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.