Rollins v. State, Department of Public Safety, 042612 AKABC, 4FA-11-1678CI

Docket Nº:4FA-11-1678CI
Opinion Judge:MICHAEL P. McCONAHY, JUDGE
Party Name:ELIZABETH H. ROLLINS, Appellant, v. STATE OF ALASKA, DEPARTMENT OF PUBLIC SAFETY, ALCOHOLIC BEVERAGE CONTROL BOARD, Appellee.
Case Date:April 26, 2012
Court:Superior Court of Alaska
 
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ELIZABETH H. ROLLINS, Appellant,

v.

STATE OF ALASKA, DEPARTMENT OF PUBLIC SAFETY, ALCOHOLIC BEVERAGE CONTROL BOARD, Appellee.

No. 4FA-11-1678CI

Superior Court Of Alaska, Fourth Judicial District, Fairbanks

April 26, 2012

DECISION ON APPEAL

MICHAEL P. McCONAHY, JUDGE

I. Introduction

This matter is before the court on appeal from the Department of Public Safety, Alcoholic Beverage Control Board ("Board"). Appellant Elizabeth Rollins ("Rollins") applied for a waiver of the requirement to operate her alcoholic beverage dispensary license in 2009 for 30 eight hour days.1 The Board denied Rollins request for a waiver. Rollins appealed the Board's denial of the request and requested a formal hearing in front of an administrative law judge. The hearing took place on 10 November 2010. The administrative law judge affirmed the Board's decision on 10 March 2011. Rollins filed this appeal on 6 September 2011.

Appellant, Rollins, argues many points on appeal. The arguments boil down to the following issues: (1) whether an agreement Rollins made with the Board is clear; (2) whether this was a first waiver or a sixth waiver, (3) whether the Board participated in selective enforcement; (3) whether she failed to operate through no fault of her own; (4) whether a license resets upon operation; and (5) whether she had a fair opportunity to present her case. Appellee, the Board, argues that (1) substantial evidence supports the Board's decision, and (2) Rollins was not denied due process.

II. Facts2

In late 1990 Rollins applied to the Alcoholic Beverage Control Board to transfer a beverage dispensary license (liquor license) to herself. Rollins indicated she had "no premises" on the application as it was her intention to open an "early era" restaurant when she found the right location. The Board approved the transfer in September 1991. In December 1991 the Board granted Rollins a waiver of the 30-day annual operating requirement for the 1991 calendar year, and shortly thereafter granted Rollins's application for a renewal of her license without premises for 1992.

Rollins applied to transfer the license to a property she owned at 1403 Old Richardson Highway in North Pole in October 1992. On her application, she stated it was her intent to open a temporary facility called the "Alaska 1910" until she could find a better location. Upon notification by Board staff that she would need to apply for another waiver from the annual operating requirement if the license had not been operated for 30 days in 1992, she submitted a second waiver request. The Board approved the location transfer and waiver in March 1993; it also renewed her license for 1993. Shortly thereafter, Rollins was informed by Board staff that she would be issued a full license to operate when her premises were approved by the Department of Environmental Conservation (DEC) and the Fire Marshal's Office.

In May 1993, Rollins began renovations on the structure at 1403 Old Richardson Highway to prepare for its opening as a bar. She had the premises inspected by an employee of DEC on November 3, 1993. The inspector informed Rollins that the premises needed certain improvements prior to receiving the Department's approval to operate, including new surfaces for the walls, ceilings, and floor, additional sinks, separate male and female restrooms, and handicap access to comply with the Americans with Disabilities Act.

In November Rollins submitted another waiver request of the 30-day operating requirement for the 1993 calendar year. In her request, she indicated that she placed the license on the Old Richardson Highway building with the intention to estimate the cost of a possible rehabilitation of the building, and that she continued to seek a more suitable location. She further indicated that she had mistakenly thought she could obtain a temporary permit to operate from DEC and would not have to meet all of the building requirements. The Board approved her third waiver and the renewal of her license for 1994-95.

Rollins did not open her bar in 1994. She stated she had anticipated purchasing another location in the summer of 1994 but the purchase fell through, so she again decided to open the bar at 1403 Old Richardson Highway. However, the Richardson Highway building was burglarized and a new boiler was stripped, causing the pipes to freeze. In addition, new sinks, a new urinal, and new door were stolen. According to police reports, the property had a history of being vandalized and burglarized. Rollins could not locate new equipment and was unable to meet the necessary health and sanitation requirements in time to open the bar by December 1. In December 1994 Rollins requested her fourth waiver of the 30-day operating requirement, and in her request indicated that she intended to open the bar before the end of 1995. The Board granted this waiver.

Rollins did not open her bar in 1995. In April of 1995 her building was again burglarized and Rollins stated the heat and water systems were damaged when the burglars tried to remove the boiler. She decided to sell the building and liquor license and found a purchaser. Unfortunately, the intended buyer backed out of the agreement upon learning from a Fairbanks Daily News Miner article that Rollins's property was located within a two-square mile area that the DEC had declared a public health alert area due to groundwater contamination.

After the deal fell through, Rollins once again decided to open the bar at that location and began to repair the heating system damaged in the April 1995 break-in and to meet other health and safety requirements. However, she asserted that she put the renovation on hold when her son was diagnosed with cancer.

In December 1995 Rollins requested her fifth waiver of the 30-day annual operating requirement for the 1995 calendar year. In her request she indicated that she made an attempt to ready her structure but DEC would not issue her a health permit. She asserted that new equipment installations required by DEC involved extensive plumbing renovations and she would not be...

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