Current through Register Vol. XLI, No. 13, March 29, 2024
3.1. License
application. - The application for license to operate any type of private club
shall include the following:
3.1.1. The name
signatures, citizenship, address, and residence of the applicant and
manager.
3.1.2. The place at which
such applicant will conduct its operations, whether it is owned or leased by
applicant; and if leased, from whom, giving names and addresses of all
lessors.
3.1.3. If the applicant is
an unincorporated association, the names and addresses of members of its
governing board.
3.1.4. If the
applicant is a corporation, the names and addresses of its officers and
directors. If such person be a limited liability company, the names and
addresses of the members and/or managers.
3.1.5. The size and nature of the dining and
kitchen facilities operated by applicant and the specific proportions of any
structure used in conjunction with other purposes that will constitute the type
of private club.
3.1.6. Arrest
record, if any, of the applicant and manager, and if the applicant is a
corporation, limited liability company, partnership or association the arrest
record, if any, of the officers, directors, partners, members, managers, or
stewards including disposition of same.
3.1.6.a. The Commissioner shall conduct
background investigations for the purpose of determining whether the applicant
or the applicant's manager has been charged with, indicted for, or convicted of
a crime that may have bearing upon the applicant or the applicant's manager's
fitness to hold a private club license. For purposes of this paragraph,
"background investigation" means a criminal investigation of an applicant and
manager who has applied for the issuance or renewal of a private club license
pursuant to W. Va. Code §
60-7-1
et seq. The applicant will submit West Virginia Alcohol
Beverage Control Administration Release of Information and Waiver of
Confidentiality of Records Form on the form provided by the Commissioner. The
applicant will also submit a full set of fingerprints to facilitate a criminal
background check and the ABCA will request the state police to submit the
fingerprints and identifying information to the Federal Bureau of Investigation
for a national criminal history record check. The results of the fingerprint
check will be returned to the ABCA.
3.1.6.b. The applicant will reimburse the
ABCA for all fees or charges that are incurred by the ABCA for the background
investigation.
3.1.7.
Manager requirement. - No licenses shall be given to any applicant or renewed
for any licensee who 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 private club of good reputation in the
community, and other requirements, all as set forth in the code and the
legislative 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. In order
to maintain active licensure, any change by a licensee in any manager listed on
a license or renewal application shall be made immediately to the Commissioner,
to verify that the new manager meets licensure requirements.
3.1.8. A statement of purpose or purposes for
which the club is organized (social, recreation, benevolent, charitable,
fraternal or profit).
3.1.9. How
long the club has been in existence prior to the date of the
application.
3.1.10. What national
organization it is affiliated with, if any, and the date of affiliation and
nature thereof.
3.1.11. Number of
employees.
3.1.12. Number of
members of the applicant.
3.1.13.
West Virginia consumers sales tax identification number.
3.1.14. West Virginia business franchise tax
number.
3.1.15. West Virginia
Health Department permit number to operate a restaurant.
3.1.16. Type of license applied
for.
3.1.17. Application shall only
be made on the form provided by the Commissioner or available on the ABCA
website at
www.abca.wv.gov. This form must
be completed in its entirety and failure to complete all questions shall
constitute grounds for refusal to grant a license.
3.1.18. Whether the applicant is the holder
of a federal gambling stamp.
3.1.19. Whether the applicant is the holder
of a retail liquor dealer special tax stamp.
3.2. Refusal of license.
3.2.1. No license shall be issued by the
Commissioner to any private club:
3.2.1.a.
That is located on any college campus, state university campus, or branch
thereof, unless such private club type is located upon the premises of a
National Collegiate Athletic Association, or its successor, approved Division
I, II, or III sports stadium used for revenue generating sports by a college or
university on its campus and no classes are held at the sports
stadium.
3.2.1.b. That is the
holder of a federal gambling stamp or whose manager or employee is a holder of
a federal gambling stamp.
3.2.1.c.
That discriminates against any person or group of persons in violation of
applicable state or federal law: Provided, that a license
cannot be refused based on unlawful discrimination.
3.2.1.d. That submits an application for
license that contains any false statement, and any statement found to be false
after granting of said license shall be grounds for revocation or suspension of
said license.
3.2.1.e. That is not
a bona fide private club of good reputation in the community in which it
operates. For purposes of making such a determination, the Commissioner shall
take into consideration whether the ownership and management of the private
club will involve persons that have not 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 and whether the
premises to be used by the private club is a suitable place.
3.2.1.f. That fails to have the applicant and
manager attest that the information in the application is true and
accurate.
3.2.2. The
Commissioner may refuse to grant any license if he or she has reasonable cause
to believe, as indicated by documented evidence, that the applicant, or any
officer, director or manager thereof, or shareholder owning 20% or more of its
capital stock, beneficial or otherwise, or other person conducting or managing
the affairs of the applicant or of the proposed licensed premises, in whole or
part:
3.2.2.a. Has not been convicted of a
felony in the previous five years before the date of application, has not been
convicted of a crime involving fraud, dishonesty, or deceit in the previous
five years before application, and has not been convicted of a felony crime for
violating alcohol-related distribution laws in the previous five
years;
3.2.2.b. Has maintained a
noisy, loud, disorderly, or unsanitary establishment;
3.2.2.c. Has demonstrated, either by his or
her police record or by his record as a former licensee under W. Va. Code
§
11-16-1
et seq. or Chapter 60 of the West Virginia Code a lack of
respect for law and order, generally, or for the laws and rules governing the
sale and distribution of alcoholic beverages or nonintoxicating beer;
3.2.2.d. Has misrepresented a material fact
in applying to the Commissioner for a license; or
3.2.2.e. Has not listed accurate and complete
ownership information.
3.2.3. For purposes of this rule, the
Commissioner shall refuse to grant any license if he or she has reasonable
cause to believe, as indicated by documented evidence that the applicant, or
any officer, director or manager thereof, or shareholder owning 20% or more of
its capital stock, beneficial or otherwise, or other person conducting or
managing the affairs to the applicant or of the proposed licensed premises, in
whole or part:
3.2.3.a. Is not 21 years of age
or older;
3.2.3.b. Has been
convicted of a felony or other crime involving fraud, dishonesty, or deceit,
and upon such conviction the applicant will not be eligible for licensure
within five years next preceding successful completion of all conditions of
probation, discharge from parole supervision, or expiration of
sentence;
3.2.3.c. Has been
convicted of violating any alcoholic liquor laws, rules, or regulations, or any
beer laws, rules, or regulations of any state or the United States, and upon
such conviction the applicant shall not be eligible for licensure within five
years next preceding successful completion of all conditions of probation,
discharge from parole supervision, or expiration of sentence;
3.2.3.d. Has had any license revoked under
the alcoholic liquor laws, rules, or regulations, or the beer laws, rules or
regulations of any state or the United States within five years next preceding
the filing date of the application;
3.2.3.e. Is not the legitimate owner of the
business proposed to be licensed, or other persons have ownership interests in
the business, which have not been disclosed;
3.2.3.f. Is a person to whom alcoholic
beverages may not be sold under the provisions of Chapter 60 of the West
Virginia Code;
3.2.3.g. Has been
adjudicated an incompetent;
3.2.3.h. Is an officer or employee of the
Alcohol Beverage Control Commissioner of West Virginia; or
3.2.3.i. Is violating or allowing the
violation of any provision of Chapter 60 or Chapter 61 of the West Virginia
Code or W. Va. Code §
11-16-1
et seq. in its establishment at the time its application for a
license is pending or at any time during either the current licensed period or
the immediately preceding licensing period.
3.2.4. No license shall be issued by the
Commissioner to any type of private club if the place to be occupied by the
applicant:
3.2.4.a. Does not conform to the
requirements of applicable laws of the State with respect to sanitation,
health, construction, or equipment, or to any similar requirements established
by the rules of the Commissioner.
3.2.4.b. Is so located that violations of W.
Va. Code §
60-1-1
et seq., or of the rules of the Commissioner, or the laws of
this State relating to peace and good order would result from the issuance of
such license and operation by the applicant.
3.2.4.c. Is so situated with respect to any
church, hospital, school, college, or university, public or private playground
or other similar recreational facilities, or any state, local, or federal
government-operated facility, that operation under the license will adversely
affect or interfere with normal, orderly conduct of the affairs of such
facilities or institutions.
3.2.4.d. Is so situated with respect to any
residence or residential area that its operation will adversely affect real
property values or substantially interfere with the usual quietude and
tranquility of the residential area.
3.2.5. The Commissioner may refuse to issue a
license if he or she has reasonable ground to believe that the number of
licenses existent in the locality is such that the issuance of an additional
license would be detrimental to the interests, morals, safety, or welfare of
the public, and, in reaching his or her conclusion in this respect, the
Commissioner may consider the character, population, and number of similar
licensees in the particular town, city, or county and the immediate
neighborhood concerned, and the effect which a new license may have on such
town, city, county, or neighborhood in conforming with the purposes of the
Liquor Control Act.
3.2.5.a. Any person
applying for a license to operate a private club at any location within a
municipality must file a notice of such intention using the zoning form
provided by the Commissioner or available on the ABCA website at
www.abca.wv.gov, with the clerk or
recorder of the municipality at least 10 calendar days prior to filing an
application for a private club license with the ABCA as required by W. Va. Code
§
60-7-4a.
3.2.5.b. Any person applying for a license to
operate any type of private club that is not within a municipality, must submit
a letter from the county commissioner stating that the location of the club is
in compliance with zoning ordinances for that county.
3.2.6. In the process of determining whether
or not a license should be issued, the Commissioner must investigate the
accuracy of all allegations, that could lead to denial of the license. The
Commissioner may request such other information as the Commissioner may
reasonably require of the applicant and a manager which shall include, but not
be limited to, all pecuniary or financial interest in the applicant and the
criminal records, if any, of each member of the applicant's governing
board.
3.2.7. Upon receipt of a
completed application, together with the accompanying fee and bond, the
Commissioner shall conduct an investigation to determine the accuracy of the
matters contained in such completed application and whether applicant is a bona
fide private club of good reputation in the community in which it shall
operate. For the purpose of conducting such investigation, the Commissioner may
withhold the granting or refusal to grant the license for a period not to
exceed 30 calendar days or until the applicant has completed the conditions set
forth in the code, all as determined by the Commissioner. The Commissioner may
issue a license authorizing the applicant to sell alcoholic liquors if it
appears that the applicant is a bona fide private club of good reputation in
the community in which it shall operate and that the applicant and the manager
listed in the application or renewal application have not made any false
statement, material misrepresentation, or omissions; have no hidden ownership
or undisclosed pecuniary interests; and have complied with all applicable
requirements in the West Virginia Code and Code of State Rules, which are all
subject to investigation by the Commissioner and as determined by the
Commissioner.
3.3. Type
of license. - The Commissioner, upon a decision to grant a license, will issue
said license in one of two categories:
Type I. - This is for a private club license issued to a
nationally recognized fraternal or veterans organization, and or any other
nonprofit social club, all of the same being operated exclusively for the
benefit of its members and pays no part of its income to shareholders or
individual members, and maintains on its premises a suitable kitchen and dining
facility with related equipment for serving food to members and their
guests.
Type II. - This is for social organizations or corporations
operated for legitimate purposes and for profit, that pays part of its income
to shareholders or individual members, and maintains on its premises a suitable
kitchen and dining facility with related equipment, and employs a sufficient
number of persons for the serving of meals to members and their guests at all
times during the hours of operation.
As to each of the categories above, a license will only be
granted upon a certification that the general public is not and will not be
admitted on the premises, and only duly elected or approved dues paying members
in good standing, and their guests, while in the company of a member, are
permitted to enter said premises. The membership list requirement may be met
through social media members and guests, actual member and guest list, or other
lists of members, either electronically or manually, maintained by the
licensee. Any type of private club that does not maintain a membership list may
not be afforded the rights and protections of the private club
privilege.
3.3.1. A private fair and
festival, one-day charitable rare, antique, or vintage liquor auction, and a
private multi-vendor festival are temporary Type II licenses, and a private
club bar, private club restaurant, private manufacturers club, private hotel,
private resort hotel, private golf club, private nine-hole golf course, private
caterer, private farmers market, private multi-sport complex, private
professional sports stadium, private tennis club, and private wedding venue or
barn are Type II licenses.
3.4. Fees, additional license types and
license services.
3.4.1. The annual fee for
licenses issued under the provisions of W. Va. Code §
60-7-1
et seq. shall be as follows:
3.4.1.a. For a fraternal or veterans
organization or a nonprofit social club, $750.00.
3.4.1.b. For a private club bar or private
club restaurant other than a private club of the type specified in subdivision
3.4.1.a. of this subsection, $1,000.00 if determined by the Commissioner that
such private club has less than 1,000 members and $2,500.00 if such private
club bar or private club restaurant has 1,000 or more members. A private club
bar or private club restaurant licensee with 1,000 or more members may, in the
Commissioner's discretion, operate Class B license for the off-premises sale of
nonintoxicating beer and wine in a connected but separately operated area of
the private club premises:
Provided, that each business is
licensed separately and operates separate cash registers and maintains
separation barriers between the different licensed operations. Failure of a
licensee to license two inner-connected businesses shall subject the licensee
to the penalties under W.Va. Code §
60-7-1
et seq. and this rule. The fee for any license issued
following the first day of January of any year, to expire on the 30th day of
June of each year, will be 1/2 of that previously prescribed. Such fee shall be
payable to the West Virginia Alcohol Beverage Control Commissioner by certified
check, cashier's check, or money order and must accompany the application.
3.4.1.b.1. For a private hotel or a private
golf club (18 holes) of the type specified in W. Va. Code §
60-7-6(b),
$4,000.00.
3.4.1.b.2. For a private
resort hotel of the type specified in W. Va. Code §
60-7-6(b):
with 5 or fewer designated areas, $7,500.00; with at least 6 but no more than
10 designated areas, $12,500.00; with at least 11 but no more than 15
designated areas, $17,500.00; and with no fewer than 15 nor more than 20
designated areas, $22,500.00.
3.4.1.b.3. For a private nine-hole golf
course, private farmers market, private professional sports stadium, private
multi-sport complex, private manufacturer club, or a private tennis club of the
type specified in W. Va. Code §
60-7-6(b),
$2,000.00.
3.4.1.b.4. For a private
wedding venue or barn of the type specified in W. Va. Code §
60-7-6(b),
$1,500.00.
3.4.1.b.5. For a private
caterer, that is already licensed as private club restaurant, of the type
specified in W. Va. Code §
60-7-6(b),
$1,000.00.
3.4.2. A private resort hotel having obtained
a license and paid the $22,500.00 annual license fee may, upon application to
and approval of the Commissioner, designate additional areas for a period not
to exceed seven calendar days for an additional fee of $150.00 per day, per
designated area.
3.4.3. A private
fair and festival shall be designated a Class S2 private fair and festival
license for the retail sale of liquor, wine, nonintoxicating beer, and
nonintoxicating craft beer for on-premises consumption at a temporary event and
shall pay a nonrefundable nonprorated license fee of $750.00.
3.4.4. A private multi-vendor fair and
festival shall be designated a Class S3 private multi-vendor fair and festival
license for the retail sale of liquor, wine, and nonintoxicating beer or
nonintoxicating craft beer for on-premises consumption at a temporary event and
shall pay a nonrefundable nonprorated license fee of $500.00.
3.4.5. A one-day charitable rare, antique, or
vintage liquor auction shall be a one-day special license issued to any
licensed private club type in partnership with a duly organized and federally
approved nonprofit organization or entity to conduct a charitable auction of
rare, antique, or vintage liquor, as determined by the Commissioner, on the
licensed private club's licensed premises for consumption off-premises and
shall pay a nonrefundable nonprorated $150.00 license fee per one-time
event.
3.4.6. Growler requirements.
3.4.6.a. Nonintoxicating beer or
nonintoxicating craft beer growler requirements. - Any type of licensed private
club who pays the $100.00 fee set forth in W. Va. Code §
11-16-6b
and meets the requirements of this section may offer nonintoxicating beer or
nonintoxicating craft beer 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.
3.4.6.a.1. Prior
to a growler sale, the licensee shall verify, using proper identification, that
any patron purchasing nonintoxicating beer or nonintoxicating craft beer is 21
years of age or over and that the patron is not visibly intoxicated.
3.4.6.a.2. A licensee may not sell, give, or
furnish alcoholic liquors, including wine, for consumption off of its licensed
premises, unless it is any type of private club 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., and in subsection 3.4.7. or 3.4.6.b., for the sale of
sealed wine growlers, not liquor, and further unless a private club restaurant
or private manufacturer club is licensed for sale of liquor in craft cocktail
growlers as set forth in subsection 3.4.6.c. and W. Va. Code §
60-7-1
et seq.
3.4.6.a.3.
A licensee shall comply with all the retail sales, payment of taxes and fees,
advertising, nonintoxicating beer or nonintoxicating craft beer growler
requirements, nonintoxicating beer or nonintoxicating craft beer growler
labeling, nonintoxicating beer or nonintoxicating craft beer growler
sanitation, nonintoxicating beer or nonintoxicating craft beer growler sampling
and limitations provisions of W. Va. Code §
11-16-6b
and shall be subject to all applicable requirements and penalties in W. Va.
Code §
11-16-1
et seq.
3.4.6.b. Wine Growler requirements. Any type
of licensed private club 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.
3.4.6.b.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.
3.4.6.b.2. A licensee
may not sell, give, or furnish alcoholic liquors, including wine, for
consumption off of its licensed premises, unless it is any type of private club
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., and in subsection 3.4.7. or 3.4.6.b., for the sale of
sealed wine growlers, not liquor, and further unless a private club restaurant
or private manufacturer club is licensed for sale of liquor in craft cocktail
growlers as set forth in subsection 3.4.6.c. and W. Va. Code §
60-7-1
et seq.
3.4.6.b.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.
3.4.6.c. Craft Cocktail Growler requirements.
3.4.6.c.1. Craft cocktail growler defined. -
"Craft Cocktail Growler" means a container or jug that is made of glass (may
include a howler), ceramic, metal, plastic (any plastic must be certified as
BPA free and any plastic that generates BPAs in the cleaning and sanitization
process, which are hazardous to public health, will not be approved), 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 and may be sold in
accordance with the Code.
3.4.6.c.2
Sales of craft cocktail growlers. - A licensed private club restaurant or
private manufacturer club that is authorized under a current and valid license
and meets the requirements of this section may offer a craft cocktail growler
in the ratio of up to one fluid ounce of liquor to four fluid ounces of
nonalcoholic beverages or mixers, not to exceed 128 fluid ounces for the entire
beverage in the craft cocktail growler, for retail sale to patrons from their
licensed premises in a sealed craft cocktail growler for personal consumption
only off of the licensed premises.
3.4.6.c.2.A. There shall be a $100
non-prorated, non-refundable annual fee to sell craft cocktail growlers and
sales must be completed in accordance with the Code.
3.4.6.c.2.B. Every licensee licensed under
this section shall pay all taxes and fees required by the Code and shall comply
with the the required markup specified in W. Va. Code §
60-3A-17(e)(2)
when conducting sealed craft cocktail growler sales.
3.4.6.c.2.C. Every licensee licensed under
this section may only advertise a particular brand or brands of liquor
manufactured by a distillery, mini-distillery, or micro-distillery upon written
approval from the distillery, mini-distillery, micro-distillery, or an
authorized and licensed broker to the licensee. Advertisements may not
encourage intemperance or target minors.
3.4.6.c.3. Craft cocktail growler
requirements.
3.4.6.c.3.A. A licensee licensed
under this section may refill a craft cocktail growler from a secure area only
accessible by the authorized licensee and its staff and not accessible by
patrons, subject to the requirements of this section. The Commissioner has
discretion to determine a secure area on a case-by-case basis for each
authorized licensee.
3.4.6.c.3.B. A
licensee licensed under this section must sanitize, inspect, fill, securely
seal, and label any craft cocktail growler prior to its sale (See 3.4.6.c.5.)
in accordance with the Code.
3.4.6.c.4. Craft cocktail growler labeling. -
A licensee licensed under this section selling craft cocktail growlers shall
affix a conspicuous label on all sold and securely sealed craft cocktail
growlers listing the name of the licensee selling the craft cocktail growler,
the brand of the liquor in the craft cocktail growler, the type of craft
cocktail or name of the craft cocktail, the alcohol content by volume of the
liquor in the craft cocktail growler, and the date the craft cocktail growler
was filled or refilled, and, all labeling on the craft cocktail growler shall
be consistent with all federal labeling and warning requirements.
3.4.6.c.5. Craft cocktail growler sanitation.
- A licensee licensed under this section shall clean and sanitize all craft
cocktail growlers he or she fills or refills in accordance with all state and
county health requirements prior to its sealing. In addition, the licensee
licensed under this section shall sanitize, in accordance with all state and
county health requirements, all taps, tap lines, pipe lines, barrel tubes, and
any other related equipment used to fill or refill craft cocktail growlers.
Failure to comply with this subsection may result in penalties under this
article: Provided, That, if the reuse or refilling of a craft
cocktail growler would violate federal law such craft cocktail growler must
only be used one-time, for one filling, and be discarded after the one-time
use. Any approved craft cocktail growler made from plastic must be certified
BPA-free, sanitized at the place of manufacture and prior to filling must
remain in the original sanitized package in order to meet sanitization
requirements, thus such a one-time use approved craft cocktail growler made
from plastic is permissible when meeting the requirements of the Code and rule.
A plastic cup with a lid does not qualify as craft cocktail growler.
3.4.6.c.6. Pre-mixing of a craft cocktail. -
A licensee licensed under this section may pre-mix the nonalcoholic beverages
or mixers in the advance of a craft cocktail growler purchase and sealing, and
add the liquor, as set forth in this section, upon a member or guest's purchase
of a craft cocktail growler. A licensee licensed under this section must
dispose of any expired premixed nonalcoholic beverages or mixers pursuant to
Bureau for Public Health requirements when such premixed nonalcoholic beverages
or mixers are no longer fit for human consumption. A licensee authorized under
W. Va. Code §
60-6-8(7)
may use a premixed beverage meeting the requirements therein and is also
subject to the requirements of this section for a craft cocktail
growler.
3.4.6.c.7. Limitations on
licensees.
3.4.6.c.7.A. Sales of craft
cocktail growlers to member and guests only. A licensee licensed under this
section shall not sell craft cocktail growlers to other licensees, but only to
its members and guests.
3.4.6.c.7.B. Sales of craft cocktail growlers
made: to a person ordering while physically at the licensed premises, to a
person ordering by telephone, mobile application, or web-based ordering for
in-person or in-vehicle pickup, or any craft cocktail growler sales.
3.4.6.c.7.B.i. A licensee licensed under this
section must provide food or a meal along with one sealed craft cocktail
growler to a patron, subject to verification that the purchasing person is 21
years of age or older, and not visibly or noticeably intoxicated, and as
otherwise specified.
3.4.6.c.7.B.ii. A licensee licensed under
this section may only sell one sealed craft cocktail growler to a patron who
has not been consuming alcoholic liquors or nonintoxicating beer on its
licensed premises or one craft cocktail growler per food or meal in the order
delivered per W. Va. Code §
60-7-8f.
3.4.6.c.7.C. A licensee licensed to sell
craft cocktail growlers shall be subject to the applicable Bureau for Public
Health legislative rules and requirements concerning
sanitation.
3.4.6.d. Pre-mixing Permits. - It is
generally unlawful for any licensee to sell, furnish, tender, or serve
pre-mixed alcoholic liquor that is not in the original container, except:
3.4.6.d.1. Any type of private club licensee
may sell, furnish, tender, and serve up to 15 recipes of pre-mixed beverages
consisting of alcoholic liquors and nonalcoholic mixer (Examples of pre-mixed
cocktails: margarita, sangria, old fashioned, and cosmopolitan), when approved
by the Commissioner and in accordance with public health and safety standards;
3.4.6.d.1.A. Any type of private club
licensee shall use approved dispensing and storage equipment which shall be
cleaned after each use or after each batch of the pre-mixed beverage is made
and at the end each business day; and
3.4.6.d.1.B. A licensee that obtains a permit
shall maintain a written record reflecting the cleaning and sanitizing of the
storage and dispensing equipment for inspection by the Commissioner and health
inspectors, and shall abide by the requirements regarding disposal of premixed
beverages or nonalcoholic beverages pursuant to the Bureau of Public
Health;
3.4.6.d.2. Any
type of private club licensee desiring to pre-mix alcoholic beverages shall
complete the Pre-Mixing Permit application found on the ABCA website and list
up to 15 drink recipes for pre-mixing approval by the Commissioner, and shall
also submit the type of dispensing and storage equipment for each pre-mix
recipe for approval by the Commissioner;
3.4.6.d.3. The licensee applying for a
pre-mixing permit must specify if alcohol is being added to the pre-mixed
recipe before storage, after storage, or at the time of purchase.
3.4.6.d.4. A violation or violations of this
subdivision may result in the suspension or revocation of the permit and may
result in additional sanctions under W. Va. Code §
60-1-1
et seq.
3.4.6.e. Private delivery license for a
licensed private club restaurant, private manufacturer club, or a third party;
craft cocktail growler delivery requirements; limitations; third party license
fee; private cocktail delivery permit; and requirements.
3.4.6.e.1. A licensed private club restaurant
or private manufacturer club licensed to sell liquor for on-premises
consumption may apply for a private delivery license permitting the order,
sale, and delivery of liquor and a nonalcoholic mixer or beverage in a sealed
craft cocktail growler, when separately licensed for craft cocktail growler
sales as set forth in the Code and rules.
3.4.6.e.1.A. The order, sale, and delivery of
a sealed craft cocktail growler is permitted for off-premises consumption when
completed by the licensee to a person purchasing the craft cocktail growler
through a telephone, a mobile ordering application, or web-based software
program, authorized by the licensee's license.
3.4.6.e.1.B. There is no additional fee for a
licensed private club restaurant or private manufacturer club to obtain a
private delivery license.
3.4.6.e.2. A third party, not licensed for
liquor sales or distribution, may apply for a private delivery license for the
privilege of ordering and delivery of craft cocktail growlers, from a licensee
with a craft cocktail growler license.
3.4.6.e.2.A. The order and delivery of a
sealed craft cocktail growler is permitted by a third party who obtains a
license under this section when a private club restaurant or private
manufacturer club sells to a person purchasing the sealed craft cocktail
growler through telephone orders, a mobile ordering application, or a web-based
software program.
3.4.6.e.2.B. The
private delivery license nonprorated, nonrefundable annual fee is $200 for each
third party entity, with no limit on the number of drivers and
vehicles.
3.4.6.e.3.
Sale Requirements: A craft cocktail growler purchase 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 §
60-7-1
et seq., and specifically W. Va. Code §
60-7-8f.
3.4.6.e.4. Craft Cocktail Growler Delivery
Requirements: A craft cocktail growler may be delivered to a person if the
delivery driver verifies that the person is at least 21 years of age, is not
noticeably or visibly intoxicated at the time of delivery and is the purchasing
person as defined in the Code. Any delivery driver that cannot complete a
delivery in accordance with W. Va. Code §
60-7-8f
may leave the food or meal that was ordered with the person at the delivery
location, but must return any craft cocktail growler or growlers to the
licensee since the delivery requirements were not met.
3.4.6.e.5. Telephone, mobile ordering
application, or web-based software requirements. The delivery person must
permit only the person who placed the delivery order through telephone order,
mobile ordering application, or web-based software to accept the prepared food
or meal and a craft cocktail growler delivery. The delivery person must verify
the person's age using the person's legal identification. The delivery must
otherwise comply with W. Va. Code §
60-7-8f(f).
3.4.6.e.6. Private Cocktail
Delivery Permit.
3.4.6.e.6.A. The licensed
private club restaurant, private manufacturer club, or third party private
delivery licensee shall:
3.4.6.e.6.A.i. Obtain
and maintain a retail transportation permit for its delivery drivers for the
delivery of prepared food and a sealed craft cocktail growler;
3.4.6.e.6.A.ii. Provide vehicle and driver
information, requested by the Commissioner. Upon any change in vehicles or
drivers, the licensee shall update the driver and vehicle information with the
Commissioner within 10 days of the change; and
3.4.6.e.6.B. Per W. Va. Code §
60-6-12,
a private cocktail delivery permit shall meet the requirements of a
transportation permit which authorizes the permit holder to transport
liquor.
3.4.7. Wine bottle requirements. - A license
to sell wine granted to any private club entitles the operator to sell and
serve wine, for consumption on the premises of the licensee when the sale
accompanies the serving of food or a meal:
3.4.7.a. Any licensed private club for no
additional license fee may permit a person over 21 years of age to purchase
wine, consume wine, and recork or reseal, using a tamper resistant cork or
seal, up to two separate bottles of unconsumed wine in conjunction with the
serving of food or a meal to its members and their guests in accordance with
the provisions of W. Va. Code §
60-8-1
et seq. for the purpose of consumption of said wine
off-premises;
3.4.7.b. Any licensed
private club who shall apply, pay a $100.00 license fee, and is approved by the
Commissioner may offer for sale, for consumption off the premises, sealed
bottles of wine to its customers in conjunction with the serving of food or a
meal: Provided, that no more than one bottle is sold per each
person over 21 years of age, as verified by the private club, for consumption
off the premises. Such licensees are authorized to keep and maintain on their
premises a supply of wine in quantities appropriate for the conduct of
operations thereof. Any sale of wine is subject to all restrictions set forth
in W. Va. Code §
60-8-20.
3.4.7.c. Corkage or uncorking of wine is
permitted for a private club restaurant as set forth in the requirements in
subsection 2.22.5
3.4.8.
Liquor bottle service. - A private club licensed under W. Va. Code §
60-7-1
et seq., that is in good standing with the Commissioner may
apply for the Commissioner's approval, and shall pay a $1,000.00 annual fee
which is nonrefundable and non-prorated, to sell or serve liquor by the bottle
to two or more persons for personal consumption, not for resale, on the
licensed premises only in a designated area set forth on the license's approved
floorplan.
3.4.9. Operational fee.
- All Class A and private club type licensees shall pay, with their annual fee,
an annual $100.00 operational fee per licensed premises.
3.4.10. Reactivation fee. - A licensee that
fails to complete a renewal application and make payment of its annual license
fee in renewing its license on or before June 30 of any subsequent year, after
initial application, shall be charged an additional $150.00 reactivation fee.
The fee payment may not be prorated or refunded. The reactivation fee must be
paid prior to the processing of any renewal application and payment of the
applicable full year annual license fee. A licensee who continues to operate
upon the expiration of its license is subject to all fines, penalties, and
sanctions available in W. Va. Code §
60-7-13
and W.Va. Code §
60-7-13a,
all as determined by the Commissioner.
3.4.11. Private outdoor dining and private
outdoor street dining.
3.4.11.a. Private
outdoor dining. - With prior approval of the Commissioner a private club
licensee may sell, serve, and furnish alcoholic liquor and, if also licensed to
sell, serve, and furnish nonintoxicating beer or nonintoxicating craft beer to
be consumed on premises in a legally demarcated area which may include a
temporary private outdoor dining area. The emphasis of this authorization is to
permit outdoor dining only. The Commissioner may, at his or her discretion,
authorize entertainment or alcoholic beverage service in the private outdoor
dining area. The Commissioner may determine not to authorize entertainment but
must provide a written statement indicating why such entertainment is not
authorized.
3.4.11.b. Private
outdoor street dining. - With prior approval of the Commissioner a private club
licensee may sell, serve, and furnish alcoholic liquor and, if also licensed to
sell, serve, and furnish nonintoxicating beer or nonintoxicating craft beer to
be consumed on premises in a legally demarcated area which may include a
temporary private outdoor street dining area. The emphasis of this
authorization is to permit outdoor street dining only. The Commissioner may, at
his or her discretion, authorize entertainment or alcoholic beverage service in
the private outdoor street dining area. The Commissioner may determine not to
authorize entertainment but must provide a written statement indicating why
such entertainment is not authorized
3.4.11.b.1. A temporary private outdoor
street dining area shall be approved by the municipal government or county
commission in which the licensee operates. The Commissioner shall develop and
make available an application form to facilitate the purposes of this
subsection.
3.4.11.c. A
private club licensee shall submit to the Commissioner:
3.4.11.c.1. An application available on the
Commissioner's website;
3.4.11.c.2.
The municipal or county written approval, either a letter from the municipality
or county or a form on the Commissioner's website, of the private outdoor
dining area or private outdoor street dining area; and,
3.4.11.c.3. A revised floorplan requesting to
sell alcoholic liquors, and when licensed for nonintoxicating beer or
nonintoxicating craft beer, then nonintoxicating beer or nonintoxicating craft
beer, subject to the Commissioner's requirements, in an approved and bounded
outdoor area in accordance with W. Va. Code §
60-7-8d.
3.4.11.d. In the absence of legal
demarcation by resolution or ordinance of a municipality or county, the
Commissioner may, at his or her discretion, provide for temporary legal
demarcation based on a written and executed authorization letter from a
municipality or county, subject to passage of a resolution or ordinance for a
private outdoor dining area or private outdoor street dining area.
3.5. Bond. - No license
will be issued until the applicant has executed a bond in the penal sum of
$5,000.00, payable to the State of West Virginia. The surety on the bond shall
be executed by a corporate surety authorized to transact business in the State
of West Virginia, which bond will be conditioned on the payment of all fees
prescribed by law and on the faithful performance of, and compliance with the
provisions of W. Va. Code §
60-7-1
et seq. and this rule duly promulgated thereunder, and the
same shall be done on Alcohol Beverage Control Commissioner's Form No. ABCA
193. Also required is a bond in the penal sum of $1,000.00, payable to the
State of West Virginia for the same surety as above for Nonintoxicating Beer
Bond and will be submitted on Alcohol Beverage Control Commissioner's Form No.
ABCA-194 Nonintoxicating Beer Bond.
3.6. License not transferable. - A license
issued under the provision of this rule will be valid only for the organization
named to conduct a private club on the premises thereon described and is not
transferable. If there is a change in ownership, the new owners must make
application as prescribed, then such violation shall constitute grounds for
revocation of their license that they are then operating under.
3.7. License application form. - The
application form for a license to sell alcoholic liquors by any private club
type is available from the Commissioner or on the ABCA website at
www.abca.wv.gov.