Okla. Stat. tit. 37A, § 37A-6-130.1

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:

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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

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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:
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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.