53-218. Supplier; agreements; prohibited acts; changes or termination; procedures; quality control; temporary service interruption.
(1) Notwithstanding any agreement and except as otherwise provided for in sections 53-201 to 53-223, a supplier shall not amend or modify an agreement, cause a wholesaler to resign from an agreement, or cancel, terminate, fail to renew, or refuse to continue under an agreement unless the supplier has:
(a) Satisfied the applicable notice requirements of subsection (3) of this section;
(b) Acted in good faith; and
(c) Good cause for the amendment, modification, forced resignation, cancellation, termination, nonrenewal, or discontinuance.
(2) For each amendment, modification, cancellation, termination, nonrenewal, or discontinuance, the supplier shall have the burden of proving that it has acted in good faith, that the notice requirements under this section have been complied with, and that there was good cause for the amendment, modification, cancellation, termination, nonrenewal, or discontinuance.
(3) Notwithstanding any agreement and except as to new products and as otherwise provided in this section and in addition to the time limits set forth in subdivision (4)(e) of this section, the supplier shall furnish written notice of the amendment, modification, cancellation, termination, nonrenewal, or discontinuance of an agreement to the wholesaler not less than thirty days before the effective date of the amendment, modification, cancellation, termination, nonrenewal, or discontinuance. The notice shall be sent by certified mail and shall contain:
(a) A statement of intention to amend, modify, cancel, terminate, not renew, or discontinue the agreement;
(b) A statement of the reason for the amendment, modification, cancellation, termination, nonrenewal, or discontinuance; and
(c) The date on which the amendment, modification, cancellation, termination, nonrenewal, or discontinuance shall take effect.
(4) Notwithstanding any agreement, good cause shall exist for the purposes of a cancellation, termination, nonrenewal, or discontinuance under subdivision (1)(c) of this section when:
(a) There is a failure by the wholesaler to comply with a provision of the agreement which is both reasonable and of material significance to the business relationship between the wholesaler and the supplier;
(b) The supplier first acquired knowledge of the failure described in subdivision (a) of this subsection not more than twenty-four months before the date notification was given pursuant to subsection (3) of this section;
(c) The wholesaler was given notice by the supplier of failure to comply with the agreement within twenty-four months of such failure;
(d) The wholesaler was afforded a reasonable opportunity to assert good faith efforts to comply with the agreement within the time limits provided for in subdivision (e) of this subsection; and
(e) The wholesaler has been afforded thirty days in which to submit a plan of corrective action to comply with the agreement and an additional ninety days to cure such noncompliance in accordance with the plan.
(5) Notwithstanding subsections (1) and (3) of this section, a supplier may cancel, terminate, fail to renew, or discontinue an agreement immediately upon written notice given in the manner and containing the information required by subsection (3) of this section if:
(a) The wholesaler becomes insolvent, files or has filed against it a petition under any bankruptcy or receivership law, makes an assignment for the benefit of creditors, or is dissolved or liquidated and such action materially affects the wholesaler's ability to remain in business;
(b) The wholesaler's state or federal license is revoked or suspended by the appropriate regulatory agency and the wholesaler cannot service the wholesaler's sales territory for more than sixty-one days;
(c) The wholesaler or a partner, a member, or an individual who owns ten percent or more of the partnership, the limited liability company, or the stock of a corporate wholesaler has been convicted of a felony under the United States Code or the laws of any state which reasonably may adversely affect the goodwill or interest of the wholesaler or supplier. An existing stockholder, partner, or member or a designated member shall have, subject to the provisions of sections 53-201 to 53-223, the right to purchase the partnership interest, the limited liability company member interest, or the stock of the offending partner or stockholder, and if the sale is completed prior to conviction, the provisions of this subdivision shall not apply; or
(d) The supplier and wholesaler agree to a termination.
(6) Notwithstanding subsections (1), (3), and (4) of this section, upon not less than fifteen days' written notice given in the manner and containing the information required by subsection (3) of this section, a supplier may cancel, terminate, fail to renew, or discontinue an agreement if:
(a) There was intentional fraudulent conduct relating to a material matter on the part of the wholesaler in dealings with the supplier or its producers. The supplier shall have the burden of proving intentional fraudulent conduct relating to a material matter on the part of the wholesaler;
(b) The wholesaler failed to confine its sales of a brand or brands to retailers in its designated sales territory. This subdivision shall not apply if there is a dispute between two or more wholesalers as to the boundaries of the assigned territory and the boundaries cannot be determined by a reading of the description contained in the agreements between the supplier and the wholesalers;
(c) A wholesaler who has failed to pay for beer ordered and delivered in accordance with established terms with the supplier fails to make full payment within two business days after receipt of written notice of the delinquency and demand for immediate payment from the supplier;
(d) A wholesaler intentionally has made a transfer of the wholesaler's business, other than a transfer to a designated member or pursuant to a loan agreement or debt instrument, without prior written notice to the supplier and has failed, within thirty days from the receipt of written notice from the supplier of its intent to terminate on the ground of such transfer, to reverse the transfer of the wholesaler's business;
(e) A wholesaler intentionally has made a transfer of his or her business, other than a transfer to a designated member, although the wholesaler has prior to the transfer received from the supplier a timely notice of disapproval of the transfer in accordance with sections 53-201 to 53-223; or
(f) The wholesaler intentionally ceases or ceases for a period of more than thirty-one days to carry on business with respect to any of the supplier's brand or brands previously serviced by a wholesaler in its sales territory designated by the supplier unless such cessation is due to a force beyond the control of the wholesaler or to a labor dispute and the wholesaler has made good faith efforts to overcome such events. This subdivision shall affect only that brand or brands with respect to which the wholesaler ceased to carry on business.
(7) Notwithstanding subsections (1), (3), (5), and (6) of this section, a supplier may cancel, terminate, not renew, or discontinue an agreement upon not less than thirty days' written notice if the supplier discontinues production or discontinues distribution in this state of all the brands sold by the supplier to the wholesaler. Nothing in this section shall prohibit a supplier from (a) upon not less than thirty days' written notice, discontinuing the distribution of any particular brand or package of beer or (b) conducting test marketing of a new brand of beer or of a brand of beer which is not currently being sold in this state if the supplier has notified the Nebraska Liquor Control Commission in writing of its plans to test market. The notice to the commission shall describe the market area in which the test will be conducted, the name or names of the wholesaler or wholesalers who will be selling the beer, the name or names of the brand of beer being tested, and the period of time, not to exceed eighteen months, during which the testing will take place.
(8) Each wholesaler who sells beer to a retailer in this state shall service for the purpose of quality control all the beer it sells to that retailer. Each wholesaler shall, to the extent permitted by the Nebraska Liquor Control Act and the rules and regulations adopted and promulgated pursuant to such act:
(a) Rotate the beer it sold to a retailer no less frequently than may be specified from time to time by the brand owner so that beer produced first will be sold first;
(b) Clean and maintain tap equipment and provide related services as may be specified from time to time by the brand owner;
(c) Remove and replace with the same kind of beer any beer it sold to a retailer which has not been resold to a consumer within the time limits specified by the brand owner; and
(d) Provide whatever additional quality control services and comply with whatever additional quality control requirements are specified in writing from time to time by the brand owner, subject to the conditions that those services and requirements are reasonable and are reasonably related to promotion of quality control and that the wholesaler has received written notice of the services to be provided and the requirements to be satisfied and has been granted a reasonable time within which to comply.
(9) Except in the event of a temporary service interruption, a wholesaler shall not sell beer (a) to a retailer who does not have a location within the wholesaler's sales territory at which the retailer is entitled to resell beer to consumers or who the wholesaler knows or reasonably should know does not have a location within the wholesaler's sales territory at which the retailer is entitled to resell beer or (b) to any person who the wholesaler has reason to believe will sell or supply all or part of such beer to any retailer who does not have a location within the wholesaler's sales territory at which the retailer is entitled to resell beer. During a period of temporary service interruption impacting a particular wholesaler's sales territory, the wholesaler who normally services the sales territory shall file with the Nebraska Liquor Control Commission and serve on his or her suppliers a written notice stating that a temporary service interruption has occurred and indicating the anticipated duration of the temporary service interruption. After receiving such notice the supplier may designate another wholesaler or wholesalers to service the sales territory during the period of temporary service interruption. After the temporary service interruption, the wholesaler who normally services the sales territory shall file with the commission and serve on each wholesaler providing temporary service and each supplier a written notice stating that the temporary service interruption has ended. Each wholesaler providing temporary service shall cease servicing the sales territory after receiving such notice.
Source
Cross References
Structure Nebraska Revised Statutes
53-101.01 - Statement of policy.
53-101.02 - Farm wineries; legislative intent.
53-101.04 - Transferred to section 53-148.01.
53-101.05 - Act to be liberally construed.
53-102 - Transferred to section 53-168.06.
53-103 - Definitions, where found.
53-103.02 - Alcoholic liquor, defined.
53-103.08 - Cigar shop, defined.
53-103.10 - Commission, defined.
53-103.12 - Craft brewery, defined.
53-103.13 - Farm winery, defined.
53-103.14 - Franchise or agreement, defined.
53-103.15 - Generic label, defined.
53-103.17 - Local governing body, defined.
53-103.19 - Manufacture, defined.
53-103.20 - Manufacturer, defined.
53-103.21 - Microbrewery, defined.
53-103.22 - Microdistillery, defined.
53-103.24 - Near beer, defined.
53-103.25 - Nonbeverage user, defined.
53-103.26 - Nonprofit corporation, defined.
53-103.27 - Original package, defined.
53-103.29 - Private label, defined.
53-103.30 - Restaurant, defined.
53-103.31 - Retailer, defined.
53-103.34 - Sampling, defined.
53-103.36 - Sell at retail and sale at retail, defined.
53-103.37 - Shipping license, defined.
53-103.40 - Territory or sales territory, defined.
53-103.41 - Wholesaler, defined.
53-103.43 - Flavored malt beverage, defined.
53-103.44 - Hard cider, defined.
53-103.45 - Pedal-pub vehicle, defined.
53-103.46 - Powdered alcohol, defined.
53-103.47 - Bottle club, defined.
53-103.48 - Farmers market, defined.
53-103.49 - Ready-to-drink cocktail, defined.
53-105 - Nebraska Liquor Control Commission; creation; members; appointment; qualifications.
53-106 - Commission; members; term; removal; not to hold other office.
53-107 - Commission; quorum; executive director; duties.
53-108 - Employees; appointment.
53-109 - Commissioners and employees; bonds or insurance.
53-111 - Gifts and gratuities forbidden; violation; penalty.
53-112 - Commissioners and executive director; compensation; expenses.
53-113 - Commissioners and employees; expenses and mileage.
53-114 - Meetings; office; branch offices; seal; certified copies of records as evidence.
53-115 - Assistant attorney general assigned to commission; compensation; payment.
53-116 - Power to regulate and control alcoholic liquor.
53-116.02 - Licensee; violations; forfeiture or revocation of license.
53-117 - Powers, functions, and duties.
53-117.01 - Subpoenas; issuance; witnesses; documents.
53-117.02 - Disobedience to subpoena; refusal to testify; proceedings for contempt.
53-117.03 - Employee and management training; commission; powers and duties; fees; certification.
53-117.05 - Rules and regulations; statutes; commission; provide copies; fee authorized.
53-117.07 - Proceedings to suspend, cancel, or revoke licenses before commission.
53-117.08 - License; suspend, cancel, or revoke; hearing; conviction; court; duty.
53-118 - Rules and regulations.
53-119.01 - Fire safety inspection; fee.
53-120 - Ready-to-drink cocktails; production and sale; rules and regulations.
53-121 - License; delivery; method.
53-122 - Sale of liquor by drink; license issuance authorized; exception.
53-123.02 - Alcoholic liquor wholesale license, except beer; rights of licensee; sampling.
53-123.03 - Beer wholesale license; rights of licensee; designated territory.
53-123.05 - Railroad or airline license; rights of licensee.
53-123.06 - Boat license; rights of licensee.
53-123.08 - Bottle club license; rights of licensee.
53-123.09 - Beer wholesaler; delivery outside territory; unlawful; penalty.
53-123.10 - Farm winery license; when issued.
53-123.13 - Farm winery; waiver of requirement; when; conditions.
53-123.14 - Craft brewery license; rights of licensee; self-distribution; conditions.
53-123.16 - Microdistillery license; rights of licensee.
53-123.18 - Special party bus license.
53-124 - Licenses; types; classification; fees; where paid; license year.
53-124.01 - Fees for annual licenses.
53-124.02 - Holder of license under prior law; how treated.
53-124.11 - Special designated license; issuance; procedure; fee.
53-124.12 - Annual catering license; issuance; procedure; fee; occupation tax.
53-124.15 - Community college culinary education program; catering license.
53-125 - Classes of persons to whom no license issued.
53-126 - License to corporation; conditions.
53-128 - Transferred to section 53-116.02.
53-130.01 - Beer; manufacturers and shippers; file notice; contents.
53-132 - Retail, bottle club, craft brewery, or microdistillery license; commission; duties.
53-134.02 - Local governing bodies; authority under act.
53-135 - Retail or bottle club licenses; automatic renewal; conditions.
53-135.01 - Retail licenses; bottle club licenses; renewal; notice.
53-135.02 - Licenses; renewal; no vested right.
53-136 - Cigar shops; legislative findings; legislative intent.
53-137 - Cigar shop license; prohibited acts; sign required; waiver signed by employee; form.
53-138 - Pedal-pub vehicle license; activities authorized; licensee; duties.
53-138.01 - Licenses; disposition of fees.
53-138.03 - Nonprofit corporations; license; required.
53-139 - Retail licenses to restaurants and clubs; conditions.
53-140 - Transferred to section 53-117.07.
53-142 - Transferred to section 53-131.01.
53-145 - Transferred to section 53-160.02.
53-146 - Transferred to section 53-116.01.
53-147 - Transferred to section 53-134.03.
53-148.01 - Retail or bottle club licensee; warning sign; commission; duties.
53-150 - Transferred to section 53-135.02.
53-157 - Transferred to section 53-164.02.
53-159 - Transferred to section 53-130.01.
53-160 - Tax on manufacturer and wholesaler; amount; exemption; duties of commission.
53-160.02 - Near beer; regulation.
53-160.03 - Beer-related crop; tax credit; calculation; application; contents; approval; notice.
53-160.08 - Transferred to section 53-178.01.
53-161 - Beer; credit for tax paid; when allowed.
53-162 - Alcoholic liquor shipped from another state; tax imposed.
53-163 - Commission; rounding of amounts on returns or reports; authorized.
53-164.02 - Evasion of liquor tax; acts forbidden; violations; penalty.
53-167.01 - Legislative findings.
53-167.02 - Keg sales; requirements; keg identification number; violation; penalty.
53-167.03 - Keg identification number; prohibited acts; violation; penalty; deposit.
53-168.05 - Violations; procedure.
53-168.06 - General prohibition; exceptions.
53-169.01 - Manufacturer; interest in licensed wholesaler; prohibitions; exception.
53-172 - Original packages; labels; seals; requirements.
53-173 - Powdered alcohol; prohibited acts; penalties; effect on license.
53-175 - Liquor; acquisition from other than licensed dealer; when unlawful.
53-177 - Sale at retail; bottle club license; restrictions as to locality.
53-178 - Sale at retail; forbidden in dwelling or lodging house; exceptions.
53-178.01 - Licensee; sale to person within motor vehicle; prohibited; exceptions.
53-180 - Prohibited acts relating to minors and incompetents.
53-180.01 - Minor misrepresenting age; unlawful.
53-180.02 - Minor; prohibited acts; exception; governing bodies; powers.
53-180.03 - Minor; sale or gift to; misrepresenting age; parent or guardian; duties.
53-180.04 - Minors; warning notice; posting.
53-180.06 - Documentary proof of age; separate book; record; contents.
53-180.07 - Minors; licensee charged with sale; defenses.
53-183 - Sale on credit or for goods or services forbidden; exceptions.
53-184 - Sale only in original package; refilling forbidden; exception.
53-185 - Contract to sell for only one manufacturer or wholesaler; void.
53-186 - Consumption of liquor on public property; forbidden; exceptions; license authorized.
53-187 - Nonbeverage licensee forbidden to give or sell alcoholic liquor; violation; penalty.
53-190 - Premises violating law declared common nuisances.
53-192 - Transportation of liquor into state forbidden; when.
53-192.01 - Wholesale licensee; purchases and imports; restrictions.
53-194.03 - Transportation of liquor into state; forbidden; when; penalty.
53-194.04 - Sale of confections or candy; license requirements; label.
53-197 - Violations; peace officer; duties; neglect of duty; penalty.
53-198 - Places operated in violation of act; declared common nuisances; violations; penalty.
53-199 - Nuisance; abatement; procedure; owner or lessee may give bond.
53-1,100 - Violations; general penalties.
53-1,101 - Owner of premises or agent knowing of violations; penalty.
53-1,102 - Violations by agent or employee of licensee; deemed act of licensee, when.
53-1,103 - False branding; penalty.
53-1,105 - Sufficiency of charge of violation; sufficiency of proof.
53-1,107 - Complaint, indictment, or information; contents; sufficiency.
53-1,108 - Search warrants issued on complaint; form.
53-1,109 - Search warrants; contents; directed to peace officer.
53-1,114 - Transferred to section 53-134.04.
53-1,115 - Proceedings before commission; service upon parties; rehearings; costs.
53-1,118 - Transferred to section 53-101.05.
53-1,120 - Alcohol-related offenses; law, ordinance, resolution, or rule; effect.
53-1,122 - Compliance checks; participation by minors; when.
53-202 - Definitions, where found.
53-203 - Advertising, defined.
53-205 - Ancillary business, defined.
53-206 - Control of a wholesaler's business, defined.
53-207 - Designated member, defined.
53-209 - Reasonable qualifications, defined.
53-210 - Retaliatory action, defined.
53-211 - Sales territory, defined.
53-212 - Substantial stockholder, substantial partner, and substantial member, defined.
53-214 - Transfer of the wholesaler's business, defined.
53-216 - Supplier; prohibited acts.
53-217 - Wholesaler; prohibited acts.
53-219 - Wholesaler's business; transfer; restrictions.
53-220 - Supplier; violations; compensation to wholesaler.
53-221 - Wholesaler; waiver of rights prohibited; dispute settlements.
53-222 - Applicability of sections; transfer of business; effect on agreements.
53-223 - Civil actions authorized; damages; jurisdiction.
53-301 - Nebraska Grape and Winery Board; created.
53-302 - Board; officers; terms; expenses.
53-303 - Board; powers and duties.
53-305 - Board; annual report.
53-404 - Cause of action authorized.
53-406 - Limitation on cause of action.
53-408 - Statute of limitation.
53-501 - Nebraska Craft Brewery Board; created; members; qualifications; vacancy.
53-502 - Nebraska Craft Brewery Board; meetings; members; terms; expenses; removal; procedure.
53-503 - Nebraska Craft Brewery Board; powers and duties.
53-505 - Nebraska Craft Brewery Board; annual report; contents; fee.