WSR 09-16-057

PROPOSED RULES

LIQUOR CONTROL BOARD


[ Filed July 29, 2009, 12:26 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 09-12-126.

Title of Rule and Other Identifying Information: Adding a new section in chapter 314-07 WAC, How to apply for a liquor license and amending chapter 314-09 WAC, Contested liquor license applications and renewals.

Hearing Location(s): Washington State Liquor Control Board, 3000 Pacific Avenue S.E., Olympia, WA 98504, on September 9, 2009, at 10:00 a.m.

Date of Intended Adoption: September 23, 2009.

Submit Written Comments to: Karen McCall, P.O. Box 43080, Olympia, WA 98504-3080, e-mail rules@liq.wa.gov, fax (360) 664-9689, by September 9, 2009.

Assistance for Persons with Disabilities: Contact Karen McCall by September 23, 2009, (360) 664-1631.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposed rules implement board interim policy #4-2009 - Delegation of authority. Proposed rules on contested liquor license applications and renewals have been revised to provide clarity to stakeholders and liquor licensees.

Reasons Supporting Proposal: The proposed rules implement current board policy and provide clarity to liquor licensees and stakeholders.

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: Washington state liquor control board, 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, Director Licensing, 3000 Pacific Avenue S.E., Olympia, WA 98504, (360) 664-1615; and Enforcement: Pat Parmer, Chief Enforcement, 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 proposal does not change the impact on liquor licensees or stakeholders.

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

July 29, 2009

Ruthann Kurose

Board Member

OTS-2580.1


NEW SECTION
WAC 314-07-121   Board delegation of authority to make initial threshold determinations.   (1) The board may delegate to the licensing and regulation division director the authority to make initial threshold determinations on liquor license applications and renewals where:

(a) Objections have been submitted; or

(b) The applicant/licensee appears to be ineligible for a license due to failure to meet requirements under statute or rule. Failure to meet eligibility requirements includes data obtained through a criminal background check or criminal history record information (CHRI) report.

(2) Threshold determinations will be made in accordance with the provisions of RCW 66.24.010 as well as all other relevant sections of state law and TITLE 314 WAC. The licensing and regulation division director shall:

(a) Give substantial weight to objections from a local authority where objections are based on chronic illegal activity;

(b) Give due consideration to the location of a new liquor license application as it relates to the proximity to churches, schools, and public institutions as well as other considerations raised by the local authority.

(3) If the licensing and regulation director determines that the board will seek denial of a license application or nonrenewal of an existing license, an aggrieved applicant/licensee may request an adjudicative hearing before an administrative law judge (see chapter 314-09 WAC).

(4) If the licensing and regulation director determines that the board will seek to approve a license or renewal over the objection of the local authority, the local authority may request an adjudicative hearing before an administrative law judge (see chapter 314-09 WAC). The licensing and regulation director will determine whether an adjudicative hearing will be granted to the local authority.

An adjudicative hearing will be granted where the objection is based on alleged conduct related to public safety within the jurisdiction of the board under Title 66 RCW.

[]

OTS-2581.1


AMENDATORY SECTION(Amending WSR 05-07-011, filed 3/4/05, effective 4/4/05)

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 or permit? Per RCW 66.24.010 (8) and (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][an])) an 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 a liquor license application (([or permit])) or permit, 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. Note(([:])): Per RCW 66.24.010(9), the board shall not issue a new (([retail])) 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)).

(a) 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.

(b) 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 of licensee's receipt (([of])) of the ((denial letter)) intent to deny, for an adjudicative hearing under the provisions of the Administrative Procedure Act (chapter 34.05 RCW).

[Statutory Authority: RCW 66.08.030 and 66.24.010. 05-07-011, 314-09-010, filed 3/4/05, effective 4/4/05. Statutory Authority: RCW 66.08.030, 66.24.010, 66.08.150. 01-03-087, 314-09-010, filed 1/17/01, effective 2/17/01.]


AMENDATORY SECTION(Amending WSR 05-07-011, filed 3/4/05, effective 4/4/05)

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 approximately ninety 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.

(([(c)])) (c) This letter must be received by the board at least thirty days before the liquor license expires. The objection must state specific reasons and facts that show issuance of the liquor license at the proposed location or to the applicant business will detrimentally impact the safety, health, or welfare of the community.

(([(d) If the objection is received within 30 days of the expiration date or the licensee has already renewed the license, the objection will be considered as a complaint and possible license revocation by the Enforcement Division.])) (d) If the objection is received within thirty days of the expiration date or the licensee has already renewed the license, the objection will be considered as a complaint and possible license revocation may be pursued by the enforcement division.

(e) Objections from the public will be referred to the appropriate governmental jurisdiction for action under subsection (2) ((below)) of this section. Upon receipt of the objection, the board licensing and regulation division will acknowledge receipt of the objection(s) and forward to the appropriate governmental jurisdiction. Such jurisdiction may or may not, based on the public objection, request nonrenewal.

(2) What will happen if a governmental jurisdiction objects to the renewal of a liquor license? 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 and any information in the licensing file, the board will decide to either renew the liquor license, or to proceed with nonrenewal.


(((b))) (a) Board decides to renew the liquor license: (((c))) (b) Board decides to (([pursue nonrenewal of] [not renew])) pursue nonrenewal 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 renewal and request an adjudicative hearing under the provisions of the Administrative Procedure Act (chapter 34.05 RCW). (ii) The licensee may contest the nonrenewal and request an adjudicative hearing under the provisions of the Administrative Procedure Act (chapter 34.05 RCW).
(iii) If the licensee requests a hearing, the governmental jurisdiction(([(s)])) will be (([notified.])) notified.
(([(vi)])) (iv) 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.

[Statutory Authority: RCW 66.08.030 and 66.24.010. 05-07-011, 314-09-015, filed 3/4/05, effective 4/4/05. Statutory Authority: RCW 66.08.030, 66.24.010, 66.08.150. 01-03-087, 314-09-015, filed 1/17/01, effective 2/17/01.]

Washington State Code Reviser's Office