Chapter 471

 

      Chapter 471

 

ATTY. GEN. OPINIONS: Employment by OLCC of staff member as “hearings advocate” at certain OLCC contested case hearings, (1983) Vol 44, p 1

 

LAW REVIEW CITATIONS: 16 WLR 479 (1979)

 

      471.030

 

NOTES OF DECISIONS

 

      With respect to issuance or denial of licenses, the commission must be guided by its duty to protect the health, safety and welfare of the people and to make reasonably available to the people the product which is the subject of the license. Sun Ray Drive-in Dairy, Inc. v. Ore. Liquor Control Comm., 20 Or App 91, 530 P2d 887 (1975)

 

      Where OLCC had duty to interpret and enforce provisions of this section and ORS 471.730, Commission was necessary and indispensable party in suit brought by retail wine sellers against wholesale sellers for declaratory judgment that certain dock sales were in violation of Liquor Control Act. Pike v. Allen International Ltd., 287 Or 55, 597 P2d 804 (1979)

 

LAW REVIEW CITATIONS: 4 EL 186, 196, 201, 215 (1974)

 

      471.130

 

NOTES OF DECISIONS

 

      Knowledge of the prospective purchaser’s age is not required for suspension of a license to sell liquor for violation of this section. Plaid Pantries, Inc. v. Ore. Liquor Control Comm., 16 Or App 199, 517 P2d 1192 (1974)

 

      One of purposes of this section is to protect safety and health of people of state, including persons who may be killed or injured by inebriated minors. Davis v. Billy’s Con-Teena, Inc., 284 Or 351, 587 P2d 75 (1978)

 

      Where complaint alleged that tavern owners sold kegs of beer to two minors without requiring proof of age, and that decedent was killed by automobile driven by another minor who consumed beer from the kegs and became intoxicated, allegation was sufficient to state cause of action of negligence per se for violation of this section. Davis v. Billy’s Con-Teena, Inc., 284 Or 351, 587 P2d 75 (1978)

 

LAW REVIEW CITATIONS: 23 WLR 93, 102 (1987)

 

      471.186

 

NOTES OF DECISIONS

 

      Holder of retail license under section not permitted to purchase and store wine in central warehouse facility for purpose of later distribution to retail stores. Clackamas Grocery Outlet Warehouse v. OLCC, 251 Or App 329, 283 P3d 936 (2012), Sup Ct review denied

 

      471.235

 

      See also annotations under ORS 471.240 in permanent edition.

 

ATTY. GEN. OPINIONS: “Off the dock” pricing by wholesale wine or malt beverage licensee, (1973) Vol 36, p 661

 

      471.290

 

      See annotations under ORS 471.311.

 

      471.295

 

      See annotations under ORS 471.313.

 

      471.311

(formerly 471.290)

 

NOTES OF DECISIONS

 

      Provision requiring application to contain such other “pertinent information” as commission requires is not unconstitutionally vague since statutes describing grounds for refusing licensure provide sufficient guidance to agency. Von Weidlein Intl., Inc. v. Young, 16 Or App 81, 514 P2d 560, 515 P2d 936, 517 P2d 295 (1973), Sup Ct review denied

 

      471.313

(formerly 471.295)

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 472.160)

 

      The commission need not issue all of its statutory quota of licenses to all qualified applicants on a first-come, first-served basis, and could properly consider the “public interest or convenience” in terms of the future, as well as the present. Battle Creek Golf Course v. Ore. Liquor Control Comm., 21 Or App 179, 534 P2d 204 (1975)

 

      The order refusing an applicant must clearly and precisely state what the commission found to be the facts and why those facts lead it to the decision it makes. Graham v. Ore. Liquor Control Comm., (1975) 20 Or App 97, 530 P2d 858; Battle Creek Golf Course v. Ore. Liquor Control Comm., 21 Or App 179, 534 P2d 204 (1975)

 

      Evidence, inter alia, that applicant stated he would go “under the table” to buy a license demonstrated lack of honesty in dealings with public bodies and was sufficient to show that applicant was not of good moral character. Schmitz v. OLCC, 30 Or App 563, 567 P2d 591 (1977)

 

      Public interest does not include preventing passerby exposure to consumption of alcoholic beverages. Red Robin Enterprises v. OLCC, 55 Or App 720, 639 P2d 710 (1982)

 

In general

 

      For the purposes of this section, conviction occurs when a party has had judgment entered and the conviction will stand until and unless reversed on appeal. Sportservice Corp. v. Ore. Liquor Control Comm., 15 Or App 226, 515 P2d 731 (1973), Sup Ct review denied

 

      The language “has reasonable ground to believe” does not require finality of a conviction by exhaustion of appeal. Sportservice Corp. v. Ore. Liquor Control Comm., 15 Or App 226, 515 P2d 731 (1973), Sup Ct review denied

 

      Provisions allowing refusal of license if sufficient licensed premises are in locality or if license is not demanded by public convenience are not enforceable in absence of agency rule providing statutory terms with greater specificity. Sun Ray Drive-in Dairy, Inc. v. Ore. Liquor Control Comm., 16 Or App 63, 517 P2d 289 (1973)

 

      The negative context of this section implies that an applicant is entitled to a license so long as certain circumstances set out in the statute or implemental regulations are not shown to be true. Sun Ray Drive-in Dairy, Inc. v. Ore. Liquor Control Comm., 16 Or App 63, 517 P2d 289 (1973)

 

ATTY. GEN. OPINIONS

 

In general

 

      Sanitation inspections by Oregon Liquor Control Commission and Health Division, (1974) Vol 37, p 123

 

LAW REVIEW CITATIONS

 

In general

 

      53 OLR 465 (1974)

 

      471.315

 

NOTES OF DECISIONS

 

      The language “has reasonable ground to believe” does not require finality of a conviction by exhaustion of appeal. Sportservice Corp. v. Ore. Liquor Control Comm., 15 Or App 226, 515 P2d 731 (1973), Sup Ct review denied

 

      False representation or statement made to induce commission action need not be intentional, nor is it required that commission believe erroneous information. Von Weidlein Intl., Inc. v. Young, 16 Or App 81, 514 P2d 560, 515 P2d 936, 517 P2d 295 (1973), Sup Ct review denied

 

      Knowledge of the prospective purchaser’s age is not required for suspension of a license to sell liquor for violation of ORS 471.130. Plaid Pantries, Inc. v. Ore. Liquor Control Comm., 16 Or App 199, 517 P2d 1192 (1974)

 

      A license granted under this chapter may be suspended for selling liquor to a minor only if this sale was made with knowledge of the minor’s age, or with reasonable ground to believe the purchaser was a minor. Plaid Pantries, Inc. v. Ore. Liquor Control Comm., 16 Or App 199, 517 P2d 1192 (1974)

 

      Commission is not foreclosed from prohibiting by rule isolated insanitary conditions. Taylor’s Coffee Shop v. Oregon Liquor Control Comm., 28 Or App 701, 560 P2d 693 (1977), Sup Ct review denied

 

      Reasons for prehearing suspension of liquor license under ORS 183.430 must be at least as substantial as those which would justify suspension under general suspension statute, this section. Marcoules v. OLCC, 91 Or App 573, 756 P2d 661 (1988)

 

ATTY. GEN. OPINIONS: Sanitation inspections by Oregon Liquor Control Commission and Health Division, (1974) Vol 37, p 123

 

      471.331

 

NOTES OF DECISIONS

 

      “Adverse neighborhood impact” includes serious and persistent problems involving disturbances, lewd or unlawful activities or noise, either in premises of licensee or involving patrons of licensee in immediate vicinity of premises. El Rio Nilo, LLC v. Oregon Liquor Control Commission, 240 Or App 362, 246 P3d 508 (2011)

 

      To determine amount of time that licensee has to request hearing, period of notification begins on date on which notice is mailed. El Rio Nilo, LLC v. Oregon Liquor Control Commission, 240 Or App 362, 246 P3d 508 (2011)

 

      471.351

 

ATTY. GEN. OPINIONS

 

Under former similar statute (ORS 472.170)

 

      Right to enter premises at any time does not violate right under Fourth Amendment to United States Constitution against warrantless search because agency employees may not use force to effect entry. Eddie’s Supper Club, Inc. v. Ore. Liquor Control Comm., 23 Or App 493, 543 P2d 19 (1975)

 

      471.394

 

ATTY. GEN. OPINIONS

 

Under former similar statute (ORS 471.452)

 

      “Off the dock” pricing by wholesale wine or malt beverage licensee, (1973) Vol 36, p 661

 

      471.410

 

NOTES OF DECISIONS

 

      This section is intended to protect minors from the evils of alcohol and was not (when applied with ORS 471.620) intended to protect the public from injuries caused by intoxicated minors. Wiener v. Gamma Phi Chapter, ATO Frat., 258 Or 632, 485 P2d 18 (1971)

 

      A license granted under this chapter may be suspended for selling liquor to a minor only if this sale was made with knowledge of the minor’s age, or with reasonable ground to believe the purchaser was a minor. Plaid Pantries, Inc. v. Ore. Liquor Control Comm., 16 Or App 199, 517 P2d 1192 (1974)

 

      Tavern keeper is negligent if, at time of serving drinks to customer, that customer is visibly intoxicated, because at that time it is reasonably foreseeable that when customer leaves tavern he or she will drive an automobile. Campbell v. Carpenter, 279 Or 237, 566 P2d 893 (1977)

 

      As Liquor Control Act, of which this section is part, was intended to regulate commercial sales of liquor and not its furnishing in social settings, civil liability cannot be predicated upon violation of this section. Johnson v. Paige, 47 Or App 1177, 615 P2d 1185 (1980)

 

      Where defendant furnishes alcohol to two minors in one incident he can be charged with and found guilty of two violations. State v. Ritner, 66 Or App 735, 675 P2d 1085 (1984)

 

      Minimum mandatory penalty provisions of this section do nothing more than establish minimum level of punishment which court is free to exceed within confines of punishment authorized for Class A misdemeanor. State v. Ritner, 66 Or App 735, 675 P2d 1085 (1984)

 

      Where “dram shop” case was pleaded as common law negligence claim, jury instruction in language of this section was erroneous, because it did not inform jury that plaintiff had to prove defendant could reasonably have foreseen that customer, on leaving tavern, would drive car. Chartrand v. Coos Bay Tavern, 298 Or 689, 696 P2d 513 (1985)

 

      Subsection prohibiting making liquor available to visibly intoxicated person is not appropriate standard for establishing negligence per se. Hawkins v. Conklin, 307 Or 262, 767 P2d 66 (1988); Fulmer v. Timber Inn Restaurant and Lounge, Inc., 330 Or 413, 9 P3d 710 (2000)

 

      Violation of this section by directly furnishing liquor to minor does not require culpable mental state. State v. McCathern, 211 Or App 171, 154 P3d 130 (2007), Sup Ct review denied

 

      Defendant, who lived in house where party attended by minors occurred and who did not stop minors from drinking alcohol at party, did not make available alcohol to minors at party because defendant did not control supply of alcohol to which defendant could authorize access by minors. State v. James, 266 Or App 660, 338 P3d 782 (2014)

 

LAW REVIEW CITATIONS: 7 WLJ 472, 481-497 (1971); 22 WLR 175 (1986); 23 WLR 93, 99 (1987); 77 OLR 497 (1998)

 

      471.412

 

NOTES OF DECISIONS

 

      Statutory violation does not establish negligence per se. Fulmer v. Timber Inn Restaurant and Lounge, Inc., 330 Or 413, 9 P3d 710 (2000)

 

      471.425

 

ATTY. GEN. OPINIONS: Sanitation inspections by Oregon Liquor Control Commission and Health Division, (1974) Vol 37, p 123

 

      471.430

 

NOTES OF DECISIONS

 

      Suspension of driver license of 17-year-old for possession of alcohol was not unconstitutional as statutory classification of “suspect class” or as impinging on “fundamental right.” State v. Day, 84 Or App 291, 733 P2d 937 (1987), Sup Ct review denied

 

      Where minor possesses alcoholic beverage as personal belonging or property, or where minor constructively possesses alcoholic beverage physically possessed by another, minor has personal possession of alcoholic beverage. State v. Regnier, 229 Or App 525, 212 P3d 1269 (2009)

 

      471.452

 

      See annotations under ORS 471.394.

 

      471.475

 

NOTES OF DECISIONS

 

      Evidence that bottles containing gin were found under bar in tavern licensed for sale of malt beverages was insufficient to establish violation of this section where no finding was made that licensees stored gin for fee or charge. Hoehne v. OLCC, 37 Or App 621, 588 P2d 87 (1978)

 

      471.565

(formerly 30.950)

 

NOTES OF DECISIONS

 

      This section does not create claim in favor of intoxicated patrons injured off premises as result of own intoxication against OLCC licensees who serve them when visibly intoxicated. Sager v. McClenden, 296 Or 33, 672 P2d 697 (1983)

 

      This section sets standard for civil liability to third parties as being “visibly intoxicated” which is not necessarily the same as being “under the influence of intoxicating liquor”; testimony of officer concerning blood alcohol standard for being under the influence of intoxicating liquor was not relevant. Chartrand v. Coos Bay Tavern, 68 Or App 879, 683 P2d 139 (1984), aff’d 298 Or 689, 696 P2d 513 (1985)

 

      When the act of serving intoxicated persons is found to meet requisite disregard of social obligations, award of punitive damages is allowable under this section. Pfeifer v. Copperstone Restaurant and Lounge, 71 Or App 599, 693 P2d 644 (1984)

 

      The term “visibly intoxicated” in this section includes intoxication by controlled substances or alcohol or both. Blunt v. Bocci, 74 Or App 697, 704 P2d 534 (1985), Sup Ct review denied

 

      When statute provides that tavern owner is liable for acts of person who has been served alcoholic liquor while visibly intoxicated, legislature has resolved foreseeability issue as matter of law, and plaintiff protected by such statute need not resort to any concepts of negligence. Chartrand v. Coos Bay Tavern, 298 Or 689, 696 P2d 513 (1985)

 

      Recovery for damages caused by intoxicated patron or guest is limited to damages caused by drunk driving. Gattman v. Favro, 306 Or 11, 757 P2d 402 (1988)

 

      Stepfather buying drinks for stepson in public tavern was “social host.” Solberg v. Johnson, 306 Or 484, 760 P2d 867 (1988)

 

      To state common law negligence claim that is not barred by [former] ORS 30.950, plaintiff must allege that licensee or permittee served alcohol to the person who injured plaintiff when that person was visibly intoxicated. Hawkins v. Conklin, 307 Or 262, 767 P2d 66 (1988)

 

      Social host is not barred from seeking damages for third-party defendant’s service of visibly intoxicated social guest. Grady v. Cedar Side Inn, Inc., 154 Or App 622, 963 P2d 36 (1998), aff’d 330 Or 42, 997 P2d 197 (2000)

 

      Where evidence indicated that defendant had control over alcohol supply from which visibly-intoxicated guest consumed alcohol, defendant “served or provided” guest with alcohol and material issue of fact existed as to whether defendant was liable for harm caused by intoxicated guest which precluded rendition of summary judgment. Baker v. Croslin, 264 Or App 196, 330 P3d 698 (2014), aff’d 359 Or 147, 376 P3d 267 (2016)

 

      Plaintiff, who was injured in motor vehicle accident by defendant, who consumed alcohol at home of social host prior to driving, does not have right of action against social host under this section because this section does not impose statutory duty or liability on social host and does not provide right of action against social host that has elements independent of plaintiff’s claim for common-law negligence. Deckard v. Bunch, 358 Or 754, 370 P3d 478 (2016)

 

LAW REVIEW CITATIONS: 16 WLR 191 (1979); 23 WLR 93, 105 (1987); 24 WLR 306 (1988); 68 OLR 242 (1989); 27 WLR 829 (1991); 77 OLR 497 (1998)

 

      471.567

(formerly 30.960)

 

LAW REVIEW CITATIONS: 16 WLR 191 (1979); 23 WLR 93, 100 (1987); 27 WLR 829 (1991)

 

      471.660

 

NOTES OF DECISIONS

 

      The state is not required to move for forfeiture in the criminal proceeding but rather may choose to proceed in a separate civil action. State ex rel Haas v. One 1965 Ford Auto., Ore. License No. HBH029, 19 Or App 879, 529 P2d 410 (1974), Sup Ct review denied

 

      Where automobile was confiscated in connection with search of defendant’s home where illegal drugs were discovered, police mailed letter to defendant’s home on same day that state’s ex parte motion to confiscate automobile was granted, and letter did not inform defendant of a time or place for hearing to be held, letter was insufficient as notice. State v. Glascock, 33 Or App 217, 576 P2d 377 (1978) Sup Ct review denied

 

      Where state produced no evidence to support finding that confiscated automobile was used for unlawful transportation of narcotics, state had no right to automobile. State v. Glascock, 33 Or App 217, 576 P2d 377 (1978) Sup Ct review denied

 

      Seven-week delay in giving notice of seizure of vehicle was not timely compliance with notice requirements of this section. State v. Franklin, 47 Or App 661, 614 P2d 1229 (1980)

 

      Conflicting evidence concerning notification of vehicle seizure by means other than required by this section was insufficient basis for concluding notice was given. State v. Franklin, 47 Or App 661, 614 P2d 1229 (1980)

 

ATTY. GEN. OPINIONS: Inspection and investigation authority of Oregon Liquor Control Commission, (1974) Vol 36, p 1066

 

      471.665

 

NOTE: Repealed July 23, 1997; ORS 471.666 enacted in lieu

 

      See annotations under ORS 471.666.

 

      471.666

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 471.665)

 

      A vehicle may be forfeited under this section if the owner had knowledge that it was transporting contraband; the owner need not be convicted of possession of the contraband. Blackshear v. State, 17 Or App 364, 521 P2d 1320 (1974)

 

      Where automobile was confiscated in connection with search of defendant’s home, police mailed letter to defendant’s home on same day that state’s ex parte motion to confiscate automobile was granted, and letter did not inform defendant of a time or place for hearing to be held, letter was insufficient as notice. State v. Glascock, 33 Or App 217, 576 P2d 377 (1978) Sup Ct review denied

 

      Where state produced no evidence to support finding that confiscated automobile was used for unlawful transportation of narcotics, state had no right to automobile. State v. Glascock, 33 Or App 217, 576 P2d 377 (1978) Sup Ct review denied

 

      471.670

 

NOTE: Repealed as of January 1, 2012

 

ATTY. GEN. OPINIONS: Deduction of a “law library fee” from fines imposed for narcotics violations, (1973) Vol 36, p 373

 

      471.675

 

NOTES OF DECISIONS

 

      Evidence that one of two joint malt beverage licensees grabbed bottle of gin and poured it into sink was sufficient to establish that licensees hindered inspectors. Hoehne v. OLCC, 37 Or App 621, 588 P2d 87 (1978)

 

      471.730

 

NOTES OF DECISIONS

 

      Where OLCC had duty to interpret and enforce provisions of this section and ORS 471.040, Commission was necessary and indispensable party in suit brought by retail wine sellers against wholesale sellers for declaratory judgment that certain dock sales were in violation of Liquor Control Act. Pike v. Allen International Ltd., 287 Or 55, 597 P2d 804 (1979)

 

ATTY. GEN. OPINIONS: Sanitation inspections by Oregon Liquor Control Commission and Health Division, (1974) Vol 37, p 123

 

LAW REVIEW CITATIONS: 4 EL 199 (1974)

 

      471.745

 

LAW REVIEW CITATIONS: 4 EL 199 (1974)

 

      471.750

 

NOTES OF DECISIONS

 

      Oregon Liquor Control Commission negotiation of retail sales agreement terms with agents or representatives is permissive, not mandatory. Karson v. OLCC, 189 Or App 223, 74 P3d 1163 (2003), Sup Ct review denied

 

      471.757

 

NOTES OF DECISIONS

 

      This section provides that, in general, a licensee is just as accountable for the acts of its investors as for its own acts. Sportservice Corp. v. Ore. Liquor Control Comm., 15 Or App 226, 515 P2d 731 (1973), Sup Ct review denied

 

      The acts of a person associated with a financially interested corporation will not be imputed to the licensee unless that person is an officer, director, manager or a controlling investor in that corporation. Sportservice Corp. v. Ore. Liquor Control Comm., 15 Or App 226, 515 P2d 731 (1973), Sup Ct review denied

 

      471.770

 

NOTES OF DECISIONS

 

      Under this section, witness who testifies at Oregon Liquor Control Commission hearing under compulsion of Commission’s subpoena may not be prosecuted for any matter about which he or she testifies, despite fact that witness has not first asserted right against self-incrimination. State v. Strance, 95 Or App 488, 769 P2d 793 (1988)

 

      To be entitled to immunity under this section, witness must invoke right to refuse to testify and commission must then decide whether to issue post-invocation order. 7455 Incorporated v. OLCC, 310 Or 477, 800 P2d 781 (1990)

 

      471.775

 

ATTY. GEN. OPINIONS: Inspection and investigation authority of Oregon Liquor Control Commission, (1974) Vol 36, p 1066

 

      471.800

 

LAW REVIEW CITATIONS: 4 EL 189, 202, 207 (1974)

 

      471.810

 

ATTY. GEN. OPINIONS: Apportionment and quarterly payment of liquor revenues to cities, (1977) Vol 38, p 1025; distribution formula for Commission Account, (1978) Vol 38, p 2138

 

      471.990

 

LAW REVIEW CITATIONS: 4 EL 202 (1974)