establishment — Affirmative defense. A. Certain actions of an employee are not attributable to an establishment licensed by the Alcoholic Beverage Laws Enforcement (ABLE) Commission and shall be an affirmative defense to such liability when such licensed establishment receives a notice of violation for certain actions of an employee. B. The following actions of an employee of a licensed establishment are not attributable to the licensed establishment: 1. The selling, furnishing, or giving of an alcoholic beverage to: a. a person who is insane or mentally deficient, b. a minor, or c. an intoxicated person; or 2. Allowing the consumption of an alcoholic beverage by: a. a person who is insane or mentally deficient, b. a minor, or c. an intoxicated person. C. A licensed establishment may assert the affirmative defense if the licensed establishment: 1. Required all employees to maintain a currently valid employee license from the ABLE Commission; 2. Required each employee to present a seller-server training certificate within fourteen (14) days of his or her initial employment date, unless the employee is deemed exempt by an existing statute and required each employee to attend a seller-server training course every two (2) years upon renewal of the employee license and attend a seller-server training course every two (2) years after the initial employment date, unless an employee is exempt pursuant to Section 2-121 of Title 37A of the Oklahoma Statutes; 3. Adopted written policies and procedures which prohibit: a. the sale, service, dispensation, or delivery of an alcoholic beverage to: (1) a person who is insane or mentally deficient, (2) a minor, or (3) an intoxicated person, or b. the employee from allowing consumption of an alcoholic beverage by: (1) a person who is insane or mentally deficient, (2) a minor, or (3) an intoxicated person; and 4. Ensured that all employees have read and understood the required policies as provided in paragraph 3 of this subsection by having an acknowledgment of understanding by the employee in writing. Such acknowledgment shall be kept for record by the licensed establishment for at least one (1) year after the date the employee was terminated. D. A licensed establishment asserting the affirmative defense under this act shall provide to the ABLE Commission, not later than ten (10) days after receipt of an administrative notice of violation, an affidavit indicating that the licensed establishment was in compliance with the requirements of this act at the time of the violation for which the administrative notice was issued, which shall include a copy of the valid employee license held by the employee who committed the alleged violation, a copy of the current training certificate held by that employee, and a signed copy of acknowledgment of receipt of policies by the employee. At a hearing in which the licensed establishment asserts the affirmative defense created by this act, the licensed establishment may be required to present additional evidence to support such defense. E. When an employee does not possess a currently valid employee license from the ABLE Commission, the action of the employee shall be attributable to the licensed establishment. F. Proof by the ABLE Commission that an employee performed an action described in this act on three or more occasions within a twelve-month period shall create a rebuttable presumption that a licensed establishment has indirectly encouraged a violation of the law pursuant to this act. The rebuttable presumption is created regardless of whether the employee performing the action described in this subsection on a second or subsequent occasion is the same employee who performed the initial action. Proof of violation shall be demonstrated by: 1. Producing final orders issued by the ABLE Commission or a court of competent jurisdiction finding that the licensed establishment violated this act on two previous occasions; and 2. Establishing a prima facie case that an employee of the licensed establishment violated this act on a third or subsequent occasion. G. Proof of violation of this act shall be for the same type of offense and shall have occurred within a twelve-month period, as calculated from the dates the incidents occurred. H. At a hearing in which the licensed establishment asserts the affirmative defense established in this act, the ABLE Commission may present evidence to establish a rebuttable presumption under this act. If the evidence is sufficient to establish a prima facie case, the burden of persuasion in the proceeding shifts to the licensed establishment to show that it has not indirectly encouraged a violation of the law within the meaning of this act. I. Nothing in this act shall be construed to establish exclusive means by which the ABLE Commission may establish that a licensed establishment has indirectly encouraged a violation of this act.
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