Supplemental Notice to WSR 00-22-113.

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 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 for adjudicative proceedings held by the agency and 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 rule 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:

	Delete rules regarding practice and procedure for adjudicative hearings that are duplicative with the Administrative Procedure Act (chapter 34.05 RCW); 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.

The rules originally filed proposed to prohibit depositions by oral examination in contested cases (allowing written interrogatories by any part). The board chose to withdraw this proposed change.

Proposal Changes the Following Existing Rules: The proposed rules would replace 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 April 18, 2001, at 9:30 a.m.

Assistance for Persons with Disabilities: Contact Teresa Berntsen by April 17, 2001, 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 April 20, 2001.

Date of Intended Adoption: April 25, 2001.

March 7, 2001

Eugene Prince

Chair

The following chapter of the Washington Administrative code is repealed:

Chapter 314-08 WAC

Practice and procedure

NEW SECTION
WAC 314-42-020   Appearance and practice before the board -- Who may appear.   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.

[]

[]

[]

[]

[]

[]

(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.

[]

(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.

[]

(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.

[]

(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.

[]

(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.

[]

(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.

[]

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.

[]

(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.

[]

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.

[]

Washington State Code Reviser's Office