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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 following 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: OAR 137-001-0005, and 137-003-0501 to 137-003-0700.

(2) The following 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: OAR 137-004-0010 to 137-004-0092. [

[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; OLCC 1-2016(Temp), f. & cert. ef. 2-23-16 thru 8-18-16

845-003-0220

Definitions

As used in OAR Chapter 845, division 003, the following definitions apply:

(1) “Administrator” means the Executive Director of the Oregon Liquor Control Commission or the Executive Director’s authorized delegates.

(2) "Charging Document" means a written notice that the Commission:

(a) Intends to grant or deny a new or renewed permit, license, certification, authorization, endorsement or approval;

(b) Will seek a sanction, civil penalty or withdraw an approval for a violation or failure to comply with ORS Chapter 471, ORS Chapter 473, ORS Chapter 475B, ORS 471.115, ORS 459A.700 to ORS 459A.740, and OAR Chapter 845; and

(c) Intends to modify, suspend or terminate a retail sales agent agreement, or modify, terminate or suspend a retail sales agent appointment.

(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 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) "Participant" means the person(s) named in the notice of a right to a contested case hearing and who requested a hearing, a person granted either party or limited party status in a contested case under OAR 137-003-0535, an agency participating in the contested case under OAR 137-003-0540, , 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.

(7) "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), 475B.025(2)(d)
Stats. Implemented: ORS 183.310 & 183.341(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; OLCC 1-2016(Temp), f. & cert. ef. 2-23-16 thru 8-18-16

845-003-0270

Request for a Contested Case Hearing and Response to Charging Document

(1) A party may contest a charging document or a tax imposed under ORS Chapter 473 by requesting a contested case hearing. The request for hearing must be in writing and timely filed. The time limit for filing a request is:

(a) 60 days after service of a charging document defined in OAR 845-003-0220(2)(a), with the following exceptions:

(i) 20 days after service of a charging document denying a renewal of a license under ORS 471.313(5);

(ii) 30 days after service of a charging document denying an application for a service permit; except that the time limit shall be 15 days for a denial that is based on failure to complete the alcohol server education course and examination; and

(iii) 30 days after service of a charging document denying an application for a marijuana handler permit; except that the time limit shall be 15 days for a denial that is based on a failure to complete the marijuana handler permit education course and examination.

(b) 30 days after service of a charging document defined in OAR 845-003-0220(2)(b), except that the time limit shall be 20 days if the violation is based on ORS 471.315(1)(c);

(c) 30 days after service of an audit issued by Financial Services Division of the Commission;

(d) Within the time period provided in the retail sales agent agreement between the Commission and the agent, 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) A written Answer to a charging document may be required. The Answer must be filed in writing and submitted to the Commission with the request for hearing. A party must file an Answer in response to:

(a) A charging document as defined in 845-003-0220(2)(a);

(b) A charging document as defined in 845-003-0220(2)(b), if the violation is a Category I or II violation; and

(c) A charging document as defined in 845-003-0220(2)(c).

(3) 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;

(c) A general denial is not sufficient to constitute an Answer.

(4) 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.

(5) When an answer is required under section (2), the party may amend the answer, except when doing so would be unduly prejudicial.

Stat. Auth.: ORS 183.341(2), 183.745 & 471.730(5) & (6), & 475B.025(2)(d)
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; OLCC 1-2016(Temp), f. & cert. ef. 2-23-16 thru 8-18-16

845-003-0331

Employee Representation at Contested Case Hearings

(1) As authorized by the Attorney General pursuant to ORS 183.452, Commission employees may appear and participate on behalf of the Commission in the following types of contested case hearings:

(a) The grant or denial of a new or renewed license, permit, certification, endorsement, approval or other authorization applied for or requested under ORS Chapters 459A, 471, 473, 475B and OAR Chapter 845;

(b) A withdrawal, suspension, revocation, cancellation, civil penalty or other sanction pursuant to ORS Chapter 471, ORS Chapter 473, ORS Chapter 475B, 459A.700 to 459A.740, or OAR Chapter 845;

(c) A violation or dispute based on a retail sales agent agreement; but not a matter where the Commission has proposed to terminate or suspend performance on the agreement; and,

(d) Privilege Tax disputes under ORS 473.060(4).

(2) The employee 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 the Commission’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.

(3) The employee representative may not make legal arguments. "Legal arguments" include, but are not limited to, arguments on:

(a) The jurisdiction of the Commission to hear the contested case;

(b) The constitutionality of a statute or rule or the application of a constitutional requirement to the Commission; and

(c) The application of court precedent to the facts of the particular contested case proceeding.

(4) When the Commission determines it is necessary to consult with the Attorney General's office, an administrative law judge will provide a reasonable period of time for an agency representative to consult with the Attorney General's office and to obtain either written or oral legal argument

Stat. Auth.: ORS 183.341(2), 183.452 & 471.730(5) & (6), & 475B.025(2)(d)
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; OLCC 1-2016(Temp), f. & cert. ef. 2-23-16 thru 8-18-16

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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