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Oregon Bulletin

December 1, 2013

Oregon Liquor Control Commission, Chapter 845

Rule Caption: Amends two rules to implement statutory changes requiring service permits for new category of persons

Adm. Order No.: OLCC 9-2013

Filed with Sec. of State: 10-30-2013

Certified to be Effective: 11-1-13

Notice Publication Date: 8-1-2013

Rules Amended: 845-009-0010, 845-009-0015

Subject: OAR 845-009-0010 identifies the persons who are required to obtain a valid service permit under ORS 471.360. It also identifies the persons who may temporarily work without a valid service permit after submitting an indorsed application in accordance with ORS 471.375. OAR 845-009-0015 describes the licensee’s duty to verify a person’s identity and possession of a valid service permit if one is required under ORS 471.360 and the licensee’s or other authorized person’s duties if an indorsed application is temporarily allowed in lieu of a valid service permit under ORS 471.375.

   On April 11, 2013, the Governor signed House Bill (HB) 2443 into law. HB 2443 (addressing “Growlers”) amended ORS 471.360 to require any person who participates in the dispensing of malt beverages, wines or cider sold in securely covered containers provided by the consumer to possess a valid service permit. On June 26, 2013, the Governor signed Senate Bill (SB) 795 into law. SB 795 amended ORS 471.375 to allow persons who dispense malt beverages, wines or ciders into containers for off-premises consumption to temporarily work without a valid service permit after submitting an indorsed application.

   The proposed amendments incorporate the recent statutory revisions enacted by HB 2443 and SB 795.

Rules Coordinator: Annabelle Henry—(503) 872-5004

845-009-0010

Service Permit Requirements

(1) Who Needs a Service Permit. ORS 471.360 requires a valid service permit for any person employed by a licensee who performs the following duties:

(a) Mixes, sells or serves alcoholic beverages for consumption on licensed premises;

(b) Dispenses malt beverages, wines or cider into securely covered containers provided by the consumer;

(c) Directly supervises persons described in subsection (a) of this rule; or

(d) The individual principals of a licensed legal entity who perform the duties described in subsections (a), (b) or (c) of this rule.

(2) Exceptions. The following persons are not required to have a valid service permit:

(a) An individual named on the license as a licensee;

(b) ORS 471.360(2) allows the Commission to waive the service permit requirement if the licensee’s primary business is not the sale or service of alcoholic beverages or food. Under this authority, the Commission waives the service permit requirement for Public Passenger Carriers whose primary business is transportation (for example airlines and most trains), but it does not waive the requirement for Public Passenger Carriers whose primary business is touring (for example tour boats in Oregon waters more than 30 days per calendar year and small excursion-type railroads). The Commission waives the service permit requirement for the holder of some temporary licenses (see OAR 845-005-0440(12) & (13) Temporary Sales Licenses).

(c) Under ORS 471.190, employees and volunteers serving alcoholic beverages for a nonprofit or charitable organization with a temporary sales license are not required to have service permits (see OAR 845-005-0440(13) Temporary Sales Licenses).

(3) Authority to Mix, Sell or Serve Based on an Application. ORS 471.375 allows some service permit applicants to begin mixing, selling or serving alcoholic beverages after the applicant completes an official service permit application and an authorized person as defined under ORS 471.375 indorses and sends the application to the Commission. This authority does not apply to the following applicants:

(a) Any applicant whose service permit application was refused or whose service permit was revoked within three years of the date the Commission received the current application;

(b) Any applicant whose service permit application was refused because he or she failed to complete the required alcohol server education course and/or pass the required exam. To mix, serve or sell alcoholic beverages, the applicant must first complete all server education requirements;

(c) Any applicant whose service permit application was returned under OAR 845-009-0005 Return of Applications; or

(d) Any applicant whose service permit is currently suspended.

Stat. Auth.: ORS 471, 471.030, 471.040, 471.190 & 471.730(1) & (5)

Stats. Implemented: ORS 471.190, 471.360, 471.365(2) & 471.375

Hist.: OLCC 2-1989, f. 3-1-89, cert. ef. 4-1-89; OLCC 3-1991, f. 3-1-91, cert. ef. 4-1-91; OLCC 19-2000, f. 12-6-00, cert. ef. 1-1-01; OLCC 10-2001(Temp), f. 10-12-01, cert. ef. 11-1-01 thru 4-29-02; OLCC 5-2002, f. 4-12-02, cert. ef. 4-29-02; OLCC 9-2003, f. 6-27-03, cert. ef. 7-1-03; OLCC 10-2004, f. 10-15-04 cert. ef. 11-1-04; OLCC 4-2005, f. 6-7-05, cert. ef. 7-1-05; OLCC 17-2010, f. 12-22-10, cert. ef. 1-1-11; OLCC 3-2013(Temp), f. & cert. ef. 5-10-13 thru 11-6-13; OLCC 9-2013, f. 10-30-13, cert. ef. 11-1-13

845-009-0015

Licensee and Authorized Person’s Responsibility for Verifying Identification

(1) Before allowing anyone who is required to have a service permit under ORS 471.360 to perform the duties described in OAR 845-009-0010(1), a licensee must:

(a) Make sure the person has a valid service permit; and

(b) Verify the person’s identity (for example, make sure the person’s physical description matches the person’s driver’s license photo and description).

(2) If the person does not have a valid service permit, but he or she is eligible to mix, sell or serve alcoholic beverages based on an application under OAR 845-009-0010(3), the following rules apply:

(a) If the person has submitted an application with the Commission, the licensee must, before allowing the person to mix, sell or serve alcoholic beverages:

(A) Verify that the person has a pending application (for example, see a copy of the submitted service permit application);

(B) Verify the person’s identity (for example, make sure the person’s physical description matches the person’s driver’s license photo and description); and

(C) Verify the person’s age.

(b) If the person has not submitted an application with the Commission, the licensee must, before allowing the person to mix, sell or serve alcoholic beverages:

(A) Verify the person’s identity (for example, make sure the person’s physical description matches the person’s driver’s license photo and description);

(B) Verify the person’s age; and

(C) Mail or personally deliver a completed service permit application, with the appropriate fee, to the Commission by the end of the first work day following the person’s first work shift.

(c) After the application is submitted, the licensee has a continuing duty to verify that the person has taken and passed an alcohol server education course and that the person’s service permit has been issued.

(3) All other persons authorized to indorse applications under ORS 471.375 must:

(a) Verify the person’s identity (for example, make sure the person’s physical description matches the person’s driver’s license photo and description);

(b) Verify the person’s age; and

(c) Mail or personally deliver a completed service permit application, with the appropriate fee, to the Commission within 36 hours of indorsement. Holidays and weekends are not included in counting the 36 hours.

(4) If a company authorized to indorse applications under ORS 471.375(2)(b) fails to comply with subsection (3) of this rule, the Commission will rescind its approval to indorse service permit applications.

Stat. Auth.: ORS 471, 471.030, 471.040 & 471.730(1)

Stats. Implemented: ORS 471.360(1), 471.365(2) & 471.375

Hist.: OLCC 3-1991, f. 3-1-91, cert. ef. 4-1-91; OLCC 10-2001(Temp), f. 10-12-01, cert. ef. 11-1-01 thru 4-29-02; OLCC 5-2002, f. 4-12-02, cert. ef. 4-29-02; OLCC 9-2003, f. 6-27-03, cert. ef. 7-1-03; OLCC 20-2003, f. 11-24-03, cert. ef. 12-1-03; OLCC 10-2004, f. 10-15-04 cert. ef. 11-1-04; OLCC 4-2005, f. 6-7-05, cert. ef. 7-1-05; OLCC 3-2013(Temp), f. & cert. ef. 5-10-13 thru 11-6-13; OLCC 9-2013, f. 10-30-13, cert. ef. 11-1-13


Rule Caption: Affirms that the prohibition against self-service continues to apply to all persons.

Adm. Order No.: OLCC 10-2013

Filed with Sec. of State: 11-14-2013

Certified to be Effective: 12-1-13

Notice Publication Date: 8-1-2013

Rules Amended: 845-006-0345

Subject: Section (1) of this rule prohibits a licensee or permittee from consuming an alcoholic beverage or being under the influence of intoxicants while on duty. The amendments create a new section, labeled section (11), that prohibits any patron from mixing, dispensing or serving an alcoholic beverage for or to himself or herself for on-premises or off-premises consumption. The prohibition against patron self-service is not new; however, the statutory amendments enacted by House Bill 2443 have changed the statutory bases for this prohibition. The adopted rule language affirms that the prohibition against self-service continues to apply to all patrons. The adopted rule language also amends section (10)(a)(G) to clarify the prohibition on alcohol inhalation devices or techniques.

Rules Coordinator: Annabelle Henry—(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) Both during regular business hours and when a premises is closed, no licensee or permittee will refuse to admit or fail to promptly admit to the licensed premises a Commission regulatory employee or police officer who identifies him/herself and who enters or wants to enter to conduct a reasonable search to ensure compliance with alcoholic beverage law. Examination of premises that are or appear closed occurs only when there is reason to believe an alcoholic beverage law violation is occurring.

(b) 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.

(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 471.175, 471.178, 471.186, 471.200, 471.223 and 471.227 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 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, (e.g., 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”; and

(G) The use of any device or serving technique that produces an alcoholic mist or vapor for consumption by inhalation. An alcohol vaporization device, for example, 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.

(11) Self-Service. No licensee or permittee will permit any patron to mix, dispense or serve an alcoholic beverage for or to himself or herself for on-premises or off-premises consumption. 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, 471.186, 471.200, 471.223, 471.227, 471.315(1)(a)(H), 471.351(1), 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; OLCC 2-2013, f. 3-15-13, cert. ef. 4-1-13; OLCC 10-2013, f. 11-14-13, cert. ef. 12-1-13

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, 2012.

2.) Copyright 2013 Oregon Secretary of State: Terms and Conditions of Use

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