The purpose and effect of the proposed rule amendment will be to place all language pertaining to the subject matter of Pool Buying Procedures in Rule 61A-4.0501, F.A.C., to clarify terminology, and remove language that lacks statutory authority ...

 

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

RULE NO.: RULE TITLE:
61A-4.0501: Cooperative or Pool Buying - Definition; Creation; Record Keeping; Restrictions

PURPOSE AND EFFECT: The purpose and effect of the proposed rule amendment will be to place all language pertaining to the subject matter of Pool Buying Procedures in Rule 61A-4.0501, F.A.C., to clarify terminology, and remove language that lacks statutory authority from Rule 61A-4.0501, F.A.C.

SUMMARY: The amendment of Rule 61A-4.0501, F.A.C., to incorporate language pertaining to Pool Buying Procedures, clarify language, and remove unnecessary language.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The Division of Alcoholic Beverages and Tobacco conducted an analysis of the proposed rule’s potential economic impact and determined that it did not exceed any of the criteria established in Section 120.541(2)(a), F.S.

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.

RULEMAKING AUTHORITY: 561.11 FS.
LAW IMPLEMENTED: 561.08, 561.42 FS.

A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:

DATE AND TIME: June 7, 2012, 9:00 a.m. – 12:30 p.m.

PLACE: Department of Business and Professional Regulation, Board Conference 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 7 days before the workshop/meeting by contacting: Renita Walton-Hayes, Department of Business and Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0750, [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: Renita Walton-Hayes, Department of Business and Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0750, [phone]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

61A-4.0501 Cooperative or Pool Buying – Definition; Creation; Procedures; Record Keeping; Restrictions.

(1)(a) “Cooperative or pool buying” shall mean the combining of orders into a single order or transaction, by two or more vendors, who are members of a pool buying group approved by the Division of Alcoholic Beverages and Tobacco, for the purpose of maximizing purchasing power.

(b) “Members of a pool buying group” shall mean only those licensees reported by the pool buying agent and approved by the Division,

(c) “Pool Buying Agent” shall mean the licensed vendor of alcoholic beverages in this state who is designated as such by the pool buying group in a pool buying agreement. The agreement must be submitted to and approved by the Division prior to placing any pool orders.

(2) There shall be no sales or transfers of alcoholic beverages between members of a cooperative or pool buying group, except for product purchased as part of as to the combining of individual orders and the placement of a pool order. with a distributor. In order to effectuate convenience or economies of delivery of pool orders, a pool member other than the buying agent may transfer to another pool member any portion of the alcoholic beverages ordered by the transferee vendor as part of the single transaction pool purchase provided adequate documentation is retained by the buying agent establishing that the transferee vendor has properly ordered such alcoholic beverages as part of the pool order and an invoice is provided from the transferor vendor to the transferee vendor identifying the pool invoice and establishing that the transfer is being made without cost or charge by the transferor vendor of any nature whatsoever. Transfer pursuant to this paragraph must be made within seven days of the pool delivery without any cost or charge whatsoever being made against the transferee vendor. Warehousing of pool orders by the buying agent shall be done in accordance with subsections (6) and (7) of this rule.

(3) A cooperative or pool buying group shall be created in the following manner:

(a) Prior to operating as such, a cooperative or pool buying groups shall file with the Division a copy of the agreement under which such group will operate. The Division shall review the agreement and, if the requirements of applicable law and rules are met, shall approve the agreement.

(b) Any proposed amendment to a cooperative or pool buying agreement shall be filed with and must be approved by the Division in the same manner as the original agreements, before said proposed amendment shall be effective.

(c) Cooperative or pool buying agreements shall include the name and address of the cooperative or pool buying group, the name of the buying agent for the group, and for each member, the licensee’s name, business name, license number and the date each licensee joined the group.

(d) The buying agent must be a licensed vendor of alcoholic beverages in this state.

(d)(e) A member of the pool or cooperative group shall not be eligible to place an order with said group until such member has first executed the pool buying agreement and the licensee’s name, business name, license number and date of membership have been filed with and approved by the Division at its Tallahassee central office.

(4) Procedures.

(a)(f) All changes, additions, and deletions to Pool Buying groups shall be made using form DBPR ABT-6010, APPLICATION FOR CHANGES TO POOL BUYING GROUPS, effective (date) and incorporated herein by reference. This form is available upon request from the Division of Alcoholic Beverages & Tobacco or through the Department of Business & Professional Regulation’s web site. Any additions or deletions to the membership of the cooperative or pool buying group shall be provided to the Division under signature of the buying agent or its authorized employee. Such notice shall include the effective date of new members and/or the effective date of deletion of existing members. Such notice may be in letter form or on official forms which may be promulgated by the Division.

(b)(g) Upon the transfer, suspension or revocation of any alcoholic beverage license held by a member of a cooperative or pool buying group, the Division shall automatically delete such licensee from membership in the cooperative or pool buying group.

(c)(4) Individual members of a cooperative or pool buying group must place their orders with and remit their payment to the buying agent. Payments shall be made payable to the pool buying agent or the distributor. Distributors of alcoholic beverages may accept pool orders and payment therefor only from the designated buying agent of a cooperative or pool buying group. The buying agent may not use any third party checks in violation of Rule 61A-4.0021, F.A.C.

(d) All pool buying orders shall be placed in the following manner:

1. All pool buying orders for alcoholic beverages shall be ordered from distributors by the pool buying agent.

2. The pool buying agent shall place the order under the name of the pool buying group and indicate each licensed vendor’s part of the pool order.

3. Each distributor and pool buying agent shall be responsible for keeping the individual invoices for each member’s portion of the pool buying order. The master invoice shall include all alcoholic beverages ordered, and shall be in compliance with subsection 61A-4.0501(5), F.A.C., and shall refer to each associated invoice supporting the master invoice.

4. Records of purchases made between vendors as permitted by Section 561.14(3), Florida Statutes, shall be maintained by all parties to the transaction and shall be in compliance with subsection 61A-4.0501(5), F.A.C.

(e) The pool buying group and all members thereof shall be considered delinquent accounts and reported to the division as required by Section 561.42, Florida Statutes, when any payment is not timely made for a pool buying order.

(5) Record Keeping

(a)(5) Where Tthe distributor shall prepares and keeps a master invoice which identifies the total pool order placed by the buying agent and separately identifies each pool order member’s portion of the total pool order by setting forth the name of the buying agent making the order and the information set forth in Rule subsections 61A-4.043(1) through (9), F.A.C., the pool buying agent is not required to keep a separate record of each pool order. Distributors must prepare and pool buying agents must keep invoices for pool purchases in accordance with Rule 61A-4.043, F.A.C. Where the distributor does not prepare and keep a master invoice, the pool buying agent must prepare and keep for a period of 3 years, records of each pool order containing:

1. The date of each pool order and the name of the distributor with whom each order was placed.

2. The names and license numbers of each pool member participating in each pool order.

3. The brand, size and quantity of alcoholic beverages ordered by each pool member and each pool purchase.

4. The cost to each member for its share of each pool purchase and any vinous and spirituous beverage discount given on any pool purchase.

(b) Sale of alcoholic beverages ordered as a part of a single transaction pool purchase from a vendor who received the products shall be considered a purchase between members of a pool buying group, provided a record of the transaction is made by the vendor transferring the products to another vendor and retained by both vendors for a period of three years from the date of transfer. This record shall include:

1. Business name and license number of each vendor;

2. Names, sizes, and quantities of products transferred;

3. Date of original delivery of products from the pool order;

4. Date physical transfer of products was made;

5. Unique identifier that links the with the pool order.

(c) Upon written request, a pool buying agent must make available for inspection all papers and reports related to pool orders, purchases, and payments within 10 days to any division employee.

(6) Where warehousing in accordance with the beverage rules is provided by the buying agent, the buying agent shall keep delivery records in accordance with this paragraph. The buying agent shall maintain all required records at the address filed with the Division. The buying agent shall issue a delivery ticket to the vendor to accompany the order. The vendor shall acknowledge receipt of the order by signing the delivery ticket and returning a copy to the buying agent. The vendor shall keep the original and the buying agent shall keep a copy of the delivery ticket for a period of 3 years. The delivery ticket shall contain the following information: name and address of vendor and buying agent and respective license numbers; and the brand, size, quantity and master sales invoice number for all alcoholic beverages delivered.

(6)(7) The buying agent may store or warehouse any portion of an individual pool member’s purchase. However, the buying agent may not warehouse any alcoholic beverages off its licensed premises without first applying for and receiving from the Division an off-premises storage permit.

Rulemaking Specific Authority 561.11 FS. Law Implemented 561.01(10), 561.14(3), 561.42 FS. History–New 12-3-84, Amended 3-17-85,(date), Formerly 7A-4.501, 7A-4.0501, Amended ________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Renita Walton-Hayes, Department of Business and Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0750, [phone]

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Ken Lawson, Secretary, Department of Business and Professional Regulation

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: May 2, 2012

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: August 5, 2011