W. Va. Code R. § 175-3-2

Current through Register Vol. XLII, No. 1, January 3, 2025

Section 175-3-2 - Definitions

As used in this rule and unless the context clearly requires a different meaning, the following terms shall have the meaning ascribed herein, and shall apply in the singular and in the plural.

2.1. "Advertisement" means any audio, visual or other electronic display promoting alcoholic liquors through the medium of billboards, newspapers, magazines, or similar publications, and display materials or equipment. The term advertisement does not include:

2.1.a. Any label, affixed to a container of alcoholic liquors or any individual covering, carton or other wrapper of the container, or

2.1.b. Any editorial or other reading matter in any periodical or publication for the preparation or publication of which no money or other valuable consideration is paid or promised, directly or indirectly, by any person subject to this rule.

2.2. "Alcohol Beverage Control Commissioner" or "ABCC" or "Commissioner" means the West Virginia Alcohol Beverage Control Commissioner (Administrator) or his designee.

2.3. "Alcoholic liquor" means alcohol, beer, fortified wine and distilled spirits, and any liquid or solid capable of being used as a beverage, but does not include wine with an alcohol content of fourteen percent (14%) or less by volume, nonintoxicating beer or nonintoxicating beverages.

2.4. "Bottle" and "Container" means any bottle or container authorized by this rule or packaging wine for sale at retail.

2.5. "Department" means the West Virginia Department of Revenue.

2.6. "Distilled spirits" means ethyl alcohol, ethanol or spirits of wine, including all dilutions and mixtures thereof, from whatever source or by whatever process produced, for beverage use, and includes, but is not limited to, natural spirits, whiskey, brandy, rum, gin, vodka, cordials and liqueurs. Alcoholic beverages containing more than 24% of alcohol by volume are considered distilled spirits.

2.7. "Distributor" means any person:

2.7.a. Whose principal place of business is within the State of West Virginia;

2.7.b. Who sells or distributes wine to retailers, grocery stores, private wine bed and breakfasts, private wine restaurants, private wine spas, private clubs or wine specialty shops;

2.7.c. Who sells or distributes nonfortified dessert wine and port, sherry and Madeira wines to wine specialty shops pursuant to chapter 60, article 8 of the West Virginia Code; and

2.7.d. Who actually maintains a warehouse in this state for the distribution of wine.

2.8. "Farm winery" means an establishment which:

2.8.a. In any year manufactures more than fifty thousand gallons of:

2.8.a.1. wine and nonfortified dessert wine exclusively by natural fermentation from grapes, other fruits, honey or other agricultural products containing sugar and

2.8.a.2. port, sherry and Madeira wine matured in wooden barrels or casks, the alcohol content of which does not exceed twenty-two percent by volume; or

2.8.a.3. any combination of paragraphs 1 and 2;

2.8.b. Grows or produces at least twenty-five percent of the raw products used to make wine on the premises of the farm winery; and

2.8.c. Imports no more than twenty-five percent (25%) of the raw products used to make the wine from any source outside this state.

2.8.d. A farm winery may include one off-farm location.

2.8.e. Where the owner of a farm winery provides evidence, supported by written findings of the West Virginia Commissioner of Agriculture, that young nonbearing fruit plants have been planted on the premises of the farm winery, the Commissioner may grant the farm winery owner permission to use products from one off-farm location, in an amount equal to that reasonably expected to be produced when the non-bearing fruit plants planted on the farm winery come into full production, to produce wine. The duration of the off-farm location permit shall be determined by the Commissioner after consultation with the Commissioner of Agriculture.

2.9. "Fortified wine" means any wine to which brandy or other alcohol has been added. For purposes of this rule, "fortified wine" includes dessert wines which are fortified but which have an alcohol content by volume of at least fourteen and one-tenths percent (14.1%) and not exceeding sixteen percent (16%).

2.10. "Intoxicated" means having one's faculties impaired by alcohol or other drugs to the point that physical or mental control or both are markedly diminished.

2.11. "Licensed retailer" means a person licensed in accordance with W. Va. Code §§ 60-3-1, 60-3A-1et seq. or § 60-8-1et seq. to sell wine at retail to the general public.

2.12. "Manufacture" means to ferment, make, mix, concoct, process, blend bottle or fill an original package with any alcoholic liquor or wine.

2.13. "Manufacturer" means any person engaged in the manufacture of any alcoholic liquor or wine, and among others includes a producer, bottler, importer, wholesaler, or winemaker.

2.14. "Multi-capacity winery or farm winery" means a license which authorizes a winery or farm winery to operate as a retailer, wine specialty shop, a supplier and a direct shipper without obtaining a separate license for each capacity the winery or farm winery operates.

2.15. "Original package" means any closed or sealed container or receptacle used for holding alcoholic liquor or wine.

2.16. "Person" means any individual, partnership, joint stock company, business trust, association, corporation or other form of business enterprise, including a receiver, trustee or liquidating agent.

2.17. "Private club" means a corporation or association licensed as a private club in accordance with W. Va. Code § 60-7-1et seq. and § 60-8-1et seq.

2.18. "Private wine bed and breakfast" means any business with the sole purpose of providing, in a residential or country setting, a hotel, motel, inn or other such establishment properly zoned as to its municipality or local ordinances, lodging and meals to its customers in the course of their stay at the establishment, which also:

2.18.a. Is a partnership, limited partnership, corporation, unincorporated association or other business entity which as part of its general business purpose provides meals on its premises to its members and their guests;

2.18.b. Is licensed under the provisions of article eight, chapter 60 of the West Virginia Code as to all of its premises or as to a separate segregated portion of its premises to serve wine to its members and their guests when such sale accompanies the serving of food or meals; and

2.18.c. Admits only duly elected and approved dues paying members and their guests while in the company of a member and does not admit the general public.

2.19. "Private wine restaurant" means a restaurant which:

2.19.a. Is a partnership, limited partnership, corporation, unincorporated association or other business entity which has as its principal purpose the business of serving meals on its premises to its members and their guests;

2.19.b. Is licensed under the provisions of article 8, chapter 60 of the West Virginia Code as to all of its premises or as to a separate segregated portion of its premises to serve wine to its members and their guests when such sale accompanies the serving of food or meals; and

2.19.c. Admits only duly elected and approved dues paying members and their guests while in the company of a member, and does not admit the general public. Private clubs that meet the private wine restaurant requirements stated in subdivisions a., b., and c. of this definition shall be considered private wine restaurants.

2.20. "Private wine spa" means any business with the sole purpose of providing commercial facilities devoted especially to health, fitness, weight loss, beauty, therapeutic services and relaxation, and may be also a licensed massage parlor or a salon with licensed beauticians or stylists which also:

2.20.a. Is a partnership, limited partnership, corporation, unincorporated association or other business entity which as part of its general business purpose provides meals on its premises to its members and their guests;

2.20.b. Is licensed under the provisions of article eight, chapter 60 of the West Virginia Code as to all of its premises or as to a separate segregated portion of its premises to serve up to two glasses of wine to its members and their guests when such sale accompanies the serving of food or meals; and

2.20.c. Admits only duly elected and approved dues paying members and their guests while in the company of a member, and does not admit the general public.

2.21. "Public place" means any place, building or conveyance to which the public has, or is permitted to have access, including restaurants, soda fountains, hotel dining rooms, lobbies, and corridors of hotels and any highway, street, lane, park or place of public resort or amusement: "Public Place" does not include any of the above-named places or any portion or portions thereof which qualify and are licensed under the provisions of W. Va. Code § 60-1-1et seq. to sell alcoholic liquors for consumption on the premises.

2.22. "Retail liquor store" means a store established and operated under the authority of either W. Va. Code § 60-3-1et seq. or § 60-3A-1et seq. to sell alcoholic liquors in the original package for consumption off the premises.

2.23. "Sale" means any transfer, exchange or barter in any manner or by any means, for a consideration, and includes all sales made by a principal, proprietor, agent or employee.

2.24. "Selling" includes solicitation or receipt of orders, possession for sale, or possession with intent to sell.

2.25. "Supplier" means any manufacturer, producer, processor, winery, farm winery, national distributor or other provider of wine which sells or offers to sell or solicits or negotiates the sale of wine to any licensed West Virginia distributor.

2.26. "Wine" means any alcoholic beverage obtained by the fermentation of the natural content of grapes, other fruits, honey or other agricultural products containing sugar and to which no alcohol has been added, including table wine. "Wine" does not include fortified wine or nonintoxicating beer as that term is defined in article sixteen, chapter eleven of the West Virginia Code (See Section 2.3. for alcohol content percentage).

2.27. "Wine sampling" means a special event conducted at a licensed wine specialty shop's location during regular hours of business at which no more than three complimentary samples of wine, consisting of no more than one ounce each may be served, to any one consumer in one day. Persons serving complimentary samples must be 21 years of age or over_and an authorized representative and employee of the licensed wine specialty shop. Only a licensed representative of a winery, farm winery, licensed distributor or licensed wine supplier may participate, educate and attend a wine sampling. No licensee, employee or representative may furnish, give or serve complimentary samples of wine to any person less than twenty-one years of age or to a person who is physically incapacitated due to the consumption of alcoholic liquor or the use of drugs. The wine specialty shop shall notify and secure permission from the commissioner for all wine sampling events one month prior to the event. Wine sampling events may not exceed six hours per calendar day. Licensees must purchase all wines used during these events from a licensed farm winery or a licensed distributor.

2.28. "Wine specialty shop" means a retailer who:

2.28.a. Deals principally in the sale of table wine, certain nonfortified dessert wines, wine accessories and food or foodstuffs normally associated with wine;

2.28.b. Maintains in its inventory:

2.28.b.1. a representative number of wines for sale which are designated by label as varietal wine, vintage, generic and/or according to region of production; and

2.28.b.2. not less than fifteen percent vintage or vintage-dated wine by actual bottle count; and

2.28.c. May maintain an inventory of port, sherry and Madeira wines which have been matured in wooden barrels or casks and which have an alcoholic content of not more than twenty-two percent (22%) alcohol by volume.

2.29. "Wine tasting" means an activity in which members of a wine taster's club, which has at least fifty duly-elected and approved dues-paying members in good standing, meet on the premises of a licensed wine specialty shop not more than one time per week either at a time when the premises are closed to the general public or in a segregated facility on the premises to which the general public is not admitted for the purpose of tasting and comparing different wines. Persons serving at the wine tasting must be 21 years of age or over.

W. Va. Code R. § 175-3-2