WSR 16-19-100 PROPOSED RULES LIQUOR AND CANNABIS BOARD [Filed September 21, 2016, 10:27 a.m.]
Supplemental Notice to WSR 16-15-031.
Preproposal statement of inquiry was filed as WSR 14-21-182.
Title of Rule and Other Identifying Information: WAC 314-12-215 Alcohol impact areas—Definition—Guidelines.
Hearing Location(s): Washington State Liquor Control [and Cannabis] Board, Board Room, 3000 Pacific Avenue S.E., Olympia, WA 98504, on November 2, 2016, at 10:00 a.m.
Date of Intended Adoption: November 16, 2016.
Submit Written Comments to: Karen McCall, P.O. Box 43080, Olympia, WA 98504, e-mail rules@lcb.wa.gov, fax (360) 664-9689, by November 2, 2016.
Assistance for Persons with Disabilities: Contact Karen McCall by November 2, 2016, (360) 664-1631.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: This rule making is a result of a stakeholder request. Clarification of requirements for an alcohol impact area are requested.
Reasons Supporting Proposal: Alcohol impact areas are becoming more popular with local jurisdictions. Clarification of requirements will ensure that all stakeholders understand what is required for the board to recognize an alcohol impact area and to continue to keep the alcohol impact area in force.
Statutory Authority for Adoption: RCW 66.08.030.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Washington state liquor and cannabis board, governmental.
Name of Agency Personnel Responsible for Drafting: Karen McCall, 3000 Pacific Avenue S.E., Olympia, WA 98504, (360) 664-1631; Implementation: Becky Smith, Licensing Director, 3000 Pacific Avenue S.E., Olympia, WA 98504, (360) 664-1615; and Enforcement: Justin Nordhorn, Chief Enforcement, 3000 Pacific Avenue S.E., Olympia, WA 98504, (360) 664-1729.
No small business economic impact statement has been prepared under chapter 19.85 RCW. A small business economic impact statement was not required.
A cost-benefit analysis is not required under RCW 34.05.328. A cost-benefit analysis was not required.
September 21, 2016
Jane Rushford
Chairman
AMENDATORY SECTION (Amending WSR 10-19-065, filed 9/15/10, effective 10/16/10)
WAC 314-12-215 Alcohol impact areas—Definition—Guidelines.
(1) What is an alcohol impact area((, and how is it different))?
(a) An alcohol impact area is a geographic area located within a city, town or county, and that is adversely affected by chronic public inebriation or illegal activity associated with liquor sales or consumption.
(b) The board may place special conditions or restrictions upon off-premises sales privileges, liquor products, applicants, license assumptions or licensees that sell liquor for off-premises consumption (see subsection (3) of this section).
(c) The board applies a unique investigative and review process when evaluating liquor license applications, license assumptions or renewals for businesses located in an alcohol impact area.
(2) How is an alcohol impact area formed? A local authority (that is, a city, town or county) must first designate an alcohol impact area by ordinance and make good faith efforts for at least six months to mitigate the effects of chronic public inebriation with such ordinance before petitioning the board to recognize an alcohol impact area. The board must recognize an alcohol impact area before any unique review process, condition or restriction described in this rule may be applied. A local authority must meet certain conditions to achieve board recognition of an alcohol impact area.
(a) The geographic area of an alcohol impact area must not include the entire ((territory)) geographic area under the jurisdiction of a local authority. However, when a local authority designates a street as a boundary, the board encourages that the local authority include both sides of the street for greater effectiveness.
(b) The local authority ordinance must explain the rationale of the proposed boundaries, and describe the boundaries in such a way that:
(i) The board can determine which liquor licensees are in the proposed alcohol impact area; and
(ii) The boundaries are understandable to the public at large.
(c) A local authority must:
(i) Submit findings of fact that demonstrate a need for an alcohol impact area and how chronic public inebriation or illegal activity associated with liquor sales or consumption within a proposed alcohol impact area:
(A) Contributes to the deterioration of the general quality of life within an alcohol impact area; or
(B) Threatens the welfare, health, peace or safety of an alcohol impact area's visitors or occupants;
(ii) Submit findings of fact that demonstrate a pervasive pattern of public intoxication or public consumption of liquor as documented in: Crime statistics, police reports, emergency medical response data, detoxification reports, sanitation reports, public health records, ((other similar records,)) community group petitions, public testimony or testimony by current or former chronic public ((inebriants;
(iii))) inebriates.
(d) Minimum requirements for an alcohol impact area petition packet:
(i) Litter/trash survey and documented results. A litter/trash survey must be conducted within the proposed alcohol impact area boundaries for at least a four week period. Litter/trash surveys must be completed a minimum of twice a week. Use a GIS data map, or similar tool, to point out the "hot spots" of heavy alcohol consumption based on the litter/trash survey. Provide a list of alcohol products found in the litter/trash survey.
(ii) Photographic evidence of litter and drinking in public.
(iii) Law enforcement testimonial(s). Law enforcement testimonial must be from at least one law enforcement officer who frequently works within the proposed alcohol impact area boundaries. A testimonial must discuss the impact of high alcohol content or volume products within the proposed alcohol impact area boundaries and how implementation of an alcohol impact area would benefit the community.
(iv) Letters of support submitted by neighborhood councils, local agencies, schools or universities, business associations, fire departments, local businesses, or private citizens in the community.
(v) Crime statistics and police reports. Crime statistics and police reports must show the statistics for alcohol-related criminal activity within the proposed alcohol impact area boundaries, and must show evidence linking specific products with chronic public inebriation activity.
(e) After reviewing the alcohol impact area petition packet, the board may request supplemental materials to prove the necessity of an alcohol impact area. The supplemental materials may include:
(i) Additional testimonials submitted by citizens who would be directly affected by the proposed alcohol impact area.
(ii) Emergency medical response data. This information must provide evidence that chronic inebriation within the proposed alcohol impact area requires an abnormally high amount of medical emergency care.
(iii) Sanitation reports. This information must provide evidence that chronic inebriation within the proposed alcohol impact area boundaries creates an abnormally high amount of sanitation problems.
(iv) Detoxification reports. This information must provide evidence that chronic inebriation within the proposed alcohol impact area requires an abnormally high amount of detoxification services.
(f) Submit documentation that demonstrates a local authority's past good faith efforts to control the problem through voluntary measures (see subsection (4) of this section)((;
(iv) Explain why past voluntary measures failed to sufficiently resolve the problem; and
(v))). The voluntary compliance report must:
(i) Provide an executive summary of the results of the voluntary compliance period;
(ii) Provide evidence of the local authorities' efforts to control the problem through voluntary measures; and
(iii) Explain why the voluntary measures were not effective and how mandatory restrictions will help address the problem.
(g) Request additional conditions or restrictions and explain how the conditions or restrictions will reduce chronic public inebriation or illegal activity associated with off-premises sales or liquor consumption (see subsection (3) of this section).
(3) What conditions or restrictions may the board recognize for an alcohol impact area?
(a) Restrictions may include, but are not limited to:
(i) Limitations on business hours of operation for off-premises liquor sales;
(ii) Restrictions on off-premises sale of certain liquor products within an alcohol impact area; ((or)) and
(iii) Restrictions on container sizes available for off-premises sale.
(b) The board has adopted a standardized list of products that will be banned in alcohol impact areas. The list can be found on the WSLCB web site. The list contains products that are banned in the majority of current alcohol impact areas. Requests for additional product restrictions (for example, prohibition of sale of certain liquor products or container sizes) must originate from a local authority's law enforcement agency or public health authority, whereas restrictions affecting business operations (for example, hours of operation) may originate from a local authority's law enforcement agency, public authority or governing body. (((c))) Product restrictions must be reasonably linked to problems associated with chronic public inebriation or illegal activity. Reasonable links include, but are not limited to: Police, fire or emergency medical response statistics; photographic evidence; law enforcement, citizen or medical-provider testimonial; testimony by current or former chronic public ((inebriants)) inebriates; litter pickup; or other statistically documented evidence ((that a reasonable person may rely upon to determine whether a product is associated with chronic public inebriation or illegal activity.
(d) Restricted beer and wine products must have minimum alcohol content of five and seven-tenths percent by volume and twelve percent by volume, respectively.
(e) Upon board approval and upon an individual product by individual product basis, a local authority may restrict a product that is already restricted in another board-recognized alcohol impact area provided that a product is significantly materially similar (for example, comparable alcohol percent content, container size or liquor category such as alcoholic energy drinks) to products already restricted in its own alcohol impact area. Upon board approval and upon an individual product by individual product basis, a local authority may also restrict a product that is significantly materially similar to products already restricted in its own alcohol impact area. In both cases, a local authority must demonstrate to the board, in writing, the material similarities and need for product inclusion, but the board will not require a local authority to submit extensive documented evidence as described in (c) of this subsection.
(f))).
(c) After the board has recognized an alcohol impact area the local authority may request the board approve additional products to their banned products list provided that the products are reasonably linked to the problems associated with chronic public inebriation or illegal activity. Reasonable links include, but are not limited to: Police, fire or emergency medical response statistics; photographic evidence; law enforcement, citizen or medical-provider testimonial; testimony by current or former chronic public inebriates; litter pickup; or other statistically documented evidence.
(d) A local authority may propose the removal of a condition, restriction or product from its alcohol impact area's restricted product list provided that a local authority demonstrates its reason (such as, a product is no longer produced or bottled) to the board in writing.
(4) What types of voluntary efforts must a local authority attempt before the board will recognize an alcohol impact area?
(a) A local authority must notify all off-premises sales licensees in a proposed alcohol impact area that:
(i) Behavior associated with liquor sales and associated illegal activity is impacting chronic public inebriation; and
(ii) Existing voluntary options are available to them to remedy the problem.
(b) A local authority's efforts must include additional voluntary actions. Examples include, but are not limited to:
(i) Collaborative actions with neighborhood citizens, community groups or business organizations to promote business practices that reduce chronic public inebriation;
(ii) Attempts to achieve voluntary agreements with off-premises sales licensees to promote public welfare, health, peace or safety;
(iii) Requesting licensees to voluntarily ((discontinuing to sell a)) discontinue selling products that are considered contributing to the problem;
(iv) Distribution of educational materials to chronic public inebriants or licensees;
(v) Detoxification services;
(vi) Business incentives to discourage the sale of problem products; or
(vii) Change in land use ordinances.
(c) A local authority must implement these voluntary agreements for at least six months before a local authority may present documentation to the board that voluntary efforts failed to adequately mitigate the effects of chronic public inebriation and need augmentation.
(5) What will the board do once it recognizes an alcohol impact area?
(a) The board will notify, in a timely manner, the appropriate liquor distributors of the product restrictions.
(b) ((No state liquor store or agency located within an alcohol impact area may sell that alcohol impact area's restricted products.
(c))) The board will notify, in a timely manner, all off-premises sales licensees in a proposed or existing alcohol impact area whenever the board recognizes, or recognizes changes to, an alcohol impact area (see subsection (7) of this section).
(6) What is the review process for liquor license applications, license assumptions, and renewals inside an alcohol impact area?
(a) When the board receives an application for a new liquor license or a license assumption that includes an off-premises sales privilege, the board will establish an extended time period of sixty calendar days for a local authority to comment upon the application.
(i) A local authority may, and is encouraged to, submit comment before the end of a comment period. A local authority may request an extension of a comment period when unusual circumstances, which must be explained in the request, require additional time for comment.
(ii) A local authority will notify a licensee or applicant when a local authority requests the board to extend a sixty-day comment period.
(b) For renewals, the board will notify a local authority at least ninety calendar days before a current license expires. The same requirements in (a)(i) and (ii) of this subsection apply to the ninety-day comment period for problem renewals. For the purposes of this section, a problem renewal means a licensee, a licensed business or a licensed location with a documented history of noncompliance or illegal activity.
(7) When and for how long will an alcohol impact area be in effect, and may an alcohol impact area be changed?
(a) An alcohol impact area takes effect on the day that the board passes a resolution to recognize an alcohol impact area. However, product prohibitions take effect no less than thirty calendar days after the board passes such resolution in order to give retailers and distributors sufficient time to remove products from their inventories.
(b) An alcohol impact area remains in effect until:
(i) A local authority repeals the enabling ordinance that defines an alcohol impact area;
(ii) A local authority requests that the board revoke its recognition of an alcohol impact area;
(iii) The board repeals its recognition of an alcohol impact area of its own initiative and following a public hearing; or
(iv) A local authority fails to comply with subsection (8) of this section.
(c) A local authority may petition the board to modify an alcohol impact area's geographic boundaries, repeal or modify an existing condition or restriction, or create a new condition or restriction. The board may agree to do so provided that a local authority shows good cause and submits supporting documentation (((see)) as contained in subsections (2) and (3) of this section(())).
(d) Prohibition of a new product added to an existing prohibited products list takes effect no ((less)) sooner than thirty calendar days following the board's recognition of a modified prohibited products list.
(8) Reporting requirements and five-year assessments.
(a) A year after the implementation of the alcohol impact area a local authority shall submit ((annual)) a report((s)) to the board that clearly demonstrates the intended effectiveness of an alcohol impact area's conditions or restrictions. The report((s are)) is due no later than sixty calendar days following ((each anniversary of the board's recognition of an)) the first anniversary of the implementation of the alcohol impact area. The report must include the same categories of information and statistics that were originally used to request the alcohol impact area.
(b) The board will conduct an assessment of an alcohol impact area once every five years following the fifth, tenth, fifteenth, et cetera, anniversary of the board's recognition of ((an)) the alcohol impact area. The five-year assessment process is as follows:
(i) Within ((ten)) twenty calendar days of receiving a local authority's fifth, tenth, fifteenth, et cetera, ((annual)) report, the board shall notify affected parties of the upcoming assessment, whereupon an affected party has twenty calendar days to comment upon, or petition the board to discontinue its recognition of, an alcohol impact area (see (d) of this subsection). Affected parties may include, but are not limited to: Liquor licensees, citizens or neighboring local authorities.
(ii) An affected party may submit a written request for one twenty calendar-day extension of the comment/petition period, which the board may grant provided that an affected party provides sufficient reason why he or she is unable to meet the initial twenty-day deadline.
(iii) The board will complete an assessment within sixty calendar days following the close of the final comment/petition period.
(c) An assessment shall include an analysis of:
(i) The same categories of information and statistics that were originally used to request the alcohol impact area; and
(ii) Comments or petitions submitted by affected parties((; and
(ii) Each annual report submitted during a five-year period)).
An assessment ((shall)) may also include modifications that a local authority must make to an alcohol impact area as required by the board, or the board's reasons for revoking recognition of an alcohol impact area.
(d) To successfully petition the board to discontinue its recognition of an alcohol impact area, an affected party must:
(i) Submit findings of fact that demonstrate how chronic public inebriation((,)) or illegal activity associated with liquor sales or consumption((,)) within a proposed alcohol impact area does not or no longer:
(A) Contributes to the deterioration of the general quality of life within an alcohol impact area; or
(B) Threatens the welfare, health, peace or safety of an alcohol impact area's visitors or occupants;
(ii) Submit findings of fact that demonstrate the absence of a pervasive pattern of public intoxication or public consumption of liquor as documented in crime statistics, police reports, emergency medical response data, detoxification reports, sanitation reports, public health records or similar records; and
(iii) Demonstrate how the absence of conditions or restrictions will ((reduce)) affect chronic public inebriation or illegal activity associated with off-premises sales or liquor consumption (see subsection (3) of this section).
(e) An affected party may submit a written request for one twenty-day extension of the comment period, which the board may grant provided that an affected party provides sufficient reason why he or she is unable to meet the twenty-day deadline.
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