|(a) These terms, when used in this rule, have the following
(1) Delivery driver--any person engaged by a consumer
delivery permit holder as an alcohol delivery driver including, but
not limited to those hired directly, hired indirectly, paid, unpaid,
or contracted, whether or not in a supervisory role.
(2) Delivery driver training program--a commission-approved
alcohol delivery driver certification program under chapter 50 of
this title, established pursuant to Code §57.09.
(b) A delivery driver shall not deliver an alcoholic
beverage in violation of Chapter 57 of the Code.
(c) The actions of a delivery driver acting on behalf
of a holder of a consumer delivery permit are not attributable to
the holder of a consumer delivery permit if the permit holder has
not directly or indirectly encouraged the delivery driver to violate
the law and the delivery driver:
(1) at the time the delivery occurred, held a valid
certification from a delivery driver training program; or
(2) completed the delivery using an alcohol delivery
compliance software application that meets the requirements established
under Code §57.09.
(d) The holder of a consumer delivery permit may establish
a rebuttable presumption that it has not directly or indirectly encouraged
the delivery driver to violate Chapter 57 of the Code by providing
(1) each of the permit holder's delivery drivers engaged
by the permit holder during the twenty-four months prior to the violation
have actually attended a delivery driver training program and maintained
alcohol delivery driver training certification for the entire duration
of their engagement by the permit holder as a delivery driver;
(2) prior to the violation, the permit holder adopted
written policies and procedures designed to prevent, and that affirm
a strong commitment by the permit holder to prohibit violations of
Chapter 57 of the Alcoholic Beverage Code; and
(3) all delivery drivers have read and understood such
policies and procedures.
(e) The consumer delivery permit holder is not entitled
to the rebuttable presumption in subsection (d) of this section if
the commission provides proof of violations of Chapter 57 of the Code
on two or more prior occasions by any delivery driver making a delivery
of alcohol on the permit holder's behalf in the twelve months preceding
the current violation, or on three or more prior occasions by any
delivery driver making a delivery of alcohol on the permit holder's
behalf in the twenty-four months preceding the current violation.
(f) Criminal Negligence.
(1) Regardless of whether the permit holder has directly
or indirectly encouraged the delivery driver to violate Code Chapter
57, the commission or executive director may suspend a consumer delivery
permit as prescribed by Code §57.08 if, after notice and hearing,
a court or administrative hearing officer finds that a delivery driver
made a delivery on the permit holder's behalf with criminal negligence.
(2) It is a rebuttable presumption that delivery of
an alcoholic beverage to a minor or an intoxicated person was not
made with criminal negligence if the delivery driver:
(A) at the time of the delivery held a valid certification
from a delivery driver training program; and
(B) completed the delivery as a result of a technical
malfunction of an alcohol delivery compliance software application
that otherwise meets the requirements of §50.33 of this title
(relating to Alcohol Delivery Compliance Software Applications).