Okla. Admin. Code § 45:30-5-6

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

Section 45:30-5-6 - Beer Distributor, Small Brewer Self-Distributor, or Brewpub Self-Distributor discrimination prohibited

(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.

Okla. Admin. Code § 45:30-5-6

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