Woodward, Okla. — The 11 plaintiffs who filed 2 lawsuits in Canadian County against more than 700 Oklahoma restaurants and businesses say they are just a group of consumer activists tired of what they consider to be paying too much for mixed drinks.

"The way it started, there was a number of, call them consumer activists, basically people who are not happy when they get overcharged," Tom Erbar said, noting "both of the lawsuits deal with errors and miscalculations of the liquor tax and/or sales tax on alcoholic beverages which results in overcharges to the consumer."

Erbar, of El Reno, is the plaintiff in an individual consumer lawsuit, along with his mother Gladys Erbar, in which they are seeking private damages from 790 defendants that the 2 patronized since 2006, where they say they were overcharged for mixed drink purchases.

"The statute provides for an award of up to, let me emphasize that, up to $2,000 per incident," Erbar said.

With each visit to the individual restaurants or businesses counting as a separate incident, Erbar is seeking a potential award of around $1.5 million.

While he is not a plaintiff in the similar class action suit, which seeks more than $25 million in public damages from 765 businesses across the state, Erbar said he is familiar with that suit because he worked with the 9 plaintiffs on that suit to visit almost 2,000 businesses throughout the state that sell mixed drinks.

"Over the course of a number of years, they and quite a few other people, including myself have been going around to a great number of these places," he said.  "We have visited virtually every place in the state to determine how they apply the taxes and whether they are in compliance with the law."

Erbar said the group, which also includes his daughter Andra Erbar and longtime acquaintance John Truel among other friends, found that the majority of restaurants and other businesses who sell alcoholic beverages are in compliance with the law.

"More than 60 percent of the retailers follow the law," Erbar said.  "Less than 2 out of 5 don't."

The 700-plus retailers listed in both of the lawsuits (many are defendants in both cases, including 7 Woodward restaurants) represent that approximately 40 percent of Oklahoma businesses the group alleges don't follow the law.

The law referenced in the lawsuits can be found in state statute Title 37, Section 576, which states that the advertised price of a mixed drink should already include a 13.5 percent liquor tax, and therefore only a portion of that price is eligible for calculation of sales tax.

The question raised by the lawsuit is whether the listed menu price of a drink is considered an advertised price.  The plaintiffs in the suits believe the menu is a form of advertisement, which is what they base the alleged miscalculations by the 700-plus restaurants on, claiming those restaurants either double charge the liquor tax, use the total price to over-calculate the sales tax, or a combination of both.



PLAINTIFFS WANT "TO GET THE MONEY BACK"

"This is remedial action," Erbar said of both lawsuits.

"What we are seeking to achieve as a collective is to stop the overcharges, have something put in place saying to the retailers you can't do this and make an injunction telling them don't do it anymore," he said.

However, local restaurant owners like Krista Freeman of Blue Water Grill and Chris Riffel of JB's Steakhouse say they have done nothing wrong.  

"They keep talking about advertised prices, but the only prices we have are on our menu.  We don't have any billboards outside or newspaper advertisements," Freeman said.

"The upsetting thing about this is that it makes us look like we're doing something wrong because (the plaintiffs say) the price on the menu is supposed to include the liquor tax," Riffel said.  "But what we try to do, and I'm sure others do too, is keep our prices low and show you that it's the state of Oklahoma that is the one charging you an additional 13.5 percent on top of that.  But they're claiming we're adding it on again and pocketing it."

"When we're charging $3.95 for a glass of wine that doesn't include any kind of tax," he added.

Riffel's brother, Enid attorney Craig Riffel, who is representing JB's Steakhouse and several other restaurants named in both suits, said he feels one of the major problems in the lawsuits is the plaintiffs' argument that a menu price is an advertised price.

“There is a basic rule of law that if it's not defined in the code, which it does not appear that that's defined, then you look to what the ordinary meaning is. And (in that case) I think there is some difficulty in considering the menu price as an advertised price,” Craig Riffel said.

The attorney said the lawsuits are not about fixing any wrongdoing because "quite candidly these restaurants have done nothing wrong."

Rather, he said the lawsuits "are nothing more than an attempt to make money through the court system.  The plaintiffs seek to bully these respective restaurants into paying the plaintiffs money to which they are not entitled.”

However, Erbar said the damages sought, at least by the class action suit, are part of an effort "to get the money back that has been overcharged."

Of the more than $25 million sought in damages by the class action suit, Erbar said, "some of it will go to reimbursement and expenses" claimed by the 9 plaintiffs in the suit.

However, he said "the bulk of it will not" go into those plaintiffs' pockets, because essentially the 9 plaintiffs are just acting representatively "on behalf of the public at large as defined as those customers of the defendant retailers."

"The money will go somewhere the court directs," Erbar said, which will likely include efforts to see the "money tried to be paid out to the customers of each of the individuals defendants."

"We'll probably run some sort of advertisement to try to connect the money with the people who were overcharged," he said.

However, knowing that it will be difficult to reach every single customer, he said "we are hoping to put the rest toward a public, non-profit purpose or charity."

Despite the multi-million award sought in the class action suit, Erbar said he doesn't believe it will put any of the restaurants out of business.

However, Riffel said that if JB's Steakhouse is forced to pay the $136,000 in damages that the plaintiffs are asking for, it "would pretty much shut us down."

But Erbar said, "I'd be surprised at that."