Current through Vol. 41, No. 13, March 15, 2024
(a) Every licensed Beer Distributor, Small
Brewer Self-Distributor, or Brewpub Self-Distributor before selling or offering
to sell any beer or brewed products to any Retail Spirit, Retail Beer, 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, in
which he shall agree that he will sell any of the brands or kinds of beer or
brewed product, distributed by him to any Retail Spirit, Retail Beer, Mixed
Beverage, Beer and Wine, Caterer, Mixed Beverage/Caterer or Special Event
licensee in the County at the same current price and without
discrimination.
(b) A licensed Beer
Distributor, Small Brewer Self-Distributor, or Brewpub Self-Distributor shall
be deemed to have discriminated among Retail Spirit, Retail Beer, 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, beer or
brewed products to a on-premise licensee within the same county at a price less
than the listed current price or an off-premise licensee within the same county
at a price less than the listed current price;
(2) Make, or offer to make, any secret rebate
to or enter into any such transaction in any manner whatsoever with any Retail
Spirit, Retail Beer, 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 beer or brewed products by a Retail
Spirit, Retail Beer, 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 any
brand or kind of beer or brewed products to a Retail Spirit, Retail Beer, Mixed
Beverage, Beer and Wine, Caterer, Mixed Beverage/Caterer or Special Event
licensee;
(4) Refuse to sell any
brand or kind of beer or brewed products to a Retail Spirit, Retail Beer, Mixed
Beverage, Beer and Wine, Caterer, Mixed Beverage/Caterer or Special Event
licensee unless the Retail Spirit, Retail Beer, 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 beer brewed product specifically ordered by the Retail Spirit,
Retail Beer, Mixed Beverage, Beer and Wine, Caterer, Mixed Beverage/Caterer or
Special Event licensee;
(5) Fail to
fill and ship orders of Retail Spirit, Retail Beer, Mixed Beverage, Beer and
Wine, Caterer, Mixed Beverage/Caterer or Special Event licensees who have
submitted written purchase orders for beer or brewed products in the sequence
and order in which such written purchase orders from Retail Spirit, Retail
Beer, Mixed Beverage, Caterer or Special Event licensees are received by
him;
(6) Accept payment for
merchandise from one Retail Spirit, Retail Beer, Mixed Beverage, Beer and Wine,
Caterer, Mixed Beverage/Caterer or Special Event licensee and refuse same
method of payment from another Retail Spirit, Retail Beer, Mixed Beverage, Beer
and Wine, Caterer, Mixed Beverage/Caterer or Special Event licensee, without
authority from the Director of the Commission.
(c) A Beer Distributor, Small Brewer
Self-Distributor, or Brewpub Self-Distributor shall not be deemed to have
discriminated among Retail Spirit, Retail Beer, Mixed Beverage, Beer and Wine,
Caterer, Mixed Beverage/Caterer or Special Event licensee under the following
circumstances:
(1) A Beer Distributor, Small
Brewer Self-Distributor, or Brewpub Self-Distributor requests permission, in
writing and signed under oath by a person authorized to represent the Beer
Distributor, Small Brewer Self-Distributor, or Brewpub Self-Distributor, from
the Director of the ABLE Commission to refuse to sell alcoholic beverages to a
Retail Spirit, Retail Beer, Mixed Beverage, Beer and Wine, Caterer, Mixed
Beverage/Caterer or Special Event licensee when the Beer Distributor, Small
Brewer Self-Distributor, or Brewpub Self-Distributor can substantiate, by
credible evidence, that the Retail Spirit, Retail Beer, Mixed Beverage, Beer
and Wine, Caterer, Mixed Beverage/Caterer or Special Event licensee has created
a dangerous or hostile work environment for the licensed Beer Distributor,
Small Brewer Self-Distributor, or Brewpub Self-Distributor, 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) an 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 Beer Distributor, Small Brewer Self-Distributor, or
Brewpub Self-Distributor; 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 Beer, Mixed Beverage, Beer and Wine, Caterer,
Mixed Beverage/Caterer or Special Event licensee;
(B) the date(s) on which a Retail Spirit,
Retail Beer, Mixed Beverage, Beer and Wine, Caterer, Mixed Beverage/Caterer or
Special Event licensee created a dangerous or hostile work Environment for the
Beer Distributor, Small Brewer Self-Distributor, or Brewpub
Self-Distributor;
(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 Beer Distributor,
Small Brewer Self-Distributor, or Brewpub Self-Distributor, 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 Beer
Distributor, Small Brewer Self-Distributor, or Brewpub Self-Distributor, grant
the Beer Distributor, Small Brewer Self-Distributor, or Brewpub
Self-Distributor temporary permission to refuse to sell to the specific Retail
Spirit, Retail Beer, 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 Beer Distributor, Small Brewer Self-Distributor, or Brewpub
Self-Distributor has been granted temporary permission to refuse to sell to the
specific Retail Spirit, Retail Beer, Mixed Beverage, Beer and Wine, Caterer,
Mixed Beverage/Caterer or Special Event licensee, the Director shall promptly
notify the named Retail, 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
Beer Distributor, Small Brewer Self-Distributor, or Brewpub Self-Distributor
and the specific allegations against the licensee as stated in writing by the
Beer Distributor, Small Brewer Self-Distributor, or Brewpub Self-Distributor. 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 Beer Distributor,
Small Brewer Self-Distributor, or Brewpub Self-Distributor 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 Beer Distributor, Small Brewer Self-Distributor, or
Brewpub Self-Distributor 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 Beer Distributor, Small Brewer
Self-Distributor, or Brewpub Self-Distributor is granted permanent permission
to refuse to sell to a specific Retail Spirit, Retail Beer, 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 Beer Distributor, Small
Brewer Self-Distributor, or Brewpub Self-Distributor, 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 Beer Distributor, Small Brewer Self-Distributor, or Brewpub
Self-Distributor, any temporary permission to refuse to sell originally granted
by the Director shall expire and become null and void, and the Distributor
shall be required to resume selling to the specific Retail Spirit, Retail Beer,
Mixed Beverage, Beer and Wine, Caterer, Mixed Beverage/Caterer or Special Event
licensee.
(9) A Beer Distributor,
Small Brewer Self-Distributor, or Brewpub Self-Distributor may not refuse to
sell alcoholic beverages to any Retail Spirit, Retail Beer, 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.