R82-2-308. Type 2 and 3 Package Agencies

(1) Authority. This rule is made pursuant to Sections 32B-2-202 and 32B-2-605, which authorize the commission to make rules governing package agencies. (2)(a)(i) In accordance with Section 32B-6-605, the department, within its discretion, may provide liquor to a type 2 or 3 package agency for sale on consignment. (ii) The department shall establish the amount of consignment liquor inventory to be furnished to a type 2 or 3 package agency. (b)(i) The department may adjust a type 2 or 3 package agency's consignment liquor inventory amount based on the package agency's monthly average sales. (ii) The department shall make any adjustment to a type 2 or 3 package agency's consignment liquor inventory amount through a transfer or shipment of liquor or payment of money. (iii) If the department reduces a type 2 or 3 package agency's consignment liquor inventory amount, the type 2 or 3 package agency shall pay for the difference between the consignment liquor inventory amount and the reduced consignment liquor inventory amount through cash payment or liquor returned to the department. (3)(a) A type 2 or 3 package agency that receives shipments or transfers of liquor shall have an Automated Clearing House (ACH) payment system set up with the department. (b) The department shall send a type 2 or 3 package agency a weekly statement that shows: (i) the package agency's unpaid debts and applied credits; and (ii) the payment due date for liquor received by the package agency. (c) The package agent is responsible for reviewing the weekly statement and contacting the department with any discrepancies before the payment due date. (d) Except as provided in Subsection (4), payment for liquor is due to the department within 30 days after the day on which the type 2 or 3 package agency orders the liquor. (e)(i) The department shall consider insufficient funds, returned checks, and unpaid balances from a previous statement past due. (ii) If a statement is past due, the department may: (A) assess the legal rate of interest on the amount owed by the type 2 or 3 package agency; or (B) refer the package agency to the commission for possible termination of the package agency contract. (iii)(A) The department and a type 2 or 3 package agency shall resolve any liquor delivery discrepancies using a form provided by the department. (B) A type 2 or 3 package agency shall pay the package agency's statement by the due date regardless of whether any discrepancies have been resolved. (4)(a) A type 2 or 3 package agent may request in writing that the department extend the due date for payment under Subsection (3) for up to 30 days if: (i) the package agency's liquor sales have decreased at least 10% when compared to the package agency's liquor sales from the same month in the immediately preceding calendar year for a period of at least two consecutive months; (ii)(A) the package agency is experiencing a temporary and substantial increase in essential operational expenses because of an unforeseen and uncontrollable event; and (B) the package agent has attempted to mitigate expenses through reasonable efforts; or (iii) the package agent requests and receives approval for a closure under Section 32B-2-605. (b) The department may request the type 2 or 3 package agent provide documentation demonstrating the circumstances described in Subsection (4)(a) are met. (c)(i) The department may approve a request under Subsection (4)(a) only if the type 2 or 3 package agent is otherwise compliant with the package agent's contract and other requirements by law. (ii) The department may approve a request under Subsection (4)(a) for a period: (A) of up to 90 consecutive days in one fiscal year; and (B) between the months of July and February of a fiscal year. (iii) If the department approves a request under Subsection (4)(a), the department may: (A) cap the number of orders a package agency may make during the period during which the request is approved; or (B) prohibit the package agency from returning delisted or seasonal liquor products during the period during which the request is approved. (d) Audits. (i) The department shall audit a type 2 or 3 package agency at least once each fiscal year and may conduct additional audits if necessary. (ii) A type 2 or 3 package agency is subject to a department audit at any time.