5991804 Alcoholic Beverage Regulation Administration - Notice of Final Rulemaking - Chapters 1 and 8 of 23 DCMR - Creating a methodology for computing prior violations.
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ALCOHOLIC BEVERAGE REGULATION ADMINISTRATION
ALCOHOLIC BEVERAGE CONTROL BOARD
NOTICE OF FINAL RULEMAKING
The Alcoholic Beverage Control Board (Board), pursuant to the authority set forth in the District of Columbia Alcoholic Beverage Control Act, approved January 24, 1934 (48 Stat. 331; D.C. Official Code §§ 25-211(b) and 25-830(f) (2012 Repl. & 2016 Supp.)) and Mayor’s Order 2001-96, dated June 28, 2001, as revised by Mayor’s Order 2001-102, dated July 23, 2001, hereby gives notice of the adoption of amendments to Chapter 1 (Provisions of General Applicability) and Chapter 8 (Enforcement, Infractions, and Penalties) of Title 23 (Alcoholic Beverages) of the District of Columbia Municipal Regulations (DCMR).
The rules establish a methodology for computing prior violations under the graduated penalty scheme set forth in D.C. Official Code § 25-830 (Civil Penalties) and Chapter 8 of Title 23 DCMR. Chapter 8 is amended by adding a new Section 808, for the computation of a licensee’s violation history when assessing a penalty for an adjudicated violation. These proposed rules also add several definitions to Chapter 1 of Title 23 DCMR in order to clarify the terms used in the computation methodology.
On August 12, 2015, the Board adopted the Computation of Civil Penalty Notice of Proposed Rulemaking. The proposed rules were published in the D.C. Register on October 2, 2015, at 62 DCR 13029. No changes have been made to the rules since they were published as proposed.
Pursuant to D.C. Official Code § 25-211(b)(2), the proposed rules were transmitted to the Council for the District of Columbia (Council) for the mandatory ninety (90)-day period of review. On April 5, 2016, the Council approved the rules. See R21-450, effective April 5, 2016.
On April 20, 2016, the Board voted five (5) to zero (0) to adopt the rules as final. In accordance with D.C. Official Code § 25-211(d)(1), these rules shall not take effect until five (5) days after the rules are published in the D.C. Register.
Chapter 1, PROVISIONS OF GENERAL APPLICABILITY, of Title 23 DCMR, ALCOHOLIC BEVERAGES, is amended as follows:
Section 199, DEFINITIONS, is amended by adding the following terms and phrases:
Date of Adjudication – The date a Board Order is issued in an enforcement action where there is a finding of liability; the date of payment of a fine resulting from a citation or a staff settlement; or the date of the Board’s acceptance of an offer in compromise.
Date of Violation – The date on which the infraction was committed, as listed on the relevant case report.
Instant Case – The case currently before the Board that is pending adjudication. The date of violation in the instant case controls the beginning point of the review period.
Offer in Compromise – A negotiation between the Government and the Respondent to settle the charges brought by the Government for those violations committed by the Respondent in the instant case.
Prior Adjudication – Violations that have been adjudicated and can therefore be counted for purposes of computing violation history.
Review Period – The period of time immediately preceding the date of violation, as established by statute. Cases adjudicated during the review period are counted for purposes of computing a licensee’s violation history.
Staff Settlement - An agreement offered by ABRA to the Respondent to voluntarily resolve a violation in order for the Respondent to avoid further legal action.
Violation - An infraction or breach of the law or regulation.
Violation History - The number of primary and secondary tier adjudications that were finalized during the relevant review period.
Chapter 8, ENFORCEMENT, INFRACTIONS, AND PENALTIES, is amended as follows:
A new Section 808, VIOLATION HISTORY COMPUTATION, is added to read as follows:
808 VIOLATION HISTORY COMPUTATION
808.1 This section applies to all instances that require a computation of a person’s or licensee’s violation history, including, but not limited to, D.C. Official Code §§ 25-781, 25-783, and 25-830.
808.2 The review period for computing the number of a licensee’s prior primary and secondary tier violations commences on the date of violation in the instant case, and runs backward for the number of years specified in §§ 808.6, 808.7, and 808.8, as applicable.
808.3 The computation of violation history shall only include prior adjudicated cases whose dates of adjudication fall within the applicable review period for the instant case.
808.4 The date of adjudication for computation purposes shall be the date:
(a) The citation was paid;
(b) A final written order finding liability has been issued by the Board;
(c) A staff settlement was paid; or
(d) The date an offer-in compromise was accepted by the Board.
808.5 The computation shall not include:
(a) Any violation that has not been adjudicated as of the date of the violation in the instant case;
(b) Any adjudicated case whose date of adjudication falls outside of the review period.
808.6 A licensee shall be found liable for a second primary or secondary tier violation, whichever is applicable, if one (1) prior violation of the same tier was adjudicated within two (2) years of the date of violation in the instant case.
808.7 Except as specified in D.C. Official Code § 25-781 and § 25-783, a licensee shall be found liable for a third primary or secondary tier violation, whichever is applicable, if two (2) prior violations of the same tier were adjudicated within three (3) years of the date of violation in the instant case.
808.8 Except as otherwise specified in D.C. Official Code § 25-781 and § 25-783, a licensee shall be found liable for a fourth primary or secondary tier violation, whichever is applicable, if three (3) prior violations of the same tier were adjudicated within four (4) years of the date of violation in the instant case.
808.9 Any licensee who is found liable for a fourth secondary tier violation within four (4) years shall, pursuant to D.C. Official Code § 25-830(d):
(a) Be deemed to have committed a first primary tier violation;
(b) Be subject to penalty and fine schedule for primary tier violations for five (5) years from the date of the violation in the instant case, during which time each subsequent secondary tier violation shall be deemed a subsequent primary tier violation for all purposes.
808.10 Except as otherwise specified in D.C. Official Code § 25-781 and § 25-783, a licensee shall be found liable for a fifth primary tier violation if four (4) prior primary tier violations were adjudicated within four (4) years of the date of violation in the instant case.
808.11 Subsections 808.6, 808.7, and 808.8 do not apply to violations of D.C. Official Code § 25-781 and § 25-783, which establish the penalties for a single violation of either statute and establish graduated penalties for multiple violations of either statute. All other provisions of this subsection apply to § 25-781 and § 25-783.
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808.12 Each date upon which a violation is committed shall constitute a separate violation.
808.13 When a violation requires multiple instances, a continuous course of conduct, or other ongoing acts to sustain a charge, the date of the violation shall be the last date on which any act related to the violation occurred.
808.14 If multiple secondary tier violations are committed on the same date, they will be counted as one (1) violation for purposes of computing a licensee’s violation history.
808.15 If primary and secondary tier violations are committed on the same date, they will be adjudicated separately; a licensee may be found liable for primary and secondary tier violations committed on the same date, and for multiple primary tier violations committed on the same date.
808.16 If the Board suspends a Respondent’s license but stays the suspension:
(a) The stay shall commence on the date of adjudication and conclude on the one (1)-year anniversary of that date;
(b) The stay shall be revoked and the suspension imposed upon adjudication of any subsequent violation within the stay period.
808.17 Written warnings, either issued by the Board or by citation, are not counted as violations for computation purposes.
