Administrative Penalties: Administrative Penalties: Research Findings and Public Research Findings and Public

Health RecommendationsHealth Recommendations

Rebecca Ramirez, MPHRebecca Ramirez, MPH

Pacific Institute for Research and Evaluation Pacific Institute for Research and Evaluation

NABCA’s 14NABCA’s 14thth Annual Administrators Conference Annual Administrators Conference

Charlotte, North CarolinaCharlotte, North CarolinaOctober 27, 2008October 27, 2008

PIRE and NLLEA PartnershipPIRE and NLLEA Partnership

Research funded by the National Highway Traffic Safety Research funded by the National Highway Traffic Safety Administration (NHTSA) and conducted in partnership with the Administration (NHTSA) and conducted in partnership with the

National Liquor Law Enforcement Association National Liquor Law Enforcement Association

GOAL: To encourage, facilitate, and enhance the effective GOAL: To encourage, facilitate, and enhance the effective enforcement of alcohol laws and regulations. The two relevant enforcement of alcohol laws and regulations. The two relevant research reports to this discussion are:research reports to this discussion are:

– Research Report: The Role of Alcohol Beverage Control Research Report: The Role of Alcohol Beverage Control Agencies in the Enforcement and Adjudication of Alcohol LawsAgencies in the Enforcement and Adjudication of Alcohol Laws , , available online: available online: http://www.nllea.org/documents/RoleofABCsNHTSA.pdf

– Legal Research Report: Laws Prohibiting Alcohol Sales to Legal Research Report: Laws Prohibiting Alcohol Sales to Intoxicated PersonsIntoxicated Persons, under final review at NHTSA and available , under final review at NHTSA and available online soon.online soon.

Role of ABCs: Role of ABCs: METHODOLOGYMETHODOLOGY

Legal Research:Legal Research:12 key policies and penalties reviewed using legal 12 key policies and penalties reviewed using legal research databases and secondary sourcesresearch databases and secondary sources

Interviews with state level alcohol law Interviews with state level alcohol law enforcement officersenforcement officersReview of policies for accuracy, questions Review of policies for accuracy, questions regarding licensing systems, enforcement resources regarding licensing systems, enforcement resources and strategies, data collection processes and and strategies, data collection processes and adjudication of alcohol violationsadjudication of alcohol violations

46 interviews completed in 2001 -- 200246 interviews completed in 2001 -- 2002

FINDINGS:FINDINGS:STATE ALCOHOL STATE ALCOHOL

LAW ENFORCEMENT RESOURCESLAW ENFORCEMENT RESOURCES

• Number of states with ABC officers who are Number of states with ABC officers who are sworn police/peace officers: 35sworn police/peace officers: 35

• States with ABC officers who carry firearms: 33States with ABC officers who carry firearms: 33• Average number of ABC agents that primarily Average number of ABC agents that primarily

enforce alcohol laws per state: 54enforce alcohol laws per state: 54• Average number of licensed retail outlets per Average number of licensed retail outlets per

state: 14, 112state: 14, 112• Range of ABC agents per state: 3 to 260Range of ABC agents per state: 3 to 260• National ratio: 1 agent for every 268 licensed National ratio: 1 agent for every 268 licensed

establishmentsestablishments

ADMINISTRATIVE PENALTY ADMINISTRATIVE PENALTY GUIDELINES: Sales to MinorsGUIDELINES: Sales to Minors

StateState 11stst Offense Offense MaximumMaximum

11stst Offense Offense GuidelineGuideline

22ndnd Offense Offense

GuidelineGuideline

33rd rd

Offense Offense GuidelineGuideline

44thth Offense Offense GuidelineGuideline

Repeat Repeat OffenseOffense

GeorgiaGeorgia Suspension/Suspension/

revocationrevocation

$500-$2,500 $500-$2,500 fine and/or up fine and/or up to 30 day to 30 day suspension. suspension.

SAMESAME SAMESAME SAMESAME

OhioOhio Suspension/Suspension/revocation or revocation or $200 fine per $200 fine per day of day of suspension suspension issued in lieu issued in lieu of.of.

No guidelines.No guidelines. 22

OregonOregon 30 day 30 day suspension/ suspension/ revocation revocation and/or $5000 and/or $5000 fine fine

Up to 10 day Up to 10 day suspension or suspension or $1650 fine$1650 fine

Up to 30 Up to 30 day day suspension suspension or $4950 or $4950 finefine

Up to 30 Up to 30 day day suspensionsuspension

RevocationRevocation 22

FINDINGS:FINDINGS:ADJUDICATION SYSTEMSADJUDICATION SYSTEMS

• Range of allowable maximum fines for a first Range of allowable maximum fines for a first offense of sales to minors: $50 to $10,000offense of sales to minors: $50 to $10,000

• In at least 20 States, there are no specific penalty In at least 20 States, there are no specific penalty guidelines.guidelines.

• Seven states have penalty guidelines that differ Seven states have penalty guidelines that differ significantly, either in scope or specificity, from significantly, either in scope or specificity, from statutory maximum penalties.statutory maximum penalties.

• At least 3 states set maximums far above any At least 3 states set maximums far above any penalties actually imposed.penalties actually imposed.

Administrative Penalties: Administrative Penalties: Summary FindingsSummary Findings

• Almost every state reserves the right to fine, Almost every state reserves the right to fine, suspend, or revoke a license.suspend, or revoke a license.

• Revocations are rare in most cases.Revocations are rare in most cases.• While few states define what constitutes While few states define what constitutes

mitigating or aggravating circumstances, mitigating or aggravating circumstances, some states have clear definitions (e.g., some states have clear definitions (e.g., Washington, Oregon).Washington, Oregon).

• Information on case disposition difficult to Information on case disposition difficult to obtain, but seems to be improving.obtain, but seems to be improving.

RECOMMENDATIONS RECOMMENDATIONS REGARDING ADJUDICATIONREGARDING ADJUDICATION

• Encourage states to institute better data Encourage states to institute better data collection and reporting systems, especially in collection and reporting systems, especially in the cases of enforcement actions and case the cases of enforcement actions and case dispositions.dispositions.

• Encourage more active citizen participation in Encourage more active citizen participation in the adjudication processes. This could include a the adjudication processes. This could include a “court watch” for administrative hearings that is “court watch” for administrative hearings that is similar to efforts begun by MADD to ensure that similar to efforts begun by MADD to ensure that drunk drivers receive just penalties for their drunk drivers receive just penalties for their crimes.crimes.

Legal Research Report: Laws Legal Research Report: Laws Prohibiting Alcohol Sales to Prohibiting Alcohol Sales to

Intoxicated PersonsIntoxicated Persons

• Authors: James Mosher, Allyson Hauck, Authors: James Mosher, Allyson Hauck, Maria Carmona, Ryan Treffers, David Maria Carmona, Ryan Treffers, David Reitz, Chris Curtis, Rebecca Ramirez, Reitz, Chris Curtis, Rebecca Ramirez, Aidan Moore, and Stacy SaettaAidan Moore, and Stacy Saetta

• Data collected in early 2007.Data collected in early 2007.

Legal Research MethodologyLegal Research Methodology

• Six variables researched on Westlaw:Six variables researched on Westlaw:

1.1.Who may be held liable?Who may be held liable?

2.2.For what act?For what act?

3.3.Definition of intoxicationDefinition of intoxication

4.4.Mental state of sellerMental state of seller

5.5.Penalties: AdministrativePenalties: Administrative

6.6.Penalties: CriminalPenalties: Criminal

Enforcement Research Enforcement Research MethodologyMethodology

• 10 States selected for additional study to 10 States selected for additional study to confirm legal research findings. confirm legal research findings. Enforcement chiefs contacted and Enforcement chiefs contacted and participated in semi-structured telephone participated in semi-structured telephone interviews interviews (CA, CO, LA, NM, NH, OR, TX, UT, VA and WA)(CA, CO, LA, NM, NH, OR, TX, UT, VA and WA)

• Three jurisdictions then selected for in-Three jurisdictions then selected for in-depth analysis of specific enforcement and depth analysis of specific enforcement and legal practices for SIP cases legal practices for SIP cases (Baton Rouge LA, (Baton Rouge LA, Los Angeles CA, and New Mexico)Los Angeles CA, and New Mexico)

Legal Research FindingsLegal Research Findings

• 46 States and DC have criminal and 46 States and DC have criminal and administrative laws for SIPs.administrative laws for SIPs.

• Florida and Nevada have neither.Florida and Nevada have neither.• Rhode Island and Vermont have administrative Rhode Island and Vermont have administrative

but not criminal.but not criminal.• 28 (including DC) criminal statutes apply law to 28 (including DC) criminal statutes apply law to

“any person”. 18 States apply law to licensees “any person”. 18 States apply law to licensees and/or servers only.and/or servers only.

• 13 States with mandatory RBS programs may 13 States with mandatory RBS programs may impose administrative violations to servers.impose administrative violations to servers.

Definition of IntoxicationDefinition of Intoxication

• Seven States define in statute (AK, AZ, HI, Seven States define in statute (AK, AZ, HI, NE, NH, NJ, VA).NE, NH, NJ, VA).

• Remaining States provide remarkably Remaining States provide remarkably similar definitions through court opinions similar definitions through court opinions (e.g., “apparent”, “visible”, or “obvious”).(e.g., “apparent”, “visible”, or “obvious”).

Evidentiary RequirementsEvidentiary Requirements

• Eight States = “Knowingly” provide Eight States = “Knowingly” provide

• Four States = negligence standard, the Four States = negligence standard, the server knew or should have knownserver knew or should have known

• Two States = “Criminal Negligence”Two States = “Criminal Negligence”

• Remaining States and DC do not Remaining States and DC do not reference the mental state of the serverreference the mental state of the server

• Two States specify that BAC readings can Two States specify that BAC readings can be used as evidence (NM and NE)be used as evidence (NM and NE)

Administrative Penalty Findings– Administrative Penalty Findings– SIPs ViolationsSIPs Violations

• All but one State permit revocation for a All but one State permit revocation for a single SIP violation.single SIP violation.

• Several States provide statutory or regulatory Several States provide statutory or regulatory guidelines on this broad grant of authority.guidelines on this broad grant of authority.

• Eleven States have established tiered or Eleven States have established tiered or graduated penalty schedules. Other graduated penalty schedules. Other agencies have developed internal sentencing agencies have developed internal sentencing guidelines, but these were not captured in this guidelines, but these were not captured in this research.research.

Tiered Administrative PenaltiesTiered Administrative Penalties

State Period Mandated 1st Offense 2nd Offense 3rd Offense

AK 5 years No 45 day suspension

90 day suspension

Suspension or revocation

DC See offenses

No $1,000 to $2,000 fine

$2,000 to $4,000 fine(2 years)

$4,000 to $6,000 fine (3 years)

LA 3 years No $50 to $500 fine

$250 to $1,000 fine

$500 to $2,500 fine

MS 1 year No $500 to $1,000 and/or 3 month suspension

$500 to $2,000 and/or 6 month suspension

$2,000 to $5,000 and/or suspension or revocation

NJ 2 years No 15 day suspension

30 day suspension

45 day suspension

NM 1 year Yes $1,000 to $2,000 & 1 day suspension

$2,000 to $3,000 & 7 day suspension

$10,000 fine and revocation

Legal Best Practice Recommendations Legal Best Practice Recommendations

1.1. SIP laws should be enacted in all States and they SIP laws should be enacted in all States and they should apply to all servers and sellers, whether in should apply to all servers and sellers, whether in commercial or noncommercial settings.commercial or noncommercial settings.

2.2. The definition of obvious or visible intoxication The definition of obvious or visible intoxication found in State SIP laws should include a non-found in State SIP laws should include a non-inclusive list of signs of intoxication that can be inclusive list of signs of intoxication that can be used as evidence.used as evidence.

3.3. State SIP laws should explicitly include “gifts” and State SIP laws should explicitly include “gifts” and other non-sale exchanges and should require other non-sale exchanges and should require servers to remove any alcohol being consumed servers to remove any alcohol being consumed by an obviously intoxicated person.by an obviously intoxicated person.

Tiered Administrative Tiered Administrative Penalties continued…Penalties continued…

State Period Mandated 1st Offense 2nd Offense 3rd Offense

NC None provided

No $500 fine $750 fine $1,000 fine

OR 2 years No $1,650 fine or 7 day suspension

$4,950 fine or 30 day suspension

30 day suspension

RI 3 years Yes Fine not to exceed $500

Fine not to exceed $1,000

SD 2 years No $500 fine $700 fine $1,000 fine

WA 2 years No $500 fine or 5 day suspension

$2,500 fine or 5 day suspension

$5,000 fine and 10 day suspension

Enforcement Research FindingsEnforcement Research Findings

• SIP enforcement is relatively rare, due to the SIP enforcement is relatively rare, due to the following factors:following factors:

1.1.Cultural norms and political willCultural norms and political will

2.2.Resource limitationsResource limitations

3.3.Statutory provisionsStatutory provisions

4.4.Imposition of penaltiesImposition of penalties

5.5.Interagency collaborationInteragency collaboration

6.6.TrainingTraining

7.7.Use of technologyUse of technology

Legal Best Practice RecommendationsLegal Best Practice Recommendations

4.4. State SIP laws should establish explicit State SIP laws should establish explicit evidentiary requirements that differentiate evidentiary requirements that differentiate between administrative and criminal between administrative and criminal proceedings.proceedings.

5.5. In accordance with deterrence theory, In accordance with deterrence theory, penalty guidelines in SIP laws should be penalty guidelines in SIP laws should be specific and certain.specific and certain.

For more information, For more information, please contact:please contact:

Pacific Institute for Research and EvaluationPacific Institute for Research and Evaluation

11720 Beltsville Drive, Suite 90011720 Beltsville Drive, Suite 900

Calverton, MD, 20705Calverton, MD, 20705

Rebecca Ramirez: 301-755-2761Rebecca Ramirez: 301-755-2761

rramirez@pire.org