WSR 08-12-112

PROPOSED RULES

LIQUOR CONTROL BOARD


[ Filed June 4, 2008, 11:06 a.m. ]

     Original Notice.

     Preproposal statement of inquiry was filed as WSR 08-06-106.

     Title of Rule and Other Identifying Information: WAC 314-29-006 What is the process once the board summarily suspends a liquor license?, 314-29-007 How may a licensee challenge the summary suspension of his or her liquor license?, and 314-29-008 Review of orders on stay.

     Hearing Location(s): Liquor Control Board, Board Room, 3000 Pacific Avenue S.E., Olympia, WA, on July 9, 2008, at 10:00 a.m.

     Date of Intended Adoption: July 23, 2008.

     Submit Written Comments to: Pam Madson, P.O. Box 43080, Olympia, WA 98504-3080, e-mail rules@liq.wa.gov, fax (360) 704-4921, by July 16, 2008.

     Assistance for Persons with Disabilities: Contact Pam Madson by July 16, 2008, TTY (800) 885-2880 or (360) 664-1648.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of the proposed rules is to clarify and set out the process for a licensee's administrative appeal from an order of emergency or summary suspension. The board has authority to summarily suspend a liquor license under RCW 66.08.150 upon a finding that "public health, safety, or welfare["] requires emergency action. It is unclear whether a licensee may proceed to an administrative hearing or must go directly to superior court. There are no rules that currently provide guidance.

     Statutory Authority for Adoption: RCW 66.08.030 and 66.08.150.

     Statute Being Implemented: RCW 66.08.150.

     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: Pam Madson, 3000 Pacific Avenue S.E., Olympia, WA, (360) 664-1648; Implementation and Enforcement: Pat Parmer, 3000 Pacific Avenue S.E., Olympia, WA, (360) 664-1726.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. This proposal imposes only minor impact on businesses in the industry.

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

June 4, 2008

Lorraine Lee

Chairman

OTS-1530.2


NEW SECTION
WAC 314-29-006   What is the process once the board summarily suspends a liquor license?   (1) The board may summarily suspend any license or permit after the board's enforcement division has completed a preliminary staff investigation of the violation and upon a determination that immediate cessation of the licensed or permitted activities is necessary for the protection or preservation of the public health, safety or welfare.

     (2) Suspension of any license or permit under this provision shall take effect immediately upon personal service on the licensee or employee thereof of the summary suspension order unless otherwise provided in the order.

     (3) When a license or permit has been summarily suspended by the board, an adjudicative proceeding for revocation or other action must be promptly instituted before an administrative law judge assigned by the office of administrative hearings. If a request for an administrative hearing is timely filed by the licensee or permit holder, then a hearing shall be held within ninety days of the effective date of the summary suspension ordered by the board.

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NEW SECTION
WAC 314-29-007   How may a licensee challenge the summary suspension of his or her liquor license?   (1) Upon summary suspension of a license or permit by the board pursuant to WAC 314-29-006, an affected licensee or permit holder may petition the board for a stay of suspension pursuant to RCW 34.05.467 and 34.05.550(1). A petition for a stay of suspension must be received by the board within fifteen days of service of the summary suspension order. The petition for stay shall state the basis on which the stay is sought.

     (2) A hearing shall be held before an administrative law judge within fourteen days of receipt of a timely petition for stay. The hearing shall be limited to consideration of whether a stay should be granted, or whether the terms of the suspension may be modified to allow the conduct of limited activities under current licenses or permits.

     (3) Any hearing conducted pursuant to subsection (2) of this section shall be a brief adjudicative proceeding under RCW 34.05.485. The agency record for the hearing shall consist of the documentary information upon which the summary suspension was based. The licensee or permit holder shall have the burden of demonstrating by clear and convincing evidence that:

     (a) The licensee or permit holder is likely to prevail upon the merits at hearing;

     (b) Without relief, the licensee or permit holder will suffer irreparable injury. For purposes of this section, elimination of income from licensed or permitted activities shall not be deemed irreparable injury;

     (c) The grant of relief will not substantially harm other parties to the proceedings; and

     (d) The threat to the public health, safety, or welfare is not sufficiently serious to justify continuation of the suspension, or that modification of the terms of the suspension will adequately protect the public interest.

     (4) The initial order on stay shall be effective immediately upon service unless another date is specified in the order.

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NEW SECTION
WAC 314-29-008   Review of orders on stay.   (1) The licensee, permit holder, or agency may petition the board for review of an initial order on stay. Any petition for review must be in writing and received by the board within ten days of service of the initial order. If neither party has requested review within ten days of service, the initial order shall be deemed the final order of the board for purposes of RCW 34.05.467.

     (2) If the board receives a timely petition for review, the board shall consider the petition within fifteen days of service of the petition for review. Consideration on review shall be limited to the record of the hearing on stay.

     (3) The order of the board on the petition for review shall be effective upon personal service unless another date is specified in the order and is final pursuant to RCW 34.05.467. Final disposition of the petition for stay shall not affect subsequent administrative proceedings for suspension or revocation of a license or permit.

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