Retail Sales Agent Agreement Olcc - DOC by kck16802


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									                      BEFORE THE LIQUOR CONTROL COMMISSION
 1                           OF THE STATE OF OREGON

 2   In the Matter of the                   )    FINAL
     Agency Agreement                       )    FINDINGS OF FACT,
 3   Regarding:                             )    CONCLUSIONS OF LAW,
                                            )    AND ORDER
 4        Peter Graepel                     )
          AGENCY NO. 193                    )    OLCC-98-RO-001
 5        460 Coburg Road                   )
          Eugene, Oregon 97401              )

 7        A hearing was held in the above matter on June 4, 1998, in

 8   Eugene, Oregon, before Administrative Law Judge Susan C. Hall.      The

 9   Commission was not represented by legal counsel.    The Agent was

10   represented by Michael Mills, attorney at law.     The record remained

11   open until June 12, 1998, for the Merchandising Division and the Agent

12   to submit written closing arguments.

13        A Proposed Order was issued July 30, 1998.     Agent's attorney

14   filed Exceptions to the Proposed Order on August 11, 1998.

15        On September 15, 1998, the Commission considered the record of

16   the hearing, the applicable law, the Proposed Order of the

17   Administrative Law Judge, and Exceptions to the Proposed Order of the

18   Administrative Law Judge.   Based on this review and the preponderance

19   of the evidence, the Commission enters the following:

20                                   WITNESSES
     FOR THE COMMISSION:               Victor Mann, Darlene Barton, and Rick
21                               Ripley.

22   FOR THE AGENT:                   Shirley Gall and Peter Graepel.


24   / / / / /

25   / / / / /
     Page 1 of 8 - FINAL ORDER
 1   / / / / /

 2                                      ISSUES

 3         I.    Whether the Agent violated ORS 471.410(2) because his

 4   employee knowingly sold alcoholic liquor to a person under the age of

 5   21 years.

 6        II.    If a violation occurred, whether the sanction recommended by

 7   the Merchandising Division is appropriate.

 8                               I. SALE TO A MINOR
                 (2) No one other than the person's parent or
 9               guardian shall sell, give or otherwise make
                 available any alcoholic liquor to a person under
10               the age of 21 years. A person violates this
                 subsection who sells, gives or otherwise makes
11               available alcoholic liquor to a person with the
                 knowledge that the person to whom the liquor is
12               made available will violate this subsection.
                 ORS 471.410(2).

14   Findings of Fact

15         1.    Peter Graepel has been a Retail Sales Agent at Agency

16   No. 193, 460 Coburg Road, Eugene, Oregon, at all times relevant to the

17   Findings of Fact below.     Mr. Graepel became an Agent at this location

18   in June 1985.     Mr. Graepel has been an OLCC Agent since 1969.

19         2.    On March 18, 1998, the Merchandising Division sent the Agent

20   a Notice of Violation alleging that he had violated the Retail Sales

21   Agent Agreement, paragraphs 22(e) and 23 because on August 6, 1997,

22   his employee sold alcoholic liquor to a minor in violation of

23   ORS 471.410(2).

24         3.    On August 6, 1997, Shirley Gall was on duty as a clerk in

25   Agency 193. Ms. Gall is an employee of the Agent.
     Page 2 of 8 - FINAL ORDER
 1   / / / / /

 2   / / / / /

 3         4.     At approximately 6:10 p.m., employee Gall sold an alcoholic

 4   liquor, vodka, to Darlene Barton.

 5         5.     Minor Barton was born on October 5, 1976 (10/5/76).    She was

 6   20 years old at the time of the sale.     Minor Barton reasonably

 7   appeared to be her true age due to her youthful facial features.

 8         6.     Employee Gall asked minor Barton for identification prior to

 9   making the sale.    Employee Gall compared the photograph on the

10   identification to minor Barton's appearance.     Employee Gall misread

11   minor Barton's identification so that she believed that the date of

12   birth was January 5, 1976 (1/5/76).     She mistakenly believed the

13   identification showed that minor Barton was over 21 years of age.

14         7.      Employee Gall was not the parent or guardian of minor

15   Barton.

16         8.     Minor Barton was a police cadet with the Eugene Police

17   Department.    At the time of the incident, she was taking part in a

18   minor decoy operation designed to determine if alcoholic beverage

19   outlets would sell alcoholic beverages to minors.

20   Discussion

21        The Agent argues that the charge should be dismissed because of

22   the following:
                a. The minor decoy committed crimes in
23              misrepresenting her age and in purchasing
                alcoholic beverages; and
                b. The Asting@ operation by the Eugene Police
25              Department was not conducted according to OLCC
     Page 3 of 8 - FINAL ORDER
                 guidelines and the Agent did not meet the
 1               Merchandising Division criteria for conducting

 3   / / / / /

 4   a. Crimes Committed by Minor Decoy

 5         The Agent argues that the minor decoy misrepresented her age when

 6   she entered a business where minors are not permitted and she

 7   presented herself at the sales counter and requested an alcoholic

 8   beverage.   The Agent argues that there were signs both inside and

 9   outside of the business indicating that minors were not allowed.

10         Any crimes committed by the minor decoy in entering the business

11   prohibited to minors and in purchasing an alcoholic beverage are not a

12   defense to a charge of selling alcoholic beverages to minors.     The

13   charge will not be dismissed on this basis.

14   b.   Sting Did Not Comply With OLCC Guidelines

15         The Agent argues that the charge should be dismissed because the

16   Eugene Police Department did not comply with OLCC Merchandising

17   Division guidelines in conducting the sting operation and because the

18   Agent did not meet the OLCC referral criteria for conducting stings in

19   OLCC agencies.   The record indicates that there were no known problems

20   with sales of alcoholic beverages to minors at this location.

21         There is nothing in the record to indicate the Commission will

22   decline to find a violation when police agencies do not follow OLCC

23   guidelines in conducting stings or when the police agencies select

24   sting targets that do not fit the OLCC referral criteria.    The charges

25   will not be dismissed on this basis.
     Page 4 of 8 - FINAL ORDER
 1   Conclusions of Law

 2        ORS 471.410(2) provides that no one other than a person’s parent

 3   or guardian shall sell, give, or otherwise make available any

 4   alcoholic liquor to a person under the age of 21 years.     The

 5   Commission has previously determined that violations of ORS 471.410(2)

 6   are violations of the Retail Sales Agent Agreement.    OLCC Agency No.

 7   193, OLCC-89-RO-002, January 1992.

 8        The requirement of knowledge is satisfied when there are

 9   reasonable grounds to believe that the purchaser of alcoholic liquor

10   is under the age of 21 years.    Plaid Pantry Inc. v. OLCC, 16 Or App

11   199 202 517 P2d 1192 (1974).    The Commission has applied an objective

12   standard to determine if there are reasonable grounds to believe a

13   person is a minor.   The test is how old a person would appear to be to

14   an objective, impartial observer.    David Littlejohn, OLCC-85-V-076,

15   September 1986.

16        At the time that employee Gall sold an alcoholic beverage to

17   minor Barton on August 6, 1997, minor Barton objectively appeared to

18   be under the age of 21 years.    Employee Gall had reasonable grounds to

19   believe that minor Barton was under 21 years of age.     Employee Gall

20   did ask for and examine minor Barton's identification.     Nevertheless,

21   employee Gall misread the identification and completed the sale

22   despite the fact that the identification showed that minor Barton was

23   under 21 years of age.

24        The Commission concludes that employee Gall knowingly violated

25   ORS 471.410(2).
     Page 5 of 8 - FINAL ORDER
 1                                 II. PENALTY
 2              Commission may terminate this agreement for good
                cause, which includes but is not limited to, any
 3              of the following:

 4              . . . . .

 5              (e) Agent commits a violation of any term of
                this agreement, or any applicable Oregon statute,
 6              or applicable rule, or any policy or procedure
                contained in the retail operations manual, after
 7              having received two written notices of violation
                from the Commission within a 36 month period.
 8              Notices of violation will be sent as provided in
                paragraph 23;
                . . . . .
                (23) NOTICE OF VIOLATION. If the Agent has
11              committed a violation described in paragraph 22 e
                or f, the Commission will send a notice of
12              violation to be sent by certified mail, return
                receipt requested or personal delivery. The
13              Agent may request a hearing within 14 days after
                receipt of the notice of violation. If a hearing
14              is requested, a notice of violation shall become
                final only after such a hearing and determination
15              by the Commissioners, acting on the record, that
                the notice of violation was proper. A notice of
16              violation shall contain language advising the
                Agent of the basis for the notice and of the
17              right to a hearing under Oregon Law. (Retail
                Sales Agent Agreement.)

     Findings of Fact
           9.   The Commission has considered the above Findings of Fact
     with regard to this issue.
          10.   The Merchandising Division recommends that the Agent be
     sanctioned by receiving a Notice of Violation, as described in
     paragraph 22(e) and 23 of the Retail Sales Agent Agreement.
     Page 6 of 8 - FINAL ORDER
 1        11.    The Agent has not had any Notices of Violation prior to the

 2   violation in this case at this location.

 3        12.    The Agent has posted OLCC signs both inside and outside the

 4   agency notifying the public that minors are prohibited.

 5   / / / / /

 6   / / / / /

 7        13.    Agent has placed a sign at the register telling potential

 8   patrons that if they were born after this date 21 years previously,

 9   the Agency will not sell liquor to them.

10        14.    The Agent has held store-wide meetings regarding checking

11   identification and false identification.

12        15.    The Agent has purchased a large magnifying glass to help

13   himself and his employees in examining identification closely.

14        16.    The Agent and his employees have confiscated false or

15   improperly used identification from potential patrons.

16        17.    After the violation, the Agent asked OLCC personnel for a

17   "refresher course" in checking identification.     At the time of the

18   hearing, this had not yet been rescheduled.

19   Conclusions of Law

20        Paragraphs 22(e) and 23 of the Retail Sales Agent Agreement

21   provide that if the Agent has committed a violation of any applicable

22   statute or rule, the appropriate sanction is for the Commission to

23   issue a Notice of Violation to the Agent.

24        As set forth above, Agent's employee violated ORS 471.410(2) as a

25   result of the August 6, 1997, incident.     The Agent is responsible for
     Page 7 of 8 - FINAL ORDER
 1   this violation.

 2        The Commission concludes that an appropriate sanction is that the

 3   Agent receive a Notice of Violation.

 4                           ULTIMATE CONCLUSIONS OF LAW

 5        The Agent violated ORS 471.410(2) because the Agent's employee

 6   knowingly sold alcoholic liquor to a minor on August 6, 1997.

 7   / / / / /

 8        The Agent should receive one Notice of Violation pursuant to

 9   paragraphs 22(e) and 23 of the Retail Sales Agent Agreement.

10                                   FINAL ORDER

11        The Commission orders that Agent Peter Graepel, Agency No. 193,

12   460 Coburg Road, Eugene, Oregon, receive one Notice of Violation for

13   the August 6, 1997, violation of ORS 471.410(2).

14        It is further ordered that notice of this action, including the

15   reasons for it, be given.

16        Dated this 24th day of September, 1998.


18                                     /s/ Pamela S. Erickson
                                       Pamela S. Erickson
19                                     Administrator
                                       OREGON LIQUOR CONTROL COMMISSION
     Mailed this 24th day of September, 1998.
     NOTICE:     You are entitled to judicial review of this Order. Judicial
23               review may be obtained by filing a petition for judicial
                 review within 60 days from the service of this Order.
24               Judicial review is pursuant to the provisions of ORS Chapter
     Page 8 of 8 - FINAL ORDER

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