Code-Co's Internet Access to Utah Law: http://www.code-co.com
[Utah Code Table of Contents]
[TITLE 32a. Table of Contents]
32A-3-101 Commission's power to establish package agencies - Limitations.
(1) (a) The commission may, when considered necessary, create package agencies by entering into contractual relationships with persons to sell liquor in sealed packages from premises other than those owned or leased by the state.
(b) The commission shall authorize a person to operate a package agency by issuing a certificate from the commission that designates the person in charge of the agency as a "package agent" as defined under Section 32A-1-105 .
(2) (a) Subject to this Subsection (2), the total number of package agencies may not at any time aggregate more than that number determined by dividing the population of the state by 18,000.
(b) For purposes of Subsection (2)(a), population shall be determined by:
(i) the most recent United States decennial or special census; or
(ii) any other population determination made by the United States or state governments.
(c) (i) The commission may establish seasonal package agencies established in areas the commission considers necessary.
(ii) A seasonal package agency shall be for a period of six consecutive months.
(iii) A package agency established for operation during a summer time period is known as a "Seasonal A" package agency. The period of operation for a "Seasonal A" agency shall:
(A) begin on May 1; and
(B) end on October 31.
(iv) A package agency established for operation during a winter time period is known as a "Seasonal B" package agency. The period of operation for a "Seasonal B" agency shall:
(A) begin on November 1; and
(B) end on April 30.
(v) In determining the number of package agencies that the commission may establish under this section:
(A) a seasonal package agency is counted as 1/2 of one package agency; and
(B) each "Seasonal A" agency shall be paired with a "Seasonal B" agency.
(d) (i) If the location, design, and construction of a hotel may require more than one package agency sales location to serve the public convenience, the commission may authorize a single package agent to sell liquor at as many as three locations within the hotel under one package agency if:
(A) the hotel has a minimum of 150 guest rooms; and
(B) all locations under the agency are:
(I) within the same hotel facility; and
(II) on premises that are managed or operated and owned or leased by the package agent.
(ii) Facilities other than hotels may not have more than one sales location under a single package agency.
(3) (a) As measured by the method in Subsection (4), the premises of a package agency may not be established within 600 feet of any public or private school, church, public library, public playground, or park.
(b) The premises of a package agency may not be established within 200 feet of any public or private school, church, public library, public playground, or park, measured in a straight line from the nearest entrance of the proposed package agency to the nearest property boundary of the public or private school, church, public library, public playground, or park.
(c) The restrictions contained in Subsections (3)(a) and (b) govern unless one of the following exemptions applies:
(i) with respect to the establishment of a package agency within a city of the third, fourth, or fifth class, a town, or the unincorporated area of a county, the commission may authorize a variance to reduce the proximity requirements of Subsection (3)(a) or (b) if:
(A) the local governing authority has granted its written consent to the variance;
(B) alternative locations for establishing a package agency in the community are limited;
(C) a public hearing has been held in the city, town, or county, and where practical in the neighborhood concerned; and
(D) after giving full consideration to all of the attending circumstances and the policies stated in Subsections 32A-1-104 (3) and (4), the commission determines that establishing the package agency would not be detrimental to the public health, peace, safety, and welfare of the community;
(ii) with respect to the establishment of a package agency in any location, the commission may authorize a variance to reduce the proximity requirements of Subsection (3)(a) or (b) in relation to a church:
(A) if the local governing body of the church in question gives its written consent to the variance;
(B) following a public hearing in the city, town, or county and where practical in the neighborhood concerned; and
(C) after giving full consideration to all of the attending circumstances and the policies stated in Subsections 32A-1-104 (3) and (4); or
(iii) with respect to the premises of a package agency issued by the commission that undergoes a change of ownership, the commission may waive or vary the proximity requirements of Subsection (3)(a) or (b) in considering whether to grant a package agency to the new owner of the premises if:
(A) the premises previously received a variance reducing the proximity requirements of Subsection (3)(a) or (b); or
(B) a variance from proximity or distance requirements was otherwise allowed under this title.
(4) With respect to any public or private school, church, public library, public playground, or park, the 600 foot limitation is measured from the nearest entrance of the package agency by following the shortest route of ordinary pedestrian travel to the property boundary of the public or private school, church, public library, public playground, school playground, or park.
(5) (a) Nothing in this section prevents the commission from considering the proximity of any educational, religious, and recreational facility, or any other relevant factor in reaching a decision on a proposed location.
(b) For purposes of Subsection (5)(a), "educational facility" includes:
(i) a nursery school;
(ii) an infant day care center; and
(iii) a trade and technical school.
(6) (a) The package agent, under the direction of the department, shall be responsible for implementing and enforcing this title and the rules adopted under this title to the extent they relate to the conduct of the agency and its sale of liquor.
(b) A package agent may not be, or construed to be, a state employee nor be otherwise entitled to any benefits of employment from the state.
(c) A package agent, when selling liquor from a package agency, is considered an agent of the state only to the extent specifically expressed in the package agency agreement.
(7) The commission may prescribe by policy, directive, or rule, consistent with this title, general operational requirements of all package agencies relating to:
(a) physical facilities;
(b) conditions of operation;
(c) hours of operation;
(d) inventory levels;
(e) payment schedules;
(f) methods of payment;
(g) premises security; and
(h) any other matters considered appropriate by the commission.
2003
32A-3-102 Application requirements.
(1) A person seeking to operate a package agency as a package agent under this chapter shall file a written application with the department in a form prescribed by the department.
(2) The application shall be accompanied by:
(a) a nonrefundable application fee of $100;
(b) written consent of the local authority;
(c) evidence of proximity to any public or private school, church, public library, public playground, or park, and if the proximity is within the 600 foot or 200 foot limitations of Subsections 32A-3-101 (3) and (4), the application shall be processed in accordance with those subsections;
(d) a bond as specified by Section 32A-3-105 ;
(e) a floor plan of the premises, including a description and highlighting of that part of the premises in which the applicant proposes that the package agency be established;
(f) evidence that the package agency is carrying public liability insurance in an amount and form satisfactory to the department;
(g) a signed consent form stating that the package agent will permit any authorized representative of the commission, department, or any law enforcement officer to have unrestricted right to enter the package agency;
(h) in the case of an applicant that is a partnership, corporation, or limited liability company, proper verification evidencing that the person or persons signing the package agency application are authorized to so act on behalf of the partnership, corporation, or limited liability company; and
(i) any other information as the commission or department
may direct.
2003
32A-3-103 Qualifications.
(1) (a) The commission may not grant a package agency to any person who has been convicted of:
(i) a felony under any federal or state law;
(ii) any violation of any federal or state law or local ordinance concerning the sale, manufacture, distribution, warehousing, adulteration, or transportation of alcoholic beverages;
(iii) any crime involving moral turpitude; or
(iv) on two or more occasions within the five years before the day on which the package agency is granted, driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug.
(b) In the case of a partnership, corporation, or limited liability company, the proscription under Subsection (1)(a) applies if any of the following has been convicted of any offense described in Subsection (1)(a):
(i) a partner;
(ii) a managing agent;
(iii) a manager;
(iv) an officer;
(v) a director;
(vi) a stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(vii) a member who owns at least 20% of the applicant limited liability company.
(c) The proscription under Subsection (1)(a) applies if any person employed to act in a supervisory or managerial capacity for a package agency has been convicted of any offense described in Subsection (1)(a).
(2) The commission may immediately suspend or revoke the package agency and terminate the package agency agreement if after the day on which the package agency is granted a person described in Subsection (1)(a), (b), or (c):
(a) is found to have been convicted of any offense described in Subsection (1)(a) prior to the package agency being granted; or
(b) on or after the day on which the package agency is granted:
(i) is convicted of an offense described in Subsection (1)(a)(i), (ii), or (iii); or
(ii) (A) is convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug; and
(B) was convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug within five years before the day on which the person is convicted of the offense described in Subsection (2)(b)(ii)(A).
(3) The director may take emergency action by immediately suspending the operation of the package agency for the period during which the criminal matter is being adjudicated if a person described in Subsection (1)(a), (b), or (c):
(a) is arrested on a charge for an offense described in Subsection (1)(a)(i), (ii), or (iii); or
(b) (i) is arrested on a charge for the offense of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug; and
(ii) was convicted of driving under the influence of alcohol, any drug, or the combined influence of alcohol and any drug within five years before the day on which the person is arrested on a charge described in Subsection (3)(b)(i).
(4) (a) (i) The commission may not grant a package agency to any person who has had any type of license, agency, or permit issued under this title revoked within the last three years.
(ii) The commission may not grant a package agency to any applicant that is a partnership, corporation, or limited liability company if any partner, managing agent, manager, officer, director, stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation, or member who owns at least 20% of the applicant limited liability company is or was:
(A) a partner or managing agent of any partnership that had any type of license, agency, or permit issued under this title revoked within the last three years;
(B) a managing agent, officer, director, or stockholder who holds or held at least 20% of the total issued and outstanding stock of any corporation that had any type of license, agency, or permit issued under this title revoked within the last three years; or
(C) a manager or member who owns or owned at least 20% of any limited liability company that had any type of license, agency, or permit issued under this title revoked within the last three years.
(b) An applicant that is a partnership, corporation, or limited liability company may not be granted a package agency if any of the following had any type of license, agency, or permit issued under this title revoked while acting in that person's individual capacity within the last three years:
(i) any partner or managing agent of the applicant partnership;
(ii) any managing agent, officer, director, or stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(iii) any manager or member who owns at least 20% of the applicant limited liability company.
(c) A person acting in an individual capacity may not be granted a package agency if that person was:
(i) a partner or managing agent of a partnership that had any type of license, agency, or permit issued under this title revoked within the last three years;
(ii) a managing agent, officer, director, or stockholder who held at least 20% of the total issued and outstanding stock of a corporation that had any type of license, agency, or permit issued under this title revoked within the last three years; or
(iii) a manager or member who owned at least 20% of the limited liability company that had any type of license, agency, or permit issued under this title revoked within the last three years.
(5) (a) Each package agency shall be operated by a natural person, who is either:
(i) the package agent; or
(ii) another natural person that package agent designates.
(b) Each designee shall be:
(i) an employee of the package agent; and
(ii) responsible for the operation of the agency.
(c) The conduct of the designee shall be attributable to the package agent.
(d) The package agent shall provide the name of the person operating the package agency to the department for the department's approval.
(e) The name and title of any designee shall be stated on the application for the package agency.
(f) The package agent shall:
(i) inform the department of any proposed change in the person designated to operate the agency; and
(ii) receive prior approval from the department before implementing the change as described in this Subsection (5)(f).
(g) Failure to comply with the requirements of this Subsection (5) may result in the immediate termination of the package agency agreement.
(6) (a) A minor may not be:
(i) granted a package agency; or
(ii) employed by a package agent to handle liquor.
(b) The commission may not grant a package agency to an applicant that is a partnership, corporation, or limited liability company if any of the following is a minor:
(i) a partner or managing agent of the applicant partnership;
(ii) a managing agent, officer, director, or stockholder who holds at least 20% of the total issued and outstanding stock of the applicant corporation; or
(iii) a manager or member who owns at least 20% of the applicant limited liability company.
(7) If any package agent no longer possesses the qualifications
required by this title for obtaining a package agency, the
commission may terminate the package agency contract.
2003
32A-3-104 Commission and department duties before establishing.
(1) Before a package agency may be established by the commission, the department shall conduct an investigation and may hold public hearings for the purpose of gathering information and making recommendations to the commission to assure appropriate service to the general population of the state. This information shall be forwarded to the commission to aid in its determination.
(2) Before establishing a package agency, the commission shall:
(a) determine that the applicant has complied with all basic qualifications and requirements for making application for a package agency as provided by Sections 32A-3-102 and 32A-3-103 , and that the application is complete;
(b) determine that the agency facility complies with all existing zoning ordinances of the locality where the agency will be located;
(c) consider the locality within which the proposed package agency will be located, including but not limited to:
(i) physical characteristics such as condition of the premises, square footage, parking, and delivery access; and
(ii) operational factors such as tourist traffic, proximity to and density of other state stores, package agencies, and outlets, access to the public, proximity to residential communities, demographics, population to be served, the nature of surrounding establishments, and the extent of and proximity to educational, religious, and recreational facilities;
(d) consider the applicant's ability to manage and operate a package agency, including but not limited to, management experience, past retail liquor experience, the type of establishment or business in which the agency may be located, hours of operation, and ability to maintain inventory levels as set by the department; and
(e) consider any other factors or circumstances it considers
necessary.
1993
32A-3-105 Bond.
(1) (a) Each package agent having a consignment liquor inventory owned by the state shall have a consignment surety bond payable to the department in the amount of the consignment inventory.
(b) The bond shall be conditioned upon the agent's return of all unsold liquor upon termination of the agency agreement.
(2) (a) Each package agent owning his own liquor inventory shall post a cash or corporate surety bond in the penal sum of $1,000 payable to the department, which the package agent has procured and shall maintain for so long as the package agent continues to operate. The bond shall be in an amount fixed by the department and in a form approved by the attorney general.
(b) The bond shall be conditioned upon the faithful compliance
of the package agent with this title, the rules adopted by
the commission under this title, and the provisions of the
package agency agreement.
1991
32A-3-106 Operational restrictions.
(1) (a) A package agency may not be operated until a package agency agreement has been entered into by the package agent and the department.
(b) The agreement shall state the conditions of operation by which the package agent and the department are bound.
(c) If the package agent violates the conditions, terms, or covenants contained in the agreement, or violates any provisions of this title, the department may take whatever action against the agent that is allowed by the package agency agreement.
(d) Actions against the package agent are governed solely by the agreement and may include suspension or revocation of the agency.
(2) (a) A package agency may not purchase liquor from any person except from the department.
(b) At the discretion of the department, liquor may be provided by the department to a package agency for sale on consignment.
(3) The department may pay or otherwise remunerate a package agent on any basis including sales or volume of business done by the agency.
(4) Liquor may not be sold from any package agency except in a sealed package. The package may not be opened on the premises of a package agency.
(5) All liquor sold shall be in packages that are properly marked and labeled in accordance with the rules adopted under this title.
(6) A package agency may not display liquor or price lists in windows or showcases visible to passersby.
(7) (a) An officer, agent, clerk, or employee of a package agency may not consume or allow to be consumed by any person any alcoholic beverage on the premises of a package agency.
(b) Violation of this Subsection (7) is a class B misdemeanor.
(8) Liquor may not be sold except at prices fixed by the commission.
(9) Liquor may not be sold, delivered, or furnished to any:
(a) minor;
(b) person actually, apparently, or obviously intoxicated;
(c) known habitual drunkard; or
(d) known interdicted person.
(10) Sale or delivery of liquor may not be made on or from the premises of any package agency nor may any package agency be kept open for the sale of liquor:
(a) on Sunday;
(b) on any state or federal legal holiday;
(c) on any day on which any regular general election, regular primary election, or statewide special election is held until after the polls are closed;
(d) on any day on which any municipal, special district, or school election is held until after the polls are closed, but only within the boundaries of the municipality, special district, or school district holding the election and only if the municipality, special district, or school district in which the election is being held notifies the department at least 30 days prior to the date of the election; or
(e) except on days and during hours as the commission may direct by rule or order.
(11) The package agency certificate issued by the commission shall be permanently posted in a conspicuous place in the package agency.
(12) Each package agent shall display in a prominent place in the package agency a sign in large letters stating: "Warning: Driving under the influence of alcohol or drugs is a serious crime that is prosecuted aggressively in Utah."
(13) (a) A package agency may not close or cease operation for a period longer than 72 hours, unless:
(i) the package agency notifies the department in writing at least seven days before the closing; and
(ii) the closure or cessation of operation is first approved by the department.
(b) Notwithstanding Subsection (13)(a), in the case of emergency closure, immediate notice of closure shall be made to the department by telephone.
(c) (i) The department may authorize a closure or cessation of operation for a period not to exceed 60 days.
(ii) The department may extend the initial period an additional 30 days upon written request of the package agency and upon a showing of good cause.
(iii) A closure or cessation of operation may not exceed a total of 90 days without commission approval.
(d) The notice required by Subsection (13)(a) shall include:
(i) the dates of closure or cessation of operation;
(ii) the reason for the closure or cessation of operation; and
(iii) the date on which the agency will reopen or resume operation.
(e) Failure of the agency to provide notice and to obtain department authorization prior to closure or cessation of operation shall result in an automatic termination of the package agency contract effective immediately.
(f) Failure of the agency to reopen or resume operation by the approved date shall result in an automatic termination of the package agency contract effective on that date.
(14) Liquor may not be stored or sold in any place other than as designated in the package agent's application, unless the package agent first applies for and receives approval from the department for a change of location within the package agency premises.
(15) A package agency may not transfer its operations from one location to another without prior written approval of the commission.
(16) (a) A person, having been granted a package agency, may not sell, transfer, assign, exchange, barter, give, or attempt in any way to dispose of the package agency to any other person, whether for monetary gain or not.
(b) A package agency has no monetary value for the purpose
of any type of disposition.
2003
32A-3-107 Delivery of liquor to package agencies.
(1) Liquor to be sold from a package agency may be lawfully transported from any warehouse or state store authorized by the department to the package agency. Transportation may be done by any common carrier or other person authorized by the department to transport the liquor to the package agency.
(2) A common carrier or other person, while in or about
any vehicle in which liquor is being transported, may not
open, break, or allow to be opened or broken, any package
containing liquor. A person may not drink, use, or allow
to be drunk or used, any liquor while it is in transit under
this section.
1990
32A-3-108 Return of inventory.
Any liquor previously received from the department on
consignment that remains unsold at the time the package agent's
package agency agreement terminates for any reason, shall
be immediately returned to the department or the liquor is
subject to immediate seizure by the department.
2003
