WSR 99-12-129

PERMANENT RULES

LIQUOR CONTROL BOARD


[ Filed June 2, 1999, 11:43 a.m. ]

Date of Adoption: June 2, 1999.

Purpose: To simplify the administrative violation process for persons who allegedly violate the liquor laws and rules. The changes include a simplification to the process to inform licensees who allegedly commit first-time violations without aggravating or mitigating circumstances to be informed what the proposed penalty will be upon notice of the violation. Currently, licensees must wait for the process to go through several steps before they are made aware of the proposed penalty.

Citation of Existing Rules Affected by this Order: Amending WAC 314-04-005.

Statutory Authority for Adoption: RCW 66.08.030, 66.44.010, 66.24.010(3).

Adopted under notice filed as WSR 99-08-014 on March 29, 1999.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 2, Amended 1, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 2, Amended 1, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 3, Repealed 0. Effective Date of Rule: Thirty-one days after filing.

June 2, 1999

Eugene Prince

Chair

OTS-3005.1


AMENDATORY SECTION(Amending Order 35, filed 7/2/75)

WAC 314-04-005
((Prehearing summary disposition.)) What are the procedures for a licensee to be notified of an alleged violation of a board statute or regulation?

((Prior to a hearing pursuant to WAC 314-04-010, the licensee may be afforded an alternative under the terms of RCW 34.04.090(3) to waive an opportunity for such a hearing and agree to a proposed summary disposition of the charges.  The summary disposition may include suspension or cancellation of a license or imposition of a monetary penalty in lieu of the proposed summary suspension.  The proposed summary disposition shall be determined and administered in the following manner:

(1) Upon receipt by the board of an investigative report, referred complaint or other information indicating a possible violation on the part of a licensee, such report shall be processed by the enforcement division and be forwarded to the assistant attorney general assigned to the board, hereafter referred to as attorney, to determine if reasonable cause exists to believe that a violation has occurred.

(2) If the attorney determines that reasonable cause exists to believe that a violation has occurred, he shall propose a course of action to the board for its consideration, and the board shall determine whether to accept the initial proposal or order another proposed disposition.  After review by the board, the board may direct that a written notice of its proposed order of summary disposition, hereafter notice, be served upon the licensee.

(3) The notice will be prepared by the hearing division.  Such notice shall fully advise the licensee of all charges reasonably believed to have been committed and specify the board's summary disposition.  The notice shall also include an explanation that any proposed penalty is not final but will automatically become final if the licensee does not request a hearing within ten days of receipt of the notice.

(4) The board may in its discretion offer the licensee an opportunity for payment of a monetary penalty in lieu of suspension.  Such an opportunity shall be explained on the notice and the notice will include either the monetary penalty or, by attachment, a certificate of gross profit from liquor sales, hereafter referred to as certificate, to compute the monetary penalty.  The certificate must be returned within ten days of receipt of the notice along with payment, unless additional time is requested in writing, or the suspension will not be vacated.

(5) The notice shall include by attachment a form upon which a request for a hearing can be made.  The notice shall be signed by the board, after which the hearing division shall serve the notice and attachments upon the licensee.

(6) If the licensee requests a hearing, written acknowledgment of the request will be sent the licensee by the hearing division and the hearing will proceed as described by the terms of WAC 314-04-010.

(7) The licensee may request in writing, and the hearing division may grant an extension of time, not to exceed ten days, in which to make a determination whether to request a hearing.

(8) If a licensee fails to request a hearing within the prescribed period and the proposed summary penalty becomes effective, the licensee may petition the board in writing to set aside the penalty for good cause shown.  Mere inattention on the part of a licensee is not, by itself, grounds to set aside a penalty.

(9) The board, in its discretion, may determine to issue letters of caution or admonition in lieu of directing that notice with penalty be served on a licensee or determine that a formal hearing be instituted in lieu of serving a notice with penalty on the licensee.)) (1) When an enforcement agent believes that a licensee has violated a board statute or regulation, the agent will prepare an administrative violation notice (AVN), which will include a brief narrative description of the violation(s) the agent is charging and the dates of the violation(s).

(2) The agent will give a copy of this AVN to the licensee and to the supervisor in the board enforcement region where the licensee is located.

(3) After the supervisor reviews and approves the AVN, it will be routed to the headquarters office of the enforcement and education division.

(4) After the headquarters office of the enforcement and education division reviews and concurs with the AVN, it will be routed to the office of the attorney general.

(5) An assistant attorney general will review the proposed charge to make sure it is legally sufficient. Once the assistant attorney general has approved the AVN, it will be sent to the board's hearing coordinator.

(6) The board's hearing coordinator will circulate the AVN to the board members for review.

(7) Once the board members have approved the AVN, the board's hearing coordinator will send a notice of initial board action to the licensee. This notice of initial board action will notify the licensee of the charged violation(s) and the recommended penalty as outlined in WAC 314-12-170 and 314-12-300 through WAC 314-12-340, and will offer the licensee the options outlined in WAC 314-04-007.

[Order 35, 314-04-005, filed 7/2/75.]


NEW SECTION
WAC 314-04-006
Are the notification procedures different for an alleged first-time violation of a board statute or regulation?

(1) A board enforcement agent may immediately issue an AVN notice to a licensee without going through the steps outlined in WAC 314-04-005 (2) through (7), under the following conditions:

(a) The charge would be the first time a licensee has violated the specific statute or regulation; and

(b) The agent believes the standard penalty is appropriate.

(2) The AVN will contain the recommended standard penalty and will notify the licensee of the option to request an administrative hearing in writing within ten days of receipt of the AVN or to request a settlement conference.

(3) No further review will be made of the charge by the board members or by the office of the attorney general.

(4) The AVN will constitute the notice of initial board action in these cases and the remaining steps in the prehearing procedure as outlined in WAC 314-04-007 will be followed.

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NEW SECTION
WAC 314-04-007
What options does a licensee have once he/she receives a notice of initial board action?

(1) When a licensee receives a notice of initial board action, the licensee has ten days from receipt of the notice to:

(a) Accept the recommended penalty; or

(b) Request a settlement conference; or

(c) Request an administrative hearing in writing.

(2) What are the procedures when a licensee requests a settlement conference?

(a) If the licensee requests a settlement conference, the agent in charge or designee in the enforcement region where the licensee is located will schedule a conference with the licensee.

(b) Both the licensee and the agent in charge or designee will discuss the circumstances surrounding the charge, the recommended penalty, and any aggravating or mitigating factors.

(c) If a compromise is reached, the agent in charge or designee will prepare a proposed settlement agreement and will forward it to the board for approval.

(i) If the board approves the compromise, a copy of the signed settlement agreement will be sent to the licensee, and will conclude the case.

(ii) If the board does not approve the compromise, the board will notify the licensee of the decision. The licensee will be given the option of agreeing to any changes the board has made in the agreement, or of requesting an administrative hearing on the charges in writing within ten days of receipt of the notice of board action.

(d) If the licensee and the agent in charge or designee cannot reach agreement on a settlement proposal, the licensee may:

(i) Request an administrative hearing in writing within ten days of the date of the settlement conference; or

(ii) Agree to accept the originally recommended penalty.

(3) What are the procedures when a licensee requests an administrative hearing?

(a) If the licensee requests an administrative hearing in writing within ten days, it is conducted pursuant to chapter 34.05 RCW and WAC 314-04-010.

(b) The penalty recommendation will be based upon written guidelines.

(c) The penalty recommendation may be a letter of admonition, a license suspension, a license revocation, or a license suspension with a monetary alternative to be paid by the licensee in lieu of suspension.

(4) What will happen during the administrative hearing?

(a) When the licensee requests an administrative hearing, the board's hearing coordinator will notify the assistant attorney general.

(b) The assistant attorney general will draft an administrative complaint and send it to the licensee and to the office of administrative hearings.

(c) The office of administrative hearings will schedule the hearing date, and notify the licensee and their attorney and the assistant attorney general in writing of the hearing date, time, and location.

(d) The hearing will be conducted by an administrative law judge assigned by the office of administrative hearings. Subpoenas may be issued by an attorney for any party, or by the assigned administrative law judge.

(e) At the hearing, the assistant attorney general or a designee will present witnesses and other evidence to prove the charges on behalf of the board's enforcement staff.

(f) At the hearing, the licensee may be represented by an attorney or may choose to represent himself or herself.

(5) What will happen after the administrative hearing?

(a) Following the hearing, the administrative law judge will prepare an initial order and send it to the licensee and the assistant attorney general.

(b) Either the licensee or the assistant attorney general may file a petition for review of the initial order with the liquor control board within twenty days of the date of service of the initial order. The petition for review must:

(i) Specify the portions of the initial order to which exception is taken;

(ii) Refer to the evidence of record which is relied upon to support the petition; and

(iii) Be filed with the liquor control board within twenty days of the date of service of the petition.

(iv) Copies of the reply must be mailed to all other parties or their representatives at the time the reply is filed.

(c) The administrative record, the initial order, and any exceptions filed by the parties will be circulated to the board members for review.

(d) Following this review, the board will enter a final order which is appealable under the provisions of RCW 34.05.510 through 34.05.598 (Washington Administrative Procedure Act).

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Washington State Code Reviser's Office