Subchapter E. IMPORTATION AND DISTRIBUTION OF
MALT OR BREWED BEVERAGES

§ 9.91. Importation.

 (a)  A person may not import malt or brewed beverages into this Commonwealth for delivery or use therein, unless the person holds a valid Importing Distributor License, issued by the Board under the Liquor Code, or unless the person is otherwise exempted by the provisions of this section.

 (b)  This section does not prohibit the importation of malt or brewed beverages by either of the following:

   (1)  A resident of this Commonwealth, for personal use only and not for sale, provided that the malt or brewed beverages are in original containers and that the tax thereon has been paid, or provisions for the payment have been made under the Malt Beverage Tax Law (72 P. S. § §  9001—9016).

   (2)  Railroad and pullman companies, in their dining, club and buffet cars, licensed in this Commonwealth.

 (c)  Sales of malt or brewed beverages intended to be transported for delivery or use in this Commonwealth shall be consummated outside this Commonwealth and shall be paid for in full prior to or at the time of delivery to the consignee in this Commonwealth, who shall pay transportation charges. The beverages shall also be tax paid in accordance with section 2003 of the Malt Beverage Tax Law (72 P. S. §  9003), and the transporter shall be considered the agent of the consignee.

 (a)  A licensee may not transport malt or brewed beverages and coal in the same vehicle at the same time.

 (b)  A licensee may not transport both malt or brewed beverages and a commodity that is hawked or peddled by the licensee in the same vehicle at the same time.

 (a)  A distributor or importing distributor may not engage in a business which involves the peddling and hawking of a merchandise.

 (b)  Under section 492(12) of the Liquor Code (47 P. S. §  4-492(12)), the Board will in each case consider the nature of any other business engaged in by the distributor or importing distributor prior to the granting of its approval.

 (a)  Sales of malt or brewed beverages may not be made at any time in a warehouse except those in which the principal office or place of business of the licensee is maintained. Delivery shall be made only from the licensed premises of the distributor or importing distributor.

 (b)  Sales of malt or brewed beverages by distributors or importing distributors shall be for cash, checks or drafts under section 493(2) of the Liquor Code (47 P. S. §  4-493(2)).

 (c)  Distributors and importing distributors may accept from purchasers debit card payments which provide for instant electronic transfer of funds from payor to payee. Debit card transactions which provide for instant electronic funds transfer shall be considered a cash equivalent which complies with the Liquor Code.

 (a)  Agreements, franchises or statements of distribution rights. Agreements, franchises or statements of distribution rights given by a manufacturer or by an importing distributor under section 441 of the Liquor Code (47 P. S. §  4-441) shall be in writing, and a correct copy thereof shall be permanently maintained on the licensed premises of each party to the agreement, franchise or statement. The agreement, franchise or statement of distribution rights shall be open to inspection by authorized representatives of the Board at all times.

 (b)  Filing and posting.

   (1)  An importing distributor and secondary importing distributor deriving rights of distribution by agreement with a manufacturer or importing distributor shall comply with the following:

     (i)   Post and keep posted at all times on the licensed premises of the importing distributor, in a conspicuous place near to the license issued to the importing distributor by the Board, a schedule designating the territorial areas of, limits of or rights vested in the importing distributor by a manufacturer or importing distributor. The importing distributor shall furnish to distributors and importing distributors in his territory to whom he intends to sell, a schedule in which the territorial areas of the selling distributor or importing distributor are set forth, and he shall obtain the signatures on a copy of the schedule of distributors or importing distributors to whom he intends to sell. These signed copies of schedules shall be kept on file in the selling distributor’s office or importing distributor’s office.

     (ii)   File with the Board’s Office of Malt Beverage Compliance, a certified copy of each franchise or territorial agreement entered into with a manufacturer or importing distributor.

     (iii)   File with the Board’s Office of Malt Beverage Compliance, a certified copy of each revised, altered or modified franchise or territorial agreement revising, altering or modifying previously existing agreements, within 10 days of execution thereof.

     (iv)   Repost on the licensed premises within 5 days of execution of the revised, altered or modified agreement the schedule required under paragraph (1) indicating changes in territorial areas, limits or rights as a result of revision, alteration or modification of a previously existing agreement; furnish to distributors or importing distributors in his territory to whom he intends to sell, a revised, altered or modified schedule indicating changes in territorial areas, limits or rights as a result of the revision, alteration or modification of a previously existing agreement; and obtain the signatures of the distributors or importing distributors on copies thereof.

   (2)  Distributors, when making purchases from importing distributors or secondary distributors, have the right to rely upon territorial areas, limits or rights posted on the premises of the importing and secondary distributors.

 (a)  Leaker allowances. Malt or brewed beverages contained in cooperage that becomes unfit for consumption due to a head leaker, bung leaker, stave leaker, loose pitch, bushing leaker or spoilage, shall be handled as follows:

   (1)  A tag shall be furnished by the manufacturer to the importing distributors and distributors showing information covering the type of leaker or spoilage, the name of the retailer or distributor and the license number of the licensee making the claim. The tag shall have a perforated portion, to be retained by the claimant, showing the reason for the return of the leaker, the claim number and the date of the claim. The top portion of the tag shall be fastened to the cooperage and returned to the manufacturer through the distributor from whom originally purchased.

   (2)  When the manufacturer has approved the claim, he shall issue a credit memorandum in triplicate. Three copies of the credit memorandum shall be signed by the retailer who retains the triplicate copy. The duplicate copy shall be retained by the distributor. The original credit memorandum and the stub of the tag shall be returned to the manufacturer for his file. Credit replacement may then be made in kind or in value.

   (3)  If credit is disallowed by the manufacturer, the retailer shall be so notified through the distributor, giving the reasons.

   (4)  The manufacturer shall attach to his monthly report, on Forms RCB-47, RCB-48 and RCB-49, a statement showing claims allowed, indicating names, addresses and dates involved in such allowances.

   (5)  Importing distributors shall be governed by the same procedure covering returns to foreign manufacturers.

 (b)  Breakage allowance. A manufacturer, distributor or importing distributor of malt or brewed beverages is not required to give breakage allowance. If an allowance is given, however, it shall be based upon a fixed percentage of gross sales to any one licensee customer of glass containers and contents, not to exceed .1% of gross sales of glass containers and contents to any one licensee customer.

   The provisions of this §  9.97 adopted June 26, 1952; amended through August 29, 1966; amended July 20, 1970, effective July 21, 1970, 1 Pa.B. 137.

RECORDS AND REPORTS

§ 9.101. Records to be maintained.

 Purchases of malt or brewed beverages shall be entered in a purchase register. The register shall show the date of the purchase, invoice number and source of the purchase, covering both cooperage and case goods. The cost of malt or brewed beverages shall be shown separately from any deposits paid on case goods and refund obtained for the return of empty containers. The net cost of invoices shall be shown and the register shall be totaled each day with the daily unit totals carried to the purchase column in the perpetual inventory record. The daily totals shall be accumulated into a monthly total.

   The provisions of this §  9.102 adopted June 26, 1952; amended through August 29, 1966; amended July 20, 1970, effective July 21, 1970, 1 Pa.B. 137.

   Instruction

   The Board need not give special instructions or orientation with respect to the maintenance of a purchase register, a sales register, and a perpetual inventory record on the licensed premises. In re GTRT, Inc., 458 A.2d 667 (Pa. Cmwlth. 1983).

   Purchase Register

   In reimposing a fine on a licensee, the Court noted that maintenance of a purchase register, a sales register, and a perpetual inventory record on the licensed premises is required by § §  9.102—9.104. In re Lampl, 458 A.2d 660 (Pa. Cmwlth. 1983).

 Sales of malt or brewed beverages shall be entered in a sales register. The selling price of the beverages shall be shown separately from deposits charged on case goods and the credit allowed for the return of empty containers. The net selling price of invoices shall be shown and the register shall be totaled each day with the daily unit totals carried to the sales column in the perpetual inventory record. The daily totals shall be accumulated into a monthly total. The sales register shall be maintained by either of the following methods:

   (1)  The required information may be accumulated each day on a summary sheet with a daily posting to the sales register. The summary sheet shall act as a face sheet and be permanently fastened to each daily group of sales invoices. Sales invoices together with their attached face sheets shall be filed chronologically and be maintained for 2 years.

   (2)  Sales invoice may be posted to the sales register showing date, invoice number, value of the malt or brewed beverages, deposits collected and refunded, the net cost to the customer and the name and address of the recipient of the beverages.

   The provisions of this §  9.103 adopted June 26, 1952; amended through August 29, 1966; amended July 20, 1970, effective July 21, 1970, 1 Pa.B. 137.

   Instruction

   The Board need not give special instructions or orientation with respect to the maintenance of a purchase register, a sales register, and a perpetual inventory record on the licensed premises, In re GTRT, Inc., 458 A.2d 667 (Pa. Cmwlth. 1983).

   Sales Register

   In reimposing a fine on a licensee, the Court noted that maintenance of a purchase register, a sales register, and a perpetual inventory record on the licensed premises is required by § §  9.102—9.104. In re Lampl, 458 A.2d 660 (Pa. Cmwlth. 1983).

 (a)  A perpetual inventory record shall be maintained for inventory control purposes of all stock of malt or brewed beverages. The record is the control of stock on hand and shall be used in compiling figures for the monthly report. The record shall:

   (1)  Be separated according to container size (such as full barrels or half-barrels, cases of pints, quarts, cans, splits, etc.).

   (2)  Show the number of units of each size on hand at the beginning of each business day.

   (3)  Show the total units purchased as shown on the purchase register and the total units sold as shown on the sales register for each business day.

   (4)  Show the closing inventory of each size and the reconciliation of the inventory with the physical inventory of stock on hand in the warehouse.

 (b)  The daily totals of the purchase and sales columns shall be totaled monthly.

   The provisions of this §  9.104 adopted June 26, 1952; amended through August 29, 1966; amended July 20, 1970, effective July 21, 1970, 1 Pa.B. 137.

   Perpetual Inventory Record

   In reimposing a fine on a licensee, the Court noted that maintenance of a purchase register, a sales register and a perpetual inventory record on the licensed premises is required by 40 Pa. Code § §  9.102—9.104. In re GTRT, Inc., 458 A.2d 667 (Pa. Cmwlth. 1983).

   In reimposing a fine on a licensee, the Court noted that maintenance of a purchase register, a sales register, and a perpetual inventory record on the licensed premises is required by 40 Pa. Code § §  9.102—9.104. In re Lampl, 458 A.2d 660 (Pa. Cmwlth. 1983).

 (a)  A cash receipts and disbursements book shall show the details of monies received and expended in the operation of the licensed business each day.

 (b)  Receipts covering income from the sale of malt or brewed beverages, soft drinks, other merchandise, loans and other sources shall be entered in detail.

 (c)  Expenditures covering payments for malt or brewed beverages, soft drinks, other merchandise, salaries and wages, truck expenses, rent, heat, light, taxes, insurance, license fees, advertising, sales expenses, repairs and maintenance of equipment and premises, interest, personal withdrawals and other expenses shall be entered in detail.

 (d)  The cash receipts and disbursements book shall be totaled and reconciled with bank account and cash on hand at the close of business each month.

   The provisions of this §  9.105 adopted June 26, 1952; amended through August 29, 1966; amended July 20, 1970, effective July 21, 1970, 1 Pa.B. 137.

 (a)  Except as otherwise provided in this section, sales invoices shall be prepared at the licensed premises for each sale prior to delivery.

 (b)  Sales invoices shall be imprinted or affixed with the name and address of the distributor or importing distributor and shall show the name and address of the recipient of the merchandise, date of sale, number of units, size and type of package, brand name, selling price of the malt or brewed beverages and the net cost to the customer. The deposits charged and refunded for containers, and Commonwealth sales tax, where applicable, shall be shown as separate entries.

 (c)  The name and address of private individuals is not required on sales invoices covering cash and carry sales made at the place of business of the licensee, when the individual sales are for quantities of three cases or less, each case containing bottles or cans of not more than a 32 fluid ounce capacity, or for quantities of three containers or less of 128, 144 or 288 fluid ounce capacity, or a combination of the cases or containers, in the quantities specified. In lieu of preparing sales invoices for the cash and carry sales, these transactions may be entered individually on a counter sheet maintained in columnar form showing the information required on sales invoices other than name and address of the purchaser. This counter sheet shall be totaled daily and the totals entered into the sales register.

 (d)  Sales invoices may be changed en route only to increase or decrease the customer’s original order.

 (e)  The sale of other Board-approved commodities may be included on a sales invoice if the sale of malt beverages is listed separately from other merchandise sold by the licensee.

 (f)  One copy of each sales invoice shall be given to the recipient of the merchandise.

   The provisions of this §  9.106 adopted June 26, 1952; amended through August 29, 1966; amended July 20, 1970, effective July 21, 1970, 1 Pa.B. 137; amended August 24, 1990, effective August 25, 1990, 20 Pa.B. 4487.

 Copies of reports or forms required by Federal or State governmental agencies related to the licensed operation shall be maintained for a period of 2 years unless required to be maintained for a longer period by the Federal or State agencies. The reports and forms shall constitute a satisfactory record if they contain the information required by this subchapter.

   The provisions of this §  9.107 adopted June 26, 1952; amended through August 29, 1966; amended July 20, 1970, effective July 21, 1970, 1 Pa.B. 137; amended July 8, 1977, effective July 9, 1977, 7 Pa.B. 1890. Immediately preceding text appears at serial page (4189).

 (a)  Definitions. For the purpose of malt or brewed beverage brand registration as required by section 445 of the Liquor Code (47 P. S. §  4-445), the following words and terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise:

   Brand—Malt or brewed beverages, distinguished by a unique prescribed formula and sold under a distinct label. Differences in packaging such as different style, type or size of container are not considered different brands.

   Franchisee—A person, corporation, partnership or association in which rights have been conferred by a domestic or nondomestic manufacturer of malt or brewed beverages to offer, sell or deliver products within this Commonwealth to licensed importing distributors.

   Malt Beverage Compliance—The section of Special Investigations responsible for handling the various duties of brand registration for the Board.

 (b)  Registration. Each brand of malt or brewed beverages that a manufacturer or franchisee offers, sells or delivers within this Commonwealth shall be first registered with the Board by filing the proper forms with Malt Beverage Compliance. The registration shall be on forms as provided by the Board and shall be renewed annually. An initial application shall be accompanied by:

   (1)  A label or copy of a label for each brand registered and a Federal label approval containing a copy of the label.

   (2)  A copy of a territorial franchise agreement between the manufacturer and each Pennsylvania importing distributor.

   (3)  If the brand registrant is an out-of-State importer/wholesaler the following:

     (i)   A copy of the agreement designating the United States importer/wholesaler as the authority to market in this Commonwealth.

     (ii)   A copy of the territorial/franchise agreements between the importer/wholesaler and each Pennsylvania importing distributor. The agreement shall contain the written consent and approval of the out-of-State domestic or nondomestic manufacturer to the appointment of the Pennsylvania importing distributor and the rights conferred thereunder.

   (4)  If the brand registrant is a licensed Pennsylvania importing distributor holding an agreement as franchisee with a nondomestic manufacturer, a copy of the agreement with the nondomestic manufacturer.

 (c)  Notification of changes. Changes in brand ownership, franchise agreements, territorial agreements or the desire to offer, sell or deliver additional brands of malt or brewed beverages, shall be reported to the Board within 30 days.

   The provisions of this §  9.108 adopted September 9, 1988, effective September 10, 1988, 18 Pa.B. 4095; amended January 16, 1998, effective January 17, 1998, 28 Pa.B. 279. Immediately preceding text appears at serial pages (229081) to (229082).