SECOND REGULAR SESSION
HOUSE COMMITTEE SUBSTITUTE FOR
SENATE COMMITTEE SUBSTITUTE FOR
SENATE BILL NO. 834
91ST GENERAL ASSEMBLY
Reported from the Committee on Local Government and Related Matters, May 13, 2002, with recommendation that the
House Committee Substitute for Senate Committee Substitute for Senate Bill No. 834 Do Pass.
TED WEDEL, Chief Clerk
AN ACT
To repeal sections 311.070, 311.178, and 311.680, RSMo, and to enact in lieu thereof four new sections relating to liquor control, with an emergency clause.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Sections 311.070, 311.178, and 311.680, RSMo, are repealed and four new sections enacted in lieu thereof, to be known as sections 311.070, 311.178, 311.481, and 311.680, to read as follows:
311.070. 1. Distillers, wholesalers, winemakers, brewers or their employees, officers or agents, shall not, except as provided in this section, directly or indirectly, have any financial interest in the retail business for sale of intoxicating liquors, and shall not, except as provided in this section, directly or indirectly, loan, give away or furnish equipment, money, credit or property of any kind, except ordinary commercial credit for liquors sold to such retail dealers. However, notwithstanding any other provision of this chapter to the contrary, for the purpose of the promotion of tourism, a distiller whose manufacturing establishment is located within this state may apply for and the supervisor of liquor control may issue a license to sell intoxicating liquor, as in this chapter defined, by the drink at retail for consumption on the premises where sold; and provided further that the premises so licensed shall be in close proximity to the distillery and may remain open between the hours of 6:00 a.m. and midnight, Monday through Saturday and between the hours of 11:00 a.m. and 9:00 p.m., Sunday. The authority for the collection of fees by cities and counties as provided in section 311.220, and all other laws and regulations relating to the sale of liquor by the drink for consumption on the premises where sold, shall apply to the holder of a license issued under the provisions of this section in the same manner as they apply to establishments licensed under the provisions of section 311.085, 311.090, or 311.095.
2. Any distiller, wholesaler, winemaker or brewer who shall violate the provisions of subsection 1 of this section, or permit his employees, officers or agents to do so, shall be guilty of a misdemeanor, and upon conviction thereof shall be punished as follows:
(1) For the first offense, by a fine of one thousand dollars;
(2) For a second offense, by a fine of five thousand dollars; and
(3) For a third or subsequent offense, by a fine of ten thousand dollars or the license of such person shall be revoked.
3. As used in this section, the following terms mean:
(1) "Consumer advertising specialties", advertising items that are designed to be carried away by the consumer, such items include, but are not limited to: trading stamps, nonalcoholic mixers, pouring racks, ash trays, bottle or can openers, cork screws, shopping bags, matches, printed recipes, pamphlets, cards, leaflets, blotters, postcards, pencils, shirts, caps and visors;
(2) "Equipment and supplies", glassware (or similar containers made of other material), dispensing accessories, carbon dioxide (and other gasses used in dispensing equipment) or ice. "Dispensing accessories" include standards, faucets, cold plates, rods, vents, taps, tap standards, hoses, washers, couplings, gas gauges, vent tongues, shanks, and check valves;
(3) "Point of sale advertising materials", advertising items designed to be used within a retail business establishment to attract consumer attention to the products of a distiller, wholesaler, winemaker or brewer. Such materials include, but are not limited to: posters, placards, designs, inside signs (electric, mechanical or otherwise), window decorations, trays, coasters, mats, menu cards, meal checks, paper napkins, foam scrapers, back bar mats, thermometers, clocks, calendars and alcoholic beverage lists or menus;
(4) "Product display", wine racks, bins, barrels, casks, shelving or similar items the primary function of which is to hold and display consumer products;
(5) "Promotion", an advertising and publicity campaign to further the acceptance and sale of the merchandise or products of a distiller, wholesaler, winemaker or brewer.
4. Notwithstanding other provisions contained herein, the distiller, wholesaler, winemaker or brewer, or their employees, officers or agents may engage in the following activities with a retail licensee licensed pursuant to this chapter or chapter 312, RSMo:
(1) The distiller, wholesaler, winemaker or brewer may give or sell product displays to a retail business if all of the following requirements are met:
(a) The total value of all product displays given or sold to a retail business shall not exceed three hundred dollars per brand at any one time in any one retail outlet. There shall be no combining or pooling of the three hundred dollar limits to provide a retail business a product display in excess of three hundred dollars per brand. The value of a product display is the actual cost to the distiller, wholesaler, winemaker or brewer who initially purchased such product display. Transportation and installation costs shall be excluded;
(b) All product displays shall bear in a conspicuous manner substantial advertising matter on the product or the name of the distiller, wholesaler, winemaker or brewer. The name and address of the retail business may appear on the product displays; and
(c) The giving or selling of product displays may be conditioned on the purchase of intoxicating beverages advertised on the displays by the retail business in a quantity necessary for the initial completion of the product display. No other condition shall be imposed by the distiller, wholesaler, winemaker or brewer on the retail business in order for such retail business to obtain the product display;
(2) Notwithstanding any provision of law to the contrary, the distiller, wholesaler, winemaker or brewer may give or sell any point of sale advertising materials and consumer advertising specialties to a retail business if all the following requirements are met:
(a) The total value of all point of sale advertising materials and consumer advertising specialties given or sold to a retail business shall not exceed five hundred dollars per year, per brand, per retail outlet. The value of point-of-sale advertising materials and consumer advertising specialties is the actual cost to the distiller, wholesaler, winemaker or brewer who initially purchased such item. Transportation and installation costs shall be excluded;
(b) All point-of-sale advertising materials and consumer advertising specialties shall bear in a conspicuous manner substantial advertising matter about the product or the name of the distiller, wholesaler, winemaker or brewer. The name, address and logos of the retail business may appear on the point-of-sale advertising materials or the consumer advertising specialties; and
(c) The distiller, wholesaler, winemaker or brewer shall not directly or indirectly pay or credit the retail business for using or distributing the point-of-sale advertising materials or consumer advertising specialties or for any incidental expenses arising from their use or distribution;
(3) A malt beverage wholesaler or brewer may give a gift not to exceed a value of one thousand dollars per year, or sell something of value to a holder of a temporary permit as defined in section 311.482;
(4) The distiller, wholesaler, winemaker or brewer may sell equipment or supplies to a retail business if all the following requirements are met:
(a) The equipment and supplies shall be sold at a price not less than the cost to the distiller, wholesaler, winemaker or brewer who initially purchased such equipment and supplies; and
(b) The price charged for the equipment and supplies shall be collected in accordance with credit regulations as established in the code of state regulations;
(5) The distiller, wholesaler, winemaker or brewer may install dispensing accessories at the retail business establishment, which shall include for the purposes of intoxicating and nonintoxicating beer equipment to properly preserve and serve draught beer only and to facilitate the delivery to the retailer the brewers and wholesalers may lend, give, rent or sell and they may install or repair any of the following items or render to retail licensees any of the following services: beer coils and coil cleaning, sleeves and wrappings, box couplings and draft arms, beer faucets and tap markers, beer and air hose, taps, vents and washers, gauges and regulators, beer and air distributors, beer line insulation, coil flush hose, couplings and bucket pumps; portable coil boxes, air pumps, blankets or other coverings for temporary wrappings of barrels, coil box overflow pipes, tilting platforms, bumper boards, skids, cellar ladders and ramps, angle irons, ice box grates, floor runways; and damage caused by any beer delivery excluding normal wear and tear and a complete record of equipment furnished and installed and repairs and service made or rendered must be kept by the brewer or wholesalers furnishing, making or rendering same for a period of not less than one year;
(6) The distiller, wholesaler, winemaker or brewer may furnish, give or sell coil cleaning service to a retailer of distilled spirits, wine or malt beverages;
(7) A wholesaler of intoxicating liquor may furnish or give and a retailer may accept a sample of distilled spirits or wine as long as the retailer has not previously purchased the brand from that wholesaler, if all the following requirements are met:
(a) The wholesaler may furnish or give not more than seven hundred fifty milliliters of any brand of distilled spirits and not more than seven hundred fifty milliliters of any brand of wine; if a particular product is not available in a size within the quantity limitations of this subsection, a wholesaler may furnish or give to a retailer the next larger size;
(b) The wholesaler shall keep a record of the name of the retailer and the quantity of each brand furnished or given to such retailer;
(c) For the purposes of this subsection, no samples of intoxicating liquor provided to retailers shall be consumed on the premises nor shall any sample of intoxicating liquor be opened on the premises of the retailer except as provided by the retail license;
(d) For the purpose of this subsection, the word "brand" refers to differences in brand name of product or differences in nature of product; examples of different brands would be products having a difference in: brand name; class, type or kind designation; appellation of origin (wine); viticulture area (wine); vintage date (wine); age (distilled spirits); or proof (distilled spirits); differences in packaging such a different style, type, size of container, or differences in color or design of a label are not considered different brands;
(8) The distiller, wholesaler, winemaker or brewer may package and distribute intoxicating beverages in combination with other nonalcoholic items as originally packaged by the supplier for sale ultimately to consumers; notwithstanding any provision of law to the contrary, for the purpose of this subsection, intoxicating liquor and wine wholesalers are not required to charge for nonalcoholic items any more than the actual cost of purchasing such nonalcoholic items from the supplier;
(9) The distiller, wholesaler, winemaker or brewer may sell or give the retail business newspaper cuts, mats or engraved blocks for use in the advertisements of the retail business;
(10) The distiller, wholesaler, winemaker or brewer may in an advertisement list the names and addresses of two or more unaffiliated retail businesses selling its product if all of the following requirements are met:
(a) The advertisement shall not contain the retail price of the product;
(b) The listing of the retail businesses shall be the only reference to such retail businesses in the advertisement;
(c) The listing of the retail businesses shall be relatively inconspicuous in relation to the advertisement as a whole; and
(d) The advertisement shall not refer only to one retail business or only to a retail business controlled directly or indirectly by the same retail business;
(11) Notwithstanding any other provision of law to the contrary, distillers, winemakers, wholesalers, brewers or retailers may conduct a local or national sweepstakes/contest upon a licensed retail premise. However, no money or something of value may be given to the retailer for the privilege or opportunity of conducting the sweepstakes or contest;
(12) The distiller, wholesaler, winemaker or brewer may stock, rotate, rearrange or reset the products sold by such distiller, wholesaler, winemaker or brewer at the establishment of the retail business so long as the products of any other distiller, wholesaler, winemaker or brewer are not altered or disturbed;
(13) The distiller, wholesaler, winemaker or brewer may provide a recommended shelf plan or shelf schematic for distilled spirits, wine or malt beverages;
(14) The distiller, wholesaler, winemaker or brewer participating in the activities of a retail business association may do any of the following:
(a) Display its products at a convention or trade show;
(b) Rent display booth space if the rental fee is the same paid by all others renting similar space at the association activity;
(c) Provide its own hospitality which is independent from the association activity;
(d) Purchase tickets to functions and pay registration fees if such purchase or payment is the same as that paid by all attendees, participants or exhibitors at the association activity; and
(e) Make payments for advertisements in programs or brochures issued by retail business associations at a convention or trade show if the total payments made for all such advertisements do not exceed three hundred dollars per year for any retail business association;
(15) The distiller, wholesaler, winemaker or brewer may sell its other merchandise which does not consist of intoxicating beverages to a retail business if the following requirements are met:
(a) The distiller, wholesaler, winemaker or brewer shall also be in business as a bona fide producer or vendor of such merchandise;
(b) The merchandise shall be sold at its fair market value;
(c) The merchandise is not sold in combination with distilled spirits, wines or malt beverages except as provided in this section;
(d) The acquisition or production costs of the merchandise shall appear on the purchase invoices or records of the distiller, wholesaler, winemaker or brewer; and
(e) The individual selling prices of merchandise and intoxicating beverages sold to a retail business in a single transaction shall be determined by commercial documents covering the sales transaction;
(16) The distiller, wholesaler, winemaker or brewer may sell or give an outside sign to a retail business if the following requirements are met:
(a) The sign shall bear in a conspicuous manner substantial advertising matter about the product or the name of the distiller, wholesaler, winemaker or brewer;
(b) The retail business shall not be compensated, directly or indirectly, for displaying the sign; and
(c) The cost of the sign shall not exceed four hundred dollars;
(17) A wholesaler may, but shall not be required to, exchange for an equal quantity of identical product or allow credit against outstanding indebtedness for intoxicating liquor with alcohol content of less than five percent by weight or nonintoxicating beer that was delivered in a damaged condition or damaged while in the possession of the retailer;
(18) To assure and control product quality, wholesalers at the time of a regular delivery may, but shall not be required to, withdraw, with the permission of the retailer, a quantity of intoxicating liquor with alcohol content of less than five percent by weight or nonintoxicating beer in its undamaged original carton from the retailer's stock, if the wholesaler replaces the product with an equal quantity of identical product;
(19) In addition to withdrawals authorized pursuant to subdivision (18) of this subsection, to assure and control product quality, wholesalers at the time of a regular delivery may, but shall not be required to, withdraw, with the permission of the retailer, a quantity of intoxicating liquor with alcohol content of less than five percent by weight and nonintoxicating beer in its undamaged original carton from the retailer's stock and give the retailer credit against outstanding indebtedness for the product if:
(a) The product is withdrawn at least thirty days after initial delivery and within twenty-one days of the date considered by the manufacturer of the product to be the date the product becomes inappropriate for sale to a consumer; and
(b) The quantity of product withdrawn does not exceed the equivalent of twenty-five cases of twenty-four twelve-ounce containers; and
(c) To assure and control product quality, a wholesaler may, but not be required to, give a retailer credit for intoxicating liquor with an alcohol content of less than five percent by weight or nonintoxicating beer, in a container with a capacity of four gallons or more, delivered but not used, if the wholesaler removes the product within seven days of the initial delivery; and
(20) Nothing in this section authorizes consignment sales.
5. All contracts entered into between distillers, brewers and winemakers, or their officers or directors, in any way concerning any of their products, obligating such retail dealers to buy or sell only the products of any such distillers, brewers or winemakers or obligating such retail dealers to buy or sell the major part of such products required by such retail vendors from any such distiller, brewer or winemaker, shall be void and unenforceable in any court in this state.
6. Notwithstanding any other provisions of this chapter to the contrary, a distiller or wholesaler may install dispensing accessories at the retail business establishment, which shall include for the purposes of distilled spirits, equipment to properly preserve and serve premixed distilled spirit beverages only. To facilitate delivery to the retailer, the distiller or wholesaler may lend, give, rent or sell and the distiller or wholesaler may install or repair any of the following items or render to retail licensees any of the following services: coils and coil cleaning, draft arms, faucets and tap markers, taps, tap standards, tapping heads, hoses, valves and other minor tapping equipment components, and damage caused by any delivery excluding normal wear and tear. A complete record of equipment furnished and installed and repairs or service made or rendered shall be kept by the distiller or wholesaler, furnishing, making or rendering the same for a period of not less than one year.
7. Notwithstanding any other provision of this chapter or chapter 312, RSMo, to the contrary, distillers, winemakers, brewers or their employees, or officers shall be permitted to make contributions of money or merchandise to a licensed retail liquor dealer that is a charitable or religious organization as defined in section 313.005, RSMo, or an educational institution if such contributions are unrelated to such organization's retail operations.
8. Notwithstanding any other provision of this chapter or chapter 312, RSMo, to the contrary, a brewer or manufacturer, its employees, officers or agents may have a financial interest in the retail business for sale of intoxicating liquors and nonintoxicating beer at entertainment facilities owned, in whole or in part, by the brewer or manufacturer, its subsidiaries or affiliates including, but not limited to, arenas and stadiums used primarily for concerts, shows and sporting events of all kinds.
9. Notwithstanding any other provision of this chapter or chapter 312, RSMo, to the contrary, for the purpose of the promotion of tourism, a wine manufacturer, its employees, officers or agents located within this state may apply for and the supervisor of liquor control may issue a license to sell intoxicating liquor, as defined in this chapter, by the drink at retail for consumption on the premises where sold, if the premises so licensed is in close proximity to the winery. Such premises may remain open between the hours of 6:00 a.m. and midnight, Monday through Saturday and between the hours of 11:00 a.m. and 9:00 p.m., Sunday.
10. Notwithstanding any other provision of this chapter or chapter 312, RSMo, to the contrary, for the purpose of the promotion of tourism, a person may apply for and the supervisor of liquor control may issue a license to sell intoxicating liquor by the drink at retail for consumption on the premises where sold, but the person so licensed shall sell only Missouri-produced wines received from manufacturers licensed pursuant to section 311.190. Such premises may remain open between the hours of 6:00 a.m. and midnight, Monday through Saturday, and between the hours of 11:00 a.m. and 9:00 p.m. on Sundays.
311.178. 1. Any person possessing the qualifications and meeting the requirements of this chapter who is licensed to sell intoxicating liquor by the drink at retail for consumption on the premises in a [first class] county of the first classification having a charter form of government and not containing all or part of a city with a population of over three hundred thousand, may apply to the supervisor of liquor control for a special permit to remain open on each day of the week until 3:00 a.m. of the morning of the following day. The time of opening on Sunday may be 11:00 a.m. The provisions of this section and not those of section 311.097 regarding the time of closing shall apply to the sale of intoxicating liquor by the drink at retail for consumption on the premises on Sunday. The premises of such an applicant [must] shall be located in an area which has been designated as a convention trade area by the governing body of the county and the applicant [must] shall meet at least one of the following conditions:
(1) The business establishment's annual gross sales for the year immediately preceding the application for extended hours equals one hundred fifty thousand dollars or more; or
(2) The business is a resort. For purposes of this [section] subsection, a "resort" is defined as any establishment having at least sixty rooms for the overnight accommodation of transient guests and having a restaurant located on the premises.
2. Any person possessing the qualifications and meeting the requirements of this chapter who is licensed to sell intoxicating liquor by the drink at retail for consumption on the premises in a county of the third classification without a township form of government having a population of more than twenty-three thousand five hundred but less than twenty-three thousand six hundred inhabitants, a county of the third classification without a township form of government having a population of more than nineteen thousand three hundred but less than nineteen thousand four hundred inhabitants or a county of the first classification without a charter form of government with a population of at least thirty-seven thousand inhabitants but not more than thirty-seven thousand one hundred inhabitants, may apply to the supervisor of liquor control for a special permit to remain open on each day of the week until 3:00 a.m. of the morning of the following day. The time of opening on Sunday may be 11:00 a.m. The provisions of this section and not those of section 311.097 regarding the time of closing shall apply to the sale of intoxicating liquor by the drink at retail for consumption on the premises on Sunday. The applicant shall meet all of the following conditions:
(1) The business establishment's annual gross sales for the year immediately preceding the application for extended hours equals one hundred thousand dollars or more;
(2) The business is a resort. For purposes of this subsection, a "resort" is defined as any establishment having at least seventy-five rooms for the overnight accommodation of transient guests, having at least three thousand square feet of meeting space and having a restaurant located on the premises; and
(3) The applicant shall develop, and if granted a special permit shall implement, a plan ensuring that between the hours of 1:30 a.m. and 3:00 a.m. no sale of intoxicating liquor shall be made except to guests with overnight accommodations at the licensee's resort. The plan shall be subject to approval by the supervisor of liquor control and shall provide a practical method for the division of liquor control and other law enforcement agencies to enforce the provisions of subsection 3 of this section.
3. While open between the hours of 1:30 a.m. and 3:00 a.m. under a special permit issued pursuant to subsection 2 of this section, it shall be unlawful for a licensee or any employee of a licensee to sell intoxicating liquor to or permit the consumption of intoxicating liquor by any person except a guest with overnight accommodations at the licensee's resort.
4. Any person possessing the qualifications and meeting the requirements of this chapter who is licensed to sell intoxicating liquor by the drink at retail for consumption on the premises in a county of the first classification with more than thirty-seven thousand but less than thirty-seven thousand one hundred inhabitants may apply to the supervisor of liquor control for a special permit to remain open on each day of the week until 3:00 a.m. of the morning of the following day. The time of opening on Sunday may be 11:00 a.m. The provisions of this section and not those of section 311.097 regarding the time of closing shall apply to the sale of intoxicating liquor by the drink at retail for consumption on the premises on Sunday. The premises of such an applicant shall meet the following condition:
(1) The business establishment shall have a minimum of seventy boat slips.
[2.] 5. An applicant granted a special permit [under] pursuant to this section shall, in addition to all other fees required by this chapter, pay an additional fee of three hundred dollars a year payable at the time and in the same manner as its other license fees.
[3.] 6. The provisions of this section allowing for extended hours of business shall not apply in any incorporated area wholly located in any [first class] county of the first classification having a charter form of government which does not contain all or part of a city with a population of over three hundred thousand inhabitants until the governing body of such incorporated area shall have by ordinance or order adopted the extended hours authorized by this section.
311.481. 1. Notwithstanding any other provisions of this chapter to the contrary, any person who possesses the qualifications required by this chapter, and who now or hereafter meets the requirements of and complies with the provisions of this chapter, may apply for, and the supervisor of liquor control may issue, a license to sell intoxicating liquor, as defined in this chapter, by the drink between the hours of 11:00 a.m. on Sunday and midnight on Sunday at retail for consumption on the premises of any airline club as described in the application. As used in this section, the term "airline club" shall mean an establishment located within an international airport and owned, leased, or operated by or on behalf of an airline, as a membership club and special services facility for passengers of such airline.
2. The authority for the collection of fees by cities and counties as provided in section 311.220, and all other laws and regulations of the state relating to the sale of liquor by the drink for consumption on the premises where sold, shall apply to each airline club in the same manner as they apply to establishments licensed pursuant to sections 311.085, 311.090 and 311.095, and in addition to all other fees required by law, a person licensed pursuant to this section shall pay an additional fee of two hundred dollars a year payable at the same time and in the same manner as its other fees; except that the requirements other than fees pertaining to the sale of liquor by the drink on Sunday shall not apply.
311.680. 1. Whenever it shall be shown, or whenever the supervisor of liquor control has knowledge, that a person licensed hereunder has not at all times kept an orderly place or house, or has violated any of the provisions of this chapter, the supervisor of liquor control may, warn, place on probation on such terms and conditions as the supervisor of liquor control deems appropriate for a period not to exceed twelve months, suspend or revoke the license of that person, but the person shall have ten days' notice of the application to warn, place on probation, suspend or revoke the person's license prior to the order of warning, probation, revocation or suspension issuing.
2. Any wholesaler licensed pursuant to this chapter or chapter 312, RSMo, in lieu of, or in addition to, the warning, probation, suspension or revocation authorized in subsection 1 of this section, may be assessed a civil penalty by the supervisor of liquor control of not less than one hundred dollars or more than twenty-five hundred dollars for each violation.
3. Any solicitor licensed pursuant to this chapter or chapter 312, RSMo, in lieu of the suspension or revocation authorized in subsection 1 of this section, may be assessed a civil penalty or fine by the supervisor of liquor control of not less than one hundred dollars nor more than five thousand dollars for each violation.
4. Any retailer with less than five thousand occupant capacity licensed pursuant to this chapter or chapter 312, RSMo, in lieu of the suspension or revocation authorized by subsection 1 of this section may be assessed a civil penalty or fine by the supervisor of liquor control of not less than fifty dollars nor more than one thousand dollars for each violation.
5. Any retailer with five thousand or more occupant capacity licensed pursuant to this chapter or chapter 312, RSMo, in lieu of the suspension or revocation authorized by subsection 1 of this section, may be assessed a civil penalty or fine by the supervisor of liquor control of not less than fifty dollars nor more than five thousand dollars for each violation.
6. Any aggrieved person may appeal to the administrative hearing commission in accordance with section 311.691.
7. In order to encourage the early resolution of disputes between the supervisor of liquor control and licensees, the supervisor of liquor control, prior to issuing an order of warning, probation, revocation, suspension, or fine, shall provide the licensee with the opportunity to meet or to confer with the supervisor of liquor control, or his or her designee, concerning the alleged violations. At least ten days prior to such meeting or conference, the supervisor shall provide the licensee with notice of the time and place of such meeting or conference, and the supervisor of liquor control shall also provide the licensee with a written description of the specific conduct for which discipline is sought, a citation of the law or rules allegedly violated, and, upon request, copies of any violation report or any other documents which are the basis for such action. Any order of warning, probation, revocation, suspension, or fine shall be effective no sooner than thirty days from the date of such order.
Section B. Because immediate action is necessary to clarify the law relating to Sunday liquor sales in airline clubs, this act is deemed necessary for the immediate preservation of the public health, welfare, peace and safety, and is hereby declared to be an emergency act within the meaning of the constitution, and this act shall be in full force and effect upon its passage and approval.