in-20250326-IR-905240384FRA: DIGEST FINES AND PENALTIES

Final Rule LSA Document #24-384 DIGEST Sec. 1. The following definitions apply throughout this article: Sec. 2. (a) In accordance with IC 4-22-2-19.6, the purpose of this article is to establish a schedule of fines and penalties imposed by the commission for violations of the laws, rules, and regulations it is charged with enforcing. (b) Administrative violation enforcement actions taken by the commission, including those set forth in this article, are remedial in nature. An appropriate fine or penalty is commensurate with the seriousness of the misconduct, the need to protect the health and safety of the public, and the need to promote the regulatory framework for alcoholic beverages, tobacco products, and type II gaming operations. Sec. 3. (a) IC 7.1-3-23 governs the denial, revocation, and suspension of permits and certificates issued by the commission, and authorizes the commission to fine a permittee or certificate holder or suspend or revoke an alcohol permit or tobacco sales certificate, or both, for any violation of IC 7.1 or a rule or regulation of the commission. The commission may fine a permittee or certificate holder for each day a violation continues, if the violation is continuous in nature. (b) IC 4-36-6 authorizes the commission to fine the holder of a type II gaming endorsement or license, or suspend or revoke a type II gaming endorsement or license, or both. (c) IC 7.1-7-6-1 and IC 24-3-2-4.7 authorize the commission to impose civil penalties for certain offenses involving e-liquids, tobacco products, or vapor pens. (d) IC 7.1-2-3-33 authorizes the commission to investigate and impose penalties for violations of IC 35-46-1-10, IC 35-46-1-10.2, IC 35-46-1-11, IC 35-46-1-11.2, IC 35-46-1-11.4, IC 35-46-1-11.5, IC 35-46-1-11.7, or IC 35-46-1-11.8 concerning tobacco and electronic cigarettes. (e) IC 7.1-2-2-9.5 and IC 12-13-14-14 authorize the Indiana state excise police to investigate fraud within the electronic benefits transfer program set forth in IC 12-13-14. Authority: IC 4-22-2-19.6; IC 4-36-3-3; IC 7.1-2-3-7; IC 7.1-3-18.5-4 Affected: IC 4-36-6-2; IC 7.1-3-23-3; IC 7.1-7-6-1; IC 24-3-2-4.7; IC 35-46-1 Sec. 4. (a) The maximum fines that may be imposed by the commission on alcohol permittees and tobacco sales certificate holders are set forth in IC 7.1-3-23-3 and IC 24-3-2-4.7. (b) The maximum fines that may be imposed by the commission on holders of a type II gaming endorsement or license are set forth in IC 4-36-6-2. (c) The maximum penalties that may be imposed by the commission on a manufacturer, distributor, or retailer for a violation of IC 7.1-7 concerning e-liquids and vapor pens is set forth in IC 7.1-7-6-1. Sec. 5. (a) If a fine imposed by the commission pursuant to IC 7.1-3-23-2 is not paid according to an order of the commission, the commission may suspend a permit or certificate in accordance with IC 7.1-3-23-4. (b) If a fine imposed by the commission pursuant to IC 4-36-6-2 is not paid according to an order of the commission, the commission may suspend or revoke an endorsement, lengthen a period of suspension, or impose an additional civil penalty in accordance with IC 4-36-6-3. (c) Additional fines or penalties imposed under subsections (a) or (b) for unpaid fines shall be calculated separately from the maximum fines and penalties set forth in section 4 of this rule. Sec. 6. (a) Before seeking to revoke an alcohol permit, the commission must give at least ten (10) days' notice to the holder of the permit proposed to be revoked. The notice shall inform the permit holder of the time and place of the hearing to be held in regard to the proposed revocation. (b) Except as provided in IC 7.1-3-23-7(b), after notice and hearing, the commission may suspend an alcohol permit for no more than thirty (30) days for violating a provision of IC 7.1 or the failure or refusal to comply with a rule or regulation of the commission. If the commission seeks to suspend a permit in excess of three (3) days, it must comply with the procedures set forth in subsection (a). Sec. 7. (a) Before revoking or suspending a tobacco sales certificate issued under IC 7.1-3-18.5, the commission must provide written notice of the alleged violation to the certificate holder and conduct a hearing. The commission shall provide written notice of the civil penalty or suspension or revocation of a tobacco sales certificate to the certificate holder. (b) IC 7.1-3-18.5-5 authorizes the commission to suspend the tobacco sales certificate of a person who fails to pay a civil penalty imposed for a violation under IC 35-46-1-10, IC 35-46-1-10.2, IC 35-46-1-11, IC 35-46-1-11.2, IC 35-46-1-11.4, IC 35-46-1-11.5, IC 35-46-1-11.7, or IC 35-46-1-11.8. (c) IC 7.1-3-18.5-5 requires that the commission revoke the certificate of a person upon a finding by a preponderance of the evidence that the person: Sec. 1. (a) Each violation in the fine and penalty schedule created under this rule carries with it a range of potential fine amounts and other penalties, including the suspension or revocation of an alcohol permit, tobacco sales certificate, or type II gaming endorsement. Any fine or penalty assessed by the commission for a particular violation shall be determined using the factors set forth in this rule, such that judicial review of a final agency action can evaluate whether the amount of the fine or penalty was reasonable. (b) In no case shall the fine for a particular violation exceed the maximum fines set forth in 905 IAC 2-1-4. For purposes of this rule, additional fines or penalties imposed in accordance with 905 IAC 2-1-5 shall not count towards the maximum fine amounts set forth in 905 IAC 2-1-4. (c) When assessing a fine or penalty in accordance with this article, the commission shall consider the following minimum factors: (d) In addition to the minimum factors set forth in subsection (c), the commission may consider the aggravating or mitigating factors set forth in this rule when assessing a fine or penalty for the violation of a law, rule, or regulation of the commission. The absence of any aggravating or mitigating factor or factors shall have no effect to either increase or decrease the amount of any fine or severity of any penalty imposed by the commission. (e) This rule does not prohibit the commission from entering into a settlement agreement with a person or party against whom a fine or penalty is imposed to in order to determine the fine to be paid or penalty to be served, or both, for a notice of violation. Sec. 3. (a) The amount of a fine or the severity of a penalty, or both, imposed by the commission may be increased or elevated due to the existence of one or more aggravating factors. (b) Aggravating factors that may be considered by the commission or prosecutor when assessing a fine or penalty under this article include: Sec. 4. (a) The amount of a fine and/or severity of a penalty imposed by the commission may be decreased or reduced due to the existence of one or more mitigating factor(s). (b) Mitigating factors that may be considered by the commission and prosecutor when assessing a fine or penalty under this article include: Sec. 1. The following table includes a list of possible violations for which the commission may assess fines and penalties: