This document includes Senate Committee Amendments incorporated into the bill on Tue, Mar 7, 2017 at 2:12 PM by lucydaynes.
Representative Steve Eliason proposes the following substitute bill:




Chief Sponsor: Steve Eliason

Senate Sponsor: Curtis S. Bramble


8     General Description:
9          This bill creates the Operations Investigation Program for the Department of Alcoholic
10     Beverage Control.
11     Highlighted Provisions:
12          This bill:
13          ▸     designates certain records as private records;
14          ▸     defines terms;
15          ▸     creates and provides funding for the Operations Investigation Program to Ŝ→ [
16     observe
] engage in undisclosed observation ←Ŝ
and evaluate customer contacts with the
16a     Department of Alcoholic Beverage
17     Control;
18          ▸     establishes program responsibilities;
19          ▸     establishes reporting and tracking requirements;
20          ▸     addresses subject department's responsibilities;
21          ▸     addresses incentives; and
22          ▸     makes technical changes.
23     Money Appropriated in this Bill:
24          None
25     Other Special Clauses:

26          None
27     Utah Code Sections Affected:
28     AMENDS:
29          32B-2-301, as last amended by Laws of Utah 2013, Chapter 349
30          63G-2-302, as last amended by Laws of Utah 2016, Chapter 410
31     ENACTS:
32          63J-4-701, Utah Code Annotated 1953
33          63J-4-702, Utah Code Annotated 1953
34          63J-4-703, Utah Code Annotated 1953
35          63J-4-704, Utah Code Annotated 1953
36          63J-4-705, Utah Code Annotated 1953
37          63J-4-706, Utah Code Annotated 1953

39     Be it enacted by the Legislature of the state of Utah:
40          Section 1. Section 32B-2-301 is amended to read:
41          32B-2-301. State property -- Liquor Control Fund -- Markup Holding Fund.
42          (1) The following are property of the state:
43          (a) the money received in the administration of this title, except as otherwise provided;
44     and
45          (b) property acquired, administered, possessed, or received by the department.
46          (2) (a) There is created an enterprise fund known as the "Liquor Control Fund."
47          (b) Except as provided in Sections 32B-3-205 and 32B-2-304, money received in the
48     administration of this title shall be transferred to the Liquor Control Fund.
49          (3) (a) There is created an enterprise fund known as the "Markup Holding Fund."
50          (b) In accordance with Section 32B-2-304, the State Tax Commission shall deposit
51     revenue remitted to the State Tax Commission from the markup imposed under Section
52     32B-2-304 into the Markup Holding Fund.
53          (c) Money deposited into the Markup Holding Fund may be expended:
54          (i) to the extent appropriated by the Legislature; and
55          (ii) to fund the deposits required by Subsection 32B-2-304(4) and Subsection
56     32B-2-305(4).

57          (4) The department may draw from the Liquor Control Fund only to the extent
58     appropriated by the Legislature or provided for by statute, except that the department may draw
59     by warrant without an appropriation from the Liquor Control Fund for an expenditure that is
60     directly incurred by the department:
61          (a) to purchase an alcoholic product;
62          (b) to transport an alcoholic product from the supplier to a warehouse of the
63     department; and
64          (c) for variances related to an alcoholic product.
65          (5) The department shall transfer annually from the Liquor Control Fund and the State
66     Tax Commission shall transfer annually from the Markup Holding Fund to the General Fund a
67     sum equal to the amount of net profit earned from the sale of liquor since the preceding transfer
68     of money under this Subsection (5). The transfers shall be calculated by no later than
69     September 1 and made by no later than September 30 after a fiscal year. The Division of
70     Finance may make year-end closing entries in the Liquor Control Fund and the Markup
71     Holding Fund in order to comply with Subsection 51-5-6(2).
72          (6) (a) By the end of each day, the department shall:
73          (i) make a deposit to a qualified depository, as defined in Section 51-7-3; and
74          (ii) report the deposit to the state treasurer.
75          (b) A commissioner or department employee is not personally liable for a loss caused
76     by the default or failure of a qualified depository.
77          (c) Money deposited in a qualified depository is entitled to the same priority of
78     payment as other public funds of the state.
79          (7) If the cash balance of the Liquor Control Fund is not adequate to cover a warrant
80     drawn against the Liquor Control Fund by the department, the cash resources of the General
81     Fund may be used to the extent necessary. At no time may the fund equity of the Liquor
82     Control Fund fall below zero.
83          (8) For a fiscal year beginning on or after July 1, 2017, the department shall retain in
84     the Liquor Control Fund to pay the costs of running the Operations Investigation Program
85     created in Section 63J-4-703:
86          (a) the first $176,000 in net profits that exceed the amount transferred from the Liquor
87     Control Fund to the General Fund for the previous fiscal year;

88          (b) if the total net profits that exceed the amount transferred from the Liquor Control
89     Fund to the General Fund for the previous fiscal year is less than $176,000, an amount equal to
90     the net profits that exceed the amount transferred from the Liquor Control Fund to the General
91     Fund for the previous fiscal year; or
92          (c) if the total net profits does not exceed the amount transferred from the Liquor
93     Control Fund to the General Fund for the previous fiscal year, $0.
94          Section 2. Section 63G-2-302 is amended to read:
95          63G-2-302. Private records.
96          (1) The following records are private:
97          (a) records concerning an individual's eligibility for unemployment insurance benefits,
98     social services, welfare benefits, or the determination of benefit levels;
99          (b) records containing data on individuals describing medical history, diagnosis,
100     condition, treatment, evaluation, or similar medical data;
101          (c) records of publicly funded libraries that when examined alone or with other records
102     identify a patron;
103          (d) records received by or generated by or for:
104          (i) the Independent Legislative Ethics Commission, except for:
105          (A) the commission's summary data report that is required under legislative rule; and
106          (B) any other document that is classified as public under legislative rule; or
107          (ii) a Senate or House Ethics Committee in relation to the review of ethics complaints,
108     unless the record is classified as public under legislative rule;
109          (e) records received by, or generated by or for, the Independent Executive Branch
110     Ethics Commission, except as otherwise expressly provided in Title 63A, Chapter 14, Review
111     of Executive Branch Ethics Complaints;
112          (f) records received or generated for a Senate confirmation committee concerning
113     character, professional competence, or physical or mental health of an individual:
114          (i) if, prior to the meeting, the chair of the committee determines release of the records:
115          (A) reasonably could be expected to interfere with the investigation undertaken by the
116     committee; or
117          (B) would create a danger of depriving a person of a right to a fair proceeding or
118     impartial hearing; and

119          (ii) after the meeting, if the meeting was closed to the public;
120          (g) employment records concerning a current or former employee of, or applicant for
121     employment with, a governmental entity that would disclose that individual's home address,
122     home telephone number, social security number, insurance coverage, marital status, or payroll
123     deductions;
124          (h) records or parts of records under Section 63G-2-303 that a current or former
125     employee identifies as private according to the requirements of that section;
126          (i) that part of a record indicating a person's social security number or federal employer
127     identification number if provided under Section 31A-23a-104, 31A-25-202, 31A-26-202,
128     58-1-301, 58-55-302, 61-1-4, or 61-2f-203;
129          (j) that part of a voter registration record identifying a voter's:
130          (i) driver license or identification card number;
131          (ii) social security number, or last four digits of the social security number;
132          (iii) email address; or
133          (iv) date of birth;
134          (k) a voter registration record that is classified as a private record by the lieutenant
135     governor or a county clerk under Subsection 20A-2-104(4)(f) or 20A-2-101.1(5)(a);
136          (l) a record that:
137          (i) contains information about an individual;
138          (ii) is voluntarily provided by the individual; and
139          (iii) goes into an electronic database that:
140          (A) is designated by and administered under the authority of the Chief Information
141     Officer; and
142          (B) acts as a repository of information about the individual that can be electronically
143     retrieved and used to facilitate the individual's online interaction with a state agency;
144          (m) information provided to the Commissioner of Insurance under:
145          (i) Subsection 31A-23a-115(2)(a);
146          (ii) Subsection 31A-23a-302(3); or
147          (iii) Subsection 31A-26-210(3);
148          (n) information obtained through a criminal background check under Title 11, Chapter
149     40, Criminal Background Checks by Political Subdivisions Operating Water Systems;

150          (o) information provided by an offender that is:
151          (i) required by the registration requirements of Title 77, Chapter 41, Sex and Kidnap
152     Offender Registry; and
153          (ii) not required to be made available to the public under Subsection 77-41-110(4);
154          (p) a statement and any supporting documentation filed with the attorney general in
155     accordance with Section 34-45-107, if the federal law or action supporting the filing involves
156     homeland security;
157          (q) electronic toll collection customer account information received or collected under
158     Section 72-6-118 and customer information described in Section 17B-2a-815 received or
159     collected by a public transit district, including contact and payment information and customer
160     travel data;
161          (r) an email address provided by a military or overseas voter under Section
162     20A-16-501;
163          (s) a completed military-overseas ballot that is electronically transmitted under Title
164     20A, Chapter 16, Uniform Military and Overseas Voters Act;
165          (t) records received by or generated by or for the Political Subdivisions Ethics Review
166     Commission established in Section 11-49-201, except for:
167          (i) the commission's summary data report that is required in Section 11-49-202; and
168          (ii) any other document that is classified as public in accordance with Title 11, Chapter
169     49, Political Subdivisions Ethics Review Commission;
170          (u) a record described in Subsection 53A-11a-203(3) that verifies that a parent was
171     notified of an incident or threat; [and]
172          (v) a criminal background check or credit history report conducted in accordance with
173     Section 63A-3-201[.]; and
174          (w) a record created under, or in relation to, Title 63J, Chapter 4, Part 7, Operations
175     Investigation Program, unless the record:
176          (i) relates to criminal conduct; or
177          (ii) is a record described in Subsection 63J-4-706(2)(b) or (c).
178          (2) The following records are private if properly classified by a governmental entity:
179          (a) records concerning a current or former employee of, or applicant for employment
180     with a governmental entity, including performance evaluations and personal status information

181     such as race, religion, or disabilities, but not including records that are public under Subsection
182     63G-2-301(2)(b) or 63G-2-301(3)(o) or private under Subsection (1)(b);
183          (b) records describing an individual's finances, except that the following are public:
184          (i) records described in Subsection 63G-2-301(2);
185          (ii) information provided to the governmental entity for the purpose of complying with
186     a financial assurance requirement; or
187          (iii) records that must be disclosed in accordance with another statute;
188          (c) records of independent state agencies if the disclosure of those records would
189     conflict with the fiduciary obligations of the agency;
190          (d) other records containing data on individuals the disclosure of which constitutes a
191     clearly unwarranted invasion of personal privacy;
192          (e) records provided by the United States or by a government entity outside the state
193     that are given with the requirement that the records be managed as private records, if the
194     providing entity states in writing that the record would not be subject to public disclosure if
195     retained by it;
196          (f) any portion of a record in the custody of the Division of Aging and Adult Services,
197     created in Section 62A-3-102, that may disclose, or lead to the discovery of, the identity of a
198     person who made a report of alleged abuse, neglect, or exploitation of a vulnerable adult; and
199          (g) audio and video recordings created by a body-worn camera, as defined in Section
200     77-7a-103, that record sound or images inside a home or residence except for recordings that:
201          (i) depict the commission of an alleged crime;
202          (ii) record any encounter between a law enforcement officer and a person that results in
203     death or bodily injury, or includes an instance when an officer fires a weapon;
204          (iii) record any encounter that is the subject of a complaint or a legal proceeding
205     against a law enforcement officer or law enforcement agency;
206          (iv) contain an officer involved critical incident as defined in Section 76-2-408(1)(d);
207     or
208          (v) have been requested for reclassification as a public record by a subject or
209     authorized agent of a subject featured in the recording.
210          (3) (a) As used in this Subsection (3), "medical records" means medical reports,
211     records, statements, history, diagnosis, condition, treatment, and evaluation.

212          (b) Medical records in the possession of the University of Utah Hospital, its clinics,
213     doctors, or affiliated entities are not private records or controlled records under Section
214     63G-2-304 when the records are sought:
215          (i) in connection with any legal or administrative proceeding in which the patient's
216     physical, mental, or emotional condition is an element of any claim or defense; or
217          (ii) after a patient's death, in any legal or administrative proceeding in which any party
218     relies upon the condition as an element of the claim or defense.
219          (c) Medical records are subject to production in a legal or administrative proceeding
220     according to state or federal statutes or rules of procedure and evidence as if the medical
221     records were in the possession of a nongovernmental medical care provider.
222          Section 3. Section 63J-4-701 is enacted to read:
Part 7. Operations Investigation Program

224          63J-4-701. Title.
225          This part is known as the "Operations Investigation Program."
226          Section 4. Section 63J-4-702 is enacted to read:
227          63J-4-702. Definitions.
228          As used in this section:
229          Ŝ→ [
(1) "Covert observation" or "covertly observe" means an act taken by the program to
230     directly observe and evaluate the service offered by a subject store without the knowledge of
231     the subject store.
232          (2)
] (1) ←Ŝ
"Interaction" means an individual act under the program to Ŝ→ [covertly
232a     observe
] engage in the undisclosed observation of ←Ŝ a
233     subject store in a manner authorized by this part.
234          Ŝ→ [
(3)] (2) ←Ŝ "Program" means the Operations Investigation Program created under
234a     Section
235     63J-4-703.
236          Ŝ→ [
(4)] (3) ←Ŝ "Subject department" means the Department of Alcoholic Beverage
236a     Control.
237          Ŝ→ [
(5)] (4) ←Ŝ "Subject store" means a store created under Title 32B, Chapter 2, Part 5,
237a     State
238     Store, by the Alcoholic Beverage Control Commission.
238a     Ŝ→ (5) "Undisclosed observation" means an act taken by the program to directly observe and
238b     evaluate the service offered by a subject store without the knowledge of the subject store. ←Ŝ
239          Section 5. Section 63J-4-703 is enacted to read:
240          63J-4-703. Creation.
241          (1) Beginning on July 1, 2018, there is created within the office the Operations
242     Investigation Program.

243          (2) The executive director may procure the services of a nonpublic entity in accordance
244     with Title 63G, Chapter 6a, Utah Procurement Code, to administer the program.
245          Section 6. Section 63J-4-704 is enacted to read:
246          63J-4-704. Program responsibilities -- Data collection.
247          (1) The executive director shall ensure that the program, through Ŝ→ [
covert] undisclosed
247a      ←Ŝ observation,
248     evaluates each subject store's:
249          (a) quality of customer service;
250          (b) cleanliness;
251          (c) customer satisfaction;
252          (d) product availability; and
253          (e) compliance with laws controlling the sale of alcoholic beverages.
254          (2) Before January 1 of each year, the executive director shall consult with the director
255     of the subject department to:
256          (a) identify categories, including those described in Subsection (1), that are subject to
257     the program's assessment;
258          (b) establish performance measures for the categories identified under Subsection
259     (2)(a) that the program will measure, including a scoring system by which the program will
260     evaluate each subject store's performance in each category; and
261          (c) establish goals for all subject stores' customer service, using the performance
262     measures established under Subsection (2)(b).
263          (3) Before January 1 of each year, the executive director shall create a plan, based upon
264     the performance measures established under Subsection (2)(b), by which the program will
265     Ŝ→ [
covertly observe] engage in undisclosed observation ←Ŝ and evaluate each subject store's
265a     performance.
266          (4) The program shall:
267          (a) collect detailed data on each interaction conducted under the program, including the
268     name of each subject store employee who is contacted during the interaction; and
269          (b) score the subject store according to the scoring system for each performance
270     measure established under Subsection (2)(b).
271          (5) (a) The executive director:
272          (i) shall ensure that the program Ŝ→ [
covertly] ←Ŝ observes Ŝ→ by undisclosed
272a     observation ←Ŝ the customer service offered by each
273     subject store through an in-person interaction at least once per month; and
274          (ii) may also authorize the program to Ŝ→ [
covertly] ←Ŝ observe Ŝ→ by undisclosed
274a     observation ←Ŝ the customer service offered by
275     a subject store through an interaction conducted by telephone or through electronic
276     communication.
277          (b) The executive director may authorize the program to Ŝ→ [
covertly] ←Ŝ record an
277a     interaction Ŝ→ without disclosing the recording ←Ŝ .
278          (c) The executive director may not authorize the program to purposely Ŝ→ [
278a     observe
] engage in undisclosed observation ←Ŝ
279     or record a direct interaction between a subject store and another person unless the person is
280     associated with the program or the office.
281          (6) The executive director may pay a stipend to a person that:
282          (a) performs an interaction for the program; and
283          (b) is not otherwise associated with the program or the office.
284          Section 7. Section 63J-4-705 is enacted to read:
285          63J-4-705. Reporting and tracking results.
286          (1) The executive director shall prepare a detailed report each month that contains:
287          (a) the performance measures and goals established under Subsection 63J-4-704(2) for
288     all subject stores;
289          (b) for each subject store:
290          (i) a compilation, analysis, and interpretation of the data collected and scores recorded
291     under Subsection 63J-4-704(4);
292          (ii) an assessment of how the subject store's performance relates to the performance
293     measures and goals established under Subsection 63J-4-704(2); and
294          (iii) a description of each interaction, including:
295          (A) the name of each of the subject store's employees who were contacted during the
296     interaction; and
297          (B) the scores recorded under Subsection 63J-4-704(4)(b) for the interaction;
298          (c) an explanation of any observed patterns of a subject store's or the subject
299     department's practices that do not appear to be in compliance with state law, rule, or policy or
300     with generally accepted customer service practices; and
301          (d) any recommended changes needed to bring a subject store or the subject department
302     into compliance with state law, rule, or policy or with generally accepted customer service
303     practices.
304          (2) The executive director shall, within 30 days after the day on which the executive
305     director prepares a report described in Subsection (1), send the report to the director of the
306     subject department.
307          (3) The director of the subject department shall create a repository to store and track
308     the information that the director of the subject department receives under Subsection (2).
309          Section 8. Section 63J-4-706 is enacted to read:
310          63J-4-706. Subject department responsibilities -- Incentives.
311          (1) (a) Upon receipt of a report described in Subsection 63J-4-705(2), the director of
312     the subject department shall:
313          (i) identify each employee described in Subsection 63J-4-705(1)(b)(iii)(A); and
314          (ii) place a copy of the portions of the report that pertain to the employee in the
315     employee's personnel file.
316          (b) An employee may challenge an agency action described in Subsection
317     67-19a-202(1)(a) that is based on the content of a report placed in the employee's personnel file
318     under Subsection (1)(a)(ii) in accordance with Title 67, Chapter 19a, Grievance Procedures.
319          (2) (a) The director of the subject department may establish a pecuniary incentive to
320     award to a subject store employee:
321          (i) who takes part in an interaction under the program; and
322          (ii) whose performance, as measured under the program, meets or exceeds the goals
323     established under Subsection 63J-4-704(2)(c).
324          (b) If the director of the subject department establishes a pecuniary incentive under
325     Subsection (2)(a), the director of the subject department shall distribute, in writing, to each
326     employee eligible to receive the incentive:
327          (i) a description of the incentive; and
328          (ii) a description of requirements that an employee must meet to receive the incentive.
329          (c) When the director of the subject department awards a pecuniary incentive to a
330     subject store's employee, the director of the subject department shall distribute, in writing, to
331     each of the subject department's employees eligible for the incentive:
332          (i) the name of each employee who was awarded the incentive;
333          (ii) a description of how the employee described in Subsection (2)(c)(i) met the
334     requirements established under Subsection (2)(b)(ii); and
335          (iii) a description of the incentive the individual was awarded.