Tag Archives: OLCC

NALCP Conference: Growler/Crowler Session Was a Hit!

Craft Brewing, OLCC, Speaking Engagements, WSLCB, , ,

NALCP Conference: Growler/Crowler Session Was a Hit!

Our session on growlers and crowlers was a big hit in New Orleans.  Speaking to nearly a full room, our speakers hit it out of the park.  Attendees were engaged, asking questions, and busily taking notes.

Thank you so much!

Attendees learned about the difference between growlers and crowlers, the regulatory issues presented by selling them, the scope and nature of the license privileges related to growlers and crowlers, the varied regulatory landscape across jurisdictions, the public safety issues presented by growlers, and best practices in setting up a growler/crowler business.

Another big thank you to Jeremy and Meg and Oskar Blues for bringing a crowler machine to the conference and demoing it with hundreds of cans with the NALCP logo at the trade show.

Oregon and Washington continue to be pioneers in the growler and crowler arena.  This success has been driven in part by the OLCC and WSLCB, thoughtful laws and rules, engaged industry groups and members, and the innovative alcohol beverage businesses in the Pacific Northwest.

Looking forward to next year’s conference in San Diego!

UO Annual Law of Beer & Wine Event

OLCC, Speaking Engagements,

UO Annual Law of Beer & Wine Event

I had the pleasure of sharing my knowledge of beer and wine law with a fantastic group of UO law students last night.  We had an engaging discussion of the practice of law in this space, common legal concerns of businesses in this space, and current issues of interest.

I’d like to thank my co-panelists for their contributions to the success of the event:

I also enjoyed sticking around for the next panel and appreciated the experience and hard earned wisdom shared by Mark Williams—the owner of Oregon Wine Lab—and Edward Fus—owner of Angel Vine.  After listening to Mark and Ed, I’ll be stopping by their tasting rooms soon and recommend you do the same!

I hope that the students got as much out of the presentations and Q&A sessions as I did.

Liquor Liability Insurance: Proposed Rulemaking

Laws & Rules, ,

Liquor Liability Insurance: Proposed Rulemaking

On April 25, 2014, The OLCC voted to initiate action to amend OAR 845-005-0400.  The rule governs the OLCC’s requirements for certain on-premises licensees to maintain liquor liability insurance.  The existing rule is excerpted below.

The primary changes proposed by the initial rulemaking include the following:

  1. Revised Penalty Schedule for Failing to Maintain Liquor Liability Insurance (“LLI”).  The biggest proposed change is a shift in the proposed sanctions for failing to maintain LLI.  Currently, failing to maintain LLI constitutes a category I violation.  The proposed change shifts this violation off of the existing OLCC penalty schedule entirely.  The current proposed penalty is license cancellation.  In its place, the rulemaking establishes an independent penalty schedule for this violation based on the length of the lapse in LLI.  The proposed penalty schedule is as follows:
    1. If the lapse in coverage is no more than 30 days, the sanction is $1,650 or a 10 day license suspension;
    2. If the lapse in coverage is 31 days, but no more than 60 days, the sanction is $4,950 or a 30 day license suspension;
    3. If the lapse in coverage is 61 days, but no more than 90 days, the sanction is $4,950 AND a 90 day license suspension;
    4. If the lapse in coverage is no more than 91 days, the sanction is license cancellation.
  2. Requirement that Proof of LLI is Posted or Otherwise Made Available for Immediate Inspection.  The proposed rulemaking would create a new affirmative requirement for licensees to post proof of their LLI or otherwise make the proof available for immediate inspection upon request by an OLCC employee.  Failure to do so would be a category V violation.  If verifying that this requirement was met became a regular part of OLCC premises visits, it’s likely that this would be a fairly common violation.  Posting the LLI would greatly reduce the probability of a violation.
  3. Affidavit Requirement for Manufacturers.  Currently, winery, brewery and distillery licensees are only required to provide verification of LLI if they have been approved to engage in on-premises sales.  The proposed change would require such manufacturing licensees to now affirmatively provide an affidavit stating that consumption of alcoholic beverages will not occur on the licensed premises.
  4. Bond Option.  The proposed changes highlight that applicants/licensees may fulfill this requirement by putting a corporate surety into place for the minimum amount.
  5. No Change to $300,000 Minimum.  This is probably the biggest surprise.  The rulemaking is not proposing to raise the $300,000 minimum, which has been in place for a considerable period of time.

845-005-0400  Liquor Liability Insurance or Bond Requirement

(1) ORS 471.313(4)(i) requires applicants for a liquor license to demonstrate financial responsibility sufficient to adequately meet the requirements of the business proposed to be licensed. ORS 471.313(2) requires applicants listed in 471.168 to maintain liquor liability insurance or bond. In addition to other requirements, the Commission has determined that licensees listed in 471.168 must demonstrate financial responsibility for licensees’ liability for damages to third parties caused by patrons off the licensed premises by meeting the requirements in section (1)(a) or (b) of this rule. ORS 471.168 requires certain licensees to provide coverage for injuries suffered because of the conduct of visibly intoxicated persons who were served in licensed premises by:

(a) Maintaining liquor liability insurance of not less than $300,000; or

(b) Maintaining a bond with a corporate surety authorized to transact business in this state in the amount of not less than $300,000.

(2) The requirement applies to the covered licenses issued or renewed on or after March 15, 1998.

(3) ORS 471.168 also requires licensees subject to the requirement to supply proof of compliance at the time the license is issued or renewed. For insurance, licensees must provide proof by naming the Commission as Certificate Holder on the policy and giving the Commission a copy of the certificate. For a bond, proof may be satisfied by identifying the name of the surety and providing the bond identification number.

(4) Failure to maintain insurance or a bond as required is a Category I violation and the Commission may cancel the license.

Portland Bar Academy on Monday December 1, 2014

OLCC,

Portland Bar Academy on Monday December 1, 2014

Old Town

The Portland Bar Academy (PBA) is a one-day workshop for bar owners, managers, bartenders, servers and security staff.

I will be presenting with Rob Hoover (from the Fournier Group) on the top ten OLCC violations, dram shop and general liability, and the relationship between administrative violations and liability.  We will also focus on practical steps to reduce the risk of administrative violations and liability.

The purpose of the workshop is to bring together all of those involved in Portland’s bar and nightlife to share information, ideas and experiences, and to shape Portland’s nightlife and entertainment for the future.

Participants can attend any session from the three tracks of classes designed for owners/managers, bartenders/servers and security staff. Each class focuses on a critical topic which is facilitated by an expert in his/her field.

See full schedule here and excerpt below.

BAR OWNERS & MANAGERS

11:00 a.m. – 11:50 p.m. 
Raising the Bar
Presenter: Old Town Hospitality Group
Nikki Jones, Jones Bar & The Boiler Room
Dan Lenzen, Dixie Tavern: Dave Leiken, Roseland Theater
Luke Bradley, 5th Ave. Lounge: Tracey Murphy, Kell’s Irish Pub

Description:
Interactive forum on the use and benefits of implementing best practices in your establishment. Network with other bar owners/GMs and discuss the culture of PDX’s current and future nightlife.

12:00 p.m. – 1:30 p.m.
Keynote Speaker/ Lunch
Presenter: Jim Peters, Responsible Hospitality Institute
Description:
Cities throughout the world recognize the importance of sociability as an economic engine. This presentation will trace the evolution of urban hospitality and showcase how cities can join together in modernizing policy and practices to meet consumer demands while maintaining public safety and livability. The presentation will also engage the audience in evaluating Portland’s transformation as a destination for nightlife in comparison to national trends and identify opportunities to enhance Portland as one of America’s most sociable cities.

1:45 p.m. – 2:45 p.m.
Dramshop/ Liability Issues
Presenter: Duke Tufty, Attorney & Rob Hoover, Insurance Agent
Description:
Learn how to avoid the top 10 most common violations, dramshop, liability and avoiding lawsuits.

3:00 p.m. – 4:00 p.m.
Lesson Learned/ Legal Use of Force
Presenter: Robert Smith, Nightclub Security Consultants
Description:
Guidance on those “What the hell” moments! This session will identify the top 10 mistakes and best practices in hospitality. Owners and managers will walk away with ideas they can  implement at their bar or club.

4:15 p.m. – 4:30 p.m.
Hear from your Local Resources:
Portland Police Bureau, Entertainment Detail; Portland Fire Bureau, Inspector

4:30 p.m. – 5:45 p.m.
Keynote Speaker
Presenter: Robert Smith, Nightclub Security Consultants
Description:
From the newest door hostess to the seasoned bartender to the “I know everything” owner, the staff of nearly every bar and club too often forget to remember what they already know.  During the keynote, we’ll have a very open and frank discussion on some basic facts of the bar business that every employee already knows but often forget.  This will be a funny, insightful and right on target discussion for every bar and club employee.

SECURITY MANAGER & GUARDS

11:00 a.m. – 11:50 p.m.
No Session Scheduled

12:00 p.m. – 1:30 p.m.
Keynote Speaker/ Lunch
Presenter: Jim Peters, Responsible Hospitality Institute
Description:
Cities throughout the world recognize the importance of sociability as an economic engine. This presentation will trace the evolution of urban hospitality and showcase how cities can join together in modernizing policy and practices to meet consumer demands while maintaining public safety and livability. The presentation will also engage the audience in evaluating Portland’s transformation as a destination for nightlife in comparison to national trends and identify opportunities to enhance Portland as one of America’s most sociable cities.

1:45 p.m. – 2:45 p.m.
Bouncers Legal Use of Force
Presenter: Robert Smith, Nightclub Security Consultants
Description:
Crowd management and de-escalation techniques; Customer service focused security practices; Legal use of force for security professionals

3:00 p.m. – 4:00 p.m.
Fake ID Training
Presenter: Mark Smith, OLCC & Key bouncers from PDX bars
Description:
How to identify fakes, tips and techniques for taking fakes and interacting with customers at the front door in your line queue.

4:15 p.m. – 4:30 p.m.
Hear from your Local Resources:
Portland Police Bureau, Entertainment Detail; Portland Fire Bureau, Inspector

4:30 p.m. – 5:45 p.m.
Keynote Speaker
Presenter: Robert Smith, Nightclub Security Consultants
Description:
From the newest door hostess to the seasoned bartender to the “I know everything” owner, the staff of nearly every bar and club too often forget to remember what they already know.  During the keynote, we’ll have a very open and frank discussion on some basic facts of the bar business that every employee already knows but often forget.  This will be a funny, insightful and right on target discussion for every bar and club employee.

BARTENDERS & SERVERS

11:00 a.m. – 11:50 p.m.
No Session Scheduled

12:00 p.m. – 1:30 p.m.
Keynote Speaker/ Lunch
Presenter: Jim Peters, Responsible Hospitality Institute
Description:
Cities throughout the world recognize the importance of sociability as an economic engine. This presentation will trace the evolution of urban hospitality and showcase how cities can join together in modernizing policy and practices to meet consumer demands while maintaining public safety and livability. The presentation will also engage the audience in evaluating Portland’s transformation as a destination for nightlife in comparison to national trends and identify opportunities to enhance Portland as one of America’s most sociable cities.

1:45 p.m. – 4:00 p.m.
How to Cut People Off
Presenter: Diane Barta, Action Server Education
Description: Interactive workshop on the dos/don’ts of cutting people off, interacting with tough customers & learning tips & tricks of how to cutoff visibly intoxicated persons

Consequences of Overservice
Presenter: Trauma Nurses & Portland Police
Description:
Learn the science of over-indulging, the ways it affects the human body, the consequences involved in over service, and how to positively impact the customer experience safely and effectively

4:15 p.m. – 4:30 p.m.
Hear from your Local Resources:
Portland Police Bureau, Entertainment Detail; Portland Fire Bureau, Inspector

4:30 p.m. – 5:45 p.m.
Keynote Speaker
Presenter: Robert Smith, Nightclub Security Consultants
Description:
From the newest door hostess to the seasoned bartender to the “I know everything” owner, the staff of nearly every bar and club too often forget to remember what they already know.  During the keynote, we’ll have a very open and frank discussion on some basic facts of the bar business that every employee already knows but often forget.  This will be a funny, insightful and right on target discussion for every bar and club employee.

The Portland Bar Academy is organized by the Old Town Hospitality Group (OTHG), a volunteer organization made up of some of Portland’s most experienced bar and night club owners, and the Safe Nightlife Advocacy Partnership (SNAP).

Hope to see you there!

Incident Logs: To Log or Not To Log Is a Question All Licensees Should Ask Themselves

Case Studies, OLCC,

Incident Logs: To Log or Not To Log Is a Question All Licensees Should Ask Themselves

The OLCC recommends that licensees maintain incident logs, but licensees must be mindful of how they maintain incidents logs or they could be used against them later.

OLCC Recommendations.  The OLCC encourages you to keep an Incident Log.  Per the OLCC, examples of when you should make an entry in the log include anytime you or your employees intervene to prevent or stop customer conduct such as:

  • Refusing someone alcohol service
  • Cutting someone off or removing a drink
  • Arranging safe transportation home for someone who appears intoxicated
  • Stopping an argument, fight, or assault
  • Stopping other illegal activities
  • Asking a noisy customer to be quiet as they leave or drive away

 

The OLCC also recommends putting other activities in your log, including whenever an incident is reported to the police or OLCC, whenever you receive a complaint from a neighbor, or any other time you think it necessary.  The OLCC argues that the licensee will benefit from keeping an incident log because:

“Sometimes, complaints, investigations, or lawsuits do not surface until weeks, months, or years after the incident occurred. Gathering complete and accurate information immediately after an incident is  one of the best ways to document how you and your employees handled the problem.”

Reason for Concern.  The OLCC could potentially substantiate a history of serious and persistent problems violation solely based on a licensee’s incident log.  In a recent decision, the OLCC made it clear that it considers incident logs to be sufficiently reliable to document a serious incident in a history of serious and persistent problems violation.  In other words, entries in a licensee’s log book can be admitted into evidence at an administrative hearing and can be held against the licensee to prove a history of serious and persistent problems violation.  The proposed sanction for such a violation is license cancellation.

The OLCC reasoned that the incident logs should be considered reliable because they would not be considered hearsay under the Oregon Evidence Code.  Specifically, log entries fall within a hearsay exception as a statement made by a party opponent under ORS 40.450(4)(b) and as business records kept in the ordinary course under ORS 40.460(6).  Because incident logs fall within these hearsay exceptions and would be admitted in civil litigation, the Commission concluded that incident logs are reliable under the applicable evidentiary standard set out in ORS 183.450(1).

The OLCC tries to soften this conclusion by pointing out that evidentiary value of incident logs would be reduced to the extent that there was not corroborating evidence or testimony concerning the events in the incident log.  Even with that being the case, it’s clear that a poorly kept incident log can cost a licensee their license under certain circumstances.

Best Practices.  Keeping an incident log can be very beneficial to operating a successful, profitable and compliant business.  The three most important aspects of keeping a log book are:

  1. Regular review of the log book,
  2. Documentation of proactive steps taken in response to problems, and
  3. Training staff regarding how to draft a log entry.

Regular Review.  To maximize the benefit and minimize the potential downsides, an owner or manager should regularly review log entries and should take appropriate steps in the light of documented incidents and trends in incidents.  The best practice is to review the log books every day.  If there is a serious incident, the owner or manager can investigate while the incident is still fresh in the minds of their staff.  In addition, if the business has video cameras, the owner or manager can review the applicable video records and preserve copies of the videotape before they are recorded over.

Proactive Steps.  If there is a troubling incident or trend in incidents, the business is well advised to take immediate steps to prevent or control the problems.  The scope and nature of the proactive steps will depend on the scope and nature of the incidents.  Getting ahead of problems can potentially prevent expensive and time consuming issues with the OLCC, law enforcement and the local government.

Drafting Entries.  If you do not direct your staff in how and when to prepare a log entry, you should not be surprised if the log entry seems to highlight the severity of a particular incident and fails to mention how it was resolved.  Specifying the basic components to an entry is a good first step, such as date, time, staff name, name of involved individuals, police called or involved, description of incident, proactive steps taken, etc.  Entries in log books should describe the incident in plain English without undue commentary, i.e. “there was a huge fight on the patio tonight, more like a riot.  We totally lost control of the crowd and it looked two people were almost killed …”  The log should focus more on how the business quickly identified and resolved the issue.

Take Away.  There are many reasons why a bar or restaurant should keep an incident log, but merely keeping an incident log without any regular review or follow up may do more harm than good.  Licensees should consider incident logs to be one of many potential tools to run a compliant business, such as regular staff trainings, secret shoppers, video cameras, etc.  Using the tool properly can be beneficial, but keeping an incident log just because you think it’s the right thing to do with no further action probably involves more risk than reward.

I regularly help clients review their compliance practices and would appreciate the opportunity to talk to you about your current practices and how to improve them going forward.

 

OLCC Priority Violations

Compliance, OLCC,

OLCC Priority Violations.  There are 1000’s of licensed businesses in Oregon.  This can be great for Oregonians, but can present a real challenge to the OLCC in terms of monitoring them for compliance.  The OLCC must decide each day how to allocate its enforcement officers and focus its efforts across the state.  In order to maximize the effectiveness and coverage of their enforcement efforts, the OLCC focuses on a subset of licensed businesses and a subset of violations.

Licensees can benefit by understanding how the OLCC prioritizes their efforts.

That doesn’t mean that the OLCC is simply turning a blind eye to other businesses or violations.  For example, the OLCC’s minor decoy program involves visits to randomly selected businesses across the state.  In addition, even if a violation is not a “priority violation,” the OLCC may still take action if the violation is discovered.

The OLCC typically focuses on businesses with documented compliance problems.  The compliance problems may be documented from calls for service from local law enforcement, citizen complaints, or prior warnings or violations from the OLCC.  The take-away for licensees is that they should operate their business in a manner that minimizes calls for service and citizen complaints.  And, maybe even more importantly, licensees should take note if their business starts getting visits from local law enforcement or starts to receive citizen complaints.  These may be early warning signs of problems and provide a licensee with an opportunity to take corrective action BEFORE the issues develop into problems with the OLCC.

The OLCC also has identified what it considers priority violations and include the following:

Category I Violations

• Failure to maintain liquor liability insurance or bond (see Section 200L)
• Licensee convicted of a felony
• History of serious & persistent problems (HSPP)
• Restriction violation
• Unauthorized interest in a business (involves an unlicensable person)
• Operating while suspended

Category II/II(a) Violations

• Interfered with investigation
• Material false statement
• Under the influence of intoxicants on duty
• Failed to call police at Inspector’s request
• Denied Inspector/police officer access to premises (during business hours)
• Failed to promptly admit Inspector/officer (when premises is or appears closed)
• Unlawful drug activity on the licensed premises (II(a))

Category III/III(a) Violations

• Failed to verify the age of a minor
• Permitted minor to consume alcohol
• Sale to VIP
• Allowing VIP to consume alcohol
• Permitting disorderly activity
• Permitting unlawful activity

Licensees should understand the nature of these violations and be vigilant to ensure that they do not occur at their business.  Well drafted house policies, ongoing training efforts and trustworthy management and staff are essential to operating a profitable and compliant licensed business in Oregon.

The TTB Issued a Ruling Regarding “Wine” Growlers

Laws & Rules, OLCC, TTB, , , ,

The TTB issued a ruling yesterday regarding “wine” growlers that should be of particular interest to Oregon licensees because it conflicts with Oregon law.  Oregon passed legislation in 2013 that made it legal under state law for most on- and off-premises licensees to sell growlers of malt beverage, wine and cider.  The OLCC has created an FAQ detailing this law change.  The Ruling is particularly important to any licensee that is currently selling wine growlers without a TTB taxpaid wine bottling house approval.  The OLCC could charge such licensees with permitting unlawful activity for such sales.  Permitting unlawful activity is a category III violation under Oregon law and is subject to the OLCC’s escalating penalty schedule.

The Ruling.  In short, the TTB Ruling has held that the “filling of growlers with taxpaid wine for the purpose of consumption off of the premises is an activity that may be conducted lawfully only by a qualified taxpaid wine bottling house” (emphasis added).  You can view the Ruling here.

Growlers are increasingly popular.  Growlers are increasingly popular with brewers and consumers.  Many, but not all, states allow certain licensees to sell growlers.  States are also increasingly enacting laws that allow brewers and other licensees to sell growlers.  In addition, advocacy groups are pushing to allow the sale of growlers in more states and to expand the privileges in states that already allow growler sales.  This Ruling could substantially impact the continued growth of this trend, particularly for wine and cider growlers.

What is a growler?  A growler is a container used to store, transport and dispense beer.  Growlers are typically made of glass or ceramic materials and have a mechanism for securely closing the container.  Growlers often hold 64 ounces, but can hold more or less than that.  A properly sealed growler can maintain the freshness of beer for a week or more.  The term “growler” is thought to date back to the late 19th century when fresh beer was carried from the local pub to one’s home using a galvanized pail and the sound that the CO2 made when it escaped from the lid as the beer sloshed around sounded like a “growl”.  Consumers can typically bring their own growler to a retailer, or purchase a growler from the retailer at the time that it is filled.

Growlers and federal law.  The TTB has issued formal guidance regarding beer growlers that clarifies that beer growlers are allowed.  The TTB’s Ruling on wine growler explains that federal law is different for the various alcoholic beverage commodities: malt beverage, wine and spirits.  Accordingly, the fact that beer growlers are permitted under federal law does not necessarily mean that they are permitted for other commodities, such as wine.

More on beer growlers.  The TTB makes a distinction between when a growler is a bottle or a large glass.  The determination turns solely on how the growler is filled.  If a growler is filled in advance of sale, it is a bottle.  If a growler is filled at the time of sale, it is a large glass.  The distinction is important because a growler that is considered a “large glass” is not subject to Federal labeling requirements and “bottles” are.  The TTB’s Ruling on wine growlers makes a similar distinction.

For those of us who were looking forward to the wide availability of wine growlers, this Ruling is disappointing.

 

OLCC Case Profile: The OLCC Dismissed Two “Permitting” Violations in Bradley’s Bar & Grill

Case Studies, OLCC,

The OLCC dismissed two “permitting” violations in Bradley’s Bar & Grill.  In doing so, the case provides some useful guidance to existing licensees.

The Law.  “Permitting” violations requires that the OLCC show two elements.  The first element is a showing that the licensee had knowledge of the proscribed activity.  The second element is a showing that the licensee failed to take reasonable steps to prevent or control the proscribed activity.

The proscribed activity may be unlawful activity, disorderly conduct, or having a minor in an area in which minors are prohibited.  Knowledge may be shown in a number of ways: actual, constructive, or imputed.  Constructive knowledge is where the nature of the proscribed activity was such that it would have been evident to persons working in the establishment.  The knowledge can also be imputed to the licensee from one of the licensee’s agents or employees.

First Alleged Violation.  The first alleged violation was that the licensee permitted unlawful activity when a patron sold drugs to a confidential reliable informant (a “CRI”).  It was undisputed that the employee on duty had no actual knowledge that a CRI was attempting to buy drugs in the bar.  In addition, it was not evident to persons working at the bar that the two patrons talking privately near the bar were negotiating a drug sale.

OLCC staff contended that licensee’s employees should have monitored the private conversation between the patrons and thus should have been aware of the drug sale.  The Commission determined that that was not a reasonable expectation.  Even if the employee in question had stopped performing their duties and focused entirely on drug transaction, the Commission determined that it would have not been evident to a reasonable person that a drug transaction was occurring.

Take Away Point.  Licensees are responsible for taking reasonable steps to prevent drug activity at or adjacent to the licensed premises.  If their employees become aware that such drug transactions are occurring or such activity becomes conspicuous, a licensee is responsible to taking reasonable steps to prevent such drug activity.  That being said, if the drug activity is “surreptitious and subtle” and the licensee does not have actual or constructive knowledge of it, a licensee will not be sanctioned by the OLCC.  The take away is that licensees should take care to train their staff to be observant of their surroundings and to report any criminal or suspicious activity to the manager or owner.  Communication between staff and management is essential and there are a number of tools that licensees can put into place to mitigate risk here.

Second Alleged Violation.  The second alleged violation was that the licensee permitted a minor to be on the licensed premises where minors were prohibited.  For this type of violation, the knowledge element can be met either by showing that the licensee had (1) actual knowledge that the minor was on the licensed premises or (2) sufficient time and opportunity to detect and determine the minor’s presence at the premises.

In this case, it was undisputed that the licensee’s employee was unaware of the minor’s presence at the bar.  As a result, the case turned on whether the licensee’s employee had “sufficient time or opportunity” to discover the minor.

The Commission has determined that 10 or 15 minutes is “sufficient time and opportunity” exists when a premises is busy.  Here, the minor was in the bar for a little over 9 minutes and the bar was busy.  The unique fact presented was that two other patrons that were sitting at the table where the minor was seated caused a disturbance for much of the 9 minutes.   Accordingly, the server’s attention was rightfully focused on resolving the immediate situation.  In this case, the Commission found that the server did not have sufficient opportunity to detect the minor’s presence because of the disruptive behavior of the other patrons.  The disruptive behavior constituted an immediate public safety concern and required the immediate attention of the server.

 

Can an OLCC Licensee Accept a Canadian Driver’s License?

Compliance, OLCC,

Can an OLCC Licensee Accept a Canadian Driver’s License?

Acceptable Forms of ID. Under Oregon law, licensees may accept only the following forms of identification alone as proof of age:

1. A valid state driver’s license with a photo;
2. A valid ID card issued by a state with photo, name, date of birth, & physical description;
3. A valid passport; or
4. A valid U.S. military ID card.
ORS 471.130

Foreign Driver Licensees. The OLCC interprets the word “state” in ORS 471.130(1)(b) to include driver’s licenses issued by US territories and states/provinces of foreign countries including Canada and Mexico. However, if a licensee cannot determine from the license the person’s age or whether the ID is a valid/authentic license from another country, the OLCC recommends that the licensee require another form of ID such as a passport.

The Licensee Assumes the Risk. In short, a licensee takes on the risk when it accepts a foreign driver’s license as the only evidence of age. If it turns out the identification is not authentic, the licensee is at risk of receiving a violation from the OLCC. For this reason, some establishments will not accept foreign driver’s licenses as a matter of policy, but they will accept passports. Generally speaking, most out-of-country visitors to the United States should have a valid passport that they used to gain entry to the US and that can be used as proof of age.

Take Away and Best Practices. In summary, a licensee can accept foreign driver’s licenses as proof of age, but it likely involves more risk because it is more difficult to determine if a foreign driver’s license is authentic or not. If a licensee decides to accept foreign driver’s licenses as acceptable identification, a best practice is to require a manager sign off to ensure that there are at least two sets of eyes on the identification. In addition, or alternatively, a licensee may decide to accept only foreign driver’s licenses for a limited number of countries, such as Canada and Mexico, and obtain resources that describe these forms of identification. The ID book that you currently use may include a section on some foreign forms of identification.

Age Verification Equipment: Should You Agree to Use It to Resolve an OLCC Violation?

Compliance, Laws & Rules, OLCC, , , ,

Age Verification Equipment (“AVE”): Should You Agree to Use It to Resolve an OLCC Violation?

The AVE Option. ORS 471.392 allows the OLCC to use AVE as a tool to reduce underage drinking and helps licensees demonstrate that they are responsible business owners. OAR 845-009-0140 allows a licensee to purchase and use AVE in lieu of a civil penalty or suspension for a first sale to a minor or failure to verify age violation. If a licensee did not select the AVE option for a first violation of this type, the OLCC may give a licensee the option to buy and use AVE to partially offset a civil penalty or suspension for a second violation. A licensee can only use this option one time at a particular licensed location.

Process for Selecting the AVE Option. The licensee must notify the OLCC within 15 days of receiving a Notice of Violation of their intention to get and use the AVE. Licensees must be using the AVE within 30 days of receiving the Notice of Violation. Licensees should carefully review the Notice of Violation and diligently follow the instructions listed in the Notice.

AVE Is For Life. Going forward, the licensee must use AVE at every point of sale used to sell alcohol, and the equipment must be used at each point of sale as long as the licensee owns the business. Failure to use the AVE equipment can result in an aggravated penalty for future violations of this type and possible removal from the Responsible Vendor Program. There is no process for eliminating this requirement from a liquor license other than a change of ownership at the location. In other words, a licensee is agreeing to use the AVE at the location as long as the licensee operates at the location and is subject to aggravated penalties for any subsequent violations if the AVE is not appropriately used. In addition, the licensee will need to pay for upgrades or otherwise insure that the AVE meets the OLCC’s standards for the same time period.

AVE Equipment. The AVE 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.

Final Verdict. Licensees should carefully consider whether or not AVE is right for them and their business. And, even if using AVE at the business makes sense, licensees should determine whether it makes sense to be permanently bound to using AVE going forward. The short term benefit of an elimination or reduction of a sanction may not outweigh the potential long term burdens of complying with the AVE requirement. Determining how to respond to an OLCC violation requires careful deliberation. Even if settlement is the right option, the details of the settlement matter. In addition, when determining how to respond to an OLCC violation, it is essential to consider the longer view. AVE may not be the best option for all licensees. Understanding your options, what to expect going forward, and how best to ensure future compliance is essential to your business’s continued success when operating in the heavily regulated alcohol regulatory environment.