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Happy Hour in Oregon and More Difficulties with Legislative Drafting

Hard on the heels of my last post on legislative drafting, we have another story and example:

OLCC revisits restriction on happy hour ads, by Bill Graves, The Oregonian, August 20, 2009

Excerpt: '... The happy hour restriction annoys restaurants and bars and frustrates state officials who question whether it's effective and find it difficult to enforce.

The law was adopted to prevent happy hours from promoting binge drinking, but Linda Ignowski, OLCC regulatory director, said in her 14 years, she has seen no connection between happy hours, which are usually earlier in the evening, and excessive drinking. Intoxication usually comes later at night, she said.

Moderation groups such as the nonprofit Oregon Partnership, which is devoted to preventing alcohol and drug abuse, have never cared for happy hours. But if the rule doesn't work, then a review makes sense, said Pete Schulberg, spokesman for the group. That doesn't mean the group wants to relax restrictions on selling drinks at cut rates, he said.

"Anytime you advertise that the price is decreasing," he said, "there is no question but that it means more people are going to be drinking."

The Oregon Restaurant Association questions whether the rule is needed, given that plenty of other rules on the books regulate bar prices and practices, including a prohibition against serving drinks to people who are visibly drunk, said Bill Perry, lobbyist for the association....' (link to full article)

There is also clearly a statutory (and regulatory) construction problem here. Also from this same article:

"... The happy hour rule specifically bans references in ads to happy hour, dimers, two-for-one, social adjustment hour or free drinks.

The state is finding the rule increasingly difficult to enforce, especially after an administrative judge decided last month that it's all right for Johnny's Bar & Grill in Salem to advertise ladies night, college night and OLCC appreciation night because those phrases don't appear in the regulation.

The restriction doesn't have much force, says Ignowski of the OLCC, if the state bans some words in ads but permits the use of others that mean the same thing.

The OLCC has told restaurants that "happy hour" can be used in an ad if it refers only to food, as did a recent McMenamins ad in The Oregonian. But the recent ruling on Johnny's says that using "happy hour" violates the law, even if it is only about food...." (read full article)

Maybe it?s time for a Moderately Amused Hour!

For more information:

1) Oregon Liquor Control Commission (OLCC)

2) OCLL Laws and Rules

Full post as published by Oregon Legal Research on August 25, 2009 (boomark / email).