42.13.101 COMPLIANCE WITH LAWS AND RULES
(1) All licensees, their agents, employees, and concessionaires must operate in compliance with the rules of other state and local agencies and abide by all:
(a) provisions of the laws of Montana and the United States related to alcoholic beverages;
(b) county and city or town ordinances related to alcoholic beverages;
(c) Indian alcoholic beverage laws applicable within the areas of Indian country, as defined by 18 USC 1151, provided a tribe having jurisdiction over such area of Indian country adopted an ordinance, certified by the Secretary of the Interior, and published in the Federal Register; and
(d) rules of the department relating to alcoholic beverages.
(2) Proof of violation by a licensee, a concessionaire, or the licensee's or concessionaire's agent or employee of any of the provisions of the above laws, ordinances, or rules is sufficient grounds for revocation or suspension of the license or department termination of a concession agreement, and a licensee, a concessionaire, or both, may be reprimanded or assessed a civil penalty in accordance with 16-4-406, MCA.
(3) The department may use a range of progressive and proportional penalties for any combination of violations of any laws, ordinances, and rules. The progressive penalty schedule is not an exhaustive list of the grounds for administrative action. The schedule does not preclude the department's use of discretion to propose a penalty greater or less than those listed based upon aggravating or mitigating circumstances, non-exhaustive examples of which are described in (10) and (11). For purposes of determining penalties under the progressive penalty schedule, the department uses a three-year lookback. Proposed penalties are assessed based upon the date the violation occurs. For violations that occur over time, such as an undisclosed ownership interest, the violation date shall be the date the department issues its notice of proposed department action. The department may seek license revocation based upon a combination of any four violations during a three-year period.
Progressive Penalty Schedule
(4) When a license has been revoked or lapsed, the department shall not accept an application from those owners vetted pursuant to 16-4-401, MCA, for one year from the date of revocation or lapse. After the one-year moratorium, an application will only be accepted if the applicant demonstrates to the department's satisfaction that sufficient steps were taken to prevent future violations or to operate a going establishment.
(5) A revoked or lapsed license affects a license quota area as follows:
(a) if it causes the area to be under quota, a notice of availability of a license will be published in the newspaper of general circulation in the quota area and invite applications for the available license; or
(b) if the area is over quota, the revoked or lapsed license will cease to be available for issuance.
(6) A revoked or lapsed beer license issued within a city quota area before October 1997, if reinstated, will not allow any gaming or gambling activity on the premises.
(7) The failure of an employee to possess a valid alcohol server training certificate constitutes a violation, the penalty for which is assessed against the licensee. Multiple untrained employees on a particular date shall constitute a single violation; continued noncompliance shall constitute an additional violation. Regardless of other violations within the three-year period, the civil penalties assessed for a violation of the Responsible Alcohol Sales and Service Act shall be $50 for the first offense, $200 for the second offense, and $350 for the third offense.
(8) A licensee shall receive a reprimand for the violation of selling to an underage person only if:
(a) it is the licensee's first offense of any kind under that license in the past three years;
(b) the person who made the sale possesses a valid proof of training document; and
(c) the licensee has not previously received a reprimand for sale to an underage person under that license.
(9) In the event a reprimand is issued:
(a) the incident shall not be considered to be a first offense for purposes of the progressive penalty schedule unless the licensee or concessionaire commits the same offense within one year; and
(b) the department shall still assess the monetary penalty associated with the offense.
(10) Aggravating circumstances may result in the imposition of maximum monetary penalties, maximum suspension time or revocation, and will not bind the department to the progressive penalty schedule. Aggravating circumstances include, but are not limited to:
(a) no effort on the part of a licensee, a concessionaire, or both, to prevent a violation from occurring;
(b) a licensee's failure to report a violation at the time of renewal;
(c) involvement of a licensee, a concessionaire, or both, in the violation;
(d) recurring sales to underage or intoxicated persons;
(e) providing alcoholic beverages to a person under 18 years of age;
(f) lack of cooperation by a licensee, a concessionaire, or both, in an investigation; and
(g) a violation's significant negative effect on the health and welfare of the community in which the licensee, the concessionaire, or both, operate.
(11) Mitigating circumstances may result in the adjustment of monetary penalties, amount of suspension time, or revocation, and will not bind the department to the progressive penalty schedule. Mitigating circumstances include, but are not limited to:
(a) the admissions of either the licensee or concessionaire regarding violations of the code or a rule of the department prior to the department commencing investigation of the licensee or concessionaire; or
(b) those instances provided in 16-4-406, MCA.
(12) Nothing in this rule prevents the department from revoking, suspending, or refusing the renewal of a license, or a concession agreement, or both, if revocation, suspension, or refusing renewal is expressly allowed in law or rule with reference to a prohibited act.
History: 16-1-303, 16-4-1009, MCA; IMP, 16-1-302, 16-3-301, 16-4-406, 16-4-1004, 16-4-1008, 16-6-314, MCA; NEW, Eff. 11/3/75; AMD, 1980 MAR p. 2199, Eff. 7/18/80; AMD, 1985 MAR p. 170, Eff. 2/15/85; AMD, 1998 MAR p. 2088, Eff. 7/31/98; AMD, 2001 MAR p. 449, Eff. 3/23/01; AMD, 2002 MAR p. 2337, Eff. 8/30/02; AMD, 2007 MAR p. 483, Eff. 4/13/07; AMD, 2012 MAR p. 122, Eff. 1/13/12; AMD, 2012 MAR p. 1150, Eff. 6/8/12; AMD, 2012 MAR p. 1846, Eff. 9/21/12; AMD, 2014 MAR p. 2980, Eff. 12/12/14; AMD, 2017 MAR p. 346, Eff. 3/25/17; AMD, 2020 MAR p. 1283, Eff. 6/27/20.