WSR 98-24-128

PROPOSED RULES

LIQUOR CONTROL BOARD

[Filed December 2, 1998, 11:28 a.m.]



Original Notice.

Preproposal statement of inquiry was filed as WSR 98-01-068.

Title of Rule: WAC 314-12-210 Alcohol impact areas and neighborhood livability--Purpose, 314-12-215 Alcohol impact areas--Definitions--Guidelines, 314-12-220 Neighborhood livability--Definitions--Guidelines, and 314-12-225 Severability.

Purpose: The purpose of the proposed rules is to provide a framework under which the board, in partnership with local government subdivisions, can take action to mitigate any negative impacts on a community's livability that result from the presence of chronic public inebriation or illegal activity associated with alcohol sales and consumption.

Statutory Authority for Adoption: RCW 66.08.030.

Statute Being Implemented: RCW 66.24.010.

Summary: The proposed rules establish an expanded local review process for liquor license applications and renewals inside an alcohol impact area; create additional standards under which the board may refuse to issue or renew a liquor license, may place conditions upon the issuance or renewal of a license, or may place conditions upon an existing liquor license; and allow the board, in specific circumstances, to restrict the off-premises sale of certain alcohol products.

Name of Agency Personnel Responsible for Drafting: Bill Daley, P.O. Box 43075, Olympia, WA 98504-3075, (360) 664-9802; Implementation: David Goyette, P.O. Box 43075, Olympia, WA 98504-3075, (360) 753-2724; and Enforcement: Gary Gilbert, P.O. Box 43075, Olympia, WA 98504-3075, (360) 753-6270.

Name of Proponent: Washington State Liquor Control Board, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: Per chapter 66.08 RCW, part of the board's responsibility to protect the welfare, health, peace, and safety of the people of the state is to ensure that liquor licensees conduct their business in a lawful manner, and that the presence of a licensee's alcohol sales does not unreasonably disturb the health, peace, and safety of the surrounding community.

Therefore, the purpose of these rules concerning alcohol impact areas and neighborhood livability is to provide a framework under which the board, in partnership with local government subdivisions, can take action to mitigate any negative impacts on a community's livability that result from the presence of chronic public inebriation or illegal activity associated with alcohol sales and consumption.

The proposed rules establish an expanded local review process for liquor license applications and renewals inside an alcohol impact area (AIA); create additional standards under which the board may refuse to issue or renew a liquor license, may place conditions upon the issuance or renewal of a license, or may place conditions upon an existing liquor license; and allow the board, in specific circumstances, to restrict the off-premises sale of certain alcohol products.

Proposal does not change existing rules.

No small business economic impact statement has been prepared under chapter 19.85 RCW. No known disproportional impact to small business.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. The Washington State Liquor Control Board is not a listed agency in section 201.

Hearing Location: Three hearings: On January 6, 1999, at 8:30 a.m., at Cavanaugh's on 5th Avenue, Whidbey Room, 1415 5th Avenue, Seattle, WA; on January 6, 1999, at 2:30 p.m., at the Spokane Community College, Sasquatch Room, Building 6, North 1810 Greene Street, Spokane, WA; and on January 7, 1999, at 8:30 a.m., at the Oxford Suites, 1701 Terrace Heights, Yakima, WA.

Assistance for Persons with Disabilities: Contact Teresa Berntsen by January 5, 1999, TDD (360) 586-4727, or (360) 586-1641.

Submit Written Comments to: Teresa Berntsen, Rules Coordinator, P.O. Box 43080, Olympia, WA 98504-3080, fax (360) 664-9689, by January 7, 1999.

Date of Intended Adoption: January 13, 1999.

December 2, 1998

Nathan S. Ford, Jr.

Chair



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WAC 314-12-210   Alcohol impact areas and neighborhood livability--Definitions--Purpose (1) What is the purpose of these rules concerning alcohol impact areas and neighborhood livability?

(a) RCW 66.08 is the enabling statute for the liquor control board. This statute exercises the police power of the state for the protection of the welfare, health, peace, and safety of the people of the state.

(b) Part of the board's responsibility to protect the welfare, health, peace, and safety of the people of the state is to ensure that liquor licensees conduct their business in a lawful manner, and that the presence of a licensee's alcohol sales does not unreasonably disturb the health, peace, and safety of the surrounding community.

(c) The purpose of these rules concerning alcohol impact areas and neighborhood livability is to provide a framework under which the board, in partnership with local government subdivisions, can take action to mitigate negative impacts on a community's livability that result from the presence of chronic public inebriation or illegal activity associated with alcohol sales and consumption.

(d) For the purposes of these rules, chronic public inebriation exists when the effects of the public consumption of alcohol and/or public intoxication occur in concentrations that endanger the welfare, health, peace and safety of a neighborhood or community.

(e) These rules:

(i) establish an expanded local review process for liquor license applications and renewals inside an alcohol impact area (AIA);

(ii) create additional standards under which the board may refuse to issue or renew a liquor license, may place conditions upon the issuance or renewal of a license, or may place conditions upon an existing liquor license; and

(iii) allow the board, in specific circumstances, to restrict the off-premises sale of certain alcohol products.



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WAC 314-12-215  Alcohol impact areas--Definition--Guidelines (1) What is an alcohol impact area (AIA)? An alcohol impact area is a geographic area within a city, town, or county that has been designated by ordinance by the government subdivision and recognized by the board as being adversely affected by chronic public inebriation or illegal activity associated with alcohol sales and/or consumption.

(a) Once the board recognizes an AIA:

(i) it will immediately set a unique local license review process for liquor license applications and renewals inside that area, and

(ii) it may place conditions upon the liquor licenses of establishments within the AIA that are reasonably related to reducing chronic public inebriation or illegal activity associated with alcohol sales and/or consumption, including, but not limited to, restrictions on the hours of operation for alcohol sales and the off-premises sale of certain alcohol products, if the board finds that there is reason to believe that the availability of these products is linked with the occurrence of chronic public inebriation.

(2) Under what guidelines will the board recognize an alcohol impact area? The board, by resolution, may recognize an alcohol impact area adopted by any city, town, or county, and subsequently referred to the board for action by the government subdivision, subject to all of the following conditions:

(a) The AIA comprises a geographic area that does not include the entire territory of the local jurisdiction;

(b) The government subdivision has given a rationale, expressed in the ordinance, for the establishment of the proposed boundaries of the AIA;

(c) The government subdivision has described the boundaries of the AIA in the ordinance in such a way that:

(i) the board can determine which liquor licenses are in the proposed area, and

(ii) the boundaries are understandable to the public at large; and

(d) The geographic area included in the AIA is designated by enactment of an ordinance of the government subdivision's controlling legislative authority that includes findings of fact which establish:

(i) chronic public inebriation or illegal activity associated with alcohol sales and/or consumption within the proposed AIA is contributing to the deterioration of the general quality of life within the area or threatens the welfare, health, peace, or safety of the area's visitors and occupants;

(ii) there is a pervasive pattern of public intoxication and/or public consumption of alcohol as documented in crime statistics, police reports, emergency medical response data, detoxification reports, sanitation reports, or other similar records; and

(iii) a good faith effort has been made by the government subdivision to control the problem through voluntary efforts, including the notification of licensees within the proposed AIA of public intoxication problems and of such voluntary efforts available to them.

(e) The AIA will take effect on the date of the board's resolution extending recognition to the AIA.

(3) Under what circumstances can the board restrict alcohol products that may be sold by liquor licensees for off-premises consumption in an AIA?

(a) The board can restrict categories of alcohol products that are sold by liquor licensees for off-premises consumption in an AIA, subject to all of the following conditions:

(i) product restrictions must be requested by the government subdivision's local law enforcement agency or public health authority;

(ii) the board finds that the sale of such products are reasonably linked to the problems associated with chronic public inebriation; and

(iii) the government subdivision has shown that voluntary efforts have failed to significantly reduce the impact of chronic public inebriation, or that voluntary efforts need augmentation by product restrictions.

(4) What type of voluntary efforts must the government subdivision attempt before the board will implement mandatory product restrictions?

(a) The government subdivision must provide documentation to the board that all licensees in the proposed AIA have been notified that behavior associated with alcohol sales within the proposed AIA is having an impact on chronic public inebriation.

(b) The government subdivision must show that it has made reasonable efforts to implement voluntary agreements with liquor licensees in the proposed AIA to promote business practices that reduce chronic public inebriation and promote public welfare, health, peace, and safety.

(c) These voluntary agreements must have been attempted for at least six months before the government subdivision presents information to the board that voluntary efforts have failed or need augmentation by product restrictions.

(d) The board will notify the appropriate beer and wine distributors when product restrictions are placed on retail licensees in an AIA.

(e) When restrictions on the sale of alcohol products are placed on all licensees within an AIA, no state liquor store or agency located within the AIA may sell the restricted products.

(5) What is the process for liquor license applications and renewals for premises inside a recognized AIA? Subject to the provisions of RCW 66.24.010(8):

(a) When the board receives an application for a liquor license within a recognized AIA, the board will establish an extended time period for the government subdivision to comment on the liquor license issuance.

(i) This comment period will be no more than 90 days, unless the government subdivision submits a written request for extension that includes a rationale for the extension of the comment period for the particular application.

(ii) The government subdivision can submit comment at any time prior to the end of the comment period.

(b) The board will establish an extended time period for the government subdivision to comment on the renewals of liquor licenses within an AIA.

(i) The notice of renewal will be mailed to the government subdivision no less than 90 days before the current license expires.

(ii) The government subdivision can submit comment at any time prior to the end of the comment period.

(6) Can an AIA be repealed? The board can rescind their recognition of an AIA under the following conditions:

(a) The government subdivision repeals the specific enabling ordinance referred to the board for recognition of an AIA; or

(b) The board repeals its recognition of an AIA as the result of a public hearing, called by the board acting on its own initiative or at the request of a business or resident within the AIA, made after the AIA has been in effect for at least two years.



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NEW SECTION



WAC 314-12-220  Neighborhood livability--Guidelines (1) In addition to its normal powers, what actions may the board take if an existing or proposed liquor license affects neighborhood livability?

(a) Under the provisions of RCW 66.08.150, if the board finds that the issuance, renewal, or unmodified continuation of a liquor license has or will have significant adverse impact on the livability of a neighborhood, the board may, in addition to its normal powers:

(i) refuse to issue or renew a liquor license,

(ii) place conditions on the issuance or renewal of a liquor license, or

(iii) place conditions upon an existing liquor license.

(b) The board's refusal to issue or renew a liquor license, decision to place conditions on the issuance or renewal of a liquor license, or decision to place conditions on an existing liquor license may be based on the following criteria associated with neighborhood livability which the board finds are related to the sale or service of alcohol products:

(i) demands on police services, emergency medical care services, health and sanitation facilities, public and private institutions providing treatment services, or public areas such as parks and sidewalks;

(ii) chronic public inebriation;

(iii) obtrusive or excessive noise;

(iv) unlawful drug sales;

(v) trespassing on private property;

(vi) fights, altercations, or harassment;

(vii) litter;

(viii) public elimination of bodily wastes; and/or

(ix) public sexual activity.

(c) In the case of license renewals, the board will also consider if a licensee has cooperated with local law enforcement and/or board enforcement agents, local governments, and community groups in an effort to control or lessen alcohol related problems through voluntary means and whether or not such voluntary efforts have been or are likely to be successful.

(2) What type of conditions may the board place upon the issuance or renewal of a liquor license or on an existing license due to impact on neighborhood livability?

(a) The board may restrict certain alcohol products that may be sold by liquor licensees for off-premises consumption when it finds that such alcohol products are reasonably linked with adverse impacts upon neighborhood livability, subject to the following conditions:

(i) alcohol product restrictions must be recommended by the government subdivision's local law enforcement agency or its public health authority, and found by the board to be a causative factor in the problems associated with neighborhood livability; and

(ii) the government subdivision must show that voluntary efforts have failed to reduce significantly the problems associated with neighborhood livability.

(b) The board may restrict the hours that licensees may sell liquor, if it finds that these hours have a significant adverse impact on the livability of a neighborhood; and

(c) The board may place other restrictions on the licensee, if the board finds that activities relating to the sale of alcohol are reasonably linked to problems associated with neighborhood livability.

(d) The board will notify the appropriate beer and wine distributor when product restrictions are placed on a retail licensee.



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NEW SECTION



WAC 314-12-225  Severability. If any provision of WAC 314-12-210 through WAC 314-12-220 or the application thereof to any person or circumstance shall be held invalid, such invalidity shall not affect the provisions or the applications of these rules which can be given effect without the invalid provision or application, and to this end the provisions of these rules are declared to be severable.



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