W. Va. Code R. § 175-4-5 - Licensed Retailers

5.1. Licensure application; form. -- The application for licensure as a licensed retailer shall be made on a form provided by the Commissioner or available on the ABCA website at www.abca.wv.gov.

5.2. Licensure application; content. -- The application for licensure as a licensed retailer shall contain and include the following:

5.2.1. The name and address of the applicant and the applicant's manager, and shall state whether the applicant is an individual, corporation, partnership, association, or other business entity;

5.2.2. The business trade name of the applicant;

5.2.3. The exact location of the business establishment;

5.2.4. Whether the application is for the sale of wine in a bona fide grocery store, a separate and segregated portion of any other retail store dedicated solely to the sale of food, or a wine specialty shop;

5.2.5. The date upon which the applicant began the operation of the business;

5.2.6. Whether the applicant is the owner of the business premises for which the license is sought, and if not, whether the applicant is the actual and bona fide lessee of such premises including the lessor's name and address;

5.2.7. Whether the applicant intends to carry on the business for which he or she is to be licensed for personally or under his or her immediate supervision or direction, and if not, the name, age, and address of the person who will manage or conduct the affairs of the retail business;

5.2.8. Whether the place of business for which the license is sought conforms to all applicable health and fire laws, rule or regulations, and existing zoning ordinances;

5.2.9. Whether the applicant, if an individual, or whether any partner, member, officer, director, or stockholder of the applicant holds or owns any interest in any licensed wine distributor, and if so, the extent and nature of such ownership;

5.2.10. If the applicant or the applicant's manager is an individual, whether the applicant or the applicant's manager is a citizen of the United States, a bona fide resident of the State of West Virginia and the length of such residence, and whether the applicant or the applicant's manager has attained 18 years of age;

5.2.11. If the applicant is a partnership, association, or other business entity, whether each member, is a citizen of the United States, a bona fide resident of the State of West Virginia and length of such residence and whether such member has attained 18 years of age;

5.2.12. If the applicant is a corporation, whether the person who is or will be conducting or managing the business of such applicant is a citizen of the United States, resident of the State of West Virginia and whether the person has attained 18 years of age;

5.2.13. Whether the applicant or any partner, member, manager, officer, director, or person owning 20% or more of the stock or beneficial interest in the applicant:

5.2.13.a. Has been convicted of a felony or other crime involving moral turpitude within three (3) years next preceding the filing date of the application;

5.2.13.b. Has been convicted of a violation of the liquor laws of any state or of the United States within two (2) years next preceding the filing date of the application; or

5.2.13.c. Has had any license revoked under the liquor laws of any state or of the United States within five (5) years next preceding the filing date of the application;

5.2.14. If the applicant is a corporation, the name, address, and corporate title of each officer, and the name, address, and age of any persons owning 20% or more of the stock or beneficial interest in the applicant;

5.2.15. Whether the business premises of the applicant are located within an incorporated municipality or within one mile of the corporate limits of one or more incorporated municipalities, and, if so, the name of each municipality;

5.2.16. Whether the applicant is licensed either as a private club type under the provisions of W. Va. Code § 60-7-1 et seq., or as either a Class A nonintoxicating beer retailer or a Class B nonintoxicating beer retailer under the provisions of W. Va. Code § 11-16-1 et seq.;

5.2.17. If the application is for a bona fide grocery store or for any other type of retail store with a separate and segregated portion of the store devoted to the sale of food, food products, and supplies for the table, the application shall indicate whether the average monthly sales of grocery items, exclusive of wines, exceed $500 and whether the average monthly inventory, exclusive of wines, exceeds $500;

5.2.18. Background checks. The Commissioner shall conduct background investigations for the purpose of determining whether an applicant or the applicant's manager for a licensed retailer's license has been charged with, indicted for, or convicted of a crime that may have bearing upon the applicant's fitness to hold a license. For the purposes of this paragraph, "background investigation" means a security, criminal, and credit investigation of an applicant who has applied for the issuance or renewal of a license pursuant to W. Va. Code § 60-8-1 et seq. The applicant and the applicant's manager will complete and submit West Virginia Alcohol Beverage Control Administration Release of Information and Waiver of Confidentiality of Records Form to the Commissioner. The applicant and the applicant's manager will obtain a fingerprinting service code from the ABCA. The applicant(s) and applicant's manager will contact the current background check service provider to schedule fingerprinting for completion of the background check. The current background check provider will receive the background results from the WV State Police and the Federal Bureau of Investigation. The results will be shared with the ABCA by the WV State Police; and

5.2.19. Such other information as the Commissioner may require.

5.3. Licensure application; signature and acknowledgement required. -- Each application shall be signed by the applicant and the applicant's manager, made under oath and acknowledged or verified. In the case of a general partnership the application shall be signed by each of the partners. In the case of a limited partnership, the application shall be signed by each of the general partners and by each limited partner who owns 20% or more of the capital or profits of such limited partnership. In the case of a voluntary association, all members of the governing board shall sign. In the case of a corporation, the application shall be signed by either its president or a vice president.

5.4. Corporate charter, partnership agreement, or association bylaws required. -- If the applicant for licensure as a licensed retailer is a corporation, the applicant shall furnish with its application a copy of its corporate charter, including any amendments thereto. If the applicant is a partnership, limited partnership, or association, such applicant shall provide a copy of the partnership agreement or a copy of the association's bylaws.

5.5. Fees. -- An applicant for licensure as a licensed retailer shall remit with the application the operational fee (See W. Va. Code § 60-2-17b) and the annual license fee for such license. The annual licensing period shall begin on July 1 of the year for which the application is made and shall end on June 30 of the following year.

5.5.1. If the application is for licensure as a retailer or wine specialty shop is for less than an entire fiscal year, then such license fee shall be proportionate to the remainder of such year according to the date of application, as follows:

5.5.1.a. If the application is made at any time from July 1 through December 31, the fee shall be the full annual license fee, or $150 for a retailer license or $250 for a wine specialty shop license.

5.5.1.b. If the application is made at any time from January 1 through June 30, the license fee shall be one half (1/2) of the annual fee, or $75 for a retailer license or $125 for a wine specialty shop license.

5.5.2. Fees shall be payable to the West Virginia Alcohol Beverage Control Administration Commissioner by certified check, cashier's check, business check, personal check, or money order, or by credit card only on the ABCA website at www.abca.wv.gov. All payments must accompany or be made simultaneously with the filing of an application.

5.5.3. Any licensee that fails to complete a renewal application and to make payment of its annual license fee to renew its license on or before June 30 of any year, after initial application, shall be charged an additional $150 reactivation fee. The licensee must pay the applicable operational fee, full-year annual license fee, and the reactivation fee prior to the processing of any renewal application. Any licensee who continues to operate upon the expiration of its license is subject to all fines, penalties, and sanctions available in W. Va. Code § 60-8-1 et seq., as determined by the commissioner.

5.6. Investigations. -- Upon receipt of an application for licensure, the fee, the bond and other required documents, the Commissioner shall make a thorough investigation to determine whether the applicant and the applicant's manager, and all locations and premises to be operated by the applicant pursuant to the license applied for, qualify for licensure. The Commissioner shall investigate all matters, including but not limited to, such matters which may affect the public welfare, health and morals.

5.7. Refusal of license. -- No license may be issued to an applicant or the applicant's manager, who;

5.7.1. Submits an application for licensure that containing a false statement;

5.7.2. Is affirmatively shown to be not a suitable person in the community or communities in which it operates. The Commissioner may refuse to grant any license if he or she has reasonable cause to believe that the applicant, or if the applicant is a partnership or association, any partner or member thereof, or if the applicant is a corporation, any officer, director or manager thereof, or shareholder owning 20% or more of its capital stock, or other person conducting or managing the affairs of the applicant or of the proposed licensed premises, in whole or in part:

5.7.2.a. Is not 21 years of age or older;

5.7.2.b. Has been convicted of a felony or other crime involving moral turpitude within three (3) years next preceding the filing date of the application;

5.7.2.c. Has been convicted of violating the liquor laws of any state or the United States within two (2) years next preceding the filing date of the application;

5.7.2.d. Has had any license revoked under the liquor laws of any state or the United States within five (5) years next preceding the filing date of the application;

5.7.2.e. Is not a person of good moral character or repute;

5.7.2.f. Is not the legitimate owner of the business proposed to be licensed, or has not disclosed other persons have ownership interests in the business;

5.7.2.g. Is not possessed of or has not demonstrated financial responsibility sufficient to adequately meet the requirements of the business proposed to be licensed;

5.7.2.h. Has maintained a noisy, loud, disorderly, or unsanitary establishment;

5.7.2.i. Has demonstrated, either by his or her police record or by his or her record as a former licensee under W. Va. Code § 60-1-1 et seq., a lack of respect for law and order;

5.7.2.j. Is unable to speak, understand, and read the English language in a reasonably satisfactory manner;

5.7.2.k. Is a person to whom alcoholic beverages may not be sold under the provisions of W. Va. Code § 60-1-1 et seq.;

5.7.2.l. Has the general reputation of drinking alcoholic beverages to excess or is addicted to the use of narcotics;

5.7.2.m. Is physically unable to carry on the business or has been adjudicated an incompetent; or

5.7.2.n. Is an officer or employee of the Commissioner.

5.7.3. has not listed a manager on the applicant's license application, or a licensee's renewal application, and further that the manager shall meet all other requirements of licensure, including, but not limited to, United States citizenship or naturalization, passing a background investigation, being at least 21 years of age, not have been convicted of a felony in the previous five years before the date of application, not have been convicted of a crime involving fraud, dishonesty, or deceit in the previous five years before application, and not have been convicted of a felony crime for violating alcohol-related distribution laws in the previous five years, being capable of operating a bona fide licensed retailer of good reputation in the community, and other requirements, all as set forth in the Code and rules, in order for the manager to be able to meet and conduct any regulatory matters, including, but not limited to: licensure or enforcement matters related to the applicant or licensee all in the interest of protecting public health and safety and being a suitable applicant or licensee.

5.7.4. Fails to meet the requirements of the liquor laws or the rules or regulations of either this state or of the United States.

5.8. License not transferable.

5.8.1. A retailer's license is valid only for the person, firm, or corporation named thereon and only for the premises for which the license is sought and issued. The license is not transferable. If there is a change in beneficial ownership to the extent of 20% or less thereof, the Commissioner shall be notified in writing by the retailer with respect thereto within 10 days next succeeding such transfer. If there is a change in the beneficial ownership in excess of 20%, then this subsection serves as notice that such license shall be voided and the licensee must make application for a new license.

5.8.2. If there is a transfer in the beneficial ownership of any interest in a licensed retailer, irrespective of the amount thereof, the new owner of such beneficial interest must comply with any and all laws of the United States and any rules or regulations promulgated pursuant thereto and of the laws of the State of West Virginia, including, but not limited to, W. Va. Code § 60-1-1 et seq., and of the rules promulgated pursuant thereto.

5.9. Change of location. -- Any licensed retailer who desires or intends to change the location of the premises for which his license is issued during the period for which his or her license is current shall notify the Commissioner in writing at least 30 days next preceding the date of relocation and obtain the written approval of the Commissioner before the relocation may occur. In the event of flood or fire, the Commissioner may waive the 30 day requirement upon request of the affected licensed retailer.

5.10. Licensure of licensed retailer as private club type or Class A nonintoxicating beer retailer.

5.10.1. No person licensed as a private club type or as a Class A nonintoxicating beer retailer may be issued a licensed retailer license if the wine retail business for which the license is sought is to be conducted upon the same premises as either the private club type or Class A nonintoxicating beer retailer establishment.

5.10.2. This rule may not be construed to prohibit the holder of a private club type license or the holder of a Class A nonintoxicating beer license from holding or being a part owner in any licensed retailer whose business premises are totally separate, distinct, and apart from the premises of the private club type or Class A nonintoxicating beer retailer establishment.

5.11. Connection between licensed retailer and private club type and Class A nonintoxicating beer retailer prohibited. A licensed retailer applicant whose premises is located within the same building or structure as a licensed private club type or a Class A nonintoxicating beer retailer, may not have an internal interconnection or door between the premises of the licensed retailer and the other licensed premises. However, a Class A private wine restaurant with a connected but separate Class B wine specialty shop licensed per W. Va. Code § 60-8-6g or a Class A private club type with a separately licensed Class B license that is licensed per W. Va. Code § 60-7-6a are permissible.

5.12. Transportation of wine by retailer. -- A licensed retailer may not transport any wine or other alcoholic liquor unless he or she has been issued a transportation permit, wine delivery with gift basket license or wine growler delivery license, by the Commissioner for that purpose.

5.13. Transfers of wine between retailers prohibited. -- A licensed retailer who operates more than one licensed retail establishment may transfer wine from one licensed retail establishment to another licensed retail establishment. However, a licensed retailer may not transfer, sell, or convey wine to another licensed retailer. A licensed retailer may purchase wine only from a distributor which is licensed in accordance with W. Va. Code § 60-8-1 et seq., or a farm winery licensed in accordance with W. Va. Code § 60-8-1 et seq.

5.14. Wine specialty shop. -- A wine specialty shop shall, in addition to maintaining a representative inventory of wines which include varietal wines, generic wines, and wines labeled according to the region or place of production, maintain an inventory of not less 15% by actual bottle count of wines which are vintage or vintage dated, which shall be determined by actual bottle count of the total wine inventory. A wine specialty shop may maintain an inventory of port, sherry, and Madeira wines which have an alcoholic content of not more than 22% alcohol by volume and have been matured in wooden barrels or casks. In addition, a wine specialty shop shall at all times have in its inventory available for sale food or foodstuffs which are normally associated with wines and have a representative inventory of wine accessories. A wine specialty shop may purchase only from a licensed distributor in this state or a licensed farm winery.

5.15. Wine specialty shops and wineries and farm wineries that have obtained a wine specialty shop license may conduct wine samplings and wine tastings when complying with the requirements of such events. A wine tasting license is $150 annually. A wine sampling license is $150 annually.

5.16. Delivery of wine gift basket by a wine specialty shop

5.16.1. Application -- On a form provided by the Commissioner or available on the ABCA website at www.abca.wv.gov, a licensed wine specialty shop may apply for a wine specialty shop delivery license privilege.

5.16.2. Fees -- The nonprorated, nonrefundable fee for the additional wine specialty shop delivery license privilege is $250.

5.16.3. A wine specialty shop may only deliver wine with a gift basket for personal use and not for resale to addresses within the State of West Virgina, and:

5.16.3.a. May only deliver in the county where the wine specialty shop is located with all sales and municipal taxes accounted for and paid, as long as such county or municipality is not a dry county or local option area;

5.16.3.b. Shall not deliver in excess of two cases of wine with a gift basket per month to any person or address;

5.16.3.c. Shall not deliver wine to any private club type, private wine restaurant, private wine bed and breakfast, or private wine spa;

5.16.3.d. Shall ensure that all wine delivered is sealed in the original container and is clearly and conspicuously labeled with the words "CONTAINS ALCOHOL; SIGNATURE OF PERSON 21 OR OLDER REQUIRED FOR DELIVERY";

5.16.3.e. Shall provide proof or records to the Commissioner by filing monthly returns to the Commissioner, on a form provided by the Commissioner, and the Tax Commissioner of all deliveries of wine which were purchased by and delivered to a person at least 21 years of age or older in the wine specialty shop's county of operation;

5.16.3.f. The wine delivered may be ordered or purchased by telephonic, electronic, mobile, or web-based wine ordering when the purchaser is verified to be 21 years of age or older and must be delivered by an officer or employee of the wine specialty shop licensee who is 21 years of age or older. If the person receiving the delivery is not the purchaser, the licensee must verify that the person receiving the wine is 21 years of age or older and not noticeably intoxicated prior to completing the delivery. Non-licensed third parties may not deliver wine with a gift basket on behalf of a licensed wine specialty shop;

5.16.3.g. Shall ensure any vehicle delivering wine in a gift basket meets the requirements set forth in W. Va. Code § 60-8-6b and §60-6-12 requiring the wine specialty shop to obtain a private wine retail transportation permit.

5.18. Wine Growlers. - A licensee who pays the $100.00 fee set forth in W. Va. Code § 60-8-6d and meets the requirements of this section may offer wine for retail sale to patrons from their licensed premises in a growler for personal consumption only off of the licensed premises, and not for resale.

5.18.1. Prior to a growler sale, the licensee shall verify, using proper identification, that any patron purchasing wine is 21 years of age or over and that the patron is not visibly intoxicated.

5.18.2. A licensee may not sell, give, or furnish alcoholic liquors, including wine, for consumption off of its licensed premises, unless it is licensed to sell sealed wine for consumption off of the licensed premises and meets the requirements set forth in the W. Va. Code § 60-8-1 et seq., for the sale of sealed wine growlers, and further unless a private wine restaurant or private manufacturer club is licensed for sale of wine growlers as set forth in subsection W. Va. Code § 60-7-1 et seq.

5.18.3. A licensee shall comply with all the retail sales, payment of taxes and fees, advertising, wine growler requirements, wine growler labeling, wine growler sanitation, wine growler sampling, and limitations provisions of W. Va. Code § 60-8-6c and §60-8-6d and shall be subject to all applicable requirements and penalties in W. Va. Code § 60-8-1 et seq.

5.19. Private wine delivery license for a Class B licensed retailer or a third party; wine growler delivery requirements; limitations; third party license fee; private wine delivery permit; and requirements.

5.19.1. A licensed retailer licensed to sell wine for on-premises consumption may apply for a private wine delivery license permitting the order, sale, and delivery of wine in the original sealed container of sealed bottles or cans, or a sealed wine growler, when separately licensed for wine growler sales as set forth in the Code and rules.

5.19.2. The order, sale, and delivery of a sealed wine growler is permitted for off-premises consumption when completed by the licensee to a person purchasing the wine growler through a telephone, a mobile ordering application, or web-based software program, authorized by the licensee's license.

5.19.3. There is no additional fee for a licensed retailer to obtain a private wine delivery license.

5.19.4. A third party, not licensed for wine sales or distribution, may apply for a private wine delivery license for the privilege of ordering and delivery of wine as set forth in 5.19.1. that is sold by a Class B wine licensee.

5.19.5. The order and delivery of wine as set forth in 5.19.1., by a third party who obtains a private wine delivery license when a Class B wine licensee sells to a person purchasing the sealed wine through telephone orders, a mobile ordering application, or a web-based software program.

5.19.6. The private wine delivery license nonprorated, nonrefundable annual fee is $200 for each third party entity, with no limit on the number of drivers and vehicles.

5.19.7. Sale Requirements: A wine purchase, as set forth in 5.19.1., must accompany the purchase of prepared food or a meal, must be sold to a person at least 21 years of age who is not visibly or noticeably intoxicated at the time of the sale, may not be in excess of 128 fluid ounces; and must otherwise comply with W. Va. Code § 60-8-1 et seq., and specifically W. Va. Code § 60-8-6f.

5.19.8. A class A wine license or a third party privileged wine delivery licensee shall obtain a private wine retail transportation permit for the delivery of sealed wine and prepared food as set forth in W. Va. Code § 60-8-6f and §60-6-12.

5.20. Blood alcohol chart. -- Each licensed retailer shall post in an open and prominent place within the licensed premises a blood alcohol chart in the form prescribed by W. Va. Code § 60-6-24.

5.21. Fetal alcohol syndrome chart. -- Each licensed retailer shall post in an open and prominent place within the licensed premises a fetal alcohol syndrome chart in the form prescribed by W. Va. Code § 60-6-24.

5.22. Human trafficking notice -- Each licensed retailer shall post in an open and prominent place within the licensed premises a human trafficking notice in the form prescribed by W. Va. Code §15A-2-5.

Notes

W. Va. Code R. § 175-4-5