W. Va. Code R. § 175-3-4

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

Section 175-3-4 - Operation of Farm Wineries

4.1. Application of Federal Alcohol Administration Act.

4.1.a. The Commissioner hereby finds and declares that for control of farm wineries, the adoption of the laws, rules and regulations of the United States relating to the operations of wineries will:

4.1.a.1. Simplify the licensing of farm wineries in this state;

4.1.a.2. Improve enforcement of production and sanitation standards through better use of information obtained from federal sources; and

4.1.a.3. Aid interpretation of the farm winery law through use of federal judicial and administrative determinations and precedents.

4.1.b. The Commissioner declares that this rule is to be construed so as to accomplish the foregoing purposes with specific regard to:

4.1.b.1. Standards of identity for wine;

4.1.b.2. Labeling requirements for wine;

4.1.b.3. Requirements for approval of labels of wine domestically bottled or packed;

4.1.b.4. Advertising of wine; and

4.1.b.5. Standards of fill for wine.

4.1.c. The Commissioner incorporates by reference all applicable provisions of the Federal Alcohol Administration Act and regulations adopted thereunder by the United States Department of the Treasury, Alcohol and Tobacco Tax Trade Bureau (the "TTB"), in effect on the effective date of the Rules and Regulations herein, and as the same may be amended.

4.2. Licenses and fees.

4.2.a. A farm winery must be licensed by the Commissioner. A licensed farm winery may serve or sell or both serve and sell the wine it manufactures

4.2.b. A farm winery may also hold licenses to conduct business as a retailer, wine specialty shop, supplier, direct shipper or private wine restaurant only. A farm winery may obtain separate licenses to conduct business in each capacity named above. A farm winery may also obtain a multi-capacity license authorizing the farm winery to conduct business as a retailer, wine specialty shop, supplier and direct shipper.

4.2.c. A farm winery may obtain a special license to sell its wine at retail at any fair or festival endorsed or sponsored by the governing body of a municipality or county commission and that applies for and obtains a fair and festival license from the Commissioner.

4.2.c.1. The special license may be issued for a term no longer than ten (10) consecutive days.

4.2.c.2. The application for the special license must be submitted to the Commissioner at least thirty (30) days prior to the date on which the wine will first be sold.

4.2.c.3. The special license authorizes the exhibit, tasting, selling of samples and selling of wine for consumption off the premises of the fair or festival. Any licensee opening or selling wine, not being used for a tasting or sampling of wine, for consumption of wine at the fair or festival is subject to penalties under this rule, 175 CSR 4, and W. Va. Code § 60-8-1et seq. Any served tastings or samplings may not exceed a reasonable serving of 3 ounces at the fair or festival.

4.2.c.4. The special license fee - the fee for a special license is $250.00, if the fair or festival takes place on the winery or farm winery's premises or at a designated off-farm winery location, then the license fee is $50.00 for events described in W. Va. Code § 60-8-3.

4.2.d. The annual fees for the following_authorized activities are as follows:

4.2.d.1. Farm winery - $50.00;

4.2.d.2. Retailer - $150.00;

4.2.d.3. Wine Specialty Shop - $250.00;

4.2.d.4. Supplier - $150.00;

4.2.d.5. Direct Shipper - $150.00;

4.2.d.6. Direct Shipper Wine Specialty - $250.00;

4.2.d.7. Private Wine Bed and Breakfast - $150.00;

4.2.d.8. Private Wine Restaurant - $250.00;

4.2.d.9. Private Wine Spa - $150.00;

4.2.d.10. Wine Sampling - $150.00;

4.2.d.11. Wine tasting - $150.00; and

4.2.d.12. Multi-capacity winery or farm winery - $300.00.

4.2.e. A farm winery licensed as a direct shipper or direct shipper wine specialty must meet all the requirements for licensure under 175 CSR 4 and the West Virginia Code.

4.3. Inspection.

4.3.a. The Commissioner or his or her agents may inspect, at any reasonable hour, the records, stocks and premises of a licensee to determine if the licensee is complying with all provisions of applicable laws and rules. An agent desiring to make an inspection shall identify himself/herself by suitable credentials. Any denial or interference with an inspection by the farm winery owner, his agents or employees is a violation of this rule and will be reported.

4.3.b. Any evidence of a violation found during an inspection shall be seized and impounded and is admissible into evidence to prove such violation.

4.4. Age for purchase or consumption of farm wine. - No farm winery may serve or sell farm wine to individual under the age of twenty-one (21) for consumption of farm wine or any other alcoholic liquors on the premises of the farm winery. A farm winery may not sell wine to any person who is visibly intoxicated.

4.5. Hours for sale of farm wine. -- No farm winery licensee may sell, give, serve or dispense or permit the consumption of wine, on any licensed premises, or in any rooms directly connected therewith between the hours of one a.m. and one p.m. on any Sunday. Nor may any licensee sell, give or dispense farm wine, or permit the consumption of wine, on any licensed premises, or in any rooms directly connected therewith, between the hours of twelve midnight and ten a.m. on any week day. These prohibitions do not apply to those rooms in the structure which are used for the farm winery owners' normal, usual and customary residential activities. A farm winery licensee may conduct tasting, samples and off-premise sales under the hours of operation at a licensed fair or festival as specified above and in W.Va. Code § 60-8-1 et seq., except that for any licensed fair or festival operating on Sundays, no farm winery licensee may conduct tastings, samples and off-premise sales between the hours of 2 a.m. and 10 a.m.

4.6. Wine tastings. -- A farm winery licensee which has acquired a wine tasting license and a wine specialty shop license may conduct wine tastings on its licensed premises, or in any rooms or areas directly connected therewith, or at an off-farm winery location, of wine produced or bottled by such licensee as provided in W. Va. Code § 60-8-3.

4.7. Wine samplings. -- A farm winery licensee which has acquired a wine sampling license and a wine specialty shop license may conduct wine samplings on its licensed premises, or in any rooms or areas directly connected therewith, or at an off-farm winery location, of wine produced or bottled by such licensee as provided in W. Va. Code § 60-8-3.

4.8. Authorized sales. A farm winery licensed as a retailer or a wine specialty shop may sell wine directly to consumers at the farm winery, at one off-farm winery location, and through the ABCC warehouse. A farm winery licensed as a supplier may sell to any private club, private wine bed and breakfast, private wine restaurant, private wine spa, retailer or wine specialty shop licensed under W. Va. Code §§ 60-8-3 and 60-8-3(k).

4.9. Shipping.

4.9.a. A farm winery licensed as a direct shipper may ship wines from the farm winery to a consumer without the bonding requirements of a transporter, but must use a licensed and bonded common carrier or some other bonded transporter.

4.9.b. A direct shipper licensed in West Virginia may ship for personal use and not for resale, not more than two (2) cases per month to any adult resident in this State.

4.10. Return by purchaser. -- A person who has purchased wine from a licensed farm winery and has taken delivery of such wine within this state may return all or any portion of such wine to the licensed premises of such farm winery. To make such return, the purchaser need not obtain any license in this state, and may return the wine in a vehicle owned or controlled by him or her.

4.11. Tax on sales. -- A licensee shall collect the tax imposed under West Virginia Code § 60-3-9 d and be held accountable for it in accordance with applicable rules of the Department of Revenue.

4.12. West Virginia liter tax -- Every winery and farm winery licensed as a supplier or as direct shipper must pay the liter tax as specified in W. Va. Code § 60-8-4.

4.13. Wine brand review and registration. -- Every farm winery licensed as a supplier offering wine for sale under the authority of W. Va. Code § 60-8-1et seq. shall submit its brand and all of its labels to Commissioner for review, and register with the Commissioner each label which the farm winery offers for sale in West Virginia. A farm winery licensed as a supplier shall pay a fee of $100.00 for each brand registered. No wine may be sold in this state until the brand and labels have been reviewed and registered by the Commissioner. The Commissioner will further specify the wine brand review and registration requirements and the forms to be used by a farm winery and other licensees in 175 CSR 4. Forms will be available at the Commissioner's offices.

4.14. Annual report and tax information. -- Every licensed farm winery shall report to the Commissioner its total gallonage of wine it produced or blended for the twelve (12) month period ending June 30 of each year or partial year. The report shall be submitted by letter report within thirty (30) days after the end of the fiscal year. Each farm winery must submit a copy of its wine liter tax return and sales tax distribution return to the Tax Commissioner and the Commissioner.

4.15. Blood alcohol chart. -- Each farm winery shall post in an open and prominent place within the licensed premises, where it can be observed by customers, a blood alcohol chart in the form prescribed by W. Va. Code § 60-6-24.

W. Va. Code R. § 175-3-4