68th OREGON LEGISLATIVE ASSEMBLY--1995 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 228
Senate Bill 11
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Joint Interim Oregon Liquor
Control Commission Oversight Task Force for Association of
Oregon Food Industries)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Allows wholesaler of wine or malt beverages to extend credit to
retailer of alcoholic liquor. Requires that credit be extended
for 30-day period. Allows certain licensees to bring action to
enforce laws relating to extension of credit by wholesale
licensees to retail licensees. Specifies remedies. Removes
authority of Oregon Liquor Control Commission to enforce
prohibitions relating to extension of credit.
A BILL FOR AN ACT
Relating to alcoholic liquor; creating new provisions; and
amending ORS 471.295, 471.315, 471.465, 471.485 and 472.180.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Sections 2, 3, 4 and 5 of this Act are added to
and made a part of ORS chapter 471. + }
SECTION 2. { + (1) No provision of this chapter or ORS chapter
472 prohibits the extension of credit in the manner provided by
this section.
(2) Credit may be extended under this section by a wholesale
licensee to a retail licensee for malt beverages or wine sold or
delivered to a retail licensee. A wholesale licensee who elects
to extend credit under this section must establish reasonable
criteria for determining when credit will be extended to a retail
licensee. If a wholesaler elects to extend credit to a retail
licensee, credit must be extended for a period of 30 days. A
wholesaler may not extend credit for a period of less than or
greater than 30 days. A wholesaler that elects to extend credit
must extend credit to all retail licensees who do business with
the wholesaler and who meet the credit criteria established by
the wholesaler.
(3) For the purposes of this section and sections 3 and 4 of
this 1995 Act, 'retail licensee' means any person who holds a
license issued under the provisions of this chapter or ORS
chapter 472 that authorizes the person to sell alcoholic
beverages at retail. + }
SECTION 3. { + (1) An action for injunctive relief may be
brought in circuit court by any wholesaler or retailer licensed
by the Oregon Liquor Control Commission for the purpose of
enforcing the provisions of section 2 of this 1995 Act and all
other provisions of this chapter prohibiting the extension of
credit by wholesale licensees to retail licensees. The action may
be brought against a wholesaler that provides credit and against
a retailer that accepts credit.
(2) In addition to injunctive relief, the court shall suspend
for a period of 30 days the license issued to a wholesaler or
retailer under the provisions of this chapter or ORS chapter 472
if the wholesaler or retailer is found by the court to have
engaged in repeated and intentional violations of the provisions
of this chapter relating to the extension of credit by a
wholesaler licensee to a retailer licensee. Upon suspending the
license of a defendant, the court shall notify the Oregon Liquor
Control Commission of the suspension. The commission shall
enforce the suspension in the same manner as though the
suspension had been imposed after a proceeding under the
provisions of this chapter.
(3) The court shall award reasonable attorney fees to a
plaintiff who prevails in an action brought under the provisions
of this section.
(4) An action under this section must be brought within one
year after the date on which credit is extended in violation of
section 2 of this 1995 Act or in violation of other provisions of
this chapter. + }
SECTION 4. { + Notwithstanding any other provision of this
chapter or ORS chapter 472, the Oregon Liquor Control Commission
is not responsible for the enforcement of the prohibitions of
this chapter relating to extension of credit by a wholesale
licensee to a retail licensee, and except as provided by section
3 of this 1995 Act the commission may not engage in enforcement
proceedings, including denial, cancellation or suspension of a
license, to prevent the extension of credit by a wholesale
licensee to a retail licensee or the acceptance of credit by a
retail licensee from a wholesale licensee. + }
SECTION 5. { + No provision of this chapter or ORS chapter 472
prohibits a manufacturer or wholesaler of alcoholic liquor from
holding an interest in, or extending financial assistance to,
another manufacturer or wholesaler of alcoholic liquor. + }
SECTION 6. ORS 471.295 is amended to read:
471.295. The { + Oregon Liquor Control + }Commission may
refuse to license any applicant if it has reasonable ground to
believe any of the following to be true:
(1) That there are sufficient licensed premises in the locality
set out in the application, or that the granting of a license in
the locality set out in the application is not demanded by public
interest or convenience.
(2) That the applicant has not furnished an acceptable bond.
(3) That, except as allowed by ORS 471.456, { + and except as
provided in sections 2, 3 and 4 of this 1995 Act, + } any
applicant to sell at retail for consumption on the premises has
been financed or furnished with money or property by, or has any
connection with, or is a manufacturer of, or wholesale dealer in,
alcoholic liquor.
(4) That the applicant:
(a) Is in the habit of using alcoholic beverages, habit-forming
drugs or controlled substances to excess.
(b) Has made false statements to the commission.
(c) Is not a citizen of the United States, or is incompetent or
physically unable to carry on the management of the establishment
proposed to be licensed.
(d) Has been convicted of violating any of the alcoholic liquor
laws of this state, general or local, or has been convicted at
any time of a felony.
(e) Has maintained an insanitary establishment.
(f) Is not of good repute and moral character.
(g) Did not have a good record of compliance with the alcoholic
liquor laws of this state and the rules of the commission when
previously licensed.
(h) Is not the legitimate owner of the business proposed to be
licensed, or other persons have ownership interests in the
business which have not been disclosed.
(i) Is not possessed of or has not demonstrated financial
responsibility sufficient to adequately meet the requirements of
the business proposed to be licensed.
(j) Is unable to read or write the English language or to
understand the Liquor Control Act or rules of the commission.
(5) That there is a history of serious and persistent problems
involving disturbances, lewd or unlawful activities or noise
either in the premises proposed to be licensed or involving
patrons of the establishment in the immediate vicinity of the
premises if the activities in the immediate vicinity of the
premises are related to the sale or service of alcohol under the
exercise of the license privilege. Behavior which is grounds for
refusal of a license under this section, where so related to the
sale or service of alcohol, includes, but is not limited to
obtrusive or excessive noise, music or sound vibrations; public
drunkenness; fights; altercations; harassment; unlawful drug
sales; alcohol or related litter; trespassing on private
property; and public urination. Histories from premises currently
or previously operated by the applicant may be considered when
reasonable inference may be made that similar activities will
occur as to the premises proposed to be licensed. The applicant
may overcome the history by showing that the problems are not
serious or persistent or that the applicant demonstrates a
willingness and ability to control adequately the premises
proposed to be licensed and patrons' behavior in the immediate
vicinity of the premises which is related to the licensee's sale
or service of alcohol under the licensee's exercise of the
license privilege.
SECTION 7. ORS 471.315 is amended to read:
471.315. (1) The { + Oregon Liquor Control + } Commission may
cancel or suspend any license, or impose a civil penalty in lieu
of or in addition to suspension as provided by ORS 471.322, if it
finds or has reasonable ground to believe any of the following to
be true:
(a) That the licensee:
(A) Has violated any provision of this chapter and ORS 474.105
and 474.115 or any rule of the commission adopted pursuant
thereto.
(B) Has made any false representation or statement to the
commission in order to induce or prevent action by the
commission.
(C) Is not maintaining an acceptable bond.
(D) Has maintained an insanitary establishment.
(E) Is insolvent or incompetent or physically unable to carry
on the management of the establishment of the licensee.
(F) Is in the habit of using alcoholic liquor, habit-forming
drugs or controlled substances to excess.
(G) Knowingly has sold alcoholic liquor to persons under 21
years of age or to persons visibly intoxicated at the time of
sale or has knowingly allowed the consumption of alcoholic liquor
on the licensed premises by a person who is visibly intoxicated
at the time of consumption.
(H) Has misrepresented to a customer or the public any
alcoholic liquor sold by the licensee.
(I) Since the granting of the license, has been convicted of a
felony, of violating any of the liquor laws of this state,
general or local, or of any misdemeanor or violation of any
municipal ordinance committed on the licensed premises.
(b) That { + , except as provided in sections 2, 3 and 4 of
this 1995 Act, + } any person licensed to sell at retail for
consumption on the premises is acting as an agent of, or is a
manufacturer or wholesaler of alcoholic liquors, or has borrowed
money or property, or has accepted gratuities or rebates, or has
obtained the use of equipment from any manufacturer or wholesaler
of alcoholic liquor or any agent thereof.
(c) That there is a history of serious and persistent problems
involving disturbances, lewd or unlawful activities or noise
either in the premises or involving patrons of the establishment
in the immediate vicinity of the premises if the activities in
the immediate vicinity of the premises are related to the sale or
service of alcohol under the exercise of the license privilege.
Behavior which is grounds for cancellation or suspension of a
license under this section, where so related to the sale or
service of alcohol, includes, but is not limited to obtrusive or
excessive noise, music or sound vibrations; public drunkenness;
fights; altercations; harassment or unlawful drug sales; alcohol
or related litter; trespassing on private property; and public
urination. Mitigating factors include a showing by the licensee
that the problems are not serious or persistent or that the
applicant has demonstrated a willingness and ability to control
adequately the licensed premises and patrons' behavior in the
immediate vicinity of the premises which is related to the
licensee's sale or service of alcohol under the licensee's
exercise of the license privilege.
(d) That there is any other reason which, in the opinion of the
commission, based on public convenience or necessity, warrants
canceling or suspending such license.
(2) Civil penalties under this section shall be imposed as
provided in ORS 183.090.
SECTION 8. ORS 471.465 is amended to read:
471.465. (1) No manufacturer or wholesaler of alcoholic liquor,
and no officer, director, substantial stockholder, agent or
employee of any such manufacturer or wholesaler, shall, directly
or indirectly, give, loan, furnish or supply, other than
merchandise sold in the usual course of trade, to any licensee
authorized to sell alcoholic liquors at retail:
(a) Any substantial gratuities;
(b) Any finances, money, credit, discounts or rebates { + ,
except as may be permitted under section 2 of this 1995 Act + };
(c) Any fixtures, furniture or furnishings;
(d) Any equipment other than advertising and point of sale
material and other items of nominal value supplied to all retail
licensees without discrimination; or
(e) Any services other than the inspection of equipment, the
inspection and rotation of stock, the building of displays and
other services of nominal value incidental to merchandising in
the usual course of business furnished to all retail licensees
without discrimination.
(2)(a) The { + Oregon Liquor Control + } Commission shall
allow the sale of nonalcoholic products in the manner in which
the nonalcoholic product is sold by a manufacturer or wholesaler
not licensed by the commission. The commission may limit
merchandising practices involving nonalcoholic products if the
commission finds that the limitations are necessary to prevent
abuses of this section, ORS 471.455 or 471.456 by the industry as
a whole.
(b) Any fixtures, equipment or furnishings provided by a
manufacturer or wholesaler in furtherance of the sale of
nonalcoholic products may not be used by the retailer to store,
service, display, advertise, furnish or sell, or aid in the sale
of, alcoholic products regulated by the commission. All such
fixtures, equipment or furnishings must be identified by the
retailer as being furnished by a licensed wholesaler.
SECTION 9. ORS 471.485 is amended to read:
471.485. { + Except as provided in section 2 of this 1995
Act, + } no wholesale licensee or agent or employee thereof shall
sell or deliver, nor shall any retail licensee purchase or
receive any malt beverages or wine for currency on delivery, but
such malt beverages or wine shall be paid for prior to delivery
thereof, or by valid check, order, negotiable instrument or
voucher payable on the date of delivery. The wholesale licensee
may accept cash at the time of delivery if such acceptance does
not create or increase the licensee's, or the agents' or
employees' of the licensee, exposure to or risk of being
victimized by criminal activity.
SECTION 10. ORS 472.180 is amended to read:
472.180. (1) The { + Oregon Liquor Control + } Commission may
cancel or suspend any license granted, or impose a civil penalty
in lieu of or in addition to suspension as provided by ORS
472.187, if it finds:
(a) That the licensee has violated any provision of this
chapter or any rule of the commission adopted pursuant thereto.
(b) That the licensee has made any false representation or
statement to the commission in order to induce or prevent action
by the commission.
(c) That the licensee is not maintaining an acceptable bond.
(d) That { + , except as provided by sections 2, 3 and 4 of
this 1995 Act, + } any person licensed under this chapter is
acting as an agent of, or is a manufacturer or wholesaler of,
alcoholic liquors, or has borrowed money or property, or has
accepted gratuities or rebates, or has obtained the use of
equipment from any manufacturer or wholesaler of alcoholic liquor
or any agent thereof.
(e) That the licensee maintains an insanitary establishment or
has been supplying impure or otherwise deleterious beverages or
food.
(f) That the licensee is insolvent, incompetent or physically
unable to carry on the management of the establishment of the
licensee.
(g) That the licensee is in the habit of using alcoholic
liquor, habit-forming drugs or controlled substances to excess.
(h) That the licensee knowingly has sold alcoholic liquor to
persons under 21 years of age or to persons visibly intoxicated
at the time of sale or has knowingly allowed the consumption of
alcoholic liquor on the licensed premises by a person who is
visibly intoxicated at the time of consumption.
(i) That the licensee has misrepresented to a customer or the
public any alcoholic liquor sold by the licensee.
(j) That the licensee, since the granting of the license, has
been convicted of a felony or has been convicted of violating any
of the liquor laws of this state, general or local, or has been
convicted of any misdemeanor or violation of any municipal
ordinance where such misdemeanor or violation of municipal
ordinance was committed on the licensed premises.
(k) That there is a history of serious and persistent problems
involving disturbances, lewd or unlawful activities or noise
either in the premises or involving patrons of the establishment
in the immediate vicinity of the premises if the activities in
the immediate vicinity of the premises are related to the sale or
service of alcohol under the exercise of the license privilege.
Behavior which is grounds for cancellation or suspension of a
license under this section, where so related to the sale or
service of alcohol, includes, but is not limited to obtrusive or
excessive noise, music or sound vibrations; public drunkenness;
fights; altercations; harassment or unlawful drug sales; alcohol
or related litter; trespassing on private property; and public
urination. Mitigating factors include a showing by the licensee
that the problems are not serious or persistent or that the
applicant has demonstrated a willingness and ability to control
adequately the licensed premises and patrons' behavior in the
immediate vicinity of the premises which is related to the
licensee's sale or service of alcohol under the licensee's
exercise of the license privilege.
(L) That there is any other reason which, in the opinion of the
commission based on public convenience or necessity, warrants
canceling or suspending such license.
(2) Civil penalties under this section shall be imposed as
provided in ORS 183.090.
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