Section 1.79 Prohibited Activities; Grounds for Cancellation, Suspension, Revocation, or Placing of Monetary Fine Against Any 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, any permit issued pursuant to any alcoholic beverage control law of the State of Arkansas may be cancelled, suspended, 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) Failure to Comply with Federal Regulations.
The permittee violated or failed to comply with any advertising, inducements or packaging regulation issued as a regulation of the Alcohol and Tobacco Tax and Trade Bureau, Department of the Treasury of the United States Government as promulgated in Title 27 of the Code of Federal Regulations;
(2) Sale of Controlled Beverages When Permit Not Posted.
The permittee sold, offered for sale, dispensed, gave away or possessed on the premises any controlled beverages at any time when the permit of said permittee was not posted as required by these Regulations;
(3) Failure to Furnish Bond; Repealed 8-18-99
(4) Failure to Pay Tax, Fee, Penalty or Child Support.
The permittee failed to pay when due, any tax or fee required by these Regulations, or by any law of the State of Arkansas, or any political subdivision of the State of Arkansas, or any penalty assessed by the Director, the Board, any Court, or any Court ordered child support. The permittee’s failure to pay taxes imposed on alcoholic beverages by any state or local gross receipts and compensating use taxes in a timely manner shall be grounds for the non-renewal of the permittee’s permit(s) by the Board. Provided further, any permit(s) suspended for non-payment of the above taxes shall be cancelled if the tax arrearage is not satisfied within six (6) months of the date of suspension; (Amended 8-17-05)
(5) Giving False Information or Statements.
The permittee knowingly gave false information or made false statements on any application or in any hearing required by these Regulations or by any alcoholic beverage control law of the State of Arkansas;
(6) Failure to Possess Qualifications Required. The permittee, if the permittee is an individual, any partner, if the permittee is a partnership, or if the permittee is a corporation, any officer, director, managing agent, or stockholder holding more than five percent (5%) of the stock of the corporation failed to possess at any time any qualifications required by these Regulations or by any alcoholic beverage control law of the State of Arkansas;
(7) Failure to Maintain Health, Safety and Sanitary Standards.
The permittee failed to maintain the minimum health, safety and sanitary standards established by the State of Arkansas and by the rules and regulations of the State Board of Health for the permitted premises;
(8) Violation of Oath.
The permittee violated any oath required by these Regulations or by any alcoholic beverage control law of the State of Arkansas;
(9) Failure to Keep and Maintain Records or Make Report.
The permittee failed to keep and maintain any records required to be kept and maintained, or failed to make any report required to be made by these Regulations or by any alcoholic beverage control law of the State of Arkansas;
(10) Failure to Furnish Access to Premises or Failure to Cooperate.
The permittee failed to furnish reasonable access to the premises to any law enforcement officer of this State or any county or municipality in which the premises is located or to any duly authorized agent of the Alcoholic Beverage Control Division or failed to cooperate or take reasonable action to assist any such law enforcement officers who are on the permitted premises in the performance of their duties; (Amended 12-23-86)
(11) Failure to Allow Inspection of Books or Records.
The permittee failed to allow a reasonable inspection of the books or records of the permitted business to any duly authorized agent of the Division of Alcoholic Beverage Control;
(12) Attempt to Transfer or Assign Permit.
The permittee attempted to transfer or assign the permit to any other person or any premises other than the premises described in the permit by any procedure other than that established by these Regulations and the laws of this State;
(13) Pledge, Hypothecation or Use of Permit as Collateral.
The permittee pledged or hypothecated the permit or deposited the permit as collateral security for any loan or upon any other condition;
(14) Posting Permit on Unauthorized Premises.
The permittee posted or knowingly allowed any other person to post the permit upon premises other than the permitted premises described in the permit;
(15) Defacing, Destroying or Altering Permit.
The permittee maliciously defaced or destroyed the permit, or knowingly altered the permit or knowingly allowed any other person to maliciously deface or destroy or knowingly alter the permit in any respect;
(16) Transporting Controlled Beverages in Violation of Regulation or Law.
The permittee transported or caused to be transported any controlled beverage in violation of these Regulations or any alcoholic beverage control law of the State of Arkansas;
(17) Manufacture or Possession of Controlled Beverage With Excess Alcohol Content.
The permittee manufactured or possessed on the permitted premises any controlled beverage having an alcohol content as measured by weight in excess of that prescribed by ACA § 3-1-102 and by these Regulations for such beverages; (Amended 8-19-93)
(18) Removing or Obliterating Label, Mark or Stamp.
The permittee removed or obliterated any label, mark or stamp affixed to any bottle or container of controlled beverages offered for sale or delivered or sold the contents of any bottles or containers upon which the label, mark or stamp had been removed or obliterated;
(19) Consuming and/or Under the Influence of Controlled Beverages While on Duty.
The owner or permittee was under the influence of alcoholic beverages, or any employee consumed alcoholic beverages or was under the influence of alcoholic beverages, while on duty on the permitted premises. “Duty” shall include the sale or service of alcoholic beverages and/or crowd control. In determining whether the permittee or any agent, server or employee is otherwise on duty, the Director or Board may consider, among other factors, the size of the permitted establishment, the number of employees working at the time, and whether the permittee has a manager on the premises; (Amended 8-17-05)
(20) Unauthorized Manufacture, Sale, Offer, Dispensing, Gift, or Possession of Controlled Beverage. The permittee manufactured, sold, offered for sale, dispensed, gave away, or possessed any controlled beverage not authorized to be manufactured, sold, offered for sale, dispensed, given away or possessed under the permit held by the permittee or allowed any of the foregoing on the permitted premises by any employee or patron; (Amended 12-15-89)
(21) Manufacture or Sale in “Dry” Area.
The permittee manufactured, sold, offered for sale, solicited or took orders for any controlled beverage in any area in which the manufacture or sale of such beverage is prohibited by law;
(22) Manufacture, Sale, Offer, Dispensing, Gift, Possession or Transportation of Controlled Beverage Upon Which Tax Not Paid.
The permittee manufactured, sold, offered for sale, dispensed, gave away, possessed or knowingly transported in this State any controlled beverage of any kind upon which any tax required by these Regulations or by any alcoholic beverage control law of the State of Arkansas has not been paid; (Amended 8-19-93)
(23) Storing Controlled Beverages on Unauthorized Premises.
The permittee stored or caused to be stored controlled beverages manufactured, purchased or possessed by the permittee by virtue of the permit at any location other than on the premises described in the permit or in a warehouse approved in accordance with these Regulations;
(24) Possession of Illegal Drugs or Narcotics.
The permittee possessed, or knew or reasonably should have known that any agent or employee or patron of the establishment possessed on the permitted premises, any illegal drug, narcotic, controlled substance or drug paraphernalia, as defined in the Arkansas Uniform Controlled Substance Act. Further, no agent or employee of the permittee shall knowingly allow the possession on the permitted premises of any illegal drug, narcotic, controlled substance or drug paraphernalia; (Amended 8-19-93)
(25) Employing a Convicted Felon.
The holder of any permit issued by this agency had in employment during any hours the outlet was open for business in any capacity a convicted felon whose felony conviction has not been pardoned or record not expunged whose duties include the sale, service, or 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; such prohibited employment shall include but not be limited to managers, bartenders, waiters/waitresses, bouncers, door persons, and cashiers. Provided, that those convicted felons whose felony conviction does not involve 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 be employed in an Alcoholic Beverage Control permitted outlet; (Amended 8-15-07)
(26) Failure to File Timely Change of Manager or Replacement Application.
The permittee of any retail outlet sold or leased the permitted business and the purchaser/lessee of such business failed to file an acceptable replacement application within thirty (30) days of such sale or lease; the managing agent of any incorporated retail outlet or private club became unqualified to serve as such for any reason and such corporate permittee or private club failed to file an acceptable change of manager application within thirty (30) days of such disqualification. In the event that any replacement or change of manager application required by this Section is finally denied, such permit will be presumed abandoned in violation of this Section and the Director may hold a hearing on such permit and make appropriate findings; (Adopted 7-19-84)
(27) Allowing Alcoholic Beverages to be Carried From Any On Premises Alcoholic Beverage Outlet or Private Club.
The permittee allowed any patron to exit the permitted premises carrying any open container of alcoholic beverages or allowed any patron to exit any on premises retail beer outlet carrying sealed alcoholic beverages in any combination not authorized by the Director for off premises sales. Private clubs and hotel-motel-restaurant mixed drink permitted outlets are not allowed to sell any alcoholic beverages to be taken off the permitted premises. Provided, (1) those establishments holding an on premises wine restaurant or café permit, a combined restaurant beer and wine permit, hotel-motel-restaurant mixed drink permit, or private club permit, may allow a customer, who purchases an unsealed package of wine in conjunction with a food purchase and consumes a portion of the wine on the premises with the meal, to replace the cork and remove the partially filled package from the premises and (2) patrons may walk back and forth with an alcoholic beverage between a private club permitted premises and another contiguous permitted premises when both premises are a part of the same business operation and the alcoholic beverage is a type permitted by both premises; (Amended 8-19-09)
(28) Advertising, Selling or Dispensing Alcoholic Beverages on a Two or More for the Price of One Basis.
The permittee advertised, sold, dispensed, or served any alcoholic beverages for on premises consumption on the basis of two or more drinks for the price of one. Further, the permittee advertised, sold, dispensed, or served alcoholic beverages without a limit to any person on the basis of a flat fee or cover charge. Further, distilled spirits may not be sold by the bottle to patrons for self pouring at on premises consumption permitted outlets. Provided, a fee charged for wine tastings, where such tastings are served in containers of two (2) ounces or less and each patron is limited to a maximum of four (4) servings per charge, shall not be deemed in violation of this Regulation; (Amended 8-17-05)
(29) Conviction of Any Permittee of Second or Subsequent DWI or Unlawful Sale of Alcohol.
The permittee or any managing agent for any corporate permittee, after the effective date hereof, has been convicted of a second or subsequent driving while intoxicated (DWI) offense or has been convicted for a second or subsequent time for any unlawful sale of alcoholic beverages where such second conviction occurs within five (5) years of the prior conviction; (Amended 8-19-93)
(30) Strict Liability on the Part of the Permittee for Any Prohibited Advertising.
The permittee, partnership, or corporation holding any permit issued by the Alcoholic Beverage Control Division may be held strictly liable for any type of advertising that is prohibited for such permittee by these Regulations or by code provisions. When such advertising is promoting any event or activity on a permitted premises it is irrelevant, for the purposes of administrative liability, whether or not the permittee had prior actual knowledge of the contents of the prohibited advertisement. However, lack of actual knowledge may be taken into consideration by the Director, along with all other relevant circumstances, in determining the administrative penalty to be levied for this violation; (Adopted 12-23-86)
(31) Failure of Permittee to Maintain on File “Server Awareness Form” for Each Employee as Required by Regulations.
The permittee failed to have each employee acknowledge by signature the “Server Awareness Form” promulgated by the Director and to be maintained in the personnel file of each employee; (Adopted 12-15-89)
(32) Failure to Be a Good Neighbor.
The policy of the Arkansas General Assembly, per Act 695 of 1989, and the Alcoholic Beverage Control Board, which is empowered to adopt regulations thereunder, is that every holder of an Alcoholic Beverage Control permit shall be held to a high duty of care and will operate their business where beverages are sold or dispensed in a manner which is in the public interest and which does not endanger the public health, welfare, or safety. Failure to maintain this duty of care shall be a violation of the Act and shall constitute grounds for the application of the full range of administrative sanctions and penalties against the subject permit.
Any inquiry made under the provisions of this Regulation, or Act 695 of 1989, shall be whether or not the outlet, as operated, promotes the public convenience and advantage or whether the continuation of the operation of the outlet would promote the public interest and whether or not the outlet’s operation endangers the public health, welfare or safety in the area of a community in which it is located. It is specifically provided that during any hearing called under the provisions of this Regulation or the aforementioned Act the permitted outlet may be viewed as if it were a new application and all factors involved in the processing of the application may be re-determined as if the application was being made for the first time.
As to all violations occurring inside the permitted premises, the standard of proof shall be by substantial evidence. As to all violations occurring outside the permitted premises, the standard of proof shall be by clear and convincing evidence. In addition to all factors which may be used on an initial application, inquiry may be made upon the control, or lack thereof, that the permittee exercises over parking lots and other areas adjacent to the permitted outlet which are under the direct control of the permittee. In addition, the permittee may be held accountable under this Section for disorderly conduct, excessive noise or loud music from his outlet and which is of such volume and such degree as to constitute a disturbance of the public peace; (Amended 8-17-05)
(33) Allowing Possession of Weapons on Premises.
That the permittee, or any employee of the permittee, allowed, or knew, or reasonably should have known, that any person without a possessory or proprietary interest in the permitted outlet was in possession of a weapon on the permitted premises. As used in this Regulations, “weapon” means any firearm that is designed, made, or adapted to be fired, or any knife or club as defined by ACA § 5-73-120. Any weapon authorized to be in the permitted outlet pursuant to this Regulation must be kept out of sight and inaccessible to patrons and others who have no legal right to possess a weapon in the outlet. This Regulation excludes any law enforcement officer, any duly authorized agent of the Alcoholic Beverage Control Enforcement Division, and any licensed security guard, while acting in the course and scope of their official duties. Provided, that any person with a permit issued by the Director of the Arkansas State Police may carry a concealed handgun, as such is defined in ACA § 5-73-301 into a restaurant, as such as defined in ACA § 3-9-202(14). (Amended 8-16-11)
(34) Sale While Permit Suspended or on Inactive Status.
That the permittee or any agent or employee of the permittee sold, offered for sale, dispensed, gave away or allowed the consumption of any controlled beverages upon the permitted premises at any time the permit is suspended or on inactive status; (Adopted 8-19-93)
(35) Sale of Tobacco to Minor.
That the permittee or any agent or employee of the permittee sold tobacco in any form or cigarette papers to a minor under eighteen (18) years of age; (Adopted 8-19-93)
(36) Allowing Open Containers of Alcoholic Beverages in Off Premises Permitted Outlet.
That the permittee, or any employee of the permittee, allowed or knew or reasonably should have known that open containers of alcoholic beverages were present in an off premises permitted outlet; (Adopted 7-19-95)
(37) Duty of Permittee to Provide Certain Information to Alcoholic Beverage Control Enforcement Agents or Law Enforcement Officers.
That the permittee failed to provide to the Alcoholic Beverage Control Division, any Alcoholic Beverage Control Enforcement agent or law enforcement officer, when requested, access to information pertaining to the employment of any person employed by the permittee or gave fraudulent information regarding such employee; (Adopted 7-19-95)
(38) Allowing Alcoholic Beverages to be Removed From Permitted Outlet When Sale or Dispensing Prohibited.
That the permittee, or any employee or agent, removed or allowed to be removed alcoholic beverages from a retail or private club permitted outlet at any time the sale or dispensing of alcoholic beverages is prohibited by law; (Adopted 8-20-97)
(39) Sale of Alcoholic Beverages to Persons Under Twenty-0ne (21) Years.
That the permittee or any employee, agent or servant of the permittee sold to, offered for sale, dispensed, gave away, or allowed the possession or consumption of any controlled beverage by any person under twenty-one (21) years of age. (Adopted 8-18-99)
(40) Alcohol Vaporizers Prohibited. That the permittee or any employee, agent or servant of the permittee allowed the use or possession on the permitted premises of any alcohol vaporizing device, as such is defined by Act 466 of 2009. (Adopted 8-19-09)
Section 1.80 Acts of Servants, Agents or Employees Imputed to Permittee.
All acts of any servant, agent or employee of the permittee shall be imputed to the permittee and deemed to be an act of the permittee if done within the scope of such servant, agent or employee’s scope of authority under the permittee.
Section 1.81 Suspension of Permit When No Business Conducted for a Period of Thirty Days; Inactive Status of Permits.
In the event a permittee does not conduct business under any permit issued for a period of thirty (30) days, the permit shall be surrendered to the Director and shall be placed on inactive status. Inactive status shall commence at the end of thirty (30) days after close of business, regardless of whether the permit is surrendered to the Director. In any event, for purposes of this Regulation, a business that has been closed for a period of thirty (30) days shall be deemed to be on inactive status. The permit may remain inactive for six (6) months or until the permittee notifies the Director that he is ready to resume business, whichever is shorter, subject to the permittee’s petition to the Alcoholic Beverage Control Board for an extension of inactive status provided for in this Regulation. “Ready to resume business” includes the resumption of business at the permitted location or the filing of an acceptable application with the agency to transfer the location of the permitted business. If said application to transfer the location of the permitted business is granted conditional, the conditions must be met within twelve (12) months from the final agency decision granting the transfer application or the application will be cancelled. In order to extend the twelve (12) month conditional period, written approval must be obtained from the Director or Board before the expiration of the twelve (12) month period.
Upon any such cancellation, the inactive status of the permit will be calculated from the time the final agency decision granting the transfer of location was rendered. To secure the return of the permit, the permittee shall file with the Director a written statement showing that all taxes and fees owing to the State have been paid, the reason for the suspension of business activities and the date business activity will resume.
The permittee may petition the Alcoholic Beverage Control Board for an extension of inactive status for an additional six (6) month period. The Board may grant an initial extension upon a showing by the permittee and a finding by the Board that business circumstances exist to justify an extension, that the delay to return to business was not due to mere deferral or inattention on the part of the permittee, and that the inactive status should be extended. The permittee may appeal to the Alcoholic Beverage Control Board for a second extension of inactive status for an additional six (6) month period, but only upon a showing by the permittee and a finding by the Board that emergency circumstances exist to justify a final extension. Emergency circumstances are those delays in return to business which are beyond the control, planning, or foresight of the permittee, including, but not limited to, delays due to natural disasters, pending court actions, building construction problems, and contested insurance claims.
Any permit remaining on inactive status for a period of more than eighteen (18) months or which has not been granted an extension under the provision of this Regulation shall expire pursuant to written notice given to permit holders by this agency or to the provisions of ACA § 3-4-201 as they apply. Any permitted outlet which has been on inactive status in excess of six (6) months shall be re-inspected by the Alcoholic Beverage Control Enforcement Division to determine if the outlet is in compliance with required health and safety regulations before the permit(s) may be returned to active status. As part of the re-inspection process, the Alcoholic Beverage Control Enforcement Division shall give notice of the request to return to active status to the law enforcement officer who has primary jurisdiction over the site of the permitted outlet. (Amended 8-20-03)
Section 1.82 Notice of Suspension to be Posted on Premises.
Whenever any permit shall be suspended by the Director, Board or any court, a notice thereof in a form prescribed by the Director shall be posted in a conspicuous place in the front entrance to the premises during the period of time for which such permit is suspended. No permittee shall remove or knowingly allow any other person to remove a notice so posted during the period when the permit is suspended.
Section 1.83 Procedure Governing Cancellation, Suspension or Revocation of Permit.
The cancellation, suspension or revocation of any permit issued pursuant to any alcoholic beverage control law of the State of Arkansas shall be in accordance with the procedure established under Subtitle D of this Title.
Section 1.84 Employees in Permitted Outlets to Sign “Server Awareness Form”.
Every employee in a permitted outlet (excepting kitchen and janitorial personnel), upon commencement of such employment, and every permittee, shall acknowledge by signature that he or she has read and understands the content of a form entitled “Server Awareness Form”; such form being provided by the Director and setting forth pertinent Regulations and laws governing the sale and service of alcoholic beverages and other related information as determined appropriate by the Director. The initial form shall be provided to the permitted outlet by the Agency, and thereafter the permittee shall duplicate and provide forms to employees. The form signed by the employees and the permittee shall be maintained in the personnel records in possession of the permittee. If the original forms are not on the permitted premises, copies of the forms must be available on the permitted premises for inspection by Alcoholic Beverage Control Enforcement agents or other law enforcement officers. (Amended 8-18-99)
Section 1.85 Warning Notice Regarding Sale to Minors to be Posted in Permitted Outlet.
A warning notice that includes the provisions of ACA § 3-2-202(a) and (b), knowingly furnishing or knowingly selling alcoholic beverages to a minor, shall be posted in a conspicuous place in every establishment that sells or dispenses alcoholic beverages. The size of the notice shall not be less than eight and one-half inches by eleven inches (8½” x 11”). The lettering on the notice shall be clearly legible. (Adopted 7-19-95)