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Sympathy for the Devil

By Ben Nahorney

I. Understanding the OLCC

Why we have a liquor control commission in the first place, and how it operates today.

Most University of Oregon students are familiar with the work of the Oregon Liquor Control Commission (OLCC). While opinions of the organization range from good to evil, the fact that they regulate the sale of alcohol and are a powerful force in the lives of college students is not disputable. But whether you wish to bring about the end of the commission or support its work, it is worth knowing the rules and regulations the commission upholds as well as the basic structure of the organization.

The OLCC was established in 1933, shortly after Prohibition ended. Julius Meier, the residing governor at the time, appointed a committee to assess liquor use in the state and country and then make recommendations on how the legislature should proceed. The recommendations of this committee were laid out in the Knox Report. The Liquor Control Act of 1934 came into being as a result of the Knox Report. As with 18 other states in the union, Oregon chose to become a control state - a state in which the government regulates the sale of alcohol within its borders. Most of the regulating power of the OLCC given by the Liquor Control Act is laid out in chapter 471 of the Oregon Revised Statutes (ORS). The actual purpose of the Liquor Control Act is described as such:

(1) The Liquor Control Act shall be liberally construed so as:
(a) To prevent the recurrence of abuses associated with saloons or resorts for the consumption of alcoholic beverages.
(b) To eliminate the evils of unlicensed and unlawful manufacture, selling and disposing of such beverages and to promote temperance in the use and consumption of alcoholic beverages.
(c) To protect the safety, welfare, health, peace and morals of the people of the state.
(2) Consistent with subsection (1) of this section, it is the policy of this state to encourage the development of all Oregon industry.

- ORS 471.030

This statue is partially amended in ORS 474.105 and 474.115 as it pertains to malted beverages, ORS 471.340 for wine and 471.542 for serving alcohol in a restaurant or bar. (A malt beverage (aka beer) is defined as an "alcoholic beverage obtained by the fermentation of grain that contains not more than 14 percent alcohol by volume.") ORS 474.105 states that the legislature finds it "necessary to maintain and to promote the continued availability of good quality malt beverages for the consumers of Oregon." Wine is regulated in a similar manner. These two statues make is possible for beer and wine to be sold by licensed vendors not directly controlled by the OLCC, such as corner stores and supermarkets. ORS 471.542 establishes requires all alcohol-serving establishments "to complete an approved alcohol server education program and examination in order to qualify for a license or permit," after which an restaurant or bar can then server beer, wine, and liquor.

Notorious to all persons under the age of 21, is ORS 471.105, which establishes the legal drinking age for alcohol. The statute states that "before being qualified to purchase alcoholic liquor from the Oregon Liquor Control Commission, a person must be over 21 years of age." This statute makes it illegal for anyone under the age of 21 to consume alcoholic beverages.

The ultimate purpose of the Liquor Control Act, as described by the Knox Report, is to "take 'business' out of the liquor business and deal with it largely as a matter of public safety." The report further recommends the establishment of a commission of "three non-salaried citizens of unimpeachable character" to oversee the control of liquor in the state. These citizens are the liquor control commissioners that determine the policy of the OLCC.

Today there are five OLCC commissioners - one for each congressional district in the state. These commissioners uphold and determine any changes in the policy for the OLCC, of which the various OLCC agents are in charge of enforcing. As with many commissary positions in government, the OLCC commissioners must be appointed by the Governor and approved by the state senate before they can take up their duties. No one commissioner is allowed to serve more than ten years and no single political party can hold more than three of the five commissary positions.

OLCC commissioners have two main duties. The first is to be involved in construction of alcohol regulatory policies. They oversee provisions for new statues and decide what revisions will occur concerning current policies.

Kaye Kennett has been the OLCC commissioner for the second congressional district, which includes Eugene, for the last six years. Kennett was originally appointed by former Governor Barbara Roberts and later re-appointed by Governor Kitzhaber. Kennett had previously severed on the Governor's Council on Alcohol and Drug Abuse.

Kennett has overseen many policy additions and revisions in her six years as a commissioner, some loosening the rules and others tightening them.

In one such case, Kennett became aware of situations in Corvallis where Everclear was being used to make "jungle juice," an alcoholic concoction containing fruit chunks, fruit juice and 180 proof alcohol mixed together in a large container. There had been complaints about high numbers of Oregon State University students being injured as a result of getting drunk off the low-grade potable. Kennett helped to push through a regulation that moved Everclear from the shelves to the back room of Corvallis liquor stores and required the purchaser to sign for it. "Some folks thought that maybe I was being overly concerned about this issue because certainly [Everclear] wasn't a big seller," Kennett says. "I wasn't concerned about how big a seller it was, I was concerned about who the buyer was and its use."

Kennett has also worked to block certain policy changes over the years. There was an attempt to modify the policies for decoy operations, situations where minors work undercover for the OLCC and attempt to buy alcohol in a store or bar. [See "OC Interview with State Senator John Lim" on page 34 for more information. -Ed.] As the OLCC policy stands, stores within the area of the upcoming decoy operation must be sent notification of such a visit. There was a lobbying attempt to remove the notice to stores and make the decoy operations "blind." Kennett refused to have the policy changed. "I wanted that notification left in there, so there would be no question about entrapment," Kennett says.

In a similar case, the Federal Drug Administration (FDA) has had litigation brought against it, which has been taken all the way to the Supreme Court; the FDA has been accused of entrapment in its underage tobacco purchasing decoy operations.

The second commissary duty is contested case hearings. These are hearings that concern possible disciplinary action against certain alcohol vendors, such as bars and restaurants, who have been cited for violating liquor laws. These hearings are for cases that involve serving, not selling, violations. They do not handle cases involving retail vendors, such as supermarkets, corner stores and liquor stores. Such cases constitute misdemeanor violations and are brought before a circuit court judge.

The hearing process is long and arduous, often taking a number of months to complete a single case. The licensee and an OLCC agent must come before an administrative law judge and contest the case. The judge then writes up a brief detailing his or her proposal of what should be done. A judge can find for the licensee or he or she can uphold the OLCC's findings of a violation. From here, the case can be appealed to the commissioners under two circumstances. One, if the judge finds for the OLCC and the licensee finds this unfair, or two, if the judge finds for the licensee. In the latter case, a change in a ruling concerning licensee's violation must go before the commissioners to be overturned. The judge's brief is then given to the OLCC commissioners for review. The judge and licensee are then brought before the commission. The judge presents his or her brief again, the licensee gets a chance to respond. If the judge's findings are in favor of the licensee, the regulatory branch of the OLCC gets a chance to present its case. After hearing the testimonies, the commissioners call a recess and deliberate over the case. The commission can find either way in these hearing cases, but if they disagree with the findings of the administrative judge, the commissioners must hold a public vote and individually present their reasons for disagreeing with the judge.

OLCC commissioners are the direct link towards changing the current regulatory policies or pushing to revise any of the commission's statutes. Whether you want to tighten drinking laws or repeal the legal drinking age, all power to make changes to the legislation lies directly in their hands. Ultimately, if you want to change the way the liquor control system works, you will come face to face with them in order to do so.

II. The Perils of Enforcement

The OC sits down with OLCC officers to discuss the sale of alcohol and the law.

There's nothing more frustrating than being over 21 and getting beer at your local convenience store, getting IDed and realizing that you've left your driver's license back at home. But before you make a scene cursing out the clerk (and generally looking like a fool to other customers in the store) it's always good to know exactly what the rules and regulations concerning the distribution of alcohol are.

Store clerks are put into an interesting predicament when it comes to selling alcohol. The Oregon Liquor Control Commission (OLCC) requires that all servers, bartenders and restaurant employees that serve alcohol must attend classes and pass a test to receive a server's permit before they can handle alcohol. Store clerks are not required to do so.

Some store chains require their clerks to take these courses in hopes that in doing so their employees will be that much better at catching minors trying to purchase alcohol. But the fact is the majority of the clerks in the state of Oregon have not gone through this training.

The lack of education leads to a high number of clerks that do not know what the actual rules are when it comes to selling alcohol, as well as frustrated consumers.

There are many reasons for this lack of education. It is time consuming and costly, being that the expense comes out of the pockets of store owners or clerks. Store clerk positions also experience a high rate of turnover.

The rules that one clerk believes to be correct concerning the sale of alcohol is often quite different from the understanding of another clerk. There is even a good chance that neither clerk has the rules correct. The fact that OLCC regulations are continuously changing makes it even more difficult to keep abreast of the current rules.

One of the most significant changes in recent times concerns acceptable ID for purchasing alcohol. The long-standing acceptable IDs are a valid (meaning not expired) state drivers license with a photo, a valid Oregon DMV ID card and/or a valid passport.

As of October 23rd, 1999 two more forms of ID are now acceptable for buying alcohol in Oregon. The first is a valid state-issued ID card with photo, name, address, date of birth, a physical description, and a signature. The second new form of ID is a valid US military ID card also containing a photo, name, address, date of birth, a physical description, and a signature.

There is one problem with the inclusion of the acceptance of a US military ID with the above information - none exist. All US military IDs have one or more of the items listed above, but there is not a single one containing all of them. Essentially, the OLCC has opened up the door for the use of US military IDs to purchase alcohol and then closed it again by raising the requirements higher than any meet.

Having the proper ID doesn't always mean that a clerk will not refuse to sell you alcohol. Often a clerk will see two people whom he or she thinks are together, will ask for ID from both, and refuse the sale if one does not have ID or is not 21. A clerk has the right to refuse the sale, but the circumstances are gray as to where the legal line is drawn.

Gary McGrew, the regulatory deputy director of the OLCC, says that in certain situations a clerk must refuse the sale. "If there is something that leads [a clerk] to believe that that adult is going to furnish alcohol to a minor, under those circumstances they are obligated under the law not to make that sale."

But there are situations where a minor can accompany an adult who is purchasing alcohol without breaking the rules.

There is currently no law prohibiting a minor to look over the alcohol selection in a store. A minor can legally look at the alcohol with someone over 21, but he or she cannot remove alcohol from the case nor help to purchase the alcohol by giving the adult money in the store. A minor must also watch his or her speech while looking at the alcohol selection in a store.

Saying things such as, "I want you to buy this alcohol," "I can't wait to get home and drink," or anything similar, within an earshot of a clerk can cause difficulties.

If a clerk witnesses money being exchanged or overhears any speech that might lead the clerk to believe that the adult is purchasing alcohol for the minor, the clerk must ask for ID from both people and refuse the sale if they do not comply.

There are, however, many circumstances where a clerk refuses the sale when two people are not even together. While the clerk might very well be wrong in these circumstances, they are still protected under the law. McGrew says that "it is absolutely [a clerks] right to make the decision not to sell" whether they are correct or not in their assumption of the circumstances. When it comes down to it, the best way to avoid being refused a sale is to not enter into a store with friends under 21.

In cases where a clerk asks for ID and is passed a fake, a clerk has limited authority. James Miller, the manager of the OLCC's statewide compliance team, says that if the clerk discovers that an ID is fake he or she must refuse the sale of alcohol, but does not have the right to confiscate the ID.

"Once [a clerk] makes the determination that they cannot accept an ID, then their obligation under the law is over," says Miller. "We do not ask [clerks] to confiscate the identification." Many clerks do not know this, and fake ID confiscation is practiced regularly throughout the state.

If someone is over 21 and does not have the proper ID, there is still one other possible option - a statement of age card. A person must produce two pieces of information (phone bill, birth certificate, etc.) with their name printed on it. One piece must also have the person's birth date and the other must contain the person's signature. The clerk records both pieces of information on the statement of age card, the person buying the alcohol signs the card and the clerk can then sell the person alcohol. The store must then keep the statement of age card on file for the next two years.

However, a statement of age card is only good for one sale. A new card must be filled out every time a person wishes to buy alcohol. Since the use of statement of age cards is very time consuming and the OLCC does not require stores to carry such cards, many do not; the inconvenience is too great.

Along with the lack of education concerning OLCC rules, there comes the additional pressure for clerks of the possibility of getting caught selling to a minor. With this added pressure a clerk is much more likely to cite the rules incorrectly and refuse the sale.

The penalties are also much more dangerous for a clerk than a server in a bar or restaurant. According to Miller, clerk violations are not handled in the same manner as server violations. "We don't issue licenses to clerks," Miller says. "Being a clerk and you make a mistake and sell alcohol to a minor, you are cited into circuit court. This is opposed to someone in a bar or tavern and has a server's permit and is handled administratively."

An administrative penalty is just that - it is handled administratively by the OLCC and is not a criminal violation. Clerks that get caught selling to minors are handled much differently. "If you're cited [as a clerk] for selling alcohol to a minor and you are convicted- that is a misdemeanor," Miller says. "It is a criminal violation and you now have a criminal record."

The fines for clerks are also much different than servers. The first time a clerk is cited the fines are no less than $350. The second time the fines are no less than $1000 and the third time they are no less than $1000 and 30 days in jail. "That's over life because a criminal record last for your entire life," Miller says. This is opposed to a server whose violation goes onto their administrative record, which is removed after two years if the server does not commit any further violations.

The pressures on clerks are further compounded by pressures put on store owners to keep their clerks in line with the OLCC regulations. During the last legislative session, the maximum penalty a store can receive for selling alcohol to a minor was increased. The current fine for such a violation is now as high as $4950. This gives owners an added incentive to pressure their clerks into halting all potential sales to minors, often adopting a "better safe than sorry" attitude. Recently the OLCC has established what they are calling a responsible vendor program. To obtain this status, such a store must complete training for all of their employees and must not commit any OLCC violations. Once a store receives the responsible vendor status, fines are not as severe and the store will not lose their liquor licensee if they are caught selling to a minor. Currently, the Plaid Pantry convenience stores in the Portland area are the only stores that have been granted the OLCC's responsible vendor status. [See "I Was a Teenage OLCC Stooge" on page 40 for more information. -Ed.]

It always helps to know what your rights are when you come into contact with any governmental regulations. Next time you go into a store to purchase alcohol and you run into a clerk that does not know the rules accurately, politely inform him or her of the actual regulations. If they ask you "How do you know?" raise your head high and tell them the Oregon Commentator told you so.

Ben Nahorney, a senior majoring in Journalism, is a staff writer for the Oregon Commentator