Original Notice.

     Preproposal statement of inquiry was filed as WSR 12-12-014.

     Title of Rule and Other Identifying Information: WAC 314-42-110 Brief adjudicative proceedings, 314-52-115 Preliminary record in brief adjudicatory proceedings, 314-52-120 Conduct of brief adjudicatory proceedings, 314-42-125 Brief adjudicatory proceedings conversion to formal adjudicatory proceedings, and 314-42-130 Appeal rights on brief adjudicatory proceedings initial order.

     Hearing Location(s): Washington State Liquor Control Board (LCB), Board Room, 3000 Pacific Avenue S.E., Lacey, WA 98504, on November 7, 2012, at 10:00 a.m.

     Date of Intended Adoption: November 14, 2012.

     Submit Written Comments to: Karen McCall, P.O. Box 43080, Olympia, WA 98504, e-mail rules@liq.wa.gov, fax (360) 664-9689, by November 7, 2012.

     Assistance for Persons with Disabilities: Contact Karen McCall, (360) 664-1631.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of this rule making is to authorize the utilization of brief adjudicatory proceedings (BAP) in accordance with RCW 34.05.482 (1)(c). Creating a BAP process will give applicants and liquor licensees and [an] option to a full adjudicative hearing. This process could save time and resources for applicants and liquor licensees.

     Reasons Supporting Proposal: ESSB 5921 passed in the 2011 legislative session. This bill directs the LCB to suspend the license of a tavern, nightclub, or beer/wine specialty shop licensee if DSHS notifies the board that the licensee has an ATM machine that allows the use of EBT cards.

     HB 2758 passed in the 2012 legislative session. This bill allows department of revenue (DOR) to direct the LCB to suspend and refuse to renew a license if the taxpayer is more than thirty days delinquent in reporting or remitting taxes.

     This rule making will identify these specific instances and others where the LCB may use BAP in lieu of the more formal hearing process.

     Statutory Authority for Adoption: RCW 66.08.030.

     Statute Being Implemented: RCW 66.24.010.

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

     Name of Proponent: [LCB], governmental.

     Name of Agency Personnel Responsible for Drafting: Karen McCall, Rules Coordinator, 3000 Pacific Avenue S.E., Olympia, WA 98504, (360) 664-1631; Implementation: Alan Rathbun, Licensing Director, 3000 Pacific Avenue S.E., Olympia, WA 98504, (360) 664-1615; and Enforcement: Justin Nordhorn, Enforcement Chief, 3000 Pacific Avenue S.E., Olympia, WA 98504, (360) 664-1726.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. This proposed rule has a positive impact on businesses or individuals who sell alcohol in the state of Washington.

     A cost-benefit analysis is not required under RCW 34.05.328. A cost-benefit analysis is not required.

October 3, 2012

Sharon Foster

Chairman

OTS-4999.2

NEW SECTION
WAC 314-42-110   Brief adjudicative proceedings.   The Administrative Procedure Act provides for brief adjudicative proceedings in RCW 34.05.482 through 34.05.494. The board will conduct brief adjudicative proceedings where it does not violate any provision of law and where protection of the public interest does not require the board to give notice and an opportunity to participate to persons other than the parties. If an adjudicative proceeding is requested, a brief adjudicative proceeding will be conducted where the matter involves one or more of the following:

     (1) Liquor license suspensions due to nonpayment of spirits taxes per RCW 66.24.010;

     (2) Liquor license denials per WAC 314-07-065(2);

     (3) Liquor license denials per WAC 314-07-040;

     (4) Special occasion license application denials per WAC 314-07-040;

     (5) Special occasion license application denials per WAC 314-07-065(7);

     (6) MAST provider or trainer denials for noncompliance with a support order in accordance with RCW 66.20.085;

     (7) MAST provider denials or revocations per WAC 314-17-070;

     (8) Liquor license suspensions due to nonpayment of beer or wine taxes per WAC 314-19-015;

     (9) One-time event denials for private clubs per WAC 314-40-080;

     (10) Banquet permit denials per WAC 314-18-030;

     (11) The restrictions recommended by the local authority on a nightclub license are denied per WAC 314-02-039 (a local authority may request a BAP);

     (12) The restrictions recommended by a local authority are approved per WAC 314-02-039 (an applicant for a nightclub license may request a BAP);

     (13) Liquor license suspensions due to noncompliance with a support order per RCW 66.24.010;

     (14) Liquor license suspensions due to noncompliance with RCW 74.08.580(2), electronic benefits cards, per RCW 66.24.013;

     (15) License suspension due to nonpayment of spirits liquor license fees per RCW 66.24.630;

     (16) License suspension due to nonpayment of spirits distributor license fees per RCW 66.24.055; and

     (17) Tobacco license denials per WAC 314-33-005.

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     (a) All correspondence from department of revenue requesting missing taxes or reports; and

     (b) Request from department of revenue to the liquor control board requesting suspension of the liquor license.

     (2) The preliminary record with respect to a liquor license intent to deny under WAC 314-07-065(2) where the applicant has failed to submit information or documentation shall consist of:

     (a) All correspondence between the applicant and the board pertaining to requests for information or documentation; and

     (b) A copy of the application report prepared by licensing division staff.

     (3) The preliminary record with respect to a liquor license application intent to deny where the applicant failed to meet the criminal history standards outlined in WAC 314-07-040 shall consist of:

     (a) A copy of the application report prepared by licensing division staff;

     (b) The personal/criminal history statement(s) submitted by the applicant;

     (c) Any interoffice correspondence reporting criminal history of applicant(s); and

     (d) Copies of any correspondence submitted by the applicant explaining or rebutting the criminal history findings.

     (4) The preliminary record with respect to a special occasion liquor license application (chapter 314-05 WAC) intent to deny where the applicant failed to meet the criminal history standards outlined in WAC 314-07-040 shall consist of:

     (a) A copy of the application report prepared by licensing division staff;

     (b) The personal/criminal history statement(s) submitted by the applicant(s);

     (c) Any interoffice correspondence reporting criminal history of applicant(s); and

     (d) Copies of any correspondence submitted by the applicant explaining or rebutting the criminal history findings.

     (5) The preliminary record with respect to a special occasion liquor license application (chapter 314-05 WAC) intent to deny where the application was objected to by the local authority wherein the event is scheduled (WAC 314-07-065(7)) shall consist of:

     (a) A copy of the special occasion license application and supporting materials;

     (b) A copy of the notice sent to the local authority by licensing division staff;

     (c) A copy of the objection received from the local authority; and

     (d) A copy of any correspondence from the applicant rebutting the objection from the local authority.

     (6) The preliminary record with respect to suspension of mandatory alcohol server, provider or trainer, for noncompliance with a support order in accordance with RCW 66.20.085 shall consist of:

     (a) A copy of the license suspension certification from the department of social and health services; and

     (b) A copy of all documents received from or on behalf of the permit holder rebutting the identification of the server, provider, or trainer.

     (7) The preliminary record with respect to suspension of mandatory alcohol server, provider or trainer, for failing to meet the criminal history standards outlined in WAC 314-07-070(1) shall consist of:

     (a) A copy of the personal/criminal history statement submitted by the applicant;

     (b) Any interoffice correspondence reporting criminal history of applicant; and

     (c) Copies of any correspondence submitted by the applicant, permit holder, provider or trainer explaining or rebutting the criminal history findings.

     (8) The preliminary record with respect to liquor license suspensions due to nonpayment of beer or wine taxes per WAC 314-19-015 shall consist of:

     (a) Copies of any correspondence requesting missing taxes, fees, or penalties when identified after processing reporting form monthly; and

     (b) Copies of backup documentation including envelopes showing late filing, corrections on reporting form, and audit findings.

     (9) The preliminary record with respect to one-time event denials for private clubs in WAC 314-40-080 shall consist of:

     (a) A copy of the written request for a one-time event;

     (b) A copy of the written denial including the reason(s) for the denial; and

     (c) Copies of all correspondence.

     (10) The preliminary record with respect to banquet permit denials in WAC 314-18-030 shall consist of:

     (a) The application for a banquet permit;

     (b) A copy of the written denial including the reason(s) for denial; and

     (c) All correspondence.

     (11) The preliminary record with respect to restrictions requested on a nightclub license by a local authority under the provisions in WAC 314-02-039 shall consist of:

     (a) A copy of the application report prepared by licensing division staff and the threshold decision by the licensing director or his/her designee;

     (b) A copy of all correspondence from the local authority requesting restrictions on the nightclub premises; and

     (c) Copies of any correspondence submitted by the nightclub applicant or license holder rebutting the request for restrictions.

     (12) The preliminary record with respect to licensing's denial of a request for restrictions on a nightclub license under the provisions of WAC 314-02-039 shall consist of:

     (a) A copy of the application report prepared by licensing division staff and the threshold decision by the licensing director or his/her designee;

     (b) A copy of all correspondence from the local authority requesting restrictions on the nightclub premises; and

     (c) Copies of any correspondence submitted by the nightclub applicant or license holder rebutting the request for restrictions.

     (13) The preliminary record with respect to a liquor license suspension due to noncompliance with a support order from the department of social and health services under RCW 66.24.010 shall consist of:

     (a) The written request from department of social and health services to suspend the liquor license;

     (b) A copy of the written liquor control board suspension order; and

     (c) Copies of all correspondence.

     (14) The preliminary record with respect to a liquor license suspension due to noncompliance with RCW 74.08.580, electronic benefits cards, per RCW 66.24.013 shall consist of:

     (a) The written request from department of social and health services to suspend the liquor license;

     (b) The complete investigation from department of social and health services to support the suspension;

     (c) A copy of the written liquor control board suspension order; and

     (d) Copies of all correspondence.

     (15) The preliminary records with respect to liquor license suspension due to nonpayment of spirits liquor license fees per RCW 66.24.630 shall consist of:

     (a) All correspondence relating to discrepancies in fees and/or penalties when identified after processing reporting forms; and

     (b) All backup documentation including envelopes showing late filing, corrections on reporting forms, and audit findings.

     (16) The preliminary records with respect to liquor license suspensions due to nonpayment of spirits distributor license fees per RCW 66.24.055 shall consist of:

     (a) All correspondence requesting missing fees and/or penalties when identified after processing reporting forms; and

     (b) All backup documentation including envelopes showing late filing, corrections on reporting forms, and audit findings.

     (17) The preliminary record with respect to tobacco license denials shall consist of:

     (a) The license application from business license services;

     (b) The personal/criminal history statement submitted by the applicant;

     (c) The judicial information system criminal history and division recommendation;

     (d) The letter of denial from the liquor control board;

     (e) The notice of intent to deny statement to the applicant; and

     (f) All correspondence.

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     (2) The parties or their representatives may present written documentation. The presiding officer for brief adjudicative proceedings shall designate the date by which written documents must be submitted by the parties.

     (3) The presiding officer for brief adjudicative proceedings may, in his or her discretion, entertain oral argument from the parties or their representatives.

     (4) No witnesses may appear to testify.

     (5) In addition to the record, the presiding officer for brief adjudicative proceedings may employ agency expertise as a basis for decision.

     (6) The presiding officer for brief adjudicative proceedings shall not issue an oral order. Within ten business days of the final date for submission of materials or oral argument, if any, the presiding officer for brief adjudicative proceedings shall enter an initial order.

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     (2) In determining whether to convert a proceeding, the presiding officer may consider the following factors:

     (a) Whether witness testimony will aid the presiding or reviewing officer in resolving contested issues of fact;

     (b) Whether the legal or factual issues are sufficiently complex to warrant a formal adjudicative proceeding, including whether there are multiple issues of fact or law;

     (c) Whether a brief adjudicative proceeding will establish an adequate record for further agency or judicial review;

     (d) Whether the legal issues involved in the proceeding present questions of legal significance or are being raised for the first time before the agency;

     (e) Whether conversion of the proceeding will cause unnecessary delay in resolving the issues; and

     (f) Any other factors that the presiding or reviewing officer deems relevant in reaching a determination.

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     (2) The reviewing officer considers your appeal and either upholds or overturns the brief adjudicative proceeding order. The reviewing officer's decision, also called an order, is the final agency decision. The order will be provided to you at the last address you furnished to the board.

     (3) The order on review must be in writing, must include a brief statement of the reasons for the decision, and must be entered within twenty days after the date of the initial order or of the request for review, whichever is later. The order shall include a description of any further available administrative review or, if none is available, a notice that judicial review may be available.

     (4) A request for administrative review is deemed to have been denied if the agency does not make a disposition of the matter within twenty days after the request is submitted.

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