TITLE 16. ECONOMIC REGULATION

PART 3. TEXAS ALCOHOLIC BEVERAGE COMMISSION

CHAPTER 37. LEGAL

SUBCHAPTER B. PENALTIES

16 TAC §37.61

The Texas Alcoholic Beverage Commission proposes amendments to §37.61, relating to Suspensions.

Generally, Alcoholic Beverage Code §11.64(a) requires the agency to allow an offender to pay a civil penalty in lieu of having a permit or license suspended. However, that same section lists certain offenses for which the agency may exercise discretion in deciding whether to allow payment of a civil penalty in lieu of suspending the permit or license.

House Bill No. 1612, 85th Regular Session of the Texas Legislature amended Alcoholic Beverage Code §11.64(a) to add any offense relating to "controlled substances or drugs" to the list of offenses for which the agency may exercise discretion regarding the civil penalty option.

Currently, rule §37.61 lists each of the Alcoholic Beverage Code violations for which Code §11.64(a) allows the agency the discretion concerning the civil penalty option. The proposed amendments would add to the list in rule §37.61 the language added by House Bill No. 1612, so that the offenses listed in the rule continue to match the offenses listed in the code.

In addition to amending the rule to reflect the recent legislative change, the commission has reviewed the section pursuant to Government Code §2001.039 and has determined that the need for the rule continues to exist but that the proposed change to the current rule is appropriate.

Martin Wilson, Assistant General Counsel, has determined that for each year of the first five years that the proposed amendments will be in effect, there will be no fiscal impact on local government attributable to the amendments. There should be no fiscal impact on state government.

The proposed amendments will have no fiscal or regulatory impact on micro-businesses and small businesses or persons regulated by the commission. There is no anticipated negative impact on local employment.

Mr. Wilson has determined that for each year of the first five years that the proposed amendments will be in effect, the public will benefit because the rule will accurately reflect the applicable provision of the Alcoholic Beverage Code.

Comments on the proposed amendments may be submitted in writing to Martin Wilson, Assistant General Counsel, Texas Alcoholic Beverage Commission, at P.O. Box 13127, Austin, Texas 78711-3127, or by facsimile transmission to (512) 206-3280, or by email to rules@tabc.texas.gov. Comments will be accepted for 30 days following publication in the Texas Register.

The staff of the commission will hold a public hearing to receive oral comments on the proposed amendments on Thursday, August 24, 2017, at 1:30 p.m. in the commission meeting room on the first floor of the commission's headquarters, which is located at 5806 Mesa Drive in Austin, Texas.

The proposed amendments are authorized by Alcoholic Beverage Code §5.31, which grants authority to prescribe rules necessary to carry out the provisions of the Code.

The proposed amendments affect Alcoholic Beverage Code §5.31, and Government Code §2001.039.

§37.61.Suspensions.

(a) This section implements Alcoholic Beverage Code §11.64(a), which requires the commission to adopt rules addressing when a suspension may be imposed without the opportunity to pay a civil penalty.

(b) The administrator may deny a licensee or permittee the option of paying a civil fine in lieu of a suspension of the license or permit if the licensee or permittee has violated one or more of the following provisions of the Alcoholic Beverage Code:

(1) §11.61(b)(14): sale to an intoxicated person by a permittee;

(2) §22.12: breach of the peace on the premises of a package store;

(3) §28.11: breach of the peace on the premises of a mixed beverage permittee;

(4) §32.17(a)(2): refuse to allow an authorized agent or representative to come onto the premises;

(5) §32.17(a)(3): refuse to furnish requested information to the commission or its agents or representatives;

(6) §32.17(a)(7): consumption or service of alcohol on the premises during prohibited hours;

(7) §61.71(a)(5): sale to a minor by a licensee;

(8) §61.71(a)(6): sale to an intoxicated person by a licensee;

(9) §61.74(a)(14): sale to a minor by a licensee;

(10) §69.13: breach of the peace on the premises of an on-premise retail beer dealer;

(11) §71.09: breach of the peace on the premises of an off-premise retail beer dealer;

(12) §101.04: refuse to allow inspection;

(13) §104.01(a)(4): solicitation of drinks;

(14) §101.63: sale to an intoxicated person;

(15) §106.03: sale to a minor;

(16) §106.06: purchase of alcohol for a minor;

(17) §106.15: engage in prohibited activity related to dancing by a person under 18;

(18) Chapter 105: sale or offer of sale of an alcoholic beverage during prohibited hours, or consumption or permitting consumption of an alcoholic beverage during prohibited hours; [or]

(19) any offense relating to gambling, prostitution or trafficking of persons; or[.]

(20) any offense relating to controlled substances or drugs.

(c) For the violations referenced in subsection (b) of this section, and after considering the circumstances required or allowed to be considered in this section, the administrator has discretion to determine whether to allow a licensee or permittee the right to pay a civil penalty in lieu of a suspension but is not required to allow such payment in lieu of suspension.

(d) In determining whether to deny a licensee or permittee the right to pay a civil penalty in lieu of a suspension, the administrator shall consider any aggravating or mitigating factual circumstances related to the violation, including but not limited to:

(1) the type of permit or license held by the violating licensee or permittee;

(2) the type of violation or violations charged;

(3) the licensee's or permittee's record of past violations, including the number, type and frequency of violations of the Alcoholic Beverage Code and of the rules of the commission; and

(4) the date the permit or license was issued.

(e) In addition to the circumstances listed in subsection (d) of this section that must be considered in determining whether to allow a licensee or permittee the right to pay a civil penalty in lieu of a suspension, the administrator may also consider other circumstances, including but not limited to:

(1) whether the sale of alcoholic beverages constitutes the primary or partial source of the licensee or permittee's business;

(2) whether the violation was caused by intentional or reckless conduct by the licensee or permittee;

(3) whether the violation caused the serious bodily injury or death of another;

(4) whether the character and nature of the licensee's or permittee's operation were reasonably calculated to avoid violations of the Alcoholic Beverage Code and rules of the commission at the time of violation; and/or

(5) whether the licensee or permittee has taken action to remediate the violation and to prevent future violations.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 25, 2017.

TRD-201702785

Martin Wilson

Assistant General Counsel

Texas Alcoholic Beverage Commission

Earliest possible date of adoption: September 10, 2017

For further information, please call: (512) 206-3489