No. 32459 (Amendment): R81-1-6. Violation Schedule

DAR File No.: 32459
Filed: 03/23/2009, 04:53
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

At the request of Representative James Dunnigan, the Alcohol Beverage Control Commission unanimously agreed to amend the Alcoholic Beverage Control Commission Violation Grid to decrease the classification of permitting a patron to leave with an open container of alcohol from a "serious" offense to a "moderate" offense in full-service and limited-service restaurants. The Violation Grid is incorporated by reference as part of this rule.

Summary of the rule or change:

The Alcoholic Beverage Control Commission Violation Grid, which is incorporated in the rule by reference, will be amended as follows: In the full-service restaurant chapter page 13, item 22, the degree of penalty is amended from "serious" to "moderate". The same change is made in the limited-service restaurant chapter on page 10, item 19.

State statutory or constitutional authorization for this rule:

Section 32A-1-107

This rule or change incorporates by reference the following material:

Alcoholic Beverage Control Commission Violation Grid, 2008

Anticipated cost or savings to:

the state budget:

None--The cost to the state is in holding a violation prehearing. The cost is the same regardless of the classification of the violation.

local governments:

None--This rule amendment affects the Department of Alcoholic Beverage Control's adjudication of violations. These proceedings take place on the state level and do not affect local governments.

small businesses and persons other than businesses:

Though it is not possible to determine an exact dollar amount, this amendment may affect restaurants, including those with fewer than 50 employees, who are cited for permitting a patron to leave the premises with an open container of alcohol. The classification for this offense is being decreased from serious to moderate and a moderate offense carries a lesser fine that a serious offense.

Compliance costs for affected persons:

None--There are no compliance costs involved in this proposed amendment to the Violation Grid. The amendment merely takes into account the fact that restaurants are run differently than private clubs and taverns and, therefore, the penalties for some violations should be assessed differently.

Comments by the department head on the fiscal impact the rule may have on businesses:

Representative Dunnigan made a compelling argument for reducing the penalties for restaurants that permit a patron to leave with an open container of alcohol by pointing out how restaurants operate differently from private clubs and taverns. The only fiscal impact this proposed rule amendment may have is that restaurants may be assessed a smaller fine than prior to the amendment. Dennis R. Kellen, Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Alcoholic Beverage Control
Administration
1625 S 900 W
SALT LAKE CITY UT 84104-1630

Direct questions regarding this rule to:

Sharon Mackay at the above address, by phone at 801-977-6800, by FAX at 801-977-6889, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

05/15/2009

This rule may become effective on:

05/22/2009

Authorized by:

Dennis R. Kellen, Director

RULE TEXT

R81. Alcoholic Beverage Control, Administration.

R81-1. Scope, Definitions, and General Provisions.

R81-1-6. Violation Schedule.

(1) Authority. This rule is pursuant to Sections 32A-1-107(1)(c)(i), 32A-1-107(1)(e), 32A-1-107(4)(b), 32A-1-119(5), (6) and (7). These provisions authorize the commission to establish criteria and procedures for imposing sanctions against licensees and permittees and their officers, employees and agents who violate statutes and commission rules relating to alcoholic beverages. For purposes of this rule, holders of certificates of approval are also considered licensees. The commission may revoke or suspend the licenses or permits, and may impose a fine against a licensee or permittee in addition to or in lieu of a suspension. The commission also may impose a fine against an officer, employee or agent of a licensee or permittee. Violations are adjudicated under procedures contained in Section 32A-1-119 and disciplinary hearing Section R81-1-7.

 

. . . . . . .

 

(5) Aggravating and Mitigating Circumstances. The commission and presiding officers may adjust penalties within penalty ranges based upon aggravating or mitigating circumstances.

(a) Examples of mitigating circumstances are:

(i) no prior violation history;

(ii) good faith effort to prevent a violation;

(iii) existence of written policies governing employee conduct;

(iv) extraordinary cooperation in the violation investigation that shows the licensee or permittee and the officer, employee or agent of the licensee or permittee accepts responsibility; and

(v) there was no evidence that the investigation was based on complaints received or on observed misconduct of others, but was based solely on the investigating authority creating the opportunity for a violation.

(b) Examples of aggravating circumstances are:

(i) prior warnings about compliance problems;

(ii) prior violation history;

(iii) lack of written policies governing employee conduct;

(iv) multiple violations during the course of the investigation;

(v) efforts to conceal a violation;

(vi) intentional nature of the violation;

(vii) the violation involved more than one patron or employee;

(viii) the violation involved a minor and, if so, the age of the minor; and

(ix) whether the violation resulted in injury or death.

(6) Violation Grid. Any proposed substantive change to the violation grid that would establish or adjust the degree of seriousness of a violation shall require rulemaking in compliance with title 63G-3, the Utah Administrative Rulemaking Act. A violation grid describing each violation of the alcoholic beverage control laws, the statutory and rule reference, and the degree of seriousness of each violation is available for public inspection in the department's administrative office. A copy will be provided upon request at reproduction cost. It is entitled "Alcoholic Beverage Control Commission Violation Grid" ([2007]2008 edition) and is incorporated by reference as part of this rule.

 

KEY: alcoholic beverages

Date of Enactment or Last Substantive Amendment: 2009

Notice of Continuation: August 31, 2006

Authorizing, and Implemented or Interpreted Law: 32A-1-107; 32A-1-119(5)(c); 32A-1-702; 32-1-703; 32A-1-704; 32A-1-807; 32A-3-103(1)(a); 32A-4-103(1)(a); 32A-4-106(1)(a); 32A-4-203(1)(a); 32A-4-304(1)(a); 32A-4-307(1)(a); 32A-4-401(1)(a); 32A-5-103(1)(a); 32A-6-103(2)(a); 32A-7-103(2)(a); 32A-7-106(5); 32A-8-103(1)(a); 32A-8-503(1)(a); 32A-9-103(1)(a); 32A-10-203(1)(a); 32A-10-206(14); 32A-10-303(1)(a); 32A-10-306(5); 32A-11-103(1)(a)