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ABLE NEWS º ABLE NEWS º ABLE NEWS
OCTOBER 25, 2012
Tequila Recall Spotlights Communication
John A. Maisch, General Counsel
Last month, the ABLE Commission received notice that half gallon bottles of 1800 Tequila Silver, Resposado, and Coconut were being voluntarily recalled by the product manufacturer. Product recalls are a serious subject to both state regulators and industry stakeholders, especially when those recalls involve possible threats to consumer safety.
In its August press release, the tequila manufacturer announced that it had decided to voluntarily recall the bottles due to potential damage to the glass stopper incurred during transportation and handling of the product. After being notified of the recall by the product’s nonresident seller, Republic Distributing, the ABLE Commission immediately required all ABLE licensees to discontinue selling or serving the recalled products pursuant to its emergency powers set forth in Oklahoma Statutes.
The ABLE Commission oversaw Republic’s efforts to collect cases of the recalled product from Class-A wholesalers in the state, contacting every wholesaler to verify that each wholesaler had made the collection effort a top priority. The ABLE Commission was also successful in transmitting the recall information to the state’s two largest daily newspapers, the Daily Oklahoman and Tulsa World, which both subsequently ran stories in an effort to notify consumers about the recall.
Because all spirits are required to be purchased through a wholesaler, the ABLE Commission was able to obtain an accurate list of all Oklahoma mixed beverage establishments and package stores that had purchased the product from a wholesaler within the last thirty days. Using that list, the ABLE Commission was better able to assist the nonresident seller and wholesalers in the recall effort. ABLE Commission Director Keith Burt personally called restaurants and package stores into the evening hours to notify them of the product recall.
To date, the ABLE Commission has not been notified of any verified findings of glass in any of the recalled bottles in Oklahoma. However, the recall served as a reminder of the importance of maintaining prompt and reliable communications with licensees. When a product has been recalled, the ABLE Commission will promptly issue a press release on its website, www.able.ok.gov. All licensees are encouraged to bookmark the agency’s website and check it frequently to keep apprised of important breaking news such as a product recall.
Any mixed beverage establishment or package store that locates any recalled product that wasn’t retrieved should contact its Class-A wholesaler or Republic immediately so that the recalled product can be picked up. To view a list of affected lot codes, you may view the manufacturer’s website, www.1800tequila.com, call 866-795-8805, or email email@example.com.
STATE REGULATORS & INDUSTRY LEADERS TO MEET IN OKC
A.Keith Burt, Director, Oklahoma ABLE Commission
MONDAY, OCTOBER 1, 2012
TUESDAY, OCTOBER 2, 2012
WEDNESDAY, OCTOBER 3, 2012
Registration begins on Saturday, September 29, 2012
Oklahoma Update: A Few Changes for the Summer
A. Keith Burt, Director, Oklahoma ABLE Commission
The ABLE Commission received notice that certain 1.75 Liter bottles of 1800 Tequila have been voluntarily recalled by its manufacturer. In the State of Oklahoma, the product’s nonresident seller, Republic, is coordinating efforts to retrieve and issue credit to ABLE licensees for recalled bottles of the product in the state.
The ABLE Commission is requiring all ABLE licensees to immediately discontinue selling or serving any of the recalled products containing the affected lot codes, pursuant to its emergency powers set forth in Oklahoma Statutes. 37 O.S. §§514, 528(I).
Any mixed beverage licensee or package store licensee that locates the recalled product should contact your Class-A wholesaler or Republic at (405) 702-4500 immediately so that the recalled product can be picked up.
To view a list of affected lot codes, you may view the manufacturer’s website, www.1800tequila.com, call 866-795-8805, email firstname.lastname@example.org.
An excerpt from the manufacturer’s press release is set forth below:
"Agavera Camichines, S.A. de C.V. , the brand owner of 1800® Tequila, today announced a voluntary US nationwide recall of 1800® Tequila 1.75 Liter Silver, Reposado and Coconut packaging due to potential damage during transportation and handling in some cases to the glass stopper.
"Although it is believed that the percentage of affected bottles is low, to protect the safety of consumers, the brand owner, Agavera Camichines, S.A. de C.V., has made the decision to voluntarily recall the 1800 Tequila 1.75 Liter packaging as a precautionary measure. There have been no reports of consumer injuries, but the presence of small particles of glass in the bottle could pose a health risk.”
Press Inquiries should be emailed directly to the manufacturer at Media.Inquiries@1800tequila.com or email@example.com, or you may call 416-435-5019.
Statewide Prohibition: The Early Years
John A. Maisch, General Counsel,
Over 27,000 gallons of beer poured into Oklahoma City sewers on November 17, 1907,when Oklahoma officially became a state. The night before, revelers crowded the streets to indulge in one more round before the lights were turned off on legal consumption in the city’s saloons.
To make matters worse, the Oklahoma Constitution only prohibited alcoholic beverages from being manufactured within the state. Thanks to the Commerce Clause, and the federal government’s glaring reluctance to curtail the flow of alcoholic beverages into the state, federal tax stamps continued to be imported by Oklahoma residents well into the first decade after statehood.
Not until Congress addressed this federal loophole through the passage of the Webb-Kenyon Act were these interstate shipments into Oklahoma finally stopped. Passed by Congress over the veto of President William Howard Taft , the Webb-Kenyon Act made it unlawful for alcoholic beverage to be transported into dry states, if those alcoholic beverages were intended for consumption in that dry state. 27 U.S.C. §122. The U.S. Supreme Court upheld the constitutionality of the Web-Kenyon Act in Clark Distilling Company v. Western Maryland Railway Co., 242 U.S. 311 (1917).
OKLAHOMA CONSTITUTIONAL CONVENTION
John A. Maisch, General Counsel,
Oklahoma’s Constitutional Convention delegates were mostly farmers, but the two delegates who wielded the most influence over the issue of prohibition at the Convention were two attorneys, William “Alfalfa Bill” Murray and Charles Haskell. Convention President Murray presided over the gathering, while Majority Leader Haskell worked behind the scenes to secure majorities on most of the controversial issues facing the delegates, including the issue of prohibition. A teetotaler and self-trained attorney from Ohio, Haskell had settled in Muskogee, a small town located in Indian Territory, in 1901.He made quick friends with the prohibition organizations upon arriving in Guthrie. With the help of Murray, Haskell was successful in getting a statewide prohibition provision inserted onto the ballot.
Haskell’s efforts were nearly derailed by the Committee on Liquor Traffic. Handpicked by Haskell and the Anti-Saloon League, the 15-member Committee was appointed to study the issue of statewide prohibition and submit its recommendations to Convention delegates. Misjudging the political strength of anti-prohibition forces, the Committee on Liquor Traffic sought out a compromise with those who opposed prohibition. The compromise, which would have continued prohibition in those counties formerly located in Indian Territory while allowing liquor on a county-option basis in all other counties, was completely unacceptable to Haskell. The compromise submitted by the Committee on Liquor Traffic was rejected by Constitutional Convention delegates.
Soon to be elected the State of Oklahoma’s first Governor, Haskell would champion the statewide prohibition provision through the Constitutional Convention on March 15, 1907. A little more than six months later, on September 17, 1907, Oklahoma voters would overwhelmingly ratified the state’s first Constitution by a vote of 180,333 (71%) to 73,089 (29%). Statewide prohibition would not garner the same level of public approval. Fearing that its inclusion might risk defeat of both questions, the Convention delegates submitted constitution ratification and statewide prohibition as separate questions on the ballot. Prohibition supporters were justified in being concerned. The statewide prohibition provision was ratified by Oklahomans, but by a much narrower margin: 130,361 (54%) to 112,258 (46%). Oklahoma’s Constitution, including the statewide prohibition provision, became effective November 17, 1907.
An article appeared in the February 2012 issue of “ADDICTION” entitled “Top Priorities for Alcohol Regulation in the United States: Protecting Public Health or the Alcohol Industry?” by Sarah M. Mart of Alcohol Justice.
“ADDICTION” publishes peer-reviewed research reports on alcohol, illicit drugs and tobacco behavioral addictions. ADDICTION has been published since 1884 by the Society for the Study of Addiction to Alcohol and other Drugs, a non-profit based in England that describes itself as a society that promotes professionals in the field of addictions to share their knowledge, skills and enhance the work of their members for the mutual benefit of all concerned with the study of addiction.
Ms. Mart’s article relates her experience at the National Conference of State Liquor Administrators (NCSLA) National Conference June 20-24, 2010, in New Orleans, Louisiana. Ms. Mart points out about 72% of the attendees are from the alcohol industry and that only 7 of the 21 states in attendance that sent a regulator sent more than one representative. She goes on to show 65% of the panelists were from the alcohol industry and that she was the sole public health advocate in attendance.
I remember the 2010 NCSLA National convention However, I remember not being there because of our latest budget crunch and conserving our resources by not going. When I related our financial situation to our seven Alcoholic Beverage Laws Enforcement (ABLE) Commissioners, each one understood
in its administration of the Federal Alcohol Administrators Act; and to strive for harmony in the administration of the Alcoholic Beverage Control laws among the several states.
Ms. Mart points out that because of safety and health concerns our residents depend on effective alcoholic beverage control laws, and that NCSLA might want to include public health as one of its professional and organizational priorities. Guess what Sarah, I agree. As the newly elected Southern Regional Chairman of NCSLA and as a member of its board, I am proud to say the Oklahoma ABLE Commission will be hosting the North-South regional this fall in Oklahoma City. My General Counsel and I are in the process of putting together interesting and informative panelists for the conference. We want to include public safety and health advocacy groups on those panels. Although I agree with Ms. Mart’s position on bringing public safety and health advocacy groups to the proverbial table, to have a voice. Nevertheless, I do not agree with the approach, to not to be a part of NCSLA because there is not enough representation of those groups. Why not choose to participate and be that voice? I personally believe the industry is wise to address their concerns with regulators. In Oklahoma we have industry and health and mental health leaders that we are in contact with each other on an on-going basis. Because of the strong leadership in the Oklahoma Department of Mental Health and Substance Abuse agency, we have had joint projects that have addressed many public health issues.
I believe there are unintended consequences as a result of Ms. Mart’s article. I believe it casts the NCSLA in an unjust and unfavorable light. NCSLA’s President William Kelley of Massachusetts strongly defended the organization and I am in support of his response.
and our only representative was a Commissioner that paid his own way. This Commissioner values the NCSLA and the information he receives from it. Keep in mind that Commissioners do not receive a salary for their participation on the Commission. This was not the case with Ms. Mart, whose trip was funded not by her organization “Alcohol Justice”, formerly the Marin Institute, and she did not pay her own way. Instead, the NCSLA paid for her to come in an effort to reach out to public health advocacy groups.
In addition to the number of industry members to regulators, Ms. Mart also points to, in my opinion, what was described as a bullying tactic by the industry to force the regulators to work with the industry to get to their support. Implications were perceived, if regulators did not follow their lead, consumers in the regulator's state could threaten their jobs. I do not feel threatened when working with the industry on their concerns.
Ms. Mart states in her article the purpose of NCSLA as found on its website NCSLA.org is as follows:
…to promote the enactment of the most effective and equitable types of state alcoholic beverage control laws; to devise and promote the use of methods, which provide the best enforcement of the particular alcoholic beverage control law in each state; to work for the adoption of uniform laws insofar as they may be practicable; to promote harmony with the federal government
In 2010, the ABLE Commission said good-bye to five longtime ABLE employees through retirement. Because of budget cuts, we were able to only refill two positions, but, thankfully, 2011 did not claim further ABLE retirees. 2012 will not be so kind, as we expect at least three more employees to retire.
In recent years our economy has presented challenges to both private and public companies and although uncertainties exist, I am encouraged as Oklahoma's economy continues to show signs of improvement. These signs give me hope that future retirements would be met with our ability to replace the retiring employees. It is difficult enough to lose all that institutional knowledge, compounded with the loss of manpower when critical positions are left unfilled, without your mission being compromised.
As 2011 drew to a close, the Oklahoma ABLE Commission had 41 full time focused employees. I have managers opening the mail and supervisors filling in at the front desk. We have most employees stepping up and wearing multiple hats.
When you have as few employees as we do, you tend to know everyone. You grow to care about other employee's and their families. I hope employees have satisfying work, do a good job and make it to their retirement goals, emotionally intact without bitterness, not beaten down by the job and in good health, able to enjoy the retirement they have earned
Two decades ago, we had twice as many employees, less work and it has been over five years and counting since state employees received their last pay raise.
The retirement wishes I have for myself and my colleagues just gets more complicated, yet they inspire me, with their dedication and faith.
We had many challenges in 2011, among them more budget cuts. Government consolidations continued and our agency was once again a target. We moved our offices at the end of September, and Oklahoma took a serious look at wine and strong beer in grocery stores.
As I say good-bye to 2011, I turn my attention to 2012 and what is in store for us this year. In a month the legislators will be back and I am hopeful when they convene some answers to our financial woes will occur. Collecting over five million dollars each year and receiving only a little over 3.1 million dollars, the ABLE Commission is a bargain, and if we were a for profit company, we would be in the black and paying dividends.
The ABLE Commission and its predecessor, the Alcohol Beverage Control Board (ABC), have been enforcing liquor laws and regulating the sale and distribution of alcoholic beverages since 1959. Alcohol is a unique product and serious consequences can occur if it were treated as pop. A New Year; same mission: Keep it safe.
Until this time next year, here's wishing you and yours a Happy New Year!
The ABLE Commission: Alcohol and Crime
Jim Hughes, Assistant Director, The Oklahoma ABLE Commission
Kids drinking beer and alcohol; what is the world coming to?
OK, I guess this is not a new problem. It has been a concern since I was a kid and my parents worried about me. It was a concern to me when my daughters were teenagers. What do we need to do and what can we do to address this problem before my grandchildren are teens?
We all know that if young people want to drink, they will find a way to obtain alcoholic beverages in some form. Recent surveys indicate that 65% of Oklahoma youth say getting alcoholic beverages or low-point beer is easy. Whether from a parent, family member, friend or retailer, adults are often the main source of alcohol for kids.
According to a 2001 study, underage drinking in that same year cost the citizens of Oklahoma $771 million. Included in the cost are medical care, loss of work, pain and suffering from problems due to use of alcoholic beverages. This same study showed that underage drinkers consumed 20% of all alcoholic beverages sold in Oklahoma, totaling $ 184 million in sales.
The Governor established a task force on the Prevention of Underage Drinking and requested a comprehensive plan to address the problem. The task force was comprised of community leaders state and local law enforcement, Department of Mental Health officials, legislators and educators. Most, if not all, are parents or grandparents.
The task force made its final recommendations in December 2006 with little or no publicity or fanfare. To date, even with the growing problem,there has been no effort to take advantage of the group's efforts. Will this study be bound and placed on the shelf like so many others and referenced only during the next study authorized to again examine the issue?
The task force made the following recommendations:
1. Create or designate a single agency to be responsible for coordinating underage drinking enforcement currently an individual receives a license from the state, the county and the municipality, which allows for the sale of alcoholic beverage and low-point beer.
The regulation and enforcement of state alcoholic beverage laws and low-point beer laws is parceled between local and state law enforcement agencies. There is clear authority over licensing but the enforcement of low-point beer law is an area that must be done by local authorities; while alcoholic beverage laws may and must be enforced by all law enforcement entities in the state.
Reporting underage sales or complaints of minors in possession of alcoholic beverages is not funneled to one responsible entity and is often lost in law enforcement’s list of priorities and limited resources.
2. Name the ABLE Commission as the agency authorized to enforce laws pertaining to low-point beer, as well as alcoholic beverages. The ABLE Commission has clear authority to license all establishments involved in the manufacture sale, delivery, mixing and serving of alcoholic beverages in the state of Oklahoma.
It has been the sole authority since 1959. It has established offices, policies and procedures in place that would easily assimilate the inclusion of low-point beer enforcement. Currently most on-premise licensees have an alcoholic beverage license. and a low-point beer license. ABLE agents during tobacco enforcement visit other low-point licensed locations. The Constitution and Attorney General opinions prevent low-point beer enforcement by the ABLE Commission.
3. Re-define low-point beer as an alcoholic beverage.The Oklahoma Constitution makes a clear distinction between low-point beer (once referred to as non-intoxicating liquor) and alcoholic beverages.
4. Strengthen state laws pertaining to underage drinking. Youth Access to Alcoholic Beverages and social host laws are a great start, but perhaps attention should be placed on the individuals or locations that continue to furnish kids with alcohol.
5. Increase law enforcement funding and resources to allow for proper and consistent enforcement of underage drinking laws.
6. Increase the tax on alcoholic beverages and low-point beer.
7. Encourage funding and implementation of prevention approaches that are evidence based;Cops-in-shops, shoulder tap, green card are a few programs that have proved to be successful in minimizing sales to minors. All are time and manpower intensive which strain limited resources.
8. Require and provide licensee education, to include employee training. This has been found to be a valuable asset for the regulator and licensees. The training allows special emphasis to be given to problem areas such as underage sales.
9. Develop and implement a statewide media effort.This has proven its worth in slowing youth use of tobacco as demonstrated by Health Department involvement and statistical information.
10. Enhance opportunities for youth leadership efforts. Proven that most effective anti-sales programs concerning youth use of tobacco are originated with and put forward and supported by the youth themselves. Just as many kids are interested in minimizing alcohol use and abuse. Mental Health and Health Departments have a successful track record that is easily modified to target underage drinking. The recent social host laws and ordinances put into place by several communities are a great first step. But lets not stop there we can do so much more.
How great would it be that after a very short time, most Oklahomans were talking about the changes made across the state that have made a difference in our youth's access to alcohol. By increasing the penalties for providing alcohol to young people we could send a strong message that would make adults think twice before handing it to them. That is
was certainly not worth losing a job or the money spent on fines or living with the consequences of the actions of that underage person drinking.
Assigning responsibility of state law enforcement to a law enforcement agency and increasing those enforcement efforts would certainly seem the logical course of action by the state. The media effort, education of kids, parents, retailers and servers could be done with oversight from the Department of Mental Health, who currently coordinate the efforts to prevent youth access to tobacco.
Bottom line is that the cost of doing nothing is too high. We can certainly do better and this Task Force's recommendations make sense and should receive strong consideration from our state leaders. Oklahoma's youth are important to all of us. There is absolutely no reason Oklahoma can't be a leader in this effort.
The task force created a template for positive change in the way we address this problem, lets use it.
STRIKING A BALANCE
By A. Keith Burt, Director, Oklahoma ABLE Commission
Our work at the ABLE Commission often involves striking a balance. We never forget we are a law enforcement agency and ensuring compliance with the law is a great concern to us. The public safety issues we encounter, balanced with the economic concerns of our licensees and those of Oklahoma consumers, play a role in our administrative and enforcement efforts.
Recently, I was meeting on the Joint Legislative Task Force created by Senate Bill 658. This 21 member Task Force that I was a part of had a very diverse makeup. The Task Force consisted of health and public safety officials as well as alcoholic beverage industry representatives from the three tiers. Commerce, convenience and grocery stores were also represented. Lay citizens were appointed along with three Oklahoma State Senators and three Oklahoma State Representatives.
The Task Force’s purpose was to examine the feasibility of allowing high-point beer and wine to be sold in convenience and grocery stores. There were constitutional amendments to consider. Economic consequences to existing licensees that had been playing by a set of rules for more than fifty years with substantial personal investments were also to be considered. What about eventual costs to Oklahoma consumers? Would selection increase or decrease? The prices of not only wine and strong beer, but liquor as well are being examined.
Reports were given concerning impacts of economic relevance to the various groups. Health concerns and those impacts on Oklahomans were also discussed. My concerns of greater access by our youth were also discussed and I introduced reports from Washington State that showed compliance rates decreased when that state allowed wine sales in grocery stores. The exponential growth of licensees with increased hours of operation would certainly strain our existing manpower. I know that thirty-five other states allow the sale of wine in grocery stores and thirty-three of those allow convenience stores to sell wine. Because other states allow it does not mean it is right or wrong for Oklahomans. The Task Force was to disband no later than February 1, 2012 with a report to the Oklahoma Legislature. The ABLE Commission knows its role. We are law enforcers not law makers. Hopefully, the information provided will help those decision makers in the next Legislative session. At the end of our second meeting, a motion was made, and without any verbal dissent, it was voted that the Task Force would not meet again. With many factors to consider, the Legislature has its work cut out to determine a future course for Oklahomans on the issue of wine and strong beer sales in Oklahoma.
It is not always easy to strike a balance between public safety issues and allowing the freedom to pursue an economic endeavor involving intoxicating beverages. It is not soda pop that we regulate. As much as I hear from some of the public that the ABLE Commission is too restrictive and we need to be more progressive, not even a year ago headlines in a local newspaper read, “Agency Waters Down Penalties.” The ABLE Commission was being criticized for not revoking eight licenses for selling to a minor. We should have to defend our actions and we did. A $1,000 fine to a server’s first offense is not insignificant in my opinion. I have often stated that correcting behavior is our primary goal, not writing tickets.
We need to strike a balance. Some will always think there is too much enforcement; others wonder why we don’t throw the book at the violators. As the Director of the agency charged with enforcing the State liquor laws, I want to ensure that Oklahomans have the right to enjoy alcoholic beverages responsibly without harming themselves or others, while at the same time allowing a business friendly environment. It’s about “striking a balance”.
The ABLE Commission would like to make available to law enforcement officials the following list of 2M2L Training Dates and Locations:
Online Registration Now Available: www.ok.gov/odmhsas/2M2L.html
2012 2M2L Training Dates and Locations
|Oklahoma City, OK January 9-10, 2012
Metro Tech - Economic Development Center
1900 Springlake Drive
|Lawton, OK - February 15-16, 2011
Great Plains Technology Center, Room 301A
4500 W. Lee Blvd.
|McAlester, OK - February 28-29, 2012
Kiamichi Technology Center, Room BIS
301 Kiamichi Drive
|Woodward, OK- March 20-21, 2012
High Plains Technology Center, Room 201C
3921 39TH Street
|Guymon, OK- April 11-12, 2012
Holiday inn Express
701 SE Highway 3
As business owners look for ways to increase their visibility and bring more customers to their doors, I have seen an increase in mobile food vehicles. A recent mobile event, which organizers were calling H & 8th, named for its location at Hudson and 8th Avenue, included a taco and burrito truck, an ice cream van, a couple other food trucks, and an Ale dispenser. Local restaurants were busy, an art gallery had its doors open and two young men were singing and playing guitars. It sounds like fun to me, although I was not there that particular night. I have been thrilled to see Oklahoma City become a place thriving with entertainment and dining opportunities for our citizens and visitors. Then something went terribly wrong. The event was scheduled to kick off at 8 p.m., but less than an hour into the festivities the report that I received was that there were health code violations that caused some of the food vendors to shut down. The ABLE Commission’s participation included writing two tickets at one of the local restaurants unrelated to the event.
I read accounts of that evening and asked our Assistant Director to provide me with a review of our actions. Those attending the event were surely disappointed. I was disappointed that the event hit a snag and our citizens attending were now wondering just what happened. There were several accounts following and the coverage lasted more than a week. One report I read said we were “Sovietized Gestapo” and a bunch of Nazis. When you are trying to do a good job and your intent is to protect and serve the public, it is disappointing to read how someone has perceived your efforts and even though some cultural and historic references may have been mixed and matched, it is never fun to be compared to Hitler. Mayhem in midtown and swat raids were mentioned in some accounts of that evening. I do not believe any of our licensees think we are going to call ahead and warn you that we are coming. I plead guilty to having unannounced or surprise inspections; however, I do not want to put any honest, taxpaying licensee of ours out of business. The ABLE Commission did not shut down anything. The only time you see our agents at a taco truck would be to investigate a report they were selling whiskey from it or they were hungry. However, this story should not end there with “it’s not our fault.”
Citizens expect and deserve their government to be responsible to them, to serve and protect them. View what happened that night from someone looking to enjoy the evening at H & 8th. When I heard there were over 20 agents descending on the event, I wondered where they all came from. We only have 22 agents for the entire state. As it turns out, in addition to our three agents, one of which was in training, there was a presence from city and county health inspectors, fire and city enforcement officers. I could definitely see why someone would wonder why this much manpower was needed. I can only relate to you that we were checking on a caterer’s license, that was not even two days old and catering for the first time. I want to be responsible and sensitive to the needs of the business community. This responsiveness includes doing our best not to interrupt someone’s dinner when we make inspections. It has always been more important to me to correct behavior than write tickets. Our agents are entrusted with the awesome responsibility to carry firearms; they are police officers and sometimes their job is dangerous. I expect them to be sensitive to the economic investment our licensees have made. We know our actions can have consequences on businesses and we are always mindful of that.
As I close this story I have one more thing to report on the activities of that evening. It may affect only one person, but it is important to me. One of the tickets we wrote affected a hard working young man that had let his license expire. It was only two weeks overdue, but in addition to the administrative citation we wrote, there was a citation written from another jurisdictional authority. Confused about who wrote what and how to take care of this, I get a call regarding “the other ticket.” Respectful and courteous, I hear the confusion in his voice. It would be easy to feel like the government is ganging up on this guy with two tickets for basically the same offense. I personally believe an oversight is much different than willful neglect. I want to be fair and to help people who occasionally make a mistake. My General Counsel is reaching out to the other jurisdiction to apply reason and fairness in this situation, not just assess a penalty because we can.
It is 7:30 p.m. on a Friday night as I turn this article in. The organizers of H & 8th are trying again tonight. The event starts at 8 p.m. and since I missed lunch today, I’m pretty hungry. I think a taco sounds good. I’ll let you know how this one goes, or more likely, you’ll let me know.
The History of 3.2% Beer in Oklahoma
John A. Maisch, General Counsel
Oklahoma ABLE Commission
The Stock Market Crash of 1929 not only obliterated the life savings of millions of Americans and ushered in the Great Depression, it also set into motion the chain of events that would ultimately lead to the repeal of the Eighteenth Amendment.
Franklin Delano Roosevelt swept into the Oval Office in 1932 by a nation hungry for change. He promised a wide range of economic and social reforms, including the repeal of Prohibition. During campaign stops, he would refer to Prohibition as a “stupendous blunder.”
President Roosevelt formally proposed a constitutional amendment that would repeal the Eighteenth Amendment shortly after taking office. No constitutional amendment had ever been repealed outright before this time. Roosevelt got his wish on February 20, 1933, when Congress passed the Twenty-First Amendment and sent it to the states for ratification.
While awaiting ratification, Roosevelt pushed forward with another campaign promise. He touted legislative reform that would redefine those malt beverages containing less than 3.2% alcohol by weight as non-intoxicating beverages, and therefore make the production, distribution, and sale of such beverages exempt from the Eighteenth Amendment.
The Cullen-Harrison Act was signed into law by President Roosevelt on March 23, 1933. Effective midnight, April 7, 1933, beer containing less than 3.2% alcohol by weight was no longer prohibited by the Eighteenth Amendment.
It was reported that 25,000 people gathered around the Anheuser Busch facility in St. Louis and 10,000 crowded around the Schlitz brewery in Milwaukee as midnight approached. Just past midnight, Anheuser Busch sent cases of the non-intoxicating beverage to both President Roosevelt and U.S. Senator Al Smith (N.Y.) on Clydesdale-driven wagons. 
Oklahoman voters would approve their own state referendum reclassifying 3.2% beer as non-intoxicating on July 11, 1933. The state question passed overwhelming by a vote of 224,598 to 129,582 on what was reported the hottest day (107˚) in 43 years.
This article is an excerpt from a webcast presented by John Maisch on behalf of the Oklahoma Bar Association’s continuing legal education program on March 30, 2011. The webcast in its entirety is available through the OBA’s website at www.okbar.org or by calling (405) 416-7006. The OBA has approved the webcast for continuing education and charges $50.00 to view the 50-minute webcast.
October 12, 2011
ABLE COMMISSION HAS MOVED
The ABLE Commission has moved their offices to 3812 N. Santa Fe, Suite 200, OKC, Oklahoma
THE MAIN TELEPHONE FOR THE ABLE COMMISSION WILL REMAIN THE SAME:
(405) 521- 3484 and (405) 521- 6578 FAX.
THE NEW MAILING ADDRESS WILL BE:
OKLAHOMA ABLE COMMISSION
3812 NORTH SANTA FE, SUITE 200
OKLAHOMA CITY, OK 73118
The ABLE Commission has received inquiries from mixed beverage establishments and the media requesting feedback on a recent civil lawsuit filed in Canadian County by several Oklahoma citizens: Truel et. al v. Aguirre, District Court of Canadian County, Case No. CJ-2011-115. While we issue licenses to mixed beverage establishments, we do not oversee the assessment, collection or remittance of gross receipt taxes by these licensees.
The ABLE Commission is not a Plaintiff or a Defendant in this lawsuit. Consequently, we are not in a position to advise or respond to inquiries from licensees about the allegations contained in the lawsuit. Mixed beverage establishments may wish to consult with private legal counsel.
John A. Maisch, General Counsel
August 15, 2011
The Oklahoma ABLE Commission recently completed a two-year project that provides the public and law enforcement officials an online database to file and search alcohol and tobacco complaints. The database permits law enforcement officials the ability to enter alcohol and tobacco compliance checks that they have conducted in their own jurisdictions.
“This anonymous submission of alcohol and tobacco complaints allows the ABLE Commission to more efficiently assign the complaints for investigation,” stated Director Keith Burt. “Now the public has the capability to monitor some of the activities of the alcohol and tobacco retailers in their communities directly from our web site at www.able.ok.gov.”
This system, in addition with the collaborative efforts of law enforcement officials in Oklahoma and Tulsa counties, is an effort to reduce alcohol and tobacco sales to underage persons and alcohol sales to intoxicated persons. Thanks to a Justice Assistance Grant (JAG) awarded to Oklahoma Department of Mental Health and Substance Abuse Service (ODMHSAS) and administered through the Oklahoma District Attorneys Council, the ABLE Commission conducted more than 100 over-service checks in Oklahoma and Tulsa counties.
Assisted by Oklahoma’s 17 Area Prevention Resource Centers (APRC), ABLE instructed over 250 alcohol retailers in Responsible Beverage Service and Sales. This 4-hour course concentrated on recognizing valid identifications, early recognition of intoxicated persons and the refusal of service. Statistical data of written tests were scored and analyzed by the OU Health Science Center.
For more information, contact:
Jim Hughes, Assistant Director Oklahoma ABLE Commission (405) 522-2996 firstname.lastname@example.org
The 53rd Oklahoma Legislature has adjourned and as usual we encountered many challenges this past Session. State agencies struggling with declining resources were faced with another round of budget cuts. We are not alone, as large and small businesses throughout Oklahoma and the nation attempt to gain some momentum or simply try to survive.
The Legislature and Governor enacted legislation to streamline government services, including the consolidation of state agencies' information technology services. The ABLE Commission looks forward to contributing to these efforts as we move toward a more efficient state government, without reducing the level of service that licensees have come to expect from their state government.
Unfortunately, the ABLE Commission wasn't immune from the budget cuts that affected nearly every state agency. Legislative leaders and the Governor also struck a budget accord resulting in a 7% decrease ($236,000) in our agency's General Revenue Appropriations. 'This is an equivalent of four full time positions. While we are grateful that most of our funding was left intact, we are still fated with the fact that our agency's budget has been cut by over 20% since 2009.
While our budgets continually decrease, our responsibilities continue to increase. In addition to regulating alcoholic beverages, the ABLE Commission is charged with enforcing the Prevention of Youth Access to Tobacco Act and Oklahoma Charity Games Act. We feel privileged to have been entrusted with these additional responsibilities, but with every budget cut, we are reminded of the challenges of enforcing such diverse missions.
In light of these budget cuts, we are seeking alternate funding solutions as well as cost reductions, where feasible. In short, we remain focused on the task at hand, which is securing the public's safety while providing our licensees with the most prompt service that we can provide. We will continue to rely on your feedback as we continue to implement these changes. If you experience any decrease in service levels from our agency as a result of these budget cuts, we want to know as soon as possible, so that we can address the issue.
Finally, I wanted to take a moment to summarize a few other legislative bills involving alcoholic beverages that were passed by the Legislature and signed into law by the Governor this past session:
Senate Bill 658
Senate Bill 658 created a 2I-member task force to study whether the issue of wine and strong beer sales in grocery stores should be submitted to a vote of the people. The joint Legislative Task Force is composed of state senators, state representatives, citizens-at-large, and representatives from various industries. The Task Force is required to submit its report to the Legislature by February I, 2012.
Senate Bill 529
Senate Bill 529 amended Oklahoma's statutes to require mandatory ignition interlock devices for all DUI convictions where the blood alcohol concentration is aggravated (0.15 BAC or higher), effective November 1,2011. In addition, all drivers convicted of aggravated DUI are required to carry a replacement driver's license containing the phrase, "Interlock Required:'
House Bill 1211
House Bill 1211 amended Oklahoma's social host statutes to establish criminal penalties for those convicted of violating the state's social host laws. Effective November 1, 2011, first and second-time convictions that do not involve great bodily harm or death will be guilty of a misdemeanor. The legislation also affirmed municipalities' authority to enforce low-point beer ordinances, provided those ordinances are not more stringent than those set forth by state law.
Senate Bill 324
Senate Bill 324 lowered the lawful blood alcohol concentration for operators of motorized watercraft from 0.10 BAC to 0.08 BAG, effective July 1, 2011.
The ABLE Commission does not make the laws, it simply enforces them. However, the ABLE Commission will continue to fulfill its obligations and articulate our public safety concerns as required by law. We appreciate the opportunity to share our concerns with elected officials, licensees, and members of the general public, and we are always available to hear your feedback on issues affecting the industry.
According to Jim Hughes, Assistant Director of the ABLE Commission, this year’s overall statewide compliance rate of 91.08% is up from last year’s 82.43%. The greatest area of improvement was seen in northeastern Oklahoma where, last year, nearly a quarter of convenience stores and grocery stores sold tobacco products to undercover youths. Today, less than 10% of that
area’s tobacco retailers sold to the youth.
The ABLE Commission conducted more than 2000 compliance checks throughout the state, thanks to a grant received from the Oklahoma Tobacco Settlement Endowment Trust (TSET). The grant is administered through the Oklahoma Department of Mental Health and Substance Abuse Service (ODMHSAS) which coordinates the state’s compliance check program. The ABLE Commission has been statutorily responsible for enforcing the “Oklahoma Prevention of Youth Access to Tobacco Act” since 1994 and has worked with ODMHSAS to perform tobacco compliance checks statewide.
Although we are pleased with the increase, we believe there are still far too many stores that will sell tobacco products to our youths,” stated Assistant Director Hughes. To further aid in its efforts to protect Oklahoma’s youths, the ABLE Commission announces the availability of an online query system. This system, made possible through a Justice Assistance Grant (JAG) administered by ODMHSAS, allows the public to search and submit complaints directly to the ABLE Commission. In addition, it offers law enforcement agencies the opportunity to record the compliance checks they have conducted within their jurisdictions. Access to this database is available through ABLE’s web site at www.able.ok.gov.
Hughes recognized TSET’s and ODMHSAS’s efforts to provide resources and coordination of services for increasing the number of compliance checks as important tools in the battle against youth tobacco use.
For more information, contact:
Jim Hughes, Assistant Director Oklahoma
ABLE Commission (405) 522-2996
2010 saw the retirement of 5 long time ABLE Commission employees.
Tim Wilson December 1, 1979 to January 1, 2010
Roger Jennings August 8, 1985 to February 1, 2010
Kevin Sharp November 4, 1996 to August 1, 2010
Marta Patton July 23, 1974 to August 1, 2010
Stan Dowling September 22, 1986 to October 1, 2010
I recently visited with Tim and he was planning a trip to Thailand to do some scuba diving.
Roger Jennings stayed retired four whole days before taking a position with the Chickasaw Nation in the office of the Gaming Commissioner.
I saw Kevin Sharp around Christmas time in McAlester at the McAlester Office Christmas party. He looked great and said he still enjoyed fishing and hunting and was getting to do a lot more of each in his retirement.
Marta is getting to garden a lot more than she used to and we try very hard not to call her every time we have a question and we know she knows the answer. It reminds me of when Charlie Weaver retired in 1996 after 37 years with the ABC Board/ABLE Commission. Marta would remind me, Charlie’s put in his time, let him retire in peace. Well Marta, we are trying to let you retire in peace, but you were the closest thing we had to an encyclopedia on liquor laws since Charlie Weaver’s retirement.
Stan Dowling, in addition to having a career with the ABLE Commission, also served our country in the Naval Reserve.
To all the ABLE Commission employees we lost through retirement in 2010, I wish you a Happy New Year and a long and enjoyable retirement. Thanks for all your contributions to the agency and the citizens of Oklahoma.
This afternoon, the United States Food and Drug Administration (FDA) issued warning letters to four manufacturers of alcohol energy drinks, notifying the manufacturers that their products were not deemed generally recognized as safe by the federal agency.
The four companies named by the FDA include Charge Beverages Corporation, New Century Brewing Company, Phusion Projects, and United Brands Company. Only one manufacturer, Phusion Projects, is registered to sell its alcohol energy drink, Four Loko, in the State of Oklahoma.
The FDA’s warning letter stated that specific alcohol energy drinks manufactured by these four companies were considered adulterated products under the Federal Food, Drug, and Cosmetic Act, and gave these manufacturers fifteen (15) days to specify what steps each manufacturer were taking to correct the violations.
The FDA’s press release can be accessed at: http://www.fda.gov/Food/FoodIngredientsPackaging/ucm190366.htm
On November 3, 2010, the Oklahoma ABLE Commission placed a moratorium on the approval of alcohol energy drinks, including Four Loko, until a local scientific panel could be assembled to review the products’ safety.
At that time, the ABLE Commission specifically stated that the temporary moratorium would not affect licensed wholesalers' or retailers' ability to sell Four Loko currently in the state. The moratorium would only restrict the ability of Phusion Projects, Four Loko’s manufacturer, to bring its alcohol energy drinks into Oklahoma after December 3, 2010.
The ABLE Commission is in the process of deciding what additional action, if any, may need to be taken by the state agency in light of the FDA's announcement today.
While the state agency does not foresee taking any immediate action to require wholesalers or retailers to remove Four Loko from their shelves, the ABLE Commission encourages all consumers and ABLE licensees to review and carefully consider the warnings published by the FDA this afternoon.
John A. Maisch, General Counsel
Oklahoma ABLE Commission
A Hospitable Mission
Occasionally people get the wrong impression of our mission here at the Alcoholic Beverage Laws Enforcement (ABLE) Commission. Many believe we are here to put a cork in their attempts to have fun. Our mission states we enforce and administer the Oklahoma Alcoholic Beverage Control Act, Oklahoma Charity Games Act, and Prevention of Youth Access to Tobacco Act. Our desire is to help regulate an orderly market place and ensure a fair competitive situation for all. We would like nothing better than for all Oklahomans and our guests to enjoy Oklahoma’s hospitality.
A Broad Focus
In 1959 when the Oklahoma Alcohol Beverage Control Board was created we had only one focus and that was alcohol regulation. Through the years Oklahoma’s Constitution was amended by a vote of the people in 1984, and liquor-by-the-drink on a county option was approved and the size of our agency more than doubled and received a name change to the current day ABLE Commission. From the mid eighties with almost 80 employees, through the 90’s, which saw the Legislature add Charity Games enforcement and Prevention of Youth Access to Tobacco, to the present day, which finds us with all the three missions and only 41 full time employees to get the job done, the job remains a challenge.
An Increasingly Challenging Environment
Today’s world is undoubtedly more complex than in 1959 when our agency was born (no Internet sales to be concerned with then). Yet what we want for citizens remains almost identical. There is still the consistent desire to protect Oklahomans from harm, while allowing the freedom to enjoy the hospitality the Midwest is known for.
We are privileged to work with responsible representatives of the liquor industry. People in this industry know their product is unique and that selling this product bears a responsibility unlike most others. Regulation is required or consequences will be had. Just look at the published works, “The Dangers of Alcohol Deregulation: The United Kingdom Experience”. This is surely an eye opener for those who want to sell alcohol as if it were soda pop.
There is not enough time to delve into all the subjects as each have enough weight to merit their own article, such as the defending of the three tier system and the implications of vertical integration on that system. We deal with subjects such as direct shipping, the Costco case, Granholm, second generation Granholm, and a piece of legislation called the Comphrehensive Alcohol Regulatory Effectiveness Act (CARE).
We deal with complex issues that invade simple supply and demand curves and interject public safety concerns that can and often do impact profit margins. People in our industry are just as concerned with their bottom line as any other walk of life. However, they realize that over indulgence can have deadly consequences. For the most part we deal with responsible retailers, restaurateurs and club owners. These people know we are out there checking their operations and most welcome it. They run clean operations and expect our help in maintaining an orderly safe market place. Do we write tickets? Do we revoke licenses? Do we make arrests? The answer is yes, yes, and yes. This, however, is not our goal - correcting behavior is. Many times a penalty will involve something other than a monetary or fiscal sanction such as greater security or perimeter control.
Increasing unit sales is generally a profit generator. However a cheaper more accessible product is not always the answer. If you have ever had the chance to catch Pam Erikson’s presentation on the “The High Price of Cheap Alcohol”, you will be thoroughly enlightened. There are many examples of balancing profits with public safety. We try to be the guys who keep a mindful eye out.
In light of challenging times for both the private and public sectors we see innovation all around us as noon and dinner establishments sometimes double as nightclubs in the same venues. Yet, this clever use of limited space, often mean potential license premise control problems.
With the trend of downsizing regulatory agencies and/or a shift from state to local control, it is no accident that the correlation of shrinking budgets goes hand in hand with a struggling economy. Twenty five years ago with an agency twice our size and only one mission, not three, we did a good job. Today the men and women of the ABLE Commission do three times the work with half the people and they’re doing a great job! With unemployment at record levels (and four years without a pay raise) many of them stop by just to say thanks for having a job and not being furloughed as some of our sister agencies have done with their employees.