Third Substitute S.B. 211

Senator Curtis S. Bramble proposes the following substitute bill:

1 ALCOHOLIC BEVERAGE CONTROL
2 AMENDMENTS
3 2008 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: Curtis S. Bramble
6 House Sponsor: Stephen H. Urquhart
7
8 LONG TITLE
9 General Description:
10 This bill modifies the Alcoholic Beverage Control Act.
11 Highlighted Provisions:
12 This bill:
13 . modifies definition provisions;
14 . addresses presentation of proof of age;
15 . enacts the Malted Beverage Act, including:
16 . providing for the treatment of a flavored malt beverage as a liquor;
17 . addressing approval of the label and packaging of a malt beverage; and
18 . providing transition protections;
19 . enacts provisions related to criminal background checks;
20 . addresses proximity restrictions;
21 . addresses markups;
22 . adjusts quota requirements for licenses;
23 . addresses the dispensing of spirituous liquor;
24 . addresses the amount of spirituous liquor that may be before a patron or attendee;
25 . prohibits conduct related to controlled substances and drug paraphernalia;

26 . modifies requirements related to price lists and private clubs;
27 . establishes requirements related to the display of beer;
28 . expands provisions prohibiting operation without a license or permit; and
29 . makes technical and conforming amendments.
30 Monies Appropriated in this Bill:
31 This bill appropriates:
32 . as an ongoing appropriation subject to future budget constraints, $1,589,100 from
33 the Liquor Control Fund for fiscal year 2008-09 to the Division of Substance Abuse
34 and Mental Health within the Department of Human Services.
35 Other Special Clauses:
36 None
37 Utah Code Sections Affected:
38 AMENDS:
39 32A-1-105, as last amended by Laws of Utah 2007, Chapter 284
40 32A-1-116, as last amended by Laws of Utah 2007, Chapter 284
41 32A-1-119, as last amended by Laws of Utah 2007, Chapter 284
42 32A-1-122, as last amended by Laws of Utah 2007, Chapter 284
43 32A-1-302, as last amended by Laws of Utah 2002, Chapter 161
44 32A-1-304, as last amended by Laws of Utah 2002, Chapter 161
45 32A-2-101, as last amended by Laws of Utah 2003, Chapters 292 and 314
46 32A-3-101, as last amended by Laws of Utah 2003, Chapters 292 and 314
47 32A-3-102, as last amended by Laws of Utah 2003, Chapter 314
48 32A-4-101, as last amended by Laws of Utah 2006, Chapter 162
49 32A-4-102, as last amended by Laws of Utah 2007, Chapter 284
50 32A-4-104, as renumbered and amended by Laws of Utah 1990, Chapter 23
51 32A-4-106, as last amended by Laws of Utah 2007, Chapters 284, 329, and 341
52 32A-4-206, as last amended by Laws of Utah 2007, Chapters 284 and 341
53 32A-4-302, as last amended by Laws of Utah 2006, Chapter 162
54 32A-4-303, as last amended by Laws of Utah 2007, Chapter 284
55 32A-4-305, as enacted by Laws of Utah 2003, Chapter 314
56 32A-4-307, as last amended by Laws of Utah 2007, Chapters 284, 329, and 341

57 32A-4-401, as last amended by Laws of Utah 2007, Chapter 284
58 32A-4-402, as last amended by Laws of Utah 2007, Chapter 284
59 32A-4-406, as last amended by Laws of Utah 2007, Chapters 284 and 341
60 32A-5-101, as last amended by Laws of Utah 2006, Chapter 162
61 32A-5-102, as last amended by Laws of Utah 2007, Chapter 284
62 32A-5-104, as last amended by Laws of Utah 2003, Chapter 314
63 32A-5-107, as last amended by Laws of Utah 2007, Chapters 284, 329, and 341
64 32A-7-101, as last amended by Laws of Utah 2004, Chapter 268
65 32A-7-106, as last amended by Laws of Utah 2007, Chapters 284 and 341
66 32A-8-101, as last amended by Laws of Utah 2003, Chapter 314
67 32A-8-401, as last amended by Laws of Utah 2004, Chapter 268
68 32A-8-501, as last amended by Laws of Utah 2003, Chapter 314
69 32A-8-503, as last amended by Laws of Utah 2004, Chapter 268
70 32A-8-505, as last amended by Laws of Utah 2007, Chapter 284
71 32A-10-101, as last amended by Laws of Utah 2007, Chapter 284
72 32A-10-102, as last amended by Laws of Utah 2007, Chapter 284
73 32A-10-201, as last amended by Laws of Utah 2006, Chapter 162
74 32A-10-202, as last amended by Laws of Utah 2007, Chapter 284
75 32A-10-204, as last amended by Laws of Utah 1991, Chapter 5
76 32A-10-206, as last amended by Laws of Utah 2007, Chapters 284 and 341
77 32A-10-306, as last amended by Laws of Utah 2007, Chapters 284 and 341
78 32A-11-106, as last amended by Laws of Utah 2004, Chapter 268
79 32A-12-212, as last amended by Laws of Utah 2005, Chapter 152
80 32A-12-222, as last amended by Laws of Utah 2004, Chapter 268
81 32A-12-301, as last amended by Laws of Utah 2006, Chapter 162
82 32A-12-307, as last amended by Laws of Utah 2003, Chapter 314
83 32A-12-603, as last amended by Laws of Utah 2004, Chapter 268
84 53-10-102, as last amended by Laws of Utah 2000, Chapter 1
85 76-5-113, as last amended by Laws of Utah 2004, Chapter 280
86 ENACTS:
87 32A-1-701, Utah Code Annotated 1953

88 32A-1-702, Utah Code Annotated 1953
89 32A-1-703, Utah Code Annotated 1953
90 32A-1-704, Utah Code Annotated 1953
91 32A-1-801, Utah Code Annotated 1953
92 32A-1-802, Utah Code Annotated 1953
93 32A-1-803, Utah Code Annotated 1953
94 32A-1-804, Utah Code Annotated 1953
95 32A-1-805, Utah Code Annotated 1953
96 32A-1-806, Utah Code Annotated 1953
97 32A-1-807, Utah Code Annotated 1953
98 32A-1-808, Utah Code Annotated 1953
99 32A-1-809, Utah Code Annotated 1953
100
101 Be it enacted by the Legislature of the state of Utah:
102 Section 1. Section 32A-1-105 is amended to read:
103 32A-1-105. Definitions.
104 As used in this title:
105 (1) "Airport lounge" means a place of business licensed to sell an alcoholic [beverages]
106 beverage, at retail, for consumption on its premises located at an international airport with a
107 United States Customs office on the premises of the international airport.
108 (2) "Alcoholic [beverages" means "beer" and "liquor"] beverage" means the following
109 as the [terms are] term is defined in this section[.]:
110 (a) beer;
111 (b) flavored malt beverage; and
112 (c) liquor, which on or after October 1, 2008, includes a flavored malt beverage.
113 (3) (a) "Alcoholic [products] product" means [all products] a product that:
114 [(i) contain:]
115 [(A)] (i) contains at least [63/100 of 1%] .5% of alcohol by volume; [or] and
116 [(B) at least 1/2 of 1% by weight; and]
117 (ii) [are] is obtained by fermentation, infusion, decoction, brewing, distillation, or [any]
118 other process that uses [any] liquid or combinations of liquids, whether drinkable or not, to

119 create alcohol in an amount greater than the amount prescribed in Subsection (3)(a)(i).
120 (b) "Alcoholic [products] product" does not include any of the following common
121 items that otherwise come within the definition of an alcoholic [products] product:
122 (i) [extracts] except as provided in Subsection (3)(c), extract;
123 (ii) [vinegars] vinegar;
124 (iii) [ciders] cider;
125 (iv) [essences] essence;
126 (v) [tinctures] tincture;
127 (vi) food [preparations] preparation; or
128 (vii) an over-the-counter [drugs and medicines] drug or medicine.
129 (c) An extract containing alcohol obtained by distillation is regulated as an alcoholic
130 product when it is used as a flavoring in the manufacturing of an alcoholic product.
131 (4) "Bar" means a counter or similar structure:
132 (a) at which an alcoholic [beverages are] beverage is:
133 (i) stored; or
134 (ii) dispensed; or
135 (b) from which an alcoholic [beverages are] beverage is served.
136 (5) (a) ["Beer"] Subject to Subsection (5)(d), "beer" means [any] a product that:
137 (i) contains [63/100 of 1%] at least .5% of alcohol by volume [or 1/2 of 1% of alcohol
138 by weight], but not more than 4% of alcohol by volume or 3.2% by weight; and
139 (ii) is obtained by fermentation, infusion, or decoction of [any] malted grain.
140 (b) Beer may or may not contain hops or other vegetable products.
141 (c) Beer includes a product that:
142 (i) contains alcohol in the percentages described in Subsection (5)(a); and
143 (ii) is referred to as:
144 [(A) malt liquor;]
145 [(B) malted beverages; or]
146 [(C) malt coolers.]
147 (A) beer;
148 (B) ale;
149 (C) porter;

150 (D) stout;
151 (E) lager; or
152 (F) a malt or malted beverage.
153 (d) On or after October 1, 2008, "beer" does not include a flavored malt beverage.
154 (6) (a) "Beer retailer" means a business that is:
155 (i) engaged, primarily or incidentally, in the retail sale of beer to [patrons] a patron,
156 whether for consumption on or off the business premises; and
157 (ii) licensed to sell beer by:
158 (A) the commission;
159 (B) a local authority; or
160 (C) both the commission and a local authority.
161 (b) (i) "Off-premise beer retailer" means a business that is engaged in the retail sale of
162 beer to [patrons] a patron for consumption off the beer retailer's premises.
163 (ii) "Off-premise beer retailer" does not include an on-premise beer retailer.
164 (c) "On-premise beer retailer" means a business that is engaged in the sale of beer to
165 [patrons] a patron for consumption on the beer retailer's premises, regardless of whether the
166 business sells beer for consumption off the beer retailer's premises.
167 (7) "Billboard" means [any] a public display used to advertise including:
168 (a) a light device;
169 (b) a painting;
170 (c) a drawing;
171 (d) a poster;
172 (e) a sign;
173 (f) a signboard; or
174 (g) a scoreboard.
175 (8) "Brewer" means [any] a person engaged in manufacturing:
176 (a) beer[.];
177 (b) heavy beer; or
178 (c) a flavored malt beverage.
179 (9) "Cash bar" means the service of an alcoholic [beverages] beverage:
180 (a) at:

181 (i) a banquet; or
182 (ii) a temporary event for which a permit is issued under this title; and
183 (b) if an attendee at the banquet or temporary event is charged for the alcoholic
184 beverage.
185 (10) "Chartered bus" means a passenger bus, coach, or other motor vehicle provided by
186 a bus company to a group of persons pursuant to a common purpose:
187 (a) under a single contract;
188 (b) at a fixed charge in accordance with the bus company's tariff; and
189 (c) for the purpose of giving the group of persons the exclusive use of the passenger
190 bus, coach, or other motor vehicle and a driver to travel together to [a] one or more specified
191 [destination or] destinations.
192 (11) "Church" means a building:
193 (a) set apart for the purpose of worship;
194 (b) in which religious services are held;
195 (c) with which clergy is associated; and
196 (d) which is tax exempt under the laws of this state.
197 (12) "Club" and "private club" means any of the following organized primarily for the
198 benefit of its members:
199 (a) a social club;
200 (b) a recreational association;
201 (c) a fraternal association;
202 (d) an athletic association; or
203 (e) a kindred association.
204 (13) "Commission" means the Alcoholic Beverage Control Commission.
205 (14) "Community location" means:
206 (a) a public or private school;
207 (b) a church;
208 (c) a public library;
209 (d) a public playground; or
210 (e) a public park.
211 (15) "Community location governing authority" means:

212 (a) the governing body of the community location; or
213 (b) if the commission does not know who is the governing body of a community
214 location, a person who appears to the commission to have been given on behalf of the
215 community location authority to prohibit an activity at the community location.
216 [(14)] (16) "Department" means the Department of Alcoholic Beverage Control.
217 (17) "Director," unless the context requires otherwise, means the director appointed
218 under Section 32A-1-108 .
219 [(15)] (18) "Distressed merchandise" means [any] an alcoholic beverage in the
220 possession of the department that is saleable, but for some reason is unappealing to the public.
221 (19) "Flavored malt beverage" means a beverage:
222 (a) that contains at least .5% alcohol by volume;
223 (b) that is treated by processing, filtration, or another method of manufacture that is not
224 generally recognized as a traditional process in the production of a beer as described in 27
225 C.F.R. Sec. 25.55;
226 (c) to which is added a flavor or other ingredient containing alcohol, except for a hop
227 extract; and
228 (d) (i) for which the producer is required to file a formula for approval with the United
229 States Alcohol and Tobacco Trade and Tax Bureau pursuant to 27 C.F.R. Sec. 25.55; or
230 (ii) that is not exempt under Subdivision (f) of 27 C.F.R. Sec. 25.55.
231 [(16)] (20) "Guest" means a person accompanied by an active member or visitor of a
232 club who enjoys only those privileges derived from the host for the duration of the visit to the
233 club.
234 [(17)] (21) (a) "Heavy beer" means [any] a product that:
235 (i) contains more than 4% alcohol by volume; and
236 (ii) is obtained by fermentation, infusion, or decoction of [any] malted grain.
237 (b) "Heavy beer" is considered "liquor" for the purposes of this title.
238 [(18)] (22) "Hosted bar" means the service of an alcoholic [beverages] beverage:
239 (a) without charge; and
240 (b) at a:
241 (i) banquet; or
242 (ii) privately hosted event.

243 [(19)] (23) "Identification card" means [the] an identification card issued under Title
244 53, Chapter 3, Part 8, Identification Card Act.
245 [(20)] (24) "Interdicted person" means a person to whom the sale, gift, or provision of
246 an alcoholic beverage is prohibited by:
247 (a) law; or
248 (b) court order.
249 [(21)] (25) "Intoxicated" means that to a degree that is unlawful under Section
250 76-9-701 a person is under the influence of:
251 (a) an alcoholic beverage;
252 (b) a controlled substance;
253 (c) a substance having the property of releasing toxic vapors; or
254 (d) a combination of Subsections [(21)] (25)(a) through (c).
255 [(22)] (26) "Licensee" means [any] a person issued a license by the commission to sell,
256 manufacture, store, or allow consumption of an alcoholic [beverages] beverage on premises
257 owned or controlled by the person.
258 [(23)] (27) "Limousine" means [any] a motor vehicle licensed by the state or a local
259 authority, other than a bus or taxicab:
260 (a) in which the driver and [passengers] a passenger are separated by a partition, glass,
261 or other barrier; and
262 (b) that is provided by a company to [an individual or] one or more individuals at a
263 fixed charge in accordance with the company's tariff for the purpose of giving the [individual
264 or] one or more individuals the exclusive use of the limousine and a driver to travel to [a] one
265 or more specified [destination or] destinations.
266 [(24)] (28) (a) (i) "Liquor" means alcohol, or [any] an alcoholic, spirituous, vinous,
267 fermented, malt, or other liquid, or combination of liquids, a part of which is spirituous,
268 vinous, or fermented, [and all other drinks] or other drink, or drinkable [liquids] liquid that
269 [contain more than 1/2 of 1% of]:
270 (A) contains at least .5% alcohol by volume; and
271 (B) is suitable to use for beverage purposes.
272 (ii) On or after October 1, 2008, "liquor" includes a flavored malt beverage.
273 (b) "Liquor" does not include [any] a beverage defined as a beer[, malt liquor, or

274 malted beverage that has an alcohol content of less than 4% alcohol by volume].
275 [(25)] (29) "Local authority" means:
276 (a) the governing body of the county if the premises are located in an unincorporated
277 area of a county; or
278 (b) the governing body of the city or town if the premises are located in an incorporated
279 city or a town.
280 [(26)] (30) "Manufacture" means to distill, brew, rectify, mix, compound, process,
281 ferment, or otherwise make an alcoholic product for personal use or for sale or distribution to
282 others.
283 [(27)] (31) "Member" means a person who, after paying regular dues, has full
284 privileges of a club under this title.
285 [(28)] (32) (a) "Military installation" means a base, air field, camp, post, station, yard,
286 center, or homeport facility for [any] a ship:
287 (i) (A) under the control of the United States Department of Defense; or
288 (B) of the National Guard;
289 (ii) that is located within the state; and
290 (iii) including [any] a leased facility.
291 (b) "Military installation" does not include [any] a facility used primarily for:
292 (i) civil works;
293 (ii) rivers and harbors projects; or
294 (iii) flood control projects.
295 [(29)] (33) "Minor" means [any person] an individual under the age of 21 years.
296 [(30)] (34) "Nude," "nudity," or "state of nudity" means:
297 (a) the appearance of:
298 (i) the nipple or areola of a female human breast;
299 (ii) a human genital;
300 (iii) a human pubic area; or
301 (iv) a human anus; or
302 (b) a state of dress that fails to opaquely cover:
303 (i) the nipple or areola of a female human breast;
304 (ii) a human genital;

305 (iii) a human pubic area; or
306 (iv) a human anus.
307 [(31)] (35) "Outlet" means a location other than a state store or package agency where
308 an alcoholic [beverages are] beverage is sold pursuant to a license issued by the commission.
309 [(32)] (36) "Package" means any of the following containing liquor:
310 (a) a container;
311 (b) a bottle;
312 (c) a vessel; or
313 (d) other receptacle.
314 [(33)] (37) "Package agency" means a retail liquor location operated:
315 (a) under a contractual agreement with the department[,]; and
316 (b) by a person:
317 (i) other than the state[,]; and
318 (ii) who is authorized by the commission to sell package liquor for consumption off the
319 premises of the package agency.
320 [(34)] (38) "Package agent" means [any] a person permitted by the commission to
321 operate a package agency pursuant to a contractual agreement with the department to sell liquor
322 from premises that the package agent shall provide and maintain.
323 [(35)] (39) "Permittee" means [any] a person issued a permit by the commission to
324 perform [acts] an act or exercise [privileges] a privilege as specifically granted in the permit.
325 [(36)] (40) "Person" means [any] an individual, partnership, firm, corporation, limited
326 liability company, association, business trust, or other form of business enterprise, including a
327 receiver or trustee, and the plural as well as the singular number, unless the intent to give a
328 more limited meaning is disclosed by the context.
329 [(37)] (41) "Premises" means [any] a building, enclosure, room, or equipment used in
330 connection with the sale, storage, service, manufacture, distribution, or consumption of an
331 alcoholic [products] product, unless otherwise defined in this title or in the rules adopted by the
332 commission.
333 [(38)] (42) "Prescription" means a writing in legal form, signed by a physician or
334 dentist and given to a patient for obtaining an alcoholic beverage for medicinal purposes only.
335 [(39)] (43) (a) "Privately hosted event" or "private social function" means a specific

336 social, business, or recreational event:
337 (i) for which an entire room, area, or hall [has been] is leased or rented[,] in advance by
338 an identified group[,]; and [the event or function]
339 (ii) that is limited in attendance to people who [have been] are specifically designated
340 and their guests.
341 (b) "Privately hosted event" and "private social function" does not include [events or
342 functions] an event to which the general public is invited, whether for an admission fee or not.
343 [(40)] (44) "Proof of age" means:
344 (a) an identification card;
345 (b) an identification that:
346 (i) is substantially similar to an identification card;
347 (ii) is issued in accordance with the laws of a state other than Utah in which the
348 identification is issued;
349 (iii) includes date of birth; and
350 (iv) has a picture affixed;
351 (c) a valid driver license certificate that:
352 (i) includes date of birth;
353 (ii) has a picture affixed; and
354 (iii) is issued:
355 (A) under Title 53, Chapter 3, Uniform Driver License Act; or
356 (B) in accordance with the laws of the state in which it is issued;
357 (d) a military identification card that:
358 (i) includes date of birth; and
359 (ii) has a picture affixed; or
360 (e) a valid passport.
361 [(41)] (45) (a) "Public building" means [any] a building or permanent structure owned
362 or leased by the state, a county, or local government entity that is used for:
363 (i) public education;
364 (ii) transacting public business; or
365 (iii) regularly conducting government activities.
366 (b) "Public building" does not mean or refer to [any] a building owned by the state or a

367 county or local government entity when the building is used by [anyone] a person, in whole or
368 in part, for a proprietary [functions] function.
369 [(42)] (46) "Representative" means an individual who is compensated by salary,
370 commission, or [any] other means for representing and selling [the] an alcoholic beverage
371 [products] product of a manufacturer, supplier, or importer of liquor[,] including:
372 (a) wine[, or];
373 (b) heavy beer; or
374 (c) on or after October 1, 2008, a flavored malt beverage.
375 [(43)] (47) "Residence" means [the] a person's principal place of abode within Utah.
376 [(44)] (48) "Restaurant" means [any] a business establishment:
377 (a) where a variety of foods is prepared and complete meals are served to the general
378 public;
379 (b) located on a premises having adequate culinary fixtures for food preparation and
380 dining accommodations; and
381 (c) that is engaged primarily in serving meals to the general public.
382 [(45)] (49) "Retailer" means [any] a person engaged in the sale or distribution of an
383 alcoholic [beverages] beverage to [the] a consumer.
384 [(46)] (50) (a) "Sample" includes:
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