32A-1-119 (Repealed 07/01/11) - Disciplinary proceedings -- Procedure.
32A-1-119 (Repealed 07/01/11). Disciplinary proceedings -- Procedure.
(1) As used in Subsection (4), "final adjudication" means an adjudication for which afinal judgment or order is issued that:
(a) is not appealed, and the time to appeal the judgment has expired; or
(b) is appealed, and is affirmed, in whole or in part, on appeal.
(2) (a) Subject to Section 32A-1-119.5, the following may conduct an adjudicativeproceeding to inquire into a matter necessary and proper for the administration of this title andrules adopted under this title:
(i) the commission;
(ii) a hearing examiner appointed by the commission for the purposes provided inSubsection 32A-1-107(3);
(iii) the director; and
(iv) the department.
(b) Except as provided in this section or Section 32A-3-106, the following shall complywith the procedures and requirements of Title 63G, Chapter 4, Administrative Procedures Act, inan adjudicative proceeding:
(i) the commission;
(ii) a hearing examiner appointed by the commission;
(iii) the director; and
(iv) the department.
(c) Except where otherwise provided by law, an adjudicative proceeding before thecommission or a hearing examiner appointed by the commission shall be:
(i) video or audio recorded; and
(ii) subject to Subsection (5)(e), conducted in accordance with Title 52, Chapter 4, Openand Public Meetings Act.
(d) A person listed in Subsection (2)(a) shall conduct an adjudicative proceedingconcerning departmental personnel in accordance with Title 67, Chapter 19, Utah State PersonnelManagement Act.
(e) A hearing that is informational, fact gathering, and nonadversarial in nature shall beconducted in accordance with rules, policies, and procedures made by the commission, director,or department.
(3) (a) Subject to Section 32A-1-119.5, a disciplinary proceeding shall be conductedunder the authority of the commission, which is responsible for rendering a final decision andorder on a disciplinary matter.
(b) (i) Nothing in this section precludes the commission from appointing a necessaryofficer, including a hearing examiner, from within or without the department, to administer thedisciplinary proceeding process.
(ii) A hearing examiner appointed by the commission:
(A) may conduct a disciplinary proceeding hearing on behalf of the commission; and
(B) shall submit to the commission a report including:
(I) findings of fact determined on the basis of a preponderance of the evidence presentedat the hearing;
(II) conclusions of law; and
(III) recommendations.
(c) Nothing in this section precludes the commission, after the commission renders its
final decision and order, from having the director prepare, issue, and cause to be served on theparties the final written order on behalf of the commission.
(4) Subject to Section 32A-1-119.5:
(a) The department may initiate a disciplinary proceeding described in Subsection (4)(b)if the department receives:
(i) a report from a government agency, peace officer, examiner, or investigator allegingthat a person listed in Subsections 32A-1-105(18)(a)(i) through (vii) violated this title or the rulesof the commission;
(ii) a final adjudication of criminal liability against a person listed in Subsections32A-1-105(18)(a)(i) through (vii) based on an alleged violation of this title; or
(iii) a final adjudication of civil liability under Chapter 14a, Alcoholic BeverageLiability, against a person listed in Subsections 32A-1-105(18)(a)(i) through (vii) based on analleged violation of this title.
(b) The department may initiate a disciplinary proceeding if the department receives anitem listed in Subsection (4)(a) to determine:
(i) whether a person listed in Subsections 32A-1-105(18)(a)(i) through (vii) violated thistitle or rules of the commission; and
(ii) if a violation is found, the appropriate sanction to be imposed.
(5) (a) Unless waived by the respondent, a disciplinary proceeding shall be held:
(i) if required by law;
(ii) before revoking or suspending a permit, license, or certificate of approval issuedunder this title; or
(iii) before imposing a fine against a person listed in Subsections 32A-1-105(18)(a)(i)through (vii).
(b) Inexcusable failure of a respondent to appear at a scheduled disciplinary proceedinghearing after receiving proper notice is an admission of the charged violation.
(c) The validity of a disciplinary proceeding is not affected by the failure of a person toattend or remain in attendance.
(d) The commission or an appointed hearing examiner shall preside over a disciplinaryproceeding hearing.
(e) A disciplinary proceeding hearing may be closed only after the commission orhearing examiner makes a written finding that the public interest in an open hearing is clearlyoutweighed by factors enumerated in the closure order.
(f) (i) The commission or its hearing examiner as part of a disciplinary proceedinghearing may:
(A) administer oaths or affirmations;
(B) take evidence;
(C) take a deposition within or without this state; and
(D) require by subpoena from a place within this state:
(I) the testimony of a person at a hearing; and
(II) the production of a book, record, paper, contract, agreement, document, or otherevidence considered relevant to the inquiry.
(ii) A person subpoenaed in accordance with this Subsection (5)(f) shall testify andproduce a book, paper, document, or tangible thing as required in the subpoena.
(iii) A witness subpoenaed or called to testify or produce evidence who claims a
privilege against self-incrimination may not be compelled to testify, but the commission or thehearing examiner shall file a written report with the county attorney or district attorney in thejurisdiction where the privilege is claimed or where the witness resides setting forth thecircumstance of the claimed privilege.
(iv) (A) A person is not excused from obeying a subpoena without just cause.
(B) A district court within the judicial district in which a person alleged to be guilty ofwillful contempt of court or refusal to obey a subpoena is found or resides, upon application bythe party issuing the subpoena, may issue an order requiring the person to:
(I) appear before the issuing party; and
(II) (Aa) produce documentary evidence if so ordered; or
(Bb) give evidence regarding the matter in question.
(C) Failure to obey an order of the court may be punished by the court as contempt.
(g) (i) In a disciplinary proceeding hearing heard by a hearing examiner, the hearingexaminer shall prepare a report required by Subsection (3)(b)(ii) to the commission.
(ii) The report required by Subsection (3)(b)(ii) and this Subsection (5)(g) may notrecommend a penalty more severe than that initially sought by the department in the notice ofagency action.
(iii) A copy of the report required by Subsection (3)(b)(ii) and this Subsection (5)(g)shall be served upon the respective parties.
(iv) The respondent and the department shall be given reasonable opportunity to file awritten objection to the report required by Subsection (3)(b)(ii) and this Subsection (5)(g) beforefinal commission action.
(h) In a case heard by the commission, it shall issue its final decision and order inaccordance with Subsection (3).
(6) (a) The commission shall:
(i) render a final decision and order on a disciplinary action; and
(ii) cause its final order to be prepared in writing, issued, and served on all parties.
(b) An order of the commission is final on the date the order is issued.
(c) If the commission is satisfied that a person listed in Subsections 32A-1-105(18)(a)(i)through (vii) violated this title or the commission's rules, in accordance with Title 63G, Chapter4, Administrative Procedures Act, the commission may:
(i) suspend or revoke the permit, license, or certificate of approval;
(ii) impose a fine against a person listed in Subsections 32A-1-105(18)(a)(i) through(vii);
(iii) assess the administrative costs of a disciplinary proceeding to the permittee, thelicensee, or certificate holder; or
(iv) take a combination of actions described in Subsections (6)(c)(i) through (iii).
(d) A fine imposed in accordance with this Subsection (6) is subject to Subsections32A-1-107(1)(q) and (4).
(e) (i) If a permit or license is suspended under this Subsection (6), the permittee orlicensee shall prominently post a sign provided by the department:
(A) during the suspension; and
(B) at the entrance of the premises of the permittee or licensee.
(ii) The sign required by this Subsection (6)(e) shall:
(A) read "The Utah Alcoholic Beverage Control Commission has suspended the
alcoholic beverage license or permit of this establishment. Alcoholic beverages may not be sold,served, furnished, or consumed on these premises during the period of suspension."; and
(B) include the dates of the suspension period.
(iii) A permittee or licensee may not remove, alter, obscure, or destroy a sign required tobe posted under this Subsection (6)(e) during the suspension period.
(f) If a permit or license is revoked, the commission may order the revocation of acompliance bond posted by the permittee or licensee.
(g) A permittee or licensee whose permit or license is revoked may not reapply for apermit or license under this title for three years from the date on which the permit or license isrevoked.
(h) The commission shall transfer all costs assessed into the General Fund in accordancewith Section 32A-1-113.
(7) Subject to Section 32A-1-119.5:
(a) In addition to an action taken against a permittee, licensee, or certificate holder underthis section, the department may initiate disciplinary action against an officer, employee, or agentof a permittee, licensee, or certificate holder.
(b) If an officer, employee, or agent is found to have violated this title, the commissionmay prohibit the officer, employee, or agent from serving, selling, distributing, manufacturing,wholesaling, warehousing, or handling an alcoholic beverage in the course of acting as an officer,employee, or agent with a permittee, licensee, or certificate holder under this title for a perioddetermined by the commission.
(8) Subject to Section 32A-1-119.5:
(a) The department may initiate a disciplinary proceeding for an alleged violation of thistitle or the rules of the commission against:
(i) a manufacturer, supplier, or importer of an alcoholic beverage; or
(ii) an officer, employee, agent, or representative of a person listed in Subsection(8)(a)(i).
(b) (i) If the commission makes the finding described in Subsection (8)(b)(ii), thecommission may, in addition to other penalties prescribed by this title, order:
(A) the removal of the manufacturer's, supplier's, or importer's one or more productsfrom the department's sales list; and
(B) a suspension of the department's purchase of the one or more products described inSubsection (8)(b)(i)(A) for a period determined by the commission.
(ii) The commission may take the action described in Subsection (8)(b)(i) if:
(A) a manufacturer, supplier, or importer of liquor, wine, heavy beer, or a flavored maltbeverage, or its officer, employee, agent, or representative violates this title; and
(B) the manufacturer, supplier, or importer:
(I) directly commits the violation; or
(II) solicits, requests, commands, encourages, or intentionally aids another to engage inthe violation.
(9) Subject to Section 32A-1-119.5:
(a) The department may initiate a disciplinary proceeding against a brewer holding acertificate of approval under Section 32A-8-101 for an alleged violation of this title or the rulesof the commission.
(b) If the commission makes a finding that the brewer holding a certificate of approval
violates this title or rules of the commission, the commission may take an action against thebrewer holding a certificate of approval that the commission could take against a licenseeincluding:
(i) suspension or revocation of the certificate of approval; and
(ii) imposition of a fine.
(10) (a) An adjudicative proceeding under this title, including a disciplinary proceeding,is a civil action, notwithstanding whether at issue in the adjudicative proceeding is a violation ofstatute that can be prosecuted criminally.
(b) Unless specifically adopted in this title, a procedure or principal that is applicable to acriminal proceeding does not apply to an adjudicative proceeding permitted under this titleincluding:
(i) Title 76, Chapter 1, General Provisions;
(ii) Title 76, Chapter 2, Principles of Criminal Responsibility;
(iii) Title 76, Chapter 3, Punishments; and
(iv) Title 76, Chapter 4, Inchoate Offenses.
(c) (i) The burden of proof in an adjudicative proceeding under this title is by apreponderance of the evidence.
(ii) If the subject of an adjudicative proceeding under this title asserts an affirmativedefense, the subject has the burden of proof to establish the affirmative defense by thepreponderance of the evidence.
(d) In an adjudicative proceeding under this title, to find a violation of this title thecommission:
(i) is required to determine whether the conduct that constitutes the violation occurred;and
(ii) is not required to make a finding of knowledge or intent unless knowledge or intent isexpressly made an element of the violation by statute.
(11) (a) If a respondent requests a disciplinary proceeding hearing, the hearing held bythe commission or a hearing examiner appointed by the commission shall proceed formally inaccordance with Sections 63G-4-204 through 63G-4-209 in a case where:
(i) the alleged violation poses, or potentially poses, a grave risk to public safety, health,and welfare;
(ii) the alleged violation involves:
(A) selling, serving, or otherwise furnishing an alcoholic product to a minor;
(B) attire, conduct, or entertainment prohibited by Part 6, Attire, Conduct, andEntertainment Act;
(C) fraud, deceit, willful concealment, or misrepresentation of the facts by or on behalf ofthe respondent;
(D) interfering or refusing to cooperate with:
(I) an authorized official of the department or the state in the discharge of the official'sduties in relation to the enforcement of this title; or
(II) a peace officer in the discharge of the peace officer's duties in relation to theenforcement of this title;
(E) an unlawful trade practice under Sections 32A-12-601 through 32A-12-606;
(F) unlawful importation of an alcoholic product; or
(G) unlawful supply of liquor by a liquor industry member, as defined in Subsection
32A-12-601(2), to a person other than the department or a military installation, except to theextent permitted by this title; or
(iii) the department determines to seek in a disciplinary proceeding hearing:
(A) an administrative fine exceeding $3,000;
(B) a suspension of a license, permit, or certificate of approval of more than 10 days; or
(C) a revocation of a license, permit, or certificate of approval.
(b) If a respondent does not request a disciplinary proceeding hearing, a hearing shallproceed informally unless it is designated as a formal proceeding pursuant to rules adopted by thecommission in accordance with Subsection (11)(c).
(c) The commission shall make rules in accordance with Title 63G, Chapter 3, UtahAdministrative Rulemaking Act, to provide a procedure to implement this Subsection (11).
(12) Notwithstanding the other provisions of this title, the commission may not order adisciplinary action or fine in accordance with this section if the disciplinary action or fine isordered on the basis of a violation:
(a) of a provision in this title related to intoxication or becoming intoxicated; and
(b) if the violation is first investigated by a law enforcement officer, as defined in Section53-13-103, who has not received training regarding the requirements of this title related toresponsible alcoholic beverage sale or service.
Amended by Chapter 190, 2009 General Session
Repealed by Chapter 276, 2010 General Session
Amended by Chapter 383, 2009 General Session