HB1423 (As Introduced) - 1999 Regular Session

MISSISSIPPI LEGISLATURE

1999 Regular Session

To: Ways and Means

By: Representative Brown

House Bill 1423

AN ACT TO ENACT THE RESPONSIBLE ALCOHOL VENDOR LAW TO ENCOURAGE VENDORS OF ALCOHOLIC BEVERAGES, BEER OR LIGHT WINE TO BE PRUDENT IN THEIR SELLING PRACTICES; TO PROVIDE FOR THE CERTIFICATION BY THE STATE TAX COMMISSION OF PERSONS OFFERING TRAINING PROGRAMS TO PERSONS WHO SERVE ALCOHOLIC BEVERAGES, BEER OR LIGHT WINE; TO PROVIDE FOR THE CERTIFICATION OF TRAINERS EMPLOYED BY PERSONS OFFERING SUCH TRAINING PROGRAMS; TO SPECIFY THE CONTENT OF TRAINING COURSES OFFERED BY PROVIDERS; TO PROVIDE FOR THE CERTIFICATION OF A VENDOR AS A RESPONSIBLE VENDOR BY THE STATE TAX COMMISSION UPON MEETING CERTAIN REQUIREMENTS; TO REQUIRE THAT PERSONS EMPLOYED BY A RESPONSIBLE VENDOR TO SERVE OR SELL ALCOHOLIC BEVERAGES, BEER OR WINE MUST POSSESS A SERVER'S PERMIT ISSUED BY THE STATE TAX COMMISSION; TO PROVIDE THE REQUIREMENTS THAT A PERSON MUST MEET IN ORDER TO BE ISSUED A SERVER'S PERMIT; TO PROVIDE THAT CERTIFICATION AS A RESPONSIBLE VENDOR SHALL BE A DEFENSE OR MITIGATION IN CERTAIN PERMIT SUSPENSION OR REVOCATION PROCEEDINGS AGAINST A VENDOR BY THE STATE TAX COMMISSION FOR VIOLATIONS OF THE LAWS RELATING TO ALCOHOLIC BEVERAGES, BEER OR LIGHT WINE; TO AMEND SECTIONS 67-1-37, 67-1-71 AND 67-3-29, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. This act shall be known and may be cited as the "Responsible Alcohol Vendor Law" of the State of Mississippi.

SECTION 2. The purpose of this act is to eliminate the sale of alcoholic beverages, beer and light wine to, and the consumption of alcoholic beverages, beer and light wine by, underage persons; to reduce intoxication and to reduce accidents, injuries and death in the state which are related to intoxication; and to encourage the responsible sale of alcoholic beverages, beer and light wine by vendors throughout the state; and to provide for the mitigation of administrative penalties against vendors who comply with responsible practices in accordance with this act.

SECTION 3. As used in this act:

(a) "Commission" means the Mississippi State Tax Commission.

(b) "Person" means and includes any individual, partnership, corporation, association or other legal entity whatsoever.

(c) "Vendor" means any person holding a permit to sell alcoholic beverages, beer or light wine for on-premises consumption or off-premises consumption.

(d) "Server" means any employee of a vendor who is authorized to sell, serve or mix alcoholic beverages in the normal course of his or her employment or deals with customers who purchase or consume alcoholic beverages, beer or light wine.

(e) "Server permit" means the permit issued to a server upon completion of a server training course and all required refresher courses provided for in this act.

(f) "Approved provider" means a person approved by the commission to provide server training courses.

(g) "Trainer" means an individual employed or authorized by an approved provider to conduct an alcohol server education course wherein the successful completion of which will result in the issuance of a server permit to students.

SECTION 4. (1) The commission, upon appropriation of adequate funding, shall establish a responsible alcohol vendor program designed to educate vendors and their employees and customers about the selling, serving and consumption of alcoholic beverages in a responsible manner. The chairman of the commission may appoint or employ such personnel, not exceeding four (4), as may be necessary to carry out the program.

SECTION 5. In order to offer server training courses under this act, a provider must be approved by the commission and shall meet such requirements as the commission may promulgate by rule or regulation. Each trainer employed by an approved provider must be certified by the commission and shall meet the requirements that an applicant under the Local Option Alcoholic Beverage Control Law must meet under Section 67-1-57(a), (f), (g), (i) and (l), and possess adequate experience relating to the responsible sale and service of alcoholic beverages, beer and light wine. Certifications of providers and trainers shall be valid for two (2) years. The commission may establish additional requirements for providers and trainers by rule or regulation.

SECTION 6. Training courses offered by certified providers shall include, but not be limited to, instruction in the following:

(a) Classification of alcohol as a depressant and its effect on the human body, particularly on the ability to drive a motor vehicle.

(b) Effects of alcohol when taken with commonly used prescription and nonprescription drugs.

(c) Absorption rate, as well as the rate at which the human body can dispose of alcohol and how food affects the absorption rate.

(d) Methods of identifying and dealing with underage and intoxicated persons, including strategies for delaying and denying sales and service to intoxicated and underage persons.

(e) State laws and regulations regarding the sale and service of alcoholic beverages, beer and light wine.

(f) Local ordinances and regulations including, but not limited to, the hours of operation, noise, litter and other ordinances that effect the sale and service of alcoholic beverages, beer or light wine for consumption on or off the premises.

(g) State and federal laws and regulations related to the purchase of tobacco products by underage persons and age verification requirements.

SECTION 7. (1) A vendor who seeks to qualify as a responsible vendor must provide to the commission, pursuant to procedures adopted by the commission, evidence of compliance with the requirements of this act. Upon satisfactory proof that the vendor has complied with the requirements, the commission shall certify the vendor as a responsible vendor. Certification as a responsible vendor shall be renewed annually.

(2) The commission shall adopt rules and regulations for monitoring compliance by certified vendors and for revoking or suspending a vendor's certification for noncompliance with this act.

(3) In order to qualify for certification and to maintain such certification, the vendor shall comply with the following requirements:

(a) Require that all servers employed by him complete a server training course offered by an approved provider within thirty (30) days after they are employed, and that such servers obtain a server's permit and maintain such permit for as long as they are employed by such vendor;

(b) Maintain employment records of the training of its employees required by this act; and

(c) Post signs on the vendor's premises informing customers of the vendor's policy against selling alcoholic beverages to underage persons.

SECTION 8. (1) Persons seeking a server's permit shall apply for such permit with the commission and shall demonstrate to the commission the following:

(a) That the applicant has not been convicted of any crime involving the sale of alcoholic beverages or beer, the possession of a controlled substance, any sex-related crime or embezzlement within the previous four (4) years;

(b) That the applicant has not been convicted of any felony within the previous four (4) years;

(c) That the applicant has not had an alcoholic beverage, beer or light wine server's permit revoked in any state within the previous four (4) years;

(d) That the applicant is at least sixteen (16) years of age if he or she is to sell or serve beer for off-premises consumption; the applicant is at least eighteen (18) years of age if he or she waits on tables by taking orders for, or delivering orders of, alcoholic beverages for on-premises consumption; or the applicant is at least twenty-one (21) years of age if he or she is to tend bar or act in the capacity of bartender or sell alcoholic beverages as an employee of a package retailer;

(e) That the applicant has successfully completed a server training course offered by an approved provider within thirty (30) days of commencing employment; and

(f) That the applicant has met such other requirements as the commission may see fit to require by rule or regulation.

(2) If the applicant meets all requirements, a server's permit shall be issued for a period of two (2) years and shall be valid in connection with employment by any vendor.

SECTION 9. The commission may suspend or revoke a server's permit for noncompliance by the server with this act or for any violation by the server of any federal, state or local laws or regulations relating to the sale or service of alcoholic beverages, beer, light wine or tobacco. The procedure for the suspension, revocation or denial of a server's permit shall be the same as are otherwise set forth in Chapter 1, Title 67, Mississippi Code of 1972, for the suspension or revocation of alcoholic beverage permits.

SECTION 10. (1) Unless the vendor had knowledge of the violation or should have known about the violation, or participated in or committed the violation, the permit of a vendor certified as a responsible vendor under this act may not be suspended or revoked for:

(a) A first offense of illegal sale or service of an alcoholic beverage, beer or light wine to an intoxicated person or a person who is not of lawful drinking age occurring in any twelve-month period;

(b) A first offense of illegal consumption of alcoholic beverages, beer or light wine on the premises of the vendor occurring in any twelve-month period.

(2) The commission or the chairman of the commission, as appropriate, shall consider certification of a vendor as a responsible vendor in mitigation of administrative penalties or fines for the unlawful sale or service of an alcoholic beverage, beer or light wine.

SECTION 11. (1) Subject to the restrictions in this section, the commission may set the fees for permits to be issued under this act. The fee for a certification as a responsible vendor shall not exceed Fifty Dollars ($50.00) per permitted establishment payable upon the issuance or renewal of such license. The fee for a server's permit shall not exceed Fifteen Dollars ($15.00) payable upon issuance or renewal of such permit. The commission may also assess a permit fee not to exceed One Hundred Dollars ($100.00) upon any organization or entity seeking classification as an approved provider.

(2) There is created in the State Treasury a special fund to be known as the Responsible Alcohol Vendor Program Fund, into which shall be deposited all fees collected by the commission pursuant to subsection (1) of this section. The money in the fund shall be used for the purpose of establishing and maintaining the program created by this act. The Responsible Alcohol Vendor Program Fund shall be administered by the commission, and money in the fund shall be expended upon appropriation by the Legislature. Unexpended amounts remaining in the fund at the end of the fiscal year shall not lapse into the General Fund, and any interest earned on amounts in the fund shall be deposited to the credit of the fund.

SECTION 12. Section 67-1-37, Mississippi Code of 1972, is amended as follows:

[Through June 30, 2000, this section shall read as follows:]

67-1-37. The State Tax Commission, under its duties and powers with respect to the Alcoholic Beverage Control Division therein, shall have the following powers, functions and duties:

(a) To issue or refuse to issue any permit provided for by this chapter, or to extend the permit or remit in whole or any part of the permit monies when the permit cannot be used due to a natural disaster or Act of God.

(b) To revoke, suspend or cancel, for violation of or noncompliance with the provisions of this chapter, or the law governing the production and sale of native wines, or any lawful rules and regulations of the commission issued hereunder, or for other sufficient cause, any permit issued by it under the provisions of this chapter; however, no such permit shall be revoked, suspended or cancelled except after a hearing of which the permit holder shall have been given reasonable notice and an opportunity to be heard. The board shall be authorized to suspend the permit of any permit holder for being out of compliance with an order for support, as defined in Section 93-11-153. The procedure for suspension of a permit for being out of compliance with an order for support, and the procedure for the reissuance or reinstatement of a permit suspended for that purpose, and the payment of any fees for the reissuance or reinstatement of a permit suspended for that purpose, shall be governed by Section 93-11-157 or 93-11-163, as the case may be. If there is any conflict between any provision of Section 93-11-157 or 93-11-163 and any provision of this chapter, the provisions of Section 93-11-157 or 93-11-163, as the case may be, shall control.

(c) To prescribe forms of permits and applications for permits and of all reports which it deems necessary in administering this chapter.

(d) To fix standards, not in conflict with those prescribed by any law of this state or of the United States, to secure the use of proper ingredients and methods of manufacture of alcoholic beverages.

(e) To issue rules regulating the advertising of alcoholic beverages in the state in any class of media and permitting advertising of the retail price of alcoholic beverages.

(f) To issue reasonable rules and regulations, not inconsistent with the federal laws or regulations, requiring informative labeling of all alcoholic beverages offered for sale within this state and providing for the standards of fill and shapes of retail containers of alcoholic beverages; however, such containers shall not contain less than fifty (50) milliliters by liquid measure.

(g) Subject to the provisions of subsection (3) of Section 67-1-51, to issue rules and regulations governing the issuance of retail permits for premises located near or around schools, colleges, universities, churches and other public institutions, and specifying the distances therefrom within which no such permit shall be issued. The alcoholic beverage control division shall not allow the sale or consumption of alcoholic beverages in or on the campus of any public school or college, and no alcoholic beverage shall be for sale or consumed at any public athletic event at any grammar or high school or any college.

(h) To adopt and promulgate, repeal and amend, such rules, regulations, standards, requirements and orders, not inconsistent with this chapter or any law of this state or of the United States, as it deems necessary to control the manufacture, importation, transportation, distribution and sale of alcoholic liquor, whether intended for beverage or nonbeverage use in a manner not inconsistent with the provisions of this chapter or any other statute, including the native wine laws.

(i) To call upon other administrative departments of the state, county and municipal governments, county and city police departments and upon prosecuting officers for such information and assistance as it may deem necessary in the performance of its duties.

(j) To prepare and submit to the Governor during the month of January of each year a detailed report of its official acts during the preceding fiscal year ending June 30, including such recommendations as it may see fit to make, and to transmit a like report to each member of the Legislature of this state upon the convening thereof at its next regular session.

(k) To inspect, or cause to be inspected, any premises where alcoholic liquors intended for sale are manufactured, stored, distributed or sold, and to examine or cause to be examined all books and records pertaining to the business conducted therein.

(l) In the conduct of any hearing authorized to be held by the commission, to hear testimony and take proof material for its information in the discharge of its duties under this chapter; to issue subpoenas, which shall be effective in any part of this state, requiring the attendance of witnesses and the production of books and records; to administer or cause to be administered oaths; and to examine or cause to be examined any witness under oath. Any court of record, or any judge thereof, may by order duly entered require the attendance of witnesses and the production of relevant books subpoenaed by the commission, and such court or judge may compel obedience to its or his order by proceedings for contempt.

(m) To investigate the administration of laws in relation to alcoholic liquors in this and other states and any foreign countries, and to recommend from time to time to the Governor and through him to the Legislature of this state such amendments to this chapter, if any, as it may think desirable.

(n) To designate hours and days when alcoholic beverages may be sold in different localities in the state which permit such sale.

(o) To assign employees to posts of duty at locations where they will be most beneficial for the control of alcoholic beverages, to remove, to dismiss, to suspend without pay, to act as a trial board in hearings based upon charges against employees. After twelve (12) months' service, no employee shall be removed, dismissed, demoted or suspended without just cause and only after being furnished with reasons for such removal, dismissal, demotion or suspension, and upon request given a hearing in his own defense.

(p) All hearings conducted by the commission shall be open to the public, and, when deemed necessary, a written transcript shall be made of the testimony introduced thereat.

(q) To adopt and promulgate rules and regulations for suspension or revocation of identification cards of employees of permittees for violations of the alcoholic beverage control laws, rules or regulations.

(r) To enforce the provisions made unlawful by Section 67-3-53.

(s) To adopt and promulgate rules and regulations for suspension or revocation of responsible vendor permits and server permits.

[From and after July 1, 2000, this section shall read as follows:]

67-1-37. The State Tax Commission, under its duties and powers with respect to the Alcoholic Beverage Control Division therein, shall have the following powers, functions and duties:

(c) To prescribe forms of permits and applications for permits and of all reports which it deems necessary in administering this chapter.

(e) To issue rules regulating the advertising of alcoholic beverages in the state in any class of media and permitting advertising of the retail price of alcoholic beverages.

(n) To designate hours and days when alcoholic beverages may be sold in different localities in the state which permit such sale.

(p) All hearings conducted by the commission shall be open to the public, and, when deemed necessary, a written transcript shall be made of the testimony introduced thereat.

(r) To adopt and promulgate rules and regulations for suspension or revocation of responsible vendor permits and server permits.

SECTION 13. Section 67-1-71, Mississippi Code of 1972, is amended as follows:

67-1-71. The commission may revoke or suspend any permit issued by it for a violation by the permittee of any of the provisions of this chapter or of the regulations promulgated under it by the commission.

Permits must be revoked or suspended for the following causes:

(a) Conviction of the permittee for the violation of any of the provisions of this chapter;

(b) Willful failure or refusal by any permittee to comply with any of the provisions of this chapter or of any rule or regulation adopted pursuant thereto;

(d) Conviction of one or more of the clerks, agents or employees of the permittee, of any violation of this chapter upon the premises covered by such permit within a period of time as designated by the rules or regulations of the commission;

(e) The possession on the premises of any retail permittee of any alcoholic beverages upon which the tax has not been paid;

(f) The willful failure of any permittee to keep the records or make the reports required by this chapter, or to allow an inspection of such records by any duly authorized person;

(g) The suspension or revocation of a permit issued to the permittee by the federal government, or conviction of violating any federal law relating to alcoholic beverages;

(h) The failure to furnish any bond required by this chapter within fifteen (15) days after notice from the commission; and

(i) The conducting of any form of illegal gambling on the premises of any permittee or on any premises connected therewith or the presence on any such premises of any gambling device with the knowledge of the permittee.

The provisions of item (i) of this section shall not apply to gambling or the presence of any gambling devices, with knowledge of the permittee, on board a cruise vessel in the waters within the State of Mississippi, which lie adjacent to the State of Mississippi south of the three (3) most southern counties in the State of Mississippi, or on any vessel as defined in Section 27-109-1 whenever such vessel is on the Mississippi River or navigable waters within any county bordering on the Mississippi River. The commission may, in its discretion, issue on-premises retailer's permits to a common carrier of the nature described in this paragraph.

In executing its authority under this section, the commission shall recognize the defense created for permittees certified under the Responsible Alcohol Vendor Law.

No permit shall be revoked except after a hearing by the commission with reasonable notice to the permittee and an opportunity for him to appear and defend.

In addition to the causes specified in this section and other provisions of this chapter, the commission shall be authorized to suspend the permit of any permit holder for being out of compliance with an order for support, as defined in Section 93-11-153. The procedure for suspension of a permit for being out of compliance with an order for support, and the procedure for the reissuance or reinstatement of a permit suspended for that purpose, and the payment of any fees for the reissuance or reinstatement of a permit suspended for that purpose, shall be governed by Section 93-11-157 or 93-11-163, as the case may be. If there is any conflict between any provision of Section 93-11-157 or 93-11-163 and any provision of this chapter, the provisions of Section 93-11-157 or 93-11-163, as the case may be, shall control.

SECTION 14. Section 67-3-29, Mississippi Code of 1972, is amended as follows:

67-3-29. (1) The commissioner shall revoke any permit granted by authority of this chapter to any person who shall violate any of the provisions of this chapter or the revenue laws of this state relating to engaging in transporting, storing, selling, distributing, possessing, receiving or manufacturing of wines or beers, or any person who shall hereafter be convicted of the unlawful sale of intoxicating liquor, or any person who shall allow or permit any form of illegal gambling or immorality on the premises described in such permit.

(2) If any person exercising any privilege taxable under the provisions of Chapter 71 of Title 27, Mississippi Code of 1972, shall willfully neglect or refuse to comply with the provisions of such chapter, or any rules or regulations promulgated by the commissioner under authority of such chapter, or the provisions of this chapter, the commissioner shall be authorized to revoke the permit theretofore issued to such person, after giving to such person ten (10) days notice of the intention of the commissioner to revoke such permit. The commissioner may, however, suspend such permit instead of revoking same if, in his opinion, sufficient cause is shown for a suspension rather than revocation. Any person whose permit shall have been revoked by the commissioner shall be thereafter prohibited from exercising any privilege under the provisions of Chapter 71 of Title 27, Mississippi Code of 1972, for a period of two (2) years from the date of such revocation. The commissioner may, however, for good cause shown, grant a new permit upon such conditions as the commissioner may prescribe. Any person whose permit shall have been suspended by the commissioner shall be prohibited from exercising any privilege under the provisions of Chapter 71 of Title 27, Mississippi Code of 1972, during the period of such suspension. Failure of such person to comply with the terms of the suspension shall be cause for revocation of his permit, in addition to the other penalties provided by law.

(3) In addition to the reasons specified in this section and other provisions of this chapter, the commissioner shall be authorized to suspend the permit of any permit holder for being out of compliance with an order for support, as defined in Section 93-11-153. The procedure for suspension of a permit for being out of compliance with an order for support, and the procedure for the reissuance or reinstatement of a permit suspended for that purpose, and the payment of any fees for the reissuance or reinstatement of a permit suspended for that purpose, shall be governed by Section 93-11-157 or 93-11-163, as the case may be. If there is any conflict between any provision of Section 93-11-157 or 93-11-163 and any provision of this chapter, the provisions of Section 93-11-157 or 93-11-163, as the case may be, shall control.

(4) In executing its authority under this section, the commission shall recognize the defense created for permittees certified under the Responsible Alcohol Vendor Law.

SECTION 15. This act shall take effect and be in force from and after July 1, 1999.