Mo. Code Regs. tit. 11 § 70-2.010
Current through Register Vol. 49, No. 20, October 15, 2024
Section 11 CSR 70-2.010 - [Effective until 1/15/2025] DefinitionsPURPOSE: This amendment clarifies the Division's long standing practice of treating legal entities the same way corporations are treated in evaluating their qualifications for licensure.
EMERGENCY STATEMENT: This emergency amendment informs applicants for a liquor license that all business entity types can be "persons" capable of obtaining a liquor license under sections 311.030 and 311.050, RSMo. This emergency amendment is necessary to protect a compelling governmental interest in that a recent Administrative Hearing Commission decision (Case Numbers 23-0288 and 23-0439) determined "a single member LLC, does not come within the definition of a 'person'" to be licensed. This holding, if adopted by a court of precedent, would mean fifty-four percent (54.3%) nine thousand two hundred eighty-eight of the seventeen thousand ninety-five (9,288 of the 17,095) primary licenses issued by the division would be unlawful and cannot be renewed next year. As a result, the division finds a compelling governmental interest, which requires this emergency action. The scope of this emergency rule is limited to the circumstances creating the emergency and complies with the protections extended in the Missouri and United States Constitutions. The division believes this emergency amendment is fair to all interested persons and parties under the circumstances. This emergency amendment was filed March 22, 2024, becomes effective April 5, 2024, and expires January 15, 2025.
(1) Close proximity refers to two (2) or more areas that are located on one (1) continuous tract of land owned or leased by the same person, or within line of sight of one another, or located on an adjoining property owned or leased by the same person.(2) Delivery occurs when a licensee transports or uses an employee or agent to transport intoxicating liquor to a consumer at a location other than the licensed premises.(3) Direct financial interest means personally having, owning, or otherwise holding a financial interest.(4) Domestic wine is defined in accordance with section 311.190, RSMo.(5) Good moral character refers to honesty, fairness, and respect for the rights of others and for the laws of the state and nation.(6) Indirect financial interest means enjoying the benefits of a direct financial interest of another person, as that term is defined in section 311.030, RSMo, or having any control over another person with a direct financial interest, including but not limited to: a spouse, minor child, or other relative living in the same home holding a direct financial interest; sharing monetary assets or liabilities with another person with a direct financial interest; having more than a ten percent (10%) ownership interest in another person with a direct financial interest; directly managing or serving as the managing officer of another person with a direct financial interest; or sharing common ownership where the common owner has more than a ten percent (10%) interest in each person.(7) Intoxicating liquor is defined in accordance with 311.020, RSMo.(8) Malt liquor or beer is defined in accordance with section 311.490(1) and (2), RSMo.(9) Managing officer means an individual in an applicant or licensee's employ or agent thereof who shall be responsible for any licenses issued by the state supervisor and serves as the division's primary point of contact with the applicant or licensee.(10) The words manufacturer and manufacturer-solicitor, whenever used as nouns in Chapter 311, RSMo, and in these regulations, are synonymous.(11) Ordinary Commercial Credit. (A) Malt Beverages. Ordinary commercial credit for malt beverages is credit that requires payment to be made by the retail licensee by the last day of the month for malt beverages delivered on or after the first day of the month and up to and including the fifteenth day of the month and by the fifteenth day of the following month for malt beverages delivered to the retail licensee on or after the sixteenth day of the month and up to and including the last day of the month. No brewer or wholesaler may sell or deliver malt beverages while the retail licensee owes the brewer or wholesaler for malt beverages beyond the period of time as indicated in this subsection.(B) Spirituous Liquor and Wine. Ordinary commercial credit for spirituous liquor and/or wine is credit that requires payment to be made by the retail licensee within thirty (30) days after the delivery of spirituous liquor and/or wine to the retail licensee. No distiller, wholesaler, or wine maker may sell or deliver spirituous liquor and/or wine while the licensee owes the distiller, wholesaler, or wine maker for spirituous liquor and/or wine beyond the period of time as indicated in this subsection.(12) Original package refers to any package containing one (1) or more bottles, pouches, or cans of malt liquor, spirituous liquors, or wine in the manufacturer's original sealed container.(13) The word permit, whenever used as a verb in Chapter 311, RSMo, and in these regulations, means to have knowledge of an event or activity and to authorize, make possible, allow by tacit consent, or fail to prevent said event or activity from occurring. Knowledge of an event or activity may be inferred if the event or activity occurs openly, or if knowledge of the event or activity could have been obtained through the exercise of reasonable care and diligence.(14) The words permit and license, whenever used as nouns in Chapter 311, RSMo, and in these regulations are synonymous.(15) The words permittee and licensee, whenever used as nouns in Chapter 311, RSMo, and in these regulations are synonymous.(16) Person is defined in accordance with section 311.030, RSMo.(17) Premises or premise refers to any place where intoxicating liquor is sold or consumed and may be one (1) room, a building comprising several rooms, two (2) or more buildings permanently connected by a covered walkway, or a building with adjacent or surrounding land that has clearly delineated, permanent boundaries and is not used primarily for vehicular travel or parking, such as a lot or garden.(18) Retailer is a person holding a license from the state supervisor authorizing the person to sell, offer to sell, or facilitate the sale of intoxicating liquor to consumers.(19) Shipment occurs when a licensee uses a common carrier to transport intoxicating liquor to a consumer at a location other than the licensed premises.(20) Spirits or spirituous liquor includes brandy, rum, whiskey, gin, any distilled intoxicating liquor, and all other preparations, dilutions, or mixtures for beverage purposes of a like character and excludes all other vinous, fermented, or malt liquors.(21) Unlabeled liquor includes any intoxicating liquor that does not have a label affixed to the original package, that has a label affixed to the original package which has not been approved in accordance with state and federal laws and regulations, or that has an approved label that has been affixed to the original package in a way that is not in accordance with state or federal laws and regulations.(22) The words wholesaler and/or wholesale-solicitor whenever used as nouns in Chapter 311, RSMo, and in these regulations, are synonymous.(23) Wine is a vinous liquor produced by fermentation of juices of grapes, berries, or other fruits, or a preparation of certain vegetables by fermentation, and containing alcohol not in excess of twenty-two percent (22%) by volume.(24) A case of wine, for the purposes of wine direct shipments, is a box, crate, or other container that holds twelve (12) standard bottles of wine in the manufacturer's original package, each containing seven hundred fifty milliliters (750 ml), or holds one (1) or more containers of wine in the manufacturer's original package with an aggregate total of no more than nine (9) liters or two and thirty-eight hundredths (2.38) gallons of wine.(25) Applicant refers to the sole proprietor, partnership, or entity applying for a liquor license.(26) Entity refers to any association, corporation, limited liability company, limited partnership, or other business structure which has a separate legal existence from its owner(s). Entity also includes any business structure not in conformance with a sole proprietor or partnership structure as defined herein.(27) Partnership refers to two (2) or more individuals who share control over the management and profits of a business structure. The business has no separate legal existence from the partners.(28) Sole proprietor refers to one (1) individual who exercises exclusive control over the management and profits of a business structure. The business has no separate existence from its owner. Income and losses are taxed on the individual's personal income tax return.(29) Association, as it is used in section 311.030, RSMo, includes all business entities not otherwise described in Chapter 311 as a person.AUTHORITY: section 311.660, RSMo 1994.* This version of rule filed Feb. 8, 1973, effective Feb. 18, 1973. Amended: Filed Nov. 21, 1974, effective Dec. 1, 1974. Amended: Filed Sept. 30, 1976, effective Feb. 11, 1977. Amended: Filed Jan. 7, 1985, effective April 11, 1985. Amended: Filed Dec. 2, 1993, effective June 6, 1994. Amended: Filed Jan. 22, 1996, effective July 30, 1996.Amended by Missouri Register April 15, 2019/Volume 44, Number 8, effective 5/31/2019Amended by Missouri Register July 15, 2022/Volume 47, Number 14, effective 8/31/2022Amended by Missouri Register May 1, 2024/volume 49, Number 09, effective 4/5/2024, exp. 1/15/2025 (Emergency).