S.B. No. 1273
AN ACT
relating to suspension and alternatives to suspension of alcoholic
beverage licenses and permits.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 11.61, Alcoholic Beverage Code, is
amended by adding Subsections (g) and (h) to read as follows:
(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 a 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.
SECTION 2. Section 11.64, Alcoholic Beverage Code, is
amended to read as follows:
Sec. 11.64. ALTERNATIVES TO SUSPENSION, CANCELLATION.
(a) When the commission or administrator is authorized to suspend
a permit or license under this code, the commission or
administrator shall give the permittee or licensee the opportunity
to pay a civil penalty rather than have the permit or license
suspended, unless the basis for the suspension is a violation of
Section 11.61(b)(14), 22.12, 28.11, 61.71(a)(5), 61.71(a)(6),
61.74(a)(14), 69.13, 71.09, 101.63, 106.03, 106.06, or 106.15 or an
offense relating to prostitution or gambling, in which case the
commission or administrator shall determine whether the permittee
or licensee may have the opportunity to pay a civil penalty rather
than have the permit or license suspended. The commission shall
adopt rules addressing when suspension may be imposed pursuant to
this section without the opportunity to pay a civil penalty. In
adopting rules under this subsection, the commission shall consider
the type of license or permit held, the type of violation, any
aggravating or ameliorating circumstances concerning the
violation, and any past violations of this code by the permittee or
licensee. In cases in which a civil penalty is assessed, the
commission or administrator shall determine the amount of the
penalty [and in doing so shall consider the economic impact a
suspension would have on the permittee or licensee]. The amount of
the civil penalty may not be less than $150 or more than $25,000 for
each day the permit or license was to have been suspended. If the
licensee or permittee does not pay the penalty before the sixth day
after the commission or administrator notifies him of the amount,
the commission or administrator shall impose the suspension.
(b) In the case of a violation of this code by a permittee or
a [retail dealer's off-premise] licensee, the commission or
administrator may relax any provision of the code relating to the
suspension or cancellation of the permit or license and assess a
sanction the commission or administrator finds just under the
circumstances, and the commission or administrator may reinstate
the license or permit at any time during the period of suspension on
payment by the permittee or licensee of a fee of not less than $75
nor more than $500, if the commission or administrator finds that
any of the circumstances described in Subsection (c) [of this
section] exists.
(c) The following circumstances justify the application of
Subsection (b) [of this section]:
(1) that the violation could not reasonably have been
prevented by the permittee or licensee by the exercise of due
diligence;
(2) that the permittee or licensee was entrapped;
(3) that an agent, servant, or employee of the
permittee or licensee violated this code without the knowledge of
the permittee or licensee;
(4) that the permittee or licensee did not knowingly
violate this code; [or]
(5) that the permittee or licensee has demonstrated
good faith, including the taking of actions to rectify the
consequences of the violation and to deter future violations; or
(6) that the violation was a technical one.
(d) Fees and civil penalties received by the commission
under this section shall be deposited in the [confiscated liquor
fund until the unexpended and unencumbered balance contained in the
confiscated liquor fund on September 1, 1983, and the amount
deposited in the fund from all sources on or after September 1,
1983, totals $2.4 million. Thereafter, fees and civil penalties
received by the commission under this section shall be deposited in
the] general revenue fund.
SECTION 3. Subchapter C, Chapter 11, Alcoholic Beverage
Code, is amended by adding Section 11.641 to read as follows:
Sec. 11.641. AMOUNT OF CIVIL PENALTY. (a) The amount of
the civil penalty under Section 11.64 must be appropriate for the
nature and seriousness of the violation. In determining the amount
of the 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 the 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.
SECTION 4. Section 61.71, Alcoholic Beverage Code, is
amended 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 a 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.
SECTION 5. This Act takes effect September 1, 2003.
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 1273 passed the Senate on
April 30, 2003, by a viva-voce vote; and that the Senate concurred
in House amendment on May 30, 2003, by a viva-voce vote.
______________________________
Secretary of the Senate
I hereby certify that S.B. No. 1273 passed the House, with
amendment, on May 28, 2003, by a non-record vote.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor