PROPOSED RULES
Original Notice.
Preproposal statement of inquiry was filed as WSR 99-19-143.
Title of Rule: Chapter 314-42 WAC, Liquor Control Board administration.
Purpose: To outline the process the Liquor Control Board follows for the administrative violation notice process for alleged violations of liquor laws or regulations; to outline practice and procedure guidelines for adjudicative proceedings held by the agency; and to outline how a person can petition the agency for rule making.
Statutory Authority for Adoption: RCW 66.08.030, 66.44.010, 66.24.010(3), 34.05.413.
Statute Being Implemented: RCW 66.24.010(3), chapter 34.05 RCW.
Summary: The proposed rules would replace current rules that outline the process the Liquor Control Board follows for the administrative violation notice process for alleged violations of liquor laws or regulations; outline practice and procedure guidelines for adjudicative proceedings held by the agency; and outline how a person can petition the agency for rule making.
Name of Agency Personnel Responsible for Drafting: Teresa Berntsen, P.O. Box 43075, Olympia, WA 98504-3075, (360) 664-1648; Implementation and Enforcement: Rick Phillips, P.O. Box 43075, Olympia, WA 98504-3075, (360) 664-1780.
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 replace current rules that outline the process the Liquor Control Board follows for the administrative violation notice process for alleged violations of liquor laws or regulations; outline practice and procedure guidelines for adjudicative proceedings held by the agency; and outline how a person can petition the agency for rule making. If adopted, the proposed rules would make the following changes to existing rules:
| • | Streamline the process by which the agency handles administrative violation notices regarding alleged violations of liquor laws or regulations; |
| • | Delete rules regarding practice and procedure for adjudicative hearings that are duplicative with the Administrative Procedure Act (chapter 34.05 RCW); |
| • | Prohibit depositions by oral examination in contested cases (allowing written interrogatories by any part); and |
| • | Adopt the Office of Financial Management's rules (chapter 82-05 WAC) on how a person can petition the agency for rule making, which would simplify the existing process. |
Proposal Changes the Following Existing Rules: The proposed rules would replace the following chapters: Chapter 314-04 WAC, Hearings and chapter 314-08 WAC, Practice and procedure.
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, 2000, 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.
November 1, 2000
Eugene Prince
Chair
| Chapter 314-04 WAC | Hearings |
| Chapter 314-08 WAC | Practice and procedure |
During an adjudicative proceeding, no person may appear in a representative capacity before the Washington state liquor control board or its designated hearing officer other than the following:
(1) Attorneys at law duly qualified and entitled to practice before the supreme court of the state of Washington;
(2) Attorneys at law duly qualified and entitled to practice before the highest court of record of any other state, if the attorneys at law of the state of Washington are permitted to appear in a representative capacity before administrative agencies of such other state, and if not otherwise prohibited by our state law; and/or
(3) A bona fide officer, authorized manager, partner, or full time employee of an individual firm, association, partnership, or corporation who appears for such individual firm, association, partnership, or corporation.
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In all hearings involving the taking of testimony and the formulation of a record subject to review by the courts, where the board or its designated hearing officer determines that representative activity in such hearing requires a high degree of legal training, experience, and skill, the board or its designated hearing officer may limit those who may appear in a representative capacity to attorneys at law.
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No former employee of the board or member of the attorney general's staff may at any time after severing his/her employment with the board or the attorney general appear, except with the written permission of the board, in a representative capacity on behalf of other parties in a formal proceeding wherein he/she previously took an active part as a representative of the board.
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The board hereby adopts the Model Rules of Procedure, found in chapter 10-08 WAC, promulgated by the office of administrative hearings insofar as they are not in conflict with a specific board procedure rule.
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Papers required to be filed with the board are deemed filed upon actual receipt by the board at its headquarters office in Olympia.
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Per RCW 66.24.010(3), witnesses are allowed fees and mileage each way to and from any such inquiry, investigation, hearing, or proceeding at the rate authorized by RCW 34.04.105, as now or hereafter amended. Fees need not be paid in advance of appearance of witnesses to testify or to produce books, records, or other legal evidence. Witness fees and mileage shall be paid by the party who asked the witness to be present.
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Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
NEW SECTION
WAC 314-42-055
Depositions and interrogatories in contested
cases.
Deposition by oral examination will not be allowed in contested cases. Written interrogatories will be allowed by any party.
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(1) When a deposition is taken upon written interrogatories, the party offering the testimony shall separately and consecutively number each interrogatory and file and serve them with a notice stating:
(a) the name and address of the person who is to answer them, and
(b) the name or descriptive title and address of the officer before whom they are to be taken.
(2) Within ten days thereafter a party so served may serve cross-interrogatories upon the party proposing to take the deposition. Within five days thereafter, the party proposing to take the deposition may serve redirect interrogatories upon the party who served cross-interrogatories.
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In the absence of controverting evidence, the board and its hearing officers, upon request made before or during a hearing, may officially notice:
(1) Agency proceedings. The pendency of, the issues and position of the parties therein, and the disposition of any proceeding then pending before or theretofore concluded by the board;
(2) Business customs. General customs and practices followed in the transaction of business;
(3) Notorious facts. Facts so generally and widely known to all well informed persons as not to be subject to reasonable dispute, or specific facts which are capable of immediate and accurate demonstration by resort to accessible sources of generally accepted authority, including but not exclusively, facts stated in any publication authorized or permitted by law to be made by any federal or state officer, department, or agency;
(4) Technical knowledge. Matters within the technical knowledge of the board as a body of experts, within the scope or pertaining to the subject matter of its statutory duties, responsibilities or jurisdiction;
(5) Request or suggestion. Any party may request, or the hearing officer or the board may suggest, that official notice be taken of a material fact, which must be clearly and precisely stated, orally on the record, at any prehearing conference or oral hearing or argument, or may make such request or suggestion by written notice, any pleading, motion, memorandum, or brief served upon all parties, at any time prior to a final decision;
(6) Statement. Where an initial or final decision of the board rests in whole or in part upon official notice of a material fact, such fact must be clearly and precisely stated in such decision. In determining whether to take official notice of material facts, the hearing officer of the board may consult any source of pertinent information, whether or not furnished as it may be, by any party and whether or not admissible under the rules of evidence;
(7) Controversion. Any party may controvert a request or a suggestion that official notice of a material fact be taken at the time the same is made if it be made orally, or by a pleading, reply or brief in response to the pleading or brief or notice in which the same is made or suggested. If any decision is stated to rest in whole or in part upon official notice of a material fact which the parties have not had a prior opportunity to controvert, any party may controvert such fact by appropriate exceptions if such notice be taken in an initial or intermediate decision or by a petition for reconsideration if notice of such fact be taken in a final report. Such controversion must be concisely and clearly set forth the sources, authority and other data relied upon to show the existence or nonexistence of the material fact assumed or denied in the decision;
(8) Evaluation of evidence. Nothing herein shall be construed to preclude the board or its authorized agents from utilizing their experience, technical competence, and specialized knowledge in the evaluation of the evidence presented to them.
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Upon proof of the predicate facts specified in the following six subdivisions hereof without substantial dispute and by direct, clear, and convincing evidence, the board, with or without prior request or notice, may make the following presumptions, where consistent with all surrounding facts circumstances:
(1) Continuity. That a fact of a continuous nature, proved to exist at a particular time, continues to exist as of the date of the presumption, if the fact is one which usually exists for at least that period of time;
(2) Identity. That persons and objects of the same name and description are identical;
(3) Delivery. Except in a proceeding where the liability of the carrier for nondelivery is involved, that mail matter, communications, express or freight, properly addressed, marked, billed and delivered respectively to the post office, telegraph, cable or radio company, or authorized common carrier of property with all postage, tolls and charges properly prepaid, is or has been delivered to the addressee or consignee in the ordinary course of business;
(4) Ordinary course. That a fact exists or does not exist, upon proof of the existence or nonexistence of another fact which in the ordinary and usual course of affairs, usually and regularly coexists with the fact presumed;
(5) Acceptance of benefit. That a person for whom an act is done or to whom a transfer is made has, does or will accept same where it is clearly in his/her own self-interest to do so;
(6) Interference with remedy. That evidence, with respect to a material fact which in bad faith is destroyed, removed, suppressed or withheld by a party in control thereof, would if produced, corroborate the evidence of the adversary party with respect to such fact.
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The existence or nonexistence of a material fact, as made or agreed in a stipulation or in an admission of record, will be conclusively presumed against any party bound thereby, and no other evidence with respect thereto will be received upon behalf of such party, provided:
(1) Upon whom binding. Such a stipulation or admission is binding upon the parties by whom it is made, their privies and upon all other parties to the proceeding who do not expressly and unequivocally deny the existence or nonexistence of the material fact so admitted or stipulated, upon the making thereof, if made on the record at a prehearing conference, oral hearing, oral argument or by a writing filed and served upon all parties within five days after a copy of such stipulation or admission has been served upon them;
(2) Withdrawal. Any party bound by a stipulation or admission of record at any time prior to final decision may be permitted to withdraw the same in whole or in part by showing to the satisfaction of the hearing officer or the board that such stipulation or admission was made inadvertently or under a bona fide mistake of fact contrary to the true fact and that its withdrawal at the time proposed will not unjustly prejudice the rights of other parties to the proceeding.
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Whenever the board considers that any matter or proceeding will be best handled by the issuance of a proposed order by the board or by the examiner conducting the hearing, the order shall be issued and the parties notified of the proposed order.
(1) Upon receipt of such notice and proposed order, any party may file exceptions to the proposed order within twenty days after the date of the service of the proposed order, unless a greater or less time for filing exceptions is designated by the board at the time of issuance of the proposed order.
(2) Exceptions must be filed in triplicate and a copy must be served upon all other parties who have appeared in the cause, or their attorneys of record, together with proof of such service in accordance with the rules governing service of process.
(3) Within ten days after service of the exceptions, any party may answer the filed exceptions. Briefs may accompany the exceptions or answers and must be filed and served in the same manner.
(4) After a full consideration of the proposed order, the exceptions and the answers to the exceptions filed, and briefs, the board may:
(a) affirm its proposed order by service of an order of affirmance upon the parties; or
(b) if the board deems the exceptions well taken, it may revise the proposed order and issue a final order differing from the proposed order: Provided, That the board may revise the proposed order and issue a final order differing from the proposed order notwithstanding the fact that neither its counsel nor the licensee or his/her counsel have filed exceptions in the case.
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(1) At the conclusion of the evidentiary portion of a field hearing, the examiner may call for an oral legal argument on the record, after which the examiner shall render his/her oral proposals; or, the examiner may call for written arguments to be submitted to his/her office by the licensee or his/her attorney and the board's attorney. Such written arguments must be submitted in triplicate to the hearing examiner and may not be exchanged by opposing counsel.
(2) When both arguments have been received, the hearing examiner shall deliver one of the copies of the licensee's argument to the board's attorney, and one copy of the board's argument shall be forwarded to the licensee or his/her attorney.
(3) Unless a different time is fixed at the field hearing, written arguments must be filed within ten days after the conclusion of the taking of the testimony at the field hearing.
(2) After the receipt of both written arguments, the hearing examiner shall render his/her written proposals which will be served on the licensee or his/her attorney and the attorney for the board.
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Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
NEW SECTION
WAC 314-42-090
Definition of issues before hearing.
In all proceedings the issues to be adjudicated must be made initially as precise as possible, in order that hearing officers may proceed promptly to conduct the hearings on relevant and material matter only.
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(1) Petitions for the board to adopt, amend, or repeal a rule, as described in RCW 34.05.330, will follow the same format and be submitted in the same manner as outlined by the office of financial management in WAC 82-05-020 and 82-05-030, as now or hereafter amended.
(2) The board shall respond to such petitions in the manner outlined in WAC 82-05-040, as now or hereafter amended.
(3) The petitioner may appeal the board's denial of his/her petition as outlined in WAC 82.05.050, as now or hereafter amended.
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Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
NEW SECTION
WAC 314-42-105
How can a person petition the board for a
declaratory order?
(1) Following the provisions of RCW 34.05.240, any person may petition the board for a declaratory order with respect to the applicability to specified circumstances of a rule, order, or statute enforceable by the board. The board shall consider the petition, and within thirty days of the receipt of the petition will:
(a) Enter an order declaring the applicability of the statute, rule, or order in question to the specific circumstances; or
(b) Set a specified date no more than ninety days after receipt of the petition by which it will enter a declaratory order; or
(c) Notify the petitioner of a time and place for hearing argument about the matter before the board makes a decision to enter a declaratory order or to decline to enter a declaratory order; or
(d) Notify the person that the board declines to enter a declaratory and the reasons for this action.
(2) What information should be included in the petition for declaratory order? In addition to the information outlined in RCW 34.05.240(1), as now or hereafter amended, petitions for a declaratory rulings must include the following information:
(a) the name and address of the petitioning party,
(b) a list of all rules or statutes that may be brought into issue by the petition,
(c) a statement of facts relied upon in the petition.
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Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
NEW SECTION
WAC 314-29-005
What are the procedures for a licensee or a
mandatory alcohol server training permit holder to be notified of
an alleged violation of a board statute or regulation?
(1) When an enforcement agent believes that a licensee or a mandatory alcohol server training permit holder has violated a board statute or regulation, the agent will prepare an administrative violation notice (AVN). This notice will constitute the notice of initial board action, and the remaining steps in the prehearing procedure as outlined in WAC 314-17-010 will be followed.
(2) The AVN notice will include:
(a) a brief narrative description of the violation(s) the agent is charging;
(b) the dates of the violation(s);
(c) a copy of the law(s) and/or regulation(s) allegedly violated;
(d) an outline of the licensee's options as outlined in WAC 314-29-010; and
(e) the recommended penalty as follows:
(i) For cases in which there are no aggravating circumstances as outlined in WAC 314-12-330 and 314-12-340 as now or hereafter amended, the recommended penalty will be the standard penalty as outlined in WAC 314-12-170 and 314-12-300 through WAC 314-12-320 for licensees, and in WAC 314-14-160 and WAC 314-14-165 for mandatory alcohol server training permit holders, as now or hereafter amended.
(ii) For cases in which there are aggravating circumstances as outlined in WAC 314-12-330 and 314-12-340 as now or hereafter amended, the agent will describe the circumstances in a report to the director of the enforcement and education division. Under the provisions of WAC 314-12-330 and 314-12-340 as now or hereafter amended, the director of the education and enforcement division may recommend a penalty other than the standard penalty outlined in WAC 314-12-170 and 314-12-300 through WAC 314-12-320 for licensees, and in WAC 314-14-160 for mandatory alcohol server training permit holders, as now or hereafter amended.
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(1) When a licensee or a mandatory alcohol server training permit holder receives a notice of initial board action, the licensee or permit holder has twenty days from receipt of the notice to:
(a) accept the recommended penalty; or
(b) request a settlement conference; or
(c) request an administrative hearing in writing.
(2) What are the procedures when a licensee or mandatory alcohol server training permit holder requests a settlement conference?
(a) If the licensee or permit holder requests a settlement conference, the agent in charge or designee will schedule the conference.
(b) Both the licensee or permit holder and the agent in charge or designee will discuss the circumstances surrounding the charge, the recommended penalty, and any aggravating or mitigating factors.
(c) If a compromise is reached, the agent in charge or designee will prepare a proposed settlement agreement and will forward it to the board for approval.
(i) If the board approves the compromise, a copy of the signed settlement agreement will be sent to the licensee or permit holder, and will conclude the case.
(ii) If the board does not approve the compromise, the board will notify the licensee or permit holder of the decision. The licensee or permit holder will be given the option of agreeing to any changes the board has made in the agreement, or of requesting an administrative hearing on the charges in writing within twenty days of receipt of the notice of board action.
(d) If the licensee or permit holder and the agent in charge or designee cannot reach agreement on a settlement proposal, the licensee may accept the originally recommended penalty, or the agent in charge or designee will forward a request for an administrative hearing to the board's hearings coordinator.
(3) What are the procedures when a licensee or mandatory alcohol server training permit holder requests an administrative hearing?
(a) If the licensee or permit holder requests an administrative hearing in writing within twenty days, it is conducted pursuant to chapter 34.05 RCW (Washington Administrative Procedure Act).
(b) The board's hearing coordinator will notify the assistant attorney general of the licensee or permit holder's request for an administrative hearing.
(c) The assistant attorney general will draft an administrative complaint and send it to the licensee or permit holder and to the office of administrative hearings.
(d) The office of administrative hearings will schedule the hearing date, and notify the licensee or permit holder and his/her attorney and the assistant attorney general in writing of the hearing date, time, and location.
(e) The hearing will be conducted by an administrative law judge assigned by the office of administrative hearings. Subpoenas may be issued by an attorney for any party, or by the assigned administrative law judge.
(f) At the hearing, the assistant attorney general or a designee will present witnesses and other evidence on behalf of the board's enforcement staff.
(g) At the hearing, the licensee or permit holder may be represented by an attorney or may choose to represent himself or herself. The licensee or permit holder or his/her attorney will be allowed to present witnesses or other relevant information.
(5) What will happen after the administrative hearing?
(a) Following the hearing, the administrative law judge will prepare an initial order and send it to the licensee or permit holder and the assistant attorney general.
(b) Either the licensee or permit holder or the assistant attorney general may file a petition for review of the initial order with the liquor control board within twenty days of the date of service of the initial order. The petition for review must:
(i) specify the portions of the initial order to which exception is taken;
(ii) refer to the evidence of record which is relied upon to support the petition; and
(iii) be filed with the liquor control board within twenty days of the date of service of the petition.
(iv) Copies of the reply must be mailed to all other parties or their representatives at the time the reply is filed.
(c) The administrative record, the initial order, and any exceptions filed by the parties will be circulated to the board members for review.
(d) Following this review, the board will enter a final order which is appealable under the provisions of RCW 34.05.510 through 34.05.598 (Washington Administrative Procedure Act).
(6) What happens if a licensee or mandatory alcohol server training permit holder does not respond to the notice of initial board action within 20 days? If a licensee or permit holder does not respond to the notice of initial board action within twenty days, the recommended penalty will go into effect.
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