where the business is located, except a licensee may have speaker systems for outside broadcasting as long as the noise levels do not create a public nuisance or violate local noise ordinances;

6.1.j. for any person whose license has been revoked, to obtain employment with any licensed retailer within the period of one (1) year from the date of the revocation, or for any licensed retailer to knowingly employ that person within that time;

6.1.k. for any licensee or any agent, servant, or employee of any such licensee to knowingly violate any rule lawfully promulgated by the Commissioner;

6.1.l. for any licensee to knowingly permit any act to be done upon the licensed premises the commission of which constitutes a crime under the laws of this state;

6.1.m. for any Class B licensee to permit the consumption of nonintoxicating beer upon his or her licensed premises;

6.1.n. for any Class A licensee to permit any person less than 18 years of age to loiter in or upon any licensed premises; except, however, that the provisions of this section shall not apply where the person under the age of 18 years is in or upon the premises in the immediate company of his or her parent or parents, or is in or upon the premises for the purpose of actually making a lawful purchase of any items or commodities therein sold, or for the purchase of and actually receiving any lawful service therein rendered, including the consumption of any item of food, drink, or soft drink therein lawfully prepared and served or sold for consumption on such premises;

6.1.o. for any Class A licensee to allow faucets or taps from which beer is drawn from kegs to be identified with a knob showing the brand or name of the brewer of the nonintoxicating beer dispensed to be other than the brand or name of the nonintoxicating beer actually dispensed, in other words the brand of the nonintoxicating beer may not be misrepresented by the name of the brand listed on a knob, faucet, tap handle, or display or sign depicting the brand being sold, served, and dispensed through a knob, faucet, or tap handle (See also Section 6.3.c.);

6.1.p. for any person to manufacture, sell, transport, deliver, furnish, purchase, consume, or possess any nonintoxicating beer except as provided by the laws of this state or rules lawfully promulgated by the Commissioner;

6.1.q. for any retail licensee to permit nonintoxicating beer in an open container to be carried into or out of any licensed premises; provided that a brewer, resident brewer, brewpub, Class A retail dealer, Class B retail dealer, when licensed for nonintoxicating beer growler sales, may lawfully sell sealed growlers for personal consumption off of the licensed premises and not for resale; and

6.1.r. for retail licensee to fail to clean and sanitize at least every two weeks, and also maintains records of all cleaning and sanitization conducted by the licensee or third party authorized by a state, county, or local health department, all nonintoxicating beer coils, draught lines, pipes, and tubes.

6.2. Nothing in this rule shall prevent or be considered to prohibit any licensee from employing any person who is at least 16 years of age to serve in the licensee's lawful employ, including the sale of nonintoxicating beer. With the prior approval of the Commissioner, a licensee whose principal business is the sale of food or consumer goods or the providing of recreational activities, including, but not limited to, nationally franchised fast food outlets, family-oriented restaurants, bowling alleys, drug stores, discount stores, grocery stores, and convenience stores, may employ persons who are less than 18 years of age but at least 16 years of age who will be directly supervised by an employee 21 years of age or older: Provided, that the person's duties shall not include the delivery of nonintoxicating beer or alcoholic liquors: Provided, however, that the authorization to employ persons under the age of 18 years shall be clearly indicated on the licensee's license.

6.3. The following acts, when performed by distributors, manufacturers, resident brewers or a resident brewer, acting in a limited capacity as a distributor, or brewers are unlawful:

6.3.a. A distributor or a resident brewer acting in a limited capacity as a distributor may not sell or offer to sell, or a licensed retailer may not purchase or receive, any nonintoxicating beer, except for electronic transfer of funds, cash or a check drawn against the bank account of the licensed retailer who is making the purchase. The distributor may accept electronic transfer of funds if it is initiated by an irrevocable payment order on the invoiced amount for the nonintoxicating beer. The retailer will pay the cost of the EFT and the distributor must initiate the transfer by noon within one day of delivery as prescribed by W. Va. Code § 11-16-18(a)(4). No distributor shall pay or bear any cost to be included in a retailer's electronic payment, ordering, or deliver scheduling system. No right of action shall exist to collect any claims for credit extended contrary to the provisions of this section. Nothing in this section prohibits a licensee from crediting to a purchaser the actual price charged for packages or containers returned by the original purchaser as a credit on any sale, or from refunding to any purchaser the amount paid or deposited for the containers when title is retained by the licensee;

6.3.a.1. All distributors must immediately, and in the regular course of business, deposit in the bank all checks given them by licensed retailers for the purchase of nonintoxicating beer. No distributor shall through himself, or his agents or employees, enter into any agreement or understanding with any licensed retailer to hold any checks given in payment for nonintoxicating beer;

6.3.a.2. The repeated giving of worthless checks by the licensed retailer to the distributor or the repeated acceptance of worthless checks from the licensed retailer by the distributor, is prima facie evidence of obtaining an extension of credit and shall, in the discretion of the Commissioner, be grounds for revocation or suspension of the retailer's or distributor's license; and

6.3.a.3. Payment for a retail nonintoxicating beer license, or renewal of a license, shall be submitted only in the form of a certified check, cashier's check, or money order made payable to the West Virginia Alcohol Beverage Control Administration Commissioner in the exact amount as required by W. Va. Code § 11-16-9.

6.3.b. A brewer, resident brewer, distributor, or a resident brewer acting in a limited capacity as a distributor, or his or her agents, may not transport or deliver nonintoxicating beer to any licensed retailer without first obtaining a nonintoxicating beer transportation permit.

6.3.c. For any brewer, resident brewer, distributor, or resident brewer acting in a limited capacity as a distributor, to give, furnish, rent, or sell any equipment, fixtures, signs, supplies, or services directly or indirectly or through a subsidiary or affiliate to any licensee engaged in selling products of the brewing industry at retail or to offer any prize, premium, gift, or other similar inducement, for example any prize, premium, gift, or gift card where a purchase is necessary. No brewer, resident brewer, or distributor shall contribute to or support, either directly or indirectly, any baseball, football, bowling, or other athletic team event or contest, (except a recognized professional athletic team event or contest,) unless the brewer, resident brewer, or distributor has first obtained written permission from the Commissioner. However, it is lawful:

6.3.c.1. for a brewer, resident brewer, distributor, or a resident brewer acting in a limited capacity as a distributor, to provide advertising matter, including, but not limited to: indoor electronic or mechanical signs; branded glassware, so long as a nonintoxicating beer brand is not misrepresented by the beer being poured into misbranded glassware; plastic static window clings; tchotchkes; the temporary use of draft trucks with tap handles, portable beverage tubs, Texas icers, cold plates, draft jockey boxes, and other types of similar type of cooling and dispensing equipment; tap handles; and other items of nominal value up to $25.00 per stock keeping unit, to either trade (Class A or Class B retail dealers, Class S, S1, S2, or S3 licensees) or consumer buyers (consumers). However, branded or logoed draft trucks with tap handles, portable beverage tubs, Texas icers, cold plates, draft jockey boxes, and other types of similar cooling and dispensing equipment; tap handles; and other items of nominal value greater than $25.00 per stock keeping unit, may be provided for temporary use to trade buyers (Class A or Class B retail dealers, Class S, S1, S2, or S3 licensees) when such items are either rented or charged, invoiced, and paid at no less than actual cost to the trade buyer. A licensed representative must submit a promotion or advertising material request form to the Commissioner in order to be approved to provide lawful advertising material of a nominal value to a licensed retailer or to provide by rent or charge, invoice, and payment for advertising material that is greater than nominal value;

6.3.c.2. for a distributor or resident brewer acting in a limited capacity as a distributor, to offer, for sale or rent, tanks of carbonic gas;

6.3.c.3. in the interest of public health and safety, for a distributor or resident brewer acting in a limited capacity as a distributor, independently or through a subsidiary or affiliate, to furnish, sell, install, or maintain draught line equipment, supplies, and cleaning services to a licensed retailer so long as the furnishing or sale of draught line services may be negotiated at no less than actual cost. Draught line services or equipment must be separately charged and invoiced items, and such services and equipment shall not be included in the price of nonintoxicating beer sold to a licensed retailer as this would result in price discrimination;

6.3.c.4. for a distributor or resident brewer acting in a limited capacity as a distributor, to furnish, rent, or sell equipment, fixtures, signs, services, or supplies directly or indirectly or through a subsidiary or affiliate to any licensee engaged in selling products of the brewing industry at retail under the conditions and within the limitations in 6.3.c and as set forth in W. Va. Code § 11-16-1et seq.;

6.3.c.5. for brewer, resident brewer, resident brewer acting in a limited capacity as a distributor, or distributor to offer a prize, premium, or gift that is not an inducement when such prize, premium, or gift does not require a purchase of the brewer, resident brewer, or distributor's nonintoxicating beer product and the prize, premium, or gift is not nonintoxicating beer; and

6.3.c.6. for a brewer or resident brewer to sponsor any professional or amateur athletic event or from providing prizes or awards for participants and winners in such events, such prize and awards may not be nonintoxicating beer products: Provided, however, that no such event shall be sponsored which permits actual participation by athletes or other persons who are minors, unless specifically authorized by the Commissioner.

6.3.d. Any brewer, resident brewer, or distributor, or any salesman, agent or licensed representative of any brewer, resident brewer, or distributor, who gives, either directly or indirectly, free goods or discounts to any licensed retailer is subject to immediate license revocation, as provided in W. Va. Code § 11-16-18;

6.3.d.1. Free goods, or the giving of a certain number of free cases of nonintoxicating beer, for each number or amount of cases of nonintoxicating beer purchased is prohibited.

6.3.d.2. No brewer, resident brewer, distributor, salesman or licensed representative shall give to any retailer or any person working for or connected with the retailer, either directly or indirectly, anything of more than nominal value, which is $25, as specified in this rule. Licensed representatives of brewers, resident brewers, and distributors may conduct trade spending up to $150 in any licensed Class A retail dealer's establishment when the licensed representative has submitted a promotion request form, on a form provided by the Commissioner, and obtained the Commissioner's approval for a promotion. Such promotions must be offered widely to retailers and not focus on a few retailers.

6.3.d.3. A distributor or a resident brewer acting in a limited capacity as a distributor may rotate, stock, merchandise, price, and presell nonintoxicating beer in a licensed nonintoxicating beer retail establishment only on a nonintoxicating beer or nonintoxicating craft beer delivery day.

6.3.d.4. No distributor or resident brewer acting in a limited capacity as a distributor, may rotate, touch, move, alter, or disturb the products of another distributor.

6.3.d.5. No distributor or a resident brewer acting in a limited capacity as a distributor, may participate in a licensed retailer's shelf reset, diagramming, or planning, unless such reset, diagramming or planning is approved by the Commissioner, and in no event shall the number of shelf resets or planning events exceed four per year per retailer. A distributor is not required to participate in any shelf reset, diagramming, or planning. However, if a distributor participates in one licensed retailer's shelf reset, diagramming, or planning, then it must participate in any licensed retailer's requested shelf reset, diagramming, or planning up to the prescribed limit.

6.3.e. A distributor or a resident brewer acting in a limited capacity as a distributor, may not sell, possess for sale, transport, or distribute nonintoxicating beer except in the original container;

6.3.f. A distributor or a resident brewer acting in a limited capacity as a distributor may not sell, offer for sale, distribute, or deliver any nonintoxicating beer outside the territory assigned to the distributor by the brewer or manufacturer of such nonintoxicating beer or sell, offer for sale, distribute, or deliver any nonintoxicating beer to any licensed retailer whose principal place of business or licensed premises is within the assigned territory of another distributor of nonintoxicating beer: Provided, that nothing in this section prohibits sales of convenience between distributors licensed in this state where one distributor sells, transfers, or delivers to another distributor a particular brand or brands for sale at wholesale. All such sales of convenience shall be reported in writing to brewer or resident brewer;

6.3.g. A brewer, resident brewer, or manufacturer, or any other person, firm, or corporation engaging in the business of selling nonintoxicating beer to a distributor or wholesaler, may not discriminate in price, allowance, rebate, refund, commission, discount, or service between distributors or wholesalers licensed in the state of West Virginia. "Discriminate", as used in this section, means the granting of more favorable prices, allowances, rebates, refunds, commissions, discounts, or services to one West Virginia distributor or wholesaler when compared to another;

6.3.g.1. Breweries or resident brewers licensed to do business in the state of West Virginia may not engage in price discrimination or make any secret deals with distributors in the state of West Virginia.

6.3.g.2. No brewer or a resident brewer shall discriminate in price, allowance, rebate, refund, commission, discount, or service between wholesaler's purchasing beer, ale, malt beverages, or malt coolers, and no brewer can threaten a distributor in order to change or maintain resale prices.

6.3.g.3. A brewer or a resident brewer shall file with the Commissioner on or before December 15^th of any year a complete price listing along with UPC Codes of each nonintoxicating beer product by package size and brand sold to licensed distributors. This filing is in addition to any other filing required pursuant to these rules. Failure to timely file the price list may result in fines and penalties.

6.3.h. A brewer, resident brewer, manufacturer, or any other person, firm, or corporation engaged in the business of selling nonintoxicating beer to a distributor or wholesaler, may not sell or deliver nonintoxicating beer to any licensed distributor or wholesaler unless and until the brewer, resident brewer, manufacturer, person, firm, or corporation, as the case may be, has filed the brewery or dock price of the beer, by brands and container sizes, with the Commissioner. No price schedule shall be put into effect until 90 days after receipt of the same by the Commissioner and shall be submitted on or before the following quarterly dates of January 1, April 1, July 1 and October 1 of the calendar year to be effective for the next successive quarterly period on a form provided by the Commissioner. Prices will be in effect for 90 days and are effective on the 1^st day of the applicable quarterly period. If there is no change in pricing for a nonintoxicating beer product, by brand or container size, filing a quarterly price is not required. Prices will revert back to the base price filed per subsection 6.3.g.3., as noted on the form provided by the Commissioner. For example, a brewer or manufacturer would submit prices, by brands and container sizes, on or before January 1, for the prices to be effective for the quarterly period from April 1 through June 30 (90 day pricing period) and so forth. Upon submission and approval of a new nonintoxicating beer product or new packaging or container sizes for existing nonintoxicating beer product which does not coincide with a quarterly pricing filing date or which occurs during a quarterly price period, the new pricing will be valid until the next quarterly price filing date for which the new price must thereafter be filed as noted this subsection;

6.3.h.1. West Virginia licensed beer distributors or a resident brewer acting in a limited capacity as a distributor shall not sell or deliver nonintoxicating beer to any licensed retailer unless the distributor or a resident brewer acting in a limited capacity as a distributor:

6.3.h.1.A. Shall have filed with the Commissioner the wholesale price of the nonintoxicating beer, by brands and container sizes, 60 days on or before the following quarterly dates of January 1, April 1, July 1 and October 1 of the calendar year to be effective for the next successive quarterly period on a form provided by the Commissioner. Wholesale prices will be in effect for 90 days or for the balance of the 90 day period of quarter from the effective date. Wholesale prices are effective on the first Sunday of the quarter. If there is no change in pricing for a nonintoxicating beer product, by brand or container size, filing a quarterly price is not required. Wholesale prices will revert back to the base price filed per subparagraph 6.3.h.1.C., as noted on the form provided by the Commissioner. The prices shall be the same for all retail licensees in a geographical area, the geographical area to be no smaller than a county. Upon submission and approval of a new nonintoxicating beer product or new packaging or container sizes for existing nonintoxicating beer product which does not coincide with a distributor's quarterly pricing filing date or which occurs during a distributor's quarterly price period, the new pricing will be valid until the distributor's next quarterly price filing date for which the new price must thereafter be filed as in this subsection. Furthermore, distributor's are permitted to make price adjustments during a distributor's quarterly pricing period in accordance with W. Va. Code § 47-11A-1et seq., and specifically W. Va. Code § 47-11A-8, but must provide the Commissioner with 30 days' notice of the price adjustment, all on a form provided by the Commissioner. Any distributor price adjustment per W. Va. Code § 47-11A-8 will be reviewed, and if approved shall expire in 30 days or the end of the distributor's quarterly pricing period, whichever is sooner, and revert back to the distributor's quarterly price for its 90 day period or expire;

6.3.h.1.B. Shall have furnished licensed retailers with a price list delivered to the licensed retailers via mail, fax, scan, e-mail, or other form of electronic delivery on or before the effective date, showing the wholesale price of the nonintoxicating beer by brands and container sizes; and,

6.3.h.1.C. Shall file with the Commissioner during the month of December a complete price listing along with UPC Codes of each nonintoxicating beer product by package size and brand carried by the distributor. This filing is in addition to any other filing required pursuant to these rules.

6.3.h.2. In no case shall a distributor or a resident brewer acting in a limited capacity as a distributor, file with the Commissioner prices which would reflect any quantity discounts, tie-in sales, gifts or gift cards, kickbacks, draught line cleaning services or equipment, or other activity that would impact pricing.

6.3.i. No brewer, resident brewer, foreign corporation brewer or other manufacturer may, in any manner either directly or indirectly, own or operate a licensed distributor, except that a resident brewer may act as a distributor in a limited capacity for his or her own product up to 10,000 barrels from such resident brewery or place of manufacture.

6.4. The following acts, when performed by any person, are unlawful:

6.4.a. Any person under the age of 21 years who, for the purpose of purchasing nonintoxicating beer, misrepresents his or her age, or presents or offers any written evidence of age which is false, fraudulent or not actually his or her own, or who illegally attempts to purchase nonintoxicating beer, is guilty of a misdemeanor, and, upon conviction thereof, shall be fined in an amount not to exceed $50.00 or shall be imprisoned in the county jail for a period not to exceed 72 hours, or both fined and imprisoned, or, in lieu of a fine and imprisonment, may, for the first offense, be placed on probation for a period not exceeding one (1) year.

6.4.b. Any person who knowingly buys for, gives to or furnishes nonintoxicating beer to anyone under the age of 21 to whom they are not related by blood or marriage is guilty of a misdemeanor and shall, upon conviction thereof, be fined in an amount not to exceed $100.00 or shall be imprisoned in the county jail for a period not to exceed 10 days, or both fined and imprisoned.

6.4.c. Any person who at any one time transports into the state for their personal use and not for resale, more than 6.75 gallons of nonintoxicating beer, upon which the West Virginia barrel tax has not been imposed, is guilty of a misdemeanor and shall, upon conviction thereof, be fined in an amount not to exceed $100.00, and shall have all the untaxed nonintoxicating beer in his or her possession at the time of the arrest confiscated, and such person shall be imprisoned for 10 days in the county jail, or both fined and imprisoned.

W. Va. Code R. § 176-1-6