Okla. Admin. Code § 45:30-3-6

Current through Vol. 42, No. 4, November 1, 2024

Section 45:30-3-6 - Wholesaler discrimination prohibited

(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 or a Wine and Spirits Wholesaler is nonsequentialy shipping or filling orders for products designated as being in short supply as defined in 37A O.S. § 3-116(E);

(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 Retail Spirit, 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.

Okla. Admin. Code § 45:30-3-6

Amended by Oklahoma Register, Volume 32, Issue 24, September 1, 2015, eff. 9/11/2015

Amended by Oklahoma Register, Volume 35, Issue 24, September 4, 2018, eff. 10/1/2018

Amended by Oklahoma Register, Volume 41, Issue 23, August 15, 2024, eff. 8/25/2024