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Standard Penalty Chart
Chapter 34. SCHEDULE OF SANCTIONS AND PENALTIES
§34.1. General Provisions.
(a) This
rule relates to §§11.61, 11.64, 11.641 and 106.13 of the Alcoholic
Beverage Code.
(b) Agents,
compliance officers or other specifically designated commission personnel
have authority to settle a complaint issued by the commission against a
person for a violation of the Texas Alcoholic Beverage Code (Code), prior
to filing a contested case under Government Code, Chapter 2001, Subchapter
C (Administrative Procedure Act).
(c) A
settlement authorized by this chapter must reflect the number of days a
permit will be suspended or the amount of civil penalty authorized per day
in lieu of suspension and shall conform to the other provisions of this
chapter.
(d) A written warning may be
issued for any violation if it is determined by designated commission personnel
to be an effective deterrent from further violations of the Code.
(1) A
written warning may be used as an aggravating circumstance for purposes
of determining the appropriate sanction under §34.2.
(2) A
written warning is subject to the rights and procedures of a contested case
under the Administrative Procedure Act.
(3) A
written warning is an administrative notice issued by a representative of
the commission to the permit or license holder documenting that a violation
of the TABC code or rules has occurred.
(e) Any
case alleging a sale to a minor or intoxicated person in violation of Alcoholic
Beverage Code §§11.61(b)(14), 61.71(a)(6) or 101.63 in which the
unlawful sale or service directly or indirectly caused death or serious
bodily injury shall be referred directly to the Legal Services Division
by district or regional personnel without an offer of settlement or compromise
provided to the permittee/licensee. For purposes of this section, “serious
bodily injury” means as defined in §1.07(a)(46) of the Texas
Penal Code.
(f) Each suspension
of a permit or license shall run for consecutive days. A person assessed
a suspension by the commission may be provided with an opportunity to pay
a civil penalty in lieu of a suspension as provided by §11.64 of the
Code. The commission may, in its discretion, allow a licensee/permittee
to divide an imposed sanction between civil penalty and suspension.
(g) A
subsequent violation of the Code or rule will result in a sanction in the
next higher violation level if the subsequent violation:
(1) is
for a health, safety and welfare violation and occurs within 36 months of
the prior violation, or
(2) is
for a violation listed in the major regulatory violation category within
24 months of the prior violation, and
(3) the
person has been given written notice of the prior violation, or
(4) the
subsequent violation is issued during an undercover operation
(h) The
list of violations in §34.2 is not intended to be an exhaustive list
of possible violations of the Code or rules of the commission. A sanction
for a violation of the Code or rules that is not listed in §34.2 must
be approved by either the assistant administrator for field operations or
a division director prior to entering into a settlement.
(i) A
person authorized to enter into a settlement under this section is also
authorized to recommend a deviation from sanctions in §34.2 when aggravating
or mitigating circumstances are found to exist.
(1) A
recommendation to deviate from sanctions in §34.2 must be made in writing.
(2) The
administrator or his designee must approve a recommendation to deviate from §34.2
before the settlement may be offered.
(j) This
section does not apply to a contested case brought under Chapters C and
D of the Administrative Procedure Act, or a complaint or violation referred
to the legal division of the commission for resolution.
§34.2. Schedule of Sanctions and Penalties for Health, Safety and Welfare Violations.
An act or failure to act which results in a violation of the code or rules that represents a threat to the public health, safety, or welfare will be assessed sanctions and penalties as follows:
| DESCRIPTION | 1st Violation | 2nd Violation | 3rd Violation |
|---|---|---|---|
| Minor Related Offenses Employing a minor to sell, serve, prepare or otherwise handle alcoholic beverages in violation of §106.09 or §61.71(a)(12), Alcoholic Beverage Code. Permit a minor to possess or consume an alcoholic beverage in violation of §106.13, Alcoholic Beverage Code. Sale of an alcoholic beverage to a minor in violation of §106.03, Alcoholic Beverage Code. |
5-7 days $300 per day 3-5 days $300 per day 8-12 days $300 per day |
10-14 days $300 per day 6-10 days $300 per day 16-24 days $300 per day |
30-Cancel $300 per day 18-Cancel $300 per day 48-Cancel $300 per day |
| Conducting business in a manner as to allow a simple breach of the peace with no serious bodily injury or deadly weapon involved (as defined in the Texas Penal Code) in violation of §§22.12 and 28.11, Alcoholic Beverage Code. | 3-5 days $300 per day |
6-10 days $300 per day |
18-Cancel $300 per day |
| Conducting business in a manner as to allow an aggravated breach of the peace with a serious bodily injury, death or involving a deadly weapon (as defined in the Texas Penal Code) in violation of §§22.12, 28.11, 69.13 and 71.09, Alcoholic Beverage Code. | 25-35 days $300 per day |
Cancel | Cancel |
| Failure to report a breach of the peace in violation of Alcoholic Beverage Code §§11.61(b)(21), 61.71(a)(31). | 2-5 days $300 per day |
4-10 days $300 per day |
12-Cancel $300 per day |
| Possession of, sale or delivery of, or permitting the sale or delivery of narcotics by a licensee or permittee or possession of any equipment used or designed for the administering of a narcotic in violation of §104.01, Alcoholic Beverage Code, or Title 16, §35.41(27), Texas Administrative Code. | 25-35 days $300 per day |
Cancel | Cancel |
| The sale or service of an alcoholic beverage to an intoxicated person in violation of §§11.61(b)(14), 61.71(a)(6) or 101.63, Alcoholic Beverage Code. | 8-12 days $300 per day |
16-24 days $300 per day |
Cancel |
| The license or permit holder or any employee being intoxicated on a licensed premise in violation of §11.61(b)(13) or §104.01, Alcoholic Beverage Code. | 17-25 days $300 per day |
34-50 days $300 per day |
Cancel |
| Permitting public lewdness, sexual contact or obscene acts on a licensed premises in violation of §61.71(a)(11) or §104.01, Alcoholic Beverage Code and commission rule, §35.41(1) or the exposure of a person or permitting a person to expose his person in violation of §104.01(2), Alcoholic Beverage Code. | 5-7 days $300 per day |
10-14 days $300 per day |
Cancel |
| Creating excessive noise or having unsanitary conditions at a licensed premises in violation of §101.62 or §11.61(b)(9), Alcoholic Beverage Code. | 3-5 days $300 per day |
6-10 days $300 per day |
18-30 days $300 per day |
| Sell, serve or deliver alcoholic beverages during prohibited hours in violation of §105.01, et seq, Alcoholic Beverage Code. Consumption or permitted consumption of an alcoholic beverage during prohibited hours on a licensed premises in violation of §§11.61(b)(22), 61.71(a)(18) or 105.06, Alcoholic Beverage Code. | 5-7 days $300 per day |
10-14 days $300 per day |
Cancel |
| Rudely displaying or permitting a person to rudely display a weapon in a retail establishment in violation of §104.01(3), Alcoholic Beverage Code. | 5-7 days $300 per day |
10-14 days $300 per day |
30-Cancel $300 per day |
| The place and manner of operation of an
establishment is such that it constitutes a violation of §§11.46
(a)(8), 11.61(b)(7), 61.42(a)(3) or 61.71(a)(17), Alcoholic Beverage Code
by committing the below listed violations. Requires detail on
offenses. Examples (not limited to the following offenses): |
|||
| Possession of any gambling paraphernalia or device; | 5-7/$300 | 10-14/$300 | Cancel |
| Gambling on a licensed premises; | 8-12/$300 | 16-24/$300 | Cancel |
| Keeping a gambling place; | 13-18/$300 | 26-36/$300 | Cancel |
| Prostitution; | 5-7/$300 | 10-14/$300 | Cancel |
| Promotionof prostitution; | 13-18/$300 | 26-36/$300 | Cancel |
| Prohibited Activities by Persons Younger Than 18 (See AB Code 106.15, Penal Code 43.05, Penal Code 43.25 or Penal Code 43.251); | Cancel | Cancel | Cancel |
| Obscenity. | 8-12/$300 | 16-24/$300 | Cancel |
| Violation of city codes (relating to health, safety and welfare). | 3-5 days $300 per day |
6-10 days $300 per day |
18-Cancel $300 per day |
§34.3. Schedule of Sanctions and Penalties for Major Regulatory Violations.
An act or failure to act which results in a violation of a major regulatory
provision of the code or rules will be assessed sanctions and penalties as
follows:
| DESCRIPTION | 1st Violation | 2nd Violation | 3rd Violation |
|---|---|---|---|
| Refusing to allow an inspection of a licensed premises or interfering with an inspection of a licensed premises in violation of §§32.17(a)(2), 61.71(a)(14), 61.74(a)(7) or 101.04, Alcoholic Beverage Code. | 8-13 days $300 per day |
16-26 days $300 per day |
Cancel |
| Operating an establishment as an illegal open saloon in violation of §32.17(a)(1) or §32.01(2), Alcoholic Beverage Code. | 5-7 days $300 per day |
10-14 days $300 per day |
Cancel |
| Selling wine over 17% alcohol content during prohibited hours in violation of §24.07, Alcoholic Beverage Code. | 3-5 days $300 per day |
6-10 days $300 per day |
18-30 days $300 per day |
| Sale of alcoholic beverages while serving a suspension in violation of §§11.68, 61.71(a)(22) or 61.84, Alcoholic Beverage Code. | Original suspension plus 8-13 days $300 per day |
Original suspension plus 16-26 days $300 per day |
Cancel |
| Subterfuge – Permitting another person to use a license or permit other than the one it is issued to in violation of §11.05 and §109.53, Alcoholic Beverage Code. | Cancel | ||
| Possession of distilled spirits without local distributor stamps on the container in violation of §28.15 or §32.20, Alcoholic Beverage Code. | 6-8 days $300 per day |
12-16 days $300 per day |
Cancel |
| Possession of an empty distilled spirits container with the local distributor stamp not mutilated in violation of agency rule §41.72. | 3-5 days $300 per day |
6-10 days $300 per day |
Cancel |
| Possession of any uninvoiced alcoholic beverages in violation of §28.06 and §32.08, Alcoholic Beverage Code and agency rule §41.50. | 8-13 days $300 per day |
16-26 days $300 per day |
Cancel |
| Knowingly possess uninvoiced alcoholic beverages in violation of §28.06, Alcoholic Beverage Code and agency rule §41.50 or refilling distilled spirits bottles in violation of §28.08, Alcoholic Beverage Code. | Cancel | ||
| Sale of any unauthorized alcoholic beverage in violation of §11.01, Alcoholic Beverage Code. | 8-13 days $300 per day |
16-26 days $300 per day |
Cancel |
| Possession of any unauthorized alcoholic beverage by a licensee or permittee or his employee in violation of §§69.12 or 61.71(a)(9), Alcoholic Beverage Code. | 3-5 days $300 per day |
6-10 days $300 per day |
Cancel |
| Consumption of or permitting consumption of an alcoholic beverage on the premises of any off-premise license or permit in violation of §§22.10, 22.11, 26.01 or 71.01, Alcoholic Beverage Code. | 3-5 days $300 per day |
6-10 days $300 per day |
Cancel |
| Permitting an open container on the premises of any off-premise license or permit in violation of §§71.01 or 24.09, Alcoholic Beverage Code. | 3-5 days $300 per day |
6-10 days $300 per day |
18-30 days $300 per day |
| Purchase of an alcoholic beverage from an unauthorized source in violation of §§61.71(a)(19), 61.71(a)(20), 69.09 or 71.05, Alcoholic Beverage Code. | 6-8 days $300 per day |
12-16 days $300 per day |
Cancel |
| Sale of an alcoholic beverage by a retailer for the purpose of resale in violation of §71.05, Alcoholic Beverage Code. | 8-13 days $300 per day |
16-26 days $300 per day |
Cancel |
| Purchasing alcoholic beverages while on the "delinquent list" in violation of §102.32(d), Alcoholic Beverage Code. | 5-7 days $300 per day |
10-14 days $300 per day |
Cancel |
| Selling an alcoholic beverage away from a licensed premises. §61.06 | 3-5 days $300 per day |
6-10 days $300 per day |
18-30 days $300 per day |
| Storage of alcoholic beverages off a licensed premises in violation of §69.10, Alcoholic Beverage Code. | 3-5 days $300 per day |
6-10 days $300 per day |
18-30 days $300 per day |
| Making false or misleading statements in original or renewal applications or making false or misleading statements in documents submitted with or attached to applications for licenses or permits in violation of §§11.46(4), 61.71(a)(4) or 61.74(a)(11), Alcoholic Beverage Code. | Cancel | ||
| Sale or delivery of unauthorized alcoholic beverages to a non-licensed business in violation of manufacturing and wholesaler sections of the Alcoholic Beverage Code. §§11.01, 19.01, 61.01 or 62.01 | 6-8 days $300 per day |
12-16 days $300 per day |
Cancel |
| Sale to a permittee who is on the delinquent
list, failure to timely collect credit payments, or failure to report
credit law violations; Failure to notify the commission of a delinquent account in violation of §102.32, Alcoholic Beverage Code; Failure to report cash law violations or failure to sell beer for cash in violation of §102.31, Alcoholic Beverage Code. |
3-5 days $300 per day |
6-10 days $300 per day |
18-30 days $300 per day |
| Improper record keeping in violation of agency rules §§41.49, 41.50, 41.51, 41.52 and §§32.03, 32.06, Alcoholic Beverage Code, including invoices, membership records, pool and replacement accounts. | 2-4 days $300 per day |
4-8 days $300 per day |
12-24 days $300 per day |
| Knowingly filed false report, application, form, or record. §§11.61, 61.71, 62.05, 64.04, or 203.09 | Cancel | ||
| Knowingly failed to keep record or file return in manner required. §§61.71, 61.74, 62.05, 64.04, 203.09, or 206.01 | 6-12 days $300 per day |
12-24 days $300 per day |
Cancel |
| Retail cash/credit laws violation of cash or credit laws by retail licensee or permittee in violation of §§61.73, 102.31 or 102.32. | 2-5 days $300 per day |
4-10 days $300 per day |
12-30 days $300 per day |
| Failed to present program curriculum as approved. §50.4(g). | $450-$600 | $900-$1,200 | Cancel |
| Program taught in ineffective manner. §50.4. | $450-$600 | $900-$1,200 | Cancel |
| Failed to use certified trainer. §50.6(a). | $2,250-$3,000 | $4,500-$6,000 | Cancel |
| Had more than 50 trainees in a session. §50.4(e). | $450-$600 | $900-$1,200 | Cancel |
| Failure to schedule sessions or cancel sessions in a timely manner. §50.4(a). | $450-$600 | $900-$1,200 | $2,700-$3,600 |
| Failure to properly test. §50.4(j)-(n). | $1,500-$2,250 | $3,000-$4,450 | Cancel |
| Certifying a trainee who had not successfully completed a full session and/or passed the final test. §50.5(b)(2). | $450-$600 | $900-$1,200 | $2,700-$3,600 |
| Licensee/Permittee programs certifying non-employees. §50.4(d). | $450-$600 | $900-$1,200 | $2,700-$3,600 |
| Failed to distribute certificates to trainees. §50.4(r). | $450-$600 | $900-$1,200 | $2,700-$3,600 |
| Trainer taught in a language that was not authorized. §50.6(a). | $450-$600 | $900-$1,200 | $2,700-$3,600 |
| Violation of requirements for school/program approval. §50.3(a)-(h). | Cancel | ||
| Violated a provision of Section 50.5(b) (Program). §50.5(b). | Cancel | ||
| Violated a provision of Section 50.7 (Trainer). §50.7. | Cancel | ||
| Make false or misleading statements, reports, or representations to the Commission. §50.5(b)(2). | $1,500-$2,250 | $3,000-$4,450 | Cancel |
| Failure to timely file or properly prepare the report of seller training. §50.5(b)(4). | $750-$1,050 | $1,500-$2,100 | Cancel |
| Failure to properly prepare and issue certificates. §50.4(r). | $450-$600 | $900-$1,200 | Cancel |
Note: New Chapter Adopted: July 25, 2008; Effective Date: August 21, 2008