2006 Utah Code - 32A-1-119 — Adjudicative proceedings -- Procedure.

     32A-1-119.   Adjudicative proceedings -- Procedure.
     (1) (a) As used in this section and Section 32A-1-120, "disciplinary proceeding" means an adjudicative proceeding permitted under this title:
     (i) against:
     (A) a permittee;
     (B) a licensee;
     (C) a manufacturer;
     (D) a supplier;
     (E) an importer;
     (F) an out-of-state brewer holding a certificate of approval under Section 32A-8-101; or
     (G) an officer, employee, or agent of a person listed in Subsections (1)(a)(i)(A) through (F); and
     (ii) that is brought on the basis of a violation of this title.
     (b) As used in Subsection (4), "final adjudication" means an adjudication for which a final unappealable judgment or order has been issued.
     (2) (a) The following may conduct adjudicative proceedings to inquire into any matter necessary and proper for the administration of this title and rules adopted under this title:
     (i) the commission;
     (ii) a hearing examiner appointed by the commission for the purposes provided in Subsection 32A-1-107(3);
     (iii) the director; and
     (iv) the department.
     (b) Except as provided in this section or Section 32A-3-106, the following shall comply with the procedures and requirements of Title 63, Chapter 46b, Administrative Procedures Act, in adjudicative proceedings:
     (i) the commission;
     (ii) a hearing examiner appointed by the commission;
     (iii) the director; and
     (iv) the department.
     (c) Except where otherwise provided by law, all adjudicative proceedings before the commission or its appointed hearing examiner shall be:
     (i) video or audio recorded; and
     (ii) subject to Subsection (5)(e), conducted in accordance with Title 52, Chapter 4, Open and Public Meetings Act.
     (d) All adjudicative proceedings concerning departmental personnel shall be conducted in accordance with Title 67, Chapter 19, Utah State Personnel Management Act.
     (e) All hearings that are informational, fact gathering, and nonadversarial in nature shall be conducted in accordance with rules, policies, and procedures promulgated by the commission, director, or department.
     (3) (a) A disciplinary proceeding shall be conducted under the authority of the commission, which is responsible for rendering a final decision and order on any disciplinary matter.
     (b) (i) Nothing in this section precludes the commission from appointing necessary officers, including hearing examiners, from within or without the department, to administer the disciplinary proceeding process.

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     (ii) A hearing examiner appointed by the commission:
     (A) may conduct a disciplinary proceeding hearing on behalf of the commission; and
     (B) shall submit to the commission a report including:
     (I) findings of fact;
     (II) conclusions of law; and
     (III) recommendations.
     (c) Nothing in this section precludes the commission, after it has rendered its final decision and order, from having the director prepare, issue, and cause to be served on the parties the final written order on behalf of the commission.
     (4) (a) The department may initiate a disciplinary proceeding described in Subsection (4)(b) when the department receives:
     (i) a report from any government agency, peace officer, examiner, or investigator alleging that any person listed in Subsections (1)(a)(i)(A) through (G) has violated this title or the rules of the commission;
     (ii) a final adjudication of criminal liability against any person listed in Subsections (1)(a)(i)(A) through (G) based on an alleged violation of this title; or
     (iii) a final adjudication of civil liability under Chapter 14a, Alcoholic Beverage Liability, against any person listed in Subsections (1)(a)(i)(A) through (G) based on an alleged violation of this title.
     (b) The department may initiate a disciplinary proceeding if the department receives an item listed in Subsection (4)(a) to determine:
     (i) whether any person listed in Subsections (1)(a)(i)(A) through (G) violated this title or rules of the commission; and
     (ii) if a violation is found, the appropriate sanction to be imposed.
     (5) (a) Unless waived by the respondent, a disciplinary proceeding shall be held:
     (i) if required by law;
     (ii) before revoking or suspending any permit, license, or certificate of approval issued under this title; or
     (iii) before imposing a fine against any person listed in Subsections (1)(a)(i)(A) through (G).
     (b) Inexcusable failure of a respondent to appear at a scheduled disciplinary proceeding hearing after receiving proper notice is an admission of the charged violation.
     (c) The validity of a disciplinary proceeding is not affected by the failure of any person to attend or remain in attendance.
     (d) All disciplinary proceeding hearings shall be presided over by the commission or an appointed hearing examiner.
     (e) A disciplinary proceeding hearing may be closed only after the commission or hearing examiner makes a written finding that the public interest in an open hearing is clearly outweighed by factors enumerated in the closure order.
     (f) (i) The commission or its hearing examiner as part of a disciplinary proceeding hearing may:
     (A) administer oaths or affirmations;
     (B) take evidence;
     (C) take depositions within or without this state; and
     (D) require by subpoena from any place within this state:

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     (I) the testimony of any person at a hearing; and
     (II) the production of any books, records, papers, contracts, agreements, documents, or other evidence considered relevant to the inquiry.
     (ii) A person subpoenaed in accordance with this Subsection (5)(f) shall testify and produce any books, papers, documents, or tangible things as required in the subpoena.
     (iii) Any witness subpoenaed or called to testify or produce evidence who claims a privilege against self-incrimination may not be compelled to testify, but the commission or the hearing examiner shall file a written report with the county attorney or district attorney in the jurisdiction where the privilege was claimed or where the witness resides setting forth the circumstance of the claimed privilege.
     (iv) (A) A person is not excused from obeying a subpoena without just cause.
     (B) Any district court within the judicial district in which a person alleged to be guilty of willful contempt of court or refusal to obey a subpoena is found or resides, upon application by the party issuing the subpoena, may issue an order requiring the person to:
     (I) appear before the issuing party; and
     (II) (Aa) produce documentary evidence if so ordered; or
     (Bb) give evidence regarding the matter in question.
     (C) Failure to obey an order of the court may be punished by the court as contempt.
     (g) (i) In all disciplinary proceeding hearings heard by a hearing examiner, the hearing examiner shall prepare a report required by Subsection (3)(b)(ii) to the commission.
     (ii) The report required by Subsection (3)(b)(ii) and this Subsection (5)(g) may not recommend a penalty more severe than that initially sought by the department in the notice of agency action.
     (iii) A copy of the report required by Subsection (3)(b)(ii) and this Subsection (5)(g) shall be served upon the respective parties.
     (iv) The respondent shall be given reasonable opportunity to file any written objections to the report required by Subsection (3)(b)(ii) and this Subsection (5)(g) before final commission action.
     (h) In all cases heard by the commission, it shall issue its final decision and order in accordance with Subsection (3).
     (6) (a) The commission shall:
     (i) render a final decision and order on any disciplinary action; and
     (ii) cause its final order to be prepared in writing, issued, and served on all parties.
     (b) Any order of the commission is considered final on the date the order becomes effective.
     (c) If the commission is satisfied that a person listed in Subsections (1)(a)(i)(A) through (G) has committed a violation of this title or the commission's rules, in accordance with Title 63, Chapter 46b, Administrative Procedures Act, the commission may:
     (i) suspend or revoke the permit, license, or certificate of approval;
     (ii) impose a fine against a person listed in Subsections (1)(a)(i)(A) through (G);
     (iii) assess the administrative costs of any hearing to the permittee, the licensee, or certificate holder; or
     (iv) any combination of Subsections (6)(c)(i) through (iii).
     (d) A fine imposed in accordance with this Subsection (6) is subject to Subsections 32A-1-107(1)(p) and (4).

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     (e) (i) If a permit or license is suspended under this Subsection (6), a sign provided by the department shall be prominently posted:
     (A) during the suspension;
     (B) by the permittee or licensee; and
     (C) at the entrance of the premises of the permittee or licensee.
     (ii) The sign required by this Subsection (6)(e) shall:
     (A) read "The Utah Alcoholic Beverage Control Commission has suspended the alcoholic beverage license or permit of this establishment. Alcoholic beverages may not be sold, served, furnished, or consumed on these premises during the period of suspension."; and
     (B) include the dates of the suspension period.
     (iii) A permittee or licensee may not remove, alter, obscure, or destroy a sign required to be posted under this Subsection (6)(e) during the suspension period.
     (f) If a permit or license is revoked, the commission may order the revocation of any compliance bond posted by the permittee or licensee.
     (g) Any permittee or licensee whose permit or license is revoked may not reapply for a permit or license under this title for three years from the date on which the permit or license is revoked.
     (h) All costs assessed by the commission shall be transferred into the General Fund in accordance with Section 32A-1-113.
     (7) (a) In addition to any action taken against a permittee, licensee, or certificate holder under this section, the department may initiate disciplinary action against an officer, employee, or agent of a permittee, licensee, or certificate holder.
     (b) If any officer, employee, or agent is found to have violated this title, the commission may prohibit the officer, employee, or agent from serving, selling, distributing, manufacturing, wholesaling, warehousing, or handling alcoholic beverages in the course of employment with any permittee, licensee, or certificate holder under this title for a period determined by the commission.
     (8) (a) The department may initiate a disciplinary proceeding for an alleged violation of this title or the rules of the commission against:
     (i) a manufacturer, supplier, or importer of alcoholic beverages; or
     (ii) an officer, employee, agent, or representative of a person listed in Subsection (8)(a)(i).
     (b) (i) If the commission makes the finding described in Subsection (8)(b)(ii), the commission may, in addition to other penalties prescribed by this title, order:
     (A) the removal of the manufacturer's, supplier's, or importer's products from the department's sales list; and
     (B) a suspension of the department's purchase of the products described in Subsection (8)(b)(i)(A) for a period determined by the commission.
     (ii) The commission may take the action described in Subsection (8)(b)(i) if:
     (A) any manufacturer, supplier, or importer of liquor, wine, or heavy beer or its officer, employee, agent, or representative violates any provision of this title; and
     (B) the manufacturer, supplier, or importer:
     (I) directly committed the violation; or
     (II) solicited, requested, commanded, encouraged, or intentionally aided another to engage in the violation.

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     (9) (a) The department may initiate a disciplinary proceeding against a brewer holding a certificate of approval under Section 32A-8-101 for an alleged violation of this title or the rules of the commission.
     (b) If the commission makes a finding that the brewer holding a certificate of approval violates this title or rules of the commission, the commission may take any action against the brewer holding a certificate of approval that the commission could take against a licensee including:
     (i) suspension or revocation of the certificate of approval; and
     (ii) imposition of a fine.

Amended by Chapter 162, 2006 General Session
Amended by Chapter 14, 2006 General Session