The purpose and effect of the proposed rule amendment is to reformat and clarify the rules addressing certain exceptions to the statutory ban on assistance to vendors of alcoholic beverages from any manufacturer, distributor, importer, primary ...

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION
Division of Alcoholic Beverages and Tobacco

RULE NO: RULE TITLE
61A-1.01027: Merchandise Exception
61A-1.01028: Recordkeeping
PURPOSE AND EFFECT: The purpose and effect of the proposed rule amendment is to reformat and clarify the rules addressing certain exceptions to the statutory ban on assistance to vendors of alcoholic beverages from any manufacturer, distributor, importer, primary American source of supply, brand owner or brand registrant, or any broker, sales agent, or sales person thereof.
SUMMARY: The subject area to be addressed in this rule is the implementation of the statutory ban, found in Section 561.42, Florida Statutes, on assistance to vendors from manufacturers and distributors of alcoholic beverages.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: The agency has determined that this rule will have an impact on small business. A SERC has been prepared by the agency. The only regulatory requirement that imposes costs upon small business is the recordkeeping requirement, which may affect small vendors. The effect is minimal and is necessary to implement the statutory regulation.
OTHER RULES INCORPORATING THIS RULE: None.
EFFECT ON THOSE OTHER RULES: None.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 561.11, 561.42 FS.
LAW IMPLEMENTED: 561.08, 561.42 FS.
A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: Monday, April 19, 2010, 9:30 a.m. – 5:00 p.m. or until business concludes
PLACE: Department of Business and Professional Regulation, Northwood Center, Board Room, 1940 North Monroe Street, Tallahassee, Florida 32399
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: Patricia Nelson, Assistant General Counsel, Department of Business and Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399, [phone]. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Patricia Nelson, Assistant General Counsel, Department of Business and Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399, [phone]

THE FULL TEXT OF THE PROPOSED RULE IS:

61A-1.01027 Merchandise Exception.

If an industry member is a bona fide producer, wholesaler, or retailer of other merchandise, such as groceries or pharmaceuticals, that industry member may sell that merchandise to vendors under the following conditions:

(1) The merchandise is sold at fair market value, either wholesale or retail;

(2) The merchandise is not sold in combination with alcoholic beverages except as provided in Rule 61A-1.0108, F.A.C.;

(3) The industry member’s cost for acquiring the merchandise appears in that industry member’s invoices or other records;

(4) The sale of merchandise is itemized separately from the sale of alcoholic beverages; and

(5) No equipment or vehicles may be sold as merchandise.

Rulemaking Authority 561.11, 561.42 FS. Law Implemented 561.08, 561.42 FS. History–New________.

 

61A-1.01028 Recordkeeping.

(1) Industry members must keep and maintain records for a three-year period on their licensed premises, or other division-approved location, of all product displays, equipment and supplies, participation in retailer association activities, the acquisition or production cost and selling cost of specialties or any items given, sold, or loaned to vendors, or any other form of assistance limited as to quantity, frequency, or value by Rules 61A-1.010 through 61A-1.0108, F.A.C., or Section 561.42, F.S. The records may be in any format so long as they are available and legible to division personnel when the records are requested for review. A copy of any record produced in compliance with this rule shall be given to the vendor. The copy shall be in a format accessible and readable by the vendor, i.e. not provided in an electronic format that would require proprietary software unavailable to the vendor. These records must show:

(a) The name and address of the vendor, vendor’s employee or agent receiving the assistance;

(b) The vendor’s license number;

(c) The date furnished, given, rented, loaned, or sold;

(d) The description and quantity of assistance furnished, given, rented, loaned, or sold;

(e) The cost of the industry member’s assistance determined by the original purchaser’s invoice price. This information is not required if no value restrictions exist;

(f) The charges to the vendor for the assistance, if any; and

(g) The name, license number, and address of the industry member providing the credit, cash, or other form of assistance.

(2) Pursuant to Section 561.42(8), F.S., vendors shall keep and maintain any record provided to the vendor under subsection (1) of this rule for a three-year period on their licensed premises, or other division approved location, of any credits, or any other form of assistance limited as to quantity, frequency, or value by Rules 61A-1.010 through 61A-1.0108, F.A.C., or Section 561.42, F.S.

These records must show:

(a) The name and address of the industry member providing the credit, cash, or other form of assistance.

(b) A description of the form of assistance received and quantity received, if applicable.

Rulemaking authority 561.11, 561.42 FS. Law Implemented 561.08, 561.42 FS. History–New________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Patricia Nelson, Assistant General Counsel, Department of Business and Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399, [phone]
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Charlie Liem, Interim Secretary, Department of Business and Professional Regulation
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: March 31, 2010
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: July 31, 2009