DAR File No. 39156

Alcoholic Beverage Control, Administration

Section R81-1-3

General Policies

Notice of Proposed Rule

(Amendment)

DAR File No.: 39156
Filed: 02/25/2015 08:49:57 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This section replaces Sections R81-2-1 and R81-3-5 which outline procedures for special orders by the general public. This amendment will allow the department to outline procedures in policy. The change is necessary to allow flexibility for department operations to adapt administration of the program to accommodate advances in technology and changes in market demand.

Summary of the rule or change:

This section replaces Sections R81-2-1 and R81-3-5. The removal of those sections are being filing simultaneously with this amendment. (DAR NOTE: The proposed amendment to Section R81-2-1 is under DAR No. 39154 and the proposed amendment to Section R81-3-5 is under DAR No. 39155 in this issue, March 15, 2015, of the Bulletin.)

State statutory or constitutional authorization for this rule:

• Subsections 32B-2-206(1)(a), (2) and (5)
• Subsections 32B-2-202(1)(b) and (k)
• Subsection 32B-2-204(1)

Anticipated cost or savings to:

the state budget:

None--This section is necessary to authorize the director to make internal department policies regarding a special order program for products not kept for sale by the department. Any cost or savings to the state is included in our normal course of business.

local governments:

None--This section is necessary to authorize the director to make internal department policies regarding a special order program for use by the general public and does not affect local government. Therefore this amendment will not incur any cost or savings to local government.

small businesses:

None--This section is necessary to authorize the director to make internal department policies regarding a special order program for use by the general public. The change would allow for adaptation of the program to adjust for advancement in technology and market demand. There will be no anticipated cost or savings for small businesses.

persons other than small businesses, businesses, or local governmental entities:

None--This section is necessary to authorize the director to make internal department policies regarding a special order program for use by the general public. The change would allow for adaptation of the program to adjust for advancement in technology and market demand. There will be no anticipated cost or savings for persons other than small businesses, businesses, or local government entities.

Compliance costs for affected persons:

None--This section is necessary to authorize the director to make internal department policies regarding a special order program by the general public. The change would allow for the department to make adjustments to the program for advances in technology and changes in market demand. Any changes to the program will not have compliance costs passed on to the consumer without going through the fee assessment processes outlined in Section 63J-1-504.

Comments by the department head on the fiscal impact the rule may have on businesses:

None--This section is necessary to authorize the director to make internal department policies regarding a special order program for use by the general public. The change would allow the department to make adjustments to the program for advancement in technology and changes in market demand and does not have any fiscal impacts.

Salvador D. Petilos, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Alcoholic Beverage Control
Administration
1625 S 900 W
SALT LAKE CITY, UT 84104-1630

Direct questions regarding this rule to:

• Nina McDermott at the above address, by phone at 801-977-6805, by FAX at 801-977-6888, or by Internet E-mail at nmcdermott@utah.gov
• Andrew Hofeling at the above address, by phone at 801-977-6835, by FAX at 801-977-6888, or by Internet E-mail at ahofeling@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

04/14/2015

This rule may become effective on:

04/21/2015

Authorized by:

Sal Petilos, Executive Director

R81. Alcoholic Beverage Control, Administration.

R81-1. Scope, Definitions, and General Provisions.

R81-1-3. General Policies.

(1) Labeling.

No licensee or permittee shall sell or deliver any alcoholic beverage in containers not marked, branded or labeled in conformity with regulations enacted by the agencies of the United States government pertaining to labeling and advertising.

(2) Manner of Paying Fees.

Payment of all fees for licenses, permits, certificates of approval, or renewals thereof, shall be made in legal tender of the United States of America, certified check, bank draft, cashier's check, United States post office money order, or personal check.

(3) Copy of Commission Rules.

Copies of the commission rules shall be available at the department's office, 1625 South 900 West, P. O. Box 30408, Salt Lake City, Utah 84130-0408 for an administrative cost of $20 per copy, or on the department's website at http://www.abc.utah.gov.

(4) Interest Assessment on Delinquent Accounts.

The department may assess the legal rate of interest provided in Sections 15-1-1 through -4 for any debt or obligation owed to the department by a licensee, permittee, package agent, or any other person.

(5) Returned Checks.

(a) The department will assess a $20 charge for any check payable to the department returned for the following reasons:

(i) insufficient funds;

(ii) refer to maker; or

(iii) account closed.

(b) Receipt of a check payable to the department which is returned by the bank for any of the reasons listed in Subsection (5)(a) may result in the immediate suspension of the license, permit, or operation of the package agency of the person tendering the check until legal tender of the United States of America, certified check, bank draft, cashier's check, or United States post office money order is received at the department offices, 1625 South 900 West, Salt Lake City, Utah, plus the $20 returned check charge. Failure to make good the returned check and pay the $20 returned check charge within thirty days after the license, permit, or operation of the package agency is suspended, is grounds for revocation of the license or permit, or termination of the package agency contract, and the forfeiture of the licensee's, permittee's, or package agent's bond.

(c) In addition to the remedies listed in Subsection (5)(b), the department may require that the licensee, permittee, or package agent transact business with the department on a "cash only" basis. The determination of when to put a licensee, permittee, or package agency operator on "cash only" basis and how long the licensee, permittee, or package agency operator remains on "cash only" basis shall be at the discretion of the department and shall be based on the following factors:

(i) dollar amount of the returned check(s);

(ii) the number of returned checks;

(iii) the length of time the licensee, permittee, or package agency operator has had a license, permit, or package agency with the department;

(iv) the time necessary to collect the returned check(s); and

(v) any other circumstances.

(d) A returned check received by the department from or on behalf of an applicant for or holder of a single event permit or temporary special event beer permit may, at the discretion of the department, require that the person or entity that applied for or held the permit be on "cash only" status for any future events requiring permits from the commission.

(e) In addition to the remedies listed in Subsections (5)(a), (b), (c) and (d), the department may pursue any legal remedies to effect collection of any returned check.

(6) Disposition of unsaleable merchandise.

The department, after determining that certain alcoholic products are distressed or unsaleable, but consumable, may make those alcoholic products available to the Utah Department of Public Safety for education or training purposes.

All merchandise made available to the Utah Department of Public Safety must be accounted for as directed by the Department of Alcoholic Beverage Control.

(7) Administrative Handling Fees.

(a) Pursuant to 32B-4-414(1)(b)a person, on a one-time basis, who moves the person's residence to this state from outside of this state may have or possess for personal consumption and not for sale or resale, liquor previously purchased outside the state and brought into this state during the move if the person obtains department approval before moving the liquor into the state, and the person pays the department a reasonable administrative handling fee as determined by the commission.

(b) Pursuant to 32B-4-414(1)(c) a person who as a beneficiary inherits as part of an estate liquor that is located outside the state, may have or possess the liquor and transport or cause the liquor to be transported into the state if the person obtains department approval before moving the liquor into the state, the person provides sufficient documentation to the department to establish the person's legal right to the liquor as a beneficiary, and the person pays the department a reasonable administrative handling fee as determined by the commission.

(c) The administrative handling fee to process any request for department approval referenced in subsections (7)(a) and (7)(b) is $20.00.

(8) Case Handling Markup

(a) For purposes of the landed case cost defined in Section 32B-2-304, "cost of the product" includes a case handling markup determined by the department.

(b) If a manufacturer and the Department have agreed to allow the manufacturer to ship an alcoholic beverage directly to a state store or package agency without being received and stored by the Department in the Department's warehouse, the manufacturer shall receive a credit equaling the case handling markup for the product that is not warehoused by the Department.

(c) The Department shall collect and remit the case handling markup as outlined in Utah Code Ann. Section 32B-2-304.

(9) Listing and Delisting Product: Pursuant to 32B-2-202(1) (b) and (k), this rule authorizes the director to make internal department policies in accordance with 32B-2-206(1) (2) and (5) for department duties as defined by 32B- 2-204(1) for listing and de-listing products to include a program to place orders for products not kept for sale by the department.

 

KEY: alcoholic beverages

Date of Enactment or Last Substantive Amendment: [April 29, 2014]2015

Notice of Continuation: May 10, 2011

Authorizing, and Implemented or Interpreted Law: 32B-2-201(10); 32B-2-202; 32B-3-203(3)(c); 32B-2-204; 32B-2-206; 32B-5-304; 32B-1-305; 32B-1-306; 32B-1-307; 32B-1-607; 32B-1-304(1)(a); 32B-6-702; 32B-6-805(3); 32B-9-204(4); 32B-4-414(1)(b) and (c)