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Second Substitute S.B. 119
This document includes Senate 2nd and 3rd Reading Floor Amendments incorporated into the bill on Mon, Mar 5, 2012 at 4:21 PM by kcallred. -->
8 LONG TITLE
9 General Description:
10 This bill modifies the Alcoholic Beverage Control Act to address sampling of liquor.
11 Highlighted Provisions:
12 This bill:
13 . defines terms;
14 . allows sampling of liquor by retail licensees under certain circumstances;
15 . addresses authority of local representatives;
16 . addresses giving away of a product except for testing, analysis, and sampling; and
17 . makes technical and conforming amendments.
18 Money Appropriated in this Bill:
20 Other Special Clauses:
22 Utah Code Sections Affected:
24 32B-1-102, as last amended by Laws of Utah 2011, Second Special Session, Chapter 2
25 32B-4-705, as last amended by Laws of Utah 2011, Chapters 307 and 334
27 32B-11-608, as last amended by Laws of Utah 2011, Chapters 307 and 334
29 Be it enacted by the Legislature of the state of Utah:
30 Section 1. Section 32B-1-102 is amended to read:
31 32B-1-102. Definitions.
32 As used in this title:
33 (1) "Airport lounge" means a business location:
34 (a) at which an alcoholic product is sold at retail for consumption on the premises; and
35 (b) that is located at an international airport with a United States Customs office on the
36 premises of the international airport.
37 (2) "Airport lounge license" means a license issued in accordance with Chapter 5,
38 Retail License Act, and Chapter 6, Part 5, Airport Lounge License.
39 (3) "Alcoholic beverage" means the following:
40 (a) beer; or
41 (b) liquor.
42 (4) (a) "Alcoholic product" means a product that:
43 (i) contains at least .5% of alcohol by volume; and
44 (ii) is obtained by fermentation, infusion, decoction, brewing, distillation, or other
45 process that uses liquid or combinations of liquids, whether drinkable or not, to create alcohol
46 in an amount equal to or greater than .5% of alcohol by volume.
47 (b) "Alcoholic product" includes an alcoholic beverage.
48 (c) "Alcoholic product" does not include any of the following common items that
49 otherwise come within the definition of an alcoholic product:
50 (i) except as provided in Subsection (4)(d), an extract;
51 (ii) vinegar;
52 (iii) cider;
53 (iv) essence;
54 (v) tincture;
55 (vi) food preparation; or
56 (vii) an over-the-counter medicine.
58 when it is used as a flavoring in the manufacturing of an alcoholic product.
59 (5) "Alcohol training and education seminar" means a seminar that is:
60 (a) required by Chapter 5, Part 4, Alcohol Training and Education Act; and
61 (b) described in Section 62A-15-401 .
62 (6) "Banquet" means an event:
63 (a) that is held at one or more designated locations approved by the commission in or
64 on the premises of a:
65 (i) hotel;
66 (ii) resort facility;
67 (iii) sports center; or
68 (iv) convention center;
69 (b) for which there is a contract:
70 (i) between a person operating a facility listed in Subsection (6)(a) and another person;
72 (ii) under which the person operating a facility listed in Subsection (6)(a) is required to
73 provide an alcoholic product at the event; and
74 (c) at which food and alcoholic products may be sold, offered for sale, or furnished.
75 (7) (a) "Bar" means a surface or structure:
76 (i) at which an alcoholic product is:
77 (A) stored; or
78 (B) dispensed; or
79 (ii) from which an alcoholic product is served.
80 (b) "Bar structure" means a surface or structure on a licensed premises if on or at any
81 place of the surface or structure an alcoholic product is:
82 (i) stored; or
83 (ii) dispensed.
84 (8) (a) Subject to Subsection (8)(d), "beer" means a product that:
85 (i) contains at least .5% of alcohol by volume, but not more than 4% of alcohol by
86 volume or 3.2% by weight; and
87 (ii) is obtained by fermentation, infusion, or decoction of malted grain.
89 (c) "Beer" includes a product that:
90 (i) contains alcohol in the percentages described in Subsection (8)(a); and
91 (ii) is referred to as:
92 (A) beer;
93 (B) ale;
94 (C) porter;
95 (D) stout;
96 (E) lager; or
97 (F) a malt or malted beverage.
98 (d) "Beer" does not include a flavored malt beverage.
99 (9) "Beer-only restaurant license" means a license issued in accordance with Chapter 5,
100 Retail License Act, and Chapter 6, Part 9, Beer-only Restaurant License.
101 (10) "Beer retailer" means a business:
102 (a) that is engaged, primarily or incidentally, in the retail sale of beer to a patron,
103 whether for consumption on or off the business premises; and
104 (b) to whom a license is issued:
105 (i) for an off-premise beer retailer, in accordance with Chapter 7, Part 2, Off-premise
106 Beer Retailer Local Authority; or
107 (ii) for an on-premise beer retailer, in accordance with Chapter 5, Retail License Act,
108 and Chapter 6, Part 7, On-premise Beer Retailer License.
109 (11) "Beer wholesaling license" means a license:
110 (a) issued in accordance with Chapter 13, Beer Wholesaling License Act; and
111 (b) to import for sale, or sell beer in wholesale or jobbing quantities to one or more
112 retail licensees or off-premise beer retailers.
113 (12) "Billboard" means a public display used to advertise, including:
114 (a) a light device;
115 (b) a painting;
116 (c) a drawing;
117 (d) a poster;
118 (e) a sign;
120 (g) a scoreboard.
121 (13) "Brewer" means a person engaged in manufacturing:
122 (a) beer;
123 (b) heavy beer; or
124 (c) a flavored malt beverage.
125 (14) "Brewery manufacturing license" means a license issued in accordance with
126 Chapter 11, Part 5, Brewery Manufacturing License.
127 (15) "Certificate of approval" means a certificate of approval obtained from the
128 department under Section 32B-11-201 .
129 (16) "Chartered bus" means a passenger bus, coach, or other motor vehicle provided by
130 a bus company to a group of persons pursuant to a common purpose:
131 (a) under a single contract;
132 (b) at a fixed charge in accordance with the bus company's tariff; and
133 (c) to give the group of persons the exclusive use of the passenger bus, coach, or other
134 motor vehicle, and a driver to travel together to one or more specified destinations.
135 (17) "Church" means a building:
136 (a) set apart for worship;
137 (b) in which religious services are held;
138 (c) with which clergy is associated; and
139 (d) that is tax exempt under the laws of this state.
140 (18) (a) "Club license" means a license issued in accordance with Chapter 5, Retail
141 License Act, and Chapter 6, Part 4, Club License.
142 (b) "Club license" includes:
143 (i) a dining club license;
144 (ii) an equity club license;
145 (iii) a fraternal club license; or
146 (iv) a social club license.
147 (19) "Commission" means the Alcoholic Beverage Control Commission created in
148 Section 32B-2-201 .
149 (20) "Commissioner" means a member of the commission.
151 (a) a public or private school;
152 (b) a church;
153 (c) a public library;
154 (d) a public playground; or
155 (e) a public park.
156 (22) "Community location governing authority" means:
157 (a) the governing body of the community location; or
158 (b) if the commission does not know who is the governing body of a community
159 location, a person who appears to the commission to have been given on behalf of the
160 community location the authority to prohibit an activity at the community location.
161 (23) "Container" means a receptacle that contains an alcoholic product, including:
162 (a) a bottle;
163 (b) a vessel; or
164 (c) a similar item.
165 (24) "Convention center" means a facility that is:
166 (a) in total at least 30,000 square feet; and
167 (b) otherwise defined as a "convention center" by the commission by rule.
168 (25) (a) Subject to Subsection (25)(b), "counter" means a surface or structure in a
169 dining area of a licensed premises where seating is provided to a patron for service of food.
170 (b) "Counter" does not include a surface or structure if on or at any point of the surface
171 or structure an alcoholic product is:
172 (i) stored; or
173 (ii) dispensed.
174 (26) "Department" means the Department of Alcoholic Beverage Control created in
175 Section 32B-2-203 .
176 (27) "Department compliance officer" means an individual who is:
177 (a) an auditor or inspector; and
178 (b) employed by the department.
179 (28) "Department sample" means liquor that is placed in the possession of the
180 department for testing, analysis, and sampling.
182 License Act, and Chapter 6, Part 4, Club License, that is designated by the commission as a
183 dining club license.
184 (30) "Director," unless the context requires otherwise, means the director of the
186 (31) "Disciplinary proceeding" means an adjudicative proceeding permitted under this
188 (a) against a person subject to administrative action; and
189 (b) that is brought on the basis of a violation of this title.
190 (32) (a) Subject to Subsection (32)(b), "dispense" means:
191 (i) drawing of an alcoholic product:
192 (A) from an area where it is stored; or
193 (B) as provided in Subsection 32B-6-205 (12)(b)(ii), 32B-6-305 (12)(b)(ii),
194 32B-6-805 (15)(b)(ii), or 32B-6-905 (12)(b)(ii); and
195 (ii) using the alcoholic product described in Subsection (32)(a)(i) on the premises of
196 the licensed premises to mix or prepare an alcoholic product to be furnished to a patron of the
197 retail licensee.
198 (b) The definition of "dispense" in this Subsection (32) applies only to:
199 (i) a full-service restaurant license;
200 (ii) a limited-service restaurant license;
201 (iii) a reception center license; and
202 (iv) a beer-only restaurant license.
203 (33) "Distillery manufacturing license" means a license issued in accordance with
204 Chapter 11, Part 4, Distillery Manufacturing License.
205 (34) "Distressed merchandise" means an alcoholic product in the possession of the
206 department that is saleable, but for some reason is unappealing to the public.
207 (35) "Educational facility" includes:
208 (a) a nursery school;
209 (b) an infant day care center; and
210 (c) a trade and technical school.
211 (36) "Equity club license" means a license issued in accordance with Chapter 5, Retail
213 equity club license.
214 (37) "Event permit" means:
215 (a) a single event permit; or
216 (b) a temporary beer event permit.
217 (38) "Exempt license" means a license exempt under Section 32B-1-201 from being
218 considered in determining the total number of a retail license that the commission may issue at
219 any time.
220 (39) (a) "Flavored malt beverage" means a beverage:
221 (i) that contains at least .5% alcohol by volume;
222 (ii) that is treated by processing, filtration, or another method of manufacture that is not
223 generally recognized as a traditional process in the production of a beer as described in 27
224 C.F.R. Sec. 25.55;
225 (iii) to which is added a flavor or other ingredient containing alcohol, except for a hop
226 extract; and
227 (iv) (A) for which the producer is required to file a formula for approval with the
228 federal Alcohol and Tobacco Tax and Trade Bureau pursuant to 27 C.F.R. Sec. 25.55; or
229 (B) that is not exempt under Subdivision (f) of 27 C.F.R. Sec. 25.55.
230 (b) "Flavored malt beverage" is considered liquor for purposes of this title.
231 (40) "Fraternal club license" means a license issued in accordance with Chapter 5,
232 Retail License Act, and Chapter 6, Part 4, Club License, that is designated by the commission
233 as a fraternal club license.
234 (41) "Full-service restaurant license" means a license issued in accordance with
235 Chapter 5, Retail License Act, and Chapter 6, Part 2, Full-service Restaurant License.
236 (42) (a) "Furnish" means by any means to provide with, supply, or give an individual
237 an alcoholic product, by sale or otherwise.
238 (b) "Furnish" includes to:
239 (i) serve;
240 (ii) deliver; or
241 (iii) otherwise make available.
242 (43) "Guest" means an individual who meets the requirements of Subsection
244 (44) "Health care practitioner" means:
245 (a) a podiatrist licensed under Title 58, Chapter 5a, Podiatric Physician Licensing Act;
246 (b) an optometrist licensed under Title 58, Chapter 16a, Utah Optometry Practice Act;
247 (c) a pharmacist licensed under Title 58, Chapter 17b, Pharmacy Practice Act;
248 (d) a physical therapist licensed under Title 58, Chapter 24b, Physical Therapy Practice
250 (e) a nurse or advanced practice registered nurse licensed under Title 58, Chapter 31b,
251 Nurse Practice Act;
252 (f) a recreational therapist licensed under Title 58, Chapter 40, Recreational Therapy
253 Practice Act;
254 (g) an occupational therapist licensed under Title 58, Chapter 42a, Occupational
255 Therapy Practice Act;
256 (h) a nurse midwife licensed under Title 58, Chapter 44a, Nurse Midwife Practice Act;
257 (i) a mental health professional licensed under Title 58, Chapter 60, Mental Health
258 Professional Practice Act;
259 (j) a physician licensed under Title 58, Chapter 67, Utah Medical Practice Act;
260 (k) an osteopath licensed under Title 58, Chapter 68, Utah Osteopathic Medical
261 Practice Act;
262 (l) a dentist or dental hygienist licensed under Title 58, Chapter 69, Dentist and Dental
263 Hygienist Practice Act; and
264 (m) a physician assistant licensed under Title 58, Chapter 70a, Physician Assistant Act.
265 (45) (a) "Heavy beer" means a product that:
266 (i) contains more than 4% alcohol by volume; and
267 (ii) is obtained by fermentation, infusion, or decoction of malted grain.
268 (b) "Heavy beer" is considered liquor for the purposes of this title.
269 (46) "Hotel" is as defined by the commission by rule.
270 (47) "Identification card" means an identification card issued under Title 53, Chapter 3,
271 Part 8, Identification Card Act.
272 (48) "Industry representative" means an individual who is compensated by salary,
273 commission, or other means for representing and selling an alcoholic product of a
275 (49) "Industry representative sample" means liquor that is placed in the possession of
276 the department for testing, analysis, and sampling by a local industry representative on the
277 premises of the department to educate the local industry representative of the quality and
278 characteristics of the product.
279 (50) "Interdicted person" means a person to whom the sale, offer for sale, or furnishing
280 of an alcoholic product is prohibited by:
281 (a) law; or
282 (b) court order.
283 (51) "Intoxicated" means that a person:
284 (a) is significantly impaired as to the person's mental or physical functions as a result of
285 the use of:
286 (i) an alcoholic product;
287 (ii) a controlled substance;
288 (iii) a substance having the property of releasing toxic vapors; or
289 (iv) a combination of Subsections (51)(a)(i) through (iii); and
290 (b) exhibits plain and easily observed outward manifestations of behavior or physical
291 signs produced by the over consumption of an alcoholic product.
292 (52) "Investigator" means an individual who is:
293 (a) a department compliance officer; or
294 (b) a nondepartment enforcement officer.
295 (53) "Invitee" is as defined in Section 32B-8-102 .
296 (54) "License" means:
297 (a) a retail license;
298 (b) a license issued in accordance with Chapter 11, Manufacturing and Related
299 Licenses Act;
300 (c) a license issued in accordance with Chapter 12, Liquor Warehousing License Act;
302 (d) a license issued in accordance with Chapter 13, Beer Wholesaling License Act.
303 (55) "Licensee" means a person who holds a license.
304 (56) "Limited-service restaurant license" means a license issued in accordance with
306 (57) "Limousine" means a motor vehicle licensed by the state or a local authority, other
307 than a bus or taxicab:
308 (a) in which the driver and a passenger are separated by a partition, glass, or other
310 (b) that is provided by a business entity to one or more individuals at a fixed charge in
311 accordance with the business entity's tariff; and
312 (c) to give the one or more individuals the exclusive use of the limousine and a driver
313 to travel to one or more specified destinations.
314 (58) (a) (i) "Liquor" means a liquid that:
315 (A) is:
316 (I) alcohol;
317 (II) an alcoholic, spirituous, vinous, fermented, malt, or other liquid;
318 (III) a combination of liquids a part of which is spirituous, vinous, or fermented; or
319 (IV) other drink or drinkable liquid; and
320 (B) (I) contains at least .5% alcohol by volume; and
321 (II) is suitable to use for beverage purposes.
322 (ii) "Liquor" includes:
323 (A) heavy beer;
324 (B) wine; and
325 (C) a flavored malt beverage.
326 (b) "Liquor" does not include beer.
327 (59) "Liquor Control Fund" means the enterprise fund created by Section 32B-2-301 .
328 (60) "Liquor warehousing license" means a license that is issued:
329 (a) in accordance with Chapter 12, Liquor Warehousing License Act; and
330 (b) to a person, other than a licensed manufacturer, who engages in the importation for
331 storage, sale, or distribution of liquor regardless of amount.
332 (61) "Local authority" means:
333 (a) for premises that are located in an unincorporated area of a county, the governing
334 body of a county; or
335 (b) for premises that are located in an incorporated city or a town, the governing body
337 (62) "Lounge or bar area" is as defined by rule made by the commission.
338 (63) "Manufacture" means to distill, brew, rectify, mix, compound, process, ferment, or
339 otherwise make an alcoholic product for personal use or for sale or distribution to others.
340 (64) "Member" means an individual who, after paying regular dues, has full privileges
341 in an equity club licensee or fraternal club licensee.
342 (65) (a) "Military installation" means a base, air field, camp, post, station, yard, center,
343 or homeport facility for a ship:
344 (i) (A) under the control of the United States Department of Defense; or
345 (B) of the National Guard;
346 (ii) that is located within the state; and
347 (iii) including a leased facility.
348 (b) "Military installation" does not include a facility used primarily for:
349 (i) civil works;
350 (ii) a rivers and harbors project; or
351 (iii) a flood control project.
352 (66) "Minor" means an individual under the age of 21 years.
353 (67) "Nondepartment enforcement agency" means an agency that:
354 (a) (i) is a state agency other than the department; or
355 (ii) is an agency of a county, city, or town; and
356 (b) has a responsibility to enforce one or more provisions of this title.
357 (68) "Nondepartment enforcement officer" means an individual who is:
358 (a) a peace officer, examiner, or investigator; and
359 (b) employed by a nondepartment enforcement agency.
360 (69) (a) "Off-premise beer retailer" means a beer retailer who is:
361 (i) licensed in accordance with Chapter 7, Part 2, Off-premise Beer Retailer Local
362 Authority; and
363 (ii) engaged in the retail sale of beer to a patron for consumption off the beer retailer's
365 (b) "Off-premise beer retailer" does not include an on-premise beer retailer.
366 (70) "On-premise banquet license" means a license issued in accordance with Chapter
368 (71) "On-premise beer retailer" means a beer retailer who is:
369 (a) authorized to sell, offer for sale, or furnish beer under a license issued in
370 accordance with Chapter 5, Retail License Act, and Chapter 6, Part 7, On-premise Beer
371 Retailer License; and
372 (b) engaged in the sale of beer to a patron for consumption on the beer retailer's
374 (i) regardless of whether the beer retailer sells beer for consumption off the licensed
375 premises; and
376 (ii) on and after March 1, 2012, operating:
377 (A) as a tavern; or
378 (B) in a manner that meets the requirements of Subsection 32B-6-703 (2)(e)(i).
379 (72) "Opaque" means impenetrable to sight.
380 (73) "Package agency" means a retail liquor location operated:
381 (a) under an agreement with the department; and
382 (b) by a person:
383 (i) other than the state; and
384 (ii) who is authorized by the commission in accordance with Chapter 2, Part 6, Package
385 Agency, to sell packaged liquor for consumption off the premises of the package agency.
386 (74) "Package agent" means a person who holds a package agency.
387 (75) "Patron" means an individual to whom food, beverages, or services are sold,
388 offered for sale, or furnished, or who consumes an alcoholic product including:
389 (a) a customer;
390 (b) a member;
391 (c) a guest;
392 (d) an attendee of a banquet or event;
393 (e) an individual who receives room service;
394 (f) a resident of a resort;
395 (g) a public customer under a resort spa sublicense, as defined in Section 32B-8-102 ;
397 (h) an invitee.
399 (a) Chapter 9, Event Permit Act; or
400 (b) Chapter 10, Special Use Permit Act.
401 (77) "Person subject to administrative action" means:
402 (a) a licensee;
403 (b) a permittee;
404 (c) a manufacturer;
405 (d) a supplier;
406 (e) an importer;
407 (f) one of the following holding a certificate of approval:
408 (i) an out-of-state brewer;
409 (ii) an out-of-state importer of beer, heavy beer, or flavored malt beverages; or
410 (iii) an out-of-state supplier of beer, heavy beer, or flavored malt beverages; or
411 (g) staff of:
412 (i) a person listed in Subsections (77)(a) through (f); or
413 (ii) a package agent.
414 (78) "Premises" means a building, enclosure, or room used in connection with the
415 storage, sale, furnishing, consumption, manufacture, or distribution, of an alcoholic product,
416 unless otherwise defined in this title or rules made by the commission.
417 (79) "Prescription" means an order issued by a health care practitioner when:
418 (a) the health care practitioner is licensed under Title 58, Occupations and Professions,
419 to prescribe a controlled substance, other drug, or device for medicinal purposes;
420 (b) the order is made in the course of that health care practitioner's professional
421 practice; and
422 (c) the order is made for obtaining an alcoholic product for medicinal purposes only.
423 (80) (a) "Private event" means a specific social, business, or recreational event:
424 (i) for which an entire room, area, or hall is leased or rented in advance by an identified
425 group; and
426 (ii) that is limited in attendance to people who are specifically designated and their
428 (b) "Private event" does not include an event to which the general public is invited,
430 (81) (a) "Proof of age" means:
431 (i) an identification card;
432 (ii) an identification that:
433 (A) is substantially similar to an identification card;
434 (B) is issued in accordance with the laws of a state other than Utah in which the
435 identification is issued;
436 (C) includes date of birth; and
437 (D) has a picture affixed;
438 (iii) a valid driver license certificate that:
439 (A) includes date of birth;
440 (B) has a picture affixed; and
441 (C) is issued:
442 (I) under Title 53, Chapter 3, Uniform Driver License Act; or
443 (II) in accordance with the laws of the state in which it is issued;
444 (iv) a military identification card that:
445 (A) includes date of birth; and
446 (B) has a picture affixed; or
447 (v) a valid passport.
448 (b) "Proof of age" does not include a driving privilege card issued in accordance with
449 Section 53-3-207 .
450 (82) (a) "Public building" means a building or permanent structure that is:
451 (i) owned or leased by:
452 (A) the state; or
453 (B) a local government entity; and
454 (ii) used for:
455 (A) public education;
456 (B) transacting public business; or
457 (C) regularly conducting government activities.
458 (b) "Public building" does not include a building owned by the state or a local
459 government entity when the building is used by a person, in whole or in part, for a proprietary
461 (83) "Public conveyance" means a conveyance to which the public or a portion of the
462 public has access to and a right to use for transportation, including an airline, railroad, bus,
463 boat, or other public conveyance.
464 (84) "Reception center" means a business that:
465 (a) operates facilities that are at least 5,000 square feet; and
466 (b) has as its primary purpose the leasing of the facilities described in Subsection
467 (84)(a) to a third party for the third party's event.
468 (85) "Reception center license" means a license issued in accordance with Chapter 5,
469 Retail License Act, and Chapter 6, Part 8, Reception Center License.
470 (86) (a) "Record" means information that is:
471 (i) inscribed on a tangible medium; or
472 (ii) stored in an electronic or other medium and is retrievable in a perceivable form.
473 (b) "Record" includes:
474 (i) a book;
475 (ii) a book of account;
476 (iii) a paper;
477 (iv) a contract;
478 (v) an agreement;
479 (vi) a document; or
480 (vii) a recording in any medium.
481 (87) "Residence" means a person's principal place of abode within Utah.
482 (88) "Resident," in relation to a resort, is as defined in Section 32B-8-102 .
483 (89) "Resort" is as defined in Section 32B-8-102 .
484 (90) "Resort facility" is as defined by the commission by rule.
485 (91) "Resort license" means a license issued in accordance with Chapter 5, Retail
486 License Act, and Chapter 8, Resort License Act.
487 (92) "Restaurant" means a business location:
488 (a) at which a variety of foods are prepared;
489 (b) at which complete meals are served to the general public; and
490 (c) that is engaged primarily in serving meals to the general public.
492 (a) a full-service restaurant license;
493 (b) a limited-service restaurant license;
494 (c) a club license;
495 (d) an airport lounge license;
496 (e) an on-premise banquet license;
497 (f) an on-premise beer license;
498 (g) a reception center license; or
499 (h) a beer-only restaurant license.
500 (94) "Retail licensee sample" means liquor that is used for testing, analysis, and
501 sampling by a retail licensee in accordance with Subsection 32B-4-705 (7).
503 guest room of a:
504 (a) hotel; or
505 (b) resort facility.
509 (b) "School" does not include an educational facility.
511 for consideration, an alcoholic product is either directly or indirectly transferred, solicited,
512 ordered, delivered for value, or by a means or under a pretext is promised or obtained, whether
513 done by a person as a principal, proprietor, or as staff, unless otherwise defined in this title or
514 the rules made by the commission.
516 seminudity appears at or performs:
517 (a) for the entertainment of one or more patrons;
518 (b) on the premises of:
519 (i) a social club licensee; or
520 (ii) a tavern;
521 (c) on behalf of or at the request of the licensee described in Subsection [
523 (e) whether or not the person is designated as:
524 (i) an employee;
525 (ii) an independent contractor;
526 (iii) an agent of the licensee; or
527 (iv) a different type of classification.
529 Part 3, Single Event Permit.
531 barrels of beer, heavy beer, and flavored malt beverages per year.
533 5, Retail License Act, and Chapter 6, Part 4, Club License, that is designated by the
534 commission as a social club license.
536 10, Special Use Permit Act.
538 (b) "Spirituous liquor" includes an alcoholic product defined as a "distilled spirit" by
539 27 U.S.C. Sec. 211 and 27 C.F.R. Sec. 5.11 through 5.23.
543 (i) on behalf of a business, including a package agent, licensee, permittee, or certificate
545 (ii) at the request of the business, including a package agent, licensee, permittee, or
546 certificate holder; or
547 (iii) under the authority of the business, including a package agent, licensee, permittee,
548 or certificate holder.
549 (b) "Staff" includes:
550 (i) an officer;
551 (ii) a director;
552 (iii) an employee;
554 (v) an agent of the licensee, including a managing agent;
555 (vi) an operator; or
556 (vii) a representative.
558 (a) the appearance of:
559 (i) the nipple or areola of a female human breast;
560 (ii) a human genital;
561 (iii) a human pubic area; or
562 (iv) a human anus; or
563 (b) a state of dress that fails to opaquely cover:
564 (i) the nipple or areola of a female human breast;
565 (ii) a human genital;
566 (iii) a human pubic area; or
567 (iv) a human anus.
569 covers no more than:
570 (a) the nipple and areola of the female human breast in a shape and color other than the
571 natural shape and color of the nipple and areola; and
572 (b) the human genitals, pubic area, and anus:
573 (i) with no less than the following at its widest point:
574 (A) four inches coverage width in the front of the human body; and
575 (B) five inches coverage width in the back of the human body; and
576 (ii) with coverage that does not taper to less than one inch wide at the narrowest point.
578 (i) located on premises owned or leased by the state; and
579 (ii) operated by a state employee.
580 (b) "State store" does not include:
581 (i) a package agency;
582 (ii) a licensee; or
583 (iii) a permittee.
585 stores an alcoholic product.
586 (b) "Store" means to place or maintain in a location an alcoholic product from which a
587 person draws to prepare an alcoholic product to be furnished to a patron, except as provided in
588 Subsection 32B-6-205 (12)(b)(ii), 32B-6-305 (12)(b)(ii), 32B-6-805 (15)(b)(ii), or
589 32B-6-905 (12)(b)(ii).
594 (a) issued a license by the commission in accordance with Chapter 5, Retail License
595 Act, and Chapter 6, Part 7, On-premise Beer Retailer License; and
596 (b) designated by the commission as a tavern in accordance with Chapter 6, Part 7,
597 On-premise Beer Retailer License.
599 Chapter 9, Part 4, Temporary Beer Event Permit.
601 a person who does not have a present intention to continue residency within Utah permanently
602 or indefinitely.
603 (116) "Trade show" means a private event that is:
604 (a) hosted by one or more industry representatives for the purpose of sampling and
605 analyzing retail licensee samples of liquor furnished by the industry representatives in
606 accordance with Subsection 32B-4-705 (7);
607 (b) attended by the department and retail licensees;
608 (c) supervised by the department;
609 (d) held in a convention center, hotel, or similar facility approved by the department;
610 (e) attended by at least 15 individuals; and
611 (f) hosted by an industry representative described in Subsection (116)(a) no more
612 frequently than four times during a calendar year, when liquor of any kind is sampled and
617 (a) is unsaleable because the container is:
618 (i) unlabeled;
619 (ii) leaky;
620 (iii) damaged;
621 (iv) difficult to open; or
622 (v) partly filled;
623 (b) (i) has faded labels or defective caps or corks;
624 (ii) has contents that are:
625 (A) cloudy;
626 (B) spoiled; or
627 (C) chemically determined to be impure; or
628 (iii) contains:
629 (A) sediment; or
630 (B) a foreign substance; or
631 (c) is otherwise considered by the department as unfit for sale.
633 the natural sugar content of fruits, plants, honey, or milk, or other like substance, whether or
634 not another ingredient is added.
635 (b) "Wine" is considered liquor for purposes of this title, except as otherwise provided
636 in this title.
638 with Chapter 11, Part 3, Winery Manufacturing License.
639 Section 2. Section 32B-4-705 is amended to read:
640 32B-4-705. Exclusions from tied house prohibitions.
641 (1) Notwithstanding Subsection 32B-4-704 (3), a thing of value may be furnished by an
642 industry member to a retailer under the conditions and within the limitations prescribed in:
643 (a) this section; and
644 (b) the applicable federal laws cited in this section.
645 (2) The following may be furnished by an industry member:
647 (b) point of sale advertising material or a consumer advertising specialty as provided in
648 27 C.F.R. Sec. 6.84;
649 (c) a thing of value to a temporary retailer to the extent allowed in 27 C.F.R. Sec. 6.85;
650 (d) equipment and supplies as provided in 27 C.F.R. Sec. 6.88;
651 (e) combination packaging as provided in 27 C.F.R. Sec. 6.93;
652 (f) an educational seminar as provided in 27 C.F.R. Sec. 6.94;
653 (g) a consumer promotion as provided in 27 C.F.R. Sec. 6.96;
654 (h) an advertising service as provided in 27 C.F.R. Sec. 6.98;
655 (i) stocking, rotation, and pricing service as provided in 27 C.F.R. Sec. 6.99;
656 (j) merchandise as provided in 27 C.F.R. Sec. 6.101; and
657 (k) an outside sign as provided in 27 C.F.R. Sec. 6.102.
658 (3) The following exceptions provided in federal law are not applicable:
659 (a) the exception for a sample as provided in 27 C.F.R. Sec. 6.91;
660 (b) the exception for a consumer tasting or sampling at a retail establishment as
661 provided in 27 C.F.R. Sec. 6.95; and
662 (c) the exception for participation in a retailer association activity provided in 27
663 C.F.R. Sec. 6.100.
664 (4) To the extent required by 27 C.F.R. Sec. 6.81(b) an industry member shall maintain
665 a record:
666 (a) of an item furnished to a retailer;
667 (b) on the premises of the industry member; and
668 (c) for a three-year period.
669 (5) A sample of liquor may be provided to the department under the following
671 (a) With the department's permission, an industry member may submit a department
672 sample to the department for product testing, analysis, and sampling.
673 (b) No more than two department samples of a particular type, vintage, and production
674 lot of a particular branded product may be submitted to the department for department testing,
675 analysis, and sampling within a consecutive 120-day period.
676 (c) (i) A department sample may not exceed 1 liter.
678 not exceed 1.5 liters unless that exact alcoholic product is only commercially packaged in a
679 larger size, not to exceed 5 liters:
680 (A) wine;
681 (B) heavy beer; or
682 (C) a flavored malt beverage.
683 (d) A department sample submitted to the department:
684 (i) shall be shipped prepaid by the industry member by common carrier; and
685 (ii) may not be shipped by United States mail directly to the department's central
686 administrative warehouse office.
687 (e) A department sample may not be shipped to any other location within the state.
688 (f) The industry member shall submit with a department sample submitted to the
689 department a letter from the industry member that clearly:
690 (i) identifies the product as a "department sample"; and
691 (ii) states the FOB case price of the product.
692 (g) (i) The department may transfer a listed item from current stock:
693 (A) for use as a comparison control sample; or
694 (B) to verify product spoilage as considered appropriate.
695 (ii) The department shall charge back a sample transferred under this Subsection (5)(g)
696 to the respective industry member.
697 (h) The department shall:
698 (i) account for, label, and record a department sample received or transferred;
699 (ii) account for the department sample's disposition; and
700 (iii) maintain a record of the sample and its disposition for a two-year period.
701 (i) The department shall affix to each container of a department sample a label clearly
702 identifying the product as a "department sample."
703 (j) The department shall dispose of a department sample delivered to the department or
704 transferred from the department's current stock in one of the following ways as chosen by the
706 (i) test and analyze the department sample, with the remaining contents destroyed
707 under controlled and audited conditions established by the department;
709 conditions established by the department; or
710 (iii) add the department sample to the inventory of the department for sale to the
712 (k) A person other than an authorized department official may not be in possession of a
713 department sample except as otherwise provided.
714 (l) The department shall handle a liquor item received by the department from a
715 supplier that is not designated as a sample by the supplier, but that is an item not specifically
716 listed on a department purchase order, in accordance with this Subsection (5).
717 (m) The department may not use its money to pay freight or charges on a sample or a
718 liquor item:
719 (i) shipped to the department by a supplier; and
720 (ii) not listed on a department purchase order.
721 (6) A sample of beer may be provided by a beer industry member to a retailer under the
722 conditions listed in this Subsection (6).
723 (a) A sample of beer may be provided by an industry member only to a retailer who has
724 not purchased the brand of beer from that industry member within the last 12 months.
725 (b) For each retailer, the industry member may give not more than three gallons of any
726 brand of beer, except that if a particular product is not available in a size within the quantity
727 limitation, an industry member may furnish the next largest size.
728 (7) (a) A retail licensee may taste and analyze a retail licensee sample under the
729 conditions listed in this Subsection (7).
730 (b) (i) Only an industry representative may purchase a retail licensee sample.
731 (ii) An industry representative shall purchase a retail licensee sample from the
732 department from a particular type, vintage, and production lot:
733 (A) listed on the department's sales list; or
734 (B) special ordered by the department.
735 (iii) An industry representative may not purchase more than six retail licensee samples
736 of a particular type, vintage, and production lot of a particular branded product within a
737 consecutive 120-day period.
738 (c) (i) An industry representative shall ensure that before a retail licensee sample is
Senate 2nd & 3rd Reading Amendments 3-5-2012 kc/poused for tasting and analysis, the department affixes to the retail licensee sample a label clearly
740 identifying the product as a "retail licensee sample."
741 (ii) The department may assess the actual cost of labeling for a retail licensee sample.
742 (d) (i) A retail licensee sample of liquor may not exceed one liter.
743 (ii) Notwithstanding Subsection (7)(d)(i), a retail licensee sample of the following may
744 not exceed one liter unless that exact product is only commercially packaged in a larger size,
745 not to exceed five liters:
746 (A) wine;
747 (B) heavy beer; or
748 (C) a flavored malt beverage.
749 (e) (i) The sampling and analysis of a retail licensee sample by a retail licensee under
750 this Subsection (7) may only occur at:
751 (A) a state store, notwithstanding Subsection 32B-2-503(7)(b);
752 (B) a package agency, notwithstanding Subsection 32B-2-605(15)(b); or
753 (C) a trade show.
754 (ii) S. [
755 or more industry representatives hosting the trade show
755a representative conducting a tasting and analysis under this Subsection (7) .S the actual cost
755b S. [
755c including for a tasting and analysis held at a trade show, the cost of the department .S
756 attending and supervising the trade show S. [
756a representative .S shall pay the cost
757 assessed S. by the department .S as a condition to conducting the tasting and analysis.
758 (iii) An industry representative may participate in the tasting and analysis of a retail
759 licensee sample.
760 (iv) Only an owner, manager, or other individual who purchases an alcoholic product
761 for a retail licensee may on behalf of the retail licensee taste and analyze one or more retail
762 licensee samples.
763 (f) (i) An alcoholic product may not be consumed during the time that an individual
764 tastes or analyzes liquor.
765 (ii) An individual described in Subsection (7)(e) may taste and analyze no more than
766 the following of a retail licensee sample:
767 (A) 1.5 ounces of a particular type, vintage, and production lot of a particular branded
768 product of wine, heavy beer, or flavored malt beverage; or
769 (B) .5 ounces of a particular type, vintage, and production lot of a particular branded
Senate 2nd & 3rd Reading Amendments 3-5-2012 kc/poproduct of spirituous liquor.
771 (g) An industry representative may bring food to taste with a retail licensee sample
772 being tasted and analyzed under this Subsection (7).
773 (h) An industry representative may add another alcoholic product to the amount of a
774 retail licensee sample being tasted and analyzed under this Subsection (7) if:
775 (i) the other alcoholic product is:
776 (A) used as a secondary flavoring ingredient;
777 (B) used in conjunction with the primary liquor;
778 (C) not the only liquor in the beverage; and
779 (D) purchased from the department; and
780 (ii) an individual has no more than 2.5 ounces of spirituous liquor at a time before the
782 (i) An industry representative shall:
783 (i) account for and record each retail licensee sample received;
784 (ii) account for each retail licensee sample's disposition; and
785 (iii) maintain a record of the retail licensee sample and its disposition for a one-year
787 (j) After a tasting and analysis under this Subsection (7) is completed, an industry
788 representative shall remove from the location at which the tasting and analysis occurred the
789 retail licensee samples brought by the industry representative, including the unused contents of
790 an opened product remaining after a product is tasted and analyzed.
791 (k) An industry representative may not give or otherwise furnish any item, including
792 point of sale advertising material, to a person as part of a tasting and analysis under this
793 Subsection (7) or take any action that would constitute a violation of Section 32B-4-706 ,
794 Commercial bribery, as part of a tasting and analysis under this Subsection (7).
794a S. (l) Subject to Subsection 32B-3-204(5), if a licensee or staff of the licensee violates this
794b Subsection (7), the licensee is subject to the penalties for a grave violation, as established by
794c rule made in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act,
794d including fines, suspension of the license, or revocation of the license. .S
796 listed in this Subsection [
797 (a) An industry member may provide or participate in an educational seminar:
798 (i) involving:
799 (A) the department;
800 (B) a retailer;
802 (D) another industry member; or
803 (E) an employee of a person listed in Subsections [
804 (ii) regarding a topic such as:
805 (A) merchandising and product knowledge;
806 (B) use of equipment; and
807 (C) a tour of an alcoholic product manufacturing facility.
808 (b) An industry member may not pay the expenses of or compensate a person who is a
809 department employee, a retailer, or a permittee for attending a seminar or tour described in
810 Subsection [
812 industry member:
813 (i) for the department, at the department's request; [
814 (ii) for a licensed industry representative, but only at the department's central
815 administrative warehouse office[
816 (iii) for a retail licensee, through an industry representative in accordance with
817 Subsection (7).
818 (b) A liquor industry member may only use a department sample or industry
819 representative sample when conducting a tasting of the industry member's liquor product under
820 this Subsection (9).
821 (c) A beer industry member may conduct a tasting of a beer product for a beer retailer
822 either at:
823 (i) the industry member's premises; or
824 (ii) a retail establishment.
825 (d) Except to the extent authorized by this section or commission rule, an alcoholic
826 product industry member may not conduct tasting or sampling activities with:
827 (i) a retailer; or
828 (ii) a member of the general public.
830 to the extent authorized by 27 C.F.R. Sec. 6.100.
833 influence a retailer in the selection of a product that may be sold at the activity.
834 (b) An industry member or retailer violates this Subsection [
835 (i) the industry member's contribution influences, directly or indirectly, the retailer in
836 the selection of a product; and
837 (ii) a competitor's product is excluded in whole or in part from sale at the activity.
839 Subsection [
840 (i) the equipment is leased or furnished for a special event;
841 (ii) a reasonable rental or service fee is charged for the equipment; and
842 (iii) the period for which the equipment is leased or furnished does not exceed 30 days.
843 (b) This Subsection [
844 (i) a picnic pump;
845 (ii) a cold plate;
846 (iii) a tub;
847 (iv) a keg box;
848 (v) a refrigerated trailer;
849 (vi) a refrigerated van; or
850 (vii) a refrigerated draft system.
852 (i) ordering, shipping, and delivering merchandise;
853 (ii) new product notification;
854 (iii) listing and delisting information;
855 (iv) price quotations;
856 (v) product sales analysis;
857 (vi) shelf management; and
858 (vii) an educational seminar.
859 (b) (i) A liquor industry member may, to acquire a new listing:
860 (A) solicit an order from the department; and
861 (B) submit to the department a sample of the liquor industry member's products under
862 Subsection (5) and price lists.
864 member visits a state store or package agency unless otherwise approved.
865 (B) An industry member is confined to the office area of a state warehouse when the
866 industry member visits a state warehouse unless otherwise approved.
868 (a) ordering, shipping, and delivering beer merchandise;
869 (b) new product notification;
870 (c) listing and delisting information;
871 (d) price quotations;
872 (e) product sales analysis;
873 (f) shelf management; and
874 (g) an educational seminar.
876 (a) solicit an order from a beer retailer; and
877 (b) submit to a beer retailer a sample of the beer industry member's beer products under
878 Subsection (5) and price lists.
879 Section 3. Section 32B-4-708 is amended to read:
880 32B-4-708. Unlawful act involving consumers.
881 (1) (a) It is unlawful for an industry member, directly or indirectly, or through an
882 affiliate, to give away any of its product to a person except for testing, analysis, and sampling
883 purposes by the [
884 authorized by this title[
885 (i) the department;
886 (ii) a retail licensee;
887 (iii) a beer retailer; or
888 (iv) a local industry representative licensee.
889 (b) This Subsection (1) does not preclude an industry member from serving its product
890 to others at a private event hosted by the industry member in the industry member's home or
891 elsewhere so long as the product is not served:
892 (i) as part of a promotion of the industry member's product; or
893 (ii) as a subterfuge to provide a sample to a person for product testing, analysis, or
895 (2) It is unlawful for an industry member or retailer, directly or indirectly, or through
896 an affiliate, to engage in an advertisement or promotional scheme that requires the purchase or
897 sale of an alcoholic product, or consumption of an alcoholic product, in order to participate in a
898 promotion, program, or other activity.
899 (3) It is unlawful for an industry member or retailer, directly or indirectly, or through
900 an affiliate, to pay, give, or deliver to a person money or any other thing of value, including a
901 rebate, refund, or prize, on the basis of the purchase, display, use, sale, or consumption of an
902 alcoholic product.
903 (4) It is unlawful for an industry member or retailer to sponsor or underwrite an
904 athletic, theatrical, scholastic, artistic, or scientific event that:
905 (a) overtly promotes the consumption of a product;
906 (b) offers a product to the general public without charge; or
907 (c) takes place on the premises of a school, college, university, or other educational
909 Section 4. Section 32B-11-608 is amended to read:
910 32B-11-608. Operational requirements for local industry representative license.
911 (1) (a) A local industry representative licensee, staff of the local industry representative
912 licensee, or staff of a manufacturer, supplier, or importer who is conducting business in the
913 state, shall comply with this title and rules of the commission.
914 (b) If a person knowingly violates Subsection (1)(a):
915 (i) the violation may result in disciplinary action in accordance with Chapter 3,
916 Disciplinary Actions and Enforcement Act, against:
917 (A) a local industry representative licensee;
918 (B) individual staff of a local industry representative licensee; or
919 (C) both a local industry representative licensee and staff of the local industry
920 representative licensee; and
921 (ii) if the conditions of Subsection (1)(c) are met, the commission may order:
922 (A) the removal of the manufacturer's, supplier's, or importer's products from the
923 department's sales list; and
924 (B) a suspension of the department's purchase of those products for a period
926 (c) Subsection (1)(b)(ii) applies if the manufacturer, supplier, or importer:
927 (i) directly commits the violation; or
928 (ii) solicits, requests, commands, encourages, or intentionally aides another to engage
929 in the violation.
930 (2) A local industry representative licensee shall display its license in the local industry
931 representative licensee's principal place of business.
932 (3) (a) A local industry representative licensee shall maintain on file with the
933 department a current accounts list of the names and addresses of the manufacturers, suppliers,
934 and importers the local industry representative licensee represents.
935 (b) A local industry representative licensee shall notify the department in writing of a
936 change to its accounts list within 14 days from the date the local industry representative
938 (i) acquires the account of a manufacturer, supplier, or importer; or
939 (ii) loses the account of a manufacturer, supplier, or importer.
940 (4) (a) A local industry representative licensee shall make and maintain the records the
941 department requires for at least three years.
942 (b) Section 32B-1-205 applies to a record required to be made or maintained in
943 accordance with this Subsection (4).
944 (5) Staff of a local industry representative licensee may not be:
945 (a) a retail licensee that sells, offers for sale, or furnishes liquor;
946 (b) staff of a retail licensee that sells, offers for sale, or furnishes liquor; or
947 (c) a minor.
948 (6) (a) A local representative licensee may not sell, transfer, assign, exchange, barter,
949 give, or attempt in any way to dispose of the license to another person, whether for monetary
950 gain or not.
951 (b) A local industry representative license has no monetary value for any type of
953 (7) A local industry representative licensee, staff of the local industry representative
954 licensee, or staff of a manufacturer, supplier, or importer who is conducting business in the
958 (i) assist the department in:
959 (A) ordering, shipping, and delivering merchandise;
960 (B) providing new product notification;
961 (C) obtaining listing and delisting information;
962 (D) receiving price quotations;
963 (E) providing product sales analysis;
964 (F) conducting shelf management; and
965 (G) conducting educational seminars; and
966 (ii) to acquire new listings:
967 (A) solicit orders from the department; and
968 (B) submit to the department price lists and samples of the products of the
969 manufacturer, supplier, or importer;
970 (b) may not sell liquor within the state except to:
971 (i) the department; and
972 (ii) a military installation;
973 (c) may not ship or transport, or cause to be shipped or transported, liquor into this
974 state or from one place to another within this state;
975 (d) may not sell or furnish any liquor to any person within this state other than to:
976 (i) the department; or
977 (ii) a military installation;
978 (e) except as otherwise provided, may not advertise a product the local industry
979 representative licensee represents in violation of this title or any other federal or state law;
980 (f) shall comply with the trade practices provided in Chapter 4, Part 7, Trade Practices
981 Act; and
982 (g) may only provide a sample of a product of the manufacturer, supplier, or importer
983 for tasting and sampling purposes as provided in Section 32B-4-705 [
984 (8) A local industry representative licensee may, to become educated as to the quality
985 and characteristics of a liquor that the licensee represents, taste and analyze an industry
986 representative sample under the conditions listed in this Subsection (8).
988 representative samples of a particular type, vintage, and production lot of a particular branded
989 product within a consecutive 120-day period.
990 (b) (i) An industry representative sample of liquor may not exceed one liter.
991 (ii) Notwithstanding Subsection (8)(b)(i), an industry representative sample of the
992 following may not exceed 1.5 liters unless that exact product is only commercially packaged in
993 a larger size, not to exceed 5 liters:
994 (A) wine;
995 (B) heavy beer; or
996 (C) a flavored malt beverage.
997 (c) An industry representative sample may only be of a product not presently listed on
998 the department's sales list.
999 (d) (i) An industry representative sample shall be shipped:
1000 (A) prepaid by the manufacturer, supplier, or importer;
1001 (B) by common carrier and not via United States mail; and
1002 (C) directly to the department's central administrative warehouse office.
1003 (ii) An industry representative sample may not be shipped to any other location within
1004 the state.
1005 (e) An industry representative sample shall be accompanied by a letter from the
1006 manufacturer, supplier, or importer:
1007 (i) clearly identifying the product as an "industry representative sample"; and
1008 (ii) clearly stating:
1009 (A) the FOB case price of the product; and
1010 (B) the name of the local industry representative for whom it is intended.
1011 (f) The department shall assess a reasonable handling, labeling, and storage fee for
1012 each industry representative sample received.
1013 (g) The department shall affix to a container a label clearly identifying the product as
1014 an "industry representative sample."
1015 (h) The department shall:
1016 (i) account for and record each industry representative sample received;
1017 (ii) account for the industry representative sample's disposition; and
1019 two-year period.
1020 (i) An industry representative sample may not leave the premises of the department's
1021 central administrative warehouse office.
1022 (j) A local industry representative licensee's and a local industry representative
1023 licensee's staff may, at regularly scheduled days and times established by the department, taste
1024 and analyze one or more industry representative samples on the premises of the department's
1025 central administrative warehouse office.
1026 (k) The department shall destroy the unused contents of an opened product remaining
1027 after a product is sampled under controlled and audited conditions established by the
1029 (l) An industry representative sample that is not tasted within 30 days of receipt by the
1030 department shall be disposed of at the discretion of the department in one of the following
1032 (i) the contents destroyed under controlled and audited conditions established by the
1033 department; or
1034 (ii) added to the inventory of the department for sale to the public.
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