ABLE Commission News

• Director's Statement Concerning To-Go Containers - June 14, 2021
• Rule Impact Statements - November 25, 2020
• 7th Amended Executive Order 2020-20 - November 16, 2020
• Proposed Permanent Rules - November 16, 2020
• Rule Impact Statement for Emergency Rules - June 5, 2020
• Employer Guidance for Oklahoma's Open Up and Recover Safety Plan - May 15, 2020
• For information on late renewal of certain licenses, please see the Director's statement - April 27, 2020
• Director's Statement on Delivery of Alcoholic Beverages - March 24, 2020
• Director's Statement on Restaurant Closings and Relief - 2nd AMENDED
• (Extension of Temporary Emergency Authorization of Curbside Alcohol Sales)
• Director's Statement on Event Cancellations and Returns
• Updated list - Counties allowing retail spirits sales on Sunday
• Rule Impact Statement - January 14, 2020

Farewell & Thank You
A tribute to a mentor and friend to many.

By Steven A. Barker, Deputy Director and General Counsel, Oklahoma ABLE Commission

You may or may not have noticed a different photograph accompanying this article, but it is not of me. It is a photograph of Nathan Luke Simms, a longtime employee and current Administrative Law Judge of the ABLE Commission who has announced his intention to retire March 1, 2020. With roughly five more months to enjoy working alongside my friend, I wanted to take this time as an opportunity to provide you the reader a look at someone who has never sought out the lime light on his own, but has provided decades of service to the public. He has left a lasting impression on the agency he serves and the industry it regulates.

Luke began his service career as early as possible, volunteering in the United States Army during the Vietnam War in 1970. He served as a military police officer stationed in Thailand and was honorably discharged in 1971 with the rank of specialist four. He took a liking to law enforcement, and became a law enforcement agent with the Oklahoma Alcohol Beverage Control (ABC) Board, the predecessor to the ABLE Commission. He quickly became a trusted colleague, befriending everyone he worked with. In 1985, Luke helped the agency through its first major transition post prohibition serving as both an agent and leading the licensing team when Oklahoma legalized liquor by the drink.

As a testament to Judge Simms’s boldness, he pursued a second career as an attorney, attending the Oklahoma City University School of Law, graduating in 1991 at the age of 40. I mention this deliberately, having attended law school directly as a young man I had classmates who were second career individuals as well. The added level of difficulty and stress of balancing family, work, and law school are hard to comprehend for people who have not accomplished that. Luke didn’t simply complete law school however, but managed to serve on the Law Review and graduate with honors while raising a son. Self-described as his single greatest accomplishment, Luke is quick to smile anytime his son Andrew is mentioned in conversation. Lovingly called “Grand Duke Luke” now by his son and two granddaughters, it is easy to see why he looks forward to March more than I do.

In 1991, Luke took his newly minted law degree and went right back into public service, serving as an Assistant Attorney General under the Honorable Susan Loving. After a short stint in the criminal appeals unit, he returned to his roots and went to work for the ABLE Commission. Serving the Commission as an attorney, he was appointed administrative law judge in 2000. In this role, Judge Simms took a keen interest in mentoring others. Many good lawyers who still work in and with the industry today have been the beneficiaries of his tutelage. Somehow “mentor” is not a strong enough word when describing the relationships he built with so many, most of whom he remains very good friends with today. Examples include Randy Malone, an attorney in private practice focusing on beverage alcohol, and frequently appears in front of Judge Simms. These two individuals routinely dine together simply as friends, now so many years after having been work associates. Arguably Luke’s favorite “mentoree” is John Maisch, former ABLE General Counsel that now is a faculty member at the University of Central Oklahoma. John also represents various industry members from time to time, and has remained a dear friend to Luke. If you just take a look in Luke’s office, you will see a number of photographs with John and his family around, evidence of the special relationship they continue to share. Last but certainly not least, I would be remise to not mention one of his oldest and closest friends, our Director Keith Burt. It is not common for individuals to work together for upwards of 40 years, and remain such close friends. The personal benefit I receive simply being around and included when they are together is extraordinary. I contend it is because of the way they treat each other and the persons under their employ that most full-time employees here have served continuously for at least 10 years.

When March 1, 2020 does arrive, I will have only known Luke for five years, far less than most of the friends and colleagues he has impacted during his career. However, during our time together he has taught me more about the alcohol beverage industry and the practice of law than any other single individual. He has become a dear friend to myself and my family, and I will very much miss having his guidance only a shout across the hall away. My father taught me that no one person is irreplaceable, but I fear a great test to that teaching is a mere five months away. Luke, I wish you a long and peaceful retirement, you certainly earned it.

• For information on SB608, please see the Director's statement - August 13, 2019
• Revised Proposed Emergency Rules - June 12, 2019
• Rule Impact Statement - June 12, 2019

• For information on retail spirit licensees offering "tastings" to consumers, please see the Director's statement - April 26, 2019
• For information on SB728, please see the Director's statement - April 10, 2019

• STATEMENT OF THE DIRECTOR REGARDING BROKEN PRODUCT - January 18, 2019

TRANSITIONS - October 25, 2018

Looking back on October 1st, and planning for the year come.
By Steven A. Barker, Deputy Director and General Counsel, Oklahoma ABLE Commission

It is hard to describe how happy I am to speak of October 1, 2018 in the past tense. For almost two years, that day was on my mind in some manner. I know I am not alone, as our agency staff alongside an entire industry spent an untold amount of hours preparing for the most significant change to alcohol laws in Oklahoma arguably since the end of prohibition.

Personally, I did not know what to expect to happen on October 1st. By in large, the day appeared to be an unofficial state holiday. The Anheuser-Busch Clydesdales delivered a case of beer to the State Capitol. I saw plenty of posts on social media of people purchasing their favorite beverage from a new (or favorite) retail outlet in celebration. After work, I was fortunate enough to enjoy a celebratory beer here in town. Frankly, it was a much better day than I could have imagined, and for that, I am thankful.

Nearly a month later however, and our agency’s work is far from over. With an entirely new regulatory framework in place, there will most certainly be growing pains associated with it. During the first week of October, the Commission received a high volume of formal and informal complaints from both consumers and industry members covering a wide range of alleged illegal acts, each of which must be followed through on by our enforcement staff. Additionally, our licensing and accounting teams continue their push to finalize the last minute rush for licenses.

Our agency is facing internal transitions as well. In response to the additional licensees coming online this summer, the Commission hired two new enforcement agents, alongside two additional staff members in the accounting office. The Commission also added nearly a dozen temporary employees to help with the large influx of applications. While adding these new employees has provided much needed assistance, we must also prepare for losses to key personnel in the near future. Many employees that played an integral part to the implementation of SQ 792 were also here for the implementation of liquor by the drink in 1985. These employees are now planning to retire not years from now, but months from now. It will be mission critical to ensure the institutional knowledge held by these individuals is passed on to other employees before their curtain call arrives with the Commission.

• Statement of the Director Regarding Merchandising - September 25, 2018
  
• STATUTORY DEFINITION OF VIOLENT CRIME FOR PURPOSES OF EMPLOYEE LICENSURE
• REB/REW Applicant List
• REB/REW Licenses

The successful bid received for the sale of confiscated alcohol from the ABLE Commission is $1,628.00.

Attorney General Mike Hunter recently confirmed the ABLE Commission’s authority to enforce Title 37A of the Oklahoma Statutes beginning October 1, 2018. This includes Section 3-111K, which was addressed in detail through Attorney General Opinion 2018-6. Click or tap to read the Attorney General's full Opinion.

• RULE IMPACT STATEMENT FOR PROPOSED EMERGENCY RULE
• The Commission has released its Training Certification Application for those who wish to certify their employee training program. Click or tap to download the Training Certification Application.  

The Murky Waters of Modernization - February 2018

A snapshot of today and a look forward at the year to come.

By Steven A. Barker, General Counsel, Oklahoma ABLE Commission

From the confines of ABLE Commission headquarters, rarely do consecutive minutes pass without the ring of yet another phone call coming through. The telephone calls consist of questions of every kind, streaming constantly from every tier in the industry. A liquor store owner in Jenks wants to know if they can sell tobacco in October. A grocery conglomerate based in Oklahoma City wants to know if there are restrictions where cold beer and wine can be sold in the store once the big day arrives. A beer distributor wants to discuss 3.2% beer pricing restrictions as modernization quickly approaches.

As I write this, alcoholic beverages in this state are regulated the same as they have been since 1984 through Article 28 of the Oklahoma Constitution, and Title 37 of the Oklahoma Statutes. Article 28A was created through State Question 792 in 2016, and becomes effective this October, replacing Article 28. Senate Bill 383 of the 2016 legislative session creates Title 37A and replaces Title 37 of the Oklahoma Statutes. Since the passage of both, we have completed the 2017 legislative session, which saw no less than a dozen modifications to Senate Bill 383 and the current Title 37. With the 2018 legislative session beginning February 5th, no less than two dozen alcohol related bills have been pre-filed seeking to further amend Title 37A, which will be effective beginning October 1st. Believe me I know, it is confusing. On top of it all, the Commission is attempting to overhaul its administrative code to reflect the sweeping constitutional and statutory changes, in a climate that is dynamic to say the least.

Alcohol is big business, and every single call fielded is from someone whose livelihood is affected to a significant degree because of State Question 792. It is a fine line our employees are asked to walk, between being customer service oriented and giving legal advice (which is a big no-no by the way). The most frustrating part for both Commission staff and the industry is the continued uncertainty to many of the questions. The answers can and do change. Today a convicted felon cannot obtain an employee license under any circumstance, yet a bill has been filed (again) seeking to modify that restriction significantly. Today a direct consumers permit is required to have wine shipped directly to your home, yet a bill has been filed (again) to do away with the permit altogether. Today employee training is a prerequisite for an employee license applicant beginning October 1st, but efforts are afoot to allow a 60 day grace period to obtain the training.

After the Capitol is vacated again in late May, we will have a much clearer picture of what to expect in October. One thing however is clear right now, if the transition this fall is to go smoothly, it will require patience and cooperation from both the Commission and industry.

• Pursuant to Title 75 O.S. §303(D)(2), the ABLE Commission has provided its nine (9) Rule Impact Statements, which can be accessed as one pdf document in the link below.
  • Rule Impact Statements
• The Oklahoma ABLE Commission is proposing numerous changes to its administrative rules as a result of State Question 792. A copy of the proposed changes can be found using the link below. Hard copies may be obtained at the Commission's Oklahoma City office for $5.00. For more information concerning these proposed changes, please see the Notice of Rulemaking Intent to be published in the Oklahoma Register November 15, 2017.

Of the many events happening over the summer, the Retail Liquor Association of Oklahoma's constitutional challenge to State Question 792, as well as the constitutional challenge to Senate Bill 845 have a very direct impact on the ABLE Commission. For your convenience, a link to the recent decisions in each case have been provided below.

• Oklahoma Supreme Court Order
• Western District of Oklahoma Order

OKLAHOMA CITY, OKLAHOMA, AUGUST 24, 2017: The Oklahoma ABLE Commission has uploaded its Interim License Application to its website, oklahoma.gov/able-commission. Entities such as grocery stores, convenience stores, pharmacies, and wholesalers eligible to receive an interim license on October 1, 2017 may complete and submit the application along with the applicable fee. Applications may be submitted in person or by mail at the Commission’s Oklahoma City office located at 3812 N. Santa Fe Avenue, Suite 200, Oklahoma City, Oklahoma 73118. An interim license allows wholesalers to sell and retailers to purchase and stock full strength beer and wine in their stores. Sales to the public by such interim licensees are expressly prohibited by statute until October 1, 2018.

“I am very proud of the individuals in our licensing department who have prepared the Commission to cross the first hurdle of alcohol modernization,” said Keith Burt, Director of the ABLE Commission. Burt noted further, “I was with the Commission in 1985 when the State first allowed liquor by the drink on a county option basis. While we only have half the personnel and half the budget of what we did 32 years ago, I am confident the Commission’s hard working and diligent staff will continue to meet the challenges to come as a result of State Question 792.”

For retailers applying for an interim license, this will be their first interaction with the ABLE Commission. Because alcohol is regulated differently, perhaps even more heavily than 3.2% alcohol by weight beer products, the licensing process by statute is more comprehensive. “I would simply ask interim license applicants for patience through the licensing process.” Burt said, continuing, “While we are prepared for an influx of licensing activity this fall, we cannot predict just how great that influx will be. I can assure every applicant entitled to such a license will receive one.”

A look at Oklahoma’s firm stance on felons in the alcoholic beverage industry
By Steven A. Barker, General Counsel, Oklahoma ABLE Commission

About three times a week, I will receive a phone call at my office from Jane Q. Oklahoman asking the generic question, “Can I get a liquor license if I am a convicted felon?” Typically before I can respond, the caller dives into the tale of what crime or crimes they committed. This explanation will include how long ago the offense took place, where it happened, and even why it happened in some calls. The stories these callers tell me range from the mild (selling marijuana as a 19 year old in New York City back in 1976) to the wild (kidnapping own child less than 3 years ago). When they finish, the answer I can give is the same whether their tale is from 40 years ago or yesterday, “I am sorry you are ineligible to hold an employee license through our agency.”

The restriction against licensing felons stems from Article 28 Section 10 of the Oklahoma Constitution, prohibiting the issuance of a license to sell alcoholic beverages by the individual drink to individuals who have been convicted of a felony. Article 28 in its entirety will be repealed effective October 1, 2018, and replaced with Article 28A, commonly known as Senate Joint Resolution 68, or State Question 792. Noticeably, Article 28A continues this prohibition providing that “The State of Oklahoma shall not issue a license to any person who has been convicted of a felony, or to any entity if any individual, partner, director or officer who maintains an ownership interest in the entity, has been convicted of a felony, unless otherwise provided by law.”

The Oklahoma State Statutes provide no exceptions for convicted felons seeking to obtain an employee license to work at a liquor store, or bar and restaurant. Interestingly, however, numerous statutory carve outs have taken place over the years concerning a felon’s ability to have an ownership interest in a corporation or limited liability company that holds a license to sell alcoholic beverages. See 37 O.S. §527.1. These carve outs will continue into our modern liquor law era as well. See 37A O.S. §2-147. According to our current and future statutory licensing scheme, a convicted felon may be a member of a limited liability company licensed to sell alcoholic beverages, and hold up to a 49% interest in such a company. If the felony conviction was more than 15 years ago, that individual could be the sole member of an LLC be the owner/operator of the establishment. However, no employee of that very same entity may have a felony conviction at all, regardless of how long ago the conviction was handed down.

What is perhaps most interesting to me is not the different ways in which felons are treated within the alcoholic beverage industry, but the different ways the State of Oklahoma licenses or refuses to license felons across many licensed professions. For example, the Oklahoma Supreme Court governs my own profession of practicing law. In 2012, I remember reading an opinion of the Court concerning the disciplinary proceeding of an attorney who had pled guilty to six crimes, including second degree burglary, possession of a firearm while in the commission of a felony, and reckless conduct with a firearm. This individual was suspended from the practice of law for two years and one day. On April 11, 2017, this individual’s license to practice law was reinstated by the Court. It is now possible for the convicted felon attorney to represent a different convicted felon before the ABLE Commission’s Administrative Law Judge at a hearing concerning the denial of an employee license to sell and serve an alcoholic beverages.

By Steven A. Barker, General Counsel, Oklahoma ABLE Commission

Nearly every facet of Oklahoma's alcohol laws will soon be "modernized", including regulations regarding infused alcoholic beverages. Infusion is a process of adding fruits, vegetables, or spices to an alcoholic beverage in an effort to fuse the flavor of the product to the alcoholic beverage. Currently, Oklahoma law is silent regarding this practice, however the act of "refilling" an alcoholic beverage container is expressly prohibited.

In May 2016, former ABLE Commission General Counsel John Maisch petitioned the ABLE Commission for a declaratory ruling concerning infusion. This request came after the municipal arrest of a bar manager who possessed infused alcohol. On July 15, 2016, the ABLE Commission issued its Declaratory Ruling providing that the act of infusion by a mixed beverage licensee is allowed, so long as it is done in a non-alcoholic beverage container, and subsequently served from that container to the customer. No other restrictions are placed on a mixed beverage licensee engaging in infusion at this time.

When the State's new liquor laws become effective on October 1, 2018, so will newly minted statutory requirements for the practice of infusion. First, Senate Bill 383 requires infusion to take place on the mixed beverage licensed premises, and the product must remain at the premises for storage. Second, a maximum container size of five gallons may be used, and a lid is required. Third, the infused product cannot age more than 14 days, and must be consumed within 21 days after the aging process is complete. Fourth, container cleaning reports must be kept and made available to the ABLE commission for inspection. The fifth and last requirement is that the licensee must affix a label to the container denoting the base alcohol used, the date the infusion process will be completed, and the date the product must be destroyed.

Many in the general public view Senate Bill 383 as a relaxing of the State's alcohol policies. It will be important for mixed beverage licensees engaging in infusion to note the new requirements coming as a result of modernization, which exceed those currently in place. Those licensees who violate the new infusion statutes could face administrative or criminal penalties.

By Steven A. Barker, General Counsel, Oklahoma ABLE Commission

The People have spoken. On November 8, 2016, the Oklahoma electorate overwhelmingly approved State Question 792, ushering in the era of single strength beer and the “modernization” of the State’s alcohol laws beginning October 1, 2018. It would be difficult to overstate the significance of this Constitutional Amendment as only two prior events in the State’s alcohol history rival this moment, namely the repeal of prohibition in Oklahoma in 1959, and the approval of liquor by the drink on a county option basis in 1984.

But is there a hidden cost to modernization in some parts of Oklahoma? To date, 18 of Oklahoma’s 77 counties are “dry”, meaning liquor by the drink has not been authorized by the voters in that county. For the most part, these counties are in western and southeast Oklahoma. Where then does a thirsty resident of a dry county go to enjoy a beverage? At present, a dry county resident has a couple options. First, the person (over 21 years of age of course) can always purchase the beverage of their choice at the local retail package store (liquor store) and take it home for enjoyment.

But what if this resident wants to enjoy some comradery with their beverage, or just wants a cold beer with their burger? Scattered across these 18 dry counties are restaurants and bars that sell low-point (3.2% alcohol by weight) beer by the drink to its patrons of legal age. These establishments in the State’s 18 dry counties will no longer be legally allowed to offer this service on October 1, 2018, as all beer in Oklahoma will be regulated the same regardless of alcohol content by the ABLE Commission.

Where then could a dry county resident turn to have a drink outside the home after October 1, 2018? Enter the venerable Bottle Club. A Bottle Club is a licensed establishment only available in Oklahoma’s dry counties, wherein residents may purchase a membership to the club. This membership allows for members to purchase alcoholic beverages from a retail package store, store the bottles at the club, and consume them on the club premises. If this sounds confusing, just picture supplying the alcohol to your local watering hole before the bartender serves it to you.

In years past, Oklahoma boasted many bottle clubs across the state. As recently as 2013, just three bottle clubs existed, all in McCurtain County. Today, the ABLE Commission does not have a bottle club licensee on the roster. But with single strength beer less than two years away, is it possible that the bottle club will become fashionable, or at least in demand again in the State’s dry counties?

I suppose only time will tell. Notably, 15 of the 18 dry counties voted to approve State Question 792 in November. Perhaps those counties will hold elections and vote to allow liquor by the drink prior to October 2018. Or maybe, just maybe, in the face of modernization some counties will rejuvenate an old and currently extinct license, the Bottle Club.  

The successful bids received for the sale of confiscated alcohol from the ABLE Commission are as follows:

Lot #1 sold for $1,470.00
Lot #2 sold for $1,500.00

• Oklahoma Attorney General Scott Pruitt issues opinion 2016-6 clarifying Senate Bill 424 for on and off premise consumption for legal age drinkers at licensed Oklahoma breweries. A copy of this opinion and comment from Attorney General Pruitt can be found on their website.
• The ABLE Commission requested August 19, 2016 Attorney General's Opinion.
• A copy of that letter and Senate Bill 424 (new language is underlined) are placed on the ABLE Commission website for the public to view. Since the ABLE Commission is not the only jurisdiction to enforce liquor laws, the Commission has decided to ask Oklahoma Attorney General Scott Pruitt for guidance interpreting Senate Bill 424 to provide consistent enforcement.

 

They Don't Still Make Moonshine In Oklahoma, Do They?

Joe Daniels, Special Agent in Charge McAlester Division, Oklahoma ABLE Commission

With a sharp bang and a grunt, I burst open the door to the metal building leaving a neat boot print on the face of the door. Inside I could see far more than what I expected. Two moonshine stills and a large amount of finished product. After quickly scanning the 30' by 60' building, I could see 20 oak kegs full of aging liquor, 3 fifty-five gallon barrels full of clear liquor, along with 300 empty quart Mason jars waiting to be filled. In one corner sat 3 fifty-five gallon barrels of active, working mash waiting for its time to be cooked in the nearby 200 gallon still. With all of this in view, I couldn't help but think of the question that I have been asked repeatedly over my 20 plus year career, "They don't still make moonshine in Oklahoma, do they?"

Oklahoma residents were in the moonshine business well before statehood. Prior to becoming a state, Indian Territory was designated as "dry" to protect the Native American population from the evils of alcohol, but this just made a market for the product as illegal traders in the area made moonshine commonplace. Once statehood was granted, the decision was made to continue to prohibit alcoholic beverages from the state, so Oklahoma came into existence as a liquor free zone. Once again the demand was stronger than the law, so moonshine stayed. While the rest of the nation was experimenting with prohibition, Oklahoma really didn't see any change.Moonshine was big business. 1933 brought the end of nationwide prohibition, but Oklahoma had refused to ratify the 21st amendment, so it was still business as usual with moonshine everywhere here in Oklahoma.

Only the push to bring legal liquor into the state in 1959 caused a major enforcement crackdown on the moonshiners and bootleggers’ activity, who were working somewhat openly across the state. The enforcement efforts worked and in 1959 Oklahoma ended prohibition and allowed the legal sale of alcoholic beverages. Moonshine, however did not pass gently into the night.

Even though legal liquor was available, several factors drove drinkers to seek out the now hidden producers of moonshine. These factors, including liquor stores being available only in larger towns, the cost, and the limited variety of legal alcohol, and not being able to find a product that had the "taste" desired, were all reasons to seek out the illegal vendors. Long time moonshine drinkers had developed a thirst for the illegal product and, as always, there were cooks eager to fill the orders. Although harder to find and much less open, moonshine continued to be available.

During my early years, I listened to stories from the "old men" in the community about the moonshine activity of the past, and sometimes of the present. These stories grabbed my imagination and never let go. As a teenager, I learned more about it and at times even saw first hand the secret enterprises while hunting or clearing brush. Remnants of stills, no longer in operation, were found in the backwoods near my home. Some family friends would even come for a visit and the cases of Mason jars full of clear liquid could be found in their vehicles. My curiosity began.

I was hired by the Alcohol Beverage Law Enforcement (ABLE) Commission in January of 1992 and, after training, I was assigned to work southeastern Oklahoma, the hotbed of moonshine activity in the state. I asked everyone in the agency what they knew about moonshine. I heard stories of days gone by and statements of "nobody cares about that anymore." It was clear that moonshine was still around, but it was not the focus of enforcement anymore. The "old men" of the agency had the best information and I gleaned as much as I could from them about moonshiners’ activities and the prime locations to hunt for stills. With this information, and limited time to devote to the cause, I was able to locate some operators, but I always made time for the chase. For about 15 years, I was able to make, on average, 1 case a year. Some were very small and some could be called "commercial" level, but about 1 per year was the norm. Then something happened. An interest in the art of moonshining started to spark across the country, which led to the making of a "docudrama" on the Discovery channel. "Moonshiners" was born and the ripple effect hit Oklahoma like a tidal wave. The first year that the show was released, eight moonshine operations were taken down in the state, and countless phone calls and emails requesting information about the subject were received by the agency. It seemed like everyone wanted to know about moonshine and guess, now, who the "old man" is that knows about it? That would be me.

The act of distilling alcohol is in its nature both dangerous and deadly. If not operated properly the still can burst or leak alcohol vapor and liquid, which, if exposed to an open flame, can cause an explosion or flash fire. If the still is not constructed properly it can leach poisons into the liquor, which can cause sickness, blindness or even death. If the mash is not prepared and cooked properly, poisonous methanol can be produced instead of drinkable ethanol. These are some of the reasons that possession of a moonshine still, with the intent to produce, is a felony in Oklahoma.

It's hard to quantify the number of stills or the amount of moonshine activity in the state, but it’s safe to say, "Yes, they still make moonshine in Oklahoma," and I expect that they always will. As long as there are people that "want to taste that powerful stuff" there will always be someone who has an old recipe passed down from an ancestor that they would like to try.

As I am writing, I received a telephone call from a sheriff's office in southeastern Oklahoma reporting a "large still" that needs to be investigated. The suspected cook has been arrested in the past for moonshine and at that time had a 200 gallon cooker working. He appears to be at it again. So, as I close, I am making plans to "creep" on another "good ole boy" in Oklahoma and see if once again I can verify that the art of moonshining is still alive and well.

 

ABLE COMMISSION LEGISLATIVE UPDATE

A. Keith Burt, Director, Oklahoma ABLE Commission

The first session of the 55th Oklahoma Legislature has come to a close. The following is a list of bills making it into law including others that did not make it this year, but are likely to resurface in the near future. While this list does not include all bills that made it into law, it certainly covers most of those that would be of interest to Beverage News readers.

Governor Fallin signed 398 or 95.9% of the bills that landed on her desk for consideration this legislative session. Among those bills signed was Senate Bill 420, by Senator Eddie Fields and Representative John Enns, which establishes a Small Farm Winery. A Small Farm Wine is defined as wine produced by a small farm winery with 75% or more Oklahoma grown grapes, berries, other fruits, honey or vegetables. A Small Farm Winery is defined as a winemaking establishment that does not produce for sale more than 10,000 gallons of wine each year. It authorizes a small farm winery licensee to manufacture and bottle the wines it produces and sell wines produced by other small wineries. A small farm winery may display the "Oklahoma Grown" sticker available form the Oklahoma Grape Industry Council. The cost of the license is $1.00. It is effective November 1, 2015.

Senate Bill 425, by Senator David Holt and Representative Randy Grau, authorizes licensed caterers, who obtain a public-caterer endorsement, to sell mixed beverages for on-premises consumption incidental to the distribution of food at licensed temporary public events. It requires annual public event licensees to send in an application no less than 60 days before their first event. It permits an annual public event licensee to utilize the services of a licensed caterer who has obtained a public caterer endorsement to provide and distribute alcoholic beverages at their events. It also requires disclosure of the licensed caterer to be used for an event on the application. It makes licensed caterers responsible for payment of all mixed beverage taxes. It allows a mixed beverage licensee, whose main purpose is hosting live performance art presentations, to utilize a licensed caterer for its alcohol beverage services as long as it is not open to the public. It also permits a caterer to obtain a public-caterer endorsement so that the caterer can provide alcoholic beverage\par services for temporary public events.

Senate Bill 690, by Senator Clark Jolley and Representative Jon Echols, requires a brewer not licensed in Oklahoma selling beer to a non-resident, who is licensed to sell in Oklahoma, to have written distribution sales agreements with the non-resident seller. The sales agreements are subject to inspection by the ABLE Commission. It was effective July 1, 2015.

Senate Bill 178, by Senator Brian Crain and Representatives Mike Sanders and Ben Loring, states that no person under the age of 21 years shall consume or possess with the intent to consume low-point beer and intoxicating beverages. The provisions of this subsection shall not apply to persons under 21 years of age, under the direct supervision of the parent or guardian, but shall not allow them to consume such beverages in any place licensed to dispense low-point beer or any intoxicating beverage.

Two of the bills we were tracking all session that did not pass but may resurface next year is Senate Bill 383 and Senate Bill 720. Senate Bill 383, by Senator Stephanie Bice and Representative Glen Mulready, would allow a package store to sell beer at below room temperature and would also allow the sale of goods, wares, or merchandise to be sold on the premises of a retail store. Senate Bill 720, by Senator Dan Newberry and Representative David Derby would prohibit the use or sale of powdered alcohol by and person or licensee. During the 2015 legislative session, over 80 bills were introduced across the nation to prohibit the sale and use of Palcohol, according to a National Conference of State Legislatures report. The report also noted that before 2014, only Alaska and Delaware had existing statutes prohibiting use of powdered alcohol.

On March 10, 2015, the Alcohol and Tobacco Tax and Trade Bureau (TTB) approved Palcohol, thus making it legal to sell in the United States. Lispmark LLC is a privately held company and owner of Palcohol.

 

The Role Of A Regulator In Promoting Responsibility

A. Keith Burt, Director, Oklahoma ABLE Commission

Writing a ticket, incarceration, revoking a license, all these can be part of the job an Alcoholic Beverage Law Enforcement (ABLE) agent does on a regular basis. These are all tools we would rather not use. Examining ways to increase compliance is very important. Voluntary compliance means fewer resources are required to monitor the licensee. The Oklahoma ABLE Commission just hosted an organization known for bringing stakeholders together in the field of responsible retailing. The Responsible Retailing Forum (RRF) is a 501(c) non-profit organization that engages public and private stakeholders to promote the responsible retailing of alcohol and tobacco products.

During the two-day conference techniques were explored to stimulate higher compliance rates. One state has developed a formal grid. The number of future visits you get from that regulator depends on passing your inspections. There are still a few random inspections, but mostly if you pass the first three you are not likely to get another visit for six months. This makes a lot of sense to me as all state regulators are feeling the financial pinch. With limited resources this allows you to focus your time on the locations that cause the most problems, namely those that fail inspections more often.

Treatment specialists, regulators, and retailers all share a common concern when it comes to our youth. How do we protect them? A college campus is a unique environment. In one location we have both underage persons, and legal age alcoholic beverage drinkers. Challenges have never been greater for police to protect those who have not yet reached the age of majority. Parties that include those under 21 frequently occur and some view it as simply a right of passage to drink after reaching an age where you can be sent to defend our country but not have a beer. Partnering with local police and campus security is vital in protecting our youth. Oklahoma colleges and universities have shown tremendous leadership in their commitment to protect students on their campuses. The sacrificing of immediate gratification for 18-20 year olds is a sign of maturity. If we can not convenience this group of the legal and wise choice of restraint then there will not be wide spread compliance. Without this compliance some of our youth will be injured or worse.

I wonder how many reading this article have ever been pulled over by law enforcement for not running a stop sign or going the speed limit. I know it’s not how we typically do things. Let me share with you how RRF and the Montgomery County Maryland Department of Liquor Control have provided an incentive as a strategy to reduce underage sales.

Mystery Shop programs which employ young legal age inspectors to provide feedback of actual staff conduct is an effective tool for licensees to ensure that staff is asking for identification (I.D.). Compliance checks are often failed, and fake I.D.’s go undetected because staff does not examine the I.D. carefully. The “Spot The Mystery Shopper” (STMS) protocol provides an incentive for staff to check I.D.’s carefully. If the clerk or server, in examining the I.D. recognizes that the customer is an RRForum mystery shopper, that clerk or server will receive a $50.00 “thank you” for carefully checking the I.D.s. The names and ages of the mystery shoppers are provided to outlets in the target area. The RRForum researchers hypothesize that the STMS campaign will provide staff of alcoholic beverage licensees with an additional incentive to check I.D.s carefully resulting in higher rates of checking I.D.s throughout the target area.

Promoting responsibility. It takes all of us; the retailers and their communities cannot do it alone. This is a collaborative effort to examine best practices and engage regulators to work with retailers to find what works in your community.

 

Oklahoma ABLE Commission to Host Responsible Retailing Forums

2015 National Conference in Oklahoma City
A. Keith Burt, Director Oklahoma, Oklahoma ABLE Commission

The Oklahoma ABLE commission, partnering with Dr. Brad Kevor, founder of the Responsible Retailing Forum, will host that organization's National Conference, April 29-30, 2015, at the historic Skirvin Hotel in downtown Oklahoma City.

The Responsible Retailing Forum (RR Forum) Is a 501 (C)3 non-profit organization that engages public and private stakeholders to promote responsible retailing. The RR Forum has been bringing together these stakeholders annually since 2003. After a very successful 2014 conference in Austin, Texas, we hope to keep that momentum building as the Oklahoma City conference tackles the subject of alcohol and tobacco compliance with Insights from the U.S. Food and Drug Administration.

In addition to examining the landscape for alcohol and tobacco compliance, the group will view Attorney Generals' Initiative and programs from Europe, Canada and other nations.

Attendees will have a chance to hear from state alcohol regulators as well as responsible retailers In college communities. The group will take a closer look at the history of college alcohol Interventions and the evidence of effectiveness of a college underage sales prevention model. The national conference will focus on how campus and community officials can work collaboratively with alcohol retailers and their industry partners to reduce underage and high-risk drinking. At this conference, you will see examples of community based prevention and a set of guiding principles for how campus administrators, regulators and law enforcement, public health advocates, and responsible alcohol retailers, distributors, and producers can Implement effective strategies for reducing alcohol problems In the community. All of the private and public stakeholders share a common goal of decreasing dangerous and illegal drinking.

In our conference, we will provide insights Into how stakeholders can work cooperatively to sustain a healthy business economy while also maintaining public health and safety. There may be issues that participants will not agree on, but we all want retailers to carry out their duty to avoid underage sales and alcohol over-service. I invite you to Oklahoma City April 29th and 30th to join in the discussion where various stakeholders concerned about alcohol problems in the community can come together to discuss their differences and work toward developing and Implementing effective solutions.

With your help, we can develop, evaluate and promote best practices that prevent underage sales of alcohol and tobacco.

 

OH, WHAT FUN (BEST PRACTICES DURING THE HOLIDAYS)

By Maureen Shanta, Captain, Oklahoma ABLE Commission

Yes, it's that time of the year "to laugh and sing" and to review your best practices - those rules and procedures you use for the safety of your customers, employees and community that help ensure a successful business. It's not difficult to do. It begins with conducting a risk assessment of your business to identify potential risks and then determining what can be done to minimize the impact.

Best practices are site specific and, in full disclosure, some of the following best practices are not my own, nor do they belong to the ABLE Commission. These techniques are derived from the experiences of various law enforcement officials (including mine), other alcohol retailers and studies conducted in the United States and Europe. They may not work in all situations, but they are worth examining.

Two major risks that are too important for alcohol retailers to ignore are over-service and sales to minors. In Oklahoma, providing alcohol to an intoxicated person or to a person under the age of 21 years is a felony offense. To minimize these risks, one must establish the procedures to implement when faced with these situations.

Over-service - Good quality customer service starts the moment the customer arrives. Greeting the customer and engaging in small talk helps establish the basis of observation. Employees should be taught to observe for those changes in behavior that indicate the early signs of intoxication and be provided with techniques to reduce the amount of alcohol served to that customer.

Sales to minors - It seems that there is nothing more exciting to a young person than trying to obtain alcohol. Prohibiting their access to restricted areas and to alcohol service requires vigilance by all employees. Again, training employees is critical to minimize this risk. Ensure that employees know how to look at valid IDs. By the way, did you know Oklahoma law does not require an individual to have an ID in order to be served alcohol? But it does require that the provider ensure that minors are not served. A good way to do this is by checking the IDs of those who look under the age of 30. The ABLE Commission accepts only driver licenses and identification cards issued by state governments, military IDs and passports - and those IDs cannot be expired.

While it is critical to train employees in the best practices, it also important to let your customers know what is expected of them. Guests should know, in advance, that alcohol will not be served to intoxicated persons or to minors. Customers should be made aware of what is considered unacceptable behavior and the consequences of their actions. The posting and enforcement of the house rules helps reassure customers that they can safely enjoy their time in your establishment.

Adverse environmental factors can affect customers' behavior. Inadequate seating is an example of these factors and some studies have shown that customers tend to drink more while standing as opposed to sitting. While this might mean more sales, it could also lead to an intoxicated customer.

And what about "last call" and closing procedures? An abrupt change in the lighting and in the music being played tends to affect customers' behavior, some in a negative manner. Some of these studies indicate that this inappropriate behavior can be mitigated by slowly bringing the house lights up and changing the music from loud, fast and robust to slow and soft.

Frequently at closing, customers tend to stop inside the door and converse, and may attempt to carry their drinks off the premise. Some retailers have found that by providing a piece of wrapped candy to their guests while at the door, expedited their exit. The wrapped candy served two purposes. Unwrapping the candy required the use of both hands resulting in the guests relinquishing their drinks, while the act of eating the candy momentarily distracted the guests from their conversations.

While this is a busy time of year, take a few preventative steps to review, modify and implement your best practices. As someone once said, "every success is built on the ability to do better than good enough."

 

CHANGES CREATE NEW AVENUES

By Brent A. Fairchild, Special Agent In-Charge, Oklahoma ABLE Commission

Almost a year ago in October, as the summer season was ending and the fall foliage was starting to change colors, I found myself in the midst of a kind of season change myself. After serving the citizens of this great State for almost 24 years as a law enforcement officer, I had moved into a challenging new position. While still a law enforcement officer, I was now working directly with the licensing side of our Agency and interacting more with different community organizations throughout the State, as well as business leaders of the alcoholic beverage industry.

One of the first issues that I faced was to find a solution that would allow a responsible and safe way for our State's rapidly growing public event populace to be conformed in a manner that was consistent with the desires of our Legislature. I kept thinking back to HB1753, which was passed in 2007. It very plainly discussed the wishes of the Legislature that the alcohol beverage laws be “narrowly interpreted and applied”. In part, it stated that, “Changes in market dynamics and advances in technology may have altered the way the alcoholic beverage industry operates, but have not changed the State’s desire for strict regulation” by the ABLE Commission. Keeping this in mind, a review of the standard practices of our Charitable Wine and Beer Event licensees was conducted, and I found them to be operating in the same fashion as the public event holders. The exception was that the charitable organizations had a legal avenue for obtaining a license and the public event holders did not. Even though charitable organizations could obtain a license, many times the methods were the same and the statutes were slightly vague.

My solution was to create a licensing mechanism for public event holders to obtain a license and to clarify what our Charitable Event licensees are allowed to do. Little did I know, the pathway would not be an easy one. Thankfully, with the determination of the Allied Arts, the Center for Non-Profits, Senator David Holt, Representative Randy Grau, the Oklahoma Restaurant Association, our licensed Wholesalers, and countless others, we were successful in the passage of the "peoples bill", SB1715.

This new legislation accomplished several things; First and foremost, it created the “Public Event” license, which permits a public event to be held by a for-profit business. The process will mimic that of our current Mixed- Beverage license. Even though the application process will be tedious, it will help to insure that public safety is a top priority. It will also hold the event licensee to the same standards as all of our other licensees. Secondly, the bill created a new Charitable Alcoholic Beverage Event license, which allows for charities to utilize strong beer, wine, and liquor at their events. The previous license only provided for strong beer and wine. Some other changes were in the event attendance fees, the number of events to be held, and clarifying that a licensed Caterer may now be utilized at their charitable events.

Looking back at this past year, all I can really say is “Wow". When partnering with others to accomplish a common goal, positive changes can be made that still meet the strict expectations of our Legislature, while also fostering great strides in Oklahoma’s entrepreneurial spirit and the kindness of charitable.

 

MEMORANDUM

Public Events/Clarification on use a of Caterers license

Over the past several years, the law enforcement community has been encountering an increase in the number of public events which are selling alcoholic beverages. Complaints, calls for service and responses to criminal activity have caused the manner in which public events are being held to be closely scrutinized. It's been found that many event promoters, groups, associations, and charities have been utilizing the services of licensed Caterers to supply alcohol at their events. It has also been determined, that the constant and repeated use of caterers, over and over by the same promoters, groups, associations, and charities is a violation of statute. Using a caterer in lieu of a mixed-beverage license is not legal. Until recent legislation passed, there has been no legal mechanism for the "for profit" event holder to provide alcoholic beverages at a public event. There currently are licenses for charitable organizations, but even those do not allow use of a caterer. The purpose of the caterers license is for a caterer which has been hired to provide food at a private function, to also be able to provide alcoholic beverage services for their client. While the majority of licensed caterers can honestly say that they were unknowingly participating in some of these activities, there have been a few that have made it a practice of circumventing the Alcohol Beverage Control Act.

The statute changes this year came in the form of Senate Bill 1715. The bill creates a new "Public Event" license classification to give "for-profit" businesses a mechanism for conducting public events in a legal manner. The new license classification will hold the event promoters to the same standards as our other licensees. Although caterers still cannot cater a public event, the bill does now allow the "Charitable Alcoholic Beverage Event" license holder to utilize a licensed caterer at their events. The vast majority of caterers should not see any disruption in their normal operation. Most of the public type events they cater are charitable in nature anyway. Those who based their business model solely on the sale of alcohol at public events, will see a change as the new license classifications become available. The new legislation goes into effect on August 22.

END OF MEMORANDUM

 

ABLE COMMISSION LEGISLATIVE UPDATE

A. Keith Burt, Director, Oklahoma ABLE Commission

The second session of the 54th Legislature is in full swing and some liquor-related bills our agency is watching include:

• HB1249 by Representative Steve Martin of Bartlesville. This bill amends language concerning intoxicating liquors and charitable events. The bill removes language concerning a charitable auction, charitable wine event or charitable beer event, replacing those terms with “charitable event.” The bill states that a charitable event license will allow the holder to conduct an event with wine, beer or both wine and beer. The bill also updates references to charitable events. The measure proposes that beer auctioned at a charitable event may not exceed 150 gallons.

• HB1420 by Representative Richard Morrissette of Oklahoma City. This bill makes it unlawful and punishable for any person to drive, operate, or be in physical control of a motor vehicle within this state, if the person has any amount of a Schedule I, II, III or IV chemical or controlled substance or one its metabolites as analogs in their blood, saliva, urine or any other bodily fluid at the time of a test of such person’s blood, saliva, urine or any other bodily fluid administered within two hours after the arrest of such person.

• HB2469 by Representative Mike Turner of Edmond. This bill prohibits a mixed beverage establishment, that is not a restaurant, from permitting the removal of a closed original wine container, even if the contents have been partially consumed. It also allows a mixed beverage licensee, that is not a restaurant, to offer for sale and serve spirits in original retail containers for consumption on the premises only and prohibits removal any such container from the licensed premises.

• HJR1035 by Representative Hickman of Dacoma. This resolution proposes a constitutional amendment permitting the direct shipment of wine to individuals.

• SB0004 by Senator Eddie Fields of Wynona. This bill removes language that provides the advertised price of a mixed beverage will be sum of the total retail sale price and the applicable gross receipts tax.

• SB1057 by Senator John Sparks and Representative Glen Mulready of Tulsa. This bill requires individual servings of strong cocktails and shots containing six ounces or less of consumable product, whether or not packaged by the retail package store licensee with non-alcoholic promotions items as authorized by this section, to only be offered for sale by the retail package store licensee in the original manufacturer packaging. This bill provides that each single serving of strong cocktail or shot be labeled by the manufacturer with product content clearly stated on the package. The bill also provides that a manufacturer may package multiple individual servings of strong cocktails or shots into a single unit for sale, provided the manufacturer packaging combines the single servings and contain an appropriate label clearly describing multiple servings in the package. The bill provides that any individual serving or multiple servings of strong cocktails and shots packaged with any non-alcoholic promotions items be labeled by the manufacturer, both individually and on the manufacturer’s promotional packages. The bill establishes that the language shall be construed to permit samples to be offered for sale as single servings or shots.

• SB1676 by Senator Thomas Ivester of Elk City and Representative Todd Russ of Cordell. This bill required that an applicant for an original license must furnish proof of liquor liability insurance covering both bodily injury and property damage.

• SB1715 by Senator David Holt and Representative Randy Grau of Edmond. This bill modifies language related to the Alcohol Beverage Control Act and adds definitions. The bill creates additional licenses and fees for each including: a charitable alcoholic beverage license, an annual public event license, and a one- time public event license. The bill adds references to holders of a public event license throughout the Alcohol Beverage Control Act and holds them to the same standards as other previously established licensees. The bill states that an annual public event license authorizes the holder to sell and distribute mixed beverages for consumption on the premises for which the license has been issued for up to six events to be held over a period not to exceed one calendar year. It adds that an event my not exceed a period of three consecutive dates. The bill requires an annual public event license to be issued only in counties of this state where the sale of alcoholic beverages by the individual drink for on-premises consumption has been authorized. It requires the holder of the license to provide written notice to the ABLE Commission of each promoted public event not less than 10 days before the event is held. It specifies that a public event license is not to be used in lieu of a mixed beverage license. The bill allows a one-time public event licensee to sell and distribute mixed beverages for consumption on the premises for which the license has been issued and prohibits an event from exceeding a three-day consecutive period. The bill also requires a storage license for a public event licensee storing alcoholic beverages for use at a subsequent event and adds that charitable auction and charitable alcoholic beverage event license holders may utilize a licensed caterer to provide additional alcohol services at the event and on the premises. The bill prohibits a licensee, licensed for the sale of mixed beverages, to sell an entire bottle of spirits, sealed or unsealed. The bill also prohibits any person to be drunk or intoxicated on the licensee’s premise.

• SRJ0055 by Senator Mike Schulz of Altus and Representative Dale DeWitt of Braman. This resolution proposes a vote of the people on a constitutional amendment that permits wineries inside and outside the state, that are licensed by the Oklahoma Alcoholic Beverage Laws Enforcement Commission, to receive orders for, sell and ship wine directly to consumers over the age of 21 within or outside of the state who have visited the winery in person.

When the session began, there were over 4,000 bills; however, as of last week, there remain less than 1,300 active bills. As the session progresses, we will be watching for bills that affect the consumer and their impact on public safety.

 

ALCOHOLIC BEVERAGE LAWS ENFORCEMENT COMMISSION (ABLE)

THE REGULAR MEETING SCHEDULED FOR:

FRIDAY, APR 18, 2014 10:00 AM AT
3812 N.SANTA FE AVE, SUITE 200 OKLAHOMA CITY, OK 73118

HAS BEEN CHANGED TO:

FRIDAY, APR 18, 2014 10:00 AM AT
OKLAHOMA JUDICIAL CENTER SUPREME COURT HEARING ROOM 2100
NORTH LINCOLN BLVD OKLAHOMA CITY, OK 73105

STARTING A NEW YEAR
A. Keith Burt, Director, Oklahoma ABLE Commission

As we start a new year there are challenges ahead. By the time this publication goes to press, the Oklahoma Legislature will be in session. I will be updating you on new bills and potential law changes affecting the ABLE Commission and the Oklahoma liquor laws in the upcoming months, as well as how the ABLE Commission finished up 2013. But before giving you that information, I would like to discuss some good news from the Tulsa area.

It has been reported to me that this is the third year in a row we have had not liquor-related accidents on New Year’s Eve in the Tulsa area. I know there are many law enforcement professionals working that help make our streets safer, but I’d like to share a story with you about a civilian who is making a positive impact regarding highway safety. Sarah Inman represents Missy’s Keys 4 Cabs, which was started after Sarah witnessed her best friend’s death in an accident caused by a drunk driver. Ms. Inman’s story begins one evening after leaving a local area bar. She was following behind her friend Missy when a drunk driver ran a red light and broadsided Missy Eubanks car doing approximately fifty miles per hour. The wreck was very violent and Missy was killed instantly. Another person was almost run over as he unsuccessfully tried to stop the hit and run driver leaving the scene. The driver was eventually brought to justice, but Missy was a victim who lost her life. Sarah Inman believes the lack of public transportation after hours and slow cab service in the Tulsa area is a major factor in individuals driving in an intoxicated state. Sarah’s company basically pays for free cab rides for individuals leaving their member establishments. In the two and a half years the company has existed, they have given more than 160 rides to over 200 people from over 30 establishments. The goal of the non-profit company is to increase their membership so they can create a safety net around Tulsa. They currently have over 20 member bars and are looking to increase that number. Sarah speaks at victim’s impact panels that allows her the opportunity to speak directly to the target population. She believes DUI (driving under the influence) offenders need to know a program such as hers exists and that if you have had too much alcohol to drink there is an alternative to getting behind the wheel. I’d like to thank Sarah and all the people involved in trying to keep our citizens safe.

Concerning the ABLE Commission and 2013, we were quite busy. Our Licensing Department issued or renewed 28,547 licenses. The Legal Division settled and/or heard over 400 cases. The enforcement division initiated 533 citations and/or arrests, served 558 subpoenas, conducted 3,407 enforcement actions, and had 3,505 technical assistances. Agents were given 1,952 assignments and completed 1,741. Also, the agents completed 2,379 liquor compliance checks and 2,323 tobacco compliance checks. The agents also trained 7,127 people during 1,160 hours of presentation. And this was all done with fewer personnel and less funding than in previous years primarily by allowing empty positions to go unfilled, leaving more work for the remaining full-time employees (down to 37 from nearly 80 in 1986), many who haven’t had an across the board raise in 7 years. Despite doing more with less personnel and funding, the ABLE Commission still brought in over $6 million for the State of Oklahoma, while operating on appropriations of just over $3.1 million – quite a bargain for the citizens and taxpayers of Oklahoma.

 

NOTICE - December 12, 2013

Pursuant to the authority granted by Title 37, O.S.1985, Supp. Section 539 (B) as amended. “The Alcoholic Beverage Laws Enforcement Commission will sell all available units of various seized alcoholic beverages at 10:00am on December 21, 2013 at the site of the seizure in the Oklahoma City area. The address of the site the auction is 2415 N. Council Bethany, Oklahoma.

Said alcoholic beverages will be sold at auction to the highest bidder. The purchase must be paid in Cash, by Money Order, by Cashier’s Check or by Business Check ( Commission business licensees only ) at the time of the auction or by installment per terms of the ABLE Commission and picked up by 1530 hours on December 23, 2013, Title to any items not picked up by the due date will revert to the Commission. The State of Oklahoma reserves the right to reject any and all bids at their sole discretion. All who are interested in bidding may inspect the inventory for sale prior to 10:00am on the date of the sale at the auction site. Upon request, an inventory may be obtained from the Commission. This is available by calling 405.521.3484 or through the ABLE website at www.oklahoma.gov/able-commission. For further information, call 405.521.3484.

BEER 12 - 13

 

LEGAL UPDATE
A. Keith Burt, Director, Oklahoma ABLE Commission

There was a recent case before the Oklahoma Supreme Court decided September 24, 2013, entitled Sheffer v. Buffalo Run Casino, PTE. Inc., 2013 OK 77, which was an appeal from the District Court of Ottawa County.

The facts of the case were as follows: Charles Sheffer, Jennifer Sheffer, and their minor son, J. S., were injured when their 18-wheeler tractor-trailer collided with a rental vehicle leased to William Garris and driven by David Billups, both employees of Carolina Forge Company, L.L.C. Garris and Billups had been drinking at the Buffalo Run Casino before the accident. Plaintiffs sued Carolina Forge on theories of respondent superior and negligent entrustment. They also sued the Buffalo Run Casino, The Peoria Tribe of Indians of Oklahoma and PTE, Inc. for Dram-Shop liability.

Dram-Shop liability refers to the case law governing the liability of bars, liquor stores and other establishments that serve alcoholic beverages. Dram-Shop laws are meant to establish the liability of establishments arising out of the sale of alcohol to visibly intoxicated persons or minors who subsequently cause death or injury to third parties as a result of alcohol-related crashes or other accidents. These laws are intended to protect the general public from the hazards of serving alcohol to minors and intoxicated patrons.

The Court found in this case that the Peoria Tribe is immune from suit in state court for compact-based tort claims because Oklahoma State courts are not courts of competent jurisdiction as the term is used in the model gaming compact. The Court also held that because Congress has not expressly abrogated tribal immunity from private, state court Dram-Shop claims and because the Peoria Tribe and its entities did not expressly waive their sovereign immunity by applying for and receiving a liquor license from the State of Oklahoma, the tribe is immune from Dram-Shop liability in state court.

A unanimous three-judge panel of the Tenth Circuit affirmed and found that although the compact does not define court of competent jurisdiction, it does expressly provide that this compact shall not alter tribal, federal or state civil adjudicatory or criminal jurisdiction.

The Court explained that the role of tribal sovereignty in pre-emption analysis varies in accordance with the particular notions of sovereignty that have developed from historical traditions of tribal independence.

The Court went on to say: When we determine that tradition has recognized a sovereign immunity in favor of the Indians in some respect, then we usually are reluctant to infer that Congress has authorized the assertion of state authority in that respect except where Congress has expressively provided that State law shall apply. If, however, we do not find such a tradition, or if we determine that the balance of state, federal, and tribal interest so requires, our pre-emption analysis may accord less weight to the backdrop of tribal sovereignty.

The Courts’ conclusion, in a 5-4 decision, held that the Peoria Tribe was immune from compact-based tort, including Dram-Shop liability, or prize claims in state court because Oklahoma State Courts are not courts of competent jurisdiction as the term is used in the model gaming compact. They also held that because Congress has not expressly abrogated tribal immunity from private, state court Dram-Shop claims and because the record is void of any evidence that the Peoria Tribe expressly and unequivocally waived its immunity when it applied for and received a state liquor license, the tribe is immune from Dram- Shop liability in state court.

We have all heard it many times. The dispensing of alcohol is a serious responsibility. It is not soda pop. Oklahoma is a great state to live in and I believe we have made tremendous strides in the tourism and hospitality industries. I believe we should strengthen the laws that protect our citizens while aiding commerce and continuing to provide a business friendly environment. I know there will be conflicts. I think Oklahoma can work them out.

 

CAREERS CHANGE, FRIENDSHIPS REMAIN
A. Keith Burt, Director, Oklahoma ABLE Commission

I don’t know of anyone who has had only one job in their entire career. Sometimes we change jobs; sometimes we endeavor into another field of work entirely. I have been fortunate to enjoy the work and the people I work with for over 33 years. I’ve seen constitutional changes in the law, good economic times and bad. I have also seen a number of individuals here at the ABLE Commission come and go. I work with a diverse set of co-workers ranging from law enforcement officers to accountants and of course the employees that interpret the law, judge, prosecute,and give counsel to those in my position.

“I feel like Ted Danson turning off the bar lights on the last episode of Cheers.” My response was “Remember,Ted is now the lead on CSI, you are moving on from a sitcom to a drama.”

For over 20 years I worked with one of the brightest legal minds in the business as General Counsel Kurt Morgan guided the Commission through the complex workings of Oklahoma’s liquor laws. Kurt retired in 2005 and in 2008 we were introduced to John Maisch. In those five years, from 2008 to October 1, 2013, no one worked harder than John. He became the preeminent expert on Title 37, the statutes where Oklahoma’s liquor laws are found. He was a top rate prosecutor and an advocate for the ABLE Commission and what we stand for. He knew that it was more important to correct behavior than throw the book at people or just revoke their license. He was direct and articulate when explaining the law and its implications to our citizens and was a nationally recognized speaker on alcoholic beverage laws and regulations. On John’s last day, which stretched well into the evening as he worked to tidy up the loose ends on some outstanding cases, his last words to me were “I feel like Ted Danson turning off the bar lights on the last episode of Cheers.” My response was “Remember, Ted is now the lead on CSI, you are moving on from a sitcom to a drama.”

Effective October 1st, John left to pursue his career as a full-time professor. And so it goes, after five years, John certainly left his mark and is now gone, but certainly not forgotten.

 

Oklahoma Update: Hospitality vs. Public Safety
A. Keith Burt, Director, Oklahoma ABLE Commission

I hear it from both sides all the time. As a law enforcement agency, we have a responsibility to keep the public that we serve safe. We have never had a quota or gauged successful enforcement operations by how many tickets we wrote or the number of arrests we made. Likewise, we do not want to restrict the freedom of our citizens and guests to enjoy all that Oklahoma has to offer.

There could be a time where great hospitality encroaches our ability to protect the public. Being hospitable does not mean “over service of alcoholic beverages.” We have all heard the phrase “drink responsibly.” We all have too much to lose when intoxication leads to injury or fatality. There are scores of entities that provide server training in an attempt to avoid such instances of consumption getting out of control. Oklahoma’s own Restaurant Association and programs such as 2M2L (Too Much Too Lose) are examples of organizations providing important training at the point of contact with patrons and servers.

I’d like to quote someone who was very influential in developing my perspective on the subject of hospitality v. public safety. His name was Steve Collier, and for thirty-one years, he worked for the Greater Oklahoma City Chamber of Commerce, which included sixteen years as the Executive Director of the Oklahoma City Convention and Visitor Bureau. We visited often as I had the privilege of coaching the youngest of his three athletic sons in grade school. He was a tremendous father who was also one of those positive supporters. This was also the way he approached business. We would have friendly arguments about Oklahoma’s liquor laws and the need to be competitive with other states for convention business.

Originally, I thought Steve didn’t get it. Did he think we needed to revert to the Wild West, with no control over the service of alcoholic beverages? Then I heard him speak publically; he talked about being a responsible city, a city of hospitability, and not a town of drunks. He wanted all of the visitors Oklahoma City could accommodate to come, have a good time, spend money, and go home safely. The he said, “and if you don’t behave, my friend Keith back there (as he pointed to me) might have to write you a ticket or worse, and nobody wants that.” After he spoke, he came by, shook my hand and said, “My family lives here too ya know, and I want you to do your job and help keep them all safe. We just need to work on ways to modernize and grow our great City.”

That was a few years ago. We have many people to thank, but he was truly an unsung hero of that vibrant entertainment district called “Bricktown.”

Steve was a suave businessman who liked to find creative solutions while many just saw problems. Sadly, Steve passed away last month, just shy of this sixtieth birthday. To his wife, Marsha, and sons Chris, Andy, and Brad, God bless and keep you. I’ll never forget Steve, the family he raised, and what he stood for. He got it, and he helped me to get it too. Its not hospitability versus public safety, it’s being hospitable while protecting the public.

 

Oklahoma Update: Oklahomans Shine at National Conference
A. Keith Burt, Director, Oklahoma ABLE Commission

I had the privilege of watching some of my talented co-workers present at the National Conference of State Liquor Administrators (NCSLA) conference this summer. The NCSLA is an association that has been disseminating information to and about the liquor industry for over 75 years. An organization that was founded in 1934 for the purpose of promoting the most effective and equitable types of state alcoholic beverage controls laws; the NCSLA Shine Articleregularly updates its members on the most current topics concerning the alcohol industry. Recognizing states’ rights, the NCSLA also promotes the adoption of uniform laws insofar as they may be practical to promote harmony with the Federal government in its administration of the Federal Alcohol Administration Act. It was at the National Conference of this organization where I witnessed Captains Kent James and Joe Daniels update conference attendees from all over the United States of activities involving the illegal manufacture and sell of an unlicensed, unregulated and totally unsanitary alcohol called “moonshine.” The audience was educated and entertained. Apparently we have a little more moonshine activity here in Oklahoma that in other parts of the country. Some attendees had never seen a still much less seen one in working order before this presentation. Additionally, another employee, ABLE Commission General Counsel John Maisch has made himself into an expert on alcohol regulations and laws. Not only is John an expert on Oklahoma Title 37 where most of our alcohol regulation laws are located, but he is also a nationally respected and sought aft er speaker throughout the United States. His presentation on ethics and the difficulties facing an agency lawyer were informative to all attendees whether they were in the legal end of the business or not. Oklahoma was very well represented at this conference that brings together regulators and industry members to discuss best practices.

On a somber note, I could not close without mentioning the passing of a giant of the alcohol industry here in Oklahoma. I remember the last time I felt moved to mention the passing of someone involved in the alcohol industry. It was almost three years ago when Pancho Shadid, long time retailer here in Oklahoma City, passed away. Passing this week is a man that has also left his mark on the history and landscape of theOklahoma alcohol beverage industry. Today, my thoughts are of Bob Naifeh and the Naifeh family.

Bob Naifeh was the eldest son of Lebanese immigrants. He went to high school right here in Oklahoma City before enrolling at the University of Oklahoma. In 1950 he was called to duty and served two years in the Army. In October of 1952 married the love of his life, Jeaneen. Together they raised a family here in Bob NaifahOklahoma. Bob started and was successful in many businesses here in Oklahoma, but the one in which I got to know him was as co-founder of Central Liquor. After Oklahoma repealed prohibition, Bob and his father, Zeak, and the rest of the family, started a wholesale liquor distribution company with five vans running out of a small warehouse on West Reno in Oklahoma City. Today that business employs more than 225 Oklahomans.

As many great men and women do, Bob was involved in many philanthropic endeavors that included charitable involvement of numerous health organizations, church and various Arts foundations. Although it’s been several years since I personally dealt with Mr. Naifeh, it was my honor to recognize Bob, the Naifeh family and the Central Liquor Company with an NCSLA Lifetime Industry Achievement Award at the Regional NCSLA conference that we hosted here in Oklahoma City last fall. The award read, “In recognition and appreciation of over fifty years of dedicated, responsible and professional service in the alcoholic beverage industry and to the citizens of Oklahoma. Unfortunately, Bob was unable to attend the conference to accept the award due to his health. Nevertheless, it was my great honor and pleasure to present the award to his son, Brad, and the rest of the Naifeh family. I talk primarily to his son Brad on business matters, but I still remember Bob’s sense of humor and engaging manner. One time in particular he remarked to me, “Ya know, we’ve got a couple of things in common, you and me.” I wondered what that could possibly be… and then he told me. He explained that 1952 was a pretty good year for both of us. I was born that year and Bob married his companion of 61 years. OK, so what else did we have in common? “Well,” he replied, “both of us sold shoes at an early age to make ends meet and both of us decided the liquor business was a better fit.”

I asked Bob if he learned anything valuable while he was selling shoes and he said “Yeah, the same thing you did. I wanta do something else: What a great sense of humor! My sincere condolences to the Naifeh family.

 

Oklahoma Update: A Memorial Day to Remember
John A. Maisch, General Counsel, Oklahoma ABLE Commission

This past Memorial Day weekend,I found myself in Whiteclay, Nebraska, located in northwest Nebraska, less than two hours southeast of Mount Rushmore. Whiteclay is a small, unincorporated town of a dozen people. Its main street is one block long.

There are no stop signs. No parking meters. But beer retailers? Whiteclay has plenty of those. Four off-premise beer stores, to be exact. And what a booming business those four beer stores are doing. Approximately 4 million cans of beer sold every year, or 333,334 cans of beer per resident.

I was intrigued to meet the residents of Whiteclay. After all, it’s not everyday that you get to meet anyone with that tolerance level. Soon after, however, I discovered that it isn't Whiteclay residents consuming all those beers. Instead, it appears that most of these beers are being purchased by consumers across the Nebraska state line, just 200 yards north of Whiteclay, on the Pine Ridge Indian Reservation in South Dakota.

Technically, Pine Ridge has been a “dry reservation” for the better part of the past 100 years. But the number of alcohol-related health issues present on the reservation strongly suggest that it is anything but dry: Alcohol abuse rates exceed 50% among adults and life expectancy rates are 20-30 years lower than the national average.

But the biggest tragedy is what alcohol abuse is doing to the most defenseless of all tribal members: infants and children. On Pine Ridge, the infant mortality rate is 300% higher than the national average, the teen suicide rate is 150% higher than the national average, and one out of four children on

the reservation are born with fetal alcohol syndrome (FAS). (If readers want to learn more about FAS, I strongly recommend a book published in the 1980's called “The Broken Cord” by Michael Dorris.)

Why are issues such as fetal alcohol syndrome important to the alcohol beverage industry in Oklahoma?

Because unfortunately, these issues are not confined to a tribal reservation in South Dakota. Alcohol abuse, especially amongst at-risk populations, remains a concern to state liquor regulators and public health organizations throughout the United States. The non-economic costs associated with alcohol abuse, such as death, illnesses, and injuries, are tragic. But the economic costs, to both government and business, are equally concerning.

For example, a recent study commissioned by the City of Oklahoma City found that in Oklahoma City alone, government and non-profit organizations spend nearly $29 million dollars per year on homelessness. And while not every cost associated with the homeless involves alcohol abuse, a large percentage does.

The study identified one local homeless man, Floyd Crawford, who had been arrested 24 times during the one-year study, 369 times over a ten-year period. Mr. Crawford was arrested on public intoxication or trespassing charges 95% of the time. On most occasions, he would either spend the night in jail or in an emergency room, all at a significant cost to the taxpayers.

Memorial Day 2013 was certainly a memorable one for me. Not your ordinary vacation. But one that I’ll never forget.

 

Oklahoma Update: Summer Is Just Around the Corner
A. Keith Burt, Director, Oklahoma ABLE Commission

There are some signs that summer is on the way. Temperatures are rising, the Legislature has adjourned for another year, and yes, another round of May tornadoes here in Oklahoma. Not all tornado seasons are created equal, as we have managed the last decade much better than we managed the last ten days of May 2013.

I know most of the time you read my words about the alcoholic beverage industry here in Oklahoma or even compare our laws with those of other states. I have updated you on this legislative session and reported to you budget challenges and compliance issues, but for a moment, I would like to reflect back on those final ten days of May 2013 and how they impacted our lives here in Oklahoma.

We have a great reputation here in Oklahoma to rally around one another, to pitch in and lend a helping hand. May 3rd, 1999, I experienced that first hand, as about 30 people from my wife’s and my work came out one afternoon to help clean up the debris the tornado had made on our property. This year I was spared all but a few hours of lost electrical power, but others were not as fortunate. One ABLE Commission agent who lives in Moore saw her house severely damaged, while others across the street were completely destroyed. I saw that devastation first hand and it is amazing that the loss of life was not higher.

Those involved in the alcoholic beverage industry may think all our agents do is check on liquor stores and write tickets for violations, when in fact, being fully commissioned police officers, our agents are very concerned with public safety. Of course, that includes the safe distribution of alcohol and protecting our youth from those dangers, but I’d like to share with you something you may not know about them.

We have twenty two law enforcement agents here at the ABLE Commission and 17 of them were on site in Moore, working search and rescue, and perimeter patrol for a week after the tragedy. We mobilized everyone we could and we didn’t have to ask twice. I hope we are over the worst of it at least for this year, but I am very proud to be part of an organization that leads the way when they are needed. Whether it is an incident like the Murrah bombing, a school shooting incident, a police manhunt, or a natural disaster, I know I can count on the agents of the ABLE Commission.

I’d like to dedicate this article to those brave men and women and especially to one agent who wasn’t mobilized to work this time. Her name is Captain Maureen Shanta and she lives in the heart of Moore, Oklahoma. She and her husband, C.J. are fine, just tired. Not too long ago, we were praying for rain and in the blink of an eye, we got more than we needed. I hope everyone has a great summer, and for Maureen and her family a calm one.

 

Oklahoma Update: ABLE COMMISSION LEGISLATIVE UPDATES
A. Keith Burt, Director, Oklahoma ABLE Commission

At the Oklahoma ABLE Commission's regular, monthly meeting on April 19, 2013, we discussed bills that could affect the Oklahoma ABLE Commission. The following is a list of bills that are still under consideration.

The first bill, HB 1465, authored by Representative Jason Murphey(R-Guthrie) and Senator David Fuller Holt (R-Oklahoma City), would require, pursuant to the Oklahoma Program and Performance Budgeting and Accountability Act, the ABLE Commission and all other state agencies to submit a program management and performance report to the Speaker of the House of Representatives, the President Pro Tern of the Senate, and the Director of the Oklahoma Office of Management and Enterprise Services (OMES) no later than January 15 of each year. The bill would require the reports from the various agencies to include, at a minimum, detailed data for each agency program relating to each of the evaluation factors set out in Section 45.9 of Title 62.

HB1914, authored by Representative T. W. Shannon, R-Lawton, and Senator Rob Johnson, R- Kingfisher, will create, if passed, the Public Agency Fee Moratorium Justification and Disclosure Act of 2013. The bill would prohibit any agency from creating any new fees or increasing any current fees in effect until January 1, 2016. The bill requires that fees charged by an agency at the time of payment will provide a fee justification statement that discloses and describes in detail to the entity paying the fee the reason for the charge. As I told the Commissioners, the ABLE Commission does not advocate a fee increase since we currently collect enough fees to fund the regulation of the alcoholic beverage industry.

HB1341, authored by Representative Glen Mulready, R-Tulsa, and Senator Rob Johnson, R- Kingfisher, allows a licensed brewer to serve free samples of beer produced by the licensee to visitors 21 years of age and older. The bill provides that no visitor may sample more than a total of 12 fluid ounces of beer per day and the brewer must restrict the distribution and consumption of beer samples to an area within the licensed premises

designated by the brewer. It requires that a current floor plan, that includes the designated sampling area,must be on file with the ABLE Commission and no visitor under 21 years of age shall be permitted to enter this designated sampling area when samples are being distributed or consumed. It directs samples to be consumed between I 0 a.m. and 9 p.m. only and states that samples of beer served by a brewery under this section shall not be considered a "sale" of beer within the meaning of Article XXVIII of the Oklahoma Constitution; however, such samples of beer shall be considered beer removed or withdrawn from the brewery for "use or consumption" for excise tax: determination and reporting requirements.

SB0667, by Senator Robert Standridge, R-Norman, and Representative Jon Echols, R-Oklahoma City, provides that no debit or electronic benefit transfer cards that contain state or federal funds from programs including, but not limited to, Temporary Assistance for Needy Families (TANF), may be used in any transaction in any liquor store, any casino, gambling casino, or gambling establishment or any retail establishment which provides adult -oriented entertainment in which performers disrobe or perform in an unclothed state for entertainment, and or any retail establishment whose principal business is selling cigarettes, cigars or tobacco products. The bill requires the Department of Human Services to develop an implementation plan by August I, 2013.

SB0789, by Senator Rob Johnson, R-Kingfisher and Representative Mike Jackson, R-Enid, modifies language related to low-point beer (3.2 beer). The bill prohibits any governmental subdivision, state or county, from using resources to alter packaging of low-point beer. The bill states if such entities are found in violation, they will be subject to paying damages to the aggrieved party. The bill also provides that any person not otherwise a dealer in alcoholic beverages, coming into possession of any alcoholic

beverages as a security for or in payment of a debt, may sell beverages in one lot or parcel to a wholesaler at an agreed upon price with no regard to current posted prices. The bill allows the wholesaler receiving a lot or parcel to sell it to a licensed package store or mixed beverage licensee, and other entities as defined, provided the total of the lots sold does not exceed four lots total.

Finally, SBOOOI, by Senator Cliff Branan, R-Oklahoma City and Representative Mike Jackson, R-Enid, prohibits a peace officer from taking a person into custody for disturbing the peace as a result of alcohol intoxication when the officer has contact with the person because they, either alone or with another person, requested emergency medical assistance for an individual who reasonably appeared to be in need of assistance due to alcohol consumption and when the person provided their full name and other relevant information requested by the officer, remained at the scene with the individual who appeared in need of medical assistance until assistance arrived, and cooperated with the emergency medical assistance personnel and law enforcement officers at the scene. It provides immunity from prosecution for disturbing the peace to individuals who meet the above criteria. It also prohibits a person from initiating or maintaining an action against a peace officer based on the officer's compliance or failure to comply with the law. The bill also provides that every wholesaler, prior to being issued a permit or renewal to sell low-point beer, will submit a notarize affidavit to the Tax Commission certifying that the low-point beer sold does not contain more 3.2 percent of alcohol by weight. Since the time of the Commission meeting, this bill was passed and signed by the Governor on April13, 2013. It is effective November 1, 2013.

The Oklahoma Legislature wraps up their work at the Capitol May 31, 2013, and we will be able to provide updates on these bills in early June.

 

Oklahoma Update: Administrative Prosecution No Easy Task
John Maisch, General Counsel

You don’t have to be in the liquor business for long before you hear someone complain about an administrative penalty imposed by the ABLE Commission. No licensee likes to be penalized for committing and administrative violation. For every licensee who believes that ABLE penalties are too harsh, however there are probably two or more people in the public safety and health communities that think ABLE penalties are not harsh enough.

The ABLE Commission, like so many other licensing agencies, finds itself forever walking a proverbial tightrope between economic development and public safety. Often times, the licensing agency is likely to be accused of either risking jobs or risking lives, depending on the commentator’s perspective. Are either a fair accusation? No. Welcome to the world of administrative law and prosecuting administrative violations.

The fact is: Alcohol is not an ordinary commodity. Because alcohol is not ordinary commodity, and because alcohol poses a heightened risk of danger when consumed by children or over-consumed by adults, the government will regulate it. The question becomes which governmental entity do you want to be primarily responsible for regulating the industry and, by implication, which venue do you want alcohol violations to be resolved in?

Some would advocate the alcohol violations be handled exclusively by the criminal justice system. Over the past five years, most alcohol-related legislation in Oklahoma has involved either criminalizing more alcohol-related conduct and enhancing alcohol-related penalties (ex. mandatory ignition interlock devices for first-time DUI offenses). As state government looks to reduce the number of regulations and agencies that enforce those regulations, you could easily see a concerted push in the future to criminalize more and more licensee misconduct. When you transfer the responsibility of enforcing and prosecuting licensee misconduct from the agency prosecutor to the criminal prosecutor, you run the risk of facing more stringent penalties, such as imprisonment, but you also run the risk of getting more cases dismissed.

as a result of judicial economy and prosecutorial discretion. For example, nobody argues that the sale of an alcoholic beverage to a minor is a serious offense. But if an assistant district attorney has to choose between spending the time and resources on prosecuting a failed compliance check or a double homicide, is there any doubt which case will take priority.

There are others who believe that an effort to criminalize more alcohol-related misconduct would not necessarily be the most cost-effective method of promoting temperance or economic development. All in all, administrative agencies in general, and the ABLE Commission in particular are an extremely effective and cost -efficient method of enforcing the law. ABLE's Legal Department resolves hundreds of administrative citations issued by ABLE's Enforcement Department every year. Like most federal or state criminal prosecutor offices, an estimated 80-90% of all cases are settled prior to trial. Similar to a criminal prosecutor, most agency prosecutors will save the time and resources required to conduct a trial for the most egregious or repetitive offenders.

Consider the sale of an alcoholic beverage to a minor. In most cases, ABLE's Legal Department will generally seek a monetary fine, in lieu of a license suspension, in cases involving a first-time offender, especially when the incident involves an Undercover Confidential Informant (UCI) participating in a compliance check, as opposed to an incident where the minor is not involved in a compliance check but who really consumed the alcoholic beverage.

In separate cases involving two high-profile restaurants, the ABLE Commission received parental complaints that their children, all minors, had consumed alcoholic beverages at a licensed premise. Unlike a compliance check, where the UCI takes possession of, but doesn't actually consume, the alcoholic beverage, these two cases involved minors who were not only served the alcoholic beverage by a licensee, but also consumed thealcoholic beverage. In both cases, the restaurants' mixed beverage licenses were suspended.

In these cases, some would want us to revoke the restaurants' licenses, even though it was a first offense and even though there was no evidence that the restaurant owners or management staff had any personal knowledge of the practice. Since assuming the responsibilities as prosecutor in 2008, I've not found that the revocation of a restaurant's license under these specific circumstances to be appropriate, especially when the restaurant has a legitimate server-training program in place and has taken other remedial steps to address the issue.

Where mitigating factors such as these aren't present, however, we reserve the right to pursue whatever administrative penalties are set forth in the Penalty Schedule passed by the ABLE Commission and approved by the Legislature and the Governor. In some cases, we have found larger monetary fines, in addition to additional probation terms, to be more appropriate. In the case of a mixed beverage licensee that admitted to refilling bottles (with less expensive alcohol), we imposed a major suspension against the licensee, as well as a significant monetary fine, then suspended the suspension, provided the licensee not be found guilty of refilling bottles again in the next five years.

Licensees deserve to know that we attempt to be both fair and firm when prosecuting administrative cases. But still, administrative prosecutions are no easy task. It can be like walking a tightrope. But for both the licensee and the public safety advocate, it can sure beat the alternative.

 

Oklahoma Update: MAKING THE BEST OF IT
A. Keith Burt, Director, Oklahoma ABLE Commission

Who does not try to make the best of a poor situation? Financial stress burdens both public and government sectors. I am not a person who believes tax increases are the way to bail out government, state or federal, yet I work at an agency that annually collects two to two and a half million dollars more than we are appropriated to operate our agency.The industry we regulate pays more than enough to fund the regulation we provide. However, we continue to lose trained, qualified, personnel to private sector jobs as well as better paying state agency jobs. In spite of this, we have career personnel with 20, 25, and some with over 30 years experience at our agency. These employees are making the best of it. A quarter of a century ago, the agency had twice as many employees working fewer applications and regulating fewer licensees than the agency’s current civilian and sworn personnel.

This is a talented group, whose investigations show they have great creativity and ingenuity. For example, on one occasion agents traded bales of hay for illegal moonshine whiskey. On another occasion, one of our female agents spent time in a jail cell to infiltrate and gain confidence to obtain information in order to make a case.

These same employees have worked in the aftermath of Hurricane Katrina and tornadoes in Oklahoma City, Moore, and most recently, Joplin, Missouri. In 1995, minutes after the Murrah Building bombing, ABLE personnel were on the scene working with the FBI and other authorities. ABLE agents have also worked and made cases with the IRS, ATF, TTB, and local and state police.

It’s a balancing act as we put public safety first, while balancing the impact of our presence on commerce. Possessing the skills necessary to chase after bootleggers, while maintaining a skill set that enables one to track white collar crimes and best practice violations is unique to be sure.

These ABLE personnel are understaffed and underpaid, yet all they do is everything they are asked. I am proud of them. In less than ideal circumstances, with inadequate resources, they are “Making the Best of It.”

 

Oklahoma Update: Welcoming in the New Year
A. Keith Burt, Director, Oklahoma ABLE Commission

We have seen a lot of change the past few years. The industry continues to evolve finding innovative ways to expand hospitality venues. The utilization of daytime lunch spots converted to night time hot spots is just one way licensees are delivering their alcoholic products to greater audiences. These daytime venues become much livelier at night and are more difficult to regulate and control.

With budget concerns nationwide, we are all expected to do more with less. The ABLE Commission is no exception as we find ourselves with less than half the work force we had a quarter century ago. Yet through the changes, which include adding tobacco and charity games regulation and enforcement, the Oklahoma ABLE Commission continues to provide a valuable service to Oklahoma citizens.

As government searches for ways to save money, our Information Technology (IT) department was consolidated into the Oklahoma Management and Enterprise Services (OMES) Agency.

We continue our journey without three long time ABLE law enforcement agents that retired the past year. Some positions are left vacant while others such as our General Counsel are only part time. Still, since 1959, there have been many challenges, but the ABLE Commission has adapted and endured. The Oklahoma Legislature will convene the first week in February and as we look ahead to the challenges of the coming year, we pledge to again work with legislative and industry leaders to make Oklahoma’s liquor laws more business friendly, while not sacrificing the public’s safety.

This past year’s amendments to Title 37, included Senate Bill 1218, introduced by Senator Holt, now allows a university located within a business improvement district to affirmatively waive the prohibition against a bar locating within 300 feet of the university. Senate Bill 1667, introduced by Senator Johnson, prohibits state agencies like the Horse Racing Commission, from imposing duplicate licensing fees and regulations already enforced by the ABLE Commission, such as alcohol beverage wholesalers, further raising the costs of conducting business in the state. Senate Bill 1263, introduced by Senator Barrington, strengthens municipalities’ abilities to review applications submitted by those wishing to secure a special event beer permit. All these bills were passed and signed into law by Governor Fallin.

As we look to the future, some of the legislative ideas that we’ve been asked to comment on, include requiring private limousines and party buses that sell alcoholic beverages to obtain an ABLE license. We also want to work toward modifying Oklahoma’s mixed beverage license classifications that currently include Type I establishments (bars only- allows 21 years and older), Type II establishments (restaurants only), and create a new Type III designation intended exclusively for qualified event facilities, such as Chesapeake Arena and the BOK Center.

Whatever laws may be enacted, our mission here at the ABLE Commission remains the same: Enjoy Oklahoma and all the state has to offer, but: KEEP IT SAFE.

 

Oklahoma Update: Beer Returns & the Retail Tier
John Maisch, General Counsel

On November 19, 2012, the Alcohol and Tobacco Tax and Trade Bureau issued a ruling clarifying the circumstances where malt beverages may be returned by retailers and exchanged by distributors without constituting an unlawful consignment prohibited by federal law. TTB Rul. 2012-4.

The ABLE Commission has been asked a similar question: Is it permissible for a package store to solicit a Class-B Wholesaler, or for a Class-B Wholesaler to offer, to exchange malt beverage products that have reached or are approaching their expiration date, regardless of whether that Class-B Wholesaler originally sold the package store those malt beverage products?

Quality control is a concern to all members of the alcoholic beverage industry, particularly the malt beverage industry, where the products have a relatively short life span. Brewers, nonresident sellers, Class-B wholesalers, and package store owners have a vested interest in reducing the frequency in which an out-of-date malt beverage product is sold to a consumer.

Unfortunately, there are instances in which this objective runs counter to competing industry objectives. Brewers naturally want to capture as much market-share as possible, and therefore want to provide as much product to the distribution-level that the market will bear. Likewise, Class-B wholesalers are also fighting to secure market share and are therefore apt to over-purchase, rather than under-purchase, malt-beverage products if the alternative means losing out to a competitor when supplies in fact run short.

Since projecting consumer demand far into the future is an inexact science, however, there are times when both brewers and Class-B wholesalers may find themselves with too much inventory in their warehouses and therefore reduce prices in order to avoid sitting on out-of-date product. Package stores are similarly attempting to predict consumer demand, and it is during these mark-down periods that package stores sometimes over-purchase these malt beverage products from Class-B wholesalers in the hopes of realizing larger margins on the sale of these products to the consumer.

Subsequently, when a package store is unable to sell its entire inventory of these malt beverage products, it is alleged that the retailer will approach Class-B wholesalers about changing out those products that are out-of-date or nearing their expiration date, at no additional cost to the package store. If a particular Class-B wholesaler refuses to change out these products, then the package store will simply call another Class-B wholesaler, who will grant their request in order to secure that package store’s next order. This is alleged to occur, even though the second Class-B wholesaler was not the distributor who sold that package store its original malt beverage order.

This requested action, if it occurred in Oklahoma, would constitute a violation of several statutes and rules in Oklahoma, including the prohibition against consignment, inducements, and providing things of value. However, that being said, there are scenarios, such as those contemplated in TTB Ruling 2012-4, that would not constitute a prohibited action under Oklahoma law. The ABLE Commission will be addressing the TTB Ruling in more detail in the months ahea.

 

Oklahoma Update: ABLE Disciplinary Hearings Overview
John A. Maisch, General Counsel

Like all regulatory agencies, the ABLE Commission has a vested interest in ensuring that its disciplinary proceedings are conducted in a fair and judicious manner. As such, the Oklahoma Alcoholic Beverage Control Act and the Oklahoma Administrative Procedures Act ensure that licensees accused of committing administrative infractions are provided due process.

Due Process in Administrative Proceedings

The ABLE Commission is a constitutionally created state agency entrusted with the power to regulate the alcoholic beverage industry in the State of Oklahoma. Article 28, §1 et seq. Its enabling statute is set forth in the Alcoholic Beverage Control (“ABC”) Act, 37O.S. §502 et seq., and the Oklahoma Administrative Code, OAC 45:1-1-1 et seq. A liquor license is a purely personal privilege that is not alienable or transferable by the licensee. 37 O.S. §532. Those persons granted the privilege of maintaining liquor license are subject to disciplinary action when their misconduct. 37 O.S. §514(5).

Disciplinary proceedings are typically initiated when an ABLE agent issues an administrative citation against the licensee. In these situations, the licensee will receive an administrative ticket setting forth several important pieces of information, includingcitation number, the administrative charges being alleged against the licensee, and the date and time of the administrative hearing. A carbon copy of the administrative citation is sent to ABLE Commission office for processing. For those attorneys wishing to discuss a recently filed case, note that it can take 7-10 working days for the administrative citation to make it to the ABLE Commission’s Legal Division for review.

The Oklahoma Administrative Procedures Act (APA) set forth the procedures by which disciplinary hearings must be conducted by agencies, as defined in 75 O.S. §250.3. The ABLE Commission falls within the statutory definition of an agency. The APA addresses the procedural due process rights afforded to those who may be adversely affected by an agency’s action at 75 O.S. §309. The ABC Act provides comparable due process rights for those licensees accused of violating an administrative violation. 37 O.S. §530. Similar to the APA, the ABC Act requires notice to be provided to the licensee, as well as an opportunity for the licensee to contest the administrative charges levied against him. The APA requires that the administrative citation provide only “short and plain statement of the matters asserted.” 75 O.S. §309(B)(4). While the administrative citation issued by the ABLE agent contains sufficient information for the licensee’s attorney to

understand the allegations being made against his client, the attorney may wish to further flesh out the allegations by requesting a more definite statement from the agency as permitted by the APA. Id.

Discovery in Administrative Proceedings

The ABLE Commission has the power to issue subpoenas duces tecum, pursuant to its administrative subpoena powers set forth at 37 O.S. §514(11). In addition, all ABLE licensees are required to maintain all books, records, inventories, invoices and other accounting documents associated with the license for three (3) years and are required to make those records available for inspection by the ABLE Commission at all times. 37 O.S. §552. Unlike the ABC Act, however, the APA also provides both the agency and the licensee the opportunity to conduct depositions. 75 O.S. §315(A)(2).

It is important to note that neither the ABC Act nor the APA expressly allows the ABLE Commission or its licensees to avail themselves of other discovery tools that might otherwise be available in civil proceedings, such as interrogatories, requests for admission, or requests for physical or mental examinations. Legitimate questions arise as to how to reconcile the Oklahoma Open Records Act and records generated by an agency while prosecuting an administrative hearing.

The Open Records Act was intended to “facilitate the public’s right of access to and review of government records so that they may efficiently and intelligently exercise their inherent political power.” 51 O.S. §24A.2. However, the Open Record Act makes exceptions for a variety of records that would be generated by an agency in the prosecution of a licensee, including the following:

1. Records protected by attorney-client privilege, work product, or the identity of an informer. 51 O.S. §24A.5(1)(a).
2. Personal notes prepared as an aid to memory. 51 O.S. §24A.9.
3. Litigation files and investigative reports. 51 O.S. §24A.12.

Despite these exceptions, when prosecuting disciplinary hearings, I have consistently chosen to provide the licensee a copy of the investigation report submitted by the ABLE agent upon request of the licensee or the licensee’s attorney.This action is consistent with the §24A.8(3) of Title 51, which provides that:

“Law enforcement agencies shall make available for public inspection, if kept, the following records… [a] chronological list of all incidents, including initial offense report information showing the offense, date, time, general location, officer, and a brief summary of what occurred.” 51 O.S.Supp.2009, §24A.8(3).

Disciplinary Hearing

Both the APA and ABC Act set forth procedures by which disciplinary hearings are conducted before the ABLE Commission. 75 O.S. §309 and 37 O.S. §530. The ABLE Commission’s Director is given the statutory authority to appoint an administrative law judge to hear arguments in the case. The administrative law judge reports his proposed findings of fact and conclusions of law to the Director. 37 O.S.§530.1. The licensee has fifteen (15) days after receiving notice of the Director’s determination to appeal the decision to the full ABLE Commission. Id.

When a case it appealed to the full ABLE Commission, both parties are provided an opportunity to present their legal arguments to the full Commission in open session. Like most agencies, these appeals are based on the record, not de novo. The Open Meeting Act allows the Commissioners to enter Executive Session to deliberate. 25 O.S. §307(B)(8). However, all votes concerning the matter must be taken in open session.It is critically important that no votes be taken on the appeal while in Executive Session.

Conclusion

The ABLE Commission is committed to protecting a licensee’s due process rights as provided under the ABC Act and APA, as well as furthering the legitimate goals advanced by the Open Meeting Act and Open Records Act. It is important that all prosecuting agencies continue to reconcile these various state laws while fulfilling their agencies’ objectives.

This article is an excerpt from a webcast presented by John Maisch on behalf of the Oklahoma Bar Association’s continuing legal education program on May 3, 2011. The webcast in its entirety is available through the OBA’s website at www.okbar.org or by calling (405) 416-7006. The OBA has approved the webcast for continuing education and charges $50.00 to view the 50-minute webcast.

 

Oklahoma Update: Oklahoma City NCSLA Conference – 2012
A. Keith Burt, Director Oklahoma ABLE Commission

We are quickly returning to our daily routine here at the Oklahoma ABLE Commission. The last month has been very busy for staff as we hosted the Regional conference for the National Conference of State Liquor Administrators here in Oklahoma City.

I had promised to publish the evaluations of the fifteen panels that were presented during the two and a half day business agenda when they were compiled, so here they are.

Evaluations were assigned numeric values as follow: Poor – 1, Fair – 2, Good – 3, and Excellent – 4.

Panels were assessed a score based on the average of all graded panelist.

1. To Catch a Moonshiner 3.96
2. Battle for Whiteclay: Temperance & Taxation 3.84
3. Bright vs. Lawson: Unlawful Trade Practices 3.76
4. Annual Conference 2013 – Hawaii Preview 3.75
5. TTB – Kentucky Initiative 3.70
6. Branding Success Story – Eskimo Joes 3.64
7. Agency Capture & the Ethical Government Lawyer 3.63
8. To Serve or Not to Serve 3.59
9. Direct Shipment Update 3.59Bright Vs Lawson
10. Tied House Regulation of Social Media 3.56
11. Disclosure Requirements in Reporting Complex Ownership Structures 3.54
12. Technology & Innovations Update 3.45
13. TTB’s Cola Initiative 3.13
14. TFWS’s Furtherance Test: How States Lost Their Presumption of Validity & How They Can Get It Back 2.98
15. Tribal Sovereignty & State Liquor Regulations 2.92

Later this month on our ABLE Commission website, we will post the results of the individual panelists as well.

I was very proud so many Oklahomans graded very well. With 4 as a perfect score, 3.96 earned top marks for panels with “To Catch a Moonshiner”. The only perfect score was received by Evan Lawson, an experienced trial lawyer practicing in Boston, Massachusetts, for his participation on the panel, “Unlawful Trade Practices”. This much anticipated rematch from last summer’s battle in Washington, D. C. featured two of the very best as Lou Bright, Attorney with Jack Martin & Associates, Austin, Texas, pitted wits with Evan Lawson to the entertainment and education of a thrilled audience.

With the holiday season greatly approaching, I want to wish everyone a happy, safe, and prosperous holiday season. No one wants to get a ticket, go to jail, or even worse, be a part of, or cause an accident. So remember, over the holidays let's all get home safely. If you’re going to drink, BE RESPONSIBLE.

 

Oklahoma Update: Oklahoma ABLE Commission plays host to National
Conference of State Liquor Administrators (NCSLA)
A. Keith Burt, Director Oklahoma ABLE Commission

September 30 through October 3, 2012, the Oklahoma ABLE Commission hosted the NCSLA’s regional conference in Oklahoma City, Oklahoma.

Regulators and industry members were treated to a powerful business agenda as well as a social agenda that showed off Oklahoma’s warm hospitality. The conference was a huge success by all accounts, almost doubling the last couple of years’ regional attendance. Some attendees remarked that our regional conference was the same caliber and quality of an annual conference, while others remarked the Oklahoma City Conference should be used as a model for regional conferences going forward.

The business agenda showed a balance with panelist providing insight into tribal sovereignty, states rights and disclosure requirements. We had discussions on direct shipment, dram shop updates along with risks involved in serving alcohol. Oklahoma added a local flavor as founder of Eskimo Joe’s, Stan Clark, shared his amazing success story. Special Agent in Charge Joe Daniels of the Oklahoma ABLE Commission showed the not so glamorous side of the moonshine
business.

Technology advances were presented and Continuing Legal Education (CLE) was offered to attendees. We examined unlawful trade practices and discussed ethics with Oklahoma’s own General Counsel John Maisch, who was the driving force behind so many thought provoking panels.

The NCSLA showed it is not afraid to address controversial issues as “Battle for Whiteclay” was a moving experience for everyone in attendance. The social agenda was equally impressive as Oak Tree National, which has been the site to major PGA events, played host to the NCSLA golfers. An off site dinner and poker tournament on Monday night was followed by a breathtaking view of Oklahoma City from the 35th floor of the Petroleum Club acting as the backdrop for Tuesday’s banquet. Some how we managed to provide dining at the Silks Restaurant for Remington Park’s 24th running of the Oklahoma Derby, a Murrah Building tour and a National Cowboy and Western Heritage Museum visit during the few free hours attendees had. Long time retailer Byron Gambulos was honored for a lifetime of responsible retailing and retired ABLE Commission General Counsel Kurt Morgan was recognized for his work with the liquor industry while at the ABLE Commission.

We closed the conference with our honored guests from Hawaii as NCSLA participants were treated to a sneak peek of next year’s annual convention in Honolulu, Hawaii, June 24 through 28, 2013.

The Commissioners of the Oklahoma ABLE Commission and I were grateful for the opportunity to show Oklahoma off to visitors from around the country. With limited staff and budget, I believe the Oklahoma ABLE Commission displayed the warmth and hospitality of Oklahoma, while presenting a first class business agenda.

I may have to take a brief respite before inviting everyone back for another conference, but rest assured, staff answered the challenge and made us all proud.

 

OCTOBER 25, 2012
OKLAHOMA UPDATE: Tequila Recall Spotlights Communication
John A. Maisch, General Counsel

Last month, the ABLE Commission received notice that half gallon bottles of 1800 Tequila Silver, Resposado, and Coconut were being voluntarily recalled by the product manufacturer. Product recalls are a serious subject to both state regulators and industry stakeholders, especially when those recalls involve possible threats to consumer safety.

In its August press release, the tequila manufacturer announced that it had decided to voluntarily recall the bottles due to potential damage to the glass stopper incurred during transportation and handling of the product. After being notified of the recall by the product’s nonresident seller, Republic Distributing, the ABLE Commission immediately required all ABLE licensees to discontinue selling or serving the recalled products pursuant to its emergency powers set forth in Oklahoma Statutes.

The ABLE Commission oversaw Republic’s efforts to collect cases of the recalled product from Class-A wholesalers in the state, contacting every wholesaler to verify that each wholesaler had made the collection effort a top priority. The ABLE Commission was also successful in transmitting the recall information to the state’s two largest daily newspapers, the Daily Oklahoman and Tulsa World, which both subsequently ran stories in an effort to notify consumers about the recall.

Because all spirits are required to be purchased through a wholesaler, the ABLE Commission was able to obtain an accurate list of all Oklahoma mixed beverage establishments and package stores that had purchased the product from a wholesaler within the last thirty days. Using that list, the ABLE Commission was better able to assist the nonresident seller and wholesalers in the recall effort. ABLE Commission Director Keith Burt personally called restaurants and package stores into the evening hours to notify them of the product recall.

To date, the ABLE Commission has not been notified of any verified findings of glass in any of the recalled bottles in Oklahoma. However, the recall served as a reminder of the importance of maintaining prompt and reliable communications with licensees. When a product has been recalled, the ABLE Commission will promptly issue a press release on its website, www.able.ok.gov. All licensees are encouraged to bookmark the agency’s website and check it frequently to keep apprised of important breaking news such as a product recall.

Any mixed beverage establishment or package store that locates any recalled product that wasn’t retrieved should contact its Class-A wholesaler or Republic immediately so that the recalled product can be picked up. To view a list of affected lot codes, you may view the manufacturer’s website, www.1800tequila.com, call 866-795-8805, or email info@1800tequila.com.

 

OKLAHOMA UPDATE: STATE REGULATORS & INDUSTRY LEADERS TO MEET IN OKC
A.Keith Burt, Director, Oklahoma ABLE Commission

The National Conference of State Liquor Administrators will hold its Northern- Southern Regional Conference in Oklahoma City on September 30, 2012 to October 3, 2012. ABLE licensees and all other interested persons are invited to join liquor administrators and liquor industry leaders from throughout the United States as they meet to discuss some of today’s most important regulatory issues.

DIRECT SHIPMENT UPDATE

The Wine Institute's Steve Gross will provide an update on recent changes to direct shipment statutes across the country. Headquartered in San Fransciso, California, the Wine Institute represents over 1,000 California wineries and affiliated businesses.

TO SELL OR NOT TO SELL: MITIGATING DRAM SHOP & OTHER RISKS

Washington DC-based Adam Chafetz, President and CEO of TIPS, moderates a panel focusing on practical steps retailers can take to mitigate or reduce the likelihood of civil, criminal, or administrative penalties associated with selling or serving an intoxicated person.

TRIBAL SOVEREIGNTY & STATE LIQUOR REGULATION

Mike McBride, Supreme Court Justice of the Pawnee Nation, brings together state liquor regulators and tribal attorneys to discuss a variety of complex issues related to enforcing state liquor laws on tribal land and in tribal casinos.

HOSPITALITY BRANDING SUCCESS STORIES

Once reported to be the second most collected t-shirt in the world, Eskimo Joe’s Co-Founder, Stan Clark, shares how he grew the Stillwater- based restaurant’s brand into one of the most recognizable in the world and where he sees the hospitality industry headed in the next decade.

TTB LABEL APPROVAL CHANGE INITIATIVE

Susan Evans, Executive Liaison for Industry Matters with the Alcohol & Tobacco Tax and Trade Bureau, discusses proposed changes to the federal agency's label approval process, including a simplified COLA for some products.

TIED HOUSE REGULATION OF SOCIAL MEDIA

Jerry Dinallo, Diageo's Senior Managing Director and Regulatory and Compliance Counsel, leads a panel of in-house counsel, regulators and alcoholic beverage law specialists as they discuss the challenges and trade practice compliance issues that arise with the continued emergence of social media sites and other digital platforms.

ATTACKING "ACTUAL FURTHERANCE"
ANALYSIS: HOW STATES CAN GET BACK THEIR PRESUMPTION OF VALIDITY

Georgia attorney Max Hess and his panel examine the strengths and weaknesses of the "actual futherance" analysis.The panel will discuss how state legislatures and liquor agencies can fight to win back the presumption of validity under the 21st Amendment once taken for granted by most courts.

DISCLOSURE REQUIREMENTS IN REPORTING COMPLEX OWNERSHIP STRUCTURES

New York-based attorney Nicholas Bergman and his panel delve into the intricacies of licensing complex entities, while considering whether there is a more efficient and business- friendly approach to handling the business of regulating today’s highly sophisticated beverage alcohol industry.

TO CATCH A MOONSHINER - THE DIRTY TRUTHS THAT CABLE TELEVISON COULDN'T SHOW YOU

ABLE Commission SAC Joe Daniels takes attendees on a photo journey into moonshine operations located in the backwoods of southeastern Oklahoma. Captain Daniels shares the disturbing practices employed by moonshiners, including the story of one Oklahoma moonshiner who would shoot his own dogs and leave their decomposing bodies outside of the shed to mask the scent of his latest batch of shine

BATTLE FOR WHITECLAY - TEMPERANCE VS. TAXATION

Winner of Best Political Documentary at the 2009 New York International Film Festival, film maker Mark Vasina discusses Whiteclay, Nebraska, an unincorporated town of 12 people whose four convenience stores sell approximately 4.9 million cans of beer every year to the residents of the Pine Ridge Indian Reservation located 200 yards away.

Registration for the NCSLA Conference at the Cox Convention Center is now open. Interested persons may register on-line at www.ncsla.org or by calling Janice Wariner at the ABLE Commission at 405-522-3003.

 

NATIONAL CONFERENCE OF STATE LIQUOR ADMINISTRATORS NORTHERN-SOUTHERN REGIONAL CONFERENCE
SEPTEMBER 30 – OCTOBER 3, 2012
RENAISSANCE HOTEL & COX CONVENTION CENTER, OKLAHOMA CITY, OKLAHOMA

MONDAY, OCTOBER 1, 2012

Tribal Sovereignty & State Liquor Regulation
Moderator: Mike McBride, Esq. Pawnee Nation Supreme Court Justice, Tulsa, Oklahoma

In Defense of the Three-Tier System
Moderator: Max Hess, Esq. , Taylor, Feil, Harper, Lumsden & Hess, Atlanta, GA

Battle for Whiteclay: Temperance & Taxation
Presenter: Mark Vasina, Documentary Filmmaker 2009 New York International Film Festival, Best Political Documentary

Paint Jobs & Free Pizza: What Constitutes an Unlawful Trade Practice
Presenters: Lou Bright & Evan Lawson

TUESDAY, OCTOBER 2, 2012

To Serve or Not to Serve: Dram Shop & Other Risks
Moderator: Adam Chafetz, TIPS, Virginia

Branding Success Story
Presenter: Stan Clark, Founder, Eskimo Joe’s (Stillwater)

Disclosure Requirements in Reporting Complex Ownership Structures in the Modern Licensing Age
Moderator: Nicholas Bergman, Esq., Buchman Law Firm (New York City)

Tied House Regulation of Social Media
Moderator: Jerry Dinallo, Diageo

Direct Shipment Update
Presenter: Steve Gross, Director of State Relations, Wine Institute, San Francisco

To Catch a Moonshiner: The Dirty Truths That Cable Television Couldn’t Show You
Presenter: Joe Daniels, SAC, Enforcement Division, Oklahoma ABLE Commission

WEDNESDAY, OCTOBER 3, 2012

Technology & Innovations Update

TTB Label Approval Change Initiative
Presenter: Susan Evans, Tax & Trade Bureau

Registration begins on Saturday, September 29, 2012. Go to www.NCSLA.org to register and to find full conference details.

 

Oklahoma Update: A Few Changes for the Summer
A. Keith Burt, Director, Oklahoma ABLE Commission

Another legislative session has come to an end and we have a few new laws to report to Beverage News readers.

Senate Bill provides that universities or colleges located within a business improvement district will be allowed to waive the current restriction prohibiting a bar from locating within 300 feet of that university or college.

Senate Bill prohibits state agencies other than the ABLE Commission from imposing redundant licensing or fee requirements on wholesalers who sell alcoholic beverages to gaming facilities licensed by the Horse Racing Commission.

Senate Bill 1263 strengthens cities’ and municipalities’ power to review and protest low- point beer applications prior to issuance.

While some bills passed, other legislative efforts failed, including bills that would have allowed minors to enter package stores if accompanied by a parent or guardian (House Bill 2930), allowed limited sampling in package stores (House Bill 2954), and would have allowed felons to obtain an employee license three years after the completion of their sentence (House Bill 2867). Another piece of legislation, House Joint Resolution 1015, would have allowed voters to decide whether bottle openers and cork screws could be sold in package stores. The referendum passed the House but failed to get out of the Senate Rules Committee.

On a related note, the initiative petition that calls for a constitutional amendment allowing grocery store wine sales was unsuccessfully challenged at the Oklahoma Supreme Court. The initiative petition, submitted by the Oklahomans for Modern Laws, would allow grocery stores containing at least 25,000 square feet, located in counties of 50,000 or more residents, and not located within 300 feet of an existing package store, to obtain multiple off-premises licenses for the purpose of selling un-refrigerated wine. Following the unsuccessful court challenge, grocery store wine supporters have announced plans to collect the signatures this fall but to delay the vote until November 2014.

Now for some good news. For the first time in three years, Oklahoma’s revenue collections were sufficient to avoid budget cuts for the ABLE Commission. Still, standstill budgets rarely have a neutral impact. The costs of goods we purchase, along with rising health care and pension funding, continue to increase, so standstill budgets do not usually allow us to maintain current staffing levels. Our staffing level is now at a 28 year low, while active licenses issued by the ABLE Commission have grown to an all time high.

Doing more with less seems to be a trend. Government funding, at least for state government services, is not keeping pace with the demand or need. However, our workforce here at the ABLE Commission remains focused on the job at hand, wearing multiple hats and getting the work out.

Our leadership stems from our Board of seven Commissioners. Appointed by the Governor for five year terms, these volunteers provide oversight, guidance and direction, while receiving no salary. We say good-bye to one of those commissioners this month, Desmond Sides, appointed by Governor Keating in 1996, who leaves us after 16 years of faithful service to the citizens of Oklahoma and the Oklahoma ABLE Commission. Commissioner Sides has left his mark on the Commission with his deliberate and insightful approach. Commissioner Sides was always ready to listen to every side, which in our business was sometimes more than two. Nearly every decision we are asked to address could have an impact on manufacturers, wholesalers, retailers and public safety. With an understanding of our laws and a desire to reach an equitable solution, Commissioner Sides listened and ruled fairly for sixteen years. My personal perspective as an administrator and as a regulator, serving at the pleasure of the board, is that I have been blessed to serve a man with high ideals and character beyond reproach, who always had time to listen to my problems. Commissioner Sides will continue to practice law in Poteau, Oklahoma.

Happy trails my friend, until … well you know the rest.
Desmond Sides, Esq., CPA
ABLE Commissioner July 1996 – June 2012

P. S. Please forgive me, Desmond, this sounded way too much like you were being eulogized.

 

ABLE Website For Immediate Release
August 10, 2012

The ABLE Commission received notice that certain 1.75 Liter bottles of 1800 Tequila have been voluntarily recalled by its manufacturer. In the State of Oklahoma, the product’s nonresident seller, Republic, is coordinating efforts to retrieve and issue credit to ABLE licensees for recalled bottles of the product in the state.

The ABLE Commission is requiring all ABLE licensees to immediately discontinue selling or serving any of the recalled products containing the affected lot codes, pursuant to its emergency powers set forth in Oklahoma Statutes. 37 O.S. §§514, 528(I).

Any mixed beverage licensee or package store licensee that locates the recalled product should contact your Class-A wholesaler or Republic at (405) 702-4500 immediately so that the recalled product can be picked up.

To view a list of affected lot codes, you may view the manufacturer’s website, www.1800tequila.com, call 866-795-8805, email info@1800tequila.com.

An excerpt from the manufacturer’s press release is set forth below:

"Agavera Camichines, S.A. de C.V. , the brand owner of 1800® Tequila, today announced a voluntary US nationwide recall of 1800® Tequila 1.75 Liter Silver, Reposado and Coconut packaging due to potential damage during transportation and handling in some cases to the glass stopper.

"Please be aware that 1800 Tequila in all other sizes (50 ml, 200ml, 375ml, 750 ml and 1 Liter) are not impacted. In addition, 1800 Tequila Anejo, Select Silver (100 Proof) and 1800 Ultimate Margarita products are not impacted.

"Although it is believed that the percentage of affected bottles is low, to protect the safety of consumers, the brand owner, Agavera Camichines, S.A. de C.V., has made the decision to voluntarily recall the 1800 Tequila 1.75 Liter packaging as a precautionary measure. There have been no reports of consumer injuries, but the presence of small particles of glass in the bottle could pose a health risk.”

Press Inquiries should be emailed directly to the manufacturer at Media.Inquiries@1800tequila.com or mmccrea@mmprpublicrelations.ca, or you may call 416-435-5019.

 

Oklahoma Update: Statewide Prohibition: The Early Years
John A. Maisch, General Counsel, Oklahoma ABLE Commission

Over 27,000 gallons of beer poured into Oklahoma City sewers on November 17, 1907, when Oklahoma officially became a state. The night before, revelers crowded the streets to indulge in one more round before the lights were turned off on legal consumption in the city’s saloons.

State law enforcement officials quickly discovered what the federal law enforcement officials would similarly find out just a few years later: Prohibition did not stop consumption, it only changed the manner and mode in which alcohol was manufactured, distributed, and consumed.

Ironically, Prohibition drove consumers away from beer, the low alcohol content drink that had become so popular in the United States since German immigrants arrived in the country in the mid-1800’s, to the higher alcohol content contained in distilled spirits. After all, there were higher profit margins in distilled spirits, whether it was smuggled into the U.S. from overseas or distilled under cover of darkness in a still hidden deep in the woods.

Ultimately, neither federal nor state law enforcement efforts could outmatch the ingenuity or determination of the hundreds of bootleggers looking to satisfy the demand of thousands of Oklahoma residents who refused to stop consuming alcoholic beverages.

To make matters worse, the Oklahoma Constitution only prohibited alcoholic beverages from being manufactured within the state. Thanks to the Commerce Clause, and the federal government’s glaring reluctance to curtail the flow of alcoholic beverages into the state, federal tax stamps continued to be imported by Oklahoma residents well into the first decade after statehood.

Not until Congress addressed this federal loophole through the passage of the Webb-Kenyon Act were these interstate shipments into Oklahoma finally stopped. Passed by Congress over the veto of President William Howard Taft , the Webb-Kenyon Act made it unlawful for alcoholic beverage to be transported into dry states, if those alcoholic beverages were intended for consumption in that dry state. 27 U.S.C. §122. The U.S. Supreme Court upheld the constitutionality of the Web-Kenyon Act in Clark Distilling Company v. Western Maryland Railway Co., 242 U.S. 311 (1917).

 

OKLAHOMA UPDATE: OKLAHOMA CONSTITUTIONAL CONVENTION
John A. Maisch, General Counsel, Oklahoma ABLE Commission

Oklahoma’s Constitutional Convention delegates were mostly farmers, but the two delegates who wielded the most influence over the issue of prohibition at the Convention were two attorneys, William “Alfalfa Bill” Murray and Charles Haskell. Convention President Murray presided over the gathering, while Majority Leader Haskell worked behind the scenes to secure majorities on most of the controversial issues facing the delegates, including the issue of prohibition. A teetotaler and self-trained attorney from Ohio, Haskell had settled in Muskogee, a small town located in Indian Territory, in 1901.He made quick friends with the prohibition organizations upon arriving in Guthrie. With the help of Murray, Haskell was successful in getting a statewide prohibition provision inserted onto the ballot.

Haskell’s efforts were nearly derailed by the Committee on Liquor Traffic. Handpicked by Haskell and the Anti-Saloon League, the 15-member Committee was appointed to study the issue of statewide prohibition and submit its recommendations to Convention delegates. Misjudging the political strength of anti-prohibition forces, the Committee on Liquor Traffic sought out a compromise with those who opposed prohibition. The compromise, which would have continued prohibition in those counties formerly located in Indian Territory while allowing liquor on a county-option basis in all other counties, was completely unacceptable to Haskell. The compromise submitted by the Committee on Liquor Traffic was rejected by Constitutional Convention delegates.

Soon to be elected the State of Oklahoma’s first Governor, Haskell would champion the statewide prohibition provision through the Constitutional Convention on March 15, 1907. A little more than six months later, on September 17, 1907, Oklahoma voters would overwhelmingly ratified the state’s first Constitution by a vote of 180,333 (71%) to 73,089 (29%). Statewide prohibition would not garner the same level of public approval. Fearing that its inclusion might risk defeat of both questions, the Convention delegates submitted constitution ratification and statewide prohibition as separate questions on the ballot. Prohibition supporters were justified in being concerned. The statewide prohibition provision was ratified by Oklahomans, but by a much narrower margin: 130,361 (54%) to 112,258 (46%). Oklahoma’s Constitution, including the statewide prohibition provision, became effective November 17, 1907.

 

OKLAHOMA UPDATE: OKLAHOMA CONSTITUTIONAL CONVENTION
John A. Maisch, General Counsel, Oklahoma ABLE Commission

Over a century ago, leaders from both Oklahoma and Indian Territories converged on Guthrie on November 20, 1906, to consider constitutional provisions for the proposed state. Proponents and opponents of prohibition were not far behind.

With such different policies on the sale of alcoholic beverages, our state’s founders were forced to take position on the issue: How would the state’s new constitution address alcoholic beverage sales within its border.

By the late 1800’s early 1900’s national prohibition and anti-prohibition movements had already sprung up across most of the United States. These movements had various origins, but most had religious, ethnic, and economic overtones.

One of the prohibitionists’ primary concerns was tied houses, saloons that were either owned or funded by particular liquor and beer manufacturers. These saloons would be home to many nefarious activities, such as gambling and prostitution.

Supported by national malt beverage interests, the German American Association established a presence in Guthrie to counter the prohibition message espoused by the Anti-Saloon League and the Woman’s Christian Temperance Union.

Along with the local organizations such as the Citizens League and the Liquor Men’s Association, the German American Association argued that statewide prohibition would have an adverse impact on the proposed state’s economy.

The Oklahoma Constitutional Convention was composed of 112 delegates,58 from Oklahoma Territory, 58 from Indian Territory, and 2 from Osage Nation. Ninety-nine delegates (88%) were Democrats, 12 delegates (11%) were Republican, and the remaining delegate was an Independent.

Over the next four months, delegates addressed all of the most pressing issues that would confront a new state, but perhaps no single issue caused more consternation than prohibition.

 

ABLE Commission Legislative Updates
APRIL 16, 2012
A. Keith Burt Oklahoma ABLE Commission

The Oklahoma Legislature convened February 6, 2012 and as usual legislation will be introduced or carried over from the first session at the 53rd Oklahoma Legislature that could affect the ABLE Commission.

Our agency deals with charitable gaming and prevention of youth access to tobacco legislation, but for this publication I will only present the items affecting the alcoholic beverage industry.

We are currently monitoring the following Senate or House bills. Our staff researches and our General Counsel presents updates of these bills in greater detail at our monthly Commission meeting. The Commission meets on the third Friday of each month at 10:00 a.m., at the Oklahoma City Office, 3812 N. Santa Fe, Suite 200.

House Bill 2477 by Representative Seneca Scott allows breweries to provide limited samples at the brewery (10 oz. total serving a day).

House Bill 2867 by Representative Mike Shelton allows felons to obtain employee licenses after three years following the completion of the sentence.

House Bill 2789 by Representative Charles Ortega reduces winemakers self distribution fee from $750 to $250.

Senate Bill 1218 by Senator David Holt would allow universities and colleges to waive the 300 foot restriction in a business improvement district.

House Bill 2725 by Representative Scott Inman would prohibit low point beer purchases using a self-check out in grocery stores.

House Bill 3147 by Representative Steve Martin would clarify language to allow donated wine and beer at the same charitable event.

House Bill 2954 by Representative Joe Dorman would allow samples of alcoholic beverages at retail liquor stores.

House Bill 2958 by Representative Mike Christian would require restaurants and bars to carry a minimum of $350,000 liability insurance.

House Bill 2930 by Representative Don Armes would allow persons under 21 to enter into a package store but not approach the cashier (nor make a purchase)
.
Senate Bill 570 by Senator Rob Johnson would expand the scope of employee licenses to include wineries
.
Senate Bill 659 by Senator Clark Jolley would modify the definition of “Oklahoma Winemaker” and addresses festivals and trade shows.

A closer look at these bills and other legislation that could affect the ABLE Commission is presented at our monthly meetings in the legislative review portion that provides updates through the end of the Oklahoma Legislative session.

 

Commission Reaches Out to Applicants
Seeking Preliminary Confirmation of 300' Distance from Church or School

Applicants seeking a package store license or bar license are reminded that no package store or bar may be located within 300’ of a church or school. 37 O.S. §518.3. The distance is measured from the nearest perimeter wall of the proposed location to the nearest property line of the church or school.

Generally, the ABLE Commission will confirm the distance while performing its on-site inspection at the conclusion of the application process. Time permitting, an applicant may contact the ABLE Commission to request a preliminary measurement. However, if a question exists whether a proposed location falls within the 300’ proximity restriction, applicants are strongly encouraged to contact a licensed surveyor.

 

MARCH 13, 2012
For Immediate Website Release
ABLE Commission Addresses March Madness Contests

In 2004, the ABLE Commission addressed whether it was lawful to play Texas Hold 'Em in a mixed beverage establishment. The Commission’s position was that poker would be allowed only under the most limited of circumstances, specifically that there was no cost to participate and no prizes could be awarded. There has been no legislative action that would prompt us to revisit this position at this time.

Consequently, NCAA March Madness contests would also be prohibited in mixed beverage establishments if 1) patrons must pay to participate in the pool 2) for the chance to win cash, a gift certificate, food credit, or other valuable consideration. 21 O.S. §1051. It should be noted that, even if patrons are not required to pay to participate in the basketball pool, Oklahoma law prohibits mixed beverage establishments from giving away alcoholic beverages in connection with any contest, 37 O.S. §537(B)(4)(f).

The ABLE Commission emphasizes that Oklahoma’s gambling prohibitions are criminal statutes, not administrative statutes, created by the Oklahoma Legislature, not the ABLE Commission. As a general rule, these gambling prohibitions apply to all public places, not only mixed beverage establishments. Those citizens or mixed beverage establishments wishing to change Oklahoma’s gambling laws should contact their legislators.

Oklahoma law requires the ABLE Commission to enforce the laws of this state, particularly those involving alcoholic beverages. Nevertheless, locally elected, law enforcement offices are presumably in a better position, fiscally and logistically, to handle the investigation, property storage, and ultimate disposition of such violations. Therefore, unless there is an imminent threat to the public's safety or health, we believe it is more appropriate for local sheriff and/or police departments to assume the primary responsibility of enforcing such violations, rather the ABLE Commission, since the gambling statutes involve criminal statutes, not administrative statutes.

 

THE ABLE COMMISSION: A VOICE AT THE TABLE
A. KEITH BURT, DIRECTOR, OKLAHOMA ABLE COMMISSION

An article appeared in the February 2012 issue of “ADDICTION” entitled “Top Priorities for Alcohol Regulation in the United States: Protecting Public Health or the Alcohol Industry?” by Sarah M. Mart of Alcohol Justice.

“ADDICTION” publishes peer-reviewed research reports on alcohol, illicit drugs and tobacco behavioral addictions. ADDICTION has been published since 1884 by the Society for the Study of Addiction to Alcohol and other Drugs, a non-profit based in England that describes itself as a society that promotes professionals in the field of addictions to share their knowledge, skills and enhance the work of their members for the mutual benefit of all concerned with the study of addiction.

Ms. Mart’s article relates her experience at the National Conference of State Liquor Administrators (NCSLA) National Conference June 20-24, 2010, in New Orleans, Louisiana. Ms. Mart points out about 72% of the attendees are from the alcohol industry and that only 7 of the 21 states in attendance that sent a regulator sent more than one representative. She goes on to show 65% of the panelists were from the alcohol industry and that she was the sole public health advocate in attendance.

I remember the 2010 NCSLA National convention However, I remember not being there because of our latest budget crunch and conserving our resources by not going. When I related our financial situation to our seven Alcoholic Beverage Laws Enforcement (ABLE) Commissioners, each one understood and our only representative was a Commissioner that paid his own way. This Commissioner values the NCSLA and the information he receives from it. Keep in mind that Commissioners do not receive a salary for their participation on the Commission. This was not the case with Ms. Mart, whose trip was funded not by her organization “Alcohol Justice”, formerly the Marin Institute, and she did not pay her own way. Instead, the NCSLA paid for her to come in an effort to reach out to public health advocacy groups.

In addition to the number of industry members to regulators, Ms. Mart also points to, in my opinion, what was described as a bullying tactic by the industry to force the regulators to work with the industry to get to their support. Implications were perceived, if regulators did not follow their lead, consumers in the regulator's state could threaten their jobs. I do not feel threatened when working with the industry on their concerns.

Ms. Mart states in her article the purpose of NCSLA as found on its website NCSLA.org is as follows:
…to promote the enactment of the most effective and equitable types of state alcoholic beverage control laws; to devise and promote the use of methods, which provide the best enforcement of the particular alcoholic beverage control law in each state; to work for the adoption of uniform laws insofar as they may be practicable; to promote harmony with the federal government in its administration of the Federal Alcohol Administrators Act; and to strive for harmony in the administration of the Alcoholic Beverage Control laws among the several states.

Ms. Mart points out that because of safety and health concerns our residents depend on effective alcoholic beverage control laws, and that NCSLA might want to include public health as one of its professional and organizational priorities. Guess what Sarah, I agree. As the newly elected Southern Regional Chairman of NCSLA and as a member of its board, I am proud to say the Oklahoma ABLE Commission will be hosting the North-South regional this fall in Oklahoma City. My General Counsel and I are in the process of putting together interesting and informative panelists for the conference. We want to include public safety and health advocacy groups on those panels. Although I agree with Ms. Mart’s position on bringing public safety and health advocacy groups to the proverbial table, to have a voice. Nevertheless, I do not agree with the approach, to not to be a part of NCSLA because there is not enough representation of those groups. Why not choose to participate and be that voice? I personally believe the industry is wise to address their concerns with regulators. In Oklahoma we have industry and health and mental health leaders that we are in contact with each other on an on-going basis. Because of the strong leadership in the Oklahoma Department of Mental Health and Substance Abuse agency, we have had joint projects that have addressed many public health issues.

I believe there are unintended consequences as a result of Ms. Mart’s article. I believe it casts the NCSLA in an unjust and unfavorable light. NCSLA’s President William Kelley of Massachusetts strongly defended the organization and I am in support of his response.

But, where are we now? If one of our goals is to bring 1) health and public safety into this triangle with 2) industry and 3) regulators, have we taken a step back? Are communications better or worse now?

I hope Ms. Mart will come to the regional in Oklahoma City. I would warmly and sincerely welcome her. I am not, however, in favor of paying for that trip from NCSLA funds. I would rather give funds to regulators whose budgets do not allow them to come.

These are solely my opinions, but I am ready to start a dialog that will improve relations that lead to happy, healthy, safe citizens in Oklahoma and all other states.

The ABLE Commission: Saying Good-bye to 2011
A. Keith Burt, Director, Oklahoma ABLE Commission

In 2010, the ABLE Commission said good-bye to five longtime ABLE employees through retirement. Because of budget cuts, we were able to only refill two positions, but, thankfully, 2011 did not claim further ABLE retirees. 2012 will not be so kind, as we expect at least three more employees to retire.

In recent years our economy has presented challenges to both private and public companies and although uncertainties exist, I am encouraged as Oklahoma's economy continues to show signs of improvement. These signs give me hope that future retirements would be met with our ability to replace the retiring employees. It is difficult enough to lose all that institutional knowledge, compounded with the loss of manpower when critical positions are left unfilled, without your mission being compromised.

As 2011 drew to a close, the Oklahoma ABLE Commission had 41 full time focused employees. I have managers opening the mail and supervisors filling in at the front desk. We have most employees stepping up and wearing multiple hats.

When you have as few employees as we do, you tend to know everyone. You grow to care about other employee's and their families. I hope employees have satisfying work, do a good job and make it to their retirement goals, emotionally intact without bitterness, not beaten down by the job and in good health, able to enjoy the retirement they have earned

Two decades ago, we had twice as many employees, less work and it has been over five years and counting since state employees received their last pay raise.

The retirement wishes I have for myself and my colleagues just gets more complicated, yet they inspire me, with their dedication and faith.

We had many challenges in 2011, among them more budget cuts. Government consolidations continued and our agency was once again a target. We moved our offices at the end of September, and Oklahoma took a serious look at wine and strong beer in grocery stores.

As I say good-bye to 2011, I turn my attention to 2012 and what is in store for us this year. In a month the legislators will be back and I am hopeful when they convene some answers to our financial woes will occur. Collecting over five million dollars each year and receiving only a little over 3.1 million dollars, the ABLE Commission is a bargain, and if we were a for profit company, we would be in the black and paying dividends.

The ABLE Commission and its predecessor, the Alcohol Beverage Control Board (ABC), have been enforcing liquor laws and regulating the sale and distribution of alcoholic beverages since 1959. Alcohol is a unique product and serious consequences can occur if it were treated as pop. A New Year; same mission: Keep it safe.

Until this time next year, here's wishing you and yours a Happy New Year!

 

The ABLE Commission: Alcohol and Crime
Jim Hughes, Assistant Director, The Oklahoma ABLE Commission

Kids drinking beer and alcohol; what is the world coming to?

OK, I guess this is not a new problem. It has been a concern since I was a kid and my parents worried about me. It was a concern to me when my daughters were teenagers. What do we need to do and what can we do to address this problem before my grandchildren are teens?

We all know that if young people want to drink, they will find a way to obtain alcoholic beverages in some form. Recent surveys indicate that 65% of Oklahoma youth say getting alcoholic beverages or low-point beer is easy. Whether from a parent, family member, friend or retailer, adults are often the main source of alcohol for kids.

According to a 2001 study, underage drinking in that same year cost the citizens of Oklahoma $771 million. Included in the cost are medical care, loss of work, pain and suffering from problems due to use of alcoholic beverages. This same study showed that underage drinkers consumed 20% of all alcoholic beverages sold in Oklahoma, totaling $ 184 million in sales.

The Governor established a task force on the Prevention of Underage Drinking and requested a comprehensive plan to address the problem. The task force was comprised of community leaders state and local law enforcement, Department of Mental Health officials, legislators and educators. Most, if not all, are parents or grandparents.

The task force made its final recommendations in December 2006 with little or no publicity or fanfare. To date, even with the growing problem,there has been no effort to take advantage of the group's efforts. Will this study be bound and placed on the shelf like so many others and referenced only during the next study authorized to again examine the issue?

The task force made the following recommendations:

1. Create or designate a single agency to be responsible for coordinating underage drinking enforcement currently an individual receives a license from the state, the county and the municipality, which allows for the sale of alcoholic beverage and low-point beer.

The regulation and enforcement of state alcoholic beverage laws and low-point beer laws is parceled between local and state law enforcement agencies. There is clear authority over licensing but the enforcement of low-point beer law is an area that must be done by local authorities; while alcoholic beverage laws may and must be enforced by all law enforcement entities in the state.

Reporting underage sales or complaints of minors in possession of alcoholic beverages is not funneled to one responsible entity and is often lost in law enforcement’s list of priorities and limited resources.

2. Name the ABLE Commission as the agency authorized to enforce laws pertaining to low-point beer, as well as alcoholic beverages. The ABLE Commission has clear authority to license all establishments involved in the manufacture sale, delivery, mixing and serving of alcoholic beverages in the state of Oklahoma.

It has been the sole authority since 1959. It has established offices, policies and procedures in place that would easily assimilate the inclusion of low-point beer enforcement. Currently most on-premise licensees have an alcoholic beverage license. and a low-point beer license. ABLE agents during tobacco enforcement visit other low-point licensed locations. The Constitution and Attorney General opinions prevent low-point beer enforcement by the ABLE Commission.

3. Re-define low-point beer as an alcoholic beverage.The Oklahoma Constitution makes a clear distinction between low-point beer (once referred to as non-intoxicating liquor) and alcoholic beverages.

4. Strengthen state laws pertaining to underage drinking. Youth Access to Alcoholic Beverages and social host laws are a great start, but perhaps attention should be placed on the individuals or locations that continue to furnish kids with alcohol.

5. Increase law enforcement funding and resources to allow for proper and consistent enforcement of underage drinking laws.

6. Increase the tax on alcoholic beverages and low-point beer.

7. Encourage funding and implementation of prevention approaches that are evidence based; Cops-in-shops, shoulder tap, green card are a few programs that have proved to be successful in minimizing sales to minors. All are time and manpower intensive which strain limited resources.

8. Require and provide licensee education, to include employee training. This has been found to be a valuable asset for the regulator and licensees. The training allows special emphasis to be given to problem areas such as underage sales.

9. Develop and implement a statewide media effort.This has proven its worth in slowing youth use of tobacco as demonstrated by Health Department involvement and statistical information.

10. Enhance opportunities for youth leadership efforts. Proven that most effective anti-sales programs concerning youth use of tobacco are originated with and put forward and supported by the youth themselves. Just as many kids are interested in minimizing alcohol use and abuse. Mental Health and Health Departments have a successful track record that is easily modified to target underage drinking. The recent social host laws and ordinances put into place by several communities are a great first step. But lets not stop there we can do so much more.

How great would it be that after a very short time, most Oklahomans were talking about the changes made across the state that have made a difference in our youth's access to alcohol. By increasing the penalties for providing alcohol to young people we could send a strong message that would make adults think twice before handing it to them. That is was certainly not worth losing a job or the money spent on fines or living with the consequences of the actions of that underage person drinking.

Assigning responsibility of state law enforcement to a law enforcement agency and increasing those enforcement efforts would certainly seem the logical course of action by the state. The media effort, education of kids, parents, retailers and servers could be done with oversight from the Department of Mental Health, who currently coordinate the efforts to prevent youth access to tobacco.

Bottom line is that the cost of doing nothing is too high. We can certainly do better and this Task Force's recommendations make sense and should receive strong consideration from our state leaders. Oklahoma's youth are important to all of us. There is absolutely no reason Oklahoma can't be a leader in this effort.

The task force created a template for positive change in the way we address this problem, lets use it.

 

December 21, 2011
STRIKING A BALANCE
By A. Keith Burt, Director, Oklahoma ABLE Commission

Our work at the ABLE Commission often involves striking a balance. We never forget we are a law enforcement agency and ensuring compliance with the law is a great concern to us. The public safety issues we encounter, balanced with the economic concerns of our licensees and those of Oklahoma consumers, play a role in our administrative and enforcement efforts.

Recently, I was meeting on the Joint Legislative Task Force created by Senate Bill 658. This 21 member Task Force that I was a part of had a very diverse makeup. The Task Force consisted of health and public safety officials as well as alcoholic beverage industry representatives from the three tiers. Commerce, convenience and grocery stores were also represented. Lay citizens were appointed along with three Oklahoma State Senators and three Oklahoma State Representatives.

The Task Force’s purpose was to examine the feasibility of allowing high-point beer and wine to be sold in convenience and grocery stores. There were constitutional amendments to consider. Economic consequences to existing licensees that had been playing by a set of rules for more than fifty years with substantial personal investments were also to be considered. What about eventual costs to Oklahoma consumers? Would selection increase or decrease? The prices of not only wine and strong beer, but liquor as well are being examined.

Reports were given concerning impacts of economic relevance to the various groups. Health concerns and those impacts on Oklahomans were also discussed. My concerns of greater access by our youth were also discussed and I introduced reports from Washington State that showed compliance rates decreased when that state allowed wine sales in grocery stores. The exponential growth of licensees with increased hours of operation would certainly strain our existing manpower. I know that thirty-five other states allow the sale of wine in grocery stores and thirty-three of those allow convenience stores to sell wine. Because other states allow it does not mean it is right or wrong for Oklahomans. The Task Force was to disband no later than February 1, 2012 with a report to the Oklahoma Legislature. The ABLE Commission knows its role. We are law enforcers not law makers. Hopefully, the information provided will help those decision makers in the next Legislative session. At the end of our second meeting, a motion was made, and without any verbal dissent, it was voted that the Task Force would not meet again. With many factors to consider, the Legislature has its work cut out to determine a future course for Oklahomans on the issue of wine and strong beer sales in Oklahoma.

It is not always easy to strike a balance between public safety issues and allowing the freedom to pursue an economic endeavor involving intoxicating beverages. It is not soda pop that we regulate. As much as I hear from some of the public that the ABLE Commission is too restrictive and we need to be more progressive, not even a year ago headlines in a local newspaper read, “Agency Waters Down Penalties.” The ABLE Commission was being criticized for not revoking eight licenses for selling to a minor. We should have to defend our actions and we did. A $1,000 fine to a server’s first offense is not insignificant in my opinion. I have often stated that correcting behavior is our primary goal, not writing tickets.

We need to strike a balance. Some will always think there is too much enforcement; others wonder why we don’t throw the book at the violators. As the Director of the agency charged with enforcing the State liquor laws, I want to ensure that Oklahomans have the right to enjoy alcoholic beverages responsibly without harming themselves or others, while at the same time allowing a business friendly environment. It’s about “striking a balance”.

 

The ABLE Commission would like to make available to law enforcement officials the following list of 2M2L Training Dates and Locations:

Online Registration Now Available: www.ok.gov/odmhsas/2M2L.html

2012 2M2L Training Dates and Locations

Oklahoma City, OK January 9-10, 2012
Metro Tech - Economic Development Center
1900 Springlake Drive

Lawton, OK - February 15-16, 2011
Great Plains Technology Center, Room 301A
4500 W. Lee Blvd.

McAlester, OK - February 28-29, 2012
Kiamichi Technology Center, Room BIS
301 Kiamichi Drive

Woodward, OK- March 20-21, 2012
High Plains Technology Center, Room 201C
3921 39TH Street

Guymon, OK- April 11-12, 2012
Holiday inn Express
701 SE Highway 3

 

“A Not So Special Event”
A. Keith Burt, Director, Oklahoma ABLE Commission
Oklahoma Beverage News (October 2011)

As business owners look for ways to increase their visibility and bring more customers to their doors, I have seen an increase in mobile food vehicles. A recent mobile event, which organizers were calling H & 8th, named for its location at Hudson and 8th Avenue, included a taco and burrito truck, an ice cream van, a couple other food trucks, and an Ale dispenser. Local restaurants were busy, an art gallery had its doors open and two young men were singing and playing guitars. It sounds like fun to me, although I was not there that particular night. I have been thrilled to see Oklahoma City become a place thriving with entertainment and dining opportunities for our citizens and visitors. Then something went terribly wrong. The event was scheduled to kick off at 8 p.m., but less than an hour into the festivities the report that I received was that there were health code violations that caused some of the food vendors to shut down. The ABLE Commission’s participation included writing two tickets at one of the local restaurants unrelated to the event.

I read accounts of that evening and asked our Assistant Director to provide me with a review of our actions. Those attending the event were surely disappointed. I was disappointed that the event hit a snag and our citizens attending were now wondering just what happened. There were several accounts following and the coverage lasted more than a week. One report I read said we were “Sovietized Gestapo” and a bunch of Nazis. When you are trying to do a good job and your intent is to protect and serve the public, it is disappointing to read how someone has perceived your efforts and even though some cultural and historic references may have been mixed and matched, it is never fun to be compared to Hitler. Mayhem in midtown and swat raids were mentioned in some accounts of that evening. I do not believe any of our licensees think we are going to call ahead and warn you that we are coming. I plead guilty to having unannounced or surprise inspections; however, I do not want to put any honest, taxpaying licensee of ours out of business. The ABLE Commission did not shut down anything. The only time you see our agents at a taco truck would be to investigate a report they were selling whiskey from it or they were hungry. However, this story should not end there with “it’s not our fault.”

Citizens expect and deserve their government to be responsible to them, to serve and protect them. View what happened that night from someone looking to enjoy the evening at H & 8th. When I heard there were over 20 agents descending on the event, I wondered where they all came from. We only have 22 agents for the entire state. As it turns out, in addition to our three agents, one of which was in training, there was a presence from city and county health inspectors, fire and city enforcement officers. I could definitely see why someone would wonder why this much manpower was needed. I can only relate to you that we were checking on a caterer’s license, that was not even two days old and catering for the first time. I want to be responsible and sensitive to the needs of the business community. This responsiveness includes doing our best not to interrupt someone’s dinner when we make inspections. It has always been more important to me to correct behavior than write tickets. Our agents are entrusted with the awesome responsibility to carry firearms; they are police officers and sometimes their job is dangerous. I expect them to be sensitive to the economic investment our licensees have made. We know our actions can have consequences on businesses and we are always mindful of that.

As I close this story I have one more thing to report on the activities of that evening. It may affect only one person, but it is important to me. One of the tickets we wrote affected a hard working young man that had let his license expire. It was only two weeks overdue, but in addition to the administrative citation we wrote, there was a citation written from another jurisdictional authority. Confused about who wrote what and how to take care of this, I get a call regarding “the other ticket.” Respectful and courteous, I hear the confusion in his voice. It would be easy to feel like the government is ganging up on this guy with two tickets for basically the same offense. I personally believe an oversight is much different than willful neglect. I want to be fair and to help people who occasionally make a mistake. My General Counsel is reaching out to the other jurisdiction to apply reason and fairness in this situation, not just assess a penalty because we can.

It is 7:30 p.m. on a Friday night as I turn this article in. The organizers of H & 8th are trying again tonight. The event starts at 8 p.m. and since I missed lunch today, I’m pretty hungry. I think a taco sounds good. I’ll let you know how this one goes, or more likely, you’ll let me know.

 

The History of 3.2% Beer in Oklahoma
John A. Maisch, General Counsel, Oklahoma ABLE Commission

The Stock Market Crash of 1929 not only obliterated the life savings of millions of Americans and ushered in the Great Depression, it also set into motion the chain of events that would ultimately lead to the repeal of the Eighteenth Amendment.

Franklin Delano Roosevelt swept into the Oval Office in 1932 by a nation hungry for change. He promised a wide range of economic and social reforms, including the repeal of Prohibition. During campaign stops, he would refer to Prohibition as a “stupendous blunder.”[1]

President Roosevelt formally proposed a constitutional amendment that would repeal the Eighteenth Amendment shortly after taking office. No constitutional amendment had ever been repealed outright before this time. Roosevelt got his wish on February 20, 1933, when Congress passed the Twenty-First Amendment and sent it to the states for ratification.

While awaiting ratification, Roosevelt pushed forward with another campaign promise. He touted legislative reform that would redefine those malt beverages containing less than 3.2% alcohol by weight as non-intoxicating beverages, and therefore make the production, distribution, and sale of such beverages exempt from the Eighteenth Amendment.

The Cullen-Harrison Act was signed into law by President Roosevelt on March 23, 1933. Effective midnight, April 7, 1933, beer containing less than 3.2% alcohol by weight was no longer prohibited by the Eighteenth Amendment.

It was reported that 25,000 people gathered around the Anheuser Busch facility in St. Louis and 10,000 crowded around the Schlitz brewery in Milwaukee as midnight approached. Just past midnight, Anheuser Busch sent cases of the non-intoxicating beverage to both President Roosevelt and U.S. Senator Al Smith (N.Y.) on Clydesdale-driven wagons. [2]

Oklahoman voters would approve their own state referendum reclassifying 3.2% beer as non-intoxicating on July 11, 1933. The state question passed overwhelming by a vote of 224,598 to 129,582 on what was reported the hottest day (107) in 43 years.[3]

This article is an excerpt from a webcast presented by John Maisch on behalf of the Oklahoma Bar Association’s continuing legal education program on March 30, 2011. The webcast in its entirety is available through the OBA’s website at www.okbar.org or by calling (405) 416-7006. The OBA has approved the webcast for continuing education and charges $50.00 to view the 50-minute webcast.
[1] Ogle, Maureen, “Ambitious Brew,” Harcourt Press, 2006, p. 193.[2] Id. at 199-202.[3] Id. at 129.

 

October 12, 2011
ABLE COMMISSION HAS MOVED

The ABLE Commission has moved their offices to 3812 N. Santa Fe, Suite 200, OKC, Oklahoma

THE MAIN TELEPHONE FOR THE ABLE COMMISSION WILL REMAIN THE SAME:
(405) 521- 3484 and (405) 521- 6578 FAX.

THE NEW MAILING ADDRESS WILL BE:
OKLAHOMA ABLE COMMISSION
3812 NORTH SANTA FE, SUITE 200
OKLAHOMA CITY, OK 73118

 

"ABLE Not Party to Liquor Tax Lawsuit"

The ABLE Commission has received inquiries from mixed beverage establishments and the media requesting feedback on a recent civil lawsuit filed in Canadian County by several Oklahoma citizens: Truel et. al v. Aguirre, District Court of Canadian County, Case No. CJ-2011-115. While we issue licenses to mixed beverage establishments, we do not oversee the assessment, collection or remittance of gross receipt taxes by these licensees.

The ABLE Commission is not a Plaintiff or a Defendant in this lawsuit. Consequently, we are not in a position to advise or respond to inquiries from licensees about the allegations contained in the lawsuit. Mixed beverage establishments may wish to consult with private legal counsel.

John A. Maisch, General Counsel
August 15, 2011

 

THE ABLE COMMISSION INTRODUCES SEARCHABLE DATABASE FOR ALCOHOL AND TOBACCO COMPLAINTS

JAG GRANT PROVIDES FUNDING FOR COLLABORATIVE EFFORTS FOR REDUCING ALCOHOL SALES TO INTOXICATED PERSONS

The Oklahoma ABLE Commission recently completed a two-year project that provides the public and law enforcement officials an online database to file and search alcohol and tobacco complaints. The database permits law enforcement officials the ability to enter alcohol and tobacco compliance checks that they have conducted in their own jurisdictions.

“This anonymous submission of alcohol and tobacco complaints allows the ABLE Commission to more efficiently assign the complaints for investigation,” stated Director Keith Burt. “Now the public has the capability to monitor some of the activities of the alcohol and tobacco retailers in their communities directly from our web site at www.oklahoma.gov/able-commission.”

This system, in addition with the collaborative efforts of law enforcement officials in Oklahoma and Tulsa counties, is an effort to reduce alcohol and tobacco sales to underage persons and alcohol sales to intoxicated persons. Thanks to a Justice Assistance Grant (JAG) awarded to Oklahoma Department of Mental Health and Substance Abuse Service (ODMHSAS) and administered through the Oklahoma District Attorneys Council, the ABLE Commission conducted more than 100 over-service checks in Oklahoma and Tulsa counties.

Assisted by Oklahoma’s 17 Area Prevention Resource Centers (APRC), ABLE instructed over 250 alcohol retailers in Responsible Beverage Service and Sales. This 4-hour course concentrated on recognizing valid identifications, early recognition of intoxicated persons and the refusal of service. Statistical data of written tests were scored and analyzed by the OU Health Science Center.

For more information, contact:
Jim Hughes, Assistant Director Oklahoma ABLE Commission by email at jhughes@able.ok.gov or call (405) 522-2996.

 

07/28/2011
Oklahoma Update
Keith Burt, Director, Oklahoma ABLE Commission

LEGISLATIVE REVIEW 2011

The 53rd Oklahoma Legislature has adjourned and as usual we encountered many challenges this past Session. State agencies struggling with declining resources were faced with another round of budget cuts. We are not alone, as large and small businesses throughout Oklahoma and the nation attempt to gain some momentum or simply try to survive.

The Legislature and Governor enacted legislation to streamline government services, including the consolidation of state agencies' information technology services. The ABLE Commission looks forward to contributing to these efforts as we move toward a more efficient state government, without reducing the level of service that licensees have come to expect from their state government.

Unfortunately, the ABLE Commission wasn't immune from the budget cuts that affected nearly every state agency. Legislative leaders and the Governor also struck a budget accord resulting in a 7% decrease ($236,000) in our agency's General Revenue Appropriations. 'This is an equivalent of four full time positions. While we are grateful that most of our funding was left intact, we are still fated with the fact that our agency's budget has been cut by over 20% since 2009.

While our budgets continually decrease, our responsibilities continue to increase. In addition to regulating alcoholic beverages, the ABLE Commission is charged with enforcing the Prevention of Youth Access to Tobacco Act and Oklahoma Charity Games Act. We feel privileged to have been entrusted with these additional responsibilities, but with every budget cut, we are reminded of the challenges of enforcing such diverse missions.

In light of these budget cuts, we are seeking alternate funding solutions as well as cost reductions, where feasible. In short, we remain focused on the task at hand, which is securing the public's safety while providing our licensees with the most prompt service that we can provide. We will continue to rely on your feedback as we continue to implement these changes. If you experience any decrease in service levels from our agency as a result of these budget cuts, we want to know as soon as possible, so that we can address the issue.

Finally, I wanted to take a moment to summarize a few other legislative bills involving alcoholic beverages that were passed by the Legislature and signed into law by the Governor this past session:

Senate Bill 658
Senate Bill 658 created a 2I-member task force to study whether the issue of wine and strong beer sales in grocery stores should be submitted to a vote of the people. The joint Legislative Task Force is composed of state senators, state representatives, citizens-at-large, and representatives from various industries. The Task Force is required to submit its report to the Legislature by February I, 2012.

Senate Bill 529
Senate Bill 529 amended Oklahoma's statutes to require mandatory ignition interlock devices for all DUI convictions where the blood alcohol concentration is aggravated (0.15 BAC or higher), effective November 1,2011. In addition, all drivers convicted of aggravated DUI are required to carry a replacement driver's license containing the phrase, "Interlock Required:'

House Bill 1211
House Bill 1211 amended Oklahoma's social host statutes to establish criminal penalties for those convicted of violating the state's social host laws. Effective November 1, 2011, first and second-time convictions that do not involve great bodily harm or death will be guilty of a misdemeanor. The legislation also affirmed municipalities' authority to enforce low-point beer ordinances, provided those ordinances are not more stringent than those set forth by state law.