Oregon Bulletin
Rule Caption: Amendment removing requirement for Self-Distribution Permit applicants to
provide true copy of manufacturing license.
Adm. Order No.: OLCC 11-2011
Filed with Sec. of State: 12-6-2011
Certified to be Effective: 1-1-12
Notice Publication Date: 10-1-2011
Rules Amended: 845-005-0425
Subject: This rule describes the qualifications necessary for
an out-of-state manufacturer to obtain a Self-Distribution Permit, which allows
the permittee to ship wine or cider they manufacture directly to Oregon retail
licensees who hold a valid Commission endorsement authorizing its receipt.
House Bill (HB) 2147 has passed with an emergency clause, effective June 2,
2011. HB 2147 amends ORS 471.274 and has eliminated the statutory requirement
to provide a true copy of an applicant’s manufacturing license. The new
statutory language now provides the alternative of the applicant providing
sufficient information to allow for Commission verification of the out-of-state
license by electronic means. Subsection (2)(a) of this rule was amended to
bring it into statutory compliance.
Rules Coordinator: Jennifer Huntsman—(503) 872-5004
845-005-0425
Qualifications
for Wine Self-Distribution Permit for Wine and Cider
ORS 471.274
allows a manufacturer of wine or cider with a Wine Self-Distribution Permit to
sell and ship wine and cider that the manufacturer produced directly to the
Commission or to retail licensees of the Commission who hold a valid
endorsement issued by the Commission authorizing receipt of wine or cider from
the holder of a Wine Self-Distribution Permit. This rule sets the qualifications
to obtain a Wine Self-Distribution Permit.
(1) In
order to qualify for a Wine Self-Distribution Permit, a person must:
(a) Hold a
valid license issued by another state within the United States that authorizes
the manufacture of wine or cider;
(b) Hold a
valid Certificate of Approval issued under ORS 471.244; and
(c) Hold a
bond or other security, as described in ORS 471.155, in the minimum amount of
$1,000.
(2)
Application. A person must make application to the Commission upon forms to be
furnished by the Commission and receive a Wine Self-Distribution Permit from
the Commission before shipping any wine or cider directly to retail licensees
of the Commission. The application shall include:
(a) Any
information required by the Commission to establish that the applicant holds a
valid license authorizing the manufacture of wine or cider;
(b) A
statement that the person understands and will follow Oregon’s alcohol laws and
rules regarding wine self-distribution, tied-house and financial assistance
prohibitions, and wine and cider privilege tax;
(c) Proof
of a valid Certificate of Approval issued under ORS 471.244;
(d) A $100
fee; and
(e) Proof
of posting a bond or other security, as described in ORS 471.155, in the
minimum amount of $1,000.
(3) The
Commission may refuse to process any application required under this rule that
is not complete and accompanied by the documents or disclosures required by the
form. The Commission shall give applicants the opportunity to be heard if the
Commission refuses to process an application. A hearing under this subsection
is not subject to the requirements for contested case proceedings under ORS
Chapter 183.
(4) The
Commission may revoke or refuse to issue or renew a Wine Self-Distribution
Permit if the permit holder or applicant fails to qualify for the permit under
this rule or a refusal basis applies under ORS Chapter 471 or any other rule of
the Commission and good cause does not overcome the refusal basis.
Stat.
Auth.: ORS 471, including 471.030, 471.040 & 471.730(1) & (5)
Stats.
Implemented: ORS 471.272 & 471.274
Hist.: OLCC
23-2007(Temp), f. 12-14-07, cert. ef. 1-1-08 thru 6-28-08; OLCC 8-2008, f.
6-12-08, cert. ef. 6-29-08; OLCC 11-2011, f. 12-6-11, cert. ef. 1-1-12
Rule Caption: Amendment implementing statutory change expanding license types allowed to
participate in Responsible Vendor Program.
Adm. Order No.: OLCC 12-2011
Filed with Sec. of State: 12-6-2011
Certified to be Effective: 1-1-12
Notice Publication Date: 10-1-2011
Rules Amended: 845-009-0135
Subject: This rule describes the Commission’s standards and
procedures for participation in the Responsible Vendor Program (RVP). The 2011
legislature has passed House Bill (HB) 2148, effective January 1, 2012. HB 2148
amends ORS 471.344 by changing the definition of “retail licensee” for purposes
of the RVP. Rather than using the definition in ORS 471.392, which excludes
certain license types with retail privileges such as a Brewery-Public House
license and a Winery license, the new statutory language allows any licensee
with retail privileges to participate in the RVP. Amending OAR 845-009-0135, by
deleting the current definition of “retail licensee” and adding language to the
now section (2), brings our rule into compliance with the new statutory
language. While the rule was open, we also amended what is now (7)(a) so that
licensees will not be removed from the RVP if the only program element they are
missing is the posting requirement for house policies or legal I.D. signs. The amendments
also include the addition in what is now (3)(e) of the requirement to produce
training records for inspection within five business days. And finally, to
improve clarity, amendments include an overall clean up and restructuring of
what are now sections (5) and (7), governing both maintenance of RVP status and
program removal & reinstatement.
Rules Coordinator: Jennifer Huntsman—(503) 872-5004
845-009-0135
Responsible
Vendor Program
(1) Purpose.
ORS 471.344 requires the Commission to establish a Responsible Vendor Program
(program) for retail licensees, including the positive measures a licensee must
take to participate in the program. The purpose of this rule is to set
standards and procedures for program participation.
(2)
Application Process. To be eligible for the program, a licensee must hold a
liquor license that authorizes the sale of alcoholic beverages at retail. Any
eligible licensee who meets the program standards may participate. To apply for
the program, the licensee must complete and submit a Commission-provided
application form. Commission staff will review the application for
completeness, and will:
(a) Approve
a completed application that clearly indicates the licensee has all program
standards in place; put the application in the licensee’s file; and send a
certificate to the licensee acknowledging the licensee as an approved
Responsible Vendor. The Responsible Vendor Program is a self-certifying
program. The approval means only that staff has reviewed the application to
confirm that it is complete and that the licensee states in writing that he/she
has all the program standards in place. The Commission may take administrative
action if it learns that the licensee did not meet all the standards at the
time of application; or
(b) Return
an incomplete application that does not clearly indicate the licensee has all
program standards in place. Staff will include a letter highlighting the
reason/s the application is being returned.
(3) Program
Standards. To qualify as a Responsible Vendor, a licensee must:
(a) Train
each employee in alcohol sales. For training purposes, an employee is any
person whose responsibilities include the sale or service of alcohol. Except
for an on-premises employee who has a valid service permit, each employee must:
(A) Before
selling alcohol, read and sign the Commission-provided off-premises brochure
or, at the licensee’s discretion, meet the alternative requirements of OAR
845-009-0130, Training Brochure Requirement for Off-Premises Sales Employees.
Licensees must comply with the record keeping requirements of 845-009-0130; and
(B) Within
three days of beginning to sell alcohol, receive training that covers at a
minimum the topics listed in Section (4) of this rule. Licensees may train
their employees themselves; licensee’s trainings do not require Commission
approval. Licensees may also choose to use any clerk training course approved
by the Commission under OAR 845-009-0145, Clerk Training Courses. Additionally,
servers who have not completed a Server Education course must do so within the
time required in 845-009-0100, Service Permittee Requirements.
(b) Accept
only identification allowed in ORS 471.130.
(c) In an
area visible to employees, post the house policies on alcohol sales and
checking identification. The licensee must have each employee read and sign the
house policies which must include at a minimum:
(A) A list
of valid types of identification which are accepted at the premises;
(B)
Directions for properly checking identification, including the requirement to
check anyone who appears to be under the age of 26 years. A licensee may have a
house policy to check customers who appear to be older than 26 years; and
(C)
Consequences for selling alcohol to a minor.
(d)
Permanently post signs reminding patrons and employees of the legal
requirements for selling alcohol. The signs must include:
(A) A list
of valid types of identification which are accepted at the premises;
(B) A
notice that anyone who appears to be under the age of 26 years must show valid
identification. A licensee may post that their house policy is to check
customers who appear to be older than 26 years.
(e) At a
minimum, provide four employee trainings spaced at regular intervals within
each 12-month period. The licensee must ensure that employees attend the
trainings. The licensee must keep a record of each training which includes the
date of the training, names of the employees who participated, and a summary of
the training. The licensee must produce these training records for inspection
by any Commission employee within five business days, excluding weekends and
holidays. Examples of training include computer based training, video training,
classroom instruction, and meetings. The training may be done individually or
in a group. At a minimum, each training must cover the topics listed in Section
(4) of this rule.
(f) Have no
prior Category I or II violation within the last five years for the licensee
personally.
(g) Have no
aggravating circumstances surrounding a violation for failing to verify the age
of a minor or selling alcohol to a minor. For purposes of this rule,
aggravating circumstances do not include licensee’s personal involvement in the
violation. Aggravating circumstances include, but are not limited to, an
intentional sale to a minor; multiple employees or patrons involved in the
violation; the violation results in death or personal injury; the sale was made
to a person under age 18 who appeared to be under the age of 21 when the sale
was made.
(4) Topics
to be Covered in Responsible Vendor Training. All training required by this
rule must include at a minimum the following topics:
(a)
Guidelines for recognizing minors and visibly intoxicated persons;
(b) Legal
forms of identification for purchasing alcohol;
(c) How to
properly check identification, and how to recognize false or altered
identification;
(d) The
requirement that anyone who appears to be under the age of 26 years must show
valid identification. If the licensee’s house policy requires that they check
customers who appear to be older than 26 years, the licensee must include that
information;
(e)
Recommended approaches for refusing sales of alcohol to minors or visibly
intoxicated persons;
(f) A
review of the consequences for selling to minors, and the importance of not
selling alcohol to minors or visibly intoxicated persons; and
(g) A
review of house policies on alcohol sales. Each licensee must ensure that
his/her employees receive training that covers the licensee’s own house
policies.
(5)
Maintenance of Responsible Vendor Status. To retain Responsible Vendor
certification, a licensee must:
(a)
Continue to meet all of the qualifying standards listed in Section (3) of this
rule; and
(b) Require
an Off-Premises Sales employee who sold alcohol to a minor or failed to
properly verify identification to complete a clerk training course as required
by OAR 845-009-0145, Clerk Training Courses; require an on-premises employee
who sold alcohol to a minor or failed to properly verify identification to
complete a training course that covers all the topics listed in Section (4) of
this rule or a Commission-approved Alcohol Server Education course within 45
days of official Commission notification of the violation.
(6)
Sanctions. If the licensee’s employee sells to a minor and the licensee is a
certified Responsible Vendor who has all program standards in place, the
Commission will not cancel the license of the licensee, or deny issuance of a
license to the person who holds the retail license. The licensee will be
eligible for reduced sanctions based on OAR 845-006-0500, Suspensions and Civil
Penalties.
(7)
Licensee Removal from Program and Reinstatement. The licensee is removed from
the program in the following circumstances:
(a) For a
sale to a minor or failure to properly verify identification by a licensee or
employee, if the licensee did not have all of the Responsible Vendor standards,
except for the posting requirements in subsection (3)(c) and (3)(d), in place
at the time of the violation. The licensee may reapply for the program one year
after the violation is ratified.
(b) For a
sale to a minor or failure to properly verify identification by a licensee or
employee, if aggravating circumstances (as referenced in subsection (3)(g)) are
present. The licensee may reapply for the program in one year.
(c) For a
second sale to a minor or failure to properly verify identification by a
licensee personally within a two year period. The licensee may reapply for the
program in one year.
(d) For a
Category I or II violation by the licensee personally. The licensee may not
reapply for the program. For a Category I or II violation by an employee, the
licensee is removed from the program, but may reapply for the program in one
year.
Stat.
Auth.: ORS 471, including 471.030, 471.040 & 471.730(1) & (5)
Stats.
Implemented: ORS 471.344
Hist.: OLCC
19-2000, f. 12-6-00, cert. ef. 1-1-01; OLCC 14-2002, f. 10-25-02 cert. ef.
11-1-02; OLCC 1-2005, f. 4-21-05, cert. ef. 5-1-05; OLCC 1-2005, f. 4-21-05,
cert. ef. 5-1-05; OLCC 12-2011, f. 12-6-11, cert. ef. 1-1-12
Rule Caption: Amendment allowing more flexibility in advertising methods when filling retail
sales agent vacancies.
Adm. Order No.: OLCC 13-2011
Filed with Sec. of State: 12-6-2011
Certified to be Effective: 1-1-12
Notice Publication Date: 10-1-2011
Rules Amended: 845-015-0120
Subject: This rule describes the Commission’s standard
procedure for seeking applications from the public to fill a retail sales agent
vacancy. Amendments have been made to section (2) of this rule regarding the
methods used to advertise retail sales agent vacancies. Since the rule was last
substantively amended (in 2003), advertising has evolved to reflect today’s
technological advances. The language requiring advertisements to be placed in
printed newspapers has been deleted, and replaced with language that allows for
flexibility in advertising methods, including the now more commonly used types
of online media.
Rules Coordinator: Jennifer Huntsman—(503) 872-5004
845-015-0120
Retail
Sales Agent Selection Procedure
(1) When
the Commission fills a retail sales agent vacancy other than as OAR
845-015-0125(2) describes, the Commission seeks applications from the public.
(2) When
seeking applications from the public, the Commission advertises to fill a
vacancy. The Commission may publish its intent to fill a vacancy via a variety
of methods, i.e. internet postings, other online media, or newspapers.
(3) After
an application deadline, all applications will be screened according to
selection criteria in OAR 845-015-0125 and qualified applicants will be
selected for interview. After reviewing applications and screening results, an
interview committee conducts personal interviews. The interview committee
scores the applicants and recommends finalists who are most qualified based on
the selection criteria in 845-015-0125. From the finalists, the Commission
appoints a retail sales agent using the criteria in 845-015-0125. A public
presentation at a Commission meeting may be required. Advance notice of the
public meeting date will be given to all finalists.
(4) An
appointed retail sales agent must submit a retail liquor store improvement plan
for approval, enter into a Retail Sales Agent Agreement, purchase fixtures and
equipment at an established price or provide fixtures and equipment where none
are available for purchase, and begin operation of a retail liquor store on the
date the Commission specifies. If an appointed retail sales agent cannot
purchase, rent or lease, and equip an approved location and begin operation by
the required date, the Commission(ers) may select another applicant from the
list of finalists.
Stat.
Auth.: ORS 471, 471.030, 471.730(1) & (5)
Stats.
Implemented: ORS 471.750(1)
Hist.: LCC
20-1986, f. 10-16-86, ef. 1-1-87; OLCC 2-2003, f. 1-27-03, cert. ef. 2-1-03,
Renumbered from 845-015-0022; OLCC 10-2006, f. 7-19-06, cert. ef. 8-1-06, OLCC
13-2011, f. 12-6-11, cert. ef. 1-1-12
Rule Caption: Amendment implementing statutory changes removing mandatory minimum case for
customer special orders of distilled spirits.
Adm. Order No.: OLCC 14-2011
Filed with Sec. of State: 12-6-2011
Certified to be Effective: 1-1-12
Notice Publication Date: 10-1-2011
Rules Amended: 845-015-0185
Subject: This rule describes the Commission’s procedures for
special orders for distilled spirits by customers. Previously there was a one
case minimum for such orders. Senate Bill (SB) 944 has passed and eliminates
the one case minimum order requirement in some circumstances. SB 944 amends
both ORS 471.175 governing distilled spirits purchases by Full On-Premises
Sales licensees and ORS 471.750 governing purchases by any person through a
retail liquor store. In both statutes, the amendments prohibit the Commission
from requiring the purchase of more than one container if: a) the retail price
is a minimum of $30 per container (adjusted annually based on CPI); b) the
product is available through a U.S. distributor with only a minimum case order required;
c) the product is not regularly stocked by the Commission; and d) is ordered in
a 750 milliliter container if available. This rule was amended to bring it into
statutory compliance effective January 1, 2012.
Rules Coordinator: Jennifer Huntsman—(503) 872-5004
845-015-0185
Special
Orders for Distilled Spirits
Customers
may order distilled spirits products or container sizes that the Commission
does not carry in the regular product line. Minimum order quantities may apply.
For special orders, the customer pays the wholesale cost, the average handling
and freight costs per case and the regular markup. The Commission sets the
average handling and freight costs from an annual review of these costs for
special orders.
Stat.
Auth.: ORS 471, including 471.030, 471.175, 471.730(1) & (5)
Stats.
Implemented: ORS 471.175 & 471.750
Hist.: LCC
30-1986, f. 11-20-86, ef. 1-1-87; OLCC 21-1991, f. 12-19-91, cert. ef. 1-1-92;
OLCC 5-1992, f. 4-30-92, cert. ef. 5-1-92; OLCC 2-2003, f. 1-27-03, cert. ef.
2-1-03, Renumbered from 845-015-0100; OLCC 14-2011, f. 12-6-11, cert. ef.
1-1-12
Rule Caption: Amend and adopt rules to update and modernize the distilled spirits retail
store system.
Adm. Order No.: OLCC 15-2011
Filed with Sec. of State: 12-6-2011
Certified to be Effective: 1-1-12
Notice Publication Date: 10-1-2011
Rules Adopted: 845-015-0210
Rules Amended: 845-015-0101, 845-015-0190, 845-015-0196
Subject: Staff’s goal with this rule package is to enhance
the distilled spirits retail system within the existing context of a control
state structure. By updating and modernizing the system the Commission will
enhance its ability to both keep up with customers’ growing expectations and
provide enough incentive to attract & retain effective liquor store agents.
This in turn will lead to optimal revenue generation for the state of Oregon.
The amendments in this rule package provide the flexibility to update the
current business model in two main areas: 1) Updating the retail liquor agents’
resignation buy-out program – the amendments to OAR 845-015-0190
Resignation Buy-Out Program for Retail Liquor Agents increase the standard
buyout percentage to three percent and for those with a current outstanding
Annual Evaluation, four percent. 2) Building in additional flexibility to
accommodate future pilot programs – to meet this goal the Commission
adopted OAR 845-015-0210 Pilot Programs which gives the Commission the
flexibility to test new retail sales models through a pilot program of up to
three years duration. Further amendments include OAR 845-015-0196 Appointment
of a Temporary Agent, in order to expand the circumstances under which the
Commission may appoint temporary agents beyond just when a current agent
becomes unable to operate their liquor store, and housekeeping amendments to
OAR 845-015-0101 Definitions.
Rules Coordinator: Jennifer Huntsman—(503) 872-5004
845-015-0101
Definitions
As used in
OAR chapter 845, division 015:
(1) “Commission”
includes the 5-member body of Commissioners appointed by the Governor, the
administrator (director) and agency staff. Any of the actions or decisions
specified in this division may be delegated to the administrator (director) as
provided in ORS 471.040(2).
(2) “Disabled
Retail Sales Agent” is one who has a physical or mental impairment that has
continued more than one year or is permanent that prevents a retail sales agent
from properly performing contractual duties. The Commission determines retail
sales agent disability after reviewing medical reports from the retail sales
agent’s physician. The Commission may require additional medical information
from a Commission-selected physician.
(3) “Full
On-Premises Sales Licensee” means any person or entity holding a Full
On-Premises Sales license.
(4) “Retail
Liquor Store” is a premises or a specific area in a premises the Commission
approves for the sale of packaged distilled spirits for off-premises
consumption, other than an Oregon licensed distillery or portion of such a
distillery which has been approved for the sale of packaged distilled spirits
manufactured by the distillery.
(5) “Retail
Sales Agent” or “Agent” is an individual person appointed by the Commission who
enters into a retail sales agent agreement to sell packaged distilled spirits
on behalf of the Commission in a retail liquor store.
(6) “Retail
Sales Agent Agreement” is a written contract between the Commission and a
retail sales agent that specifies the terms, conditions, and obligations
between both parties.
(7) “Temporary
Retail Sales Agent” or “Temporary Agent” is an individual person selected by
the Commission to temporarily operate a retail liquor store.
Stat.
Auth.: ORS 471, 471.030, 471.730(1) & (5)
Stats.
Implemented: ORS 471.750 & 471.752
Hist.: LCC
25-1980, f. 9-30-85, ef. 1-1-81; LCC 9-1985, f. 11-6-85, ef. 1-1-86; Renumbered
from 845-015-0040; LCC 23-1986, f. 10-16-86, ef. 1-1-87; OLCC 2-2003, f.
1-27-03, cert. ef. 2-1-03, Renumbered from 845-015-0007; OLCC 10-2006, f.
7-19-06, cert. ef. 8-1-06; OLCC 15-2011, f. 12-6-11, cert. ef. 1-1-12
845-015-0190
Resignation
Buy-Out Program for Retail Sales Agents
(1)
Purpose. The purpose of the Resignation Buy-Out Program is to provide a
monetary benefit to all retail sales agents when they resign. Retail sales
agents receive the buy-out, in part, to recognize their contribution in
building a successful business.
(2)
Definitions.
(a) “Solicit,”
“solicitation” and “soliciting” have the meaning given them under OAR
845-015-0145. These terms also include any act or contact directed at a
specific business, Full On-Premises Sales licensee or other like entity for the
purpose of asking, encouraging, suggesting, urging or persuading a specific
business, Full On-Premises Sales licensee or other entity to purchase distilled
spirits from a particular retail liquor store.
(b) “Full
On-Premises Sales licensee” means any person or entity holding a Full
On-Premises Sales license.
(c) “Commercial
Accounts” means any business or association that purchases more than fifty 750
ml bottles of distilled spirits from the store in the twelve months immediately
preceding turnover of the store to the incoming agent.
(d) “Domestic
Partner” means an individual who, along with another individual of the same
sex, has received a Certificate of Registered Domestic Partnership pursuant to
the Oregon Family Fairness Act.
(3)
Calculating the Buy-Out. The Resignation Buy-Out Program requires the incoming
retail sales agent to pay the outgoing agent, or the agent’s estate, an amount
of money (called the buy-out). Except as provided in section (4), the
Commission calculates the buy-out by taking three percent of the stores average
annual gross distilled spirits sales for the last five years. If a Retail Sales
Agent’s most current Annual Evaluation is outstanding, they will be eligible
for a four percent buy-out percentage. The Commission includes the buy-out
amount as part of the financial requirement in the information sheet that all
applicants receive.
(4)
Recruiting Qualified Applicants. The outgoing agent may supplement the
Commission’s recruiting process to assure finding qualified applicants. If the
Commission’s recruiting process does not generate a qualified applicant the
outgoing agent will choose to postpone the resignation or to accept a lower
buy-out amount. If the agent chooses to accept a lower buy-out, then the
outgoing agent and the Commission will agree on a reasonable buy-out amount
reduction. The Commission will then re-advertise the store vacancy with the
reduced buy-out amount.
(5) Paying
the Buy-Out. An incoming agent must pay a buy-out if the effective date of the
incoming agent’s appointment occurs when the program is in effect. The incoming
agent provides payment to the outgoing agent once the Commission has estimated
any debt reimbursements to the Commission or the State of Oregon. As a
condition of eligibility for the buy-out, the outgoing agent must allow the
incoming agent to spend a minimum of 12 working days at the store working
productively together before the store takeover, unless the incoming agent
declines the opportunity in writing. During the 12-day period, the outgoing
agent will introduce the incoming agent to Full On-Premises Sales licensees and
commercial accounts, and orient the incoming agent to all aspects of the store
operation except the required training and information provided by Commission
staff. The Commission may waive the buy-out requirement at the written request of
the outgoing agent.
(6) Family
Transfer of Retail Liquor Store When Agent Dies or is Disabled. If an agent
dies or becomes unable to operate a retail liquor store due to the agent’s
disability, ORS 471.752(2) allows the Commission to give preference to a
qualified surviving spouse, Domestic Partner, or child, or a qualified spouse,
Domestic Partner, or child of the disabled agent, in the appointment of a
successor agent. If the Commission does appoint a spouse, Domestic Partner, or
child in this situation, the Commission may waive the buy-out requirement at
the request of the outgoing agent or the agent’s estate after the Commission
has estimated any debt reimbursements to the Commission or the State of Oregon.
(7)
Probationary Agents. Except as provided in section (9), an agent who resigns
during their probationary period is eligible for a buy-out.
(8)
Relocating, Adding, or Closing Stores. The Commission reserves the right to
relocate any store, and to add or close stores. Neither the State of Oregon nor
the Commission is liable for any changes in the volume of distilled spirits
sales that may occur following the relocation of one or more stores, or from
the addition or closure of one or more stores.
(9)
Exceptions. Despite sections (1) and (3), a retail sales agent is not eligible
for a buy-out if:
(a) The
Commission has terminated the agent for cause relating to fiscal
irresponsibility, a history of high shortages exists, or the final estimated
audit shortage exceeds the estimated amount of compensation due that agent. In
these situations, the incoming agent will be instructed to hold payment until
the Commission calculates any dollars owed the Commission or the State of
Oregon. At that time the Commission will instruct the incoming agent as to the
disbursal of the buy-out fund to the outgoing agent and the Commission. Any
amount sent to the Commission in excess of the amount due to the Commission or
the State of Oregon will be returned to the outgoing agent upon final financial
settlement;
(b) The agent
is under suspension;
(c) The
agent is a temporary retail sales agent;
(d) The
Commission takes over a store for reasons other than suspension or termination.
In this situation, the outgoing agent is not eligible for a buy-out until the
agent resigns and a permanent incoming agent is appointed and takes over the
store; or
(e) The
store does not turn over during the time the program is in effect; turnover
occurs on the date the Commission conducts the final audit of the permanent
outgoing agent.
(10) Non-Compete
Provision. If an outgoing agent participates in the buy-out program, the
outgoing agent shall not solicit any Full On-Premises Sales licensee or
commercial account (customers) of the retail liquor store the outgoing agent is
leaving (store) for the purpose of selling or attempting to sell distilled
spirits to such customers. The outgoing agent is also prohibited from using a
customer list or any other information about the stores customers to assist any
agent (other than the incoming agent) in soliciting the stores customers for
the purpose of selling distilled spirits. The outgoing agent recognizes that
she/he receives consideration for compliance with this section. The
prohibitions in this section:
(a) Are
limited to a two-year period. The Commission calculates the two-year
prohibition beginning on the date the store is turned over to the incoming
agent;
(b) Relate
only to Full On-Premises Sales licensees and commercial accounts that have made
a purchase from the store within the twelve months immediately preceding
turnover of the store to the incoming agent;
(c) Apply
only within:
(A) A
geographic radius of ten miles from the location of the store if the store is
located in a metropolitan or suburban area;
(B) A
geographic radius of twenty-five miles from the location of the store for all
other areas of the state;
(d) Do not
prohibit an agent’s ability to advertise under OAR 845-015-0130.
(11)
Violation of Section (10). If, during the two-year period:
(a) An
outgoing agent violates section (10) of this rule, the incoming agent may take
legal action against the outgoing agent;
(b) An
outgoing agent violates section (10) of this rule, the Commission may take
legal action against the outgoing agent;
(c) The
Commission terminates the Resignation Buy-Out Program, the non-compete
provisions in section (10) remain in effect.
(12) No
Contract Rights in Buy-Out. No agent shall have any entitlement to, or
expectation of receiving, any buy-out. The institution and continuation or
termination of the buy-out program constitutes unilateral regulatory action by
the Commission, and gives no agent any contractual right or expectation in any
buy-out payment. The Commission reserves the right to repeal or modify this
rule, or otherwise terminate the buy-out program at any time.
Stat.
Auth.: ORS 471, including 471.030, 471.040, 471.730(1) (5)
Stats.
Implemented: ORS 471.750 & 471.752(2)
Hist.: OLCC
14-1996, f. 10-1-96, cert. ef. 1-1-97; OLCC 8-1998(Temp), f. & cert. ef.
9-18-98 thru 3-16-99; OLCC 4-1999, f. 2-16-99, cert. ef. 3-17-99; OLCC 19-2000,
f. 12-6-00, cert. ef. 1-1-01; OLCC 2-2003, f. 1-27-03, cert. ef. 2-1-03,
Renumbered from 845-015-0032; OLCC 9-2008, f. 6-12-08, cert. ef. 7-1-08; OLCC
15-2011, f. 12-6-11, cert. ef. 1-1-12
845-015-0196
Appointment
of a Temporary Sales Agent
(1) The
Commission may appoint a temporary agent or operate a store temporarily with
Commission staff when the Commission determines a retail sales agent is unable
to operate a retail liquor store, is suspended, or a retail sales agent
agreement is proposed for termination. In these circumstances the Commission
considers any candidate for temporary agent nominated by a retail sales agent
but may choose someone else. A temporary agent or Commission staff operates a
retail liquor store until the Commission determines the current retail sales
agent can resume store duties or until a new retail sales agent is appointed
and can assume retail liquor store operations.
(2) The
Commission may also appoint a temporary agent or may operate a store
temporarily with Commission staff when a new store has been established and the
retail sales agent has not yet been selected or has been selected but is unable
to begin operating the store, or in other similar circumstances where the
Commission finds it necessary to do so.
(3) All of
the rules that apply to a retail sales agent apply to a temporary agent except
OAR 845-015-0110, 845-015-0120 and 845-015-0125.
Stat.
Auth.: ORS 471, 471.030, 471.730(1) & (5)
Stats.
Implemented: ORS 471.750(1)
Hist.: LCC
15-1978, f. 11-30-78, ef. 12-1-78; Renumbered from 845-010-0347; LCC 16-1986,
f. 10-16-86, ef. 1-1-87; OLCC 2-2003, f. 1-27-03, cert. ef. 2-1-03, Renumbered
from 845-015-0030; OLCC 15-2011, f. 12-6-11, cert. ef. 1-1-12
845-015-0210
Pilot
Programs
(1) The
Commission may establish pilot programs of up to three years duration in order
to test new marketing concepts or retail sales models or to respond to
fluctuations in customer demand for distilled spirits products. As part of a
pilot program the Commission may establish pilot liquor stores and may appoint
retail sales agents to operate the pilot liquor stores.
(2) All
statutes and administrative rules governing retail liquor agents will apply to
such pilot programs, with the following exceptions:
(a) OAR
845-015-0110 Establishment of a Retail Liquor Store;
(b) OAR
845-015-0120 Retail Sales Agent Selection Procedure;
(c) OAR
845-015-0135 Public Opinion on Retail Liquor Store Location;
(d) OAR
845-015-0140 Hours and Days of Operation;
(e) OAR
845-015-0190 Resignation Buy-Out Program for Retail Liquor Agents;
(f) OAR
845-015-0193(1) & (2) Terminating an Agency Agreement.
(3) The
Retail Operations Manual, including any Pilot Program Appendix, and other
relevant Commission policies will apply to the pilot program, unless otherwise
provided in the Pilot Program Agreement.
(4)
Measuring Success of a Pilot Program. Factors the Commission will consider in
measuring the success of a pilot program include but are not limited to:
(a)
Economic viability of the pilot program’s retail sales model, for both retail
sales agents and the Commission;
(b) Public
safety impacts;
(c) Public
response to the pilot program, including customer satisfaction and convenience.
Stat.
Auth.: ORS 471, 471.030, 471.730(1) & (5)
Stats.
Implemented: ORS 471.750(1)
Hist.: OLCC
15-2011, f. 12-6-11, cert. ef. 1-1-12
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, 2011.
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