Last week, the Texas Alcoholic Beverage Commission (TABC) held it’s first quarterly Commissioner’s meeting of 2017. These meetings are a chance for the public to listen and/or comment on issues that are before the Commissioners, such as new rules or rule changes that are proposed for adoption. The meetings are also a chance to get a sense of the agency’s current financial and operational priorities.
At the meeting, Ed Swedberg, TABC’s Deputy Executive Director, briefed the commissioners on numerous topics, including a whole slew of statistics on agency operations. One of the items that I found interesting was a discussion of the agency’s “restrained administrative cases.” The topic came up in the context of discussing the agency’s recent sting operations, involving both on-premise and off-premise accounts.
A restrained administrative case refers to a legal presumption, codified in Section 106.14 of the Texas Alcoholic Beverage Code, whereby certain actions of an employee will not be attributed to the business of the employer. The requirements to take advantage of this presumption are more fully explained in Rule 34.4 of the Commission. This is known as the Safe Harbor Rule.
Under TABC’s Safe Harbor Rule, if an employee either sells or allows the consumption of an alcoholic beverage by a minor or an intoxicated person, a violation may be issued to the employee but, it will not be attributed to the employer — if the employer meets certain conditions, including:
- The person selling/serving is not the owner or an officer of the company;
- The person selling/serving holds a current seller-server training certificate from a TABC-approved school;
- All employees engaged in the sale, service, or delivery of alcoholic beverages, as well as their immediate managers, are certified within 30 days of their hire date;
- The employer has written policies for responsible alcohol service and consumption and ensures that each employee has read and understands these policies; and
- The employer does not directly or indirectly encourage the employee to violate the law.
Mr. Swedberg reported that the agency’s “restrained cases” had dropped to 35.8 % in 2017 (to date), from 41 % in 2016. The drop in the percentage of businesses eligible for Safe Harbor, Swedberg explained, was probably due to the increased presence of TABC agents at on-premise accounts. The implication being that many businesses either are not aware of, or have not taken advantage of the Safe Harbor Rule.
Food for thought: Swedberg stated that the agency projects 5,500 administrative cases to be brought in 2017.
The bottom line for manufacturers and retailers alike — make it a priority to comply with the Safe Harbor Rule. It’s relatively painless and, worth the protections afforded your business.