16 TAC §45.121
The Texas Alcoholic Beverage Commission proposes amendments
to §45.121, relating to regulation of delinquent payments for liquor
by retailers to suppliers and compliance with §102.32 of the Alcoholic
Beverage Code.
Lou Bright, General Counsel, has determined that for the first five years
the amendments are in effect, there will be no additional or unique costs
to units of government, persons or small businesses as a result of the amendments.
Mr. Bright has determined that the public will benefit from these amendments
in that they will serve to harmonize regulatory requirements and standard
business practices, thereby lessening the burden of regulation on industry
members required to comply with the rule.
Comments may be addressed to Lou Bright, General Counsel, Texas Alcoholic
Beverage Commission, P.O. Box 13127, Austin, Texas 78711.
This amendment is proposed under the authority of Alcoholic Beverage
Code §5.31, which gives the commission the authority to prescribe and
publish rules necessary to carry out the provisions of the Alcoholic Beverage
Code.
Cross Reference: Section 102.32 of the Alcoholic Beverage Code is affected
by this amendment.
§45.121.Delinquent List.
(a)
Any package store permittee,
wine only
[
wine-only
] package store permittee, private club permittee, mixed beverage
permittee, or other retailer who has not fully paid for alcoholic beverages
purchased from any wholesaler,
class
[
Class
] B wholesaler,
[
Class A
] winery, wine bottler, or local distributor in accordance
with §102.32 of the Alcoholic Beverage Code shall be deemed delinquent.
(b)
Each delivery of alcoholic beverages by a wholesaler,
class
[
Class
] B wholesaler, [
Class A
] winery,
wine bottler, or local distributor to a package store permittee,
wine
only
[
wine-only
] package store permittee, private club permittee,
private club exemption certificate permittee, mixed beverage permittee, or
other retailer shall be accompanied by an invoice of sale bearing the name
of the retailer together with a full description of the alcoholic beverages
delivered, the price and terms of sale, and the place and date of actual delivery.
One copy of such invoice shall be signed by the retailer or his agent, showing
receipt of the merchandise, and shall be retained by the seller. The other
copy shall be retained by the retailer.
(c)
It shall be the duty of each wholesaler,
class
[
Class
] B wholesaler, [
Class A
] winery, wine bottler, or local
distributor to report all delinquencies to the administrator in writing within
two
business
days after such delinquencies occur. Such reports
set forth the name, address, and permit number of the package store permittee,
wine only
[
wine-only
] package store permittee, private club
permittee, private club exemption certificate permittee, mixed beverage permittee,
or other retailer in default, the date of sale and delivery of such alcoholic
beverages on account of which report is made, the amount in dollars and cents
of such delinquency, and the name, address, and permit number of the permittee
reporting. In a like manner, the wholesaler,
class
[
Class
] B wholesaler, [
Class A
] winery, wine bottler, or local
distributor shall report when payment in full has been made of any account
previously reported delinquent. [
No such delinquent account shall be
paid in any manner other than by cash, U.S. postal money order, postal note,
express money order, cashier's check, certified check, or bank exchange.
]
(d)
In the event any package store permittee,
wine only
[
wine-only
] package store permittee, private club permittee,
private club exemption certificate permittee, mixed beverage permittee, or
other retailer shall pay on his account with any wholesaler,
class
[
Class
] B wholesaler, [
Class A
] winery, wine bottler, or local
distributor by means of a draft, check or any other instrument, which draft,
check, or other instrument is dishonored by the drawee, then it shall be the
duty of such wholesaler,
class
[
Class
] B wholesaler,
[
Class A
] winery, wine bottler, or local distributor to immediately
report such fact to the administrator by affidavit provided such failure to
honor such draft, check, or other instrument causes a delinquency. In such
event, the giver of such dishonored draft[
,
] check, or other instrument
shall be deemed guilty of attempting to evade the delinquent list to be published
by the commission and such act shall constitute a violation of this rule,
and any permit held by the giver of such dishonored draft, check, or other
instrument may be cancelled or suspended.
(e)
Following each delinquency reporting date, the commission
shall notify wholesalers,
class
[
Class
] B wholesalers,
[
Class A
] wineries, wine bottlers, and local distributors of all
delinquencies occurring
by publishing a delinquent list which specifies
an effective date for the list
, and
after said effective date
[
thereafter
] no sales or deliveries of alcoholic beverages shall be made
to any package store permittee,
wine only
[
wine-only
]
package store permittee, private club permittee, private club exemption certificate
permittee, mixed beverage permittee, or other retailer whose name appears
upon said delinquent list until such time as notice of removal from such list
has been given in writing by the commission.
After the effective date
of the delinquent list, any retailer whose name appears on such list must
pay the delinquency by cash, U.S. postal money order, postal note, express
money order, cashier's check, certified check, or bank exchange.
(f)
After the effective day of the delinquent list on
which their name appears,
[
After becoming delinquent,
] package
store permittees,
wine only
[
wine-only
] package store
permittees, private club permittees, private club exemption certificate permittees,
mixed beverage permittees, and other retailers shall not purchase or accept
delivery of any alcoholic beverages from any wholesaler,
class
[
Class
] B wholesaler, [
Class A
] winery, wine bottler, or local
distributor until the commission has given notice of removal from such list.
(g)
If any default or failure to comply with the requirements
of §102.32 of the Alcoholic Beverage Code is the result of a dispute
involving the quality or quantity of the alcoholic beverages, or any other
factor involved in the sale of or purchase of same, the seller or purchaser
may file a statement in writing with the administrator on or before the delinquency
reporting date, setting forth in detail any reason why a delinquency should
not be deemed to exist. The administrator shall thereupon determine whether
the retailer shall be placed upon the delinquent list.
(h)
If a due date under §102.32(c) falls
on a Saturday, Sunday or a state or federal holiday, the due date shall be
the next regular business day. Payment sent via U.S. mail or private delivery
service shall be deemed made on the date the payment is mailed or sent, as
evidenced by postmark, receipt or other similar proof of mailing date. Payment
delivered directly to an agent or employee of a vendor who is authorized by
the vendor to accept payment shall be deemed made on the date of actual delivery
to such authorized employee or agent of vendor.
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 23, 2006.
TRD-200602874
Alan Steen
Administrator
Texas Alcoholic Beverage Commission
Earliest possible date of adoption: July 9, 2006
For further information, please call: (512) 206-3204