DAR File No. 38274

Alcoholic Beverage Control, Administration

Section R81-1-16

Disqualification Based Upon Conviction of Crime

Notice of Proposed Rule

(Amendment)

DAR File No.: 38274
Filed: 01/31/2014 03:59:10 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule is being amended to be consistent with state statute.

Summary of the rule or change:

This rule amendment clarifies that certain criminal convictions are disqualifying offenses which will result in an Order to Show Cause.

State statutory or constitutional authorization for this rule:

• Section 32B-1-307
• Subsection 32B-4-414(1)(b)
• Section 32B-6-702
• Subsection 32B-2-202(1)
• Subsection 32B-9-204(4)
• Subsection 32B-6-805(3)
• Subsection 32B-4-414(1)(c)
• Section 32B-2-202
• Section 32B-1-304(1)(a)
• Section 32B-1-306
• Section 32B-1-305
• Section 32B-5-304
• Subsection 32B-3-203(3)(c)
• Section 32B-1-607
• Subsection 32B-2-201(10)

Anticipated cost or savings to:

the state budget:

None--This rule filing makes the Department of Alcoholic Beverage Control (DABC) rules consistent with state statute.

local governments:

None--This rule filing makes the DABC rules consistent with state statute.

small businesses:

None--This rule filing makes the DABC rules consistent with state statute.

persons other than small businesses, businesses, or local governmental entities:

None--This rule filing makes the DABC rules consistent with state statute.

Compliance costs for affected persons:

None--This rule filing makes the DABC rules consistent with state statute.

Comments by the department head on the fiscal impact the rule may have on businesses:

None--This rule filing makes the DABC rules consistent with state statute.

Salvador D. Petilos, Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Alcoholic Beverage Control
Administration
1625 S 900 W
SALT LAKE CITY, UT 84104-1630

Direct questions regarding this rule to:

• Nina McDermott at the above address, by phone at 801-977-6805, by FAX at 801-977-6888, or by Internet E-mail at nmcdermott@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

03/17/2014

This rule may become effective on:

03/24/2014

Authorized by:

Sal Petilos, Executive Director

R81. Alcoholic Beverage Control, Administration.

R81-1. Scope, Definitions, and General Provisions.

R81-1-16. Disqualification Based Upon Conviction of Crime.

(1) The Alcoholic Beverage Control Act [generally ]disqualifies persons from being employees of the department, operating a package agency, holding a license or permit, or being employed in a managerial or supervisory capacity with a package agency, licensee or permittee if they have been convicted of:

(a) a felony under any federal or state law;

(b) any violation of any federal or state law or local ordinance concerning the sale, manufacture, distribution, warehousing, adulteration, or transportation of alcoholic beverages;

(c) any crime involving moral turpitude; or

(d) driving under the influence of alcohol or drugs on two or more occasions within the last five years.

(2) In the case of a partnership, corporation, or limited liability company the proscription under Subsection (1) applies if any of the following has been convicted of any offense described in Subsection (1):

(a) a partner;

(b) a managing agent;

(c) a manager;

(d) an officer;

(e) a director;

(f) a stockholder who holds at least 20% of the total issued and outstanding stock of the corporation; or

(g) a member who owns at least 20% of the limited liability company.

(3) As used in the Act and these rules:

(a) "convicted" or "conviction" means a determination of guilt by a judge or a jury, upon either a trial or entry of a plea, in any court, including a court not of record, that has not been reversed on appeal;

(b) "felony" means any crime punishable by a term of imprisonment in excess of one year; and

(c) a "crime involving moral turpitude" means a crime that involves actions done knowingly contrary to justice, honesty, or good morals. It is also described as a crime that is "malum in se" as opposed to "malum prohibitum" - actions that are immoral in themselves regardless of being punishable by law as opposed to actions that are wrong only since they are prohibited by statute. A crime of moral turpitude ordinarily involves an element of falsification or fraud or of harm or injury directed to another person or another's property. For purposes of this rule, crimes of moral turpitude may include crimes involving controlled substances, illegal drugs, and narcotics.

(3) Compliance with subsections (1) and (2) are fundamental licensing requirements, the violation of which will result in the issuance of an Order to Show Cause in accordance with R81-1-6 and action on the license as determined by the commission in accordance with 32B-1-304(2).

 

KEY: alcoholic beverages

Date of Enactment or Last Substantive Amendment: [October 30, 2013]2014

Notice of Continuation: May 10, 2011

Authorizing, and Implemented or Interpreted Law: 32B-2-201(10); 32B-2-202; 32B-3-203(3)(c); 32B-5-304[(1)]; 32B-1-305; 32B-1-306; 32B-1-307; 32B-1-607; 32B-1-304(1)(a); 32B-6-702; 32B-6-805(3); 32B-9-204(4); 32B-4-414(1)(b) and (c)