No. 27947 (Amendment): R81-1-6. Violation Schedule

DAR File No.: 27947
Filed: 06/01/2005, 09:02
Received by: NL

 

RULE ANALYSIS

Purpose of the rule or reason for the change:

The Department of Alcoholic Beverage Control (DABC) is proposing to amend Rule R81-1 by adding Section R81-1-24, which requires any licensee who has been found to have violated any provisions of the Alcoholic Beverage Control Act relating to the sale, service, or furnishing of alcoholic beverages to an intoxicated person, or to a person under the age of 21 to write and submit to the department a Responsible Alcohol Service Plan. Since the requirement for the Responsible Alcohol Service Plan will be part of a licensee's violation penalty, it is necessary to amend the violation schedule in Section R81-1-6 to accommodate for this provision. (DAR NOTE: The proposed amendment of adding Section R81-1-24 is under DAR No. 27949 in this issue.)

 

Summary of the rule or change:

This proposed amendment adds Subsection R81-1-6(3)(d)(iv) which states that, as part of a violation penalty, the Commission may require a licensee to have, and submit to the department, a written Responsible Alcohol Service Plan.

 

State statutory or constitutional authorization for this rule:

Section 32A-1-107

 

Anticipated cost or savings to:

the state budget:

None--Since the compliance staff of DABC is already established to regulate licensee operations, it is not anticipated that monitoring the compliance of this additional requirement for those licensees who have violated applicable laws will significantly affect the compliance officers' workloads. Therefore, there should be no additional cost or savings involved in implementing this rule amendment.

 

local governments:

None--This proposed rule amendment only affects the Alcoholic Beverage Control Commission's administrative adjudication of licensee violations and will not affect local governments.

 

other persons:

There may be some cost to licensees who have violated applicable alcoholic beverage laws and are required to provide a Responsible Alcohol Service Plan. These costs will be related to the preparation and implementation of the Responsible Alcohol Service Plan and will vary depending on the size of the licensee's operation and the depth of the service plan.

 

Compliance costs for affected persons:

There may be some costs to licensees who have violated applicable alcoholic beverage laws and are required to provide a Responsible Alcohol Service Plan. The costs will be related to the preparation and implementation of the plan and will vary depending on the size of the licensee's operation and the depth of the plan.

 

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

Compliance with the provisions of this proposed rule amendment will likely have a fiscal cost for licensees who have violated applicable laws as they develop a Responsible Alcohol Service Plan. However, when appropriately implemented, these service plans could reap huge savings to both the licensee and the community by addressing business and public safety issues surrounding the service of alcoholic beverages to minors and intoxicated persons. Kenneth F. Wynn, 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:

07/15/2005

 

This rule may become effective on:

07/16/2005

 

Authorized by:

Kenneth F. Wynn, 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(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. 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.

(2) General Purpose. This rule establishes a schedule setting forth a range of penalties which may be imposed by the commission for violations of the alcoholic beverage laws. It shall be used by department decision officers in processing violations, and by presiding officers in charging violations, in assisting parties in settlement negotiations, and in recommending penalties for violations. The schedule shall be used by the commission in rendering its final decisions as to appropriate penalties for violations.

(3) Application of Rule.

(a) This rule governs violations committed by all commission licensees and permittees and their officers, employees and agents except single event permittees. Violations by single event permittees and their employees and agents are processed under Section 32A-7-106.

(b) This rule does not apply to situations where a licensee or permittee fails to maintain the minimum qualifications provided by law for holding a license or permit. These might include failure to maintain a bond or insurance, or a conviction for a criminal offense that disqualifies the licensee or permittee from holding the license or permit. These are fundamental licensing and permitting requirements and failure to maintain them may result in immediate suspension or forfeiture of the license or permit. Thus, they are not processed in accordance with the Administrative Procedures Act, Title 63, Chapter 46b or Section R81-1-7. They are administered by issuance of an order to show cause requiring the licensee or permittee to provide the commission with proof of qualification to maintain their license or permit.

(c) If a licensee or permittee has not received a letter of admonishment, as defined in Sections R81-1-2 and R81-1-7(2)(b), or been found by the commission to be in violation of Utah statutes or commission rules for a period of 36 consecutive months, its violation record shall be expunged for purposes of determining future penalties sought. The expungement period shall run from the date the last offense was finally adjudicated by the commission.

(d) In addition to the penalty classifications contained in this rule, the commission may:

(i) upon revocation of a license or permit, take action to forfeit the bond of any licensee or permittee;

(ii) prohibit an officer, employee or agent of a licensee or permittee from serving, selling, distributing, manufacturing, wholesaling, warehousing, or handling alcoholic beverages in the course of employment with any commission licensee or permittee for a period determined by the commission;

(iii) order the removal of a manufacturer's, supplier's or importer's products from the department's sales list and a suspension of the department's purchase of those products for a period determined by the commission if the manufacturer, supplier, or importer directly committed the violation, or solicited, requested, commanded encouraged, or intentionally aided another to engage in the violation.

(iv) require a licensee to have a written responsible alcohol service plan as provided in R81-1-24.

(e) When the commission imposes a fine or administrative costs, it shall establish a date on which the payment is due. Failure of a licensee or permittee or its officer, employee or agent to make payment on or before that date shall result in the immediate suspension of the license or permit or the suspension of the employment of the officer, employee or agent to serve, sell, distribute, manufacture, wholesale, warehouse or handle alcoholic beverages with any licensee or permittee until payment is made. Failure of a licensee or permittee to pay a fine or administrative costs within 30 days of the initial date established by the commission shall result in the issuance of an order to show cause why the license or permit should not be revoked and the licensee's or permittee's compliance bond forfeited. The commission shall consider the order to show cause at its next regularly scheduled meeting.

(f) Violations of any local ordinance are handled by each individual local jurisdiction.

 

. . . . . . .

 

KEY: alcoholic beverages

[June 1, 2004]2005

Notice of Continuation December 26, 2001

32A-1-107

32A-1-119(5)(c)

32A-3-103(1)(a)

32A-4-103(1)(a)

32A-4-203(1)(a)

32A-5-103(3)(c)

32A-6-103(2)(a)

32A-7-103(2)(a)

32A-8-103(1)(a)

32A-9-103(1)(a)

32A-10-203(1)(a)

32A-11-103(1)(a)