Chapter 5.02
ALCOHOL
Sections:
I. USE AND SALE OF ALCOHOLIC LIQUOR
5.02.005 Short Title.
5.02.010 Definitions.
5.02.015 Providing Liquor to Certain Persons Prohibited.
5.02.017 Providing Premises for the Consumption of Alcohol by Minors Prohibited.
5.02.020 Persons Not Allowed to Drink Alcoholic Liquor on Licensed Premises.
5.02.025 Purchase or Possession of Liquor by a Minor.
5.02.030 Lawful Consumption of Liquor by a Minor.
5.02.035 Loitering on Licensed Premises by Minors.
5.02.040 Minors Not Permitted to Drink or Loiter on Licensed Premises.
5.02.045 Permitting Minors on Licensed Premises.
5.02.050 Delivering or Selling Liquor by a Minor.
5.02.055 Sales by Unlicensed Persons Prohibited.
5.02.060 Bringing Alcoholic Liquor into Licensed Premises.
5.02.065 Disposal of Liquor Containers.
5.02.070 Lawful Hours of Sale.
5.02.075 Statement of Age as a Defense.
5.02.080 Liquor in Public Dance Hall.
5.02.083 Consumption of Alcoholic Liquor in Public Places Prohibited.
5.02.085 Nuisances.
5.02.090 Arresting Officer to Seize Property.
5.02.095 Responsibility of Licensee for Employees.
5.02.100 Penalty.
5.02.105 Liquor Commission to be Notified.
II. LIQUOR LICENSE REVIEW
5.02.200 Short Title.
5.02.205 Scope of Provisions.
5.02.210 Definitions.
5.02.215 License Application.
5.02.220 Police Chief’s Duties.
5.02.225 Hearing Procedure.
5.02.230 Applicant Notice.
5.02.235 Public Notice.
5.02.240 Standards and Criteria.
I. USE AND SALE OF ALCOHOLIC LIQUOR
5.02.005 Short Title.
BC 5.02.005 through 5.02.105 shall be known and may be cited as the “Alcoholic Liquor Use and Sale Ordinance,” and may also be referred to herein as “this ordinance.”
5.02.010 Definitions.
For purposes of this ordinance, the following mean:
Alcoholic liquor – Alcoholic beverages containing more than one-half of one percent alcohol by volume and every liquid or solid, patented or not, containing alcohol and consumable by a human being.
Commission – The Oregon Liquor Control Commission.
Malt beverage – Alcoholic beverages containing more than 14 percent alcohol by volume, including sweet wines and all spirituous liquor.
Licensee – A person who has a license from the Commission to sell or dispense alcoholic liquor.
Licensed premises – The room or enclosure at the address for which a license has been issued by the Commission for serving, mixing, handling or selling alcoholic liquor.
Liquor Control Act – The State law as designated by ORS 471.027 and the Oregon Distilled Liquor Control Act as defined by ORS 472.020.
Minor – A person under 21 years of age.
Other responsible relative – An adult who is the spouse of a minor; an adult who is related to a minor and has taken over the parental duty of governing the minor’s actions; or a duly appointed, qualified and acting guardian who has taken over the parental duty of governing the minor’s actions.
Park – Any publicly owned real property placed under the jurisdiction of the City or Tualatin Hills Parks and Recreation District primarily for park or recreational purposes and located in the City.
Public place – A place to which the general public has access and includes, but is not limited to, hallways, lobbies and other parts of apartment houses and hotels not constituting rooms or apartments designed for actual residence and highways, streets, schools, places of amusement, parks, playgrounds, and premises used in connection with public passenger transportation.
Sell – To solicit or receive an order, keep or expose for sale, deliver for value or in any way other than gratuitously, to peddle, keep with intent to sell, traffic in or procure or allow to be procured for another person for any consideration promised or obtained, directly or indirectly, or under any pretext or by any means.
5.02.015 Providing Liquor to Certain Persons Prohibited.
No person shall sell, give, furnish, serve or otherwise make alcoholic liquor available to:
A. A minor, except as provided in BC 5.02.030; or
B. A visibly intoxicated person.
5.02.017 Providing Premises for the Consumption of Alcohol by Minors Prohibited.
Subsection (3), (7) and (8) of ORS 471.410, Providing liquor to persons under 21 or to intoxicated persons; allowing consumption by minor on property; mandatory minimum penalties, as now constituted, are hereby incorporated into this code. [BC 5.02.017, added by Ordinance No. 3827, 8/17/92; amended by Ordinance No. 3957, 6/10/96]
5.02.020 Persons Not Allowed to Drink Alcoholic Liquor on Licensed Premises.
A. No person shall allow a person who is visibly intoxicated to drink alcoholic liquor on a licensed premises.
B. No bartender shall drink alcoholic liquor or be under the influence of alcoholic liquor while on duty in a licensed premises.
5.02.025 Purchase or Possession of Liquor by a Minor.
A. Except as provided in BC 5.02.030, no minor shall attempt to purchase, consume, acquire or possess alcoholic liquor.
B. For purposes of this section, possession of alcoholic liquor includes acceptance or consumption of alcoholic liquor. This section does not prohibit acceptance or consumption of sacramental wine as part of a religious rite or service.
5.02.030 Lawful Consumption of Liquor by a Minor.
This ordinance shall not prohibit:
A. Any person from accepting or consuming sacramental wine as part of a religious rite or service; or
B. Any minor from having personal possession of alcoholic liquor when a parent or guardian of the minor consents to the possession and the minor is in a private residence accompanied by the parent or guardian. [BC 5.02.030, amended by Ordinance No. 3912, 10/3/94]
5.02.035 Loitering on Licensed Premises by Minors.
Except as provided in BC 5.02.045, no minor, whether or not accompanied by a parent or other responsible relative, shall enter, loiter or remain on a licensed premises that has been posted by the Commission to prohibit use by minors.
5.02.040 Minors Not Permitted to Drink or Loiter on Licensed Premises.
A. No licensee or licensee’s employee or agent shall permit a minor to:
1. consume alcoholic liquor on licensed premises, whether or not the alcoholic liquor is given to the minor by a parent or other responsible relative;
2. loiter on a licensed premises that has been posted by the Commission to prohibit use by minors, except as provided in BC 5.02.045;
3. remain on licensed premises, except as provided in BC 5.02.045;
B. The fact that a parent or other responsible relative accompanied a minor onto licensed premises shall not constitute a defense to a charge brought for violation of this section, except as provided in BC 5.02.045.
5.02.045 Permitting Minors on Licensed Premises.
A. The provisions of BC 5.02.035 and BC 5.02.040 shall not prohibit:
1. a minor from entering licensed premises for transacting business in the regular course of the minor’s lawful employment;
2. a minor from entering and remaining on a licensed premises when in the immediate company of the minor’s spouse who is 21 years of age or older.
B. This section shall not be construed to authorize a minor spouse to consume alcoholic liquor on licensed premises.
5.02.050 Delivering or Selling Liquor by a Minor.
A. Except as provided in subsection C, no minor, either personally or as an agent or employee of another, shall sell, offer for sale or deliver alcoholic liquor to any other person.
B. Except as provided in subsection C, no person shall employ, hire or engage a minor to sell, offer for sale or deliver alcoholic liquor.
C. An employee, 18 years of age or older, of a person who holds a package store license from the Commission may sell alcoholic liquor authorized by the license on the licensed premises.
5.02.055 Sales by Unlicensed Persons Prohibited.
No person shall sell alcoholic liquor without a license from the Commission. Sales by a licensee or licensee’s employee shall be only sales that are authorized by the license issued for the premises.
5.02.060 Bringing Alcoholic Liquor into Licensed Premises.
No licensee or licensee’s agent or employee shall keep or knowingly permit to be kept, brought or consumed on the licensed premises alcoholic liquor not allowed to be sold or served on the premises.
5.02.065 Disposal of Liquor Containers.
A. No licensee or licensee’s employees or agent shall permit empty or discarded containers of alcoholic liquor to be in the public view on the exterior of the licensed premises or in parking areas maintained in connection with the premises.
B. No person shall discard, throw away or dispose of an alcoholic liquor container, whether broken or not, on a street, alley, public grounds or public place.
5.02.070 Lawful Hours of Sale.
A. No package store licensee shall sell, dispense, deliver or permit the removal of alcoholic liquor from the licensed premises between the hours of 2:30 a.m. and 7:00 a.m.
B. No retail malt beverage restaurant or dispenser shall sell, dispense, deliver or allow the consumption of alcoholic liquor on licensed premises or permit the removal of alcoholic liquor from licensed premises between the hours of 2:30 a.m. and 7:00 a.m. [BC 5.02.070, amended by Ordinance No. 3312, 3/21/83]
5.02.075 Statement of Age as a Defense.
If a written statement of age and the information pertaining to the evidence which was exhibited to the permittee or licensee at the time the statement was made that is entered in writing on the statement, are offered as evidence in any administrative or criminal prosecution for sale or service of alcoholic liquor to a person not having reached 21 years of age, the permittee or licensee shall be found to have committed no crime or other wrong unless it is demonstrated that a reasonable person would have determined that the identification exhibited was altered or did not accurately describe the person to whom the alcoholic liquor was sold or served.
5.02.080 Liquor in Public Dance Hall.
No person shall possess, keep, sell, give away or otherwise dispose of or consume alcoholic liquor in a public dance hall, or in a room or building used for public dancing, that is not licensed under the Liquor Control Act.
5.02.083 Consumption of Alcoholic Liquor in Public Places Prohibited.
A. No person shall consume alcoholic liquor or possess an open container of an alcoholic beverage while in or upon any public place, unless authorized by the Commission or by subsection B of this section.
B. Alcoholic liquor may be consumed and an open container of an alcoholic beverage may be possessed within a park under the jurisdiction of the Tualatin Hills Park and Recreation District, provided such consumption or possession takes place only as duly authorized by written permit issued by the Park District and, if required by state law, the activity has been licensed, in advance, for drinking or consumption purposes by the Commission.
C. For purposes of this section, a park is under the jurisdiction of the Tualatin Hills Park and Recreation District, if the park is owned, managed or otherwise controlled by the Park District. [BC 5.02.083, amended by Ordinance No. 4228, 10/14/02]
5.02.085 Nuisances.
A room, house, building, boat, structure or place of any kind where alcoholic liquor is sold, manufactured, bartered or given away in violation of the law or where persons are permitted to drink alcoholic liquor in violation of the law or any place where alcoholic liquor is kept for sale, barter or gift in violation of the law and all alcoholic liquor, whether purchased from or through the Commission or purchased or acquired from any source, and all property, including bars, glasses, mixers, lockers, chairs, tables, cash registers, music devices, furniture, furnishings, equipment and all facilities for mixing, storing, serving or drinking alcoholic liquor kept or used in those places are declared to be a nuisance. A person who maintains or assists in maintaining a common nuisance is guilty of a violation of this ordinance.
5.02.090 Arresting Officer to Seize Property.
When an officer arrests a person for violation of this ordinance, the officer shall confiscate all property included in BC 5.02.085 and all alcoholic liquor on the premises that was being used or kept in violation of this ordinance. If the arrested person is convicted and the court finds that alcoholic liquor and other property were used in violation of this ordinance, forfeiture proceedings may be instituted as authorized by ORS 471.605 and 471.610.
5.02.095 Responsibility of Licensee for Employees.
Each licensee is responsible and liable to prosecution for violation of a provision of this ordinance that pertains to the licensed premises and for an act or omission of a servant, agent or employee of the licensee in violation of a provision of this ordinance.
5.02.100 Penalty.
Violation of any of the provisions of BC 5.02.005 to 5.02.105 is punishable upon conviction by a fine of not more than $2,500 or by imprisonment not to exceed 365 days, or both. Violation of a provision substantially similar to a state statute is punishable by fine or imprisonment, or both, not to exceed the penalty prescribed by the state statute. [BC 5.02.100, amended by Ordinance No. 3532, 9/16/86; Ordinance No. 3957, 6/10/96]
5.02.105 Liquor Commission to be Notified.
A. When a licensee or a person is convicted of a violation on a licensed premises, the municipal court shall notify the Commission of the conviction.
B. When the police department investigates and the Council adopts a recommendation concerning an applicant for an Oregon Liquor Control Commission license, pursuant to ORS 472.120 the applicant shall pay to the City a fee set by Council resolution.
II. LIQUOR LICENSE REVIEW
5.02.200 Short Title.
BC 5.02.200 through 5.02.240 shall be known and may be cited as the “Liquor License Review Ordinance,” and may also be referred to herein as “this ordinance.”
5.02.205 Scope of Provisions.
BC 5.02.200 through 5.02.240 shall govern the procedures and criteria for consideration of liquor license applications and Council recommendation to the Oregon Liquor Control Commission.
5.02.210 Definitions.
For the purposes of BC 5.02.200 through 5.02.240 the following mean:
Application – The written request to the police chief to grant, modify or renew a liquor license.
Commission – the Oregon Liquor Control Commission.
Police chief – The chief of the police department or the police chief’s designee.
5.02.215 License Application.
Any person or business requesting a Council recommendation to the Commission of a liquor license application shall make application upon suitable forms furnished by the police chief. The application shall contain:
A. The type of license applied for and a description of the nature of the business for which the application is made.
B. The name of the applicant, with address; if a partnership, the names and addresses of all partners; if the business is a corporation, the name and address of the home office, and the name and address of the designated agent in the State if a foreign corporation, and the name and address of the local agent or representative who will be in charge of the business in the City.
C. The address of the location where the business will be located in the City.
D. The date of application.
E. Any other information the police chief or Council deems necessary for review.
F. The signature of the applicant or agent making the application.
The applicant shall be required to pay the fee established by the Council under BC 5.02.105 B.
5.02.220 Police Chief’s Duties.
A. The police chief shall provide application forms and shall maintain a record of all applications. The police chief shall review all applications for the purpose of making a recommendation to the Council. The review may include those subjects contained in this Code and the police chief may require the applicant to supply any relevant additional information to determine qualifications of the applicant. Upon completion of the review, the police chief shall make a recommendation to the Council.
B. The police chief may waive any fees as provided in BC 5.02.215, may waive review of the applicant as provided in BC 5.02.215 and may waive public notice as provided in BC 5.02.235 if the police chief finds the same or substantially similar issues have been reviewed by the police chief within the previous 60 days and it is determined that the application does not warrant updated review. [BC 5.02.220, amended by Ordinance No. 3448, 5/20/85]
5.02.225 Hearing Procedure.
A. If the police chief recommends approval of an application, the matter will be scheduled as a consent agenda item unless a Council member requests a public hearing. Upon request of a Council member or adverse recommendation by the police chief, a public hearing will be scheduled and notice given pursuant to BC 5.02.230.
B. The hearing will be presided over by the mayor or Council president pursuant to Beaverton Charter, Chapter Four.
C. The City and the applicant shall have the right to present evidence and witnesses and shall have the right to cross-examine witnesses presenting opposing testimony.
D. The applicant may be represented by legal counsel, but legal counsel shall not be provided at public expense.
E. The hearing shall be limited to production of evidence as alleged in the police chief’s recommendation, unless the Council waives the rule or unless the hearing is pursuant to a Council member request.
1. Oral evidence. Oral evidence shall be taken only on oath or affirmation.
2. Hearsay evidence. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence, but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions in courts of competent jurisdiction in this State.
3. Admissibility of evidence. Any relevant evidence shall be admitted if it is the type of evidence on which responsible persons are accustomed to rely in the conduct of their serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions in courts of competent jurisdiction in this State.
4. Exclusion of evidence. Irrelevant and unduly repetitious evidence shall be excluded.
F. After due consideration of all pertinent information and testimony the Council shall make its recommendation. The recommendation shall be based on substantial evidence relative to the criteria in this Code and shall be final. In the case of an adverse recommendation, findings of fact shall be produced and forwarded to the Commission along with the Council recommendation against the application.
5.02.230 Applicant Notice.
Before the Council recommends denial of a liquor license application, notice of the public hearing must be given either personally or by registered or certified mail postmarked not later than ten days prior to the hearing. The notice shall contain:
A. A statement of the time and place of the hearing;
B. A statement from the police chief of the matter(s) asserted or charged supporting the adverse recommendation or stating why the hearing was requested;
C. A statement that the applicant may be represented by legal counsel at the hearing, but legal counsel shall not be provided at public expense;
D. A statement that if the applicant desires to participate in the hearing, the police chief must receive notice in writing, no later than five working days prior to the hearing; and
E. A statement that if participation is requested by the applicant, that information on procedures and rights of parties may be obtained at the police chief’s office.
5.02.235 Public Notice.
A. In order to facilitate public participation in liquor license applications, the City shall cause to be published in a paper of general circulation in the City a notice specifying all liquor license applications by business name and address pending before the police chief. The City shall also provide a written notice of pending applications to recognized neighborhood associations as defined in BC 9.06.020D which are within one-half mile of an applicant. The notice shall inform the public that written comments will be accepted by the police chief.
B. In the event that a public hearing is scheduled, the City in addition to any regular Council notice provisions, shall cause to be published in a newspaper of general circulation in the City a notice specifying a time, date and location of the hearing and business name and address of the applicant. The City shall also provide a written notice of pending hearings to recognized neighborhood associations as defined in BC 9.06.020D which are within one-half mile of an applicant. The notice shall inform the public that testimony may be given for or against the application.
5.02.240 Standards and Criteria.
The Council shall make its recommendation for approval, denial or modification of the liquor license application based on the Council’s evaluation of the relevant standards and criteria. The applicant shall be held strictly accountable for the conditions of the premises. The Council may recommend against the applicant if:
A. The application is incomplete;
B. The applicant neglects or refuses to provide in a timely manner any information reasonably requested by the police chief or Council;
C. The applicant provides false or misleading information to the police chief, Council or any City employee;
D. Public opinion weighs against the application. Public opinion may be received by written or oral comment. Public opinion will be evaluated in light of the reasons expressed and the extent to which the persons expressing it are likely to be affected by the issuance of the license. Greater weight will be given to opinions of persons residing, working or owning a business within a one-half mile radius of the premises. The number of persons expressing support or opposition will not, in and of itself, be controlling;
E. The applicant’s premises and the area nearby are heavily frequented by persons under 21 years of age unaccompanied by adults;
F. The applicant has been convicted of violating any of the alcoholic liquor laws of this State, general or local, or has been convicted of any felony or any misdemeanor involving moral turpitude;
G. The applicant uses controlled substances or alcoholic beverages to excess;
H. The applicant is not of good repute or moral character;
I. The applicant has maintained, or allowed to exist a noisy, lewd, or disorderly establishment, or an establishment which creates or is a public nuisance under the ordinances of the City or laws of the State;
J. The applicant’s premises are not maintained in good repair, both interior and exterior, and kept clean and free of litter, rubbish or dirt;
K. The applicant’s premises are unsanitary;
L. The applicant or applicant’s premises fail to conform to, abide by, or comply with, City ordinances or regulations or State laws and regulations;
M. The applicant’s premises place unreasonable and/or excessive demand on City services, including law enforcement;
N. There are sufficient licensed premises in the locality set out in the application and the license is not demanded by public interest or convenience. If a reduction in dispenser licenses is warranted, the Council may make a decision based on reasonable comparisons of services, facilities and economic benefit to the area.
O. There is any other reason, which in the opinion of the Council, based on public health, safety, welfare, convenience or necessity, warrants an adverse recommendation. [BC 5.02.200 through 5.02.240, added by Ordinance No. 3310, 1/4/83]