PART 3. TEXAS ALCOHOLIC BEVERAGE COMMISSION
SUBCHAPTER A. APPLICATION PROCEDURES
The Texas Alcoholic Beverage Commission (commission) adopts new §33.13, relating to the processing of applications for beer licenses, wine and beer retailer's permits, and wine and beer retailer's off-premises permits, without changes to the proposed text as published in the November 14, 2008, issue of the Texas Register (33 TexReg 9168).
The new rule requires applications for the listed licenses and permits to be presented to the commission for processing prior to filing the applications with the county judge for a hearing under §61.31 of the Alcoholic Beverage Code (code).
Under §61.31 of the code, the county judge is often required to make a licensing determination based only on the content of an application and prior to a complete development and investigation of the facts relevant to the decision to grant or deny the application. This can result in the commission refusing or rejecting the application back to the county judge under §61.34 of the code to consider the facts as they have been developed by the commission or other interested persons. This creates unnecessary expense, delay, and duplication of effort. The new rule avoids this by requiring processing and investigation of the application by the commission prior to filing the application with the county judge under §61.31. Under the new rule the judge will make the decision to grant or deny an application with all interested persons and all information before him at the initial hearing, obviating the need for any subsequent hearing.
No comments were received as a result of publication of the proposed rule.
The new rule is adopted under the authority of §5.31 of the Alcoholic Beverage Code (code), which provides the Texas Alcoholic Beverage Commission with the authority to prescribe and publish rules necessary to carry out the provisions of the code.
Cross Reference: Section 5.31 and §61.31 of the Alcoholic Beverage Code will be affected by the new rule.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 21, 2009.
TRD-200900272
Alan Steen
Administrator
Texas Alcoholic Beverage Commission
Effective date: February 10, 2009
Proposal publication date: November 14, 2008
For further information, please call: (512) 206-3204
The Texas Alcoholic Beverage Commission (commission) adopts an amendment to §33.23, relating to the surcharges assessed for permits and licenses issued by the commission without changes to the proposed text as published in the November 7, 2008, issue of the Texas Register (33 TexReg 9040). The commission also adopts amendments to §33.25 relating to the implementation of two-year licenses and permits issued by the commission with a change to the proposed text as published in the November 7, 2008, issue of the Texas Register (33 TexReg 9040).
The amendment to §33.23 deletes surcharges for out-of-state wine only package store permits. The surcharge for this permit is the same as the in-state wine only package store permit, so the separate permit type for out-of-state is deleted as unnecessary.
The amendments to §33.25 also delete the out-of-state wine only package store permits from this section that relates to the implementation of two-year permits. In addition, the rule is amended to delete Forwarding Center Authority permits from subsection (d) of the rule, which is the list of permit types that will be issued two-year permits beginning on January 1, 2009, and adds the permit to subsection (e), which is the list of permit and license types that will be issued two-year permits beginning on September 1, 2009.
An amendment is made to subsection (c) to correct the chapter number of the Texas Alcoholic Beverage Code under which the Agent's Beer License (BK) can be found.
No comments were received as a result of the proposed amendments to the two sections.
The amendment to §33.23 is authorized by §5.50 of the Texas Alcoholic Beverage Code (code), which provides the commission with authority to establish and assess surcharges by rule. The amendments to §33.25 are authorized by §§5.50, 11.09, and 61.03, of the code, which provide the commission with authority to issue a license or permit for a two-year term, and §35.6 of the commission rules, relating to Regional Forwarding Centers for Manufacturers.
Cross Reference: Sections 5.31, 5.50, 11.09, and 61.03 of the Texas Alcoholic Beverage Code and §35.6 of the commission rules are affected by the amendments.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 23, 2009.
TRD-200900292
Alan Steen
Administrator
Texas Alcoholic Beverage Commission
Effective date: February 12, 2009
Proposal publication date: November 7, 2008
For further information, please call: (512) 206-3204
The amendment to §33.23 is authorized by §5.50 of the Texas Alcoholic Beverage Code (code), which provides the commission with authority to establish and assess surcharges by rule. The amendments to §33.25 are authorized by §§5.50, 11.09, and 61.03, of the code, which provide the commission with authority to issue a license or permit for a two-year term, and §35.6 of the commission rules, relating to Regional Forwarding Centers for Manufacturers.
Cross Reference: Sections 5.31, 5.50, 11.09, and 61.03 of the Texas Alcoholic Beverage Code and §35.6 of the commission rules are affected by the amendments.
§33.25.Alcoholic Beverage License and Permit Fees and Surcharges.
(a) This rule implements the provisions of §§5.50, 11.09 and 61.03 of the Texas Alcoholic Beverage Code (Code). Section 5.50 authorizes the Texas Alcoholic Beverage Commission (commission) by rule to assess surcharges on all applicants for original or renewal certificate, permit, or license issued by the commission. Sections 11.09 and 61.03 of the Code authorize the commission to issue a license or permit for a two-year term and double the amount of the fees established for each license or permit by the Code or a rule of the commission, and surcharges established in §33.23 of this chapter (relating to Alcoholic Beverage License and Permit Surcharges).
(b) Implementation Plan. To maintain a reasonable annual distribution of renewal application review work and permit fees, the commission will implement the two-year licensing schedule based on the type of permit or license type for which an application is submitted.
(c) An original or renewal application for a permit or license listed in the following chart, with an issue date before October 1, 2008, will expire one year from the date the license or permit is issued. An original or renewal application for a permit or license listed in the following chart, with an issue date on or after October 1, 2008, will expire two years from the date the license or permit is issued.
(d) An original or renewal application for a primary permit or license listed in the following chart, with an issue date before January 1, 2009, will expire one year from the date the license or permit is issued. An original or renewal application for a primary permit or license listed in the following chart, with an issue date on or after January 1, 2009, will expire two years from the date the license or permit is issued.
(e) An original or renewal application for a primary permit or license listed in the following chart, with an issue date before September 1, 2009, will expire one year from the date the license or permit is issued. An original or renewal application for a primary permit or license listed in the following chart, with an issue date on or after September 1, 2009, will expire two years from the date the license or permit is issued.
(f) The following permits and licenses are time limited and the fees and surcharges are assessed each time a permit or license is issued.
Figure: 16 TAC §33.25(f) (No change.)
(g) A secondary permit or license which requires the holder to first obtain another permit, including a late hours permit, expires on the same date as the primary permit expires. A temporary permit or license expires on the date indicated on the license or permit or the same date as the primary permit, whichever occurs earlier. The fees for a secondary or temporary permit or license may not be prorated or refunded.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 23, 2009.
TRD-200900293
Alan Steen
Administrator
Texas Alcoholic Beverage Commission
Effective date: February 12, 2009
Proposal publication date: November 7, 2008
For further information, please call: (512) 206-3204
CHAPTER 402. CHARITABLE BINGO ADMINISTRATIVE RULES
SUBCHAPTER A. ADMINISTRATION
The Texas Lottery Commission (Commission) adopts the repeal of 16 TAC §402.103 (relating to Training Program), without changes to the proposal as published in the November 14, 2008, issue of the Texas Register (33 TexReg 9169).
The Commission is adopting the repeal of the existing rule §402.103 concurrently with the adoption of a new rule at §402.103. The purpose of the new rule is to provide the opportunity for members of licensed authorized organizations to complete training required in Texas Occupations Code §2001.107 by utilizing the internet.
A public comment hearing was held on December 4, 2008. A representative from the Bingo Interest Group commented at the hearing in support of the proposed repeal. No written comments were received during the public comment period.
The repeal is adopted under Texas Occupations Code §2001.054, which authorizes the Commission to adopt rules to enforce and administer the Bingo Enabling Act, and under Texas Government Code §467.102, which authorizes the Commission to adopt rules for the enforcement and administration of this chapter and the laws under the Commission's jurisdiction.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 21, 2009.
TRD-200900245
Kimberly L. Kiplin
General Counsel
Texas Lottery Commission
Effective date: February 10, 2009
Proposal publication date: November 14, 2008
For further information, please call: (512) 344-5012
The Texas Lottery Commission (Commission) adopts new 16 TAC §402.103 (relating to Training Program), with changes to the proposed text as published in the November 14, 2008, issue of the Texas Register (33 TexReg 9170).
The purpose of the new rule is to provide the opportunity for members of licensed authorized organizations to complete training required in Texas Occupations Code §2001.107 by utilizing the internet.
A public comment hearing was held on December 4, 2008. A representative from the Bingo Interest Group commented at the hearing in overall support of the proposed new rule. No written comments were received during the public comment period.
Comment: Subsection (f) should be clarified if the Commission's interpretation of the statutes is that all people designated as operators must complete training. As proposed, it could be implied that if an organization has one operator trained, it has met the requirement. The Commission might say "all operators designated" or "each operator designated."
Agency Response: The Commission agrees and has substituted "each" for "any" in subsection (f).
Comment: As soon as this rule, §402.103 would be adopted by the Commission and become effective, not all people designated as bingo chairpersons would have the certificate of completion. The Commission should put some sort of a time period in the rule to allow opportunity for compliance. Otherwise, many people will be in immediate violation of the rule.
Agency Response: The Commission agrees and has added language to subsection (f) that provides 60 days from the effective date of the new rule for organizations to comply with the training requirements.
Comment: At subsection (f), change "and" to "or", or allow the bingo chairperson to designate another person to take the course who is not an operator.
Agency Response: The Commission disagrees. It is important that the bingo chairperson complete training to be adequately equipped to fulfill the position's responsibilities.
The new rule is adopted under Texas Occupations Code §2001.054, which authorizes the Commission to adopt rules to enforce and administer the Bingo Enabling Act, and under Texas Government Code §467.102, which authorizes the Commission to adopt rules for the enforcement and administration of this chapter and the laws under the Commission's jurisdiction.
§402.103.Training Program.
(a) Definitions.
(1) On-line training class--A training class developed by the Commission that is accessible on the Commission's website and may be taken at any time.
(2) On-site training class--A training class conducted by a Commission employee held at a specified date, time, and location.
(b) Training classes. The training program is offered in two formats. Individuals may choose an on-site or on-line training class.
(c) On-site training class.
(1) Notice of the specified date, time and location of scheduled on-site training classes will be posted on the Commission's website and published in the Bingo Bulletin.
(2) A person attending an on-site training class should pre-register by:
(A) completing an electronic submission form prescribed by the Commission located on the Commission's website; or
(B) telephoning the Commission's headquarters location and providing the information requested on the electronic submission form prescribed by the Commission.
(3) Each individual attending the training program must complete a confirmation of attendance on a form prescribed by the Commission.
(4) All reasonable and necessary expenses or costs of attendance by any member of the licensed authorized organization may be paid from the licensed authorized organization's bingo bank account. Expenses and costs are limited to travel, lodging, meals, and materials.
(5) In the event the Charitable Bingo Operations Division cancels the on-site training, reasonable effort will be made to notify persons who have pre-registered.
(d) On-line training class.
(1) Persons taking the on-line training class must:
(A) complete all training modules specified on the Commission's website; and
(B) complete a test answer sheet and receive a passing score of at least 70%.
(2) Persons not receiving a passing score on the test answer sheet may re-take the training class.
(e) The Charitable Bingo Operations Division will issue a Certificate of Completion that is valid for two years to persons who attend the entire on-site training class or satisfactorily complete the on-line training.
(f) Training Required.
(1) At all times, the bingo chairperson and each operator designated by a licensed authorized organization holding a regular license to conduct bingo must have a valid Certificate of Completion for the training program.
(2) The bingo chairperson and at least one other person designated as an operator under Occupations Code, §2001.102(b)(10) must have a valid Certificate of Completion prior to the date a regular license is issued or a license amendment to change the primary operator is approved.
(3) Organizations must meet the requirements of paragraphs (1) and (2) of this subsection within 60 days of the effective date of this section.
(4) Other officers, directors or members from a licensed authorized organization may attend training.
(5) The Charitable Bingo Operations Division may limit the number of persons attending an on-site class for a licensed authorized organization in order to ensure persons from other licensed authorized organizations have the opportunity to attend training.
(g) Content of the training. The training program will cover, at a minimum, the following areas:
(1) General information about the Bingo Enabling Act and Charitable Bingo Administrative Rules;
(2) Conducting a bingo game;
(3) Record keeping requirements;
(4) Administration and operation of charitable bingo;
(5) Promotion of a bingo game;
(6) Bingo Advisory Committee; and
(7) General information about the license application process.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 21, 2009.
TRD-200900246
Kimberly L. Kiplin
General Counsel
Texas Lottery Commission
Effective date: February 10, 2009
Proposal publication date: November 14, 2008
For further information, please call: (512) 344-5012
16 TAC §§402.406, 402.410, 402.422
The Texas Lottery Commission (Commission) adopts new 16 TAC §402.406 (relating to Bingo Chairperson), without changes to the proposed text as published in the November 14, 2008, issue of the Texas Register (33 TexReg 9171). The Commission also adopts new §402.410 (relating to Amendment of a License - General Provisions) and new §402.422 (relating to Amendment to a Regular License to Conduct Charitable Bingo), with changes to the proposed text as published in the November 14, 2008, issue of the Texas Register (33 TexReg 9171). An incorrect reference in proposed §402.422(f) has been changed from (c)(2) to (c)(1)(B).
The purpose of new §402.406 is for licensed authorized organizations to designate a member of their organization who is an officer or director as described in the organization's by-laws who will be responsible for overseeing the organization's bingo activities and reporting to the membership relating to those activities as the bingo chairperson.
The purpose of new §402.410 is to specify when an amendment to a license is needed and to set out the requirements that are applicable to all license amendments.
The purpose of new §402.422 is to specify when an amendment to a license to conduct bingo is needed and to set out the requirements that are applicable to the specific change being requested.
A public comment hearing was held on December 4, 2008. A representative from the Bingo Interest Group commented at the hearing in support of new §402.406, and commented generally in favor of new §402.410. The representative made no comments on new §402.422. No written comments on the new rules were received during the public comment period.
Comment: In §402.410(e), there is a concern that language requesting things like minutes and so forth is very broad in that you could request meeting minutes or other documentation for anything. The suggestion is that the Commission limits the request for additional proof to some category of major changes to the license.
Agency Response: The Commission agrees and has removed subsection (e) from §402.410. Signature Requirements are addressed in proposed 16 TAC §402.412.
The new rules are adopted under Texas Occupations Code §2001.054, which authorizes the Commission to adopt rules to enforce and administer the Bingo Enabling Act, and under Texas Government Code §467.102, which authorizes the Commission to adopt rules for the enforcement and administration of this chapter and the laws under the Commission's jurisdiction.
The adopted new rules implement Texas Occupations Code, Chapter 2001.
§402.410.Amendment of a License - General Provisions.
(a) The Commission will not approve a license amendment application with an effective date that is not within the licensed authorized organization's or commercial lessor's current license period.
(b) A licensee may amend a license renewal application prior to its approval.
(c) The term "effective date", when used in this section, means the first day that the amended changes are to begin.
(d) A licensee may not begin activities under the amended license until the following have occurred:
(1) the effective date; and
(2) licensee's receipt and display at the playing location of official written notification or the amended license authorizing the change.
§402.422.Amendment to a Regular License to Conduct Charitable Bingo.
(a) A licensed authorized organization must file a form prescribed by the Commission and submit a $10 fee to amend its licensed:
(1) playing days;
(2) playing times;
(3) playing location;
(4) bingo chairperson;
(5) organization name; or
(6) primary business office.
(b) Playing days or playing times.
(1) An organization amending its playing day(s) or playing time(s) must specify on the form each playing occasion day and time that the organization intends to conduct bingo at the location.
(2) The playing day(s) or time(s) specified on the form may not:
(A) conflict with the playing day(s) or time(s) of any other application or license issued for that location;
(B) exceed the maximum number of bingo occasions per day allowed under Texas Occupations Code, §2001.419(c) and (d); or
(C) exceed three occasions during a calendar week or four hours per occasion.
(c) Playing location.
(1) An organization amending its playing location must submit:
(A) its current bingo license unless the license is currently in administrative hold status or its renewal application is pending; and
(B) a copy of the meeting minutes recording that the organization voted to move the bingo playing location and indicating the exact playing location address and name of the location, if applicable.
(2) A licensee shall display a copy of its license at the current playing location if the license was surrendered upon application for an amendment.
(d) Organization name. An organization amending its organization name must submit a copy of the following:
(1) all amended organizing instruments reflecting the name change;
(2) written notice sent to the Internal Revenue Service updating the organization's record if the organization is required to maintain a 501(c) exemption;
(3) meeting minutes recording that the organization voted to change its name; and
(4) letter approving the name change from the parent organization, if applicable.
(e) Primary business office location.
(1) An organization may not relocate its primary business office to a different county solely for the purpose of relocating its bingo playing location. If the new location is not adjacent to the current county of its primary business office, the organization must have at least 20 percent of its members' residences located in the county to which the organization is moving.
(2) An organization changing its primary business office location must submit a copy of the following:
(A) meeting minutes recording that the licensed authorized organization voted to move its primary business office to the proposed location and the reason for the move;
(B) the licensed authorized organization's membership list showing names and county of residence with at least 20 percent of the members' residences located in the county to which the organization is moving; and
(C) letter approving the organization's primary business office relocation to another county from the parent organization, if applicable.
(f) Meeting minutes submitted in accordance with subsections (c)(1)(B), (d)(3), and (e)(2)(A) of this section must be signed and certified as true and correct by an officer of the organization.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 21, 2009.
TRD-200900247
Kimberly L. Kiplin
General Counsel
Texas Lottery Commission
Effective date: February 10, 2009
Proposal publication date: November 14, 2008
For further information, please call: (512) 344-5012
The Texas Lottery Commission (Commission) adopts new 16 TAC §402.604 (Delinquent Purchaser), with changes to the proposed text as published in the November 14, 2008, issue of the Texas Register (33 TexReg 9173).
The purpose of the new rule is to clearly set forth for licensees the process and timelines to follow related to late payments for bingo sales and equipment. This rule provides clarification of §2001.216 of the Bingo Enabling Act, Chapter 2001, Texas Occupations Code.
A public comment hearing was held on December 4, 2008. A representative from the Bingo Interest Group commented at the hearing in overall favor of the proposed new rule with two exceptions. No written comments were received during the public comment period.
Comment: The commenter is opposed to subsection (b) as proposed. It seems unfair to consider all units managed by a unit manager to be delinquent because one of the units is delinquent.
Agency Response: The Commission agrees and has deleted the language in proposed subsection (b).
Comment: Subsection (a) may require modification because there are frequently discrepancies between the product that is actually received from a distributor and what the invoice or bill says. We request the agency take note that there is often a dispute about what is billed and what is actually received.
Agency Response: The Commission agrees and has added language to the definition of a delinquent purchaser in subsection (a) to clarify that a purchaser is delinquent who has not timely paid or notified the Commission and the manufacturer or distributor of a dispute.
The new rule is adopted under Texas Occupations Code §2001.054, which authorizes the Commission to adopt rules to enforce and administer the Bingo Enabling Act, and under Texas Government Code §467.102, which authorizes the Commission to adopt rules for the enforcement and administration of this chapter and the laws under the Commission's jurisdiction.
§402.604.Delinquent Purchaser.
(a) A delinquent purchaser is a licensed authorized organization, unit, or distributor that has not:
(1) provided full payment to a licensed distributor or manufacturer for equipment or supplies, or within 30 calendar days of:
(A) the actual delivery; or
(B) invoice for leased bingo equipment; or
(2) notified the Commission and the distributor or manufacturer that it disputes the invoice.
(b) Notification of Delinquency and Payment. A manufacturer or distributor must notify the Commission on a prescribed form of all delinquent purchasers by the 37th calendar day after the actual delivery of equipment or supplies.
(c) A manufacturer or distributor must notify the Commission on a prescribed form of a payment received from a delinquent purchaser within seven calendar days after receipt of the payment.
(d) A manufacturer or distributor who has terminated its license should report all payments made by delinquent purchasers for the six months immediately following the license termination.
(e) Delinquent Purchaser List. The Commission will maintain a Delinquent Purchaser List on the Commission's website and provide a copy of the list upon written request.
(f) Before the sale of any equipment or supplies, a manufacturer or distributor must confirm whether the intended purchaser is on the Delinquent Purchaser List. Any licensee or unit on the Delinquent Purchaser List must provide immediate payment upon delivery of the equipment or supplies.
(g) The Commission will remove a delinquent purchaser from the Delinquent Purchaser List twenty calendar days after its license termination date if the manufacturer or distributor who is owed a liability is no longer licensed and does not have a pending application for a new license.
(h) A delinquent purchaser that is a licensed authorized organization or distributor will remain on the Delinquent Purchaser List for twenty calendar days past the date of its license termination unless the Commission receives notice that the delinquency has been paid or the organization or distributor has a pending application for a new license at that time.
(i) A delinquent purchaser unit that dissolves will remain on the Delinquent Purchaser List for twenty calendar days past the date of dissolution unless the Commission receives notice that the delinquency has been paid. Members of a unit that was a delinquent purchaser will remain on the Delinquent Purchaser List until the liability is paid.
(j) A manufacturer or distributor may request that the Commission add a delinquent purchaser to the Delinquent Purchaser List that has been removed because its license was terminated if the delinquent purchaser is re-licensed and the liability has not been paid.
(k) Unit Accounting. If a delinquent purchaser joins a unit, the unit will be placed on the Delinquent Purchaser List until the delinquent purchaser's liability is paid, the delinquent purchaser withdraws from the unit, or the unit dissolves.
(l) A licensed authorized organization that was a delinquent purchaser when joining a unit will remain a delinquent purchaser after leaving a unit unless the liability is paid.
(m) If a licensed authorized organization withdraws from a unit that is a delinquent purchaser, both the unit and the withdrawing organization will remain a delinquent purchaser until the liability is paid.
(n) If a unit that is a delinquent purchaser because of a liability the unit incurred dissolves, all unit members at the time of dissolution will remain delinquent purchasers until the liability is paid.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 21, 2009.
TRD-200900250
Kimberly L. Kiplin
General Counsel
Texas Lottery Commission
Effective date: February 10, 2009
Proposal publication date: November 14, 2008
For further information, please call: (512) 344-5012