| (a) Purpose. This rule implements §102.31 of the
Texas Alcoholic Beverage Code (Code).
(b) Definitions. For purposes of this section, the
following terms have the meaning given in this subsection.
(1) 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.
(2) Cash payment--United States currency and coins,
or a cash equivalent financial transaction or instrument.
(3) Event--A financial transaction or instrument that
fails to provide payment to a Retailer and results in one or more
incidents to one or more Sellers.
(4) Incident--One financial transaction or instrument
made by a Retailer that fails to provide payment in full for malt
beverages delivered by a Seller to the Retailer. Failure to submit
payment also constitutes an incident.
(5) Malt beverages--a fermented beverage of any name
or description containing one-half of one percent or more of alcohol
by volume, brewed or produced from malt, in whole or in part, or from
any malt substitute.
(6) Retailer--A license or permit holder and their
agents, servants and employees, authorized to sell malt beverages
for on- or off-premise consumption to an ultimate consumer.
(7) Seller--As used in this section means:
(A) the holder of a local distributor's permit when
selling malt beverages to a mixed beverage permittee or nonprofit
entity temporary event permittee, or an agent, servant, or employee
of a local distributor's permit holder when selling malt beverages
to such permittees;
(B) the holder of a brewpub license when selling malt
beverages to Retailers;
(C) the holder of a general or branch distributor's
license;
(D) the holder of a brewer's self- distribution license
under Chapter 62A of the Code; and
(E) the agents, servants, and employees of a license
or permit holder identified in subparagraphs (A) - (D) of this paragraph
when selling malt beverages to a Retailer.
(c) Invoices. A delivery of malt 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 malt beverages, the price, the place and date of delivery.
(1) The Seller's copy of the invoice must be signed
by the Retailer to verify receipt of malt beverages and accuracy of
invoice and by the Seller to acknowledge payment was received on or
before the delivery.
(2) The Seller and Retailer must retain invoices for
four years from the date of delivery.
(3) Invoices may be created, signed and retained in
an electronic or web-based inventory system, and may be retained on
or off the licensed premise, as long as the records can be accessed
from the licensed premise and made available to the commission during
normal business hours.
(d) Cash Payment Violation. A Retailer who fails to
make a cash payment to a Seller for the delivery of malt beverages
violates this section unless an exception applies.
(1) A Retailer who violates this section must pay the
amount due, and a Seller may accept payment, only in cash or cash
equivalent.
(2) For purposes of this section, the Retailer includes
all persons who are or were owners, officers, directors, managers
or shareholders of the Retailer at the time a cash payment violation
occurs.
(e) Reporting Violation and Payment; Failure to Report.
(1) A report of a violation must be submitted electronically
on the forms provided on the commission's web-based reporting system
at https://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 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 as required
by this subsection is in violation of this section.
(f) Exception.
(1) A Retailer who wishes to dispute a violation of
this section, based on a good faith dispute between the Retailer and
the Seller may submit supporting documents and a detailed written
statement to the commission with a copy to the Seller explaining the
basis of the dispute.
(2) 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.
(3) The Retailer must immediately submit a notice of
resolution of a dispute to the commission under this subsection.
(g) Penalty for Violation. An action to cancel or suspend
a permit or license may be initiated under 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.
(h) Calculation of Time. Sundays and legal holidays
are not counted in determining time periods under this section.
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| Source Note: The provisions of this §45.131 adopted to be effective November 29, 2009, 34 TexReg 8503; amended to be effective November 18, 2010, 35 TexReg 10051; amended to be effective December 15, 2013, 38 TexReg 9019; amended to be effective December 8, 2016, 41 TexReg 9508; amended to be effective September 1, 2021, 46 TexReg 5182 |
