E & J Lounge v. Liquor Com'n of Honolulu
Decision Date | 24 December 2007 |
Docket Number | No. 27940.,27940. |
Citation | 174 P.3d 367,116 Haw. 528 |
Parties | E & J LOUNGE OPERATING COMPANY, INC., a Hawai`i corporation, Appellant-Appellee/Cross-Appellee, v. LIQUOR COMMISSION OF the CITY AND COUNTY OF HONOLULU, Appellee-Appellant/Cross-Appellee, and H. James Stahl, Tyson J. Thomas, Randi Thomas, Emily Reed, and Bill Maxwell, Intervenors-Appellees, Intervenors-Cross-Appellants. |
Court | Hawaii Court of Appeals |
Duane W.H. Pang, deputy corporation counsel, City and County of Honolulu, on the briefs, for appellee-appellant/cross-appellee.
Christian P. Porter and David W.H. Chee (Brooks Tom Porter & Quitiquit), Honolulu, on the briefs, for appellant-appellee/cross-appellee.
H. James Stahl, Randi Thomas, Tyson J. Thomas, Bill Maxwell, and Emily Reed, on the briefs, intervenors-appellees/intervenors-cross-appellants pro se.
This secondary appeal by Appellant-Appellee/ Cross-Appellee E & J Lounge Operating Company, Inc. (E & J) from the denial of a liquor dispenser general license (liquor license) raises two issues: (1) whether Appellee-Appellant/Cross-Appellee Liquor Commission of the City and County of Honolulu (the Commission) was required to hold a "contested case" hearing in accordance with Hawaii Revised Statutes (HRS) chapter 91 before deciding whether to approve or deny E & J's application for a liquor license, and (2) whether the Circuit Court of the First Circuit (the circuit court) had jurisdiction to review the Commission's denial of E & J's application for a liquor license.
The circuit court1 concluded that it had jurisdiction over E & J's appeal pursuant to HRS § 91-14 (1993 & Supp.2006)2 because "[t]he public hearings held before the Commission prior to issuance of a Liquor License are adjudicatory in nature and are therefore contested cases" subject to the procedural requirements for contested cases set forth in HRS chapter 91. The circuit court also held that the Commission violated HRS § 91-11 (1993)3 in denying E & J's application because although one of the Commissioners who participated in the final decision was not present for the first day of public hearings on the application, the Commission rendered a final decision without first issuing a proposed decision and providing an opportunity for E & J to file exceptions and present arguments on the proposed decision, one of the procedural requirements for a contested case under HRS chapter 91. Additionally, the circuit court concluded that the Commission violated HRS § 281-59(b) (Supp.2006)4 by failing to "make a ruling on corrections, additions or subtraction of the persons required to be notified of the public hearing[.]" The circuit court thereupon vacated5 the Commission's decision and remanded the case to the Commission with instructions for further proceedings on remand.
In light of Singleton v. Liquor Comm'n, 111 Hawai`i 234, 140 P.3d 1014 (2006), we agree that the circuit court had jurisdiction pursuant to HRS § 91-14 to review the denial of E & J's liquor-license application. However, we conclude that the Commission was required to comply with the more specific "public hearing" procedures set forth in HRS chapter 281, rather than the "contested case" procedures delineated in HRS chapter 91, in deciding whether to grant or deny E & J's liquor-license application. Accordingly, we vacate the circuit court's judgment and remand for further proceedings consistent with this opinion.
HRS chapter 281 provides the statutory framework that governs the operations and procedures of the county liquor commissions in Hawai`i. Pursuant to HRS § 281-17 (Supp.2006), the various commissions are vested with extensive jurisdiction and a broad array of ministerial, policy-making, rule-making, adjudicatory, and imposition-of-penalty powers. HRS § 281-17 states, in relevant part:
Jurisdiction and powers. (a) The liquor commission, within its own county, shall have the sole jurisdiction, power, authority, and discretion, subject only to this chapter:
(1) To grant, refuse, suspend, and revoke any licenses for the manufacture, importation, and sale of liquors;
. . . .
(4) From time to time to make, amend, and repeal such rules, not inconsistent with this chapter, as in the judgment of the commission seem appropriate for carrying out this chapter and for the efficient administration thereof, and the proper conduct of the business of all licensees, including every matter or thing required to be done or which may be done with the approval or consent or by order or under the direction or supervision of or as prescribed by the commission; which rules, when adopted as provided in chapter 91 shall have the force and effect of law;
. . . . (b) Subject only to this chapter, the commission or board and each member thereof shall have the same powers respecting the administering of oaths, compelling the attendance of witnesses and the production of documentary evidence, and examining the witnesses as are possessed by a circuit court, except that the commission or board and each member thereof shall not be bound by the strict legal rules of evidence. In addition, the commission or board shall have the power to require the production of, and to examine any books, papers, and records of any licensee which may pertain to the licensee's business under the license or which may pertain to a matter at a hearing before the commission or board or to an investigation by the commission or board.
The exercise by the commission or board of the power, authority, and discretion vested in it pursuant to this chapter shall be final and shall not be reviewable by or appealable to any court or tribunal, except as otherwise provided in this chapter or chapter 91.
(Emphases added.) The Commission's broad discretion is further reflected in HRS § 281-59(c) (Supp.2006), which flatly states: "The commission may . . . with like discretion . . . [g]rant a license to one person in preference to another, without reference to any priority in the order of filing of the applications[.]"
Under the procedures established by HRS chapter 281, no liquor license may be issued by the Commission unless and until a thorough inspection has been conducted of the premises for which a liquor license is sought and the Commission is satisfied that the applicant is fit and will carry on the business in a reputable way. HRS § 281-51 (1993).6 Obtaining a liquor license involves multiple steps:
(1) The applicant must file an application for a liquor license, verified by oath of the applicant or its officers, that contains the information prescribed by statute and the Commission's rules, HRS § 281-53 (Supp. 2006);7 (2) The Commission staff conducts a criminal history record check of the applicant, HRS § 281-53.5 (Supp.2006);8
(3) The application is referred to an investigator for investigation, HRS § 281-55 (1993);9
(4) The investigator must file a written report with the Commission that includes the information required by HRS § 281-56 (Supp.2006)10 and the investigator's recommendation as to the fitness of the license applicant, id.;
(5) The Commission may hold a preliminary hearing, with prior notice to persons submitting a written request for notice, after which the Commission may either deny the application or schedule a public hearing on the application, HRS § 281-57(a) (Supp. 2006);11
(6) If a public hearing is to be held, public notice of the hearing must be published in the applicable county at the applicant's expense at least once in each of two consecutive weeks, the date of the hearing being not less than forty-five days after the first public notice, which "shall require that all protests or objections against the issuance of the license applied for shall be filed with the administrator of the commission at or before the time of hearing[,]" HRS § 281-57(b) (Supp.2006);12
(7) The applicant must mail notice of the time and place of the public hearing to each of the following: (a) "Not less than two-thirds of the owners and lessees of record of real estate and owners of record of shares in a cooperative apartment or to those individuals on the list of owners as provided by the managing agent or governing body of the shareholders association [(collectively, neighboring property owners and lessees)] situated within a distance of five hundred feet from the nearest point of the premises for which the license is asked [(500-foot radius),]" and not less than three-fourths of the neighboring property owners and lessees situated "within a distance of one hundred feet from the nearest point of the premises for which the license is asked [(100-foot radius),]" HRS § 281-57(c)(1) (Supp.2006);13 (b) "not less than two-thirds of the registered voters residing within, and small businesses [(registered voters and businesses)] situated within" the 500-foot radius, and not less than three-fourths of the registered voters and businesses situated within the 100-foot radius, HRS § 281-57(c)(2) (Supp.2006);14 and (c) the residents, collectively, of each condominium project and cooperative apartment within the 500-foot radius, in care of the manager of the project or apartment, HRS § 281-57(c)(3) (Supp.2006);15
(8) Prior to the public hearing and no more than seven days after the mailing of the required notices, the applicant must file with the Commission: (a) an affidavit attesting that the notices of public hearing have been mailed to the required addressees in compliance with the statutory requirements; (b) a master list of the names and addresses of every neighboring owner and lessee, registered voter, business, condominium project, and cooperative apartment within the 500-foot and 100-foot radiuses; and (c) a mailing list of the names and addresses of every neighboring property owner and lessee, registered voter, business, condominium project, and...
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E & J Lounge Operating Co. v. Liquor Com'n
...remanding the case to the court to determine Petitioner's appeal on the merits. See E & J Lounge Operating Co. v. Liquor Comm'n, City & County of Honolulu, 116 Hawai`i 528, 556, 174 P.3d 367, 395 (App.2007). We hold that (1) public hearings on liquor license applications held by the liquor ......
- E & J Lounge Operating Co., Inc. v. Liquor Com'n of City and County of Honolulu