Court: Court of Appeals of Oregon; December 7, 2004; Oregon; State Appellate Court
Petitioner seeks judicial review of the Oregon Liquor Control Commission's (OLCC) decision denying her liquor license application, asserting that the OLCC incorrectly determined she lacked a good compliance record with state liquor laws as mandated by ORS 471.313(4)(g). The OLCC’s denial was based on an incident during a minor decoy operation at her store, Quincy Store, where a nine-year-old girl (petitioner’s daughter) sold beer to a decoy who appeared to be underage. The OLCC found that petitioner violated OAR 845-006-0335(1) by not verifying the decoy's age and ORS 471.480(1) by allowing her daughter to sell alcohol.
Petitioner argues that the OLCC failed to establish uniform standards for minor decoy operations in small cities as required by ORS 471.346(1) and (3), claiming this precludes the OLCC from considering the decoy operation's results for her application. She also contends that the OLCC erred in attributing the sale to her daughter instead of her. In response, the OLCC asserts compliance with ORS 471.346 by adopting relevant administrative rules and maintains that it correctly identified the daughter as the seller.
The relevant statute, ORS 471.346, mandates the OLCC to develop uniform standards for minor decoy operations, applicable to all investigations of this nature.
Uniform standards for minor decoy operations established by the commission mandate that such operations occur randomly or targeted in cities with populations of 20,000 or more. Random operations must encompass various retail outlets, while targeted operations can focus on a specific licensee or agent only if there is documented non-compliance. The commission is tasked with creating a methodology to ensure equal selection chances for licensees or agents in random operations.
The Oregon Liquor Control Commission (OLCC) has adopted rules pursuant to ORS 471.346, which directs the development of uniform standards for these operations to assess compliance with laws against selling alcohol to minors. Key standards for minors include being under 21, not using false identification, appearing under 26, and not misrepresenting their age.
Random sampling methods for selecting licensees or agents must ensure equal chances for all. Targeted operations can only occur with a specific licensee if there is evidence of prior compliance issues. The petitioner argues that the OLCC rule fails to establish selection standards for cities with fewer than 20,000 residents. However, the statute only requires uniform standards for operations in larger cities, and the OLCC rule complies with this requirement.
The petitioner also contests the OLCC's conclusion that their daughter sold beer to a minor decoy, claiming a lack of substantial evidence. The OLCC maintains that the evidence supports its finding, interpreting the act of 'selling' in a commonsense manner, consistent with ORS 471.480(1), which allows employees over 18 to sell alcohol under the license.
Both the Oregon Liquor Control Commission (OLCC) and the petitioner agree that the statute prohibits anyone under 18 from selling alcohol, but they dispute whether the petitioner’s daughter sold beer to a minor decoy. The OLCC determined that the daughter, while under direct supervision, engaged in actions constituting a sale by ringing up the transaction, taking money, and giving change, despite not physically handling the beer. The interpretation of "sell" under ORS 471.480(1) is guided by its plain meaning, defined as giving up property for money or value. The OLCC's conclusion that the daughter sold the alcohol was supported by substantial evidence, as she quoted the price, processed the payment, and completed the transaction. The petitioner’s argument that her daughter’s lack of physical contact with the beer negated the sale was rejected, as it is not necessary for a seller to touch an item for a sale to occur. The petitioner’s other arguments were also deemed without merit, leading to the affirmation of the OLCC’s finding of a violation and the denial of the liquor license application. Under ORS 471.313, the OLCC may deny licenses based on an applicant's compliance history. Additionally, ORS 471.346(6) states that sales to minors in compliant minor decoy operations cannot be used against a licensee for penalties or licensing decisions. The petitioner’s involvement in bagging the beer was likened to a supermarket bagger, clarifying that the cashier is the one who completes the sale.
