Florida Senate - 2019                                     SB 962
       
       
        
       By Senator Diaz
       
       
       
       
       
       36-01115A-19                                           2019962__
    1                        A bill to be entitled                      
    2         An act relating to malt beverages; creating s.
    3         563.061, F.S.; defining terms; prohibiting sales and
    4         purchases of malt beverages on consignment or any
    5         basis other than a bona fide sale; authorizing a
    6         vendor to request return of undamaged product, damaged
    7         product, and out-of-code product to a distributor;
    8         authorizing a distributor to accept such returns under
    9         certain circumstances; providing requirements for the
   10         exchange of product; specifying that a distributor is
   11         not required to accept returns authorized by the act;
   12         requiring a distributor to take certain actions if the
   13         distributor accepts return of product; requiring the
   14         distributor to keep transaction records of each return
   15         for a specified time; requiring the records to contain
   16         certain information; requiring the distributor to
   17         provide a copy of the transaction record to a vendor
   18         and the Division of Alcoholic Beverages and Tobacco
   19         under certain circumstances; providing requirements
   20         for the maintenance of the transaction records;
   21         providing that returns pursuant to the act are not
   22         considered gifts, loans, or other forms of financial
   23         aid or assistance for purposes of tied house evil;
   24         providing for a civil penalty; authorizing the
   25         division to adopt rules; providing an effective date.
   26          
   27  Be It Enacted by the Legislature of the State of Florida:
   28  
   29         Section 1. Section 563.061, Florida Statutes, is created to
   30  read:
   31         563.061 Return of malt beverage products; prohibition of
   32  consignment sales.—
   33         (1)DEFINITIONS.—As used in this section, the term:
   34         (a)Damaged product means malt beverages, whether sold in
   35  individual containers or kegs, which, upon delivery to a vendor,
   36  exhibit product deterioration, defective seals, leaking, damaged
   37  labels, or missing or mutilated tamper-evident closures.
   38         (b)Manufacturers code date means a coded best-by date,
   39  expiration date, or other designated date or dating system
   40  established by a manufacturer to signify the freshness of its
   41  malt beverages and which is printed on the malt beverage
   42  container or, in the case of a keg, marked on a cap, collar,
   43  tag, or label affixed to the keg.
   44         (c)Out-of-code product means malt beverages, whether
   45  sold in individual containers or kegs, which have exceeded the
   46  manufacturers code date and which, according to the
   47  manufacturers policies, must be removed and replaced with fresh
   48  products to ensure that only fresh malt beverages are available
   49  for purchase at retail.
   50         (d)Undamaged product means malt beverages, whether sold
   51  in individual containers or kegs, which are not damaged products
   52  or out-of-code products.
   53         (2)CONSIGNMENT SALES PROHIBITED; AUTHORIZED BONA FIDE
   54  RETURNS.—A distributor may not sell, offer for sale, or contract
   55  to sell malt beverages on consignment or any basis other than a
   56  bona fide sale. A vendor may not purchase, offer to purchase, or
   57  contract to purchase malt beverages on consignment or any basis
   58  other than a bona fide sale. Once a distributor sells malt
   59  beverages to a vendor, only bona fide returns are allowed for
   60  the ordinary and usual commercial reasons authorized in this
   61  section. A product may not be returned because it is overstocked
   62  or slow-moving or because there is only limited or seasonal
   63  demand for the product.
   64         (3)RETURNS OF UNDAMAGED PRODUCT.—A vendor may request
   65  return of undamaged product to a distributor and, unless
   66  otherwise provided in paragraphs (a)-(f), a return under this
   67  subsection may only be for exchange of product or for a credit.
   68  A distributor may not accept a return of undamaged product
   69  unless the return is requested within 7 days after the delivery
   70  date or unless:
   71         (a)There is a change in regulation or administrative
   72  procedure over which the vendor or its employees or agents have
   73  no control, including, but not limited to, when a particular
   74  brand or container size is no longer allowed to be sold. A
   75  return under this paragraph may be for a credit or a refund.
   76         (b)A vendor terminates operations and requests return of
   77  any remaining products on hand. A return under this paragraph
   78  may be for a credit or a refund. This paragraph does not apply
   79  to a vendors temporary seasonal shutdown.
   80         (c)Except as provided in paragraph (f), a vendor requests
   81  return of a product for purposes of quality control or
   82  freshness, and the product has not yet exceeded the
   83  manufacturers code date. A return under this paragraph may only
   84  be for exchange of product.
   85         (d)A manufacturer has issued a product recall that affects
   86  multiple vendors who are not affiliated with one another through
   87  having common ownership, through being members of the same pool
   88  buying group, or through being members of the same advertising
   89  cooperative. A return under this paragraph may be for exchange
   90  of product or for a credit.
   91         (e)A vendor requests a return because the production or
   92  importation of a product is discontinued. A vendors inventory
   93  of the discontinued product may be returned under this paragraph
   94  for a credit or a refund.
   95         (f)A vendor who is open for a portion of the year has
   96  product remaining at closure which, with respect to quality
   97  control or freshness, would become unsuitable for sale during
   98  the off-season, according to the manufacturer’s code date. A
   99  return under this paragraph may be for credit or a refund.
  100  
  101  If undamaged product is returned pursuant to paragraphs (a)-(f),
  102  documentation of a qualifying exception in paragraphs (a)-(f)
  103  must be kept with the transaction record maintained by the
  104  distributor pursuant to subsection (8).
  105         (4)RETURNS OF DAMAGED PRODUCT.—
  106         (a)A vendor may request return of damaged product to a
  107  distributor, and a return under this subsection may only be for
  108  exchange of product or for a credit. The distributor must verify
  109  that the product is damaged before accepting the return. A
  110  vendor is liable for any product damaged by the vendor or its
  111  customers and such product may not be returned.
  112         (b)A distributor may accept a return of damaged product if
  113  the return is requested within 7 days after the delivery date.
  114         (5)RETURNS OF OUT-OF-CODE PRODUCT.—
  115         (a)A vendor may request return of out-of-code product to a
  116  distributor, and a return under this subsection may only be for
  117  exchange of product. The distributor must verify that the
  118  product is an out-of-code product before accepting such return.
  119         (b)A distributor may accept a return of out-of-code
  120  product at any time after the manufacturers code date if:
  121         1.The manufacturer has written policies and procedures
  122  that specify the date that product should be removed;
  123         2.Such policies and procedures are readily verifiable and
  124  consistently followed by the manufacturer; and
  125         3.The manufacturers code date is printed on the product
  126  container or, in the case of a keg, marked on a cap, collar,
  127  tag, or label affixed to the keg.
  128         (c) Out-of-code product returned to a distributor may not
  129  reenter the retail market.
  130         (6)EXCHANGES OF PRODUCT.—An exchange of product authorized
  131  under this section must be in exact quantities with product of
  132  near or equal value made by the same manufacturer and in the
  133  same size individual container or keg unless a credit, if
  134  authorized by this section, is issued at the time of the return
  135  with supporting documentation.
  136         (7)DISTRIBUTOR NOT REQUIRED TO ACCEPT RETURNS.—This
  137  section does not require a distributor to accept returns
  138  authorized under this section. If a distributor accepts a return
  139  of product, the distributor must:
  140         (a)Provide the exchange of product, the credit, or the
  141  refund to the vendor, as provided in subsections (3), (4), and
  142  (5), at the same time the distributor picks up the product being
  143  returned; and
  144         (b)For damaged or undamaged product, pick up the product
  145  being returned within 14 days after receipt of the vendors
  146  request.
  147         (8)TRANSACTION RECORDS.—
  148         (a) A distributor must keep and maintain for 3 years a
  149  transaction record of each return which identifies:
  150         1. The licensed vendor;
  151         2. The licensed vendor’s business name and address;
  152         3. The licensed vendors license number;
  153         4. The product returned for exchange of product, credit, or
  154  refund; and
  155         5. Any documentation required by this section.
  156         (b) The distributor must provide a copy of the transaction
  157  record to the vendor in a format accessible by and legible to
  158  the vendor. The distributor must provide a copy of the
  159  transaction record to the division upon request in a format
  160  accessible by and legible to the division.
  161         (c) The transaction records must be maintained on the
  162  distributors licensed premises, or may be kept at another
  163  location in this state if the distributor notifies the division
  164  in writing before using the other location. The distributor must
  165  notify the division in writing of any change in recordkeeping
  166  location.
  167         (9)RETURNS NOT TIED HOUSE EVIL.—Bona fide returns made
  168  pursuant to this section for exchange of product, credit, or
  169  refund are not considered gifts, loans, or other forms of
  170  financial aid or assistance that are prohibited by s. 561.42.
  171         (10)CIVIL PENALTY.—In accordance with s. 561.29, the
  172  division shall impose a civil penalty of $1,000 per violation
  173  against a distributor or vendor who violates this section or any
  174  rule adopted under this section.
  175         (11)RULEMAKING AUTHORITY.—The division may adopt rules to
  176  administer and enforce this section.
  177         Section 2. This act shall take effect July 1, 2019.