Or. Admin. Code § 845-005-0421

Current through Register Vol. 63, No. 12, December 1, 2024

Section 845-005-0421 - Third-Party Delivery Facilitator Permit Qualifications, Requirements, and Authorizations

(1) A Third-Party Delivery Facilitator must make application to the Commission and receive and hold a valid third-party delivery facilitator permit from the Commission to:

(a) Deliver, or hold itself out as willing to deliver, alcoholic beverages from an eligible business to a final consumer; or

(b) Facilitate, or hold itself out as willing to facilitate, the sale and delivery of alcoholic beverages by an eligible business to a final consumer.

(2) Applicants for the issuance or renewal of a third-party delivery facilitator permit must submit a complete, accurate, legible, and timely application to the Commission that contains all materials, forms, documents, information, and fees required by the Commission.

(a) The Commission may accept the application if all required materials, forms, documents, information, and fees in a manner that the Commission determines is complete, accurate, legible, and timely; or

(b) The Commission may not accept an incomplete, inaccurate, illegible, or untimely application if it does not contain all required materials, forms, documents, information, and fees. The Commission shall give applicants the opportunity to request a review if the Commission does not accept an application. A review under this subsection is not subject to the requirements for contested case proceedings of ORS Chapter 183.

(3) After accepting the application, the Commission may:

(a) Require additional materials, forms, documents, information, or fees from an applicant where there is reason to believe that the materials, forms, documents, information, or fees are required by law or rule or may help the Commission determine the merits of an application or to otherwise perform its statutory duties; and

(b) Inactivate an application when the Commission determines the applicant failed to provide to the Commission all required materials, forms, documents, information, and fees in a manner that the Commission has determined are complete, accurate, legible, or untimely. The Commission shall give applicants the opportunity to request a review if the Commission inactivates an application. A review under this subsection is not subject to the requirements for contested case proceedings of ORS Chapter 183.

(4) A third-party delivery facilitator permit is issued for a period of one year that expires at 11:59 pm on December 31 of each year. Notwithstanding this requirement, a third-party delivery facilitator permit issued for the first time is valid beginning on the date of issuance to 11:59 pm on December 31 of the same year.

(5) The annual fee for a third-party delivery facilitator permit is $500.

(6) The Commission may refuse to issue or renew a third-party delivery facilitator permit, and may suspend or revoke a permit, if the Commission finds or has reasonable grounds to believe:

(a) The applicant or permittee is, or has a financial interest in, a manufacturer or wholesaler of alcoholic beverages;

(b) The applicant or permittee provided material false or misleading information to the commission or omitted information that should have been provided to the commission; or

(c) The applicant or permittee, or any person used by or acting on behalf or at the direction of the applicant or permittee, does not have a good record of compliance with the Commission, as assessed upon initial application for a permit under this section and annually upon application for renewal of a permit issued under this section.

(7) When the Commission finds or has reasonable grounds to believe that an applicant or permittee is, or has a financial interest in, a manufacturer or wholesaler of alcoholic beverages pursuant to (6)(a) of this rule, the Commission will:

(a) Notify the applicant or permittee of the finding or belief and include an explanation of the Commission's findings or belief; and

(b) Give the applicant or permittee 30 calendar days from the date of the Commission's notification to cure the issue.

(8) A third-party delivery facilitator permittee acting on behalf of an eligible business may:

(a) Deliver, or cause to be delivered, alcoholic beverages to a final consumer on behalf of an eligible business in compliance with these rules and with the identification check process provided in ORS 471.130(1);

(b) Advertise alcoholic beverages available for retail sale;

(c) Solicit, receive, and accept orders for alcoholic beverages from final consumers; and

(d) Receive payment for alcoholic beverages ordered by final consumers.

(9) An eligible business using a third-party delivery facilitator must:

(a) Control, with clear and conspicuous messaging, the advertising of its alcoholic beverages offered for sale and delivery by the third-party delivery facilitator, including but not limited to:

(A) Determining the price of the available alcoholic beverages;

(B) Identifying the name of the eligible business selling the alcoholic beverages;

(C) Messaging that the offer and sale of the alcoholic beverages is by the eligible business;

(D) Ensuring that the payment made by the final consumer for an alcoholic beverage is paid to the eligible business; and

(E) Following all advertising rules of the Commission.

(b) Control the acceptance of orders for alcoholic beverages from final consumers;

(c) Receive all payments made by the final consumer for alcoholic beverages;

(d) Take reasonable measures to ensure that it and any of its authorized delivery persons follow the identification requirements as provided in ORS 470.130(1); and

(e) Provide to the final consumer, or to the third-party delivery facilitator for delivery to a final consumer, only the types of alcoholic beverages allowed to be sold at retail by the eligible business.

(f) A violation of this subsection by an eligible business is a Category III violation.

(10) A third-party delivery facilitator permittee acting on behalf of an eligible business must:

(a) Engage in an activity pursuant to subsection (8) of this rule only when acting on behalf of an eligible business; and

(b) Use only a delivery person to deliver alcoholic beverages to a final consumer who:

(A) Has completed an alcohol delivery training program within the last three years pursuant to OAR 845-005-0451 that was provided by:

(i) The third-party delivery facilitator permittee; or

(ii) Another party under a contract with the third-party delivery facilitator permittee; and

(B) Holds a valid certificate of completion of a Commission-approved alcohol delivery training program issued within the last three years by:

(i) The third-party delivery facilitator permittee; or

(ii) Another party who is under contract with the third-party delivery facilitator permittee to provide the training.

(C) Is at least 18 years of age and agrees to comply with the alcohol delivery training program requirements including but not limited to the requirement regarding identification checks as provided in ORS 471.130(1);

(D) Holds a valid driver license or other identification pursuant to Commission rule;

(E) Has not had a felony violent crimes conviction where the incident leading to the conviction occurred within two years of the date of delivery; or has not had two or more violent felony convictions where at least two of the incidents leading to these convictions occurred within four years of the delivery. As used in this subparagraph, "felony violent crimes conviction" means a felony conviction for a crime where the person causes, attempts to cause, or threatens to cause physical injury or harm to another person irrespective of the jurisdiction;

(F) Has not had a felony drug conviction where the incident leading to the conviction occurred within two years of the date of delivery; or has not had two or more felony drug convictions where at least two of the incidents leading to these convictions occurred within four years of the delivery. As used in this subparagraph, "felony drug conviction" means a felony conviction for possession, manufacture, delivery, or distribution of a controlled substance, or any other drug-related felony as described in ORS 475 or similar laws in other jurisdictions; and

(G) Has not had two or more liquor law convictions, or one conviction and one diversion, and at least two of the incidents leading to these convictions or diversions occurred within four years of the date of the delivery; or has a combination of four or more felony or liquor law convictions or diversions and at least four of the incidents leading to these convictions or diversions occurred within ten years of the date of delivery and at least one of the incidents leading to these convictions or diversions occurred within two years of the date of delivery. As used in this subsection the term "liquor law conviction" means a misdemeanor or felony conviction for a violation of an Oregon law for Driving Under the Influence of Intoxicants (DUII), providing alcohol to a visibly intoxicated person; or sale of alcohol to a person under 21 as enumerated in ORS 471.410 or similar laws in other jurisdictions.

(11) A third-party delivery facilitator permittee shall make a delivery person's certificate of completion available for inspection by any Commission regulatory specialist or any other peace officer within 72 hours of receiving a request.

(12) When delivering alcoholic beverages to a final consumer, in addition to complying with other all other regulations pursuant to ORS chapter 471 and Commission rules, the third-party delivery facilitator permittee must:

(a) Transfer the alcoholic beverages to the physical possession of a final consumer at a delivery address.

(b) Deliver the alcoholic beverages between the hours of 7:00 am and 10:00 pm. Notwithstanding this requirement, if the permittee is delivering on behalf of an eligible business who is an off-premises sales licensee, the permittee must deliver the alcoholic beverages between the hours of 6:00 am and 10:00 pm.

(c) Deliver the alcoholic beverages pursuant to the identification requirements in ORS 471.130(1) only to a final consumer who is at least 21 years of age;

(d) Deliver the alcoholic beverages only to a final consumer who is not visibly intoxicated at the time of receiving the alcoholic beverages; and

(e) Collect information that must be retained by the third-party delivery facilitator permittee for a minimum of two years from the date of delivery of the alcoholic beverages to the final consumer. The information retained must include:

(A) The date and time the alcoholic beverages were delivered to the final consumer;

(B) The number of alcoholic beverages contained in each delivery to the final consumer;

(C) The name of the delivery person delivering the alcoholic beverages to the final consumer; and

(D) The name of the individual placing the order of alcoholic beverages, the delivery address, and the name of the final consumer receiving the alcoholic beverages.

(13) A third-party delivery facilitator permittee:

(a) Must allow the Commission to audit the permittee's records which are directly related to alcoholic beverage deliveries in Oregon upon request and shall make those records available to the Commission in Oregon. The permittee must make these records available to the Commission no later than 14 days after the Commission sends the notice to the permittee; and

(b) Consents to the jurisdiction of the Commission and the courts of this state for the purpose of enforcing the provisions of this rule and any related laws or rules.

(14) Civil penalties for third-party delivery facilitator permittees.

(a) For any violation of ORS chapter 471 or for any violation of rules adopted by the Commission under ORS chapter 471, other than a violation of subsection (7), by a third-party delivery facilitator permittee or a delivery person acting on behalf of the third-party delivery facilitator, the Commission may assess a civil penalty for each violation, in addition to any other penalties, including the suspension or revocation of a third-party delivery facilitator permit. The civil penalty must be at least $500 per violation and may not exceed $4,000 per violation. The Commission, at its sole discretion, may consider mitigating or aggravating circumstances in determining the applicable civil penalty within the range provided in this subsection. The Commission may decrease or increase the civil penalty within the range provided in this subsection to prevent inequity or to take account of particular circumstances in the case.

(b) Notwithstanding anything to the contrary in these rules, the first violation of subsection 12(c) and (d) by a third-party delivery facilitator permittee is subject to a minimum penalty of $2,500.

(c) Any subsequent violations within two years of a prior violation will be subject to increasing penalty amounts which shall range from a minimum increase of $100 more than the prior civil penalty amount to an amount not to exceed $4,000 per violation.

(d) Third-party delivery facilitator permittees who are assessed a penalty under this section and fail to timely pay as directed by OLCC may be assessed a new penalty for each day the violation continues.

Or. Admin. Code § 845-005-0421

OLCC 9-2023, temporary adopt filed 12/18/2023, effective 1/2/2024 through 6/28/2024; OLCC 7-2024, adopt filed 06/21/2024, effective 6/28/2024

Statutory/Other Authority: ORS 471.030, 471.040 & 471.730 (1) & (5)

Statutes/Other Implemented: ORS 471.282, 471.521, 471.534 & 471.537