Section 3.19 Prohibited Conduct and Activities; Grounds for Suspension or Revocation of Retail Permit.
In addition to the violation or failure to comply with any of these Regulations or any alcoholic beverage control law of the State of Arkansas, a permit to sell or dispense controlled beverages at retail may be cancelled, suspended or revoked or assessed a monetary fine for any of the following prohibited activities committed by the permittee or any employee, agent or servant of the permittee: (Amended 8-18-99)
(1) Conduct Prohibited On Premises.
That the permittee or any agent, servant, or employee of the permittee did or allowed any of the following to occur on the permitted premises:
A. Prostitute Frequenting Premises.
Permitted any prostitute to frequent the permitted premises;
B. Employment of Certain Persons.
Employment of or permitting any person to solicit patrons for drinks or to accept drinks from patrons and receive therefor any commission or any remuneration in any other way;
C. Gambling on Premises.
Permitted gambling or games of chance or kept any gambling device, machine or apparatus upon the permitted premises. Provided, any establishment licensed under the authority of Act 132 of 1969, as amended, (e.g. hotel-motel mixed drink, restaurant mixed drink, private club & large attendance facility) shall be allowed to have certain gambling machines or devices on its property in conformance with Act 1170 of 2005. Gambling devices or machines may only be on the property of a premises described above if the gambling machines or devices are being used by a non-profit organization that is described in the Act. Any non-profit organization desiring to use gambling machines on a permitted premises must register the event with the Alcoholic Beverage Control Division at least sixty (60) days before the event. The games used at the event may not use money but may use some form of play money. No cash or other item of value may be won or awarded as a prize. This proviso shall only be available for one event during a calendar year by any specific non-profit qualified organization. No permitted premises shall be allowed to host more than ten (10) such events per calendar year under authority of this law. Provided further, that games of bingo and raffles are not considered gambling when conducted at those permitted outlets which have obtained an authorized organization license from the Department of Finance and Administration to conduct games of bingo and raffles, pursuant to Act 388 of 2007. A violation of any provision of Act 388 of 2007 subjects the permitted outlet to the full range of administrative sanctions that may be levied by the Alcoholic Beverage Control Division. Provided further, that any activity authorized by the Arkansas Lottery Commission which occurs in a permitted outlet shall not be a violation of this regulation. (Amended 8-19-09)
D. Immoral Conduct or Improper Entertainment on Premises.
Permitted any immoral, lewd, obscene, or profane conduct, language, literature, pictures or materials or improper entertainment on the permitted premises.
1. General Attire and Conduct.
The following acts or conduct on licensed premises are deemed to constitute lewd, immoral, or improper entertainment as prohibited by this Section:
a. To allow any person in or upon the licensed premises while such person is unclothed or in such attire, costume or clothing as to expose to view any portion of the female breasts below the top of the areola, any portion of the pubic hair, anus, cleft of the buttocks, vulva or genitals or any simulation thereof; (Amended 9-8-97)
b. To employ or use the services of any hostess or other person to mingle with the patrons while such hostess or other person is unclothed or in such attire, costume or clothing as described in Subparagraph 1(a) above;
c. To encourage or permit any person on the licensed premises to touch, caress or fondle the breasts, buttocks, anus or genitals of any other person;
d. To permit any employee or person to wear or use any device or covering, exposed to view, which simulates the breasts, genitals, anus, pubic hair or any portion thereof.
2. Entertainers and Conduct.
Acts or conduct on licensed premises in violation of this Section are deemed to constitute lewd, immoral, or improper entertainment as prohibited by this Section.
a. Live entertainment may be approved by the Director or Board at any on premises licensed premises, except that no permittee shall permit any person to perform acts of or acts which simulate:
1) Sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law;
2) The touching, caressing or fondling of the breasts, buttocks, anus or genitals;
3) The displaying of the pubic hair, anus, vulva or genitals.
b. Subject to the provisions of Subparagraph 2(a) hereof, entertainers whose buttocks are exposed to view shall perform only on a stage at least two (2) feet above the immediate floor level and removed at least three (3) feet from the nearest patron. Physical contact between customers/patrons and entertainers during any dancing performance, including placing tips in the hand of or within or on any article of clothing of any such dancer, is prohibited.
No permittee shall permit any person to use artificial devices or inanimate objects to depict any of the prohibited activities described above.
3. Visual Displays.
The following acts or conduct on licensed premises are deemed to constitute lewd, immoral, or improper entertainment as prohibited by this Section.
The showing of films, still pictures, electronic reproduction, or other visual reproductions depicting:
a. Acts or simulated acts of sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law;
b. Any person being touched, caressed or fondled on the breast, buttocks, anus or genitals;
c. Scenes wherein a person displays the vulva or the anus or the genitals;
d. Scenes wherein artificial devices or inanimate objects are employed to depict, or drawings are employed to portray, any of the prohibited activities described above.
(2) Samples Prohibited.
The permittee or any agent, servant or employee of the permittee accepted from any person or sold or gave to any person any samples, either in unbroken packages, partial packages, or by the drink; this provision is applicable to private clubs, and all holders of retail permits. Provided, retail liquor stores may offer samples of intoxicating liquors of all kinds pursuant to permit as authorized by Act 455 of 2007. Further, retail permit holders may donate intoxicating liquor to charitable or non-profit organizations for non-profit functions where the charitable or non-profit organization does not have a permit to dispense intoxicating liquors and where such functions occur on a permitted premises of an on premises permittee of this agency. Provided further, that holders of large attendance facility permits in which pairmutuel wagering has been authorized by law may offer samples of alcoholic beverages by the drink to patrons who are in that area of the permitted facility where games of skill are housed. Provided further, that holders of permits in hotels and holders of private club permits that own or lease space within a hotel building may offer samples of alcoholic beverages by the drink to registered guests of the hotel as part of a manager’s reception. All such samples offered shall be subject to the gross receipts and use taxes as a withdrawal from stock and shall be paid by the permit holder in the manner prescribed by law. (Amended 8-21-13)
(3) Hours of Sale.
The permittee or any agent, servant or employee of the permittee sold, offered for sale, dispensed, gave away or allowed the consumption of any controlled beverages at any time prohibited by law, including the following:
A. Sundays, Mondays between 12:00 a.m. and 1:00 a.m., or on any other days between the hours of 1:00 a.m. and 7:00 a.m. Provided, that this Regulation shall not conflict with the ordinance of any city or town. In addition, the governing body of any city or town may fix later closing hours for the permitted premises of a hotel or restaurant which in no event shall be later than two (2) hours after midnight on Saturday night. (Amended 7-19-95)
It is further provided that any establishment which holds a permit that allows the on premises sale of alcoholic beverages may sell alcoholic beverages and allow the possession and consumption thereof on a Sunday between the hours of 10:00 a.m. and 12:00 midnight, or within a lesser period of time as authorized by city or county ordinance. It is further provided that if a city or county has held an election under the provisions of Act 294 of 2009, legalizing the off premises sale of alcoholic beverages on a Sunday by all permittees located within their jurisdiction, then such off premises retail sales shall be lawful between the hours of 10:00 a.m. and 12:00 midnight, or within a lesser period of time as authorized by city or county ordinance. (Amended 8-19-09)
It is further provided that when Sunday falls on December 31st of any year, any on premises consumption permit holder may sell and allow the possession and consumption of alcoholic beverages for on premises consumption between the hours of 10:00 a.m. on Sunday and 2:00 a.m. on the following Monday unless the city or county establishes by ordinance a lesser period of time in which alcoholic beverages may be sold for on premises consumption on New Year’s Eve; (Amended 8-19-09)
B. Christmas Day;
C. Election Day Prohibition; Repealed 12-15-89
D. Under the provisions of Act 305 of 1999, if a permittee is cited by a local jurisdiction for operating during hours prohibited by local city ordinance or by local county quorum court ordinance, and if such hours of operation for which the permittee is cited are more restrictive than the general hours of operations established by the Alcoholic Beverage Control Division or by the Arkansas General Assembly for a retail or private club permit, then such violation shall only be heard by a local court of competent jurisdiction and such violation shall not be considered to be an administrative violation against the permit issued by the Alcoholic Beverage Control Division; (Adopted 8-18-99)
E. Post Exchange Liquor Store permits may sell alcoholic beverages seven days per week to those customers that may purchase from such facilities. The post exchange package store may operate on the same hours as those established for military service clubs pursuant to ACA § 3-4-706. (Adopted 8-17-05)
F. Any large attendance facility permit issued under the authority of ACA § 3-9-202(8)(B) in which parimutuel wagering has been authorized and which has a current large attendance facility permit for on premises consumption may sell alcoholic beverages on any day of the week during hours in which the large attendance facility if open for business except on (1) Christmas Day and (2) Easter Sunday. However, the large attendance facility may sell alcoholic beverages on Easter Sunday between the hours of 12:00 midnight and 2:00 a.m., as authorized by Act 790 of 2009. (Amended 8-19-09)
G. A restaurant holding a permit under ACA § 3-9-202(8)(A) may sell alcoholic beverages for on premises consumption between the hours of 12:00 midnight Saturday and 2:00 a.m. on Sunday and on Sunday between the hours of 12:00 noon and 2:00 a.m. on the following Monday in addition to other times authorized by law for selling alcoholic beverages for on premises consumption if the restaurant is located in the same city where a large attendance facility permit has been issued to a facility in which parimutuel wagering has been authorized. Such expanded hours are authorized under Act 7 of 2009. (Adopted 8-19-09)
(4) Sales to Certain Persons Prohibited.
The permittee or any employee, agent or servant of the permittee sold to, offered for sale, dispensed, gave away, allowed the possession or consumption of, or otherwise disposed of or furnished any controlled beverages by any person who is not a person permitted by these Regulations or by the laws of the State of Arkansas to purchase, receive, possess, or consume such beverages, including but not limited to any of the following persons: (Amended 8-21-13)
A. Persons Under 21 Years.
Any person under twenty-one (21) years of age;
B. Person Who is Intoxicated.
Any person who is intoxicated or who is known to be an habitual drunkard;
C. Person Failing to Make Provision for Family; Repealed 8-17-05
D. Person Who is Insane.
Any person who is known to the permittee to be insane or mentally handicapped;
E. Habitual User of Narcotics.
Any person who is known to the permittee to be an habitual user of narcotics or other habit forming drugs;
F. Person Acquiring Controlled Beverages for Illegal Sale.
Any person who the permittee knows or has reasonable cause to believe is acquiring the controlled beverages for the purpose of illegal sale or other disposition;
G. Person Paying for Controlled Beverages With Food Stamps.
Any person who attempts to pay for the controlled beverages with United States Department of Agriculture Food Stamps.
(5) Sale of Controlled Beverages for Other Than Cash, Check, or Nationally Recognized Credit Card Prohibited - Gift Certificates Allowed.
The permittee or any employee, agent or servant of the permittee sold or dispensed any controlled beverages for any consideration other than cash, nationally recognized credit card, or check dated the same day as the sale. Nationally recognized credit card shall mean, but is not limited to VISA, Mastercard, American Express, Diners Club, Carte Blanche, Discover, major oil company credit cards, or others of the same nature and type. Further, any permittee may sell gift certificates or gift cards to any person permitted by these Regulations which may be redeemed for alcoholic beverages on a subsequent date by any person permitted by these Regulations.
It is further provided that any permittee that offers gifts certificates or gift cards shall receive full payment for the same at the time the gift card or gift certificate is sold to any person. Payment shall be made for the gift card in the same manner as if alcoholic beverages were being purchased at that time. Only cash, credit card or check dated the same date as the date of sale may be used for payment for the gift card or gift certificate. Gift cards or gift certificates may not be bartered or exchanged to any other person to be used as payment for any obligations owed by the permittee. If it is found that a permittee is paying its advertising bills or other such obligations with gift cards or gift certificates being given as payment or partial payment for the debt owed by the permittee, then redemption of the gift card or gift certificate, where the item has been sold by the third party for a price less than the face value of the gift certificate or gift card, will be deemed to be a merchandising discount program and will constitute a violation against the retailer under the provisions of Arkansas ABC Regulations 3.19(5). (Amended 8-16-11)
(6) Delivery of Controlled Beverages by a Retailer Prohibited.
The permittee or any employee, agent or servant of the permittee delivered or arranged for the delivery of any controlled beverages to a consumer, except as otherwise provided for in these Regulations. (Amended 8-18-99)
(7) Sale of Controlled Beverages in Container or Size Other Than Approved Prohibited.
The permittee or any employee, agent or servant of the permittee sold or offered to sell any controlled beverages in any container or size of container not approved by the Director in accordance with these Regulations. (Amended 8-18-99)
(8) Sale of Controlled Beverages by Vending Machine Prohibited.
The permittee or any employee, agent or servant of the permittee sold, offered to sell, dispensed or gave away any controlled beverages by means of a vending machine or other similar type device. (Amended 8-18-99)
(9) Purchase or Order From Unpermitted Sales Agent Prohibited.
The permittee or any employee, agent or servant of the permittee purchased controlled beverages or gave any order for controlled beverages to any sales agent who the permittee, employee, agent or servant knew did not have a permit to act as sales agent for the transaction involved. (Amended 8-18-99)
(10) Employment of Certain Persons Prohibited.
The permittee knowingly had in his employment any person who is not qualified by reason of these Regulations or by reason of any alcoholic beverage control law of the State of Arkansas for the position to which such person was employed, including but not limited to, any of the following persons:
A. Persons Convicted of Certain Laws.
Any person in the serving or mixing of controlled beverages, or in the dispensing of alcoholic beverages, the control of crowds or entrance to the permitted premises, or the management of the business or activities of the outlet who has pleaded guilty or nolo contendere to or has been found guilty of; (1) a violation of a law concerning the possession, sale, manufacture or transportation of intoxicating liquor or (2) a felony and who is on probation or serving a suspended sentence as a result of the felony. Provided, a person who has pleaded guilty or nolo contendere to or has been found guilty of a felony and who is on probation or serving a suspended sentence as a result of the felony may be employed by an on premises permittee if the person works only in a kitchen and alcoholic beverages are not served out of the kitchen. Provided further, a person who has pleaded guilty or nolo contendere to or has been found guilty of a felony and who is not on probation or serving a suspended sentence as a result of the felony may be employed by an on premises permittee in any capacity. Provided, that those convicted felons whose felony conviction involves bodily harm or the threat thereof to another person or the use of a weapon, as such is defined in Section 1.79(33) of these Regulations, may not be employed as a manager, security guard, bouncer, or in any position that requires the handling of alcoholic beverages. (Amended 8-21-13)
B. Persons Under Twenty-One (21); Exceptions.
Any person less than twenty-one (21) years of age in the mixing, serving, selling or handling of controlled beverages. Provided, that nothing in this Regulation shall prohibit a minor eighteen (18) years of age or older to be employed as a musician or entertainer or to be employed in the preparation or serving of food or in the housekeeping department of any establishment permitted by this Agency; and nothing in this Regulation shall prohibit a minor eighteen (18) years of age or older, with the written consent of a parent or guardian, to be employed in the sale of beer and small farm wine at retail grocery establishments, nor from being employed by permitted liquor and beer wholesalers and by permitted small farm wineries to handle alcoholic beverages at the place of business of the permitted wholesaler or winery; and further, nothing in this Regulation shall prohibit a minor of any age to be employed as an entertainer when the minor and his parent or guardian perform together as part of the same show and the parent or guardian remains with the minor in a supervisory capacity. Provided further, minors sixteen (16) and seventeen (17) years of age may be employed at those permitted outlets that qualify as retail grocery establishments, but may not handle alcoholic beverages. (Amended 8-21-13)
For purposes of this Regulation, retail grocery establishments shall not include those establishments engaged in the sale of motor fuels which do not maintain an inventory of human consumables (not including alcoholic beverage products) in an amount in excess of fifty thousand dollars ($50,000). The burden of providing this inventory requirement shall be on the permittee.
Any person or organization which holds a public restaurant mixed drink permit, a public hotel-motel-restaurant mixed drink permit, a restaurant wine permit, or a private club permit may employ persons 19 years of age or older to sell and handle alcoholic beverages. Provided, that persons 19 years of age and older may not act as bartenders but they may otherwise open bottles of wine and beer and serve the alcoholic beverages and take payment for the same. (Amended 8-21-13)
C. Person Held Ineligible for Permit.
Any person who has been held ineligible within two (2) years prior to the date of such employment to hold any permit under any alcoholic beverage control law of the State of Arkansas for any reasons other than his status as a resident.
(11) Procuring or Accepting Any Unlawful Gift or Service From a Wholesaler.
The permittee or any employee, agent or servant of the permittee requested or accepted any gift or service from a permitted wholesaler that is prohibited by these Regulations or by applicable Federal Regulations. Provided, that the holder of a large attendance facility permit issued to property owned by a government entity may solicit sponsorship money for public events from malt based products wholesalers, under the guidelines of Section 1.22.4 of these Regulations, or receive payment for advertising devices under the guidelines of Section 2.28(12) of these Regulations. (Amended 8-18-99)
(12) Disorderly Conduct on the Premises.
Any disorderly conduct or a breach of the peace by patrons or employees on the permitted premises. Such disorderly conduct shall include but not be limited to fights, brawls, or disturbances which result in bodily injury to any degree to any person on the permitted premises. (Amended 8-19-93)
(13) Sellers of Keg of Beer and Malt Liquor to Require Registration Statements to be Signed by Purchasers; Sellers of Kegs of Malt Beverage Products to Affix Identification Label to Keg; Sellers Required to Collect Registration Deposit; Conditions for Return of Registration Deposit or Forfeiture of Registration Deposit; Violation for Failure to Report Forfeitures of Registration Deposits.
Under the provisions of Act 254 of 2007, all retail sellers of kegs of beer and malt liquor products are required to attach an identification label to the keg of malt beverage product, to have their customers sign certain statements, and to collect a registration deposit on each keg delivered to the customer. The sellers are also required to return the registration deposit in certain circumstances and to require a forfeiture of the registration deposit under other circumstances as described in the law. This regulation will be applicable to persons who hold a permit to sell beer for off premises consumption under the provisions of Sections 1.19(1), 1.19(2), 1.19(18), 1.19(27), and 1.19(34). A keg as defined in the law means any vessel, constructed of any material, which has a liquid capacity of more than five (5 gals.) gallons. Off premises is defined in the law to mean a place other than the licensed retailer who is selling the keg described. Provided, no keg registration statement will be required when the retailer is selling the keg of malt beverage product to a licensed private club permittee for dispensing at the private club property.
A. All retailers that sell a keg of malt beverage product for off premises consumption are required to attach an identification label or tag approved by the Alcoholic Beverage Control Division to the keg prior to the time of sale.
1. The identification label or tag shall consist of a paper within a clear protective coating that is composed of either plastic, metal or other durable material that may not be easily damaged or destroyed.
2. The paper shall be of a kind which allows the information to be copied and retained by the retail dealer.
3. Identification labels used may contain a non-permanent adhesive material in order to apply the label directly to the outside service of the keg at the time of sale. Otherwise, the identification tag shall be attached at the time of sale with nylon ties, or cording, wire ties or other tag metal attachment devices or some other durable means of tying or attaching the identification tag to the keg. The identification label or tag shall be perforated and of a composition and so designed and affixed that it will not mar or otherwise physically damage the keg. The tag must be of a design that allows for the full removal of the tag when common external cleaning procedures are performed at retail.
4. The identification tag or label shall include the following Information:
a. The name and address of the retail dealer making the sale.
b. The name of the purchaser.
c. An identification number assigned by the retail dealer that uniquely identifies that particular keg of malt beverage product.
d. Prior to the retail sale of the keg of malt beverage product, the retail dealer shall require the purchaser to sign a statement furnished by the Director of the Alcoholic Beverage Control Division.
B. The retail dealer shall also record the following information and retain it as part of their records:
1. The name and address of the purchaser.
2. The identification card or driver’s license number from the purchaser’s acceptable documentation of age.
3. The amount of the container deposit of not less than seventy-five dollars ($75.00).
4. The date and time of the purchase.
5. The keg identification number that was created by the retailer making the sale.
6. All records and statements required under this law shall be maintained by the retail dealer for a period of ninety (90) days from the date of the return of the keg. In the event that a keg is not returned as required by law and a forfeiture occurs, the records and statements required under this law and regulation shall be maintained by the retailer dealer for a period of ninety (90) days after the declared date of forfeiture.
a. The records and statements required by the Keg Registration Law shall remain open to inspection by agents of the ABC Enforcement Division and law enforcement officers during the retail dealer’s normal business hours.
C. The retail dealer shall notify the Director of the Alcoholic Beverage Control Enforcement Division that a forfeiture has occurred. The retail dealer shall forward to the Alcoholic Beverage Control Division its $25.00 portion of the forfeited container deposit. The retail dealer shall indicate on a form furnished by the ABC Division, within ten (10) days of the date of forfeiture, the reason why the container deposit has been forfeited, including but not limited to the following reasons:
1. The keg was not returned;
2. The keg was returned more than one hundred twenty (120)
days after purchase;
3. The identification label or tag was removed; or
4. The identification label or tag was damaged.
Any retail dealer that fails to notify the Director of the ABC Enforcement Division or forward to the ABC Division its share of the forfeited container deposit within ten (10) days of the forfeiture of each container deposit is guilty of a violation of Act 254 of 2007 and is also guilty of a Class B violation against their permit as is provided in ACA § 3-4-402.
Any Arkansas brewery or microbrewery-restaurant operation that sells for off premises consumption, as described above, shall be required to engage in the keg registration process on the same basis as any other retailer of keg malt beverage products. (Amended 8-15-07)