TITLE 905 ALCOHOL AND TOBACCO COMMISSION

Amends and adds provisions to 905 IAC 1-1-1 concerning definitions. Adds 905 IAC 1-5.2-18 concerning special event equipment. Amends 905 IAC 1-12.5-7 concerning alcohol server criteria. Amends 905 IAC 1-20-1 concerning minimum menu requirements. Amends 905 IAC 1-30-1 concerning retailer and dealer permits. Amends 905 IAC 1-33.1-1 concerning permit auctions. Amends 905 IAC 1-41-2 concerning separation of bar areas from family rooms or dining areas where minors are allowed. Amends 905 IAC 1-43.1-9 concerning gaming site permits and legal hours of alcoholic beverage sales. Amends 905 IAC 1-53-5 concerning retailer gaming operations. Repeals 905 IAC 1-30-3. Effective 30 days after filing with the Publisher.

IC 4-22-2.1-5 Statement Concerning Rules Affecting Small Businesses

SECTION 1. 905 IAC 1-1-1 IS AMENDED TO READ AS FOLLOWS:

Affected: IC 7.1-1-3; IC 7.1-2; IC 7.1-3

Sec. 1. All terms used herein are hereby construed to be The following definitions apply throughout this article and shall be interpreted in accordance with the definitions as set forth in Chapter 226 of the Acts of the Indiana General Assembly of 1935, and all acts supplemental and amendatory thereto. IC 7.1:

(1) The Commission, whenever used in these regulations, means Indiana Alcoholic Beverage Commission.

(2) Deputies of the Commission shall mean any deputy or employee of the Indiana Alcoholic Beverage Commission whenever used in these regulations.

(3) Attorney, whenever used in these regulations, shall mean the Prosecutor for the Indiana Alcoholic Beverage Commission.

(4) Secretary, whenever used in these regulations, shall mean the Secretary of the Indiana Alcoholic Beverage Commission.

(5) Permittee, as defined in these regulations, shall mean any person, persons or corporation holding an alcoholic beverage permit of any kind or nature under the Indiana Alcoholic Beverage Law.

(6) Alcoholic Beverages Law or Indiana Alcoholic Beverage Law, whenever used in these regulations, shall mean Chapter 226 of the Acts of the Indiana General Assembly of 1935, and all acts supplemental and amendatory thereto.

(7) Wholesalers and holders of wholesale permits, and wholesale permittees shall mean liquor wholesalers, wine wholesalers, and beer wholesalers.

(8) Retailers and retail permittees and holders of retail permits shall mean liquor retailers, wine retailers, and beer retailers, and liquor dealers, and wine dealers, and beer dealers.

(9) Manufacturers and holders of manufacturers' permits shall mean holders of brewers' permits, and distillers' permits, and rectifiers' permits and winery permits.

(10) Permits shall mean permits issued by the Indiana Alcoholic Beverage Commission.

(1) "Alcoholic beverage laws" refers to IC 7.1 and this title.

(2) "Applicant" has the meaning set forth in IC 7.1-1-3-5.5.

(3) "Commission" refers to the Indiana alcohol and tobacco commission established under IC 7.1-2-1-1.

(4) "Commissioner" refers to a member of the Indiana alcohol and tobacco commission appointed by the governor under IC 7.1-2-1-3.

(5) "Dealer" or "dealer permittee" refers to a beer dealer permitted under IC 7.1-3-5, a liquor dealer permitted under IC 7.1-3-10, or a wine dealer permitted under IC 7.1-3-15.

(6) "Enforcement officer" or "excise officer" refers to a member of the Indiana state excise police established under IC 7.1-2-2-8.

(7) "Indiana alcoholic beverage commission" refers to the Indiana alcohol and tobacco commission established under IC 7.1-2-1-1.

(8) "Licensed premises" has the meaning set forth in IC 7.1-1-3-20.

(9) "Local board" refers to the local alcoholic beverage board created in each county under IC 7.1-2-4-1.

(10) "Manufacturer" refers to a person or entity that manufactures or produces alcohol or alcoholic beverages, including an artisan distiller, brewer, distiller, farm winery, farm winery brandy distiller, or rectifier.

(11) "Minor" has the meaning set forth in IC 7.1-1-3-25.

(12) "Permit" has the meaning set forth in IC 7.1-1-3-29.

(13) "Permittee" or "permit holder" has the meaning set forth in IC 7.1-1-3-30.

(14) "Primary source of supply" has the meaning set forth in IC 7.1-1-3-32.5.

(15) "Prosecutor" refers to the prosecutor appointed under IC 7.1-2-2-2 who is responsible for prosecuting violations of all applicable laws, rules, and regulations before the commission.

(16) "Remonstrator" means a person who appeared personally or by counsel to remonstrate against a permit application at a local board hearing, and provided their identity to the local board by stating their name and address or telephone number to the local board at the hearing.

(17) "Restaurant" has the meaning set forth in IC 7.1-1-3-40 and refers to an establishment that meets the requirements under IC 7.1-3-20-9.

(18) "Retailer" or "retail permittee" refers to a beer retailer permitted under IC 7.1-3-4, a liquor retailer permitted under IC 7.1-3-9, or a wine retailer permitted under IC 7.1-3-14.

(19) "Wholesaler" refers to a beer wholesaler permitted under IC 7.1-3-3, a liquor wholesaler permitted under IC 7.1-3-8, or a wine wholesaler permitted under IC 7.1-3-13.

SECTION 2. 905 IAC 1-5.2-18 IS ADDED TO READ AS FOLLOWS:

Affected: IC 7.1-5

Sec. 18. A primary source of supply, manufacturer, or wholesaler may supply equipment on a temporary and nondiscriminatory basis to the holder of a retailer permit or a temporary permit for the purpose of holding, storing, and dispensing product to consumers for a special event for the duration of the special event. Ownership of the equipment shall remain with the primary source of supply, manufacturer, or wholesaler.

SECTION 3. 905 IAC 1-12.5-7 IS AMENDED TO READ AS FOLLOWS:

Affected: IC 7.1-3-1.5-13; IC 7.1-3-18-9

Sec. 7. (a) An alcohol server shall submit their original server certificate, or an electronic copy thereof, to the commission as part of their application for a server permit:

(1) shall provide an unaltered, legible copy of their valid server certificate to their employer; and

(2) must meet all the requirements of, and pay all fees due, to:

(A) the training provider;

(B) the in-house training provider;

(C) both the training provider and the in-house training provider; or

(D) the commission;

prior to being issued a server certificate.

(b) A retailer or dealer permittee as described in IC 7.1-3-1.5 shall do the following:

(1) Complete a server program as required by IC 7.1-3-1.5-13.

(2) Meet all requirements of and pay all fees due to:

(A) the training provider;

(B) the in-house training provider;

(C) both the training provider and the in-house training provider; or

(D) the commission;

prior to being issued a server certificate.

(3) Retain the an original or electronic copy of their server certificate.

(4) Obtain legible copies of their employees' server certificates.

(5) Maintain records of employment dates of alcohol servers.

(6) Provide server certificates and employment records immediately upon the request of any an enforcement officer as defined by IC 7.1.

SECTION 4. 905 IAC 1-20-1 IS AMENDED TO READ AS FOLLOWS:

Affected: IC 7.1-3-20-9

Sec. 1. Under the qualification requiring that a retail permittee to sell alcoholic beverages by the drink for consumption on the premises must be the proprietor of a restaurant located, and being operated, on the premises described in the application of the permittee; and under the definition of a "restaurant" as "any establishment provided with special space and accommodations where, in consideration of payment, food without lodging is habitually furnished to travelers, "–and "wherein at least twenty-five (25) persons may be served at one time;" the Commission will, hereafter, require that the retail permittee be prepared to serve a food menu to consist of not less than the following:

Hot soups.

Hot sandwiches.

Coffee and milk.

Soft drinks.

(1) Hot sandwiches and hot soups.

(2) Coffee, milk, and soft drinks.

SECTION 5. 905 IAC 1-30-1 IS AMENDED TO READ AS FOLLOWS:

Affected: IC 7.1-3-1-3.5; IC 7.1-3-1.1

Sec. 1. Pursuant to IC 7.1-3-1-3.5, IC 7.1-3-1.1, a permittee may deposit his their permit with the commission for a period of up to one (1) year from the date of issuance or its most recent expiration date. The request for such the action shall be in writing and shall state the reasons why the permittee is unable to immediately operate the business to which the permit applies. The permittee shall also include a proposed timetable and plan for putting the permit into use.

SECTION 6. 905 IAC 1-33.1-1 IS AMENDED TO READ AS FOLLOWS:

Affected: IC 1-1-3.5-3; IC 1-1-4-1; IC 5-3-1-2; IC 5-3-1-6; IC 7.1-3

Sec. 1. (a) The commission shall conduct auctions under IC 7.1-3-22-9 as often as necessary. However, an auction shall be held at least annually.

(b) A permit is available for purposes of this section in one (1) of the following circumstances:

(1) Where a permit becomes inactive for whatever reason, revocation, failure to renew, denial of renewal, surrender, or abandonment, thereby creating a vacancy when none existed before in the quota provisions of IC 7.1-3-22.

(2) Where a change in the population, as defined in IC 1-1-4-1(13) IC 1-1-3.5-3, results in an increase in the quota.

(c) Permits that have become available under subsection (b) shall be advertised in the same manner as required in IC 5-3-1-2(e) and IC 5-3-1-6. The advertisement shall include the following:

(1) The type of permit available.

(2) The city, town, or unincorporated area where the permit may be placed in use.

(3) The date, time, and location of the auction.

(4) Instructions on obtaining the required prequalification application.

(d) Any A person who wishes to bid at the auction must submit a completed auction prequalification application for each permit desired no not fewer than fifteen (15) days prior to the advertised date of the auction. Each prequalification application must be accompanied by bid security in the form of a cashier's check or certified check payable to the Indiana alcoholic beverage commission in the amount of the basic first year permit fee. Bid security will be returned following the auction to all unsuccessful bidders and to the successful bidder if the application is denied. The commission shall notify each person who submits a prequalification application of their acceptance or rejection as a bidder. Only accepted bidders may bid at the auction.

(e) All bidders will be required to sign a noncollusion affidavit immediately prior to the auction.

(f) The minimum starting bid for each a permit shall be in an amount equal to the minimum annual fee for the permit type. The commission shall not be obligated to accept any a bid lower than the minimum starting bid.

(g) All amounts bid at the auction are in addition to the first year permit fee. The successful bidder's bid security will be retained as the basic first year permit fee. The successful bidder must sign a purchase agreement in the amount of the successful bid immediately after the permit auction and shall within thirty (30) days submit a completed application and a cashier's check or certified check in the amount of the successful bid. The permit shall be held in escrow under IC 7.1-3-1-3.5 IC 7.1-3-1.1 and 905 IAC 1-30-1 pending the completion of the application process.

(h) In the event the successful bidder fails to complete the application process for whatever reason, the commission shall accept the second highest bid under the following conditions:

(1) The commission finds that the second highest bid is reasonable.

(2) The commission finds that a second auction would be unlikely to result in a higher bid.

(i) Any A permit not sold at auction shall become available for application on the first business day sixty (60) days after the auction.

SECTION 7. 905 IAC 1-41-2 IS AMENDED TO READ AS FOLLOWS:

Affected: IC 7.1-5-7-11

Sec. 2. (a) In a permit premises meeting the criteria in this section, the separation of the bar area from the dining area, where minors may be served, may be a structure or barrier that reasonably deters free access and egress without requirement for doors or gates. In order to qualify for the bar area separation permitted in this section, a permittee or applicant must have a minimum gross food sales or minimum projected food sales of two hundred thousand dollars ($200,000) per permit year or sixty percent (60%) of the gross food and alcoholic beverage sales or projected sales, not including carry-out or catering food sales, must be in the sale of food.

(b) Except as provided by IC 7.1-5-7-11, in all other permit premises covered by a retail permit, except a food hall, a room containing a bar must be separated from any a family room where minors are to be permitted. The family room shall be separated from the barroom by a nontransparent wall at least seventy-two (72) inches high. The barroom may be accessed by one (1) or more doorways. An open archway of no not more than five (5) feet in width is sufficient.

(c) In a permit premises covered by a retail permit, in a room that contains no bar, the area from which the alcoholic beverages are dispensed must not be located in the eating area and must not be accessible to the consuming public.

(d) In a permit premises described in subsection (a) or (b), alcoholic beverage service may be provided by a cart; however, only brandy, fortified wines, and cordials may be served from such the cart.

(e) An approved floor plan must be on file with the Indiana alcoholic beverage commission.

SECTION 8. 905 IAC 1-43.1-9 IS AMENDED TO READ AS FOLLOWS:

Affected: IC 4-31; IC 4-33-2-10; IC 4-35; IC 7.1

Sec. 9. (a) The nature of the business conducted by the person who holds a gaming site permit issued by the commission must be the business of an authorized gambling operation under IC 4-33-2-10 or IC 4-35 in order for alcoholic beverages to be dispensed within the defined permit premises.

(b) In order for the permittee to sell and serve alcoholic beverages at the permit premises during an event not related to an authorized gambling operation, prior written approval must be obtained from the commission. This approval must be obtained at least fifteen (15) days prior to the nonauthorized gambling operation event or activity.

(c) In order for the permittee to sell and serve alcoholic beverages at a location other than a bar clearly designated on the floor plans on file with the commission, prior written approval must be obtained at least fifteen (15) days prior to the event.

(d) When evaluating a request to sell and serve alcoholic beverages for activities other than authorized gambling activity, the commission shall consider the following:

(1) The nature of the activity to be conducted on the premises and whether such the activity is incompatible with the sale of alcoholic beverages.

(2) The times during which the permittee seeks to make alcoholic beverages available.

(3) Whether the permittee has adequate security for the activity.

(4) Whether the permittee has been granted any required approval by the:

(A) law enforcement department that has jurisdiction over the venue of the permit premises;

(B) board of county commissioners;

(C) county council; or

(D) town executive;

for the activity.

(5) Whether the Indiana gaming commission or the Indiana horse racing commission has placed any limitations on the use of the permit premises for the activity.

(6) Other related reasons that may be enumerated by the following:

(A) IC 4-33 and 68 IAC.

(B) IC 4-31, IC 4-35, and 71 IAC.

(7) Any Other factor factors that may be considered under IC 7.1 or this rule.

(e) The holder of a gaming site permit may sell and serve alcoholic beverages on any day of the year except Christmas Day and primary, general, and special election days until the voting polls are closed.

(f) It is lawful for the holder of a gaming site permit to sell and serve alcoholic beverages from 7 a.m. prevailing local time to 3 a.m. prevailing local time the following day, Monday through Saturday. On Sunday, it is lawful to sell and serve alcoholic beverages from 10 a.m. prevailing local time to 12:30 a.m. prevailing local time the following day.

SECTION 9. 905 IAC 1-53-5 IS AMENDED TO READ AS FOLLOWS:

Affected: IC 4-36-2-7; IC 4-36-5-6

Sec. 5. (a) No retailer or its employees shall provide any information or engage in any conduct that alters or is intended to alter the outcome of any a type II gambling game.

(b) No retailer shall conduct any type II gambling game or winner take all drawing in which the winner of a prize is determined, in whole or in part, on a sporting event.

(c) (b) All licensed supplies shall originally be obtained from an entity that is licensed by the commission as a manufacturer or distributor.

(d) (c) Retailers shall post a flare for each deal in the vicinity of the deal and in view of the players while the deal is in play.

(e) (d) If more than one (1) flare is posted, retailers must mark each flare and the container from which the corresponding deal is sold to clearly indicate which flare corresponds with each deal.

(f) (e) A retailer must thoroughly mix pull tabs prior to offering them for sale to the public.

(g) (f) A retailer may not purchase and a distributor may not sell a box of type II gambling games if the manufacturer's:

(1) shrink-wrap is removed; or

(2) seal is broken.

(h) (g) A retailer may not sell type II gambling games from the original packing box or container.

(i) (h) Multiple games may not be commingled within a single dispensing device.

(j) (i) If multiple dispensing devices are used, retailers must mark each device so that players can identify the flare that corresponds to the game being sold from the device.

(k) (j) A retailer may remove a type II gambling game from play at the retailer's discretion, provided that the game meets the minimum payout percentages set forth in IC 4-36-5-6. Once a type II gambling game is removed from play, the type II gambling game is deemed dead and the retailer shall never commence play on that game again.

(l) (k) A person who owns, manages, or is employed by a retailer shall not play or participate in any manner in a type II gambling game at the retailer's tavern.

(m) (l) A retailer shall not sell a type II gambling game for more than one dollar ($1).

(n) (m) A retailer shall not permit a person less than twenty-one (21) years of age to play a type II game.

(o) (n) A retailer shall not permit type II gaming in the presence of minors.

(p) (o) A retailer may not conduct type II gaming on or through the Internet.

(q) (p) A retailer may:

(1) accept only United States currency and coin or cash equivalent from players when conducting type II gaming; and

(2) not extend credit to any player.

SECTION 10. 905 IAC 1-30-3 IS REPEALED.

Notice of Public Hearing

DIN: 20221116-IR-905220263PRA

Composed: May 04,2024 3:36:47AM EDT

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