PART 3. TEXAS ALCOHOLIC BEVERAGE COMMISSION
The Texas Alcoholic Beverage Commission (commission), proposes the repeal of §31.2, relating to Vehicle Inscription Exemption and Assignment of Vehicles, and new §31.2, relating to State-owned Motor Vehicles.
The rule was reviewed under Government Code, §2001.039, which requires that each state agency review and consider for readoption each rule adopted by that agency under Government Code, Chapter 2001 (Administrative Procedure Act). The commission has reviewed the rule and has determined that the reasons for adopting the rule continue to exist.
Section 721.003, of the Transportation Code requires the commission to adopt a rule to exempt state vehicles from the inscription requirements of Chapter 721 of the Transportation Code. Section 2171.1045 of the Government Code requires each state agency to adopt rules for the use and assignment of state owned vehicles.
The commission has determined that the existing section is outdated and should be repealed and a new updated section adopted to replace the repealed section.
Subsection (a) states the inscription requirements for agency owned vehicles.
Subsection (b) states how vehicles are assigned to executives and agents and the purpose of agency pool vehicles.
Charlie Kerr, Chief Financial Officer, has determined that for each year of the first five years that the section will be in effect, there will be no impact on state or local government.
Mr. Kerr has determined that there will be no fiscal or regulatory impact on small or micro-businesses, or persons regulated by the commission. There is no anticipated negative impact on local employment.
Sherry Cook, Assistant Administrator, has determined that for each year of the first five years the section is in effect, the public will benefit from adoption of the section because it provides accountability for state owned vehicles in compliance with state law.
Comments on the proposed repeal and new rule may be submitted to Joan Carol Bates, Deputy General Counsel, Texas Alcoholic Beverage Commission, P.O. Box 13127, Austin, Texas 78711, or electronically to joan.bates@tabc.state.tx.us. Comments will be accepted for 30 days following publication of the proposed repeal and new section in the Texas Register.
(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Alcoholic Beverage Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin, Texas.)
The proposed repeal and new rule are authorized by Texas Alcoholic Beverage Code, §5.31, which grants general rulemaking authority to the commission, §721.003 of the Transportation Code, which requires the commission to adopt subsection (a) of the proposed section, §2171.1045 of the Government Code, which requires the commission to adopt subsection (b), and §2001.039 of the Government Code, which requires each agency review its rules each four years.
Cross Reference: The proposed repeal and new rule affect Texas Alcoholic Beverage Code, Chapter 5, Transportation Code, Chapter 721 and Government Code, Chapter 2001 and 2171.
§31.2.Vehicle Inscription Exemption and Assignment of Vehicles.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 22, 2009.
TRD-200902015
Alan Steen
Administrator
Texas Alcoholic Beverage Commission
Earliest possible date of adoption: July 5, 2009
For further information, please call: (512) 206-3204
The proposed repeal and new rule are authorized by Texas Alcoholic Beverage Code, §5.31, which grants general rulemaking authority to the commission, §721.003 of the Transportation Code, which requires the commission to adopt subsection (a) of the proposed section, §2171.1045 of the Government Code, which requires the commission to adopt subsection (b), and §2001.039 of the Government Code, which requires each agency review its rules each four years.
Cross Reference: The proposed repeal and new rule affect Texas Alcoholic Beverage Code, Chapter 5, Transportation Code, Chapter 721 and Government Code, Chapter 2001 and 2171.
§31.2.State-owned Motor Vehicles.
(a) Exemption from inscription requirements for state-owned vehicles.
(1) This subsection implements §721.003, Transportation Code, relating to exemption from inscription requirement for certain state-owned vehicles, which requires the commission to adopt a rule to be exempt from the inscription requirements of Chapter 721.
(2) The primary use of the state-owned vehicles for which an exemption is sought is the transportation of commission employees engaged in the prevention, detection, investigation and enforcement of criminal and regulatory violations of the Alcoholic Beverage Code.
(3) Not printing inscriptions on commission vehicles will: increase effectiveness of enforcement and compliance operations and activities; increase the safety of commission employees engaged in enforcement and compliance operations and activities; and, decrease the risk of damage to state-owned vehicles and property.
(b) Assignment of Vehicles.
(1) This subsection implements §2171.1045, Government Code, relating to the restrictions on assignment of state vehicles.
(2) Vehicles are assigned to commission executive staff whose essential agency duties and functions require them to have vehicles available on a regular or frequent basis to provide state-wide oversight, management and supervision of agency staff.
(3) Pool vehicles are maintained at headquarters to reduce the cost to the state for travel required by qualified agency staff whose essential duties and functions require regular or periodic travel by vehicle.
(4) Vehicles are assigned to field operation employees whose essential agency duties and functions require daily and extensive use of vehicles and the cost to the state of providing a state-owned vehicle is less than the cost of reimbursing employees for the use of personal vehicles.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 22, 2009.
TRD-200902017
Alan Steen
Administrator
Texas Alcoholic Beverage Commission
Earliest possible date of adoption: July 5, 2009
For further information, please call: (512) 206-3204
The Texas Alcoholic Beverage Commission (commission) proposes to amend §36.1, relating to the possession and sale of firearms on a licensed premise.
Currently, §36.1(c), relating to On-Premise Possession of Firearms, provides that only the holder of a permit or license authorizing the on-premise consumption of alcoholic beverages may possess a firearm on the licensed premises or the firearm is disabled and possessed for ceremonial or display purposes. The current rule limits possession of the firearm to the permit or license holder.
The proposed amendment clarifies that a permit or license holder is not limited to possession of a firearm that is disabled and for ceremonial or display purposes only.
The proposed amendment also adds an additional class of persons that may possess a firearm on a licensed premise. This additional class of persons may only possess a firearm that is disabled and possessed for ceremonial or display purposes at a charitable fundraiser. While on the licensed premise, the firearm must remain in the possession, control, or supervision of a person acting on behalf of a charitable organization sponsoring the fundraiser.
Charlie Kerr, Chief Financial Officer, has determined that for each fiscal year of the first five years the amended section is in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the section as proposed. There will be no fiscal impact on small or micro-businesses, or individuals as a result of the amendment.
Sherry Cook, Assistant Administrator, has determined that for each of the first five years that the amendment is in effect, it is anticipated that the public will benefit as a result of the clarifications added by the amendment.
Comments on the proposed amendment may be addressed to Lou Bright, General Counsel, Texas Alcoholic Beverage Commission, P.O. Box 13127, Austin, Texas 78711. Comments will be accepted for 30 days following publication of the proposed amended rule in the Texas Register.
The proposed amendment to §36.1 is authorized by §§5.31, 11.61(f), and 61.71 of the Texas Alcoholic Beverage Code (code). Section 5.31 provides the commission with general authority to prescribe and publish rules necessary to carry out the provisions of the code.
Cross Reference: Sections 5.31, 11.61, and 61.71 of the Alcoholic Beverage Code and Chapter 36 of the commission rules are affected by the proposed amendment.
§36.1.Possession and Sale of Firearms on Licensed Premises.
(a) Gun Shows. A permittee/licensee may use or allow a portion of the grounds, buildings, vehicles and appurtenances of the licensed premises for the use of gun shows if the permittee/licensee:
(1) suspends all sales, complimentary offers and consumption of all alcoholic beverages during the gun show including time required for preparation or set-up and dismantling of the gun show; and
(2) operates its licensed premises at a facility regularly used for special functions, directly or indirectly, under a lease, concession or similar agreement from a governmental entity or legally formed and duly recognized civic, religious, charitable, fraternal or veterans organization.
(b) Off-Premise Retailers and Gun Sales. The holder of a retail dealer's off-premise license, a wine and beer retail dealer's off-premise permit, a wine only package store or package store permit may allow the sale or offer for sale firearms at the licensed location if:
(1) alcoholic beverages are not being displayed or sold in any area where firearms are readily accessible or can be viewed; and
(2) the firearms are secure from the general public and are only accessible by employees of the person or entity offering the firearms for sale.
(c) On-Premise Possession of Firearms. Firearms
may be possessed on premises licensed for on-premise consumption if: [
The holder of a permit or license allowing on-premise consumption
of alcoholic beverages may possess firearms on the licensed premise
if the firearms are:]
(1) the firearm is in the possession of the permittee/licensee; or
(2) the firearm is:
(A) possessed for ceremonial and/or display purposes;
(B) disabled from use as a firearm while on the licensed premises;
(C) is possessed on the licensed premises in connection with charitable fundraising; and
(D) remains in the possession, control or supervision of person or persons acting on behalf of the charitable organization sponsoring the fundraising activity.
[(1) possessed by the permittee/licensee
as defined in the Texas Alcoholic Beverage Code, §1.04(11) and
(16); or]
[(2) possessed for ceremonial
and/or display purposes, if such firearm is disabled from use as a
firearm.]
(d) Historical Reenactments. Pursuant to §11.61(i) of the Texas Alcoholic Beverage Code, a historical reenactment utilizing firearms maybe conducted on the premises of a permit or license if:
(1) the firearms are of the type, caliber, or gauge common to the era and event being reenacted;
(2) such firearms remain in the possession of members of the cast, production company, employees of the permit holder, or others directly involved in the reenactment and are not left unattended or accessible to unauthorized persons at all times such firearms are on the licensed premises;
(3) such firearms remain unloaded at all times while on the licensed premises except that the firearms may be loaded with blank ammunition firing no projectile;
(4) such firearms shall be handled in a safe manner so as to present no threat of injury to audience members or others because of discharge or other use;
(5) persons engaged in reenactments shall maintain a minimum of 15 feet intervals between those armed with pistols and all others, and 40 feet between those armed with shotguns and all others;
(6) the permittee shall adopt safety rules to be employed during the reenactment and such rules shall be read and signed by all employees of the permit holder involved in the reenactment prior to the beginning of the event; and
(7) the permittee provides the relevant Commission District Office or outpost notice of the reenactment at least three business days before the event.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 20, 2009.
TRD-200901983
Alan Steen
Administrator
Texas Alcoholic Beverage Commission
Earliest possible date of adoption: July 5, 2009
For further information, please call: (512) 206-3204
SUBCHAPTER E. MISCELLANEOUS
The Texas Alcoholic Beverage Commission (commission) proposes the repeal of §45.121, relating to credit law violations by retailers, wholesalers and distributors, and proposes new §45.121, which will replace the repealed section.
Section 102.32 of the Texas Alcoholic Beverage Code (Code) provides that no wholesaler may sell and no retailer may purchase liquor except for cash or on terms requiring payment on or before the 25th of the month for purchases made between the 1st and the 15th of the month and on or before the 10th day of the following month for purchases made between the 16th and the last day of the month. The section requires records of deliveries and purchases. The section also requires a wholesale dealer to immediately report to the commission when a retailer becomes delinquent on an account and prohibits sales of any liquor to a retailer who is delinquent until the account is paid in full and cleared from the commission's records. An account becomes delinquent under subsection (d) of the statute if it is not paid as required by subsection (c). A wholesale dealer who violates the section commits an offense under the Code.
Existing §45.121 is being repealed because it is no longer necessary after the adoption of proposed new §45.121.
The proposed new section reorganizes the content of the existing rule, updates the text of the rule to a plain language standard, and equalizes the duties of sellers and retailers for avoiding credit law violations.
Proposed new subsection (a) states the purpose of the new rule section.
Proposed new subsection (b) provides definitions used in the new rule.
Proposed new subsection (c) contains the requirements for invoices. It does not contain substantive revisions, but it does provide that records may be maintained electronically or in an internet based inventory system, reflecting updated business practices.
Proposed new subsection (d) provides that it is a violation of the rule to make a delinquent payment. It also provides that a retailer whose permit is cancelled, expires, is suspended or placed in suspense while on the delinquent list may be disqualified from receiving a new license or permit until the delinquency is satisfied. This new provision is intended to discourage retailers from abusing credit restrictions by imposing adverse consequences in future licensing decisions based on past abusive practices.
Proposed new subsection (e) provides a requirement that violations and payment be reported by sellers, and makes a failure to report a violation. The existing rule provides no violation for a seller who fails to report. The subsection requires sellers to submit reports through the commission's web-based reporting system. Sellers without access to the internet must request an exception or outsource the reporting requirement.
Proposed new subsection (f) prohibits sellers from selling or delivering liquor to any retailer location for a retailer that appears on the delinquent list. It makes a sale a violation of the section. The existing rule provides no violation for a seller who sells to a retailer on the delinquent list.
Proposed new subsection (g) prohibits a retailer from purchasing or accepting the delivery of liquor while on the delinquent list. It makes a purchase a violation of the section. The existing rule provides no violation for a retailer who purchases or accepts delivery of liquor while on the delinquent list.
Proposed new subsection (h) provides an exception to a retailer who has a good faith dispute regarding whether a violation of the section occurred.
Proposed new subsection (i) provides a penalty for repeat violations of the section for both retailers and sellers.
Proposed new subsection (j) relates to the publication of the delinquent list by the commission. The time requirements are provided by §102.32 of the Code. The remainder of the subsection provides the public with where to find the list and when it is published and updated.
Charlie Kerr, Chief Financial Officer, has determined that for each year of the first five years that the proposed new rule is in effect there will be no fiscal impact on units of state or local government as a result of enforcing and administering the section as proposed. The use of technology will eliminate or substantially reduce the current paper based reporting system, resulting in increased efficiency and use of agency resources.
Mr. Kerr has determined that for each year of the first five years that the proposed new rule is in effect there will be a fiscal impact on small and micro-businesses and individuals who fail to comply with the sections. The amount of the fiscal impact cannot be determined because the number of violations cannot be established, but each violation will be at least $300, as shown in 16 TAC Chapter 34, Schedule of Sanctions and Penalties. There will be no fiscal impact on small and micro-businesses and individuals who comply with the section. The use of technology will also provide cost savings by eliminating preparing, mailing, and maintaining paper for persons required to comply with the section.
Sherry Cook, Assistant Administrator, has determined that for each year of the first five years that new §45.121 is in effect the public will benefit from the adoption of the proposed clarifications, equalization of responsibilities of sellers and retailers, and the conformance of the rule to the intent of the statute to prevent credit violations between the wholesaler and retailer tiers. The increased use of technology will greatly reduce the use of paper and the personnel costs associated with creating, filing, and maintaining paper and the physical space required to store paper.
Comments on the proposed repeal and new rule may be addressed to Joan Carol Bates, Deputy General Counsel, Texas Alcoholic Beverage Commission, P.O. Box 13127, Austin, Texas 78711. Comments will be accepted for 30 days following publication of the proposed repeal and proposed new rule in the Texas Register.
(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Alcoholic Beverage Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin, Texas.)
The proposed repeal of the existing rule and proposed new rule are authorized by §5.31 and §102.32 of the Alcoholic Beverage Code (Code). Section 5.31 gives the commission authority to prescribe and publish rules necessary to carry out the provisions of Code. Section 102.32 provides the specific authority to adopt these rules to give effect to the section.
Cross Reference: Sections 5.31 and 102.32 of the Alcoholic Beverage Code are affected by the proposed repeal of the existing rule and the proposed new rule.
§45.121.Delinquent List.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 22, 2009.
TRD-200902006
Alan Steen
Administrator
Texas Alcoholic Beverage Commission
Earliest possible date of adoption: July 5, 2009
For further information, please call: (512) 206-3204
The proposed repeal of the existing rule and proposed new rule are authorized by §5.31 and §102.32 of the Alcoholic Beverage Code (Code). Section 5.31 gives the commission authority to prescribe and publish rules necessary to carry out the provisions of Code. Section 102.32 provides the specific authority to adopt these rules to give effect to the section.
Cross Reference: Sections 5.31 and 102.32 of the Alcoholic Beverage Code are affected by the proposed repeal of the existing rule and the proposed new rule.
§45.121.Credit Restrictions and Delinquent List for Liquor.
(a) Purpose. This rule implements §§102.32, 11.61(b)(2), and 11.66 of the Texas Alcoholic Beverage Code (Code).
(b) Definitions.
(1) Alcoholic beverage--As used in this section includes only liquor, as that term is defined in §1.04 of the Code.
(2) Delinquent payment--A financial transaction or instrument that fails to provide payment in full or is returned to the Seller as unpaid for any reason.
(3) Event--A financial transaction or instrument that fails to provide payment to a Retailer and results in a Retailer making one or more delinquent payments to one or more Sellers.
(4) Incident--A single delinquent payment.
(5) Retailer--A package store permittee, wine only package store permittee, private club permittee, private club exemption certificate permittee, mixed beverage permittee, or other retailer, and their agents, servants and employees.
(6) Seller--A wholesaler, class B wholesaler, winery, wine bottler, or local distributor and their agents, servants and employees.
(c) Invoices. A delivery of alcoholic beverages by a Seller, to a Retailer, must be accompanied by an invoice of sale showing the name and permit number of the Seller and the Retailer, a full description of the alcoholic beverages, the price and terms of sale, and the place and date of delivery.
(1) The Seller's copy of the invoice must be signed by the Retailer to verify receipt of alcoholic beverages and accuracy of invoice.
(2) The Seller and Retailer must retain invoices in compliance with the requirements of §206.01 of the Code.
(3) Invoices may be created, signed and retained in an electronic or internet based inventory system, and may be retained on or off the licensed premise.
(d) Delinquent Payment Violation. A Retailer who makes a delinquent payment to a Seller for the delivery of alcoholic beverages violates this section unless an exception applies.
(1) A Retailer who violates this section must pay a delinquent amount, and a Seller may accept payment, only in cash or cash equivalent financial transaction or instrument.
(2) A Retailer whose permit or license is cancelled for cause, voluntarily cancelled, expires, suspended or placed in suspension while on the delinquent list may be disqualified from applying for or being issued an original or renewal permit or license. For purposes of this rule, the Retailer includes all persons who were owners, officers, directors, equity interest holders, and shareholders of the Retailer at the time the delinquency occurred.
(e) Reporting Violation and Payment; Failure to Report.
(1) A report of a violation or payment must be submitted electronically on the forms provided on the commission's web based reporting system at www.tabc.state.tx.us/creditlaw/reporting.
(2) A Seller who cannot access the commission's web based reporting system must either:
(A) submit a request for exception to submit reports by paper; or
(B) contract with another seller or service provider to make electronic reports on behalf of the Seller.
(3) All reports of violations or payment under this subsection must be made to the commission within two business days from the date the violation is discovered by the Seller.
(4) A Seller who fails to report a violation or a payment as required by this subsection is in violation of this section.
(f) Prohibited Sales and Delivery.
(1) Sellers are prohibited from selling or delivering alcoholic beverages to any licensed location of a Retailer who appears on the commission's Delinquent List from the date the violation appears on the Delinquency List until the Release Date on Delinquent List, or the Retailer no longer appears on the Delinquent List.
(2) A sale or delivery of alcoholic beverages prohibited by this section is a violation of this section.
(g) Prohibited Purchase or Acceptance.
(1) A Retailer who violates subsection (d) of this section prohibited from purchasing or accepting delivery of alcoholic beverages from any source to any of Retailer's licensed locations from the date any violation occurs until all delinquent payment are paid in full.
(2) A prohibited purchase or acceptance of a delivery of alcoholic beverages is a violation of this section.
(h) Exception. A Retailer who wishes to dispute a violation of this section or inclusion on the commission's Delinquent List, based on a good faith dispute between the Retailer and the Seller may submit a detailed electronic written statement with the commission with an electronic or paper copy to the Seller explaining the basis of the dispute. The Retailer must immediately submit an electronic notice of resolution of a dispute to the commission under this subsection.
(i) Penalty for Violation. An action to cancel or suspend a permit or license may be initiated under §11.61(b)(2) of the Code for repeat violations of this section. The commission may consider whether the repeat violations are the result of an event or incident when initiating an action under this subsection.
(j) Delinquent List.
(1) The Delinquent List is published bi-monthly on the commission's public web site at http://www.tabc.state.tx.us. An interested person may receive the Delinquent List by electronic mail each date the Delinquent List is published by registering for this service online.
(2) The Delinquent list will be published the 26th day of the month for purchases made from the 1st to the 15th day of the month, for which payment was not made on or before the 25th day of the month. The Delinquent list will be published the 11th day of the month for purchases made between the 16th and the last day of the preceding month for which payment was not made on or before the 10th day of the month.
(3) The Delinquent List is effective at 12:01 A.M. on the date of publication.
(4) The Delinquent List is updated continuously each day the commission is open during normal business hours to reflect reports of violations and payments submitted. The Release Date is the date a payment is submitted to the Delinquent List.
(k) Calculation of Time. A due date under this section or §102.32(c) of the Code or the publication date of the Delinquent list that would otherwise fall on a Saturday, Sunday or a state or federal holiday, will be the next regular business day. A payment sent by U.S. postal service or other mail delivery service is deemed made on the date postmarked or proof of date delivered to the mail delivery service. A payment hand delivered to an individual authorized to accept payment on behalf of the Seller is deemed made when the authorized individual takes possession of the payment.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 22, 2009.
TRD-200902007
Alan Steen
Administrator
Texas Alcoholic Beverage Commission
Earliest possible date of adoption: July 5, 2009
For further information, please call: (512) 206-3204