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OREGON LIQUOR CONTROL COMMISSION

 

DIVISION 3
CONTESTED CASE PROCEDURES

845-003-0200
Statement
of Purpose
(1) The purpose of these rules is to
implement the statutory policies set forth in ORS 183.411 to 183.470, to provide
all contested case participants with clear guidelines, and to provide for thorough
and timely hearings.
(2) In an effort to provide
timely hearings, these rules establish time limits which will be strictly followed.
(3) These rules apply to
all contested case proceedings pending with or received by the Commission on or
after the effective date.
Stat. Auth.: ORS 183.341(2) & 471.730(5)
& (6)
Stats. Implemented: ORS 183.341(2)
Hist.: OLCC 9-1998, f. 10-21-98,
cert. ef. 1-1-99; OLCC 1-2000(Temp), f. & cert. ef. 1-14-00 thru 7-11-00; OLCC
8-2000, f. 6-23-00, cert. ef. 7-1-00; OLCC 6-2012, f. 8-14-12, cert. ef. 9-1-12;
OLCC 9-2014, f. 9-10-14. cert. ef. 10-1-14
845-003-0210
Model Rules of Procedure
(1) The Attorney General's “Model
Rules of Procedure for Contested Cases Office of Administrative Hearings,”
effective May 1, 2014, are hereby adopted by reference as permanent rules of procedure
for contested case hearings conducted on behalf of the Liquor Control Commission.
The Attorney General's “Model Rules of Procedure for Contested Cases Office
of Administrative Hearings” are set forth in OAR 137-001-0005 and OAR 137-003-0501
to 137-003-0700.
(2) The Attorney General’s
Model Rules for “Miscellaneous, Orders in Other Than Contested Cases,”
effective May 1, 2014, are hereby adopted by reference as permanent rules of procedure
for miscellaneous proceedings and orders in other than contested cases. The Attorney
General’s Model Rules for “Miscellaneous, Orders in Other Than Contested
Cases” are set forth in OAR 137-004-0010 to 137-004-0092. (The Commission
declines to adopt the remaining model rules in this sequence.)
[ED. NOTE: The full text of the Attorney General’s
“Model Rules of Procedure for Contested Cases Office of Administrative Hearings”
and “Miscellaneous, Orders in Other Than Contested Cases” is available
from the Office of the Attorney General or the Oregon Liquor Control Commission.]
Stat. Auth.: ORS 183.341 (1) & (2)
& 471.730(5) & (6)
Stats. Implemented: ORS 183.341(1)
& (2)
Hist.: OLCC 9-1998, f. 10-21-98,
cert. ef. 1-1-99; OLCC 1-2000(Temp), f. & cert. ef. 1-14-00 thru 7-11-00; OLCC
8-2000, f. 6-23-00, cert. ef. 7-1-00; OLCC 6-2012, f. 8-14-12, cert. ef. 9-1-12;
OLCC 9-2014, f. 9-10-14. cert. ef. 10-1-14
845-003-0220
Definitions
The following definitions apply to these
rules,
(1) “Administrator”
means the Executive Director of the Oregon Liquor Control Commission or his or her
designee.
(2) "Charging Document" means
any document issued by the Commission stating that any person or entity has violated
the laws over which the Commission has jurisdiction; any document proposing to act
upon an application for a permit, license, or certification, or upon an existing
permit, license, or certification; or any document alleging a violation of a term
or condition of a retail sales agent agreement.
(3) "Commission" means the
Oregon Liquor Control Commission and any employee thereof, but for purposes of these
rules does not refer to the Commissioners.
(4) "Commissioners" means
a quorum of duly appointed Commissioners at a meeting called for the transaction
of any business, the performance of any duty, or the exercise of any power of the
Oregon Liquor Control Commission.
(5) "Good cause" means, the
factors set forth under OAR 137-003-0501(7). Good cause does not include failure
to perform a required act due to the press of business or ignorance of the law,
including ignorance of these rules.
(6) “Non-Participant”
means any person who is not a participant.
(7) "Participant" means the
party, the party’s attorney, the expert witnesses, the agency representative,
one agency officer or agency employee, and any persons authorized by statute or
administrative rule to attend the contested case hearing.
(8) "Party" means any person
or entity named in the charging document or granted party status by statute or administrative
rule.
Stat. Auth.: ORS 183.341(2) & 471.730(5)
& (6)
Stats. Implemented: ORS 183.310
& 183.341(2)
Hist.: OLCC 9-1998, f. 10-21-98,
cert. ef. 1-1-99; OLCC 1-2000(Temp), f. & cert. ef. 1-14-00 thru 7-11-00; OLCC
8-2000, f. 6-23-00, cert. ef. 7-1-00; OLCC 6-2012, f. 8-14-12, cert. ef. 9-1-12;
OLCC 9-2014, f. 9-10-14. cert. ef. 10-1-14
845-003-0270
Request
for a Contested Case Hearing and Response to Charging Document
(1) Any party who wants to contest a
charging document must request a contested case hearing. The request for hearing
must be in writing and filed within the time limit established in the charging document.
The time limit for response to a charging document is:
(a) 30 days after mailing
of the charging document for violation matters, except that for violations of ORS
471.315(1)(c), the time limit shall be 20 days;
(b) 15 days after mailing
of the charging document for service permit refusals based on failure to complete
the alcohol server education course and examination and 30 days after mailing of
the charging document for all other service permit refusals;
(c) 60 days after mailing
of the charging document for license or certification refusal or non-renewal, except
that for non-renewal of a license under ORS 471.313(5), the time limit shall be
20 days;
(d) Within the time period
provided in the retail sales agent agreement between the Commission and the agent
for agency cases, if the agreement provides for a hearing;
(e) Within the time period
provided in the charging document for all other matters not listed above.
(2) In cases involving Category
I or II violations, licensing actions, or retail sales agent agreements, a party
must file a written Answer with the party’s request for a hearing. In these
types of cases, a general denial is not sufficient to constitute an Answer. The
Answer must specify:
(a) An admission or denial
of each factual matter alleged in the charging document; and
(b) What defense or defenses
the party will rely upon.
(3) When an answer is required
under section (2):
(a) Factual matters alleged
in the charging document and not denied in the answer shall be presumed admitted;
(b) Failure to raise a particular
defense in the answer will be considered a waiver of such defense;
(c) New matters alleged in
the answer (affirmative defenses) shall be presumed to be denied by the agency;
and
(d) Evidence shall not be
taken at the contested case hearing on any issue not raised in the charging document
or answer.
(4) When an answer is required
under section (2), the party or party’s attorney may amend the answer, except
when doing so would be unduly prejudicial.
Stat. Auth.: ORS 183.341(2), 183.745
& 471.730(5) & (6)
Stats. Implemented: ORS 183.341(2),
183.430(2), 183.435, 183.745, 471.331(1) & 471.380(2)
Hist.: OLCC 9-1998, f. 10-21-98,
cert. ef. 1-1-99; OLCC 8-1999, f. 6-9-99, cert. ef. 7-1-99; OLCC 1-2000(Temp), f.
& cert. ef. 1-14-00 thru 7-11-00; OLCC 8-2000, f. 6-23-00, cert. ef. 7-1-00;
OLCC 9-2003, f. 6-27-03, cert. ef. 7-1-03; OLCC 18-2007, f. 9-27-07, cert. ef. 10-1-07;
OLCC 6-2012, f. 8-14-12, cert. ef. 9-1-12; OLCC 9-2014, f. 9-10-14. cert. ef. 10-1-14
845-003-0331
Employee
Representation at Contested Case Hearings
(1) The Commission's goal in contested
case hearings is to have a full and accurate record upon which the Commissioners
can make the best decision. To help ensure a full record, employees are allowed
to represent the Commission in certain contested case hearings. The employee representative's
role is to represent the Commission in a way that supports objective fact finding
and encourages an open, fair, and efficient process.
(2) A Commission employee
may represent the Commission in contested case hearings in the following classes
of cases:
(a) Violations of OLCC statutes
or rules described in ORS Chapters 471 and 473, statutes related to the Oregon Bottle
Bill in ORS Chapter 459A, 474.115, 459.992, and OAR Chapter 845;
(b) License or service permit
applications and denial, non-renewal, suspension, revocation or cancellation of
licenses or service permits;
(c) Retail Sales Agent Agreement
violations or disputes, except for suspensions or terminations;
(d) Privilege Tax disputes
under ORS 473.060(4); and
(e) Applications for certificates
of approval (ORS 471.244 and 471.251), wine self-distribution permits (471.274),
direct shipper permits (471.282), and importation permits and open purchase orders
(471.404(1)(e) and 471.730(8)), and suspension, revocation, or cancellation of these
endorsements.
(3) The representative's
responsibilities include, but are not limited to:
(a) Presenting evidence;
(b) Asking questions of all
witnesses;
(c) Presenting information
about the facts, and advocating for staff's position surrounding the facts;
(d) Presenting information
on how the facts apply to the statutes or rules directly related to the issues in
the contested case;
(e) Presenting information
comparing Commission actions in similar situations;
(f) Presenting information
about the literal meaning of the statutes or rules that apply to the issues in the
contested case; and
(g) Presenting information
about the admissibility of evidence or the correctness of procedures being followed.
(4) The employee representative
may not make legal arguments. "Legal arguments" include arguments on:
(a) The jurisdiction of the
Liquor Control Commission to hear the contested case;
(b) The constitutionality
of a statute or rule or the application of a constitutional requirement to the Liquor
Control Commission; and
(c) The application of court
precedent to the facts of the particular contested case proceeding.
(5) When an employee represents
the Commission in a contested case hearing, the administrative law judge will advise
the employee representative of the way in which objections may be made. This advice
is of a procedural nature and does not change applicable law on waiver or the duty
to make timely objections. If the objections involve legal argument, the administrative
law judge will provide reasonable opportunity for the employee representative to
consult legal counsel and permit legal counsel to file written legal argument within
a reasonable time after the conclusion of the hearing.
Stat. Auth.: ORS 183.341(2), 183.452
& 471.730(5) & (6)
Stats. Implemented: ORS 183.341(2)
& 183.452
Hist.: OLCC 6-2002(Temp),
f. 5-6-02, cert. ef. 5-7-02 thru 11-2-02; OLCC 13-2002, f. 10-25-02 cert. ef. 11-3-02;
OLCC 6-2012, f. 8-14-12, cert. ef. 9-1-12; OLCC 9-2014, f. 9-10-14. cert. ef. 10-1-14
845-003-0345
Public Attendance and Representation
of Parties
(1) Contested case hearings are closed
to non-participants and may only be attended by participants.
(2) Representation of parties
is governed by OAR 137-003-0550. The Commission does not allow the use of authorized
representatives described in 137-003-0555 in its contested case hearings.
Stat. Auth.: ORS 183.341(2), 471.730(5)
& (6)
Stats. Implemented: ORS 183.341(2)
Hist.: OLCC 9-2014, f. 9-10-14.
cert. ef. 10-1-14
845-003-0460
Exchange
of Exhibits and Witness Lists
(1) Prior to any contested case hearing,
the administrative law judge may order the participants to exchange exhibits and
witness lists.
(2) Each participant must
file exhibits and a list of witnesses with the administrative law judge and provide
a copy to the other participant(s) by the date established by the administrative
law judge. If there is no order by the administrative law judge, the exhibits and
witness lists must be filed and exchanged no later than 14 days before the hearing
date. If a participant fails to timely file and exchange the documents, a prehearing
conference will be convened upon request.
(3) Following the filing
and exchange of the witness lists and exhibits and before the start of the hearing,
participants shall immediately provide to the other participants and the administrative
law judge any newly discovered matter, such as a document or name of a witness.
(4) The requirements in sections
(1)–(3) of this rule do not apply to service permit refusal and revocation
cases. In these matters, prior to any contested case hearing, the administrative
law judge may issue a discovery order directing the participants to file and exchange
exhibits and witness lists by a date established by the administrative law judge.
Stat. Auth.: ORS 183.341(2), 183.425(2)
& 471.730(5) & (6)
Stats. Implemented: ORS 183.341(2)
& 183.425(2)
Hist.: OLCC 9-1998, f. 10-21-98,
cert. ef. 1-1-99; OLCC 1-2000(Temp), f. & cert. ef. 1-14-00 thru 7-11-00; OLCC
8-2000, f. 6-23-00, cert. ef. 7-1-00; OLCC 6-2012, f. 8-14-12, cert. ef. 9-1-12;
OLCC 9-2014, f. 9-10-14. cert. ef. 10-1-14
845-003-0590
Exceptions
(1) Only parties and limited parties
may file exceptions to a proposed order. Commission staff may file written comments
on the proposed order.
(2) Exceptions and comments
must be in writing and received by the Administrator of the Commission within 15
days of the mailing date of the proposed order to be considered by the Commissioners.
If an interpreter is required to translate a proposed order for one participant,
all participants shall have an additional 10 days to file exceptions or comments
to the proposed order.
(3) The Administrator may
grant a participant's written request to extend the period to file exceptions or
comments for good cause shown or by mutual agreement. The request must be received
within 15 days of the mailing date of the proposed order.
(4) Oral argument to the
Commissioners on written exceptions or comments will be taken at a regularly scheduled
meeting of the Commissioners. The participants shall be notified by the Commission
of the date, time, and place of the meeting where such argument will be heard.
Stat. Auth.: ORS 183.341(2) & 471.730(5)
& (6)
Stats. Implemented: ORS 183.341(2)
& 183.460
Hist.: OLCC 9-1998, f. 10-21-98,
cert. ef. 1-1-99; OLCC 1-2000(Temp), f. & cert. ef. 1-14-00 thru 7-11-00; OLCC
8-2000, f. 6-23-00, cert. ef. 7-1-00; OLCC 11-2003(Temp), f. & cert. ef. 8-15-03
thru 2-10-04; OLCC 21-2003, f. 11-24-03, cert. ef. 2-10-04; OLCC 6-2012, f. 8-14-12,
cert. ef. 9-1-12; OLCC 9-2014, f. 9-10-14. cert. ef. 10-1-14
845-003-0670
Retained
Authority of Commissioners
(1) The Commissioners retain all authority
not specifically delegated.
(2) The Commissioners delegate
to the Administrator the authority to grant or deny late hearing requests (frequently
called Requests for Relief From Default) as provided in OAR 137-003-0528.
(3) The Commissioners delegate
to the Administrator the authority to grant or deny requests to participate as a
party, limited party or interested agency in a contested case under OAR 137-003-0535
or 137-003-0540 and to make all decisions incidental to the request, including,
but not limited to, specifying the areas of participation and procedural limitations
of participation, granting or denying late petitions, shortening the time within
which responses to the petition shall be filed and/or postponing the hearing until
disposition is made of the petition.
(4) The Commissioners delegate
to the Administrator the authority to grant or deny a petition for an order to take
a deposition of a party pursuant to OAR 137-003-0572. This authority includes, but
is not limited to, the ability to designate the terms of the deposition such as
the location, manner of recording, time of day and persons permitted to be present
during the deposition.
(5) The Commissioners delegate
to the Administrator the authority to grant or deny discovery motions pursuant to
OAR 137-003-0568 submitted prior to referral of the contested case to the Office
of Administrative Hearings and, if applicable, after the assigned administrative
law judge issues a proposed order.
(6) The Commissioners delegate
to the Administrator the authority to respond to questions transmitted to the agency
as set forth in OAR 137-003-0635. The scope of the issues that may be transmitted
to the agency includes the agency’s interpretation of its rules and applicable
statutes and which rules or statutes apply to a proceeding.
(7) The Commissioners delegate
to the Administrator the authority to adopt a Final Order based upon an informal
disposition by settlement.
(8) The Commissioners delegate
to the Administrator the authority to adopt a Final Order by Default when the default
is the result of a party's failure to request a hearing or withdrawal of a hearing
request; or when a party, after requesting a hearing, fails to appear at the hearing
and the agency file does not constitute the sole record.
(9) The Commissioners delegate
to the administrative law judge the authority to prepare and issue a Final Order
by Default when the default is the result of a party's failure to appear at the
time scheduled for hearing and the agency file constitutes the sole record.
(10) The Commissioners delegate
to the Administrator the authority to adopt a Final Order based upon a proposed
order where exceptions are not filed timely and the order is not otherwise subject
to review by the Commissioners.
(11) The Commissioners delegate
to the Administrator the authority to grant or deny requests for extension of time
within which to file exceptions or comments to a proposed order, in conformity with
the requirements of OAR 845-003-0590(3).
(12) The Commissioners delegate
to the Administrator the authority to grant or deny a motion to postpone oral argument
to the Commissioners on any comments or exceptions to a proposed order.
(13) The Commissioners delegate
to the Administrator the authority to grant or deny requests for reconsideration
or rehearing and any stay request based on these requests for reconsideration or
rehearing when exceptions or a request to reopen the record has been made by the
same participant in the same case.
(14) The Commissioners delegate
to the Administrator the authority to grant or deny a request to stay the enforcement
of a Final Order pending judicial review and in cases where judicial review has
not been requested.
Stat. Auth.: ORS 183.341(2) & 471.730(5)
& (6)
Stats. Implemented: ORS 183.341(2)
Hist.: OLCC 9-1998, f. 10-21-98,
cert. ef. 1-1-99; OLCC 1-2000(Temp), f. & cert. ef. 1-14-00 thru 7-11-00; OLCC
8-2000, f. 6-23-00, cert. ef. 7-1-00; OLCC 9-2003, f. 6-27-03, cert. ef. 7-1-03;
OLCC 18-2003, f. 11-24-03, cert. ef. 12-1-03; OLCC 2-2005, f. 4-21-05, cert. ef.
5-1-05; OLCC 1-2008, f. 1-16-08, cert. ef. 2-1-08; OLCC 16-2010, f. 12-22-10, cert.
ef. 1-1-11; OLCC 6-2012, f. 8-14-12, cert. ef. 9-1-12; OLCC 9-2014, f. 9-10-14.
cert. ef. 10-1-14

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