WSR 18-08-093 PROPOSED RULES LIQUOR AND CANNABIS BOARD [Filed April 4, 2018, 11:14 a.m.] Supplemental Notice to WSR 18-04-114. Preproposal statement of inquiry was filed as WSR 17-15-121 on July 19, 2017. Title of Rule and Other Identifying Information: Proposed new section in chapter 314-55 WAC, WAC 314-55-055 Marijuana retail license forfeiture. Hearing Location(s): On May 16, 2018, at 10:00 a.m., at the Washington State Liquor and Cannabis Board (WSLCB), Board Room, 3000 Pacific Avenue S.E., Olympia, WA 98504. Date of Intended Adoption: On or after May 30, 2018. Submit Written Comments to: Joanna Eide, Policy and Rules Coordinator, 3000 Pacific Avenue S.E., Olympia, WA 98504, email rules@lcb.wa.gov, fax 360-664-9689, by May 16, 2018. Assistance for Persons with Disabilities: Contact Claris Nnanabu, ADA Coordinator, Human Resources, phone 360-664-1642, fax 360-664-9689, TTY 711 or 1-800-833-6388, email Claris.Nnanabu@lcb.wa.gov, by May 11, 2018. Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: This proposed new section in chapter 314-55 WAC details the process and criteria that WSLBC [WSLCB] will use to carry out retail license forfeitures as required under RCW 69.50.325. This rule making is part of a larger rule-making effort to implement changes to rules needed due to changes made by the 2017 legislature. Other rule changes needed due to 2017 changes in statute will be handled under a separate CR-102 filing. This supplemental CR-102 makes adjustments to the original proposed rules and are [is] summarized as follows:
Exceptions for forfeiture are included for businesses that are unable to open due [to] city, town, or county actions, including ordinances, zoning, permitting, or bans/moratoria, or for other reasons outside the licensee's control on a case-by-case basis determined by the board. If the condition providing an exemption to forfeiture is removed, a retail licensee has twelve months from the date of its removal to become fully open and operational. Other provisions relating to documentation and hearing rights remain unchanged from the original proposal. Reasons Supporting Proposal: The legislature passed ESSB 5131 during the 2017 legislative session that directed WSLCB to create a process for the forfeiture of marijuana retail licenses that are not fully operational and open to the public within a specified period from the date of license issuance, subject to the following restrictions:
Rule making is necessary to comply with the directive in ESSB 5131, codified in RCW 69.50.325, and to create the process WSLCB will use for retail license forfeitures. Statute Being Implemented: RCW 69.50.325. Rule is not necessitated by federal law, federal or state court decision. Name of Proponent: WSLCB, governmental. Name of Agency Personnel Responsible for Drafting: Joanna Eide, Policy and Rules Coordinator, 3000 Pacific Avenue S.E., Olympia, WA 98504, 360-664-1622; Implementation: Rebecca Smith, Licensing Director, 3000 Pacific Avenue S.E., Olympia, WA 98504, 360-664-1615; and Enforcement: Chief Justin Nordhorn, 30000 [3000] Pacific Avenue S.E., Olympia, WA 98504, 360-664-1726. A school district fiscal impact statement is not required under RCW 28A.305.135. A cost-benefit analysis is not required under RCW 34.05.328. A cost-benefit analysis was not required under RCW 34.05.325 [34.05.328] because the subject of proposed rule making does not qualify as a significant legislative rule or other rule requiring a cost-benefit analysis under RCW 34.05.328(5). This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal: Is exempt under RCW 19.85.025(3) as the rule content is explicitly and specifically dictated by statute. April 4, 2018 Jane Rushford Chair
NEW SECTION
WAC 314-55-055 Marijuana retailer license forfeiture.
(1)(a) A marijuana retailer's license is subject to forfeiture if the retailer is not fully operational and open to the public after twelve months of issuance of the license or November 1, 2018, whichever is later. No marijuana retailer's license is subject to forfeiture within the first nine months of issuance.
(b) Fully operational means the business meets the following criteria for at least twelve consecutive weeks within a twelve-month period after issuance of the license before or after the effective date of this section:
(i) Is open to the public for a minimum of five hours a day between the hours of 8:00 a.m. and 12:00 midnight, three days a week;
(ii) Posts business hours outside of the premise in the public view; and
(iii) Reports monthly sales from the sale of marijuana products and pays applicable taxes.
(2)(a) A marijuana retailer's license will not be subject to forfeiture if the licensee has been incapable of opening a fully operational retail marijuana business due to actions by the city, town, or county with jurisdiction over the licensed business to include:
(i) The adoption of a ban or moratorium that prohibits the opening of a retail marijuana business; or
(ii) The adoption of an ordinance or regulation related to zoning, business licensing, land use, or other regulatory measure that has the effect of preventing a licensee from receiving an occupancy permit from the jurisdiction or which otherwise prevents a licensed marijuana retailer from becoming operational.
(b) The board has the sole discretion to grant exceptions to the license forfeiture process if a marijuana retailer licensee has had circumstances occur that are out of their control such as a natural disaster.
(c) Adequate documentation will be required to verify any of the exceptions to license forfeiture in this section. It is the licensee's responsibility to inform the WSLCB if conditions change, such as an adjustment to zoning requirements, changes to a ban or moratorium, or other circumstances that would allow the licensee to operate. If the underlying condition exempting a marijuana retail license from forfeiture under subsection (2)(a) or (b) of this section is removed, then the twelve-month time frame to become fully operational and open to the public requirement under subsection (1) of this section will begin from the time the condition exempting the retail license from forfeiture is removed.
(3) A retailer that receives notice of license forfeiture under this section from the WSLCB may request an administrative hearing under chapter 34.05 RCW. A request for a hearing must be made in writing and received by the WSLCB no later than twenty days after service of the notice. Requests submitted in paper form may be delivered to the WSLCB in person during normal business hours at 3000 Pacific Avenue S.E., Olympia, WA 98501, or mailed to the WSLCB. Mailed appeal requests must be addressed to: WSLCB, ATTN: Adjudicative Proceedings Coordinator, P.O. Box 43076, Olympia, WA 98504-3076 or, for certified mail, WSLCB, ATTN: Adjudicative Proceedings Coordinator, 3000 Pacific Avenue S.E., Olympia, WA 98501.
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