C.S.S.B. 1273 78(R)    BILL ANALYSIS
      
C.S.S.B. 1273
By: Armbrister
Licensing & Administrative Procedures
Committee Report (Substituted)


BACKGROUND AND PURPOSE 

Currently, Texas law allows a person holding a Texas Alcoholic Beverage
Commission (TABC) license (licensee) or permit (permittee) to pay a civil
penalty rather than have the license or permit suspended. Current law also
requires TABC to consider the economic impact a suspension would have on a
licensee or permittee when assessing civil penalties. Currently, a
licensee or permittee that has committed a violation could be charged a
higher fine than a permittee that has committed the same violation and has
a lower volume of sales. C.S.S.B. 1273 deletes the requirement that TABC
consider a suspension's economic impact on the permittee or licensee when
determining a civil penalty and includes the criteria that should be
considered. This bill also deletes expired text referring to the
confiscated liquor fund. 


RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any
additional rulemaking authority to a state officer, department, agency, or
institution. 

ANALYSIS

Amends Section 11.61, Alcoholic Beverage Code, by adding Subsections (g)
and (h) to read as follows: 
Sec. 11.61.  (g) The length of a suspension must be appropriate for the
nature and seriousness of the violation. In determining the length of a
suspension, the commission or administrator shall consider: (1) the type
of license or permit held; (2) the type of violation; (3) any aggravating
or ameliorating circumstances concerning the violation, including those
enumerated in Section 11.64(c); and (4) the permittee's or licensee's
previous violations. 
(h) The length of suspension may not be based on: (1) the volume of
alcoholic beverages sold; (2) the receipts of the business; (3) the taxes
paid; or (4) the financial condition of the permittee or licensee. 

Amends Section 11.64, Alcoholic Beverage Code, as follows: 
Sec. 11.64. ALTERNATIVES TO SUSPENSION, CANCELLATION. 
(a) Deletes text referring to considering a suspension's economic impact
on the permittee or licensee. Prohibits a civil penalty from being imposed
on the basis of criminal prosecution in which the defendant was found not
guilty, the criminal charges were dismissed, or there has not been final
adjudication. Requires the Texas Alcoholic Beverage Commission (TABC) or
administrator to determine the amount of the civil penalty based on
certain criteria, but prohibits determination based on certain financial
criteria. Requires the amount of the civil penalty to be appropriate for
the nature and seriousness of the violation.  
(b) Deletes a reference to a retail dealer's off-premise licensee and a
reference specifying Subsection (c) as being of this section.  
(c) Deletes the specification that Subsection (b), to which this
subsection refers, is of this section.  
(d) Requires fees and civil penalties received by TABC under this section
to be deposited in the general revenue fund. Deletes expired text
referring to the confiscated liquor fund.  

 Amends Subchatper C, Chapter 11, Alcoholic Beverage Code by adding
Section 11.641. AMOUNT OF CIVIL PENALTY. 
(a) The amount of civil penalty under Section 11.641 must be appropriate
for the nature and seriousness of the violation. In determining the amount
of civil penalty, the commission or administrator shall consider: (1) the
type of license or permit held; (2) the type of violation; (3) any
aggravating or ameliorating circumstances concerning the violation,
including those enumerated in Section 11.64(c); and (4) the permittee's or
licensee's previous violations. 
(b) The amount of civil penalty may not be based on: (1) the volume of
alcoholic beverages sold; (2) the receipts of the business; (3) the taxes
paid; or (4) the financial condition of the permittee or licensee. 
(c) A civil penalty may not be imposed on the basis of a criminal
prosecution in which the defendant was found not guilty, the criminal
charges were dismissed, or there has not been final adjudication. 

Amends Section 61.71, Alcoholic Beverage Code by adding Subsections (h)
and (i) to read as follows: 
(h) The length of a suspension must be appropriate for the nature and
seriousness of the violation. In determining the length of a suspension,
the commission or administrator shall consider: (1) the type of license or
permit held; (2) the type of violation; (3) any aggravating or
ameliorating circumstances concerning the violation, including those
enumerated in Section 11.64(c); and (4) the permittee's or licensee's
previous violations. 
(i) The length of suspension may not be based on: (1) the volume of
alcoholic beverages sold; (2) the receipts of the business; (3) the taxes
paid; or (4) the financial condition of the permittee or licensee. 

EFFECTIVE DATE
September 1, 2003


COMPARISON OF ORIGINAL TO SUBSTITUTE

The substitute adds language to the Alcoholic Beverage Code which makes
clear that the TABC shall determine the number of days suspension and the
civil penalty shall be based on the type of license or permit held, the
type of violation, and any aggravating or ameliorating circumstances
(including those already enumerated in the law), and shall not be
determined on the basis of sales volumes, sales receipts, taxes paid, or
the financial condition of the business, and that the penalties must be
appropriate for the nature and seriousness of the violation. 

In addition, a newly-added Sec. 11.64 (c) (5) specifies that the TABC may
consider, in determining punishment or penalties, action by the permittee
or licensee demonstrating good faith, including actions to rectify the
consequences of the violation and to deter future violations.