Utah Admin. Code 82-3-102

Current through Bulletin 2024-23, December 1, 2024

Section R82-3-102 - Violation Schedule

(1) Authority. This rule is made pursuant to Sections 32B-2-202 and 32B-3-101 through 32B-3-207, which authorize the Commission to establish criteria and procedures for imposing sanctions against a licensee, permittee, or an officer, employee, or agent of a licensee or permittee who violates statutes and Commission rules relating to alcoholic beverages.

(2) Purpose.

(a) This rule establishes a schedule setting forth a range of penalties that may be imposed by the Commission for violations of Utah alcoholic beverage control laws.

(b) A Department decision officer shall use this rule in processing a violation.

(c) A hearing officer shall use this rule in:

(i) charging a violation;

(ii) assisting parties in settlement negotiations; and

(iii) recommending a penalty for a violation.

(d) The Commission shall use the schedule in this rule in rendering the Commission's final decisions as to the appropriate penalty for a violation.

(e) This rule does not apply to a licensee or permittee that fails to maintain the fundamental, minimum qualifications provided by law for holding a license or permit as described in Section R82-3-104.

(3) Definitions. As used in this rule:

(a) "Licensee" includes a holder of a certificate of approval.

(b) "Permit" does not include a single event permit issued under Title 32B, Chapter 9, Event Permit Act.

(4) Application.

(a) The Commission may:

(i) revoke or suspend a license or permit;

(ii) impose a fine against a licensee or permittee in addition to or in lieu of a suspension; or

(iii) impose a fine against an officer, employee, or agent of a licensee or permittee.

(b)

(i) If a licensee or permittee has not received a letter of admonishment or been found by the Commission to be in violation of the Act or Commission rules for a period of 36 consecutive months, the licensee's or permittee's violation record shall be expunged for purposes of determining future penalties sought.

(ii) The expungement period shall run from the date the last offense was finally adjudicated by the Commission.

(c) In addition to the penalty classifications in this rule, the Commission may:

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

(iv) require a licensee to have a written responsible alcohol service plan as provided in Section R82-3-107.

(d)

(i) When the Commission imposes a fine or administrative costs, the Commission shall establish a date on which the payment is due.

(ii) Failure of a licensee, permittee, or an officer, employee, or agent of a licensee or permittee to pay on or before the date established by the Commission results 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.

(iii) Failure of a licensee or permittee to pay a fine or administrative costs within 30-days after the date established by the Commission results in the issuance of an order to show cause to be heard at the Commission's next regularly scheduled meeting as to why the license or permit should not be revoked and the licensee's or permittee's compliance bond forfeited.

(5) Penalty Schedule. The Department and Commission shall follow these penalty range guidelines:

(a) Minor Violations. Violations of this category are lesser in nature and relate to basic compliance with the laws and rules. If not corrected, they are sufficient cause for action. Penalty range: Verbal warning from law enforcement or Department compliance officer to revocation of the license or permit or up to a $25,000 fine or both. A record of any letter of admonishment shall be included in the licensee's or permittee's and the officer's, employee's, or agent's violation file at the Department to establish a violation history.

(i) First occurrence involving a minor violation: The penalty shall range from a verbal warning from law enforcement or Department compliance officer, which is documented to a letter of admonishment to the licensee or permittee and the officer, employee, or agent involved. Law enforcement or Department compliance officer shall notify management of the licensee or permittee when verbal warnings are given.

(ii) Second occurrence of the same type of minor violation: A written investigation report from a law enforcement or Department compliance officer shall be forwarded to the Department. The penalty shall range from a $100 to $500 fine for the licensee or permittee, and a letter of admonishment to a $25 fine for the officer, employee, or agent.

(iii) Third occurrence of the same type of minor violation: A one to five-day suspension of the license or permit and employment of the officer, employee, or agent; or a $200 to $500 fine for the licensee or permittee and up to a $50 fine for the officer, employee, or agent; or both.

(iv) More than three occurrences of the same type of minor violation: A six-day suspension to revocation of the license or permit and a six to ten-day suspension of the employment of the officer, employee, or agent, or a $500 to $25,000 fine for the licensee or permittee and up to a $75 fine for the officer, employee, or agent, or both a suspension to revocation and fine.

(v) If more than one violation is charged during the same investigation, the penalty shall be the sum of the days of suspension or the monetary penalties for each of the charges in their respective categories, or both.

(vi) If other minor violations are discovered during the same investigation, a verbal warning shall be given for each violation on a first occurrence.

(vii) If the same type of violation is reported more than once during the same investigation, the violations shall be charged as a single occurrence.

(b) Moderate Violations. Violations of this category demonstrate a general disregard for the laws or rules. Although the acts are not viewed in the same light as in the serious and grave categories, they are still sufficient cause for action. Penalty range: Written investigation report from law enforcement or Department compliance officer shall be forwarded to the Department on the first occurrence. The penalty shall range from a letter of admonishment to revocation of the license or permit or up to a $25,000 fine and a combination of penalties.

(i) First occurrence involving a moderate violation: A written investigation report from law enforcement or Department compliance officer shall be forwarded to the Department. The penalty shall range from a letter of admonishment to a $1,000 fine for the licensee or permittee, and a letter of admonishment to a $50 fine for the officer, employee, or agent.

(ii) Second occurrence of the same type of moderate violation: A three to ten-day suspension of the license or permit and a three to ten-day suspension of the employment of the officer, employee, or agent; or a $500 to $1,000 fine for the licensee or permittee and up to a $75 fine for the officer, employee, or agent; or both.

(iii) Third occurrence of the same type of moderate violation: A 10 to 20-day suspension of the license or permit and a 10 to 20-day suspension of the employment of the officer, employee, or agent; or a $1,000 to $2,000 fine for the licensee or permittee and up to a $100 fine for the officer, employee, or agent; or both.

(iv) More than three occurrences of the same type of moderate violation: A 15-day suspension to revocation of the license or permit and a 15 to 30-day suspension of the employment of the officer, employee, or agent; or a $2,000 to $25,000 fine for the licensee or permittee and up to a $150 fine for the officer, employee, or agent; or both.

(v) If more than one violation is charged during the same investigation, the penalty shall be the sum of the days of suspension or the sum of the monetary penalties for each of the charges in their respective categories or both.

(vi) If the same type of violation is reported more than once during the same investigation, the violations shall be charged as a single occurrence.

(c) Serious Violations. Violations of this category directly or indirectly affect or potentially affect the public safety, health, and welfare, or may involve minors. Penalty range: Written investigation report from law enforcement or Department compliance officer shall be forwarded to the Department on the first occurrence. The penalty shall range from a five-day suspension to revocation of the license or permit or up to a $25,000 fine or both.

(i) First occurrence involving a serious violation: A written investigation report from law enforcement or Department compliance officer shall be forwarded to the Department. The penalty shall range from a five to 30-day suspension of the license or permit and a five to 30-day suspension of the employment of the officer, employee, or agent; or a $500 to $3,000 fine for the licensee or permittee and up to a $300 fine for the officer, employee, or agent; or both.

(ii) Second occurrence of the same type of serious violation: A 10 to 90-day suspension of the license or permit and a 10 to 90-day suspension of the employment of the officer, employee, or agent; or a $1,000 to $9,000 fine for the licensee or permittee and up to a $350 fine for the officer, employee, or agent; or both.

(iii) More than two occurrences of the same type of serious violation: A 15-day suspension to revocation of the license or permit and a 15 to 120-day suspension of the employment of the officer, employee, or agent; or a $9,000 to $25,000 fine for the licensee or permittee and up to a $700 fine for the officer, employee, or agent; or both.

(iv) If more than one violation is charged during the same investigation, the penalty shall be the sum of the days of suspension, or the sum of the monetary penalties for each of the charges in their respective categories, or both.

(v) If the same type of violation is reported more than once during the same investigation, the violations shall be charged as a single occurrence.

(d) Grave Violations. Violations of this category pose or potentially pose, a grave risk to public safety, health and welfare, or may involve lewd acts prohibited by the Act, fraud, deceit, willful concealment or misrepresentation of the facts, exclusion of competitors' products, unlawful tied house trade practices, commercial bribery, interfering or refusing to cooperate with authorized officials in the discharge of their duties, unlawful importations, or industry supplying liquor to persons other than the Department and military installations. Penalty range: Written investigation report from law enforcement or Department compliance officer shall be forwarded to the Department on the first occurrence. The penalty shall range from a ten-day suspension to revocation of the license or permit, or up to a $25,000 fine, or both.

(i) First occurrence involving a grave violation: A written investigation report from law enforcement or Department compliance officer shall be forwarded to the Department. The penalty shall range from a ten-day suspension to revocation of the license or permit and a 10 to 120-day suspension of the employment of the officer, employee, or agent; or a $1,000 to $25,000 fine to the licensee or permittee and up to a $300 fine for the officer, employee, or agent, or both.

(ii) More than one occurrence of the same type of grave violation: A 15-day suspension to revocation of the license or permit, and a 15 to 180-day suspension of the employment of the officer, employee or agent or a $3,000 to $25,000 fine for the licensee or permittee and up to a $500 fine for the officer, employee, or agent, or both suspension and fine.

(iii) If more than one violation is charged during the same investigation, the penalty shall be the sum of the days of suspension or the sum of the monetary penalties for each of the charges in their respective categories or both.

(iv) If the same type of violation is reported more than once during the same investigation, the violations shall be charged as a single occurrence.

(e) The following table summarizes the penalty ranges contained in this subsection of the rule for licensees and permittees.

TABLE 1
Violation Degree And Frequency	Warning -- Verbal\ Or Writen	Fine Amount	Suspension No. of Days	Revoke License
Minor
1st	X \ X
2nd		100 to 500
3rd		200 to 500	1 to 5
Over 3		500 to 25,000	6 to	X
Moderate
1st	\ X	To 1,000
2nd		500 to 1,000	3 to 10
3rd		1,000 to 2,000	10 to 20
Over 3		2,000 to 25,000	15 to	X
Serious
1st		500 to 3,000	5 to 30
2nd		1,000 to 9,000	10 to 90
Over 2		9,000 to 25,000	15 to	X
Grave
1st		1,000 to 25,000	10 to	X
Over 1		3,000 to 25,000	15 to	X

(f) The following table summarizes the penalty ranges contained in this subsection of the rule for officers, employees, or agents of licensees and permittees.

TABLE 2
Violation Degree and Frequency	Warning -- Verbal \ Or Written	Fine Amount	Suspension No. of Days
Minor
1st	X \ X
2nd	\ X	To 2 5
3rd		To 5 0	1 to 5
Over 3		To 7 5	6 to 10
Moderate
1st	\ X	To 5 0
2nd		To 7 5	3 to 10
3rd		To 100	10 to 20
Over 3		To 150	15 to 30
Serious
1st		To 300	5 to 30
2nd		To 350	10 to 90
Over 2		To 700	15 to 180
Grave
1st		To 300	10 to 120
Over 1		To 500	15 to 180

(6) Aggravating and Mitigating Circumstances. The Commission and hearing officers may adjust penalties within penalty ranges based upon aggravating or mitigating circumstances.

(a) Mitigating circumstances include:

(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) 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) Aggravating circumstances include:

(i) prior warnings about compliance problems;

(ii) prior violation history;

(iii) lack of written policies governing employee conduct;

(iv) multiple violations during 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.

(7) Violation Schedule. Any proposed substantive change to the violation schedule established in this rule that would establish or adjust the degree of seriousness of a violation requires rulemaking in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act.

Utah Admin. Code R82-3-102

Adopted by Utah State Bulletin Number 2020-05, effective 2/25/2020

Amended by Utah State Bulletin Number 2021-24, effective 12/1/2021

Amended by Utah State Bulletin Number 2024-01, effective 12/22/2023

Amended by Utah State Bulletin Number 2024-23, effective 11/22/2024