| (a) Purpose. This section implements §§102.32,
11.61(b)(2), 11.66, and 109.64 of the Texas Alcoholic Beverage Code
(Code).
(b) Definitions. For purposes of this section, the
following terms have the definitions given in this subsection.
(1) Alcoholic beverage--As used in this section includes
only liquor, as that term is defined in §1.04 of the Code.
(2) Cash equivalent--A financial transaction or instrument
that is not conditioned on the availability of funds upon presentment,
including, money order, cashier's check, certified check or completed
electronic funds transfer.
(3) 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, on or before the fourth business
day after the date that payment is due under §102.32(c) of the
Code, or is returned to the Seller as unpaid for any reason after
the fourth business day after the date payment is due under §102.32(c)
of the Code. A delinquent payment also occurs in the event the Retailer
fails to submit payment on or before the fourth business day after
the date that payment is due under §102.32(c) of the Code.
(4) 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.
(5) Incident--A single delinquent payment. Failure
to submit payment also constitutes an incident.
(6) 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. For purposes of this section,
the holder of a winery permit issued under Chapter 16 of the Code
is a Retailer when the winery permit holder purchases wine from the
holder of a wholesaler's permit issued under Chapter 19 of the Code
for resale to ultimate consumers in unbroken packages. For purposes
of this section and pursuant to Code §109.64, the holder of an
industrial permit under Chapter 38 of the Code is treated in the same
manner as a Retailer when the industrial permit holder makes a bulk
purchase of liquor from the holder of a wholesaler's permit issued
under Chapter 19 of the Code.
(7) Seller--As used in this section includes:
(A) the holder of a wholesaler's permit, a general
class B wholesaler's permit, or a local class B wholesaler's permit;
(B) the holder of a winery permit or wine bottler
permit;
(C) the holder of a brewpub license when selling ale
or malt liquor to Retailers;
(D) the holder of a brewer's self distribution permit;
(E) the holder of a local distributor's permit when
making a sale of an alcoholic beverage that is not the sale of a malt
beverage to a mixed beverage permittee or a daily temporary mixed
beverage permittee ; and
(F) the agents, servants and employees of a permit
or license holder identified in subparagraphs (A) - (E).
(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, as long as the records can be accessed
from the licensed premises and made available to the commission during
normal business hours.
(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 expires or
is cancelled for cause, voluntarily cancelled, suspended or placed
in suspension while on the Delinquent List will be disqualified from
applying for or being issued an original or renewal permit or license
until all delinquent payments are satisfied. For purposes of this
section, the Retailer includes all persons who were owners, officers,
directors 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 to the commission on the commission's web based reporting
system at www.tabc.texas.gov.
(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 before the date the Delinquent
List is published.
(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 Delinquent List until the Release Date on the Delinquent List,
or until 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 is prohibited from purchasing or accepting delivery of alcoholic
beverages from any source at 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 or paper written statement with the
commission with an electronic or paper copy to the Seller explaining
the basis of the dispute.
(1) The written statement must be submitted with documents
and/or other records tending to support the Retailer's dispute, which
may include:
(A) a copy of the front and back of the cancelled
check of Retailer showing endorsement and deposit by Seller;
(B) bank statement or records of bank showing funds
were available in the account of Retailer on the date the check was
delivered to Seller; and
(C) bank statement or records showing:
(i) bank error or circumstances beyond the control
of Retailer caused the check to be returned to Seller unpaid; or
(ii) the check cleared Retailer's account and funds
were withdrawn from Retailer's account in the amount of the check.
(2) A disputed delinquent payment will not be removed
from the List until documents and/or other records tending to support
the Retailer's dispute are submitted to the commission.
(3) 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 one or more violations of this section. The commission
may consider whether a violation is 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.texas.gov. 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) Except as otherwise specified in subsection (k)
of this section, the Delinquent List will be published on the fifth
business day after the 25th day of the month for purchases made from
the 1st to the 15th day of that month and for which payment was not
received by the fourth business day after the 25th day of that month.
Except as otherwise specified in subsection (k) of this section, the
Delinquent List will be published on the fifth business day after
the 10th day of the next month for purchases made between the 16th
and the last day of the preceding month and for which payment was
not received by the fourth business day after the 10th day of the
next month.
(3) The Delinquent List is effective at 12:01 A.M.
on the date of publication.
(4) The Delinquent List is updated hourly to reflect
reports of payments submitted.
(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, a Sunday, a state or
federal holiday (unless the commission is required to be open for
business), or a standard Federal Reserve bank holiday (as published
at http://www.frbservices.org/holidayschedules/index.html) will be
the next regular business day. For purposes of this section, a business
day means a day which is not a Saturday, a Sunday, a state or federal
holiday (unless the commission is required to be open for business),
or a standard Federal Reserve bank holiday (as published at http://www.frbservices.org/holidayschedules/index.html).
A payment hand delivered to an individual authorized to accept payment
on behalf of the Seller is deemed received when the authorized individual
takes possession of the payment.
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| Source Note: The provisions of this §45.121 adopted to be effective September 28, 2009, 34 TexReg 6641; amended to be effective November 18, 2010, 35 TexReg 10049; amended to be effective November 10, 2011, 36 TexReg 7549; amended to be effective March 1, 2013, 38 TexReg 824; amended to be effective December 15, 2013, 38 TexReg 9017; amended to be effective December 8, 2016, 41 TexReg 9507 |
