16 Tex. Admin. Code § 34.20 - Attribution of Actions of Employee to License or Permit Holder

(a) A license or permit holder who claims that the actions of an employee are not attributable to the license or permit holder under Code §106.14(a) must provide to the commission, not later than 10 days after receipt of an administrative notice of violation, an affidavit indicating that the license or permit holder was in compliance with the requirements of Code §106.14(a) at the time of the violation for which the administrative notice was issued. At a hearing in which the license or permit holder claims the benefits of Code §106.14(a), the license or permit holder may be required to present additional evidence to support such claim.

(b) If an employee performs an action described in paragraphs (1) or (2) of this subsection at a time when the employee does not possess a currently valid seller server certificate, then the action of the employee does not meet the requirements of Code §106.14(a)(2) and therefore shall be attributable to the license or permit holder.

(1) The employee sells, serves, dispenses or delivers an alcoholic beverage to:

(A) a person who is not a member of a private club on the club premises;

(B) a minor; or

(C) an intoxicated person.

(2) The employee allows consumption of an alcoholic beverage by:

(A) a person who is not a member of a private club on the club premises;

(B) a minor; or

(C) an intoxicated person.

(c) Proof by the commission that an employee performed an action described in paragraph (1) or (2) of this subsection on three or more occasions within a 12-month period shall create a rebuttable presumption that the license or permit holder has indirectly encouraged a violation of the law within the meaning of Code §106.14(a)(3). The rebuttable presumption is created regardless of whether the employee performing the action described in paragraph (1) or (2) of this subsection on a second or subsequent occasion is the same person.

(1) An employee sold, served, dispensed or delivered an alcoholic beverage to:

(A) a person who is not a member of a private club on the club premises;

(B) a minor; or

(C) an intoxicated person.

(2) An employee allowed consumption of an alcoholic beverage by:

(A) a person who is not a member of a private club on the club premises;

(B) a minor; or

(C) an intoxicated person.

(d) For purposes of satisfying the condition precedent set forth in subsection (c) of this section, proof shall be demonstrated by:

(1) producing final orders issued by the commission or a court of competent jurisdiction finding that the license or permit holder violated Code §§2.02, 11.61(b)(14), 32.17(a)(1), 61.71(a)(6) or 106.13(a) on two past occasions; and

(2) establishing a prima facie case that an employee of the license or permit holder violated Code §§2.02, 11.61(b)(14), 32.17(a)(1), 61.71(a)(6) or 106.13(a) on a third or subsequent occasion.

(e) For purposes of subsection (d) of this section, all incidents offered to satisfy the condition precedent set forth in subsection (c) of this section shall be for the same type of offense and shall have occurred within a 12-month period as calculated from the dates the incidents occurred.

(f) There is a rebuttable presumption that a license or permit holder has indirectly encouraged a violation of the law within the meaning of Code §106.14(a)(3) if the commission presents sufficient proof that a license or permit holder fails to meet any of the standards set forth in paragraphs (1) - (5) of this subsection.

(1) The license or permit holder requires each employee to present a seller server certificate within 30 days of his initial employment date.

(2) The license or permit holder requires each employee to maintain a currently valid seller server certificate.

(3) The license or permit holder adopts written policies and procedures that are designed to prevent, and that affirm a strong commitment by the license or permit holder to prohibit:

(A) the sale, service, dispensation or delivery of an alcoholic beverage to:

(i) a person who is not a member of a private club on the club premises;

(ii) a minor; or

(iii) an intoxicated person; and

(B) the consumption of an alcoholic beverage by:

(i) a person who is not a member of a private club on the club premises;

(ii) a minor; or

(iii) an intoxicated person.

(4) The license or permit holder ensures that all employees have read and understood the license or permit holder's policies and procedures described in paragraph (3) of this subsection.

(5) The license or permit holder maintains records for at least one year after the date employment was terminated that show that each employee read and understood the license or permit holder's current policies and procedures described in paragraph (3) of this subsection.

(g) For purposes of this section, "employee" includes all persons paid by a license or permit holder to sell, serve, dispense, or deliver alcoholic beverages or to immediately manage, direct, supervise or control the sale or service of alcoholic beverages.

(h) At a hearing in which the license or permit holder asserts the affirmative defense established in Code §106.14(a), the commission may present evidence to establish a rebuttable presumption under this section. If the evidence is sufficient to establish a prima facie case, the burden of persuasion in the proceeding shifts to the license or permit holder to show that it has not indirectly encouraged a violation of the law within the meaning of Code §106.14(a)(3).

(i) The rebuttable presumptions authorized in this section are not the exclusive means by which the commission may establish that a license or permit holder has indirectly encouraged a violation of the law within the meaning of Code §106.14(a)(3).

(j) This section applies to contested cases under the Administrative Procedure Act and to complaints or violations referred to the legal division of the commission for resolution.

Notes

16 Tex. Admin. Code § 34.20

Adopted by Texas Register, Volume 47, Number 22, June 3, 2022, TexReg 3242, eff. 6/6/2022