Alcoholic Liquors Generally

ORS 471.410
Providing liquor to person under 21 or to intoxicated person

allowing consumption by minor on property

mandatory minimum penalties

Text
Annotations 12

(1)

A person may not sell, give or otherwise make available any alcoholic liquor to any person who is visibly intoxicated.

(2)

No one other than the person’s parent or guardian may sell, give or otherwise make available any alcoholic liquor to a person under the age of 21 years. A parent or guardian may give or otherwise make alcoholic liquor available to a person under the age of 21 years only if the person is in a private residence and is accompanied by the parent or guardian. A person violates this subsection who sells, gives or otherwise makes available alcoholic liquor to a person with the knowledge that the person to whom the liquor is made available will violate this subsection.

(3)

(a)

A person who exercises control over private real property may not knowingly allow any other person under the age of 21 years who is not a child or minor ward of the person to consume alcoholic liquor on the property, or allow any other person under the age of 21 years who is not a child or minor ward of the person to remain on the property if the person under the age of 21 years consumes alcoholic liquor on the property.

(b)

This subsection:

(A)

Applies only to a person who is present and in control of the location at the time the consumption occurs;

(B)

Does not apply to the owner of rental property, or the agent of an owner of rental property, unless the consumption occurs in the individual unit in which the owner or agent resides; and

(C)

Does not apply to a person who exercises control over a private residence if the liquor consumed by the person under the age of 21 years is supplied only by an accompanying parent or guardian.

(4)

This section does not apply to sacramental wine given or provided as part of a religious rite or service.

(5)

Except as provided in subsections (6) and (7) of this section, a person who violates subsection (1) or (2) of this section commits a Class A misdemeanor. Upon violation of subsection (2) of this section, the court shall impose at least a mandatory minimum sentence as follows:

(a)

Upon a first conviction, a fine of at least $500.

(b)

Upon a second conviction, a fine of at least $1,000.

(c)

Upon a third or subsequent conviction, a fine of at least $1,500 and not less than 30 days of imprisonment.

(6)

(a)

A person who violates subsection (2) of this section is subject to the provisions of this subsection if the person does not act knowingly or intentionally and:

(A)

Is licensed or appointed under this chapter; or

(B)

Is an employee of a person licensed or appointed under this chapter and holds a valid service permit or has attended a program approved by the Oregon Liquor and Cannabis Commission that provides training to avoid violations of this section.

(b)

For a person described in paragraph (a) of this subsection:

(A)

A first conviction is a Class A violation.

(B)

A second conviction is a specific fine violation, and the presumptive fine for the violation is $860.

(C)

A third conviction is a Class A misdemeanor. The court shall impose a mandatory fine of not less than $1,000.

(D)

A fourth or subsequent conviction is a Class A misdemeanor. The court shall impose a mandatory fine of not less than $1,000 and a mandatory sentence of not less than 30 days of imprisonment.

(7)

For an employee of an off-premises sales licensee who violates subsection (2) of this section while operating a checkout device and does not act knowingly or intentionally, a first conviction is a Class A violation.

(8)

The court may waive an amount that is at least $200 but not more than one-third of the fine imposed under subsection (5) of this section, if the violator performs at least 30 hours of community service.

(9)

Except as provided in subsection (8) of this section, the court may not waive or suspend imposition or execution of the mandatory minimum sentence required by subsection (5) or (6) of this section. In addition to the mandatory sentence, the court may require the violator to make restitution for any damages to property where the alcoholic liquor was illegally consumed or may require participation in volunteer service to a community service agency.

(10)

(a)

Except as provided in paragraph (b) of this subsection, a person who violates subsection (3) of this section commits a Class A violation.

(b)

A second or subsequent violation of subsection (3) of this section is a specific fine violation, and the presumptive fine for the violation is $1,000.

(11)

Nothing in this section prohibits any licensee under this chapter from allowing a person who is visibly intoxicated to remain on the licensed premises so long as the person is not sold or served any alcoholic liquor. [Amended by 1963 c.243 §1; 1971 c.159 §5; 1977 c.458 §1; 1977 c.814 §1; 1983 cor. c.736 §1; 1995 c.301 §40; 1995 c.599 §5; 1995 c.756 §1; 1999 c.351 §58; 2009 c.412 §1; 2009 c.587 §4; 2009 c.608 §3; 2011 c.597 §87; 2014 c.20 §3; 2021 c.97 §63; 2021 c.351 §100]

Notes of Decisions

This section is intended to protect minors from the evils of alcohol and was not (when applied with ORS 471.620) intended to protect the public from injuries caused by intoxicated minors. Wiener v. Gamma Phi Chapter, ATO Frat., 258 Or 632, 485 P2d 18 (1971)

A license granted under this chapter may be suspended for selling liquor to a minor only if this sale was made with knowledge of the minor’s age, or with reasonable ground to believe the purchaser was a minor. Plaid Pantries, Inc. v. Ore. Liquor Control Comm., 16 Or App 199, 517 P2d 1192 (1974)

Tavern keeper is negligent if, at time of serving drinks to customer, that customer is visibly intoxicated, because at that time it is reasonably foreseeable that when customer leaves tavern he or she will drive an automobile. Campbell v. Carpenter, 279 Or 237, 566 P2d 893 (1977)

As Liquor Control Act, of which this section is part, was intended to regulate commercial sales of liquor and not its furnishing in social settings, civil liability cannot be predicated upon violation of this section. Johnson v. Paige, 47 Or App 1177, 615 P2d 1185 (1980)

Where defendant furnishes alcohol to two minors in one incident he can be charged with and found guilty of two violations. State v. Ritner, 66 Or App 735, 675 P2d 1085 (1984)

Minimum mandatory penalty provisions of this section do nothing more than establish minimum level of punishment which court is free to exceed within confines of punishment authorized for Class A misdemeanor. State v. Ritner, 66 Or App 735, 675 P2d 1085 (1984)

Where “dram shop” case was pleaded as common law negligence claim, jury instruction in language of this section was erroneous, because it did not inform jury that plaintiff had to prove defendant could reasonably have foreseen that customer, on leaving tavern, would drive car. Chartrand v. Coos Bay Tavern, 298 Or 689, 696 P2d 513 (1985)

Subsection prohibiting making liquor available to visibly intoxicated person is not appropriate standard for establishing negligence per se. Hawkins v. Conklin, 307 Or 262, 767 P2d 66 (1988); Fulmer v. Timber Inn Restaurant and Lounge, Inc., 330 Or 413, 9 P3d 710 (2000)

Violation of this section by directly furnishing liquor to minor does not require culpable mental state. State v. McCathern, 211 Or App 171, 154 P3d 130 (2007), Sup Ct review denied

Defendant, who lived in house where party attended by minors occurred and who did not stop minors from drinking alcohol at party, did not make available alcohol to minors at party because defendant did not control supply of alcohol to which defendant could authorize access by minors. State v. James, 266 Or App 660, 338 P3d 782 (2014)

Local ordinance creating crime for allowing social gathering of juveniles consuming alcohol to take place on person’s property without proof of mental state is preempted by provision of Liquor Control Act that prohibits allowing juveniles to consume alcohol on private property only when person who controls property knowingly allows it to happen. City of Corvallis v. Pi Kappa Phi, 293 Or App 319, 428 P3d 905 (2018)

Law Review Citations

7 WLJ 472, 481-497 (1971); 22 WLR 175 (1986); 23 WLR 93, 99 (1987); 77 OLR 497 (1998)