| (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.
(7) Seller--As used in this section includes:
(A) the holder of a wholesaler's permit or a general
class B wholesaler's permit
(B) the holder of a winery permit;
(C) 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 nonprofit entity temporary
event permittee; and
(D) the agents, servants and employees of a permit
or license holder identified in subparagraphs (A) - (C) of this paragraph.
(c) Invoices.
(1) 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.
(2) The Seller's copy of the invoice must be signed
by the Retailer to verify receipt of alcoholic beverages and accuracy
of invoice.
(3) The Seller and Retailer must retain invoices in
compliance with the requirements of §206.01 of the Code.
(4) 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 premises and made available to the commission during
normal business hours.
(d) Late Payment Violation.
(1) A payment is late if it is not received by the
Seller on or before the date that payment is due under §102.32(c)
of the Code. If the Seller receives payment by mail within four days
of the date that payment is due under §102.32(c) of the Code,
the payment is not late.
(2) A Retailer shall not make a late payment to a
Seller for the delivery of alcoholic beverages. A payment is late
and a violation accrues to the Retailer according to paragraph (1)
of this subsection.
(3) A Retailer who violates this section must pay the
amount due, and a Seller shall accept payment, only in cash or cash
equivalent financial transaction or instrument.
(4) A Retailer who violates this section shall be placed
on the Delinquent List unless the delinquent account is paid within
four days of the date that payment is due under §102.32(c) of
the Code.
(5) A Retailer whose permit or license expires or is
cancelled for cause, voluntarily cancelled, suspended or placed in
suspension while on the Delinquent List is disqualified from applying
for or being issued an original or renewal permit or license until
all delinquent accounts are paid in full. 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 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 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 accounts are
paid in full.
(2) A prohibited purchase or acceptance of a delivery
of alcoholic beverages is a violation of this section.
(h) Exception.
(1) 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.
(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) A disputed delinquent account will not be removed
from the Delinquent List until documents and/or other records tending
to support the Retailer's dispute are submitted to the commission.
(4) 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 https://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 Cont'd... |
