WSR 09-14-035

PERMANENT RULES

LIQUOR CONTROL BOARD


[ Filed June 24, 2009, 11:54 a.m. , effective July 25, 2009 ]


Effective Date of Rule: Thirty-one days after filing.

Purpose: As part of the liquor control board's on-going rules review process, chapter 314-64 WAC was reviewed for relevance, clarity, and accuracy. The adopted rules reflect current agency practices and more clearly provides direction to individuals who submit samples to the board or liquor licensees to negotiate a sale.

Citation of Existing Rules Affected by this Order: Amending WAC 314-64-020, 314-64-040, 314-64-050, 314-64-080, and 314-64-08001.

Statutory Authority for Adoption: RCW 66.08.030, 66.28.045.

Adopted under notice filed as WSR 09-10-093 on May 6, 2009.

Changes Other than Editing from Proposed to Adopted Version: WAC 314-64-08001 was amended to further clarify the amount of product that may be provided to any one licensed business and to clarify how records could be maintained. These changes were not substantial, but provide clarity to the rule for licensees involved in sampling of new products.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 5, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 5, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

Date Adopted: June 24, 2009.

Lorraine Lee

Chairman

OTS-2366.3


AMENDATORY SECTION(Amending Order 40, filed 8/21/75)

WAC 314-64-020   Definitions.   Samples shall mean:

(((1) Beer and/or containers submitted to the board for chemical analysis of the beer, as required by WAC 314-20-020 (2)(b).

(2) Wine and/or containers submitted to the board for chemical analysis of the wine, as required by WAC 314-24-040 (1)(b).

(3) Malt liquor)) Beer, wine, spirits and/or containers submitted to the board for the purpose of negotiating the sale of liquor to the state liquor control board as provided in RCW 66.28.040.

[Order 40, 314-64-020, Rule 130, filed 8/21/75.]


AMENDATORY SECTION(Amending Order 200, Resolution No. 209, filed 10/21/86)

WAC 314-64-040   Procedures for board samples.   Procedures for submitting samples to the board for the purpose of negotiating the sale of liquor to the board are as follows:

(1) Quantity. Samples shall not exceed in quantity that authorized by the ((U.S. Bureau of Alcohol, Tobacco and Firearms)) Tobacco Tax and Trade Bureau.

(2) Identification. Suppliers shall identify the items on the cartons and shipping documents as "samples for the board."

(3) Shipping instructions. Suppliers shall deliver or ship samples prepaid to the Washington State Liquor Control Board, Attention ((Liquor Purchasing Agent)) Director of Purchasing, ((1025 East Union Avenue)) 3000 Pacific Ave. S.E., Olympia, Washington 98504.

(4) In those instances where it becomes necessary for the board to incur some costs in receiving the samples, such costs shall be recovered from the supplier.

(5) Use and disposition of samples. Samples furnished for the purpose of negotiating the sale of liquor to the board shall be examined and tested by members of the board, or their designees, and/or the ((liquor purchasing agent)) director of purchasing, or ((his)) their designee, for appearance, aroma and taste, and to determine their probable customer acceptability. ((After such examination and testing, any remaining portion of said samples shall be disposed of by members of the board, or their designees who examined and tested said samples, or by the purchasing agent, or his designee who examined and tested said samples.))

(6) Reports. Members of the board, or their designees, and/or the ((liquor purchasing agent, or his)) director of purchasing or their designee, shall report their findings and recommendations on ((appropriate forms)) sample surveys to the ((liquor purchasing agent for consolidation and report to the board)) director of purchasing or their designee. The board shall consider such findings and recommendations, along with other documents furnished by the supplier, in determining whether the items represented by the samples shall be purchased by the board for resale through state liquor stores.

(7) Excess. Samples received in excess of the quantity authorized in ((WAC 314-64-040)) this section for the purpose of negotiating the sale of liquor to the board will be held by the ((liquor board purchasing agent)) director of purchasing until the supplier has been notified of the overshipment and given fifteen days in which to respond as to whether he wants the excess returned to him at his expense. Failure of the supplier to respond within the time limitation, or notification from the supplier that he does not want the excess returned to him, will result in the excess item or items being destroyed by a liquor control board auditor in the presence of the ((liquor purchasing agent)) director of purchasing, or ((his)) their designee, after which a destruction notice will be prepared by the auditor and be certified by the ((liquor board purchasing agent)) director of purchasing or ((his)) their designee who witnessed the destruction. Copies of such destruct notices shall be ((distributed to members of the board, the liquor purchasing agent, and the liquor control board controller)) kept in the purchasing division of the liquor control board.

(8) Containers. Containers submitted without alcohol to the board for the purpose of negotiating the sale of liquor shall, after examination by the board and/or the ((liquor purchasing agent)) director of purchasing, be disposed of as follows:

(a) Figurines, decanters, or other decorative containers may be retained for public display in the board offices in Olympia. After such display, the containers shall be disposed of as provided in (b) of this subsection.

(b) Figurines, decanters, or other decorative containers will be held by the ((liquor purchasing agent)) director of purchasing until the supplier has been notified that the containers have been examined by the board, and the supplier will be given fifteen days in which to respond as to whether he wants the containers returned to him at his expense. Failure of the supplier to respond within the time limitation, or notification from the supplier that he does not want the containers returned to him, will result in the containers being disposed of as surplus property, pursuant to RCW 43.19.1919, if the anticipated revenue to be derived from the sale of the containers as surplus property is deemed to exceed the anticipated costs attributable to the sale.

(((c) Containers whose anticipated revenue to be derived from their sale as surplus property is deemed not to exceed the anticipated costs attributable to the sale shall be disposed of by members of the board, or their designees who examined and tested said samples, or by the liquor purchasing agent, or his designee who examined and tested said samples.))

[Statutory Authority: RCW 66.28.045. 86-21-117 (Order 200, Resolution No. 209), 314-64-040, filed 10/21/86. Statutory Authority: RCW 66.08.030 and 66.98.070. 82-04-035 (Order 95, Resolution No. 104), 314-64-040, filed 1/28/82; Order 40, 314-64-040, filed 8/21/75.]


AMENDATORY SECTION(Amending WSR 91-19-070, filed 9/16/91, effective 10/17/91)

WAC 314-64-050   Accounting for board samples.   Samples as defined in WAC 314-64-020 shall be accounted for as follows:

(((1) Malt liquor, wine or spirits submitted to the board for the purpose of negotiating the sale of liquor to the board.

(a))) (1) Upon receipt of the samples by the ((liquor purchasing agent)) director of purchasing in Olympia, the ((liquor purchasing agent)) director of purchasing, or his designee, shall ((prepare a multiple-copy receiving and disposition report)) record the receipt for said samples((, clearly identifying them as "samples for the purpose of negotiating the sale of liquor to the board."

(b))).

(2) If more than the amount authorized in WAC 314-64-040 is received, the ((liquor purchasing agent)) director of purchasing, or ((his)) their designee, ((shall prepare a separate receiving report for the)) will record them as excess samples and dispose of them as provided in WAC 314-64-040(7).

(((c))) (3) The ((liquor purchasing agent)) director of purchasing, or ((his)) their designee, shall sign the ((multiple-copy receiving and disposition report in the applicable section,)) record of receipt indicating ((his)) receipt of the samples.

(((d))) (4) The ((liquor purchasing agent)) director of purchasing, or ((his)) their designee, shall ((distribute)) retain the signed ((multiple-copies of the receiving and disposition reports as follows: The original to be retained by the liquor purchasing agent, one copy to each member of the board, and one copy to the liquor control board controller)) record of receipt.

(((e))) (5) The ((purchasing agent)) director of purchasing, or ((his)) their designee, shall provide ((an analysis report form, as required in WAC 314-64-040(6))) a sample survey for each sample. ((The receiving and disposition reports and analysis report forms shall be numbered consecutively, and shall correspond one with the other.

(f))) (6) The ((liquor purchasing agent)) director of purchasing shall deliver a copy of the ((receiving and disposition report and the analysis report forms)) sample survey with the samples, to members of the board, or their designees, and/or to the ((liquor purchasing agent)) director of purchasing, or ((his)) their designee, for examination, testing and reporting as provided in WAC 314-64-040 (4)((,)) and (5) ((and (6))).

(((g))) (7) Members of the board, or their designees, and/or the ((liquor purchasing agent)) director of purchasing, or ((his)) their designee, shall sign the ((receiving and disposition report)) copy of the record of receipt in the applicable section, indicating receipt of the samples.

(((h) The purchasing agent shall distribute the signed receiving and disposition report as follows: The original to the member of the board, or his designee, or the liquor purchasing agent, or his designee, to whom the sample was delivered; one copy to the liquor control board controller, and one copy to be retained by the liquor purchasing agent.

(i))) (8) Members of the board, or their designees, and/or the ((liquor purchasing agent)) director of purchasing, or ((his)) their designee, shall examine, test and report on the sample, as provided in WAC 314-64-040 (((4), (5), and (6),)) complete the ((analysis report form,)) sample survey, sign, and ((distribute the form as follows: The original)) return to the ((liquor purchasing agent, one copy to the liquor control board controller, and one copy to be retained by the member of the board, or his designee, and/or the liquor purchasing agent, or his designee who examined and tested the sample.

(j))) director of purchasing, or their designee.

(9) The ((liquor control board controller)) purchasing division shall maintain the official copies of the ((receiving and disposition reports)) records of receipt, together with the ((matching analysis report forms)) sample surveys, and, where applicable, the destruction notices.

[Statutory Authority: RCW 66.08.030. 91-19-070, 314-64-050, filed 9/16/91, effective 10/17/91; 88-14-001 (Order 252, Resolution No. 261), 314-64-050, filed 6/23/88. Statutory Authority: RCW 66.08.030 and 66.98.070. 82-04-035 (Order 95, Resolution No. 104), 314-64-050, filed 1/28/82; Order 40, 314-64-050, filed 8/21/75.]


AMENDATORY SECTION(Amending WSR 94-14-022, filed 6/27/94, effective 7/28/94)

WAC 314-64-080   Procedures.   Procedures for furnishing samples of beer and wine to licensees for the purpose of negotiating a sale are as follows:

(1) Quantity. Except as provided in (d) of this subsection, samples may be furnished only in their original packages or containers as produced by the manufacturer or bottler, as follows:

(a) Wholesaler or importer. A brewer, winery or importer may furnish a sample of beer or wine to a wholesaler or importer who has not previously purchased the brand and type or vintage year from the supplier furnishing the sample. For each wholesaler or importer, the brewer, winery or importer may give not more than seventy-two ounces of any brand and type of beer, and not more than one liter of any brand and type of wine.

(b) Retailer. A brewer, winery, importer or wholesaler may, except as hereinafter provided, furnish a sample of beer or wine to a retail licensee who has not previously purchased the brand and type or vintage year from the supplier furnishing the sample. For each retail licensee, the brewer, winery, importer or wholesaler may give not more than seventy-two ounces of any brand and type of beer, and not more than one liter of any brand and type of wine. If a particular product is not available in a size within the quantity limitations of this section, a brewer, winery, importer or wholesaler may furnish the next largest size.

(c) Out-of-state brewers and wineries who hold a certificate of approval to ship their products into this state who provide samples to retailers as outlined in (b) of this subsection shall be responsible for reporting monthly to the board any shipments of samples to retailers in Washington state and shall also be responsible for paying the taxes due on such beer and wine samples provided to retailers as provided for in WAC 314-20-010 and 314-24-110 as if they were a domestic brewer or a domestic winery.

(d) Samples in other than the original packages or containers may, subject to the conditions and limitations stated in (a), (b), and (c) of this subsection, be furnished as follows:

(i) A brewery, winery, importer, or wholesaler, either directly or through their licensed agents, may furnish to authorized licensees at their licensed premises or business office samples of beer and wine from an opened container carried by a licensed agent, provided such samples are furnished only in single-serving samples not to exceed two ounces of wine or twelve ounces of beer.

(ii) A brewery, winery, importer, or wholesaler, either directly or through their licensed agents, may furnish samples of beer or wine to authorized licensees at the premises of a retail licensee.

(iii) A licensed importer or licensed wholesaler may furnish samples to authorized licensees on the licensed premises of the importer or wholesaler.

(2) Identification. Brewers, wineries, importers or wholesalers shall identify the samples on the containers, cartons and shipping documents as "Samples for licensees."

(3) Shipping instructions. Brewers, wineries, importers or wholesalers shall, except as provided in subsection (1)(d) of this section, deliver or ship samples to licensees at their licensed premises or business office.

(4) Use and disposition of samples. Samples may be furnished for the purpose of negotiating a sale of beer or wine to a wholesaler, importer, or retail licensee.

[Statutory Authority: RCW 66.08.030. 94-14-022, 314-64-080, filed 6/27/94, effective 7/28/94; 86-11-015 (Order 185, Resolution No. 194), 314-64-080, filed 5/13/86. Statutory Authority: RCW 66.08.030 and 66.98.070. 82-04-035 (Order 95, Resolution No. 104), 314-64-080, filed 1/28/82. Statutory Authority: RCW 66.08.030, 66.08.060 and 66.98.070. 81-23-038 (Order 84, Resolution No. 93), 314-64-080, filed 11/18/81.]


AMENDATORY SECTION(Amending WSR 98-08-041, filed 3/25/98, effective 4/25/98)

WAC 314-64-08001   Procedures for providing spirit samples to authorized retail licensees for the purpose of negotiating a sale.   A distiller, craft distiller, or their agent may, for the purpose of product promotion, provide without charge single samples to retail licensees authorized to sell spirits and their employees.

((1.)) (1) Samples are limited to ((1.7 ounces (50 ml))) 750 ml and no more than one sample of each product may be provided to any one licensed business.

((2.)) (2) All spirit samples must be purchased at retail from the board from existing stocks or by special order.

((3.)) (3) Only products not ((previously)) purchased by the retail licensee within the last twelve months from the distiller or their agent or existing products with a change in alcohol proof or formula may be sampled. If there is a complete change of ownership of the retail licensee to another entity, the former retail licensee's purchase of the product is not deemed a purchase made by the successor retail licensee for purposes of this provision.

((4.)) (4) Both the retailer and distiller must retain records of sampling for a period of two years. The records shall include the brand and type of sample and the date of sampling.

(5) If the distiller keeps records within an automated data processing (ADP) system, the system must include a method for producing legible records that will provide the required information. The ADP system is acceptable if it complies with the following guidelines:

(a) Provides an audit trail so that details (invoices) underlying the summary account data may be identified and made available upon request.

(b) Provides the opportunity to trace any transaction back to the original source or forward to a final total. If printouts of transactions are not made when they are processed, the system must have the ability to reconstruct these transactions.

(c) Has available a full description of the ADP portion of the accounting system. This should show the applications being performed, the procedures employed in each application, and the controls used to ensure accurate and reliable processing.

(6) The provisions contained in subsection (4) of this section do not eliminate the requirement to maintain source documents, but they do allow the source documents to be maintained in some other location.

[Statutory Authority: RCW 66.08.030. 98-08-041, 314-64-08001, filed 3/25/98, effective 4/25/98.]

Washington State Code Reviser's Office