Loading
The Oregon Administrative Rules contain OARs filed through March 15, 2014
 
QUESTIONS ABOUT THE CONTENT OR MEANING OF THIS AGENCY'S RULES?
CLICK HERE TO ACCESS RULES COORDINATOR CONTACT INFORMATION

 

OREGON LIQUOR CONTROL COMMISSION

 

DIVISION 3

CONTESTED CASE PROCEDURES

845-003-0200

Statement of Purpose

(1) The purpose of these rules is to carry out the statutory policies contained in ORS 183.411 to 183.470, to give all persons involved in a contested case clear guidelines to follow and an understanding of what is expected of participants, 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

845-003-0210

Model Rules of Procedure

The Attorney General's Rules for the Office of Administrative Hearings, effective January 31, 2012, are hereby adopted by reference as permanent rules of procedure for contested case hearings conducted on behalf of the Liquor Control Commission, except to the extent supplemented in this division or any other division of chapter 845 of the Oregon Administrative Rules. The Attorney General's Rules for the Office of Administrative Hearings are set forth at OAR 137-003-0501 to 137-003-0700.

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

845-003-0220

Definitions

The following definitions apply to these rules, unless the context requires otherwise:

(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). The failure to perform a required act due to the press of business does not constitute good cause. Good cause does not include a lack of knowledge of the law, including these rules.

(6) "Participant" means any party involved in a particular contested case proceeding or the Commission.

(7) "Party" means:

(a) Any person, entity, government agency or body upon whom a charging document has been served;

(b) Any person, entity, government agency or body that has been granted party or limited party status.

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

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 with the Administrative Policy & Process Division 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 an answer. The answer must specify what statements in the charging document the party denies and what defense or defenses the party will rely upon. The answer must include an admission or denial of each factual matter alleged in the charging document and a statement of each relevant defense to the allegations. In these types of cases, a general denial is not sufficient to constitute an answer.

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

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, the Commission allows employees 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 involving violations, license or service permit applications, alcohol server education provider and instructor certification applications, and retail sales agent agreement violations or disputes.

(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

845-003-0340

Interpreters

(1) Notwithstanding OAR 137-003-0590(3)(c)(A) and (B), when a party or a witness in a contested case proceeding, who is an individual with a disability, or who by reason of place of birth or culture, speaks a language other than English and does not speak English with adequate ability to communicate effectively in the proceedings, timely requests an assistive communication device or an interpreter, the Office of Administrative Hearings shall appoint a qualified interpreter or assistive communication device whenever it is necessary to interpret the proceedings.

(2) The administrative law judge shall explain to the person with a disability or to the non-English speaking party that a written decision or order will be issued in English, and that the party may contact the interpreter for an oral translation of the decision, or contact the Office of Administrative Hearings to arrange for use of an assistive communication device, and that the translation or use of the assistive communication device itself is at no cost to the party. The interpreter shall provide to the administrative law judge and the party the interpreter's business telephone number and address. The telephone number and address shall be attached to the order mailed to the party. A copy of the order shall also be mailed to the interpreter for use in translation.

(3) For purposes of this rule:

(a) An "assistive communication device" means any equipment designed to facilitate communication by an individual with a disability;

(b) An "individual with a disability" means a person who cannot readily understand the proceedings because of deafness or a physical hearing impairment, or cannot communicate in the proceedings because of a physical speaking impairment;

(c) A "non-English speaking" person means a person who, by reason of place of birth or culture, speaks a language other than English and does not speak English with adequate ability to communicate effectively in the proceedings;

(d) A "qualified interpreter" means:

(A) For an individual with a disability, a person readily able to communicate with the individual with a disability, interpret the proceedings and accurately repeat and interpret the statements of the individual with a disability;

(B) For a non-English speaking person, a person readily able to communicate with the non-English speaking person and who can orally transfer the meaning of statements to and from English and the language spoken by the non-English speaking person. A qualified interpreter must be able to interpret in a manner that conserves the meaning, tone, level, style and register of the original statement, without additions or omissions. "Qualified interpreter" does not include a person who is unable to interpret the dialect, slang or specialized vocabulary used by the party or witness.

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 5-2006, f. 4-18-06, cert. ef. 5-1-06; OLCC 6-2012, f. 8-14-12, cert. ef. 9-1-12

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

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 if there is a circumstance beyond the control of the participant which in the discretion of the Administrator constitutes a compelling justification for postponement. 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

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 prepare and issue an order granting or denying 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 prepare and issue an order granting or denying 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 prepare and issue an order granting or denying 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 prepare and issue an order granting or denying 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 at 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 prepare and issue a Final Order based upon an informal disposition by settlement.

(8) The Commissioners delegate to the Administrator the authority to prepare and issue 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 ALJ 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 prepare and issue 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 prepare and issue an order granting or denying 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 summarily 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 prepare and issue an order granting or denying 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

The official copy of an Oregon Administrative Rule is contained in the Administrative Order filed at the Archives Division, 800 Summer St. NE, Salem, Oregon 97310. Any discrepancies with the published version are satisfied in favor of the Administrative Order. The Oregon Administrative Rules and the Oregon Bulletin are copyrighted by the Oregon Secretary of State. Terms and Conditions of Use

Oregon Secretary of State • 136 State Capitol • Salem, OR 97310-0722
Phone: (503) 986-1523 • Fax: (503) 986-1616 • oregon.sos@state.or.us

© 2013 State of Oregon All Rights Reserved​