(a) This section implements Alcoholic Beverage Code (Code) §11.64(a), which requires the commission to adopt rules addressing when a suspension may be imposed without the opportunity to pay a civil penalty.
(b) The executive director or the executive director's designee may deny a licensee or permittee the option of paying a civil fine in lieu of a suspension of the license or permit if the licensee or permittee has violated one or more of the following provisions of the Code:
  (1) Section 11.61(b)(14): sale to an intoxicated person by a permittee;
  (2) Section 22.12: breach of the peace on the premises of a package store;
  (3) Section 28.11: breach of the peace on the premises of a mixed beverage permittee;
  (4) (4) Section 32.17(a)(2): refuse to allow an authorized agent or representative to come onto the premises;
  (5) Section 32.17(a)(3): refuse to furnish requested information to the commission or its agents or representatives;
  (6) Section 32.17(a)(7): consumption or service of alcohol on the premises during prohibited hours;
  (7) Section 61.71(a)(5): sale to a minor by a licensee;
  (8) Section 61.71(a)(6): sale to an intoxicated person by a licensee;
  (9) Section 61.74(a)(14): sale to a minor by a licensee;
  (10) Section 69.13: breach of the peace on the premises of an on-premise retail malt beverage dealer;
  (11) Section 71.09: breach of the peace on the premises of an off-premise retail malt beverage dealer;
  (12) Section 101.04: refuse to allow inspection;
  (13) Section 104.01(a)(4): solicitation of drinks;
  (14) Section 101.63: sale to an intoxicated person;
  (15) Section 106.03: sale to a minor;
  (16) Section 106.06: purchase of alcohol for a minor;
  (17) Section 106.15: engage in prohibited activity related to dancing by a person under 18;
  (18) Chapter 105: sale or offer of sale of an alcoholic beverage during prohibited hours, or consumption or permitting consumption of an alcoholic beverage during prohibited hours;
  (19) any offense relating to gambling, prostitution or trafficking of persons; or
  (20) any offense relating to controlled substances or drugs.
(c) For the violations referenced in subsection (b) of this section, and after considering the circumstances required or allowed to be considered in this section, the executive director or the executive director's designee has discretion to determine whether to allow a licensee or permittee the option to pay a civil penalty in lieu of a suspension but is not required to allow such payment in lieu of suspension.
(d) In determining whether to deny a licensee or permittee the option to pay a civil penalty in lieu of a suspension, the executive director or the executive director's designee shall consider any aggravating or mitigating factual circumstances related to the violation, including but not limited to:
  (1) the type of license or permit held by the violating licensee or permittee;
  (2) the type of violation or violations charged;
  (3) the licensee's or permittee's record of past violations, including the number, type and frequency of violations of the Code and of the rules of the commission; and
  (4) the date the license or permit was issued.
(e) In addition to the circumstances listed in subsection (d) of this section that must be considered in determining whether to allow a licensee or permittee the option to pay a civil penalty in lieu of a suspension, the executive director or the executive director's designee may also consider other circumstances, including but not limited to:
  (1) whether the sale of alcoholic beverages constitutes the primary or partial source of the licensee or permittee's business;
  (2) whether the violation was caused by intentional or reckless conduct by the licensee or permittee;
  (3) whether the violation caused the serious bodily injury or death of another;
  (4) whether the character and nature of the licensee's or permittee's operation were reasonably calculated to avoid violations of the Code and rules of the commission at the time of violation; and/or
  (5) whether the licensee or permittee has taken action to remediate the violation and to prevent future violations.

Source Note: The provisions of this §34.4 adopted to be effective June 6, 2022, 47 TexReg 3242