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Oregon Bulletin

December 1, 2011

 

Oregon Liquor Control Commission
Chapter 845

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.

2.) Copyright 2011 Oregon Secretary of State: Terms and Conditions of Use

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