COMMITTEE ON COMMERCE
HOUSE OF REPRESENTATIVES AMENDMENTS TO H.B. 2281
(Reference to printed bill)
Page 1, between lines 28 and 29, insert:
"4. "Biometric identity verification device" means a commercial device that instantly verifies the identity and age of a person by an electronic scan of a biometric of the person, through a fingerprint, iris image, facial image or other biometric characteristic, or any combination of these characteristics, references the person's identity and age against any record described in section 4-241, subsection K, and meets all of the following conditions:
(a) The authenticity of the record was previously verified by an electronic authentication process.
(b) The identity of the record holder was previously verified through a commercially available knowledge-based electronic authentication process.
(c) The authenticated record was securely linked to biometrics contemporaneously collected from the verified record holder."
Renumber to conform
Line 35, strike "7" insert "8"
Page 15, line 43, after "license" insert "in this state"
Line 44, strike "tax" insert "fax"
Line 45, after "The" insert "sale and"; after "premises" insert "to a person in this state"
Page 16, line 1, after the period insert "Notwithstanding the definition of "sell" in section 4‑101, the placement of an order and payment pursuant to this section is not a sale until delivery has been made. At the time that the order is placed, the licensee shall inform the purchaser that state law requires a purchaser of spirituous liquor to be at least twenty‑one years of age and that the person accepting delivery of the spirituous liquor is required to comply with this state's age identification requirements as prescribed in section 4‑241, subsections A and K."
Page 16, line 4, strike "use of" insert "contract with"
Line 5, after "liquor" insert "if the spirituous liquor is loaded for delivery at the premises of the retail licensee in this state and delivered in this state"; after the period insert "All containers of spirituous liquor delivered pursuant to this subsection shall be conspicuously labeled with the words "contains alcohol, signature of person who is twenty‑one years of age or older is required for delivery"."
Line 9, after "employee" insert "of the licensee"; after "person" insert "as provided by this section"
Line 13, strike "collect receive" insert "collect"; after the first "the" insert "full"
Line 14, strike "at before" insert "from the purchaser at"; strike "of delivery" insert "that the order is placed"
Line 16, after the period insert "With respect to the delivery of spirituous liquor,"
Line 19, strike "with respect to the delivery of spiritous liquor"
Line 24, after "of" insert "compliance with"
Line 27, strike "an employee" insert "acting on behalf"; strike "sale or"
Line 34, after "premises" insert "subject to all applicable provisions of section 4‑206.01"
Page 21, strike lines 7 through 45
Page 22, stike lines 1 through 14
Renumber to conform
Line 36, strike "28" insert "29"
Page 35, line 45, after "license" insert ", including a farm winery tasting room license,"
Page 36, line 4, strike "public safety" insert "security"
Line 16, after "premises" insert "or other security measures, including electronic surveillance and the use of security personnel and signage,"
Line 17, after "barriers" insert "or other security measures"
Page 37, strike lines 1 through 6
Reletter to conform
Line 17, strike "may" insert "shall"
Strike lines 19 through 44
Page 38, strike lines 1 through 22, insert:
"Sec. 11. Section 4-210, Arizona Revised Statutes, is amended to read:
4-210. Grounds for revocation, suspension and refusal to renew; notice; complaints; hearings; defense
A. After notice and hearing, the director may suspend, revoke or refuse to renew any license issued pursuant to this chapter for any of the following reasons:
1. There occurs on the licensed premises repeated acts of violence.
2. The licensee fails to satisfactorily maintain the capability, qualifications and reliability requirements of an applicant for a license prescribed in section 4‑202 or 4‑203.
3. The licensee or controlling person knowingly files with the department an application or other document that contains material information that is false or misleading or while under oath knowingly gives testimony in an investigation or other proceeding under this title that is false or misleading.
4. The licensee or controlling person is on the premises habitually intoxicated.
5. The licensed business is delinquent for more than one hundred twenty days in the payment of taxes, penalties or interest in an amount that exceeds two hundred fifty dollars $250 to the state or to any political subdivision of the state.
6. The licensee or controlling person obtains, assigns, transfers or sells a spirituous liquor license without compliance with this title or leases or subleases a license.
7. The licensee fails to keep for two years and make available to the department on reasonable request all invoices, records, bills or other papers and documents relating to the purchase, sale and delivery of spirituous liquors and, in the case of a restaurant or hotel‑motel licensee, all invoices, records, bills or other papers and documents relating to the purchase, sale and delivery of food.
8. The licensee or controlling person is convicted of a felony provided that for a conviction of a corporation to serve as a reason for any action by the director, conduct that constitutes the corporate offense and was the basis for the felony conviction must have been engaged in, authorized, solicited, commanded or recklessly tolerated by the directors of the corporation or by a high managerial agent acting within the scope of employment.
9. The licensee or controlling person violates or fails to comply with this title, any rule adopted pursuant to this title or any liquor law of this state or any other state.
10. The licensee fails to take reasonable steps to protect the safety of a customer of the licensee or any other person entering, leaving or remaining on the licensed premises when the licensee knew or reasonably should have known of the danger to the person, or the licensee fails to take reasonable steps to intervene by notifying law enforcement officials or otherwise to prevent or break up an act of violence occurring on the licensed premises or immediately adjacent to the premises when the licensee knew or reasonably should have known of the acts of violence.
11. The licensee or controlling person lacks good moral character.
12. The licensee or controlling person knowingly associates with a person who has engaged in racketeering, as defined in section 13‑2301, or who has been convicted of a felony, and the association is of a nature as to create a reasonable risk that the licensee will fail to conform to the requirements of this title or of any criminal statute of this state.
13. A licensee that is a liquor store as defined in section 46‑297 violates the restrictions on use of automatic teller machines or point‑of‑sale terminals regarding electronic benefit transfer cards prescribed in section 4‑242.01.
14. There occurs on the licensed premises a serious act of violence. For the purposes of this paragraph, "serious act of violence" means an act of violence in which a serious injury causes the death or critical injury of a person and the injuries would be obvious to a reasonable person.
15. The licensee fails to report a serious act of violence that occurs on the licensed premises. For the purposes of this paragraph, "serious act of violence" means an act of violence in which a serious injury causes death or critical injury of a person and the injuries would be obvious to a reasonable person.
16. The licensee violates an order of the board.
B. For the purposes of:
1. Subsection A, paragraph 8 of this section, "high managerial agent" means an officer of a corporation or any other agent of the corporation in a position of comparable authority with respect to the formulation of corporate policy.
2. Subsection A, paragraphs 9 and 10 of this section, acts or omissions of an employee of a licensee that violate this title or rules adopted pursuant to this title are deemed to be acts or omissions of the licensee. Acts or omissions by an employee or licensee committed during the time the licensed premises were operated pursuant to an interim permit or without a license may be charged as if they had been committed during the period the premises were duly licensed.
C. The director may suspend, revoke or refuse to issue, transfer or renew a license under this section based solely on the unrelated conduct or fitness of any officer, director, managing agent or other controlling person if the controlling person retains any interest in or control of the licensee after sixty days following written notice to the licensee. If the controlling person holds stock in a corporate licensee or is a partner in a partnership licensee, the controlling person may only divest himself of his interest by transferring the interest to the existing stockholders or partners who must demonstrate to the department that they meet all the requirements for licensure. For the purposes of this subsection, the conduct or fitness of a controlling person is unrelated if it would not be attributable to the licensee.
D. If the director finds, based on clear and convincing evidence in the record, that a violation involves the use by the licensee of a drive‑through or walk‑up service window or other physical feature of the licensed premises that allows a customer to purchase spirituous liquor without leaving the customer's vehicle or, with respect to a walk‑up service window that prevents the licensee from fully observing the customer, and that the use of that drive-through or walk‑up service window or other physical feature caused the violation, the director may suspend or terminate the licensee's use of the drive-through or walk‑up service window or other physical feature for the sale of spirituous liquor, in addition to any other sanction.
E. The director may refuse to transfer any license or issue a new license at the same location if the director has filed a complaint against the license or location that has not been resolved alleging a violation of any of the grounds stated in subsection A of this section until the time the complaint has been finally adjudicated.
F. The director shall receive all complaints of alleged violations of this chapter and is responsible for the investigation of all allegations of a violation of, or noncompliance with, this title, any rule adopted pursuant to this title or any condition imposed on the licensee by the license. When the director receives three complaints from any law enforcement agency resulting from three separate incidents at a licensed establishment within a twelve‑month period, the director shall transmit a written report to the board setting forth the complaints, the results of any investigation conducted by the law enforcement agency or the department relating to the complaints and a history of all prior complaints against the license and their disposition. The board shall review the report and may direct the director to conduct further investigation of a complaint or to serve a licensee with a complaint and notice of a hearing pursuant to subsection G of this section.
G. On the director's initiation of an investigation or on the receipt of a complaint and an investigation of the complaint as deemed necessary, the director may cause a complaint and notice of a hearing to be directed to the licensee that states the violations alleged against the licensee and directing the licensee, within fifteen days after service of the complaint and notice of a hearing, to appear by filing with the director an answer to the complaint. Failure of the licensee to answer may be deemed an admission by the licensee of commission of the act charged in the complaint. The director may then vacate the hearing and impose any sanction provided by this article. The director may waive any sanction for good cause shown including excusable neglect. With respect to any violation of this title or any rule adopted pursuant to this title that is based on the act or omission of a licensee's employee, the director shall consider evidence of mitigation presented by the licensee and established by a preponderance of the evidence that the employee acted intentionally and in violation of the express direction or policy adopted by the licensee and communicated to the employee and that the employee successfully completed training in a course approved by the director pursuant to section 4‑112, subsection G, paragraph 2. The director may set the hearing before himself the director or an administrative law judge on any of the grounds stated in subsection A of this section. Instead of issuing a complaint, the director may provide for informal disposition of the matter by consent agreement or may issue a written warning to the licensee. If a warning is issued, the licensee may reply in writing and the director shall keep a record of the warning and the reply.
H. A hearing shall conform to the requirements of title 41, chapter 6, article 10. At the hearing an attorney or corporate officer or employee of a corporation may represent the corporation. The revoking, suspending or refusing to renew a license for unpaid taxes, penalties or interest pursuant to subsection A, paragraph 5 of this section is a contested case with the department of revenue pursuant to section 42‑1251.01.
I. The expiration, cancellation, revocation, reversion, surrender, acceptance of surrender or termination in any other manner of a license does not prevent the initiation or completion of a disciplinary proceeding pursuant to this section against the licensee or license. An order issued pursuant to a disciplinary proceeding against a license is enforceable against other licenses or subsequent licenses in which the licensee or controlling person of the license has a controlling interest.
J. The department shall provide the same notice as is provided to the licensee to a lienholder, which has provided a document under section 4‑112, subsection B, paragraph 3, of all disciplinary or compliance action with respect to a license issued pursuant to this title. The state shall is not be liable for damages for any failure to provide any notice pursuant to this subsection.
K. In any disciplinary action pursuant to this title, a lienholder may participate in the determination of the action. The director shall consider mitigation on behalf of the lienholder if the lienholder proves all of the following by a preponderance of the evidence:
1. That the lienholder's interest is a bona fide security interest. For the purposes of this paragraph, "bona fide security interest" means the lienholder provides actual consideration to the licensee or the licensee's predecessor in interest in exchange for the lienholder's interest. Bona fide security interest includes a lien taken by the seller of a license as security for the seller's receipt of all or part of the purchase price of the license.
2. That a statement of legal or equitable interest was filed with the department before the alleged conduct occurred that is the basis for the action against the license.
3. That the lienholder took reasonable steps to correct the licensee's prior actions, if any, or initiated an action pursuant to available contract rights against the licensee for the forfeiture of the license after being provided with notice by the department of disciplinary action as provided in subsection J of this section.
4. That the lienholder was free of responsibility for the conduct that is the basis for the proposed revocation.
5. That the lienholder reasonably attempted to remain informed by the licensee about the business's conduct.
L. If the director decides not to revoke the license based on the circumstances provided in subsection K of this section, the director may issue an order requiring either, or both, of the following:
1. The forfeiture of all interest of the licensee in the license.
2. The lienholder to pay any civil monetary penalty imposed on the licensee.
M. If any on‑sale licensee proposes to provide large capacity entertainment events or sporting events with an attendance capacity exceeding a limit established by the director, the director may request a security plan from the licensee that may include trained security officers, lighting and other requirements. This subsection exclusively prescribes the security requirements for a licensee and does not create any civil liability for the state, its agencies, agents or employees or a person licensed under this title or agents or employees of a licensee.
N. The director may consider as a mitigating factor or defense to a complaint against a licensee for a violation of subsection A, paragraph 10 or 14 of this section that the licensee acted reasonably, responsibly and as expeditiously as possible by asking for intervention by a peace officer to prevent or to break up a riot, a fight, an altercation or tumultuous conduct."
Renumber to conform
Page 38, line 45, after "visit" insert ", or a licensee or an employee of the licensee who uses a biometric identity verification device to verify a person is not under the legal drinking age as provided in subsection W of this section,"
Page 39, line 3, after "procedure" insert "prescribed in subsection A or W of this section"
Lines 6 and 9, after "A" insert "or W"
Line 38, after "A" insert "or W"
Page 40, line 15, strike "acceptable"
Line 16, after "identification" insert "that are acceptable under subsection A of this section"
Page 43, between lines 6 and 7, insert:
"W. In lieu of or in addition to the procedures prescribed in subsection A of this section, a licensee, an employee of the licensee or any other person who questions or has reason to question that the person ordering, purchasing, attempting to purchase or otherwise procuring or attempting to procure the serving or delivery of spirituous liquor or entering a portion of a licensed premises when the primary use is the sale or service of spirituous liquor is under the legal drinking age, the licensee, employee of the licensee or other person may use a biometric identity verification device to determine the person's age. In any instance where the device indicates the person is under the legal drinking age, the attempted purchase, procurement or entry shall be denied."
Page 47, line 3, strike "a written" insert "an"
Line 4, after "entry" insert "or may use a biometric identity verification device to determine the person's age as a condition of entry"
Line 15, strike "7" insert "8"
"Sec. 14. Title 42, chapter 1, article 6, Arizona Revised Statutes, is amended by adding section 42-1251.01, to read:
42-1251.01. Appeals of suspension, revocation or refusal to renew liquor licenses; hearings; definition
A. A suspension, revocation or refusal to renew a liquor license by the director of the department of liquor licenses and control pursuant to section 4-210, subsection A, paragraph 5 are considered a contested case.
B. The aggrieved party may appeal the suspension, revocation or refusal to renew by the director pursuant to section 4-210, subsection A, paragraph 5 based on a contention that the business is either:
1. Not delinquent on any taxes, penalties or interest owed to this state or a political subdivision of this state.
2. Delinquent on its taxes, penalties and interest for less than one hundred twenty days.
3. Delinquent on its taxes, penalties and interest in an amount that totals $250 or less.
C. The aggrieved party shall file the appeal in writing with the department of revenue within fifteen days after service of the notice of the decision of the director. The decision of the director is suspended until the determination of any appeal by the office of administrative hearings.
D. An administrative law judge shall conduct a hearing on the appeal pursuant to title 41, chapter 6, article 10 and may accept any relevant and material evidence and testimony and may exercise the actions prescribed by section 4-112, subsection F or section 12-2212. At the hearing, an attorney for or a corporate officer or employee of a corporation may represent the corporation.
E. A decision issued by the director is not final for purposes of appeal to the superior court until a decision has been issued by the office of administrative hearings.
F. The office of administrative hearings may affirm, reverse or modify any decision issued by the director.
G. For the purposes of this section, "director" means the director of the department of liquor licenses and control."
Amend title to conform