Oregon Bulletin
Rule
Caption: Amendment removing “knowingly”
standard from allowing a visibly intoxicated person to consume alcoholic beverages .
Adm.
Order No.: OLCC 8-2011
Filed with Sec. of
State: 11-1-2011
Certified to be
Effective: 1-1-12
Notice Publication
Date: 8-1-2011
Rules Amended: 845-006-0345
Subject: This rule describes a variety of acts which both
licensees (including their employees or agents) and service permittees are
prohibited from engaging in. Previously, section (9) specified that no licensee
or permittee will “knowingly” allow a visibly intoxicated person (VIP) to drink
alcoholic beverages, but that if they make a “good faith effort” to remove the
alcohol they will not be in violation of allowing a VIP to consume. This rule
section also defines what “good faith effort” means. The 2011 legislature has
passed House Bill (HB) 2361, effective January 1, 2012. HB 2361 amends ORS
471.315 and ORS 471.412, removing the “knowingly” standard from the violation
of allowing a VIP to consume. Amending OAR 845-006-0345, section (9), brings
our rule into compliance with this new statutory language.
Rules Coordinator: Jennifer Huntsman—(503) 872-5004
845-006-0345
Prohibited Conduct
The Commission holds licensees accountable for the acts
of their agents and employees. (OAR 845-006-0362). No
employee or agent of a licensee may violate any provision of this rule. A violation of any section of this rule by an employee or agent of
a licensee is considered a violation by the licensee.
(1) Drinking on Duty: No licensee or permittee will
drink or be under the influence of intoxicants while on duty.
(a) “On duty” means from the beginning of a work shift
that involves the mixing, sale or service of alcoholic beverages, checking
identification or controlling conduct on the premises, to the end of the shift
including coffee and meal breaks.
(b) “On duty” also means, for those working outside a
scheduled work shift, having the authority to put himself or herself on duty
and performing acts on behalf of the licensee which involve the mixing, sale or
service of alcoholic beverages, checking identification or controlling conduct
on the premises. Whether a person is paid or scheduled for work is not
determinative of whether the person is considered “on duty” under this
subsection.
(c) “A work shift that involves the sale and service of
alcoholic beverages” includes supervising those who mix, sell or serve, check
identification or control the premises.
(d) Being under the influence of intoxicants on duty is
a Category II violation.
(e) Drinking on duty is a Category III violation.
(2) No licensee or permittee will fail to call the
police when a Commission regulatory employee directs the licensee or permittee
to call. Violation of this section is a Category II violation.
(3) Evidence:
(a) No licensee or permittee will:
(A) Destroy, damage, alter, remove, or conceal
potential evidence, or attempt to do so;
(B) Refuse to give a Commission regulatory employee or
police officer this evidence when the employee or officer lawfully requests it;
or
(C) Ask or encourage another person to do subsections
(a) or (b) of this section.
(b) Violation of this section is a Category III
violation.
(4) Access to Premises:
(a) No licensee or permittee will deny entrance to the
licensed premises during regular business hours to a Commission regulatory
employee or police officer who enters or wants to
enter to conduct reasonable search to ensure compliance with alcoholic beverage
law. Once the regulatory employee or police officer is on the licensed
premises, no licensee or permittee will ask the regulatory employee or officer
to leave until the regulatory employee or officer has had an opportunity to
conduct a reasonable search to ensure compliance with the alcoholic beverage
laws;
(b) Examination of premises that are or appear closed
occurs only when there is reason to believe an alcoholic beverage law violation
is occurring. No licensee or permittee will refuse or fail to promptly admit a
Commission regulatory employee or police officer to the licensed premises when
the regulatory employee or officer identifies him/herself and asks to enter to
conduct a reasonable search to ensure compliance with the alcoholic beverage
laws.
(c) Violation of this section is a Category II
violation.
(5) Open Containers: No licensee or permittee will
permit a person to take an open container of alcoholic beverages from the
licensed premises, except as ORS 471.178, 471.200 and 471.175 allow. Except for
tastings as allowed in OAR 845-006-0450, no Off-Premises Sales licensee will
permit an open container of alcoholic beverages on the licensed premises unless
the licensee also holds another license at the premises that allows on-premises
consumption. Violation of this section is a Category V violation.
(6) Liquor on Premises: No licensee or permittee will
have or permit any alcoholic liquor on the licensed premises
which the license does not allow the licensee to sell or serve.
Notwithstanding this requirement, a limited on-premises or brewery-public house
sales licensee may have distilled spirits on the premises if the distilled
spirits are used only for cooking, are kept in a container only in the food
preparation area, and the container is clearly marked “for cooking only”.
Violation of this section is a Category V violation.
(7) Drive-up Window: No licensee or permittee will sell
or deliver any alcoholic beverages through a drive-up window. Violation of this
section is a Category III violation.
(8) Liquor as a Prize: Except as allowed in ORS
471.408, no licensee or permittee will give or permit any alcoholic beverage as
a prize, premium, or consideration for any lottery, contest, game of chance or
skill, exhibition, or any competition of any kind on the licensed premises.
Violation of this section is a Category V violation.
(9) “Good Faith Effort”: ORS 471.315(1)(a)(H), and
471.412(1) prohibit a licensee or permittee from allowing a visibly intoxicated
person to drink alcoholic beverages. A licensee or permittee who makes a good
faith effort to remove the alcoholic beverage does not violate these statutes.
(a) As used in ORS 471.412(2) and this rule, “good
faith effort” means:
(A) Placing a hand on the drink and trying to remove
it; or
(B) Making a verbal request for the drink, if the
server has reason to believe that touching the patron’s drink could cause a
disturbance.
(b) The Commission will issue letters of reprimand for
the first three violations of this section within a two-year period. A fourth
violation within a two-year period is a Category III violation assessed at the
fourth level (cancellation).
(10) Promotions.
(a) The following practices are prohibited:
(A) The sale, offer or service to any person of an
unlimited number of alcoholic beverage(s) during any set period of time for a
fixed price;
(B) The sale, offer or service of alcoholic beverages
by the drink for a price per drink that is less than the licensee’s cost for
the alcohol to any person paying a fixed “buy in” price, entry fee, cover or
door charge;
(C) Price reductions on alcoholic beverages by the
drink from 12:00 midnight until 2:30 a.m. A price reduction is a lower price as
compared to the usual, customary, or established non-discounted price the
licensee charges for a drink of that type on the licensed premises;
(D) The sale, offer or service of distilled spirits by
the bottle for consumption on the premises, except as allowed in OAR
845-006-0433 (Minibars in Hotel Guest Rooms) and OAR 845-006-0434 (Minibars in
Arena Suites). This subsection does not prohibit a Full On-Premises Public
Location Sales Licensee (F-PL) or Full On-Premises Catering Sales Licensee
(F-Cat) from charging clients by the bottle for distilled spirits that are
served by the drink at hotel suites, banquets, receptions or catered events
where the reasonably projected attendance is at least 20 patrons;
(E) Operating, encouraging or permitting games of
chance or skill, contests, exhibitions, or competitions of any kind on the
licensed premises that involve drinking alcoholic beverages, (i.e. beer pong,
“21 for 21”);
(F) Dispensing, pouring or otherwise serving any
alcoholic beverage directly into a person’s mouth, including through any device
such as a “bong”;
(G) Permitting use of an alcohol vaporization device on a premises licensed for the sale of alcoholic liquor. An
alcohol vaporization device, also called an alcohol without liquid machine, is
a device, machine or process which mixes spirits, alcoholic liquors or any
product containing alcoholic liquor with oxygen or any other gas to produce a
vaporized product for consumption by humans by inhalation.
(b) Violation of this section is a Category III
violation.
Stat. Auth.: ORS 471, 471.030,
471.040 & 471.730(1) & (5)
Stats. Implemented: ORS 471.030,
471.040 471.175, 471.178, 471.200, 471.315(1)(a)(H), 471.405(1), 471.408,
471.412, 471.675 & 471.730
Hist.: OLCC 19-2000, f. 12-6-00,
cert. ef. 1-1-01; OLCC 6-2001, f. 8-15-01, cert. ef. 9-1-01; OLCC 4-2003, f. 3-31-03 cert. ef. 4-1-03;
OLCC 5-2007, f. 3-22-07, cert. ef. 4-1-07; OLCC
3-2009, f. 4-21-09, cert. ef. 5-1-09; OLCC 18-2010, f.
12-22-10, cert. ef. 1-1-11; OLCC 8-2011, f. 11-1-11,
cert. ef. 1-1-12
Rule
Caption: Amendments expanding age
verification equipment operating standards and removing every point of sale
location requirement.
Adm.
Order No.: OLCC 9-2011
Filed with Sec. of
State: 11-1-2011
Certified to be
Effective: 11-1-11
Notice Publication
Date: 8-1-2011
Rules Amended: 845-009-0140
Subject: This rule describes the Commission’s standards and
requirements for licensees who choose to purchase age verification equipment
(AVE) to offset (or in lieu of) a civil penalty in the case of sale of alcohol
to a minor, or failure to properly verify the age of a minor purchaser. In the
new section (2), staff recommends amending this rule to expand the requirements
that AVE must fulfill in order to meet the Commission’s minimum operating
standards. Additional equipment requirements would include being able to
produce at least 7 days of transaction records (whether stored in memory or via
hard copy printout), the ability to process ID from all U.S. states, and the
capacity for equipment updates or upgrades. Staff also recommends replacing the
current section (5) with the new section (6) in order to reflect more
flexibility in the timeline requirements for electing and implementing the AVE
credit option. Staff further recommends deletion of the current section (6) and
its replacement with the new section (7). Because some acceptable AVE can be
portable, rather than proscribing the number of pieces of age verification that
a licensee must purchase and where they must be located, the licensee would be
responsible for ensuring that all sellers have access to and use AVE when
selling alcohol.
Rules Coordinator: Jennifer Huntsman—(503) 872-5004
845-009-0140
Age Verification Equipment
(1) As used in this rule:
(a) “Retail licensee” and “licensee” mean a retail licensee
as defined in ORS 471.392;
(b) “Equipment” and “age verification equipment” mean
equipment used to verify the age of customers who purchase alcoholic beverages.
(2) In order to qualify for the credit provided under
sections (3) and (4) of this rule, age verification equipment must meet all of
the following standards:
(a) The equipment must trigger an age verification
process or the equipment itself must verify the age. In either case, the
equipment must indicate to the licensee or employee if the customer is of legal
age to purchase alcoholic beverages;
(b) The equipment must have a memory function and must
be capable of producing a hard copy printout of the results of any verification
transaction within the last seven days, either directly from the equipment or
through a computer;
(c) The equipment must be able to perform the age
verification function for identification from all states in the United States,
via either the equipment reading the identification automatically or manual
entry of the information; and
(d) The equipment must have the capacity to be updated
or upgraded.
(3) For the first or second violation of ORS 471.410(2)
or 845-006-0335(1) in a two-year period, the licensee may choose to purchase
age verification equipment in lieu of the standard first level Category III
sanction, not to exceed 10 days of the suspension or $1650 of the civil
penalty. The licensee is responsible for paying or serving any portion of the
sanction charged in excess of the standard sanction.
(4) For the first or second violation of ORS 471.410(2)
or 845-006-0335(1) in a two-year period by a member of the Responsible Vendor
Program, the licensee may choose to purchase age verification equipment in lieu
of the standard Category III(a) sanction. The licensee
is responsible for paying or serving any portion of the sanction charged in
excess of the standard sanction.
(5) A licensee may choose this option only one time per
license. If the licensee previously purchased equipment, the Commission may
allow the licensee to use the purchase of the equipment in lieu of paying up to
$1650 of the civil penalty or serving up to 10 days of the suspension, if the
licensee has not previously received this option.
(6) In order to receive the credit under this rule, the
licensee must be using the age verification equipment within the timeframe
specified in either the Request to Exercise Age Verification Equipment Option
form or a settlement agreement; otherwise the licensee is responsible for the
full sanction.
(7) A licensee who has received a credit under this
rule for age verification equipment is expected to maintain the equipment in
working order and to use the equipment to verify age as OAR 845-006-0335 requires.
Stat. Auth.: ORS 471, 471.030,
471.040 & 471.730(1) & (5)
Stats. Implemented: ORS 471.342
Hist.: OLCC 19-2000, f. 12-6-00,
cert. ef. 1-1-01; OLCC 5-2003, f. 3-31-03 cert. ef. 4-1-03; OLCC 9-2006, f. 7-19-06, cert. ef. 8-1-06; OLCC 9-2011, f. & cert. ef. 11-1-11
Rule
Caption: Amend rule to allow suppliers to
exchange adulterated alcohol products.
Adm.
Order No.: OLCC 10-2011
Filed with Sec. of
State: 11-1-2011
Certified to be
Effective: 11-1-11
Notice Publication
Date: 8-1-2011
Rules Amended: 845-013-0070
Subject: Certain alcohol energy drinks were determined to be
adulterated products by the U.S. Food and Drug Administration (FDA) on November
17, 2010. Based on the warnings issued to the manufacturers of these alcohol
products by the FDA, as well as the Federal Trade Commission (FTC) and the
Alcohol and Tobacco Tax and Trade Bureau (TTB), the Commission found that these
products contain an adulterated ingredient. While these specific products no
longer pose a threat, there may be other adulterated alcohol products in the
future that find their way into the consumer market. Previously, Oregon rules
did not allow wholesalers and manufacturers to exchange products containing
adulterated ingredients that were previously delivered to retailers for other
equivalent products. This means that a substantial amount of these adulterated
products would remain in the state where they might be available to the public
rather than being safely returned to the wholesalers or manufacturers. The
amendments make the temporary rule amendments adopted December 3, 2010 through
May 31, 2011 permanent. These amendments allow wholesalers to exchange products
containing adulterated ingredients for comparable saleable products and this is
necessary to ensure that all of the adulterated products are promptly removed
from retail premises in the state, thereby significantly reducing the risk that
the products will be sold or otherwise made available to be consumed.
Rules Coordinator: Jennifer Huntsman—(503) 872-5004
845-013-0070
Services of Nominal Value; ORS
471.398(5)
(1) ORS 471.398(5) prohibits a manufacturer or
wholesaler from giving a retailer any services except those described in
471.398(5) and the two categories of services of nominal value described in
this rule.
(2) A manufacturer or wholesaler may give basic
services that support products on draft such as:
(a) Inspecting draft equipment, coolers and cooling
equipment for sanitation and quality control;
(b) Performing emergency repairs on draft equipment;
(c) Instructing retail licensees in the proper use,
maintenance and care of draft and cooling equipment;
(d) Tapping kegs during regular delivery calls.
(3) A manufacturer or wholesaler may give basic
marketing support services for the manufacturer’s or
wholesaler’s alcoholic beverage products such as:
(a) Delivering to the designated place on the retailer’s
premises. If a retailer closes a store, the wholesaler or manufacturer may move
product to another of the retailer’s stores in the wholesaler’s territory. The
manufacturer or wholesaler may move only his/her brands;
(b) Rearranging or replenishing bottles or cans of the
manufacturer or wholesaler’s brands;
(c) Pricing packages and containers of the
manufacturer’s or wholesaler’s brands but not repricing packages and
containers. Repricing includes entering the Uniform Price Code (UPC) or pricing
information in the retailer’s system but does not include changing shelf tags;
(d) Promptly exchanging alcoholic beverages delivered
in error for the proper product, provided both businesses reflect the exchange
in their records;
(e) Exchanging products that are leaking,
deteriorating, near or past their shelf date, have damaged or missing labels,
or have damaged containers for an equal quantity of identical product, or
exchanging products that have been found to contain adulterated ingredients
(See also OAR 845-013-0020(1)(b)). If the amount exchanged is one case or less
of malt beverages or if the product contains adulterated ingredients, the
manufacturer or wholesaler may substitute another malt beverage product of
similar value. A manufacturer or wholesaler may not exchange product that the
retailer or retailer’s customer damaged;
(f) Installing, cleaning and repairing point of sale
materials allowed in OAR 845-013-0050;
(g) Providing an employee to assist in educational
seminars and wine or malt beverage tastings that a retailer conducts for the
public as long as each licensee complies with OAR 845-006-0353 and
845-006-0450.
NOTE: ORS 471.186(4) prohibits a manufacturer or wholesaler from
providing or paying for a person to serve samples at package stores except as
provided in ORS 471.402.
(h) Providing celebrities or performers to promote the manufacturer’s or wholesaler’s product on a retailer’s
premises as long as:
(A) Neither the manufacturer/wholesaler nor retailer
advertise or promote the celebrity or performer’s visit;
(B) The celebrity or performer does only a brief
performance, if any;
(C) The manufacturer or wholesaler provides no
alcoholic beverages to the retailer’s customers;
(D) The manufacturer or wholesaler provides the
celebrities no more than once per year per retail premises.
Stat. Auth.: ORS 471, 471.030,
471.040, 471.730(1) & (5)
Stats. Implemented: ORS 471.398(5)
& 471.446(2)
Hist.: OLCC 8-1987, f. 3-13-87,
ef. 4-1-87; OLCC 7-1992, f. & cert. ef. 7-1-92; Renumbered from 845-010-0126; OLCC 8-1996, f. 5-6-96, cert.
ef. 7-1-96; OLCC 8-1997, f. 2-28-97, cert. ef. 3-15-97; OLCC 17-2000, f. 11-9-00, cert. ef 12-1-00; OLCC 19-2000,
f. 12-6-00, cert. ef. 1-1-01; OLCC 9-2003, f. 6-27-03,
cert. ef. 7-1-03; OLCC 15-2010(Temp), f. & cert.
ef. 12-3-10 thru 5-31-11; Administrative correction,
6-28-11; OLCC 10-2011, f. & cert. ef. 11-1-11
Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2010.
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