Bill Text: AZ HB2444 | 2010 | Forty-ninth Legislature 2nd Regular | Introduced
Bill Title: Department of liquor; transfer; DPS
Spectrum: Partisan Bill (Republican 7-0)
Status: (Introduced - Dead) 2010-03-01 - House Consent Calendar March 01, 2010 @ 3:26 PM with Objections [HB2444 Detail]
Download: Arizona-2010-HB2444-Introduced.html
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REFERENCE TITLE: department of liquor; transfer; DPS |
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State of Arizona House of Representatives Forty-ninth Legislature Second Regular Session 2010
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HB 2444 |
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Introduced by Representatives Weiers JP, Gowan: Goodale, Montenegro, Stevens, Tobin, Senator Pierce S
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AN ACT
amending sections 4‑101, 4‑111, 41‑1711 and 41‑1712, Arizona Revised Statutes; repealing section 41-3010.18, Arizona Revised Statutes; CHANGING the designation of title 4, chapter 1, article 2, Arizona Revised Statutes, to "regulation and enforcement"; relating to regulation and enforcement of SPIRITUOUS liquor.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section. 1. Heading change
The article heading of title 4, chapter 1, article 2, Arizona Revised Statutes, is changed from "DEPARTMENT OF LIQUOR LICENSES AND CONTROL" to "REGULATION AND ENFORCEMENT".
Sec. 2. Section 4-101, Arizona Revised Statutes, is amended to read:
4-101. Definitions
In this title, unless the context otherwise requires:
1. "Act of violence" means an incident consisting of a riot, a brawl or a disturbance, in which bodily injuries are sustained by any person and such injuries would be obvious to a reasonable person, or tumultuous conduct of sufficient intensity as to require the intervention of a peace officer to restore normal order, or an incident in which a weapon is brandished, displayed or used. Act of violence does not include the use of nonlethal devices by a peace officer.
2. "Aggrieved party" means a person who resides at, owns or leases property within a one mile radius of a premises proposed to be licensed and who filed a written request with the department to speak in favor of or opposition to the issuance of the license no later than sixty days after the filing of the application or fifteen days after action by the local governing body, whichever is later.
3. "Beer" means any beverage obtained by the alcoholic fermentation, infusion or decoction of barley malt, hops, or other ingredients not drinkable, or any combination of them.
4. "Board" means the state liquor board under the jurisdiction of the department of public safety.
5. "Bona fide guest" means:
(a) A person who is actually a houseguest or a person whose presence as a guest is in response to a specific and personal invitation.
(b) In the case of a club that meets the criteria prescribed in paragraph 7, subdivision (a) of this section, a current member of the armed services of the United States who presents proper military identification and any member of a recognized veterans' organization of the United States and of any country allied with the United States during current or past wars or through treaty arrangements.
6. "Broken package" means any container of spirituous liquor on which the United States tax seal has been broken or removed, or from which the cap, cork or seal placed thereupon by the manufacturer has been removed.
7. "Club" includes any of the following organizations where the sale of spirituous liquor for consumption on the premises is made to members only:
(a) A post, chapter, camp or other local unit composed solely of veterans and its duly recognized auxiliary which has been chartered by the Congress of the United States for patriotic, fraternal or benevolent purposes and which has, as the owner, lessee or occupant, operated an establishment for that purpose in this state.
(b) A chapter, aerie, parlor, lodge or other local unit of an American national fraternal organization which has as the owner, lessee or occupant operated an establishment for fraternal purposes in this state. An American national fraternal organization as used in this subdivision shall actively operate in not less than thirty‑six states or have been in active continuous existence for not less than twenty years.
(c) A hall or building association of a local unit mentioned in subdivisions (a) and (b) of this paragraph, all of the capital stock of which is owned by the local unit or the members, and which operates the clubroom facilities of the local unit.
(d) A golf club which has more than fifty bona fide members and which owns, maintains or operates a bona fide golf links together with a clubhouse.
(e) A social club with more than one hundred bona fide members who are actual residents of the county in which it is located, that owns, maintains or operates club quarters, is authorized and incorporated to operate as a nonprofit club under the laws of this state, and has been continuously incorporated and operating for a period of not less than one year. The club shall have had, during this one year period, a bona fide membership with regular meetings conducted at least once each month, and the membership shall be and shall have been actively engaged in carrying out the objects of the club. The club's membership shall consist of bona fide dues paying members paying at least six dollars per year, payable monthly, quarterly or annually, which have been recorded by the secretary of the club, and the members at the time of application for a club license shall be in good standing having for at least one full year paid dues. At least fifty‑one per cent of the members shall have signified their intention to secure a social club license by personally signing a petition, on a form prescribed by the board, which shall also include the correct mailing address of each signer. The petition shall not have been signed by a member at a date earlier than thirty days prior to the filing of the petition. The club shall qualify for exemption from the payment of state income taxes under title 43. It is the intent of this paragraph that a license shall not be granted to a club which is, or has been, primarily formed or activated to obtain a license to sell liquor, but solely to a bona fide club, where the sale of liquor is incidental to the main purposes of the club.
(f) An airline club operated by or for airlines which are certificated by the United States government and which maintain or operate club quarters located at airports with international status.
8. "Company" or "association", when used in reference to a corporation, includes successors or assigns.
9. "Control" means the power to direct or cause the direction of the management and policies of an applicant, licensee or controlling person, whether through the ownership of voting securities or a partnership interest, by agreement or otherwise. Control is presumed to exist if a person has the direct or indirect ownership of or power to vote ten per cent or more of the outstanding voting securities of the applicant, licensee or controlling person or to control in any manner the election of one or more of the directors of the applicant, licensee or controlling person. In the case of a partnership, control is presumed to mean the general partner or a limited partner who holds ten per cent or more of the voting rights of the partnership. For the purposes of determining the percentage of voting securities owned, controlled or held by a person, there shall be aggregated with the voting securities attributed to the person the voting securities of any other person directly or indirectly controlling, controlled by or under common control with the other person, or by an officer, partner, employee or agent of the person or by a spouse, parent or child of the person. Control is also presumed to exist if a creditor of the applicant, licensee or controlling person holds a beneficial interest in ten per cent or more of the liabilities of the licensee or controlling person.
10. "Controlling person" means a person directly or indirectly possessing control of an applicant or licensee.
11. "Department" means the department of liquor licenses and control public safety.
12. "Director" means the director of the department of liquor licenses and control public safety.
13. "Distilled spirits" includes alcohol, brandy, whiskey, rum, tequila, mescal, gin, absinthe, a compound or mixture of any of them or of any of them with any vegetable or other substance, alcohol bitters, bitters containing alcohol, fruits preserved in ardent spirits, and any alcoholic mixture or preparation, whether patented or otherwise, which may in sufficient quantities produce intoxication.
14. "Domestic farm winery" means a winery in the United States or in a territory or possession of the United States that holds a license pursuant to section 4-205.04.
15. "Domestic microbrewery" means a brewery in the United States or in a territory or possession of the United States that meets the requirements of section 4-205.08.
16. "Employee" means any person who performs any service on licensed premises on a full‑time, part‑time or contract basis with consent of the licensee, whether or not the person is denominated an employee, independent contractor or otherwise. Employee does not include a person exclusively on the premises for musical or vocal performances, for repair or maintenance of the premises or for the delivery of goods to the licensee.
17. "Government license" means a license to serve and sell spirituous liquor on specified premises available only to a county, city, town or state university or the Arizona coliseum and exposition center upon application by the governing body of a county, city, town or state university or the Arizona exposition and state fair board.
18. "Legal drinking age" means twenty‑one years of age or older.
19. "License" means a license or an interim retail permit issued pursuant to this title.
20. "License fees" means fees collected for license issuance, license application, license renewal, interim permit issuance and license transfer between persons or locations.
21. "Licensee" means a person who has been issued a license or an interim retail permit pursuant to this title or a special event licensee.
22. "Manager" means a natural person who meets the standards required of licensees and who has authority to organize, direct, carry on, control or otherwise operate a licensed business on a temporary or full‑time basis.
23. "Off‑sale retailer" means any person operating a bona fide regularly established retail liquor store selling spirituous liquors, wines and beer, and any established retail store selling commodities other than spirituous liquors and engaged in the sale of spirituous liquors only in the original unbroken package, to be taken away from the premises of the retailer and to be consumed off the premises.
24. "On‑sale retailer" means any person operating an establishment where spirituous liquors are sold in the original container for consumption on or off the premises or in individual portions for consumption on the premises.
25. "Person" includes a partnership, limited liability company, association, company or corporation, as well as a natural person.
26. "Premises" or "licensed premises" means the area from which the licensee is authorized to sell, dispense or serve spirituous liquors under the provision of the license. Premises or licensed premises includes a patio that is not contiguous to the remainder of the premises or licensed premises if the patio is separated from the remainder of the premises or licensed premises by a public or private walkway or driveway not to exceed thirty feet, subject to rules the director may adopt to establish criteria for noncontiguous premises.
27. "Registered mail" includes certified mail.
28. "Registered retail agent" means any person who is authorized pursuant to section 4‑222 to purchase spirituous liquors for and on behalf of himself and other retail licensees.
29. "Repeated acts of violence" means two or more acts of violence occurring within seven days, three or more acts of violence occurring within thirty days or acts of violence occurring with any other similar frequency which the director determines to be unusual or deserving of review.
30. "Sell" includes soliciting or receiving an order for, keeping or exposing for sale, directly or indirectly delivering for value, peddling, keeping with intent to sell and trafficking in.
31. "Spirituous liquor" includes alcohol, brandy, whiskey, rum, tequila, mescal, gin, wine, porter, ale, beer, any malt liquor or malt beverage, absinthe, a compound or mixture of any of them or of any of them with any vegetable or other substance, alcohol bitters, bitters containing alcohol, any liquid mixture or preparation, whether patented or otherwise, which produces intoxication, fruits preserved in ardent spirits, and beverages containing more than one‑half of one per cent of alcohol by volume.
32. "Vehicle" means any means of transportation by land, water or air, and includes everything made use of in any way for such transportation.
33. "Vending machine" means a machine that dispenses merchandise through the means of coin, token, credit card or other nonpersonal means of accepting payment for merchandise received.
34. "Veteran" means a person who has served in the United States air force, army, navy, marine corps or coast guard, as an active nurse in the services of the American red cross, in the army and navy nurse corps in time of war, or in any expedition of the armed forces of the United States, and who has received a discharge other than dishonorable.
35. "Voting security" means any security presently entitling the owner or holder of the security to vote for the election of directors of an applicant, licensee or controlling person.
36. "Wine" means the product obtained by the fermentation of grapes or other agricultural products containing natural or added sugar or any such alcoholic beverage fortified with grape brandy and containing not more than twenty‑four per cent of alcohol by volume.
Sec. 3. Section 4-111, Arizona Revised Statutes, is amended to read:
4-111. State liquor board; members; director; appointment and removal
A. There is created the department of liquor licenses and control which consists of the state liquor board and the office of director of the department.
A. Beginning on the effective date of this amendment to this section, the state liquor board is transferred to the department of public safety.
B. From and after January 31, 2003, the board consists of seven members to be appointed by the governor pursuant to section 38‑211. Five of the members of the board shall not be financially interested directly or indirectly in business licensed to deal with spirituous liquors. Two members shall currently be engaged in business in the spirituous liquor industry or have been engaged in the past in business in the spirituous liquor industry, at least one of whom shall currently be a retail licensee or employee of a retail licensee. One member shall be a member of a neighborhood association recognized by a county, city or town. The term of members is three years. Members' terms expire on the third Monday in January of the appropriate year. The governor may remove any member of the board for cause. No member may represent a licensee before the board or the department for a period of one year after the conclusion of the member's service on the board.
C. The board shall annually elect from its membership a chairman and vice‑chairman. A majority of the board constitutes a quorum, and a concurrence of a majority of a quorum is sufficient for taking any action. If there are unfilled positions on the board, a majority of those persons appointed and serving on the board constitutes a quorum.
D. The chairman may designate panels of not less than three members. A panel may take any action which the board is authorized to take pursuant to this title. Such action includes the ability to hold hearings and hear appeals of administrative disciplinary proceedings of licenses issued pursuant to this chapter. A panel shall not, however, adopt rules as provided in section 4‑112, subsection A, paragraph 2. The chairman may from time to time add additional members or remove members from a panel. A majority of a panel may upon the concurrence of a majority of the members of the panel take final action on hearings and appeals of administrative disciplinary proceedings concerning licenses issued pursuant to this chapter.
E. Members of the board are entitled to receive compensation at the rate of fifty dollars per day while engaged in the business of the board.
F. A person shall not be appointed to serve on the board unless the person has been a resident of this state for not less than five years prior to before the person's appointment. No more than four members may be of the same political party. Persons eligible for appointment shall have a continuous recorded registration pursuant to title 16, chapter 1 with the same political party or as an independent for at least two years immediately preceding appointment. No more than two members may be appointed from the same county.
G. The governor shall appoint the director, pursuant to section 38‑211, who shall be a qualified elector of the state and experienced in administrative matters and enforcement procedures. The director shall serve concurrently with the governor but may be removed by the governor for any of the following causes:
1. Fraud in securing appointment.
2. Incompetency.
3. Inefficiency.
4. Inexcusable neglect of duty.
5. Insubordination.
6. Dishonesty.
7. Drunkenness on duty.
8. Addiction to the use of narcotics or habit‑forming drugs.
9. Inexcusable absence without leave.
10. Final conviction of a felony or a misdemeanor involving moral turpitude.
11. Discourteous treatment of the public.
12. Improper political activity.
13. Wilful disobedience.
14. Misuse of state property.
H. The director is entitled to receive a salary as determined pursuant to section 38‑611.
Sec. 4. Section 41-1711, Arizona Revised Statutes, is amended to read:
41-1711. Department of public safety; purpose; location; qualifications of director; responsibilities
A. There shall be a department of public safety which is responsible for creating and coordinating services for use by local law enforcement agencies in protecting the public safety and regulating the manufacture and sale of liquor in this state. The principal office and headquarters of the department shall be in Phoenix.
B. The department shall formulate plans with a view to establishing modern services for prevention of crime, apprehension of violators, training of law enforcement personnel, and the promotion of public safety. The department shall in no way preempt the authority and jurisdiction of established agencies of political subdivisions of the state.
C. The director shall be selected on the basis of training and experience with a minimum of five years' experience in the administration of law enforcement.
D. The director shall be appointed by the governor pursuant to section 38‑211 to serve for a term of five years and shall be subject to removal for cause, including but not limited to malfeasance, misfeasance and nonfeasance in office. The term shall expire on the third Monday in January of the appropriate year. The director shall receive annual compensation as determined pursuant to section 38‑611.
E. The director shall be directly responsible to the governor for the conduct and the administration of the department. If the director is unable to act, the deputy director shall direct the activities of the department during the period in which the director is unable to act. If the director and deputy director are unable to act, the governor shall direct the activities of the department during the period in which the director and deputy director are unable to act.
F. The director shall prescribe procedures for use of department personnel, facilities, equipment, supplies and other resources in assisting search or rescue operations.
G. The director shall be responsible for the establishment, operation and maintenance of the statewide emergency medical services communication system prescribed by section 41‑1835.
H. The director may purchase, lease, equip, staff and operate air ambulances, including ambulance helicopters, pursuant to section 41‑1834.
I. To limit the expenditures of monies derived from the state highway fund established pursuant to article IX, section 14, Constitution of Arizona, to traffic safety and traffic law enforcement purposes, the department of public safety shall:
1. Maintain a strict account of all costs incurred by each function of the department. Such costs shall be determined and allocated between traffic safety or traffic law enforcement functions and all other departmental functions and shall include such costs as wages or salaries, materials or supplies and equipment or facility use.
2. Immediately following the determination of all such costs certify to the office of strategic planning and budgeting the full amount of all such costs relating to the various functions within the department.
J. The office of strategic planning and budgeting shall annually submit a separate report to the legislature compiled from the department's functional costs certification indicating the complete breakdown between those costs which are related to traffic safety or traffic law enforcement functions and the various other functions within the department. The director of the department of administration shall include within the director's annual report to the legislature a recommendation for a separate appropriation to reimburse the state highway fund from the state general fund for any expenditures from the state highway fund during the prior fiscal year in excess of the total of all costs related to traffic safety or traffic law enforcement functions of the department.
K. The director shall establish a special hazardous materials emergency response organizational unit within the department to function as the initial response element of the hazardous materials emergency management program pursuant to section 26‑305.02.
L. The department is designated as this state's recipient of federal victims of crime act grants.
Sec. 5. Section 41-1712, Arizona Revised Statutes, is amended to read:
41-1712. Organization of department; divisions
A. The department shall consist of the following divisions:
1. Arizona highway patrol.
2. Narcotics enforcement and criminal investigation.
3. Scientific criminal analysis.
4. Training and education.
5. The state liquor board.
B. The department may establish district headquarters and stations at various places in the state, using existing facilities wherever possible, with the personnel and equipment necessary for the proper functioning and operation of the headquarters and stations.
C. The director may establish other divisions or reserves or reorganize or consolidate the department. END_STATUTE
Sec. 6. Repeal
Section 41-3010.18, Arizona Revised Statutes, is repealed.
Sec. 7. Succession
A. As provided by this act, the department of public safety succeeds to the authority, powers, duties and responsibilities of the department of liquor licenses and control.
B. This act does not alter the effect of any actions that were taken or impair the valid obligations of the department of liquor licenses and control in existence before the effective date of this act.
C. Administrative rules and orders that were adopted by the department of liquor licenses and control continue in effect until superseded by administrative action by the department of public safety.
D. All administrative matters, contracts and judicial and quasi‑judicial actions, whether completed, pending or in process, of the department of liquor licenses and control on the effective date of this act are transferred to and retain the same status with the department of public safety.
E. All certificates, licenses, registrations, permits and other indicia of qualification and authority that were issued by the department of liquor licenses and control retain their validity for the duration of their terms of validity as provided by law.
F. All equipment, records, furnishings and other property, all data and investigative findings and all appropriated monies that remain unexpended and unencumbered on the effective date of this act of the department of liquor licenses and control are transferred to the department of public safety.
G. All personnel who are under the state personnel system and employed by the department of liquor licenses and control are transferred to comparable positions and pay classifications in the respective administrative units of the department of public safety on the effective date of this act.
Sec. 8. Conforming legislation
The legislative council staff shall prepare proposed legislation conforming the Arizona Revised Statutes to the provisions of this act for consideration in the fiftieth legislature, first regular session.
