Preproposal statement of inquiry was filed as WSR 04-01-023.
Title of Rule: Amending WAC 230-12-330 Accountability of gambling equipment and related products and services -- Prices -- Contracts -- Discounts -- Restrictions -- Exceptions and 230-12-340 Sale of gambling equipment, devices, supplies, paraphernalia, and related services -- Credit prohibited -- Exceptions.
Purpose: To remove credit and discriminatory pricing restrictions from merchandise to be used as a punchboard or pull-tab prize.
Statutory Authority for Adoption: RCW 9.46.070.
Statute Being Implemented: Not applicable.
Summary: Last spring, a licensee submitted a petition for rule change requesting the licensure of anyone selling merchandise prizes for pull-tab games. Staff felt licensure of these individuals was a business and marketing issue, rather than a regulatory issue and the commission denied the petition. At that time, the commission asked staff to review agency pricing restrictions to determine if alternatives existed to address the petitioner's concerns. This proposal is a result of that request.
Reasons Supporting Proposal: See Purpose above.
Name of Agency Personnel Responsible for Drafting: Susan Arland, Lacey, (360) 486-3466; Implementation: Rick Day, Lacey, (360) 486-3446; and Enforcement: Neal Nunamaker, Lacey, (360) 486-3452.
Name of Proponent: Staff, governmental.
Rule is not necessitated by federal law, federal or state court decision.
Explanation of Rule, its Purpose, and Anticipated Effects: See Purpose and Summary above.
Proposal Changes the Following Existing Rules: See Purpose and Summary above.
No small business economic impact statement has been prepared under chapter 19.85 RCW. Proposal is exempt under RCW 19.85.025(2), therefore a small business economic impact statement is not required.
RCW 34.05.328 does not apply to this rule adoption. This agency does not choose to make section 201, chapter 403, Laws of 1995, apply to this rule adoption.
Hearing Location: LaConner Maple Hall, 108 Commercial Street, LaConner, WA 98257, (360) 466-3101, on August 13, 2004, at 9:30 a.m.
Assistance for Persons with Disabilities: Contact Shirley Corbett by August 1, 2004, TDD (360) 486-3637 or (360) 486-3447.
Submit Written Comments to: Susan Arland, Rules Coordinator, P.O. Box 42400, Olympia, WA 98504-2400, (360) 486-3466, fax (360) 486-3625, by August 1, 2004.
Date of Intended Adoption: August 13, 2004.
May 18, 2004
AMENDATORY SECTION(Amending Order 411, filed 4/18/02, effective 7/1/02)
WAC 230-12-330 Availability of gambling equipment and related products and services--Prices--Contracts--Discounts--Restrictions -- Exceptions. Manufacturers and distributors shall make their products and services available to all licensees without discrimination. Merchandise to be used as a punch board or pull-tab prize is exempt from the requirements set forth in this rule. Except as authorized by this section, gambling equipment, devices, related paraphernalia or supplies, and services shall be offered to any licensee wishing to purchase such, for the same price and terms. The following restrictions, procedures, and exceptions apply to prices and terms related to sales of gambling-related products or services:
Pricing shall be consistent - exceptions.
(1) Discriminatory prices are prohibited. Prices are considered discriminatory when identical or similar items or services are offered to different persons for a different price or under different terms or conditions: Provided, That prices set under the following criteria shall not be considered discriminatory:
(a) Prices that are established in advance and available for review by the commission and customers prior to accepting a sales order utilizing such. For purposes of this section, prices are deemed to be established and available when they have been mailed or transmitted by facsimile to the commission at least forty-eight hours prior to completing sales transactions or accepting orders for products or services;
(b) Separate and different price schedules established by manufacturers or distributors for transactions conducted with licensees at different marketing levels when such prices are progressively lower at each marketing level above the operator level;
(c) Prices that are based upon the delivery location of an item or service. If the price of an item or service is based upon "free on board" (FOB) terms at a specific location, such price may be varied based upon delivery at a different location, if such is justified by objective evidence. The burden of proof regarding such price differentiation is borne by the seller. Such prices are subject to all other requirements of this section; and
(d) Short-term price reductions or "sales" by manufacturers or distributors are authorized when every licensee is afforded an opportunity to participate. For purposes of this section licensees will be deemed to have been afforded an opportunity to participate when:
(i) All prices and terms are clearly posted at all sales outlets for the benefit of operators and provided to all customers serviced by mobile sales representatives;
(ii) Manufacturers provide full details of the sale to all licensed distributors, including prices and terms, at least forty-eight hours prior to accepting orders for products or services being offered at a sale price. Such notice shall be by mail or telephone facsimile; and
(iii) Any limitations or conditions of the sale are clearly stated in advertisements or notices for such sale.
Contracts restricting sales not allowed.
(2) Except as set forth in WAC 230-12-230, licensees shall not enter into contracts that directly or indirectly restrict the distribution or use of gambling equipment, devices, paraphernalia, supplies, or services: Provided, That holders of proprietary rights to products or services that have been gained through patents, copyrights, trademarks, or other similar rights bestowed by state or federal law or by courts shall be allowed to enter into license agreements with manufacturers that restrict the ability to manufacture or distribute products or services if all other requirements of this section are met. The following transactions are prohibited:
(a) An operator or distributor shall not agree to deal in, purchase, sell, lease, or operate any particular brand or brands of gambling device or equipment to the exclusion of any other brand of gambling device or equipment;
(b) A manufacturer or distributor, or licensed representative or employee thereof, shall not sell or offer to sell, lease, or loan any gambling-related product, service, or merchandise if such is contingent upon the purchase or order of another product, service, or merchandise; and
(c) Except as set forth in this subsection, no person shall enter into any agreement, express or implied, that prohibits a person from selling or providing any gambling-related product or service within a particular geographic area: Provided, That -
(i) Licensed manufacturers, distributors, and service suppliers may enter into such agreements with its licensed representative; and
(ii) An operator may enter into an agreement with a licensed service supplier that is supplying only management or consulting services when such agreement only restricts the service supplier from supplying the same or similar services to other operators within a specified geographic area.
(3) Manufacturers and distributors may offer discounts of base prices that are authorized by this section when such discounts are nondiscriminatory. For purposes of this title, discounts will be deemed to be nondiscriminatory when:
(a) Offered to all licensees on the same terms;
(b) The scheme upon which the discount is based is in writing and submitted to the commission at least forty-eight hours prior to being offered;
(c) The discount applies to:
(i) A single sales transaction; or
(ii) Multiple sales transactions, which are made over a period of time not to exceed one week. For purposes of this section, one week shall be defined as seven consecutive days; and
(d) The level of a discount is based only upon any of the following criteria:
(i) The amount of product sold or the dollar value of the sale;
(ii) Whether the purchaser makes full payment in cash at time of sale;
(iii) Whether the purchaser makes final payment for a transaction within a predetermined time period for sales made under "trade account" terms; and
(iv) Any other structure or terms, subject to preapproval by the director. The manufacturer shall pay for the approval process and any additional requirements necessary to assure compliance with this section.
Limiting sales to specific market levels.
(4) A licensed manufacturer or distributor may elect to limit sales of products and services to licensees at any marketing level. For purposes of this section, marketing levels are defined as manufacturer, distributor, and operator. If a manufacturer or distributor elects to make sales to any licensee at a marketing level, sales must be made to all licensees at the same level: Provided, That if the distributor is in violation of WAC 230-12-340, the manufacturer shall not be required to make sales to that distributor: Provided further, That transactions between a manufacturer and distributor, when both are owned and operated by the same persons, are considered internal to that business. For purposes of this section, internal transactions are not considered sales at a different marketing level. All other restrictions of this section apply to such sales. For example:
(a) A licensed manufacturer may elect to sell or provide products and services only to distributors; or
(b) A licensed distributor may elect to sell or provide products and services only to operators.
Minimum purchasing requirements not allowed - exceptions.
(5) Manufacturers or distributors shall not set minimum purchase requirements for any product or service, except as authorized below:
(a) Minimum purchase requirements are not allowed for purchases made under prepaid or cash on delivery (COD) terms: Provided, That manufacturers may establish and charge a reasonable fee for services to handle an order for products or services below a specified level, if such policy is in writing and provided to distributors prior to accepting orders;
(b) Minimum purchase restrictions may be set for transactions between manufacturers and distributors that are conducted using trade account terms, as authorized by WAC 230-12-340;
(c) Discounts may be set based upon a minimum purchase amount as authorized by subsection (3) of this section; and
(d) Minimum purchase restrictions may be placed on products being offered for a bargain or "sale" price if a bargain or "sale" price is established for any and all levels of purchases under such terms.
Sales of nongambling products and services.
(6) A manufacturer or distributor shall not grant licensees, nor shall such licensees accept, more favorable prices, credit terms, or other arrangements than those extended to nonlicensed persons purchasing identical or similar nongambling goods or services. The price of nongambling goods or services sold to licensees shall be in conformity with the open market price in the locality where sold. The terms of such sales shall not exceed those normally granted in accordance with the customary business practice of the particular trade in the locality where such sales are made.
Transactions with tribal casinos.
(7) This section shall not apply to transactions conducted with tribal governments operating class III casinos under tribal/state compacts or with management companies operating such casinos on the behalf of tribal governments.
[Statutory Authority: RCW 9.46.070. 02-10-003 (Order 411), § 230-12-330, filed 4/18/02, effective 7/1/02. Statutory Authority: RCW 9.46.070(11). 98-08-011, § 230-12-330, filed 3/18/98, effective 7/1/98. Statutory Authority: RCW 9.46.070 (14) and (20). 97-20-026, § 230-12-330, filed 9/22/97, effective 1/1/98.]
AMENDATORY SECTION(Amending Order 411, filed 4/18/02, effective 7/1/02)
WAC 230-12-340 Sale of gambling equipment, devices, supplies, paraphernalia, and related services -- Credit prohibited -- Exceptions. The use of credit in the sale of gambling equipment, devices, related supplies or paraphernalia, and services is prohibited. Merchandise to be used as punch board or pull-tab prize may be sold on credit. Except as authorized by this section, all sales of such shall be transacted on a cash basis. The following definitions, restrictions, and procedures apply to this section:
(1) All licensed manufacturers and distributors may sell gambling equipment such as dispensers, bingo blowers, roulette wheels, etc., and gambling-related support equipment through capital lease agreements or other financing arrangements to operators subject to the following conditions and requirements:
(a) The cost of a single item, or group of similar and related items included in the sale, exceeds one thousand dollars;
(b) The term of the contract does not exceed forty-eight months;
(c) All terms of the contract are in writing and copies of such agreements are provided to the commission within thirty days of execution;
(d) The manufacturer or distributor retains only a security interest in the item sold and cannot obtain any ownership interest in the licensee, or exercise any control over the use of the item in the licensed activity;
(e) The amount of payments is not based on the size or level of gambling activity and is determined by use of a standard amortization schedule for the term and stated interest rate;
(f) The interest rate charged by the contract is set at the time of sale and does not vary during the term of the contract; and
(g) The contract does not require the purchaser to directly or indirectly purchase any other products or services from the seller.
(2) The following definitions only apply to subsections (3) through (9) of this section:
(a) "Manufacturers and distributors" refers only to the manufacturers and distributors of pull-tabs, punch boards, and bingo supplies.
(b) A "cash basis" means full payment is received by the seller on or before actual delivery of the product or service to the purchaser;
(c) A "trade account" is a payment system that allows distributors to place orders for inventory or services from manufacturers or distributors and to make payment for such within a specific period of time after shipment of the product or completion of the service;
(d) "Prescribed time period" is the maximum period of time a distributor has to pay for purchases of goods or services made under trade account terms prior to being restricted to cash basis terms. The time period begins when a product is shipped or service completed and ends on the date payment is actually delivered to the manufacturer or distributor, or if delivered by the U.S. mail, the U.S. postmark date of the envelope containing the payment. For purposes of this section, prescribed time period means no later than sixty days after shipment of the products or completion of the services.
(3) For purposes of this WAC title, the following transactions are authorized and shall not be deemed as credit or loans of money when applicable requirements are met:
(a) Purchases of goods and services from manufacturers or distributors when paid for by checks that meet the requirements of WAC 230-12-350;
(b) Purchases of goods or services by distributors from manufacturers or other distributors when utilizing trade account terms and the requirements of subsection (4) of this section are followed;
(c) Promissory notes between manufacturers and distributors for payment of debts incurred prior to the effective date of this section;
(d) Purchases made under capital lease agreements when the requirements of this section are followed;
(e) All transactions between manufacturers or distributors and tribal governments or companies certified to manage class III gambling activities operated under a tribal/state compact are exempt from all provisions of this section;
(f) Charitable or nonprofit organizations licensed to conduct bingo may purchase bingo cards and bingo supplies from distributors and/or manufacturers and receive such without making immediate payment if payment is made, by check or cash, no later than thirty days after delivery of the product. If the distributor or manufacturer does not receive payment within thirty days, they must immediately restrict the licensee to sales on a cash on delivery basis until payment is received. Licensees paying for bingo supplies on terms other than a cash basis must document on the purchase invoice the date paid and the check number; and
(g) The sales of nongambling equipment, fixtures, supplies, or commodities to licensees are exempt from all provisions of this section when the requirements of WAC 230-12-330(6) are met.
Trade account conditions.
(4) Manufacturers and distributors may allow distributors to establish "trade accounts" to purchase gambling-related inventory or services without making immediate payment under the following conditions:
(a) Trade account terms, if offered to any distributor, shall be made available to all distributors without discrimination: Provided, That trade accounts may be restricted to distributors that:
(i) Meet objective credit criterion established by a manufacturer or distributor. Such criterion must be in writing, available to the commission for review, and provided to any distributor upon request. A manufacturer or distributor may include a distributor's payment history as a part of the trade account approval criterion;
(ii) Meet minimum purchase requirements established by the manufacturer: Provided, That the minimum purchase requirement shall not be greater than five hundred dollars per transaction;
(b) Trade account terms shall not allow a manufacturer or distributor to gain any ownership or financial interest in a licensee. This section is not intended to prohibit or restrict a manufacturer or distributor from gaining a security interest in inventory sold for credit, as authorized by the Uniform Commercial Code: Provided, That this section shall not allow a manufacturer to obtain an interest in inventory sold by any other manufacturer under trade account terms;
(c) A distributor shall make full payment for all goods or services purchased under trade account terms within the prescribed time period. Failure to pay within the prescribed time period may be deemed solicitation of credit by the distributor.
Procedures for past due accounts - notification and sales restrictions.
(5) When a distributor fails to pay for goods or services purchased under trade account terms within the prescribed time period, the creditor manufacturer or distributor shall comply with the procedures set forth below. Failure to comply with these procedures may result in the manufacturer or distributor being deemed to have extended credit to the distributor. The following procedures must be followed when a distributor fails to make required payments:
(a) Notify the delinquent distributor of failure to pay by telephone no later than the end of the next business day;
(b) Restrict sales of all goods and services to the delinquent distributor no later than the end of the third business day after the default: Provided, That sales may be made to a delinquent distributor on a cash basis only;
(c) Notify the commission and all licensed manufacturers and distributors in writing by letter, facsimile or e-mail no later than the end of the fifth business day after default. Written notification shall include at least the following:
(i) The distributor's name;
(ii) The invoice or shipping order numbers involved in the transaction;
(iii) The date the item was shipped or service was provided; and
(iv) Any other information requested by the commission.
Cash only sales to delinquent distributors.
(6) Upon receipt of notification from the manufacturer that a distributor has a delinquent account, manufacturers and distributors shall immediately cease sales, shipments of products, and providing services to the delinquent distributor on other than a cash basis.
Notification of payment on past due accounts.
(7) The manufacturer shall notify the commission and all manufacturers and distributors in writing by letter, facsimile or e-mail, no later than the next business day after receiving payment from the delinquent distributor for the outstanding account. Trade account sales may then resume with all manufacturers.
(8) The distributor that was placed on a credit hold shall notify the commission in writing by letter, facsimile or e-mail, no later than the next business day after payment has been made to the manufacturer in which they were delinquent.
Failure to pay promissory notes.
(9) A creditor manufacturer or distributor shall immediately notify the commission if a distributor fails to abide by the terms of the promissory note and the process being pursued to correct the situation.
[Statutory Authority: RCW 9.46.070. 02-10-003 (Order 411), § 230-12-340, filed 4/18/02, effective 7/1/02; 98-21-009 (Order 365), § 230-12-340, filed 10/9/98, effective 1/1/99. Statutory Authority: RCW 9.46.070 (14) and (20). 97-20-026, § 230-12-340, filed 9/22/97, effective 1/1/98.]