West Virginia Code of State Rules
Agency 175 - Alcohol Beverage Control Commission
Title 175 - LEGISLATIVE RULE ALCOHOL BEVERAGE CONTROL COMMISSIONER
Series 175-04 - Sale of Wine
Section 175-4-16 - Hearing and Appeal Procedure

Universal Citation: 175 WV Code of State Rules 175-4-16

Current through Register Vol. XLI, No. 38, September 20, 2024

16.1. Order refusing license, suspending or revoking same. -- If the Commissioner refuses to issue a license or sanctions,suspends or revokes a license, he or she shall make and enter an order to that effect and mail, by certified mail, return receipt requested, a copy of the order to the licensee, or serve the same as provided for the service of legal process in accordance with the West Virginia Rules of Civil Procedure.

16.2. Petition for hearing. -- Any applicant or licensee adversely affected by such order, has the right to a hearing thereon before the Commissioner or a person designated by him or her as a hearing examiner. A petition in writing for such a hearing must be served upon the Commissioner within ten (10) days following the receipt of the order by the applicant or licensee.

16.3. Petition requirements. -- The petition for a hearing must be in writing with an original and one (1) copy and must fully state the issues. No telegram, telephone call, facsimile, letter or similar communication will be regarded as a petition. The petition must contain the following:

16.3.a. A jurisdictional statement;

16.3.b. A clear and concise assignment of each error which the petitioner alleges to have been committed by the Commissioner in the determination of a violation, with each assignment of error being shown in separately numbered paragraphs;

16.3.c. A clear and concise statement of fact upon which the petitioner relies as sustaining its assignment of error;

16.3.d. A prayer setting forth the relief sought;

16.3.e. The signature of the petitioner or its officers signing such petition; and

16.3.f. A verification by the petitioner.

16.4. Hearings - cost deposit. -- A person demanding a hearing shall give security for the cost of the hearing in the amount of three hundred dollars ($300) by certified check, cashier's check or money order payable to the Commissioner. The bond shall accompany the petition demanding a hearing and the deposit will be returned if the person demanding the hearing prevails.

16.5. Subpoenas and subpoenas ducestecum. -- In all hearings held under W. Va. Code § 60-8-1et seq., and this rule, the evidence of witnesses and the production of documentary evidence may be required through the use of subpoenas and subpoenas ducestecum, issued at the request of the Commissioner or the licensee, by either the Commissioner or his or her duly appointed hearing examiner.

16.5.a. Every such subpoena and/or subpoena ducestecum shall be served at least five (5) days before the return date, either by personal service made by any person twenty-one (21) years of age or older or by registered or certified mail. A return acknowledgment signed by the person to whom the subpoena or subpoena ducestecum is directed shall be required to prove service by registered or certified mail.

16.5.b. All subpoenas and subpoenas ducestecum will be issued in the name of the Alcohol Beverage Control Commissioner, but any party requesting their issuance must see that they are properly served. Service of subpoenas and subpoenas ducestecum issued at the insistence of the Commissioner are the responsibility of the Commissioner. Any person who serves any subpoena or subpoena ducestecum is entitled to the same fee as sheriffs who serve witness subpoenas for the circuit courts of this state. Fees for the attendance and travel of witnesses shall be the same as for witnesses appearing before the circuit courts of this state.

16.5.c. The Commissioner shall pay all fees for the issuance of a subpoena or subpoena ducestecum her or she issued.

16.5.d. A party requesting subpoenas or subpoena ducestecum shall pay all fees for their issuance out of the hearing deposit.

16.5.e. All requests by the licensee or the Commissioner for subpoenas and subpoenas ducestecum shall be in writing and contain a statement acknowledging that the requesting party agrees to pay such fees for their issuance.

16.5.f. Any person receiving a subpoena or subpoena ducestecum issued pursuant to this subsection shall honor it as though it was issued by a circuit court of the state, and shall appear as witness and/or produce such books, records or papers in response to such subpoena or subpoena ducestecum. In case of disobedience or neglect of any subpoena or subpoena ducestecum lawfully served pursuant to this subsection, the circuit court of the county in which the hearing is being held or the judge thereof in vacation, upon application by the Commissioner, shall compel obedience by attachment proceeds for contempt.

16.6. Stay of suspension or revocation order. -- The service of a petition for hearing upon the Commissioner suspends the execution of any license revocation or suspension of the distributor, supplier, direct shipper, licensed retailer, private wine bed and breakfast, private wine restaurant or private wine spa who demanded a hearing, unless the Commissioner determines that such suspension or revocation is in the interest of public safety.

16.7. Hearing date. -- The Commissioner shall set a date for any hearing demanded and notify the person demanding the hearing of the hearing date and time. The hearing shall be held within thirty (30) days after receipt of the demand.

16.8. Place of hearing. -- Hearings will be held in Charleston, West Virginia, unless the Commissioner determines otherwise.

16.9. Continuances. -- Hearings will not be delayed by a motion for continuance, unless it is made no later than ten (10) days before the date set for the hearing and sets forth good and sufficient cause. Conflicting engagements of counsel or the employment of new counsel will never be regarded as grounds for a continuance, unless set forth in a motion filed promptly after the notice of hearing has been mailed, or unless extenuating circumstances are shown which the Commissioner deems adequate.

16.10. Waiver of hearing. -- In any case involving violation of the alcohol beverage control laws or rules The Commissioner may deem he or she appropriate, afford the licensee or agent an opportunity to waive the formal hearing which has been timely requested. If the licensed retailer or agent so elects to waive a formal hearing, he or she may then state in writing any matter in explanation or mitigation of the violations which he or she desires the Hearing Examiner and the Commissioner to consider in making a decision. The retailer or agent shall thereafter be bound by his or her election and may not request a formal hearing.

16.11. Appearance and practice before the Hearing Examiner.

16.11.a.
16.11.a.1. Petitioner.

16.11.a.2. The petitioner shall be present at the hearing unless excused by the Hearing Examiner because of extraordinary circumstances:

16.11.a.3. The petitioner may appear either in person or by counsel to present oral testimony or other evidence;

16.11.a.4. If the petitioner fails to appear and has not been excused, the Hearing Examiner may treat such action as a withdrawal of the petition or request.

16.11.b. Respondent:
16.11.b.1. The respondent may appear at the hearing with or without counsel;

16.11.b.2. Failure of the petitioner to appear does not prevent presentation of the case before the Hearing Examiner or the entering of a final order.

16.11.c. Interested parties. Any person not initially joined in the proceeding may timely petition the Hearing Examiner for intervention.

16.12. Standards of ethical conduct. -- All persons appearing before the Hearing Examiner in a representative capacity shall conform to the standards of ethical conduct required of attorneys before the courts of the State of West Virginia. If any person does not conform to these standards, the Hearing Examiner may decline to permit the person to continue to appear in a representative capacity in the proceeding.

16.13. Hearing. -- The Commissioner may designate a Hearing Examiner to conduct the hearing.

16.13.a. The petitioner may appear individually, or by legal counsel, or by duly authorized representative. In the absence of the petitioner, written evidence of a representative's agent's authority must be presented to the satisfaction of the Commissioner.

16.13.b. The petitioner, his duly authorized representative or agent, may with the approval of the Commissioner, waive the right to a hearing and agree to submit the case for decision upon the petition and record, with or without a written brief. Such waivers and agreements are to be in writing or upon the record.

16.14. Argument and briefs. -- Petitioners will be given an opportunity for argument within the time limits fixed by the Commissioner following submission of evidence. The Commissioner will accept briefs in lieu of argument. Briefs must be filed within twenty (20) days after the hearing, unless otherwise agreed by the parties.

16.15. Discovery. -- Subsequent to the issuance and service of the Notice of Hearing upon a respondent, the parties may employ pre-hearing discovery measures. The Hearing Examiner is to utilize an informal set of guidelines using the West Virginia Rules of Civil Procedure as a model.

16.16. Evidence admissible at hearing. -- The Commissioner may admit any relevant evidence, but shall observe the rules of privilege recognized by law relating to communications and topics. Findings shall be supported by the kind of evidence commonly relied upon by reasonably prudent men in the conduct of their affairs, regardless of whether the evidence would be admissible before a jury. The Commissioner may exclude any evidence which is irrelevant, unduly repetitious, or lacking in substantial probative effect. General principals of West Virginia Rules of Evidence shall be observed.

16.17. Record of proceedings. -- There shall be a record made at all hearings held pursuant to this rule.

16.18. Commissioner's decision. -- After the conclusion of the hearing, within ten (10) days of receipt of the transcript thereof or after receipt of briefs submitted in lieu of argument, the person designated by the Commissioner as hearing examiner shall prepare a recommended decision supported by findings of fact and conclusions of law affirming, modifying or vacating the earlier order of the Commissioner. Thereafter, the Commissioner, within ten (10) days of receipt of the recommended decision. If the Commissioner accepts or rejects the recommended decision, and if he or she accepts such decision, he or she shall sign and acknowledge the same as his or her own after having reviewed the transcript and all exhibits attached and affixed thereto. If Commissioner rejects the recommended decision, he or she shall within ten (10) days of receipt of such recommended decision, prepare a decision setting forth his own findings of fact and conclusions of law. In either event, the order signed by the Commissioner shall be final unless vacated or modified upon judicial review. A copy of said order shall be served upon each party to the hearing and his or her attorney of record, if any, in person or by registered or certified mail.

16.19. Motion for reconsideration.

16.19.a. A motion for reconsideration of a final order made by the Commissioner must be made within seven (7) days after being served with the decision. The motion shall identify the matter the party desires to have reconsidered, shall fully state the reasons for reconsideration and shall be served on all parties.

16.19.b. When a motion for reconsideration has been filed, the order of the Commissioner shall not be deemed final for purposes of appeal until the Commissioner has served his or her ruling on the motion.

16.19.c. A motion for reconsideration of a proposed order issued by the Examiner may be appealed through a motion within seven (7) days after the date of service to be proposed initial order. A copy of the exceptions shall be served on all parties. The Commissioner shall issue an order within thirty (30) days after hearing date either affirming or reversing the Hearing Examiner's decision.

16.20. Appeal to circuit court. -- An appeal is governed by W.Va. Code § 60-8-18, and in all other respects W. Va. Code § 29A-5-1et seq. and W.Va. Code § 60-8-1 et seq., by the applicant or licensee to the Circuit Court of Kanawha County, West Virginia, or in accordance with the provisions of W. Va. Code § 60-8-18. The appeal must be filed within thirty (30) days after the applicant or licensee received notice of the final order of the Commissioner. The record published under subsection 16.17 shall be the record for purposes of an appeal. The party requesting a transcript of the record is responsible for the expense incurred in the preparation.

16.21. Filing and service of documents and orders.

16.21.a. All documents required to be filed in an appeal under this rule shall be filed with the Commissioner either by personal delivery to his office or by mail to the Commissioner's mailing address.

16.21.b. Filing is effective upon delivery or upon mailing as determined by postmark.

16.21.c. Copies of all documents filed in an appeal under these rules shall be served upon all other parties.

16.21.d. Service of documents shall be accomplished by personal delivery or by registered or certified mail, return receipt requested. Whenever a party is represented by an attorney who has signed any document filed on his or her behalf of such party or otherwise entered an appearance on behalf of such party, service thereafter shall be made upon the attorney.

16.21.e. In the case of personal delivery, service is effective on delivery. In the case of mailing, service is effective upon mailing.

16.21.f. All documents required to be served shall be accompanied by proof of service in the form of a certificate of service. The certificate of service shall include a statement of how service was accomplished. Among those documents required to be served are: Notice of Hearing, Notice of Appeal, the final order and any motions made. Also included are any documents the Commissioner adopts as being necessary for procedural purposes.

16.22. Supreme Court of Appeals. -- An appeal may be taken by the applicant or licensee or by the Commissioner from the final judgment of the circuit court to which the applicant or licensee has appealed, the same to be taken in the manner and within the time provided by law for civil appeals generally.

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