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In the matter of the adoption of New Rule I (ARM 42.13.902), New Rule II (ARM 42.13.903), and New Rule III (ARM 42.13.904) and the amendment of ARM 42.13.101 and 42.13.111 relating to alcohol server training requirements
NOTICE OF ADOPTION AND AMENDMENT
1.  On September 22, 2011, the department published MAR Notice No. 42-2-870 regarding the proposed adoption and amendment of the above-stated rules at page 2005 of the 2011 Montana Administrative Register, issue no. 18.
2.  A public hearing was held on October 24, 2011, to consider the proposed adoption and amendment.  Ronna Alexander, of the Montana Convenience Store Association, John Blair, of TIPS, Trevor Estelle, of TIPS, Jeff Hainline, of the Montana Restaurant Association, Val Jeffries, of Holiday Companies, Neil Peterson, of the Gaming Industry Association, and Mark Staples, of the Montana Tavern Association, all appeared and testified at the hearing.  In addition to the oral testimony at the hearing, the department received written comments from Jon Bennion, of the Montana Chamber of Commerce, Lorelle Demont, of the Montana Department of Transportation, Brad Griffin, of the Montana Restaurant Association, and Nicole M. Seymour, of TIPS.  Oral and written comments received are summarized as follows, along with the responses of the department.
COMMENT NO. 1:  Mr. Griffin asked, relative to New Rule I (ARM 42.13.902), why the department needs to develop a standard curriculum when Senate Bill 29 (SB 29), L. 2011, 16-4-1006, MCA, articulates the areas that each training program must cover.
Ms. Alexander commented that the department training the trainers might be a slight contradiction to SB 29.  She further commented that they (Montana Convenience Store Association) don't have a problem with the concept of training the trainers, but explained there is confusion among some of their larger companies, who have certified people in their organizations to conduct training, and questions how this new program will affect them.  Ms. Alexander stated that perhaps there is a better explanation about how the department is going to treat those people and how it will work with the train-the-trainer.
Ms. Jeffries commented that Holiday Companies has, for years, been very proactive in their training and that they do a lot of follow-up and internal checks.  She asked the department to provide clarification on who trains the trainer, and what that will look like on their end.
RESPONSE NO. 1:  The department appreciates these comments and understands the concerns.  To clear up any confusion and increase understanding about how the process will work, the department has further modified the language in New Rule I (ARM 42.13.902).
The department is proposing to adopt the new rules and amendments to reflect the statutory requirements made by the 2011 Legislature in 16-4-1006, MCA.  The new statute places the implementation and enforcement of any mandatory server and sales training programs in Montana under the exclusive authority and jurisdiction of the department.  The law provides for the department to implement training programs.  In doing so, the department will continue to use the "Let's Control It" training program, and regard it as the standard curriculum.
The department will update the standard curriculum, conduct train-the-trainer sessions for the standard curriculum, or delegate such responsibility to another entity; and determine trainer specifications, training policies, and coordinate the trainer network for the standard curriculum.  The department will continue to coordinate trainers for the standard curriculum, and implement trainer qualifications into the curriculum to ensure the training is delivered with reasonable consistency and in a manner that supports accurate and quality instruction.
COMMENT NO. 2:  Mr. Bennion stated that the Chamber is unsure how the rules will impact one-time, annual, or seasonal events where alcohol is served, such as a community event, microbrew festival, wine tasting, or charitable event.
He further commented about a member who is only busy 100 days per year and closes for over half the year, and stated that any consideration the department can give smaller establishments would be appreciated.
RESPONSE NO. 2:  The department appreciates Mr. Bennion's comments and understands his concerns.  To help add clarity, the department has further modified the language in New Rule II (ARM 42.13.903) to specifically include that volunteers working under existing licenses are required to be trained within 60 days of hire, while those serving and selling under a special permit are exempt from the training requirements (whether they are an employee or a volunteer of a special permit holder) as is outlined in the law.  While the legislative changes require licensees, employees, and volunteers to complete training within 60 days of hire, the law does not provide for an exception for businesses that operate under 100 days a year.
COMMENT NO. 3:  Mr. Griffin also stated, relative to New Rule III (ARM 42.13.904), that requiring recertification of a curriculum every two years, and requiring different and random final tests, are unnecessary burdens.
RESPONSE NO. 3:  The department appreciates Mr. Griffin's comments and interest in this rulemaking action.  Training providers will be required to submit their curriculum to the department every two years for review and approval.  The department believes a periodic recertification of the training curriculum is important and necessary to ensure it continues to meet the established criteria and remains current with any future legislative changes.  Periodic renewal of training programs will also encourage improvements in training methods as experience is gained under this new law and data accumulates as to which training methods yield the best results in reducing improper sales and service of alcohol.
COMMENT NO. 4:  The department received several comments on New Rule III (ARM 42.13.904), relative to the language about encouraging the use of experts, and the use of interactive discussion, classroom, and online training formats.
Ms. Alexander stated that she has never seen statements in rules use words like "encourage," that the statement isn't something the department is going to be able to enforce, and that it doesn't have a place in formal rulemaking.
Mr. Griffin asked why the department is encouraging community based experts to be present at all classroom trainings, as it is unreasonable to expect four professionals to be present at each of the trainings.
Mr. Staples commented that because the training has been done throughout the years voluntarily, until now, he likes the "encourage" language, but added that perhaps it belongs instead in a statement of purpose rather than in the rule.
Mr. Estelle stated that the proposed language encouraging the use of an interactive discussion format for both classroom and online curriculums is somewhat of a contradiction.  He further stated that when approving programs, the department should consider the training itself be started by experts in the field of alcohol training, hospitality, and psychology.  Mr. Estelle commented that if experts in the field are training the trainers, the information will get out without "strongly encouraging" the community experts to be involved, and that by having classroom programs that are approved within the state, it creates a support network.
Mr. Estelle further explained that it is difficult to have an interactive discussion with online only training and further stated that while he can see an online program working well in some instances, such as for renewals after initial certification has expired, and for geographically hard to reach areas, he proposes the department approve providers that are providing only a classroom curriculum or both a classroom and online curriculum.
Mr. Staples also commented, relative to allowing online training, that most people are not going to go online to train, but it should be offered as an option for those in rural locations.
Ms. Seymour commented that they (TIPS) have been working diligently to create and maintain a quality online program and have succeeded as one of the first providers to accomplish this.  She further stated that with the proposed rules, Montana is not requiring that an online training provider also conduct classroom training provided by certified instructors.  Ms. Seymour stated that they are very concerned about the quality of "fly-by-night" information technology companies with few or no trained alcohol instructors, and strongly recommended that Montana only permit online alcohol server and seller training programs that provide classroom training as well.  Ms. Seymour stated that they urge the department to reconsider the criteria for accepting online only training programs.
RESPONSE NO. 4:  The department appreciates all of these comments about the training formats and the wording of the rule.  To address any concerns, the department has further modified the language in New Rule III (ARM 42.13.904).
While the department believes interactive discussion methods and outside community-based expert presenters to be important components of the training, it does recognize that there is no current body of Montana data that would support moving interactive discussions from a recommended to a required part of the training at this time.  However, the department will continue to recommend and support the use of these valuable resources to enhance the effectiveness of training, and to enable future measurement of the effectiveness of training using these resources versus training that does not.
Due to the vast geographical size of Montana, including some difficult to reach locations, the department believes it necessary to allow for online training to ensure all licensees and employees have the tools necessary to meet the requirements of the law.  Because all training programs, whether classroom or online, must be preapproved and meet all curriculum criteria, the department does not believe it necessary for a qualifying provider to offer both types of training to become approved for one or the other.
The overall intent of the rule is to improve public health and safety through the implementation of effective, affordable, and widely available training, conducted by approved training providers, to achieve the result of a well trained alcohol server work force.  If any type of training is determined to be less successful than others, whether it is online or classroom, the department may require improvements or choose not to recertify the training.
COMMENT NO. 5:  Mr. Estelle commented, relative to the training program, that there is a need to address the different types of environments in which alcohol is sold and served.  He stated, for example, that a clerk or a cashier in an off-premise establishment shouldn't be going through an on-premise program.
RESPONSE NO. 5:  The department appreciates Mr. Estelle's comments and concerns regarding the different environments in which alcohol is sold and served.  The department agrees that different environments will present unique circumstances.  The law, however, requires training providers to meet very certain and specific requirements, regardless of the type of program.  If a training provider wishes to offer diverse training courses for different environments, the department will approve of this provided the curriculum(s) still meets the requirements as set forth in law and rule.
COMMENT NO. 6:  Mr. Bennion, Mr. Estelle, Mr. Hainline, Mr. Peterson, and Mr. Staples all commented, relative to New Rule III (ARM 42.13.904), that the proposed minimum final test pass rate of 85 percent was too high.  Included in their comments were suggestions that the department consider looking at national standards, and lower the rate to within the 70 to 75 percent range.
RESPONSE NO. 6:  The department appreciates these comments.  The department has further amended the language in New Rule III (ARM 42.13.904) to reduce the minimum passing rate to 80 percent.
To arrive at the revised rate, the department surveyed and researched other state programs and determined the standard for those surrounding Montana to be at 75 to 80 percent.  In a continuous effort to increase public health and safety, and with the neighboring states of Oregon and Washington also at an 80 percent pass rate, the department believes the reduction to be appropriate.
COMMENT NO. 7:  Mr. Estelle commented on the proposed measurement of training, in New Rule III (ARM 42.13.904), stating that while it's a fine measurement of training, it needs to be better defined because, as trainers, they (TIPS) want to be sure they are doing everything that the state is asking them to do.  He further commented that if one training provider or another is providing most of the training in the state, by sheer volume, this should be taken into consideration if there is a violation by one of their participants.
RESPONSE NO. 7:  The department appreciates Mr. Estelle's comments and understands his concerns.  The department agrees that the effectiveness of each program needs to be evaluated holistically by utilizing all factors and not just the number of violations.  To help address these concerns, the department is further modifying the language in New Rule III (ARM 42.13.904) to include a factor in determining the effectiveness of a program that uses the future rate of violations as a measurement based on a percentage of the number of individual trained to the number of servers who have failed compliance checks.  As stated in the department's response to comment number 8, a database will help determine these percentages based on the numbers trained by each provider.
COMMENT NO. 8:  The department also received comments relative to the creation of a "database" and requiring the training provider to provide the last four digits of the participant's social security number (SSN) in New Rule III (ARM 42.13.904).
Mr. Estelle commented that while they don't have a problem with this rule per se, as they've seen other mandatory states do this, a lot of participants will have a real issue with providing the last four digits of their SSN on an exam.  Mr. Estelle further stated there are security concerns with the transmission of that data if not through a proper means.
Ms. Alexander commented that they (the Convenience Store Association) oppose the entire section of (13)(b) in New Rule III (ARM 42.13.904), and question why the department would want SSNs or other numbers.  She stated that there have been some issues brought up about liability, and questions about exactly what the department is going to use that information for and why it would be needed.  Ms. Alexander further stated that the Legislature did not want the department to be creating a database.  Mr. Staples also stated that if there is a database involved, that the Legislature will throw this whole thing out.
Mr. Griffin commented that requiring a participant's birth date and partial SSN is unnecessary and exposes providers of training to possible security breach problems and the potential for identity theft of those taking the classes.  He further asked why the department would want to collect the certificates of each person who passes the test, and commented that SB 29 stipulates that the department can ask for a copy of the certificate from the establishment, but did not envision a database of all certificates being maintained by the state.
RESPONSE NO. 8:  The department appreciates these comments and understands the concerns.  To help address them, the department has further modified the language in New Rule III (ARM 42.13.904) to remove the requirement for the training provider to provide the last four digits of the participants' social security number.
The department notes that the maintenance of training records is not a change of practice.  In fact, the department currently maintains a record of trained individuals, from the standard curriculum.  The only proposed changes to the current process will be to include outside training providers' information.
The new state law does require licensees to maintain proof of training for each employee.  The department believes maintaining a record of trained individuals benefits licensees and training providers alike and is the most direct and efficient method to administer the new law.  Without records of who is trained or who is not trained, the law would be unadministrable.  It provides a benefit to the licensees by providing them with the ability to verify the training status of present or potential employees.  The record is also a useful tool for the department to use when evaluating the effectiveness of each training program.
The training provider who commented did not have a concern with providing the information to the department, and noted that it is standard in most other states.  His concern was with the security of the information obtained.  The department has a secure web site and, with the removal of the social security information, believes this will address any security concerns.
COMMENT NO. 9:  The department received comments about how the insurance industry recognizes certain server training programs relative to insurance rates.
Mr. Estelle commented that it is important for training programs approved by the department to also be recognized by insurance companies who rate insurance in the state.  He stated that if establishments have gone through recognized training programs, such as TIPS, in some cases they will receive up to a 15 to 20 percent premium discount.
Mr. Blair commented that he has been a TIPS trainer for the last 20 years, that it works, and that insurance companies recognize the training.
RESPONSE NO. 9:  The department appreciates Mr. Estelle's and Mr. Blair's comments.  The department does not have a way to ensure that all the insurance companies recognize the training.  To the department's knowledge there is no formal or informal process for submitting server training programs to all the companies in Montana that provide liquor liability insurance.  There is no method or provision in place that verifies acceptance of state approved programs industry wide by insurance companies.
COMMENT NO. 10:  Ms. Demont proposed technical revisions to the rule language for improved flow and clarity.
RESPONSE NO. 10:  The department appreciates Ms. Demont's suggestions and has incorporated a number of the recommended language revisions to further enhance the new rules.
3.  As a result of the comments received, and to change the training date requirement proposed in the rules from January 1, 2012, to the effective date of the rules, the department amends New Rule I (ARM 42.13.902), New Rule II (ARM 42.13.903), New Rule III (ARM 42.13.904), and ARM 42.13.101, as follows:
NEW RULE I (42.13.902) DEPARTMENT RESPONSIBILITIES REGARDING THE ENFORCEMENT OF MANDATORY SERVER AND SALES TRAINING PROGRAMS  (1)  The implementation and enforcement of the mandatory server and sales training programs within the Responsible Alcohol Sales and Service Act in Montana is under the exclusive authority and jurisdiction of the Department of Revenue.  This is intended for state licenses and does not extend to tribal government and federal government issued licenses.
(2)  The department's goal is to have effective and affordable training widely available through approved training providers in order to achieve public health and safety goals with a trained work force.  Although the department cannot guarantee it will meet these goals continuously, the department will strive to accomplish them based on available resources.
(2)(3)  To comply with and implement the Act, the department will:
(a)  develop a standard curriculum to set the baseline for all training providers;
(b)  update the standard curriculum on an annual basis;
(c)  determine delivery standards based on an objective evaluation;
(d)  determine testing standards based on an objective evaluation;
(e)  conduct train-the-trainer sessions for the standard curriculum or delegate such responsibility to another entity; and
(f)  determine trainer specifications, training policies and coordinate the trainer network for the standard curriculum; and
(f)(g)  determine specifications for training providers.
(3)(4)  The department will:
(a)  approve, regulate, and monitor training providers and their curriculums;
(b)  review and approve or deny a responsible alcohol sales and service training providers curriculum within 45 days of a complete application submittal;
(c)  issue an approval or denial letter to the training provider; and
(d)  provide contact information on the department web site for all approved publicly offered training providers.
(4)(5)  The department will develop an electronic tracking system for training providers to input participants' training information.
(5)(6)  Other than through the train-the-trainer program, The the department will not provide responsible alcohol sales and service training programs directly to retail sales employees.
(6)  The department's goal is to have effective and affordable training widely available through approved training providers in order to achieve public health and safety goals with a trained work force.  Although the department cannot guarantee it will meet these goals continuously, the department will strive to accomplish them based on available resources and the economic environment.
IMP:  16-4-1001, 16-4-1002, 16-4-1003, 16-4-1004, 16-4-1005, 16-4-1006, 16-4-1007, 16-4-1008, MCA
NEW RULE II (42.13.903) LICENSEE RESPONSIBILITIES REGARDING THE RESPONSIBLE ALCOHOL SALES AND SERVICE ACT  (1)  All licensees will be required, as of January 1, 2012 within 30 days following the effective date of this rule, to ensure that all persons who serve or sell alcoholic beverages (whether for pay or as a volunteer), their immediate supervisors, and all licensees or owners of licensees who personally serve or sell alcoholic beverages on behalf of the licensee, have completed a an approved responsible alcohol sales and service training class.  The training requirements do not apply to persons serving or selling alcoholic beverages under a special permit regardless if they are an employee or volunteer of a special permit holder.
(2)  Individuals trained within the three-year time period prior to January 1, 2012 the effective date of this rule, by any training provider, will be in compliance with the training requirement provided that the individual has valid proof of training within that period.  Such individuals must be retrained within three years from their date of training.
(3)  On or after January 1, 2012 As of the effective date of this rule, employees who do not have current valid proof of training must obtain training from a training provider preapproved by the department.  Any training received from a nonapproved training provider does not satisfy the server training requirements of Title 16, ch. 4, part 10, MCA, or these rules the rules in this subchapter.
(4)  Employees must receive training within 60 days of hire and every three years thereafter.  Licensees or owners of licenses must receive training within 60 days of department approval of their ownership interest if they personally serve alcoholic beverages, or within 60 days of when they begin personally serving alcoholic beverages, and every three years thereafter.
(5)  Licensees shall maintain proof of training for each employee.  If, as a result of a routine check for compliance with 16-3-301, 16-6-304, or 16-6-305, MCA, and 16-4-1005, MCA, the department believes the licensee may be out of compliance with 16-4-1005, MCA, the department may make an examination of the licensee's training and/or employee records.  After reviewing the records, if the department has reasonable cause to believe the licensee is not in compliance with Title 16, Ch. 4, part 10, MCA, the department will impose a penalty as provided by law.
(6) remains as proposed.
IMP:  16-3-301, 16-4-1001, 16-4-1002, 16-4-1003, 16-4-1004, 16-4-1005, 16-4-1006, 16-4-1007, 16-4-1008, 16-6-304, 16-6-305, MCA
NEW RULE III (42.13.904) TRAINING PROVIDER RESPONSIBILITIES REGARDING THE RESPONSIBLE ALCOHOL SALES AND SERVICE ACT  (1)  In order for a responsible alcohol sales and service training curriculum to be valid for purposes of Title 16, Ch. 4, part 10, MCA, and these rules the rules in this subchapter, the training provider must submit its curriculum to the department for approval.  All training providers shall meet the following submittal requirements for approval.  In order to have their curriculum approved, a training provider must submit:
(a)  a hard copy of the curriculum and student workbook;
(b)  a hard copy of the trainers' workbook or guide;
(c)  a hard copy of all participant handouts;
(d)  a hard copy of the course exam along with the answer sheet;
(e)  a hard copy of any training supplement for specific to the state of Montana state information;
(f)  a hard copy of the program proof of completion document issued to participants; and
(g)  a copy of all videos or other visual aids used in the training program.
(2)  The department strongly encourages supports and recommends the use of an interactive discussion format for both classroom and online curriculums.
(3)  The department encourages supports and recommends the use of community-based expert presenters during the training, e.g., a law enforcement officer to present information regarding false identifications, a health expert to present information pertaining to how alcohol affects the body, and an attorney to present potential liability and penalty issues.
(4) and (5) remain as proposed.
(6)  In order for a responsible alcohol sales and service training curriculum to be approved by the department, the curriculum must provide at least three hours of instruction and meet course minimum standards to include the following content:
(a)  the effects of alcohol on the human body, to include behavior cues and absorption rate factors;
(b)  information on standard drink sizes and equivalency;
(b)(c)  information, including but not limited to, a review of Montana alcoholic beverage laws and criminal, civil, and administrative penalties related to 16-3-301, 16-6-304, and 27-1-710, MCA;
(c)(d)  an explanation of the three types of liability, their full consequences, and the importance of not selling or serving to underage and intoxicated persons;
(d)(e)  procedures for checking identification and the acceptable forms of identification;
(e)(f)  procedures for gathering proper documentation that may affect the licensee's liability, including maintaining an incident log, training records, licensee's policies, and conditions of employment;
(f)(g)  training for handling difficult situations, such as persons who exhibit uncooperative, disruptive, or intimidating behavior;
(g)(h)  evaluation techniques regarding intoxicated persons or others who pose a potential liability, and recommended approaches for refusing sales or service;
(h)(i)  a final test that includes questions concerning alcohol and its effect on the body and behavior, recognizing and dealing with the problem drinker, Montana liquor laws, and terminating service;.  The portion of the exam concerning Montana liquor laws shall consist of uniform questions approved by the department.  To keep the integrity of training, the program should have different tests that are used randomly; and
(i)(j)  the participants must pass the final test with a minimum score of 85 80 percent;.
(j)  the portion of the final test concerning Montana liquor laws must consist of uniform questions approved by the department; and
(k)  to keep the integrity of training, the program should have different final tests that are used randomly.
(7)  The curriculum must be delivered in a manner that accomplishes results based on an empirical objective evaluation and the department may periodically conduct a review of approved training to ensure it that curriculum delivery meets the minimum standards.
(8)  The department will continually strive to improve the effectiveness of both the training and the testing and will consider, among other factors, the future rate of violations by servers as a percentage who have undergone each type of training and testing.  If the department determines that a particular training or testing method is less successful than others, the department may require improvements in the less successful training or testing methods, or choose to not continue certification of such training.
(9)  through (12) remain as proposed.
(13)  Within 30 days of each training session, training providers must:
(a)  issue a certificate to each participant who successfully completed the training and passed the test that includes:
(ii)  date of birth; and
(iii) date of training.
(b)  provide electronic notification to the department, in a format prescribed by the department, the following information for all participants:
(i)  the training provider's name;
(ii)  the date of training;
(iii)  the type of training (i.e., online, classroom, or both);
(iv)  the participant's full name;
(v)  the participant's date of birth; and
(vi)  the last four digits of the participant's social security number (SSN) or if no SSN exists, an alternative such as a visa or passport number; and
(vii)  the participants passing or failing score.
IMP:  16-3-301, 16-4-1001, 16-4-1002, 16-4-1003, 16-4-1004, 16-4-1005, 16-4-1006, 16-4-1007, 16-4-1008, 16-6-304, 16-6-305, MCA
42.13.101  COMPLIANCE WITH LAWS AND RULES  (1) through (6) remain as proposed.
(7)  A penalty for a licensee or licensee's employee not having a valid alcohol server training certificate shall be assessed against the licensee for whom the employee works at the time of the violation.  The penalty for this violation is imposed against the licensee, and the licensee having multiple untrained employees on a particular date shall not be considered multiple violations; however, continued noncompliance on a future date may be considered as an additional violation of the server training requirement.  The penalty shall be assessed in addition to any penalty for other Montana alcoholic beverage code violations such as sales to underage persons and/or sales to intoxicated persons, and the violation will be considered a separate violation by the department.  Penalties for not having valid alcohol server training certificates may be taken into account based on the mitigating factors described in (8) when determining a licensee's total number of violations in a three-year period for purposes of the progressive penalty schedule in (3).  However, the monetary penalty for each server training certificate violation shall be $50 for a first offense, $200 for a second offense, and $450 for a third office offense in a three-year period.
(a)  Example:  If a licensee has one previous violation for sale after hours, and later violates the training certificate provision, the licensee will be penalized $50 for the training certificate violation, although the violation will be considered a second violation on the licensee's record.  Then, if the licensee commits another violation within the same three-year period (for instance, a sale to an underage person), the penalty for that violation will be a third-violation penalty.
(8) through (13) remain as proposed.
AUTH:  16-1-303, 16-4-1009, MCA
IMP:  16-3-301, 16-4-406, 16-4-1001, 16-4-1002, 16-4-1003, 16-4-1004, 16-4-1005, 16-4-1006, 16-4-1007, 16-4-1008, 16-6-305, 16-6-314, MCA
4.  Therefore, the department adopts New Rule I (42.13.902), New Rule II (42.13.903), and New Rule III (42.13.904), amends ARM 42.13.101 with the amendments shown above, and amends ARM 42.13.111 as proposed.
5.  An electronic copy of this notice is available on the department's web site at www.revenue.mt.gov.  Locate "Legal Resources" in the left hand column, select the "Rules" link and view the options under the "Notice of Proposed Rulemaking" heading.  The department strives to make the electronic copy of this notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered.  In addition, although the department strives to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.
/s/ Cleo Anderson                                         /s/ Dan R. Bucks
CLEO ANDERSON                                      DAN R. BUCKS
Rule Reviewer                                               Director of Revenue
Certified to Secretary of State January 3, 2012
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