Current through Vol. 41, No. 13, March 15, 2024
(a) Every licensed Wine and Spirits
Wholesaler before selling or offering to sell any alcoholic beverages to any
Retail Spirit, Retail Wine, Mixed Beverage, Beer and Wine, Caterer, Mixed
Beverage/Caterer or Special Event licensee, shall file with the Director a
written statement sworn to by him, or in case of a corporation, one of its
principal officers, in which he shall agree that he will sell any of the brands
or kinds of alcoholic beverages distributed by him to any Retail Spirit, Retail
Wine, Mixed Beverage, Beer and Wine, Caterer, Mixed Beverage/Caterer or Special
Event licensee, and that all such sales will be made to all such Retail Spirit,
Retail Wine, Mixed Beverage, Beer and Wine, Caterer, Mixed Beverage/Caterer or
Special Event licensees in this State at the same current price and without
discrimination, and that price lists showing the current prices will be filed
by him in the office of the Director as often as may be necessary or required
by the Director, but as least once each three (3) months.
(b) The said price listings filed by a
licensed Wine and Spirits Wholesaler with the Director shall be the cash price
per case for each size of original package of each particular brand or kind of
alcoholic beverage sold or offered for sale by such Wine and Spirits
Wholesaler, and shall contain such other information as the Director shall
require.
(c) A licensed Wine and
Spirits Wholesaler shall be deemed to have discriminated among Retail Spirit,
Retail Wine, Mixed Beverage, Beer and Wine, Caterer, Mixed Beverage/Caterer or
Special Event licensees if he shall, either directly or indirectly or by any
agent or employee:
(1) Offer to sell, or sell,
alcoholic beverages to a Retail Spirit, Retail Wine, Mixed Beverage, Beer and
Wine, Caterer, Mixed Beverage/Caterer or Special Event licensees at a price
less than the listed current price which he has filed with the
Director;
(2) Make, or offer to
make, any secret rebate to or enter into any transaction with a Retail Spirit,
Retail Wine, Mixed Beverage, Beer and Wine, Caterer, Mixed Beverage/Caterer or
Special Event licensee which would result in, or having as its purpose, the
purchase of any such alcoholic beverages by a Retail Spirit, Retail Wine, Mixed
Beverage, Caterer, or Special Event licensee at a price less than the current
price which he has filed with the Director;
(3) Refuse to sell to a Retail Spirit, Retail
Wine, Mixed Beverage, Beer and Wine, Caterer, Mixed Beverage/Caterer or Special
Event licensee in less than case lots or any brand or kind or container size,
or combination thereof, of any alcoholic beverages without express authority
granted by the Director or the Commission for good cause;
(4) Refuse to sell any brand or kind of
alcoholic beverages to a Retail Spirit, Retail Wine, Mixed Beverage, Beer and
Wine, Caterer, Mixed Beverage/Caterer or Special Event licensee for cash at the
listed current price in any particular order provided by the Retail Spirit,
Retail Wine, Mixed Beverage, Beer and Wine, Caterer, Mixed Beverage/Caterer or
Special Event licensee without express authority granted by the Director or the
Commission for good cause; PROVIDED, that each such Wine and Spirits Wholesaler
in making and transmitting to the Oklahoma Tax Commission their monthly report,
in reporting sales on all wines sold in less than case lots, shall convert
units sold to the nearest full case;
(5) Refuse to sell any brand or kind of
alcoholic beverages to a Retail Spirit, Retail Wine, Mixed Beverage, Beer and
Wine, Caterer, Mixed Beverage/Caterer or Special Event licensee unless the
Retail Spirit, Retail Wine, Mixed Beverage, Beer and Wine, Caterer, Mixed
Beverage/Caterer or Special Event licensee shall purchase or agree to purchase
alcoholic beverages of another kind, quantity, or brand in addition to, or
partially in lieu of the brand or kind of alcoholic beverages specifically
ordered by the Retail Spirit, Retail Wine, Mixed Beverage, Beer and Wine,
Caterer, Mixed Beverage/Caterer or Special Event licensee;
(6) Fail to fill and ship orders of Retail
Spirit, Retail Wine, Mixed Beverage, Beer and Wine, Caterer, Mixed
Beverage/Caterer or Special Event licensee for alcoholic beverages in the
sequence and order in which such purchase orders from the Retail Spirit, Retail
Wine, Mixed Beverage, Beer and Wine, Caterer, Mixed Beverage/Caterer or Special
Event licensee are received by him without express authority granted by the
Director or the Commission for good cause; PROVIDED, that this paragraph shall
not apply where the Wine and Spirits Wholesaler is operating under a rationing
plan approved by the Director;
(7)
Accept payment for merchandise from one Retail Spirit, Retail Wine, Mixed
Beverage, Beer and Wine, Caterer, Mixed Beverage/Caterer or Special Event
licensee and refuse the same method of payment from another Retail Spirit,
Retail Wine, Mixed Beverage, Beer and Wine, Caterer, Mixed Beverage/Caterer or
Special Event licensee, without authority from the Director or the
Commission.
(d) A
licensed wine and spirits wholesaler shall not be deemed to have discriminated
among Retail Spirit, Retail Wine, Mixed Beverage, Beer and Wine, Caterer, Mixed
Beverage/Caterer or Special Event licensee under the following circumstances:
(1) A licensed wine and spirits wholesaler
requests permission, in writing and signed under oath by a person authorized to
represent the Wine and Spirits Wholesaler, from the Director of the ABLE
Commission to refuse to sell alcoholic beverages to a Retail Spirit, Retail
Wine, Mixed Beverage, Beer and Wine, Caterer, Mixed Beverage/Caterer or Special
Event licensee when the Wine and Spirit Wholesaler can substantiate, by
credible evidence, that the RetailSpirit, Retail Wine, Mixed Beverage, Beer and
Wine, Caterer, Mixed Beverage/Caterer or Special Event licensee has created a
dangerous or hostile work environment for the licensed Wine and Spirits
Wholesaler, its agents, its representatives, or its employees. Evidence of a
dangerous or hostile work environment includes, but is not limited to, one or
more of the following:
(A) physical
abuse;
(B) repeated verbal
abuse;
(C) excessive and repeated
profanity;
(D) harassment due to
race, gender, age, national origin, religion, or other protected status
recognized by state or federal law;
(E) threats of harm to any agent or
representative of the Wine and Spirits Wholesaler; or
(F) malicious or unfair business practices;
or
(2) The request shall
contain at least the following information verified under oath:
(A) the name and ABLE license number of the
specific Retail Spirit, Retail Wine, Mixed Beverage, Beer and Wine, Caterer,
Mixed Beverage/Caterer or Special Event licensee;
(B) the date(s) on which a Retail Spirit,
Retail Wine, Mixed Beverage, Beer and Wine, Caterer, Mixed Beverage/Caterer or
Special Event licensee created a dangerous or hostile work Environment for the
Wine and Spirits Wholesaler;
(C)
details of the actions and/or behaviors which created the dangerous or hostile
work environment;
(D) the name(s)
and addresses of the person(s) who created the dangerous or hostile work
environment; and
(E) the names and
addresses of persons possessing relevant information to support the
events.
(3) Upon receipt
of a request to refuse to sell alcoholic beverages from a Wine and Spirits
Wholesaler, the Director may, upon a finding that there exists an eminent
threat of physical violence or undue emotional or psychological harm to an
agent or representative of the Wine and Spirits Wholesaler, grant the Wine and
Spirits Wholesaler temporary permission to refuse to sell to the specific
Retail Spirit, Retail Wine, Mixed Beverage, Beer and Wine, Caterer, Mixed
Beverage/Caterer or Special Event licensee. In all other cases, the complaint
shall be addressed through the process set forth below.
(4) Upon receipt of any verified compliant,
whether or not the Wine and Spirits Wholesaler has been granted temporary
permission to refuse to sell to the specific Retail Spirit, Retail Wine, Mixed
Beverage, Beer and Wine, Caterer, Mixed Beverage/Caterer or Special Event
licensee, the Director shall promptly notify the named Retail Spirit, Retail
Wine, Mixed Beverage, Beer and Wine, Caterer, Mixed Beverage/Caterer or Special
Event licensee in writing, by certified mail, of the complaint. The notice
shall contain the name and ABLE license number of the Wine and Spirits
Wholesaler and the specific allegations against the licensee as stated in
writing by the Wine and Spirits Wholesaler. A copy of the verified complaint
shall be included as an exhibit to the notice.
(5) Said licensee may request an
administrative hearing on the matter within fifteen (15) days of receipt of the
complaint. If a hearing is requested, both the Wine and Spirits Wholesaler and
the named licensee may appear and present evidence or testimony, including
witnesses, as to why the request should or should not be granted. If a request
for a hearing is not made within fifteen (15) days of receipt of the compliant,
the Director may grant or deny the request. In those instances where a
temporary permission has been given to the Wine and Spirits Wholesaler to
refuse to sell, the Director shall indicate whether the temporary permission is
revoked or made a permanent permission. The Director's decision shall be put in
writing and sent by certified mail to the named parties. Failure by the party
to which notice has been given to request a hearing will constitute a failure
to exhaust administrative remedies and the Director's decision may not be
further appealed.
(6) If a hearing
is requested and the request to refuse to sell alcoholic beverages is granted
after the hearing and after notice is given to the licensee, the aggrieved
licensee may request an appeal to the full Commission on the record, and such
hearing will be conducted in the same manner as all other administrative
hearings before the Commission pursuant to 37A O.S. Sections 2-150, 2-151 and
2-152.
(7) If a Wine and Spirits
Wholesaler is granted permanent permission to refuse to sell to a specific
Retail Spirit, Retail Wine, Mixed Beverage, Beer and Wine, Caterer, Mixed
Beverage/Caterer or Special Event licensee, that permanent permission to refuse
to sell shall remain in effect for at least one year and, thereafter, will
remain in effect indefinitely unless either the licensee requests, in writing,
a reconsideration of the decision after the expiration of one year, and the
request is granted by the Director following an evidentiary hearing on the
merits with notice to the Wine and Spirits Wholesaler, or unless the Director
revokes his decision, in writing, for good cause.
(8) If a request for refusal to sell is
denied, the Director shall put the denial in writing and shall send a copy by
certified mail to all named parties. Upon receipt of the denial in writing by
the Wine and Spirits Wholesaler, any temporary permission to refuse to sell
originally granted by the Director shall expire and become null and void, and
the Wine and Spirits Wholesaler shall be required to resume selling to the
specific Retail Spirit, Retail Wine, Mixed Beverage, Beer and Wine, Caterer,
Mixed Beverage/Caterer or Special Event licensee.
(9) A Wine and Spirits Wholesaler may not
refuse to sell alcoholic beverages to any Retail Spirit, Retail Wine, Mixed
Beverage, Beer and Wine, Caterer, Mixed Beverage/Caterer or Special Event
licensee unless and until the Director grants the request under any of the
conditions set forth above either on a temporary or permanent basis. A
permanent grant of the request will be made by the Director, in writing, which
shall be sent by certified mail to all named parties.