| (a) A license or permit holder who claims that the
actions of an employee are not attributable to the license or permit
holder under Code §106.14(a) must provide to the commission,
not later than 10 days after receipt of an administrative notice of
violation, an affidavit indicating that the license or permit holder
was in compliance with the requirements of Code §106.14(a) at
the time of the violation for which the administrative notice was
issued. At a hearing in which the license or permit holder claims
the benefits of Code §106.14(a), the license or permit holder
may be required to present additional evidence to support such claim.
(b) If an employee performs an action described in
paragraphs (1) or (2) of this subsection at a time when the employee
does not possess a currently valid seller server certificate, then
the action of the employee does not meet the requirements of Code §106.14(a)(2)
and therefore shall be attributable to the license or permit holder.
(1) The employee sells, serves, dispenses or delivers
an alcoholic beverage to:
(A) a person who is not a member of a private club
on the club premises;
(B) a minor; or
(C) an intoxicated person.
(2) The employee allows consumption of an alcoholic
beverage by:
(A) a person who is not a member of a private club
on the club premises;
(B) a minor; or
(C) an intoxicated person.
(c) Proof by the commission that an employee performed
an action described in paragraph (1) or (2) of this subsection on
three or more occasions within a 12-month period shall create a rebuttable
presumption that the license or permit holder has indirectly encouraged
a violation of the law within the meaning of Code §106.14(a)(3).
The rebuttable presumption is created regardless of whether the employee
performing the action described in paragraph (1) or (2) of this subsection
on a second or subsequent occasion is the same person.
(1) An employee sold, served, dispensed or delivered
an alcoholic beverage to:
(A) a person who is not a member of a private club
on the club premises;
(B) a minor; or
(C) an intoxicated person.
(2) An employee allowed consumption of an alcoholic
beverage by:
(A) a person who is not a member of a private club
on the club premises;
(B) a minor; or
(C) an intoxicated person.
(d) For purposes of satisfying the condition precedent
set forth in subsection (c) of this section, proof shall be demonstrated
by:
(1) producing final orders issued by the commission
or a court of competent jurisdiction finding that the license or permit
holder violated Code §§2.02, 11.61(b)(14), 32.17(a)(1),
61.71(a)(6) or 106.13(a) on two past occasions; and
(2) establishing a prima facie case that an employee
of the license or permit holder violated Code §§2.02, 11.61(b)(14),
32.17(a)(1), 61.71(a)(6) or 106.13(a) on a third or subsequent occasion.
(e) For purposes of subsection (d) of this section,
all incidents offered to satisfy the condition precedent set forth
in subsection (c) of this section shall be for the same type of offense
and shall have occurred within a 12-month period as calculated from
the dates the incidents occurred.
(f) There is a rebuttable presumption that a license
or permit holder has indirectly encouraged a violation of the law
within the meaning of Code §106.14(a)(3) if the commission presents
sufficient proof that a license or permit holder fails to meet any
of the standards set forth in paragraphs (1) - (5) of this subsection.
(1) The license or permit holder requires each employee
to present a seller server certificate within 30 days of his initial
employment date.
(2) The license or permit holder requires each employee
to maintain a currently valid seller server certificate.
(3) The license or permit holder adopts written policies
and procedures that are designed to prevent, and that affirm a strong
commitment by the license or permit holder to prohibit:
(A) the sale, service, dispensation or delivery of
an alcoholic beverage to:
(i) a person who is not a member of a private club
on the club premises;
(ii) a minor; or
(iii) an intoxicated person; and
(B) the consumption of an alcoholic beverage by:
(i) a person who is not a member of a private club
on the club premises;
(ii) a minor; or
(iii) an intoxicated person.
(4) The license or permit holder ensures that all employees
have read and understood the license or permit holder's policies and
procedures described in paragraph (3) of this subsection.
(5) The license or permit holder maintains records
for at least one year after the date employment was terminated that
show that each employee read and understood the license or permit
holder's current policies and procedures described in paragraph (3)
of this subsection.
(g) For purposes of this section, "employee" includes
all persons paid by a license or permit holder to sell, serve, dispense,
or deliver alcoholic beverages or to immediately manage, direct, supervise
or control the sale or service of alcoholic beverages.
(h) At a hearing in which the license or permit holder
asserts the affirmative defense established in Code §106.14(a),
the commission may present evidence to establish a rebuttable presumption
under this section. If the evidence is sufficient to establish a prima
facie case, the burden of persuasion in the proceeding shifts to the
license or permit holder to show that it has not indirectly encouraged
a violation of the law within the meaning of Code §106.14(a)(3).
(i) The rebuttable presumptions authorized in this
section are not the exclusive means by which the commission may establish
that a license or permit holder has indirectly encouraged a violation
of the law within the meaning of Code §106.14(a)(3).
(j) This section applies to contested cases under the
Administrative Procedure Act and to complaints or violations referred
to the legal division of the commission for resolution.
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