WSR 00-21-117

PROPOSED RULES

LIQUOR CONTROL BOARD


[ Filed October 18, 2000, 11:23 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 99-18-133.

Title of Rule: Chapter 314-09 WAC, Contested liquor license applications and renewals.

Purpose: To outline the process for persons and entities to object to the issuance or renewal of a liquor license or permit, and an applicant/licensee's options when his/her liquor license or permit is denied or action is taken to not renew the license or permit.

Statutory Authority for Adoption: RCW 66.08.030, 66.24.010, 66.08.150.

Statute Being Implemented: RCW 66.24.010, 66.08.150.

Summary: The proposed rules would place current agency policy into rule form, in order to outline the process for persons and entities to object to the issuance or renewal of a liquor license or permit, and an applicant/licensee's options when his/her liquor license or permit is denied or action is taken to not renew the license or permit.

Name of Agency Personnel Responsible for Drafting: Teresa Berntsen, P.O. Box 43075, Olympia, WA 98504-3075, (360) 664-1648;

Implementation and Enforcement: David Goyette, P.O. Box 43075, Olympia, WA 98504-3075, (360) 664-1615.

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: The Liquor Control Board is currently undergoing a review of all of its rules and its policies that directly affect the public in order to make them clear and usable, per Governor Locke's Executive Order 97-02. The proposed rules would place current agency policy into rule form. These policies implement RCW 66.24.010, which requires the Liquor Control Board to notify certain entities of certain types of liquor license applications and renewal into rule form, in order to clearly outline the process for persons and entities to object to the issuance or renewal of a liquor license or permit, and an applicant/licensee's options when his/her liquor license or permit is denied or action is taken to not renew his/her license or permit.

Proposal Changes the Following Existing Rules: WAC 314-12-020 Applicants -- Qualifications -- Fingerprinting -- Criminal history record information checks -- Continuing conditions -- Agreements -- Reconsideration of denied applications, the proposed rules would replace subsection (6) of this rule, which outlines the process for denied applications to be reconsidered.

No small business economic impact statement has been prepared under chapter 19.85 RCW. No disproportionate economic 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: Washington State Liquor Control Board, Board Room, 3000 Pacific Avenue S.E., Olympia, WA, on December 6, 2000, at 9:30 a.m.; and at the Washington State Liquor Control Board, Distribution Center, 4401 East Marginal Way South, Seattle, WA, on December 7, at 3:00 p.m.

Assistance for Persons with Disabilities: Contact Teresa Berntsen by December 5, 2000, TDD (360) 586-4727.

Submit Written Comments to: Teresa Berntsen, Rules Coordinator, P.O. Box 43080, Olympia, WA 98504-3080, fax (360) 664-9689, by December 13, 2000.

Date of Intended Adoption: December 20, 2000.

October 11, 2000

Eugene A. Prince

Chair


AMENDATORY SECTION(Amending WSR 96-03-004, filed 1/4/96, effective 2/4/96)

WAC 314-12-020
Applicants -- Qualifications -- Fingerprinting -- Criminal history record information checks -- Continuing conditions -- Agreements -- Reconsideration of denied applications.

(1) Where a married person is an applicant for, or holder of a license, the spouse of such applicant, if the parties are maintaining a marital community, shall be required to have the same qualifications as the applicant.

(2) The board may require, as a condition precedent to the original issuance of any annual license, fingerprinting and criminal history record information checks on any person not previously licensed by the board. In addition to the applicant, fingerprinting and criminal history record information checks may be required of the applicant's spouse. In the case of a corporation, fingerprinting and criminal history record information checks may be required of its present and any subsequent officers, manager, and stockholders who hold more than ten percent of the total issued and outstanding stock of the applicant corporation if such persons have not previously had their fingerprints recorded with the board. In the case of a partnership, fingerprinting and criminal history record information checks may be required of all general partners and their spouses. Such fingerprints as are required by the board shall be submitted on forms provided by the board to the Washington state identification section of the Washington state patrol and to the identification division of the Federal Bureau of Investigation in order that these agencies may search their records for prior arrests and convictions of the individuals fingerprinted. The applicant shall give full cooperation to the board and shall assist the board in all aspects of the fingerprinting and criminal history record information check. The applicant may be required to pay a minimal fee to the agency which performs the fingerprinting and criminal history process.

(3) The restrictions on license issuance specified in RCW 66.24.010(2) shall be construed to be continuing conditions for retaining an existing license and any licensed person who ceases to be eligible for issuance of a license under RCW 66.44.010(2) shall also cease to be eligible to hold any license already issued.

(4) An applicant for any license or permit issued by the liquor control board, who employs an attorney or agent in connection with an application for such license or permit, shall, upon request, submit in writing the entire agreement between such applicant for license or permit, and the attorney or agent. No part of any compensation agreed upon, paid or received shall in any manner be contingent upon the outcome of the matter before said board. In the event the compensation agreed upon, paid or received, is determined to be excessive, the board reserves the right to refuse to consider the application for such license or permit.

(5) The board, in considering an application for a license, may require, in addition to all other information requested concerning the proposed licensed premises (see WAC 314-12-035), that the applicant justify the issuance of the license sought based on an analysis of population trends compared to licenses in the area, any uniqueness of the proposed operation, any unusual circumstances present, plus any other information the applicant(s) may feel will justify the issuance of the license sought.

(((6) The board may, at its discretion and for good cause shown, reconsider a denied application upon receipt of new information within sixty days of the original denial date. Such reconsiderations are not considered part of the normal license application procedure and must be justified on an individual basis. Should the board determine to reconsider a denied application, notice of such reconsideration shall be given to those persons and/or entities entitled to receive notice of an original license application pursuant to RCW 66.24.010(8). Such notice shall be given at least twenty days prior to final determination on the reconsideration. Additionally, at the same time the notice is given, a press release will be issued informing the public of the impending reconsideration.))

[Statutory Authority: RCW 66.08.030, 66.24.010 and 66.24.025. 96-03-004, 314-12-020, filed 1/4/96, effective 2/4/96. Statutory Authority: RCW 66.08.030. 93-15-024, 314-12-020, filed 7/12/93, effective 8/12/93. Statutory Authority: RCW 66.08.030 and 66.24.010 (2)(b). 90-24-007, 314-12-020, filed 11/27/90, effective 12/28/90. Statutory Authority: RCW 66.08.030 and 66.08.050(2). 83-18-071 (Order 129, Resolution No. 138), 314-12-020, filed 9/7/83; Order 58, 314-12-020, filed 8/9/77, effective 9/12/77; Order 43, 314-12-020, Rule 1.5, filed 11/20/75; Order 36, 314-12-020, filed 7/2/75; Rule 1.5, filed 6/13/63.]


NEW SECTION
WAC 314-09-005
What is the purpose of chapter 314-09 WAC?

The purpose of chapter 314-09 WAC is to outline:

(1) the process for persons, entities, and governmental jurisdictions to object to the issuance or renewal of a liquor license or permit; and

(2) an applicant or licensee's options when his/her liquor license or permit is denied or action is taken to not renew his/her liquor license or permit.

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NEW SECTION
WAC 314-09-010
Objections to liquor license applications

(1) How can persons, entities, and governmental jurisdictions object to the issuance of a liquor license? Per RCW 66.24.010 (8)(9), the board will notify certain entities of the following types of annual or special occasion liquor license or permit applications. In addition to the following entities, any person or group may comment in writing to the board regarding a liquor license application.

Type of Application Entities the board will notify
Applications for an annual license or permit at a new location that would allow the sale and/or service of alcohol beverage to the public for on-premises consumption or to-go; and Governmental jurisdictions in which the premises is located, and
Applications to change the class of an existing annual liquor license or permit that allows the sale and/or service of alcohol beverage to the public for on-premises consumption or to-go. Schools, churches, and public institutions within 500 feet of the premises to be licensed (as measured according to RCW 66.24.010(9)).
Applications for any annual or special occasion liquor license or permit that allows the sale and/or service of alcohol beverage; and Governmental jurisdictions only.
Changes of ownership at existing licensed premises.

(2) What will happen if a person or entity objects to a liquor license application? When deciding whether to issue or deny an annual liquor license application, the board will give due consideration to input from governmental jurisdictions in which the premises is located; private schools, churches, and public institutions within 500 feet of the premises (as measured according to RCW 66.24.010(9)); and other persons or groups.

(a) Per RCW 66.24.010(9), the board will not issue a new retail liquor license if a tax-supported public elementary or secondary school within 500 feet of the premises to be licensed objects to the application (500 feet as measured according to RCW 66.24.010(9)).

(b) At its discretion, the board may hold a public meeting to gather input from interested parties before making a decision on a liquor license application. If the board decides to hold a public meeting, it will notify all persons or entities who have legal standing to be notified of a liquor license application under RCW 66.24.010, and all persons who gave comment on the application. The record of the public meeting will be part of any record should the matter result in an adjudicative hearing under the provisions of the Administrative Procedure Act (chapter 34.05 RCW).

(c) If the board contemplates issuing a license over the objection of a governmental jurisdiction in which the premises is located, the government subdivision may request an adjudicative hearing under the provisions of the Administrative Procedure Act (chapter 34.05 RCW). If the board, in its discretion, grants the governmental jurisdiction(s) an adjudicative hearing, the licensee will be notified and given the opportunity to present evidence at the hearing.

(d) If the board denies a liquor license application based on the objection from a governmental jurisdiction; a private school, church, or public institution within 500 feet of the premises (as measured according to RCW 66.24.010(9)); and/or other persons or groups, the applicant(s) may either:

(i) reapply for the license or permit no sooner than one year from the original denial date; or

(ii) submit a written request, within twenty days of the date on the denial letter, for an adjudicative hearing under the provisions of the Administrative Procedure Act (chapter 34.05 RCW).

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NEW SECTION
WAC 314-09-015
Objections to liquor license renewals

(1) How can local governmental jurisdictions object to the renewal of a liquor license? (a) The board will give governmental jurisdictions sixty days written notice of premises that hold annual liquor licenses in that jurisdiction that are up for renewal.

(b) Per RCW 66.24.010(8), if a governmental jurisdiction wants to object to the renewal of a liquor license in its jurisdiction, it must submit a letter to the board detailing the reason(s) for the objection and a statement of all facts on which the objections are based. This letter must be received by the board at least fifteen days before the liquor license expires.

(2) What will happen if a governmental jurisdiction objects to the renewal of a liquor license? (a) The board will give due consideration to a governmental jurisdiction's objection to a liquor license renewal of a premises in its jurisdiction. Based on the governmental jurisdiction's input, the board will decide to either renew the liquor license, or to proceed with non-renewal.

(b) At its discretion, the board may hold a public meeting to gather input from interested parties before making a decision on a liquor license renewal. If the board decides to hold a public meeting, it will notify the governmental jurisdiction(s) and any other persons who gave comment on the renewal. The record of the public meeting will be part of any record should the matter result in an adjudicative hearing under the provisions of the Administrative Procedure Act (chapter 34.05 RCW).

(c) Board decides to renew the liquor license: (d) Board decides to pursue non-renewal of the liquor license:
(i) The board will notify the governmental jurisdiction(s) in writing of its intent to renew the license, stating the reason for this decision. (i) The board will notify the licensee in writing of its intent to not renew the license, stating the reason for this decision.
(ii) The governmental jurisdiction(s) may contest the proposed renewal and request an adjudicative hearing under the provisions of the Administrative Procedure Act (chapter 34.05 RCW). (ii) The licensee may contest the proposed non-renewal and request an adjudicative hearing under the provisions of the Administrative Procedure Act (chapter 34.05 RCW).
(iii) If the board, in its discretion, grants the governmental jurisdiction(s) an adjudicative hearing, the licensee will be notified and given the opportunity to present evidence at the hearing. (iii) If the licensee requests a hearing, the governmental jurisdiction(s) will be notified and required to present evidence at the hearing to support its recommendation.
(iv) The board will consider the evidence, and will subsequently enter a final order announcing its decision. (iv) The board will consider the evidence, and will subsequently enter a final order announcing its decision.
(v) The governmental jurisdiction(s) or the licensee may appeal the final order of the board to the superior court for judicial review (under chapter 34.05 RCW). (v) The governmental jurisdiction(s) or the licensee may appeal the final order of the board to the superior court for judicial review (under chapter 34.05 RCW).
(vi) During the hearing and any subsequent appeal process, the licensee is issued a temporary operating permit for the liquor license until a final decision is made. (vi) During the hearing and any subsequent appeal process, the licensee is issued a temporary operating permit for the liquor license until a final decision is made.

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Washington State Code Reviser's Office