HomeMy WebLinkAboutRules and Regulations - Liquor Adjudication BoardRULES AND REGULATIONS
OF THE LIQUOR CONTROL ADJITDICATION BOARD
DEPARTMENT OF LIQUOR CONTROL
COUNTY OF HAWAII
TABLE OF CONTENTS
PART I. PRACTICES AND PROCEDURES
RULE
PAGE
1.1
Authority .............. ..............................1
1.2
Definitions ............ ..............................1
1.3
Jurisdiction and Powers .................................. 1
1.4
Construction of Rules .. ..............................2
1.5
Limitation of Jurisdiction ...........................2
1.6
Meetings ............... ..............................2
1.7
Voting ................. ..............................3
1.8
Notice, Hearings ....... ..............................3
1.9
Rehearing .............. .............:................6
1.10
Stipulation ............ ..............................6
1.11
Offer to Settle ........ ..............................7
1.12
Stipulated Penalty ..... ..............................8
PART II. PRACTICES AND PROCEDURES
2.1 Methods Whereby the Public May Obtain Information .... 9
2.2 Adoption, Amendment or Repeal of Rules ..............10
2.3 Declaratory Ruling by Board ......................... 12
PART III. SEVERABILITY
3.1 Severability ........... .............................13
Effective August 18, 2006 1
PART I. Practice and Procedures
Rule 1.1 AUTHORITY. Pursuant to and by virtue of the
authority set forth in Chapter 281 and Chapter 91 of
the Hawaii Revised Statutes and Article VII, Chapter
3 and Section. 13 -7 of the Charter of the County of
Hawaii, the Liquor Control Adjudication Board,
hereafter referred to as "Board ", of the Department of
Liquor Control of the County of Hawaii, State of
Hawaii, adopts these Rules and Regulations governing
practices and procedures relating to the Board.
Rule 1.2 DEFINITIONS. Words
Regulations in the si3
vice versa; words of
gender, words defined
Revised Statutes shall
used herein.
used in these Rules and
igular, include the plural, and
any gender include any other
in Chapter 281 of the Hawaii
have the same.meaning wherever
Rule 1.3 JURISDICTION AND POWERS. The Board shall hear and
determine all complaints regarding alleged violations
of the liquor control laws of the State, or complaints
regarding alleged violation of Rules and Regulations
established by the Liquor Commission and revoke or
suspend any license or impose such penalties as may be
provided by law upon finding violation thereof.
Each member of the Board shall have the power
respecting the administration of oaths, compelling the
attendance of witnesses, the production of documentary
evidence and examining the witnesses as are possessed
by a circuit court judge at chambers.
The exercise by the Board of the power, authority and
discretion in it so vested shall be final in each case
and shall not be reviewed or appealed to any court
or tribunal, except as otherwise provided in Chapter
281 or Chapter 91 of the Hawaii Revised Statutes.
Rule 1.4 CONSTRUCTION OF RULES. The rules shall be liberally
construed to secure the just, speedy and inexpensive
determination of every proceeding.
Rule 1.5 - LIMITATION OF JURISDICTION. The jurisdiction of the
Board is limited to those matters covered under the
provisions of Chapters 91, 92 and 281 of the Hawaii
Effective August 18, 2006 2
l'
Revised Statutes, the Charter of the County of
Hawaii, the Rules and Regulations of the Liquor
Commission of the County of Hawaili and the Rules and
Regulations of the Liquor Control Adjudication Board,
County of Hawaii.
Rule 1.6 MEETINGS. Regular meetings shall be held on the days
and time to be selected by the Board at the start of
the year, subject to change, in the hearing room of
the Department of Liquor Control or other public place
announced in advance; provided however, that if there
is no business pending before the Board, the meeting
shall be cancelled.
Meeting agendas shall list all of the items to be
considered and notice shall be on file at the office
of the County Clerk or its designated notice site and
at the office of the Department for inspection at
least six (6) days before the meeting. Additionally,
agendas for meetings held at locations other than the
office of. the department shall be posted at the
meeting site on the day of the meeting. The Board
shall not add items to the agenda, once filed, without
a two - thirds recorded vote of all members to which the
Board is entitled; provided that no item shall be
added to the agenda in the manner provided herein if
the item is of substantial and significant interest
which may affect the public.
A special meeting shall be called upon publication of
a notice in a newspaper of general circulation in this
County at least twenty -four hours in advance of such
meeting. If the requirement to publish notice cannot
be met because of insufficient time, the meeting
notice shall be made by broadcasting a minimum of
three announcements in the English language over FCC
licensed public radio stations in this county or on
television stations with local audiences.
Such announcements shall be broadcast twenty -four
hours in advance of such meeting and shall be
programmed to be heard between the hours of 7:00 a.m.
to 5:00 P.M.
Notice of such special meeting shall also be posted on
the bulletin board of the Hawaii County building.
Effective August 18, 2006
Rule 1.7 VOTING. Except as otherwise provided by law, all
matters shall be determined by an affirmative vote of
the majority of the membership to which the Board is
entitled. If the Board is unable to approve, deny or
render a decision on any item and no other motions
regarding the matter are passed, the matter shall be
continued for no more than two consecutive meetings
for the purpose of rendering a decision otherwise the
matter shall be considered dismissed.
Rule 1.8 NOTICE, HEARINGS. Except as otherwise provided by
law, in any proceeding involving the revocation or
suspension of a license or other disciplinary action
by the Board, which by law is required to be
determined after an opportunity for a hearing, the
following shall apply:
a. NOTICE. The licensee, or any person,
hereinafter referred to as Party, subject to
adjudication pursuant to Chapter 281, Hawaii Revised
Statutes shall be notified in writing of the Complaint
and Accusation, hereinafter referred to as Complaint,
and of the licensee's or Party's right to a hearing.
Such notice shall conform and be given according to
the requirements of Section 91 -9(b) and Section 281-
91, Hawaii Revised Statutes and all parties shall be
afforded an opportunity for hearing after reasonable
notice. The notice shall include a statement of:
1. The date, time and nature of the
hearing,
2. The legal authority under which the
hearing is held,
3. The particular section(s) of statute or
rule involved or specific description
of the action before the Board.
b. NOTICE. ADJUDICATIONS. Except as otherwise
provided by law, in any proceeding involving
suspension, revocation or other disciplinary
action by the Board, which by law is
required to be determined after an
opportunity for a hearing, the licensee or
Party shall be notified in writing of the
hearing and such notice shall be known as a
Effective August 18, 2006 4
Complaint and Accusation, hereinafter
referred to as Complaint, and shall conform
with Chapters 91 and 261 -91, Hawaili Revised
Statutes and shall be furnished to the
licensee, its authorized representative, or
person in active charge of the premises,
respectively, not less than twenty days
before such hearing. The licensee shall be
entitled to be heard in person and /or
through Counsel.
C. SERVICE. Whenever the service of any
Complaint, order or notice cannot be completed to the
holder of the license, its authorized representative
or its registered eP rson in active charge of the
premises, or if the holder of the license cannot be
found after diligent search, then service may be made
by posting a certified copy of the notice or order in
a conspicuous place on the licensed premises and
depositing such certified copy in the certified mail
of the U.S. Post Office, provided that if the use of
the licensed premises has been lost by the licensee,
such service shall be by certified mail as provided
herein.
Whenever service is provided in accordance to this
section and a reply is not presented before or at the
hearing, the Board may proceed with the Alternative
III hearing, and upon proper findings of facts and
conclusions of law shall issue a decision and order.
d. ANSWER TO COMPLAINT. The licensee shall
provide a response within five working days after the
receipt of the Complaint, as provided herein:
1. The licensee or Party, upon selection
of Alternative I, stipulates not to
exercise its right to a hearing and
appeal, in which case, the Board may
take disciplinary action against such
licensee on the Complaint and
Accusation according to law, without
the licensee's presence.
2. The licensee or Party, upon selection
of Alternative II, stipulates not to
exercise its right to a hearing and
Effective August 18, 2006 5
appeal, but requests an informal
hearing to present the circumstances
surrounding the violation for
consideration by the Board, and may
present such circumstances either in
person or through a written statement.
3. The licensee or Party, upon selection of
Alternative III, requests a formal
hearing, otherwise known as a contested
case hearing, to offer defenses to the
charges in the Complaint and
Accusation. In contested cases, the
licensee involved shall be required to
be present at the hearing. If the
licensee or Party fails to appear at
the hearing after being duly notified,
the contested case may proceed in the
licensee's or Party's absence and the
Board may adjudicate the complaint and
assess penalties.
4. The licensee, upon selection of
Alternative IV, Stipulated Penalty,
stipulates not to exercise the right to
a hearing and appeal, in which case,
the licensee shall pay the stipulated
penalty as set forth in Rule 1.12, and
shall not be required to appear before
the Liquor Control Adjudication Board.
e. DECISION. The decision of the Board shall
be subject to the limitations or standards as may be
prescribed by law. If the Board decides in favor of
the licensee, it shall promptly notify the licensee
thereof. If the Board decides otherwise, it shall
issue an appropriate decision and order. Such
decision and order shall be accompanied by separate
findings of fact and conclusions of law. The Board
shall within. a reasonable time send a certified copy
thereof to the licensee.
Rule 1.9 REHEARING. In a contested case hearing, a licensee or
Party may file a motion for a rehearing, and shall
file such motion within fifteen days of the receipt of
the decision and order issued by the Board. The
motion for rehearing may be on all or part of the
Effective August 18, 2006 6
issues of the case. The motion shall be submitted
with affidavits setting forth facts and a memorandum
setting forth the reasons and arguments in support of
the motion.
The Board shall rule on such motion and inform the
licensee of its ruling in writing.
If the Board grants the motion, it shall set the date
for rehearing and notify the licensee in the same
manner provided for hearing. The Board shall provide
notice to the licensee or Party and other persons
affected by said motion by publication or otherwise as
the Board shall direct. The publication of notice
shall state the name and address of the licensee, a
statement of the position or contention of the
licensee and the date, time and place of the hearing.
The licensee shall deposit a fee equal to the cost of
the publication of notice and notice to other persons
affected by said petition.
The Board may limit the scope of the rehearing to
limited issues of fact or Law.
If the Board decides otherwise, it shall issue an
appropriate findings of fact, conclusions of law and
decision and order. The Board shall within a
reasonable time send a certified copy thereof to the
petitioner.
Rule 1.10 STIPULATION. Any of the foregoing procedures may be
modified or waived by stipulation of the parties and
informal disposition may be made of any contested case
by stipulation, agreed settlement, consent order or
default.
Judicial review shall be as provided by law.
Rule 1.11 OFFER TO SETTLE. A licensee and the Department may
enter into a written agreement as to the disposition
of the case.
a. The licensee and the Department may enter
into an agreement that upon entering an admission to
the violation charged, the Department will take
certain actions or adopt certain positions, which may
include the dismissal of other charges, and /or the
Effective August 18, 2006 7
recommending or not opposing of specific penalties on
the charge to which the admission was entered.
b. If the licensee and the Department enter into
such an agreement, then the agreement shall be
submitted to the Liquor Control Adjudication Board at
its regularly scheduled meeting for which the matter
is scheduled for a hearing.
c. At the hearing on the matter, the Liquor
Control Adjudication Board shall, by vote of a
majority of the members to which the Board is
entitled, take action to accept or reject the
agreement.
1. If the Board accepts the agreement, it
shall impose the penalty stated in the
agreement.
2. If the Board rejects the agreement,
then it may, with the consensus of all
parties, hear the case on that day or
schedule the matter for a hearing on
the merits at its next regularly
scheduled meeting.
3. If the Board rejects the agreement,
evidence of an admission to a violation
or of an offer to admit to a violation
charged is not admissible against the
licensee.
4. Notwithstanding the acceptance by the
Board of such an agreement, the Board
shall not make any finding of the
violation without making such inquiry
as shall satisfy the Board that there
is a factual basis for the agreement.
Rule 1.12 STIPULATED PENALTY. A licensee who is cited by the
department as having violated any of the rules herein
provided may waive the right to a hearing and appeal
pursuant to the provisions contained herein, admit to
the charge (Alternative IV, Stipulated Penalty) prior
to the hearing and shall pay the penalty as herein
stated.
Effective August 18, 2006 8
a. For the first violation of any one of the
rules herein provided, the licensee shall pay a
penalty of one hundred dollars ($100.00) to the
department at the time that the licensee admits to the
charge.
M
For the second violation of the same rule
within three years of the initial violation, the
licensee shall pay a penalty of two hundred $200.00)
to the department at the time that the licensee admits
to the charge.
c. Any subsequent violations of the same rule
shall be processed in accordance to Rule 1.8.
d. A licensee may waive the right to a hearing
and appeal pursuant to this rule for the following
violations:
1.
Rule 3 -2 -D.1 Failure
to obtain
an
Alteration Permit requiring a building
permit, provided that
this shall not
apply to an alteration
permit which
is
associated with an
Increase
in
Premises.
2.
Rule 3 -2 -D.2 Failure
to obtain
an
Entertainment Permit by
a holder of
a
Class 1, 3 or 4 liquor license.
3.
Rule 3 -2 -D.5 Failure
to Obtain
an
Outside Storage Permit.
4.
Rule 3 -2 -D.8 Failure
to obtain
an
Entertainment Permit by
a Person Less
than 21 years of Age.
S.
Rule 3- 2 -D.10 Failure
to obtain
a
Private Host Permit.
6.
Rule 3- 2 -D.11 Failure
to obtain
a
Product Tasting Permit.
7. Rule 3- 2 -D.12 Failure to obtain a Teen
Event Permit.
Effective August 18, 2006
B.
Rule 3 -6 Failure to submit an Initial
or Final report of Gross Liquor Sales.
9. Rule 4 -6 -B Failure to Notify the
Commission of the election of officers
and directors of a corporate license.
10. Rule 5 -3
Failure to Post the Annual
List of Employees with Liquor Cards.
11. Rule 5 -10 Failure to Possess Liquor
Laws.
12. Rule 5 -11 Failure to provide Notice
of Temporary Closing.
13. Rule 5 -14 Failure to obtain approval
of Change of Trade Name.
PART II. GENERAL PROVISIONS
Rule 2.1 METHODS WHEREBY PUBLIC MAY OBTAIN INFORMATION. The
public may obtain information as to matters within the
jurisdiction of this Board by inquiring at:
a. The Office of the Lieutenant Governor of the
State of Hawaii where there are on file all rules of
the Board; or
b. The Office of the Clerk of the County of
Hawaii where there are on file all roles of the
Board; or
C. The main Office of the Department of Liquor
Control. All rules, orders or opinions of the Board
are on file and available for public inspection at
said office.
d. Pursuant to Chapter 92F, Hawaii Revised
Statutes, any person may, inspect public records and
such inquiry may be made in person at said office[s]
during the business hours or by submitting a request
for 'information in writing or by telephone to the
department. Requests for copies of records shall be
Effective August 18, 2006 10
distributed in a timely manner and upon payment of the
fixed cost as provided by law.
Rule 2.2 ADOPTION, AMENDMENT OR REPEAL OF RULES.
a. Any interested person may petition the Board
requesting the adoption, amendment or repeal of any
rule of the Board.
b. The petition shall be submitted in twelve
(12) copies and shall include:
1. A statement of the nature of the
petitioner's interest.
2. A draft or the substance of the
proposed rule or amendment or a
designation of the provisions sought to
be repealed.
3. An explicit statement of the reasons in
support of the proposed rule, amendment
or repeal.
C. The Board shall within ninet days after the
submission of the petition either deny the petition in
writing, stating its reasons for such denial, or
initiate proceedings in accordance with Chapter 91 -3
for the adoption, amendment or repeal of the rule, as
the case may be.
d. PROCEDURES. Prior to the adoption, amendment
or repeal of the rule and regulations of the Board,
the Board shall:
1. Give at least 30 days notice for a
public hearing. Such notice shall
include a statement of the substance of
the proposed rule, and the date, time
and place of the hearings. The notice,
together with the proposed rule for
adoption; amendment or repeal, shall be
mailed to all licensees and to all
persons who have made a timely written
request of the agency for advance
notice of its rulemaking proceedings,
and shall be published at least once in
a newspaper of general circulation in
Effective August 18, 2006 11
the county in both East and West
Hawaii.
2. Afford all interested persons
opportunity to submit data, views or
arguments, orally or in writing. The
agency may make its decision at the
public hearing or announce then the
date as to when it intends to make a
decision. Upon the adoption, amendment
or repeal of a rule, the Board shall,
if requested to do so by an interested
person, issue a concise statement of
the principal reasons for and against
its determination.
3. The Board may change a rule between the
original proposed as presented at a
public hearing and as finally adopted,
provided such changes shall not be so
substantial as to affect the rights of
the licensees and the general public.
4. A rule which has been adopted, amended
or repealed, upon the approval of the
mayor of the county, shall become
effective ten days after the filing
with the county clerk.
Rule 2.3 DECLARATORY RULING BY THE BOARD.
a. Any interested person may petition the Board
for a declaratory order as to the applicability of any
statute, ordinance or any rule or order by the Board.
b. The petition shall be submitted in twelve
(12) copies and shall contain:
1. The name, address and telephone number
of the petitioner.
2. A statement of the nature of the
petitioner's interest, including
reasons for the submission of the
petition.
3. A designation of the specific
provision, rule or order in question.
Effective August 18, 2006 12
4. A complete state of facts.
5. A statement of the position or
contention of the petitioner.
6. A memorandum of authorities, containing
a full discussion of the reasons,
including any legal authorities, in
support of such position or contention.
c. Any petition which does not conform to the
foregoing requirements may be rejected.
d. The Board may for good cause refuse to issue
a declaratory ruling. Without limiting the generality
of the foregoing, the Board may so refuse where:
1. The question is speculative or purely
hypothetical and does not involve
existing facts, or facts which can
reasonable be expected to exist in the
near future.
2. The petitioner's interest is not of the
type which .would give the petitioner
standing to maintain an action if the
petitioner were to seek judicial
relief.
3. The issuance of the declaratory ruling
may adversely affect the interests of
the State or County, the department or
any of their officers or employees in
any litigation which is pending or may
be reasonable be expected to arise.
4. The matter is not within the
.jurisdiction of the Board.
e. Where any question of law is involved, the
Board may refer the matter to the Corporation Counsel.
The Board may also obtain the assistance of other
agencies where necessary or desirable.
f. Upon the disposition of the petition, the
petitioner shall be informed in writing thereof by the
Board.
Effective August 18, 2006 13
g. Orders disposing of petitions shall have the
same status as other Board orders. Orders shall be
applicable only to the fact situation alleged in the
petition or set forth in the order. They shall not be
applicable to different fact situations or where
additional facts not considered in the order exist.
PART III. SEVERABILITY
RULE 3.1 SEVERABILITY. If any provision of these Rules and
Regulations or the application thereof to any person
or circumstances is held invalid by a court of
competent jurisdiction, such invalidity shall not
affect other provisions or applications of the Rules
and Regulations which can be given effect without the
invalid provision or application, and to this end, the
provisions of these Rules and Regulations are declared
to be severable.
Effective August 18, 2006 14
ALTERNATIVE IV. STIPULATED PENALTY
PURSUANT TO RULE 1.12 OF THE RULES AND REGULATIONS
OF THE LIQUOR CONTROL ADJUDICATION BOARD
I acknowledge receipt of this Notice of Complaint and
Accusation and do hereby admit to the allegation therein and
stipulate that disciplinary action may be taken on this
Complaint and Accusation according to law, without my presence.
The undersigned informs the Liquor Control Adjudication
Board of the selection to waive its right to a hearing and to be
subject to penalties pursuant to Rule 1.12.
Dated
Violation:
❑ First Offense $100
❑ Second Offense $200
Licensee
dba
By
Title
Effective August 18, 2006 15
LIQUOR CONTROL
7WEPARTMENT OF LIQUOR CONTROL
COUNTY :, HAWAI#I, STATE
;,
t
Hearing -
Hawaii
•
HawaiiWest
Today. May 14, 2006
Dates and Places of Public Hearings:
June (F
'; Room,
Liquor Control, 75-5722 a Place,
LiquorJune 22, 2006, 12:00 Noon, Meeting Room, Department of
Control,Lagoon
Suite 1- Hilo, Hawaili.
4=71�,
Deput nsel
Date: _6 F- 0':� - 04
Ow
r