Sometimes a crazy state liquor law forces you to do strange things as a workaround. That’s why Heston Farm’s Foxfire Restaurant owner Mickey Heston is getting out of the restaurant business, so to speak. It’s Heston’s conundrum.
Misguided law causes Heston’s conundrum
An illogical provision in West Virginia’s alcohol law will not allow Heston to obtain a liquor license for his Foxfire Restaurant, simply because he is also the owner of the tiny Pinchgut Hollow Distillery that is located on the same Marion County property. Yet almost any other Tom, Dick, or Harry with a pulse can get a private club liquor license for their places and compete against Heston’s restaurant with the advantage of selling mixed drinks and cocktails, which Heston can’t.
Let’s get real here. Mickey Heston is the one who built this new industry in his county, invested scads of his own money in Heston Farm, developed a popular tourist attraction, created dozens of jobs, and brought the state new tax revenue—yet he is the one who is penalized by the law. In his restaurant, he can’t sell you a drink of the whisky he makes in the rear of the building. This is so wrong in so many ways.
Heston’s workaround is to first close his restaurant, then restructure the ownership, removing himself as owner, and reopen it with a liquor license. It’s crazy. The need for these legal shenanigans has its roots in West Virginia’s embrace of something called the three-tier system.
Unproductive remnant of three-tier system
The three-tier system (TTS) is a Depression-era concept, developed at the end of Prohibition, that divides the beverage alcohol business into three levels: manufacturer (or importer), wholesaler, and retailer. In its pure form, TTS holds that an individual may not operate in more than one tier at the same time. So if you get a distillery license, you may not also be licensed as a wholesaler or a retailer (restaurant/bar or package store). In its pure form TTS requires manufacturers to sell only to wholesalers, wholesalers to sell only to retailers, and retailers to sell only to consumers.
To its credit, West Virginia has deviated its law from a strict TTS for many years. For bottled liquor and wine, WV law allows distilleries and wineries (manufacturers) located in the state to also act as retailers and sell their bottles to consumers for off-premise consumption. The WV brewpub and brewery laws allow breweries in the state to also be retailers and sell their product directly to consumers for both on-premise and off-premise consumption. Both WV farm wineries and small WV breweries may bypass the wholesale tier, if they choose, and sell directly to retailers. From the 1930s until 1990, the state government itself did not adhere to the TTS, acting as both a wholesaler and a retailer for liquor under the old state store system.
But for little West Virginia-based distilleries who want to sell their own products in a cocktail or mixed drink, the three-tier system is still strictly enforced. There is no logical reason for this other than the legislature has just overlooked it.
When the legislature updated our distillery license laws a decade and a half ago, it made possible a new West Virginia industry that has firmly taken root and is now developing into a true job creator and tax revenue producer. Today, the state has 14 small distilleries—all businesses contributing to their communities. In the past few months, four new distilleries (Flying Buck, Wicked Spirits. Elkhorn Mountain, and The Sweeter Side of the Feud) have opened in rural areas of the state where not much other business growth is seen.
Fix this flaw
Brilliant Stream encourages the state legislature to fix this flaw in our distillery law and allow distillers, who choose to, to sell their liquor at the distillery for on-premise consumption. It’s a simple fix, but it needs fixed now. Let’s help our small distillers continue to build tax revenue and create jobs, especially when the fix is as simple as eliminating a needless government regulation.
“It’s just a shame that we have to do this,” a Heston Farm statement quoted Mickey Heston saying about having to close and restructure his restaurant. We agree. Let’s fix it.