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SECTION 1. Subtitle A, Title
3, Sec. 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, 32.17(a)(2), 32.17(a)(3), 61.71(a)(5),
61.71(a)(6), 61.74(a)(14), 69.13, 71.09, 101.04, 101.63, 104.01(4),
106.03, 106.06, or 106.15, the sale or offer for sale of an alcoholic
beverage during hours prohibited by Chapter 105, consumption or the
permitting of consumption of an alcoholic beverage on the person's licensed
or permitted premises during hours prohibited by Chapter 105 or Section
32.17(a)(7), or an offense relating to prostitution, controlled substance or drugs,
trafficking of persons, 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. 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 as
ordered before the sixth day
after the commission or administrator and has been notified notifies
him of the amount, by the commission or administrator, of the
order, the suspension shall be imposed the
suspension.
(b) In the case of a
violation of this code by a permittee or a 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) exists.
(c) The following
circumstances justify the application of Subsection (b):
(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;
(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
general revenue fund.
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SECTION 1. Section 11.64(a),
Alcoholic Beverage Code, is amended to read as follows:
(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, 32.17(a)(2), 32.17(a)(3), 61.71(a)(5),
61.71(a)(6), 61.74(a)(14), 69.13, 71.09, 101.04, 101.63, 104.01(a)(4),
106.03, 106.06, or 106.15, the sale or offer for sale of an alcoholic
beverage during hours prohibited by Chapter 105, consumption or the
permitting of consumption of an alcoholic beverage on the person's licensed
or permitted premises during hours prohibited by Chapter 105 or Section
32.17(a)(7), or an offense relating to prostitution, trafficking of
persons, 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. 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.
No
equivalent provision.
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SECTION 2. Title 4, Sec.
104.01, Alcoholic Beverage Code, is amended by adding subsection (a) to
read as follows:
(4) solicitation of any
person to buy drinks for consumption by the retailer or any of his
employees;
(a) solicitation is
presumed if an alcoholic beverage is sold or offered for sale for an
amount in excess of the permit holder's listed, advertised, or customary
price. The presumption may be rebutted only by evidence presented under
oath.
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SECTION 2. Section 104.01,
Alcoholic Beverage Code, is amended to read as follows:
Sec. 104.01. LEWD, IMMORAL,
INDECENT CONDUCT. (a) No person authorized to sell beer at retail,
nor the person's [his] agent, servant, or employee, may
engage in or permit conduct on the premises of the retailer which is lewd,
immoral, or offensive to public decency, including, but not limited to, any
of the following acts:
(1) the use of loud and
vociferous or obscene, vulgar, or indecent language, or permitting its use;
(2) the exposure of a
person or permitting a person to expose himself or herself [his
person];
(3) rudely displaying or
permitting a person to rudely display a pistol or other deadly weapon in a
manner calculated to disturb persons in the retail establishment;
(4) solicitation of any
person to buy drinks for consumption by the retailer or any of the
retailer's [his] employees;
(5) being intoxicated on the
licensed premises;
(6) permitting lewd or
vulgar entertainment or acts;
(7) permitting solicitations
of persons for immoral or sexual purposes;
(8) failing or refusing to
comply with state or municipal health or sanitary laws or ordinances; or
(9) possession of a narcotic
or any equipment used or designed for the administering of a narcotic or
permitting a person on the licensed premises to do so.
(b) For purposes of
Subsection (a)(4), a solicitation is presumed if an alcoholic beverage is
sold or offered for sale for an amount in excess of the retailer's listed,
advertised, or customary price. The presumption may be rebutted only by
evidence presented under oath.
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