Montana Administrative Register Notice 42-2-880 No. 8   04/26/2012    
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In the matter of the proposed amendment of ARM 42.13.101 and 42.13.111 relating to alcohol server training compliance










TO:  All Concerned Persons


1.  On May 29, 2012, the department proposes to amend the above-stated rules.


2.  The Department of Revenue will make reasonable accommodations for persons with disabilities who wish to participate in the rulemaking process and need an alternative accessible format of this notice.  If you require an accommodation, contact the Department of Revenue no later than 5:00 p.m. on May 4, 2012, to advise us of the nature of the accommodation that you need.  Please contact Cleo Anderson, Department of Revenue, Director's Office, P.O. Box 7701, Helena, Montana 59604-7701; telephone (406) 444-5825; fax (406) 444-4375; e-mail canderson@mt.gov.


3.  The rules proposed to be amended provide as follows, stricken matter interlined, new matter underlined:


42.13.101  COMPLIANCE WITH LAWS AND RULES  (1) through (6) remain the same.

(7)  A penalty for a licensee or licensee's employee not having a valid alcohol server training certificate shall be assessed against the licensee for whom the employee works at the time of the violation.  The penalty for this violation is imposed against the licensee, and the licensee having multiple untrained employees on a particular date shall not be considered multiple violations; however, continued noncompliance on a future date may be considered as an additional violation of the server training requirement.  The penalty shall be assessed in addition to any penalty for other Montana alcoholic beverage code violations such as sales to underage persons and/or sales to intoxicated persons, and the violation will be considered a separate violation by the department.  Penalties for not having valid alcohol server training certificates may be taken into account based on the mitigating factors described in (8) when determining a licensee's total number of violations in a three-year period for purposes of the progressive penalty schedule in (3).  However, the monetary penalty for each server training certificate violation shall be $50 for a first offense, $200 for a second offense, and $450 $350 for a third offense in a three-year period.

(a)  Example:  If a licensee has one previous violation for sale after hours, and later violates the training certificate provision, the licensee will be penalized $50 for the training certificate violation, although the violation will be considered a second violation on the licensee's record.  Then, if the licensee commits another violation within the same three-year period (for instance, a sale to an underage person), the penalty for that violation will be a third-violation penalty.

(8) remains the same.

(9)  Mitigating circumstances in the case of sale to an underage person could result in a reprimand for the first offense under Title 16, MCA, within the most current three-year period if the licensee has provided alcoholic beverage service training acceptable to the department to all of its employees and reinforces that training with each employee at least every two years.  The licensee must demonstrate that the person who made the sale to a minor an underage person has completed alcoholic beverage service training prior to the department considering issuance of a reprimand.  A written reprimand will be considered a first offense for the application of the progressive penalty schedule only if the licensee commits the same offense again within one year.  The written reprimand in lieu of a violation shall be available only one time per licensee.

(10) through (13) remain the same.


AUTH:  16-1-303, 16-4-1009, MCA

IMP:  16-3-301, 16-4-406, 16-4-1001, 16-4-1002, 16-4-1003, 16-4-1004, 16-4-1005, 16-4-1006, 16-4-1007, 16-4-1008, 16-6-305, 16-6-314, MCA


REASONABLE NECESSITY:  The department proposes to amend ARM 42.13.101(7), to correct the penalty amount for a licensee's 3rd violation of the requirement that all servers be trained and certified.  The department previously published the rule showing an incorrect amount of $450.  The correct amount, per statute, is $350.  The department also proposes to amend (9), to change the term "a minor" to "an underage person," for consistent use of the term within the rule.


42.13.111  DEFINITIONS  The following definitions apply to this subchapter:

(1) through (10) remain the same.

(11)  "Sale to a minor an underage person" means a violation consisting of the unlawful sale, service, or delivery of an alcoholic beverage to a person under the age of 21.

(12) and (13) remain the same.


AUTH:  16-1-303, 16-1-424, 16-9-1009, MCA

IMP:  16-1-424, 16-3-302, 16-3-311, 16-4-312, 16-4-404, 16-4-406, 16-4-1001, 16-4-1002, 16-4-1003, 16-4-1004, 16-4-1005, 16-4-1006, 16-4-1007, 16-4-1008, 16-6-104, MCA


REASONABLE NECESSITY:  The department proposes to amend ARM 42.13.111, to change the term "sale to a minor" to read "sale to an underage person," to accurately reflect the term used in this subchapter.


4.  Concerned persons may submit their data, views, or arguments in writing.  Written data, views, or arguments may be submitted to: Cleo Anderson, Department of Revenue, Director's Office, P.O. Box 7701, Helena, Montana 59604-7701; telephone (406) 444-5828; fax (406) 444-4375; or e-mail canderson@mt.gov and must be received no later than 5:00 p.m., May 25, 2012.


5.  If persons who are directly affected by the proposed action wish to express their data, views, and arguments orally or in writing they must make written request for a hearing and submit this request along with any written comments they have to Cleo Anderson at the above address no later than 5:00 p.m., May 25, 2012.


6.  If the agency receives requests for a public hearing on the proposed action from either 10 percent or 25, whichever is less, of the persons who are directly affected by the proposed action; from the appropriate administrative rule review committee; from a governmental subdivision or agency; or from an association having no less than 25 members who will be directly affected, a hearing will be held at a later date.  Notice of the hearing will be published in the Montana Administrative Register.  Ten percent of those persons directly affected has been determined to be 2,329, based on approximately 23,296, who either are liquor licensees or alcohol servers, as of April 10, 2012.


7.  The Department of Revenue maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency.  Persons who wish to have their name added to the list shall make a written request, which includes the name and e-mail or mailing address of the person to receive notices and specifies that the person wishes to receive notice regarding particular subject matter or matters.  Notices will be sent by e-mail unless a mailing preference is noted in the request.  Such written request may be mailed or delivered to the person in 4 above or faxed to the office at (406) 444-4375, or may be made by completing a request form at any rules hearing held by the Department of Revenue.


8.  An electronic copy of this notice is available on the department's web site at www.revenue.mt.gov.  Select the "Legal Resources" link in the left hand column, and click on the "Rules" link within to view the options under the "Current Rulemaking Actions – Published Notices" heading.  The department strives to make the electronic copy of this notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered.  While the department also strives to keep its web site accessible at all times, in some instances it may be temporarily unavailable due to system maintenance or technical problems.


9.  The bill sponsor contact requirements of 2-4-302, MCA, do not apply.


/s/ Cleo Anderson                                        /s/ Dan R. Bucks

CLEO ANDERSON                                     DAN R. BUCKS

Rule Reviewer                                              Director of Revenue


Certified to Secretary of State April 16, 2012



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