Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Rollins v. State, Dept. of Public Safety, Alcoholic Beverage Control Board (11/22/2013) sp-6842

Rollins v. State, Dept. of Public Safety, Alcoholic Beverage Control Board (11/22/2013) sp-6842

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                  

         corrections@appellate.courts.state.ak.us.  



                  THE SUPREME COURT OF THE STATE OF ALASKA  



ELIZABETH H. ROLLINS,                               )  

                                                    )        Supreme Court No. S-14760  

                          Appellant,                )  

                                                    )        Superior Court No. 4FA-11-01678 CI  

         v.                                         )  

                                                    )        O P I N I O N  

STATE OF ALASKA,                                    )  

DEPARTMENT OF PUBLIC                                )        No. 6842 - November 22, 2013  

SAFETY, ALCOHOLIC BEVERAGE ) 
 

CONTROL BOARD,                                      )
  

                                                    )
  

                          Appellee.                 )
  

                                                    )
  



                 Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                 Fourth Judicial District, Fairbanks, Michael P. McConahy,  

                                                   

                 Judge.  



                 Appearances:    Elizabeth  H.  Rollins,  pro  se,  North  Pole,  

                 Appellant.      Harriet   Dinegar   Milks,   Assistant   Attorney  

                 General, and Michael C. Geraghty, Attorney General, Juneau,  

                  for Appellee.  



                 Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                                                       

                 Bolger, Justices.   



                 BOLGER,  Justice.  



I.       INTRODUCTION  



                 Elizabeth  Rollins  appeals  the  superior  court's  decision  upholding  the  



Alcoholic Beverage Control Board's determination to deny her application for a waiver  

                                                                                    


----------------------- Page 2-----------------------

                                                                                                           

of the annual operating requirement for her liquor license.  Rollins argues that:  (1) the  



                             

Board's decision was not supported by the evidence; (2) she was improperly assigned  



                                                                                                      

the burden of proof; (3) the hearing before the administrative law judge violated her right  



           

to due process; and (4) the Board's selective enforcement of its statutes violated her right  



                                                                          

to equal protection.  We conclude that Rollins properly bore the burden of proof on the  



issue  of  whether  she  was  entitled  to  a  waiver,  that  the  record  supports  the  Board's  



                                                                                                                        

decision, and that the Board proceedings did not violate her constitutional rights.  We  



therefore affirm the superior court's decision to uphold the Board's action.  



II.        FACTS AND PROCEEDINGS  



                     Elizabeth Rollins purchased a beverage dispensary license (liquor license)  



                     1  

                          Rollins  attempted  to  open  a  bar  on  a  property  she  owned  on  Old  

in  late  1990.                                               

                                                                                                           2     Alaska  Statute  

Richardson   Highway,  but  was,  for   several  years,  unsuccessful.     



04.11.330(a)(3) contains a requirement that an applicant for renewal of a liquor license  

                                                                                                              



must operate the licensed premises "for at least 30 eight-hour days during each of the two  

                                                                                                                               



preceding calendar years . . . ."  Each year from 1991 through 1994, Rollins applied for  

                                                                                                                 3  Each year the  

                                                                                                                     

a waiver of the 30-day annual operating requirement for varying reasons. 

Board granted Rollins a waiver.4  



                                             

                     In  December  1995,  Rollins  applied  for  her  fifth  waiver  of  the  annual  



                                                                                                       

operating requirement.  In her application Rollins explained that she attempted to open  



           1         Rollins v. State, Dep't of Revenue, Alcoholic Beverage Control Bd                                          ., 991  



P.2d 202, 205 (Alaska 1999).  



           2         Id.  



           3  

                                            

                     Id.  at 205-06  (detailing Rollins's struggles to complete the renovations  

required to obtain the permits necessary to open the bar and her attempts to sell the  

property and open the bar at another location).  



           4         Id. at 205.  



                                                                  -2-                                                            6842
  


----------------------- Page 3-----------------------

the bar, but needed extensive renovations in order to receive a health permit, and she  



          

could not complete those renovations by December 1, 1995.  The Board denied her  



             

request for a waiver under the regulation governing a third or subsequent consecutive  



                                   5 

                                                                                                                   

application for a waiver.   Because a waiver was required to renew her license, the Board  



also denied the renewal of her liquor license.  Rollins appealed.  



                    In Rollins v. State, Department of Revenue, Alcoholic Beverage Control  



                                                         

Board , we upheld the superior court's decision upholding the Board's determination that  



                                                             

the Board had the authority to enact the regulation governing consecutive applications  

for waiver and held that the Board's decision was supported by substantial evidence.6  



However, we granted Rollins leave to file an Alaska Civil Rule 60(b)(3) motion for relief  



                                                                                                                               7  

                                                                                                           

from judgment based on a misrepresentation the Board had made in the superior court. 



                                                                                            

On  remand,  the  superior  court  granted  Rollins  relief  from  its  earlier  judgment  and  



                                                                                                

reversed the Board's denial of the waiver application.  In 2003, the Board sent Rollins  



a letter proposing terms for a settlement (the 2003 settlement).  Rollins agreed to the  



                                                                                     

terms outlined in the letter.  According to the terms, the Board would grant her a fifth  



consecutive waiver "with the express warning that it is a final waiver of the operating  



                                                                                                                  

requirement and no future waivers will be granted for this license."   The letter also  



          5         Former 15 Alaska Administrative Code (AAC) 104.170(e) (1996) (now  



numbered 3 AAC  304.170(e)) provided, in relevant part, that the Board "will, in its  

                             

discretion, deny a third or subsequent consecutive application for waiver unless the  

licensee clearly shows that the licensed premises were not operated because the premises  

were condemned or substantially destroyed by any cause."  



          6         Rollins , 991 P.2d at 206-11.  



          7  

                                                                  

                    Before the superior court, the Board represented that other licensees had  

                                                       

been treated equally to Rollins.  But the Board acknowledged to a third party that it had  

become stricter in enforcement, and Rollins was the first person to be affected by this  

stricter enforcement.  Id. at 212-13.  



                                                              -3-                                                        6842
  


----------------------- Page 4-----------------------

specified that the license may only be transferred to another licensee with an express  

                                                                                              



warning  that  "[t]he  Board  currently  reviews  waiver  histories  by  license"  and  "[t]he  



requirement that the license be operated for 30 consecutive days in the calendar year  



2004 will transfer to the new licensee."  



                                                             

                    After the 2003 settlement, Rollins applied to transfer her license to a new  



              

location  on  Old  Airport  Way.    Rollins  operated  at  the  Old  Airport  Way  location  



beginning  in  August  2004.    In  May  2005,  Rollins  sold  the  license  to  Tracy  Hester.  



                                                                                                           

Under the agreement, Rollins retained a security interest in the license.  Hester operated  



                                                                                                                

the license until mid-2006 when she disappeared and became delinquent in her payments  



                                                   

to Rollins.  Although Hester had disappeared, Rollins claims the building owner at Old  



Airport Way continued to operate the license.  



                    Rollins  commenced  foreclosure  proceedings  on  the  license  in  October  



                                                                                                             

2006.       She  also  renewed  the  license.                 At  some  point  in  mid-2007,  Rollins  began  



operating the license again.  



                    Rollins operated the license at the Old Airport Way location until May or  



                                                                                                          

June 2008.  After she repeatedly noticed her alcohol was missing and  received reports  



                                                                     

that  the  building  owner  had  been  opening  the  bar  after  hours,  Rollins  shut  down  



                                                                                                          

operations and vacated the property.  However, the license remained registered to the  



Old Airport Way location.  



                                                                                                      

                    In June 2009, Rollins saw an advertisement indicating that another bar was  



                                                                                  

moving to the Old Airport Way location.  She filed an application to transfer her license  



                                                      

from the Old Airport Way location to "No Premises."  Around the same time, the Board  



became aware that Rollins had lost the lease on the Old Airport Way location and had  



                                                                                                                     

not operated her license since May 2008.  In a letter to Rollins sent in August 2009, the  



Board  informed  Rollins  that  she  "must  find  a  suitable  location  and  file  a  transfer  



                                          

application, and be able to operate the license for at least 30 eight-hour days in 2009."  



                                                               -4-                                                         6842
  


----------------------- Page 5-----------------------

The letter reminded Rollins that under the terms of the 2003 settlement letter, no future                                



waivers would be granted for the license.  



                                           

                     In an attempt to operate her license, Rollins prepared a business plan and  



                                                                                                     

tried to obtain a bank loan.  But the bank declined to make a loan. Rollins inquired about  



leasing the premises formerly occupied by the bar that had moved to the premises she  



                                                                                                                     

had vacated, but she did not want to share the space with a restaurant that had already  



leased  part  of  the  property.    Rollins  also  spoke  with  a  real  estate  agent  about  other  



possible  locations  and  placed  an  ad  in  the  newspaper  offering  the  license  for  sale.  



                                                                                                                    

                     On October 21, 2009, Rollins filed an application for waiver, marking her  



application as the "first waiver request."  In her application, Rollins indicated that she  



                                                       

planned to operate the license at the Old Richardson Highway location (the same location  



                                                                                                             

that was the subject of the 1992-95 waivers), but noted that she would need to complete  



                                                    

renovations to convert the space into a bar and obtain the necessary permits.  After the  



            

Board voted to deny Rollins's waiver application at a meeting in May 2010, Rollins  



invoked her right to a formal hearing.  



                     An administrative hearing was held on November 10, 2010 in front of an  



                                                                                                                        

Administrative Law Judge (ALJ).  Rollins represented herself at the hearing.  The ALJ  



issued a proposed decision affirming the Board's denial, and the Board adopted the  



                                              

decision on March 24, 2011. Rollins filed a request for reconsideration, which the Board  



                                                                                                                       

denied. Because Rollins's application for waiver was denied, her application for license  



                                       8  

renewal was also denied.   



                     Rollins  appealed  to  the  superior  court.    The  superior  court  upheld  the  



                            

Board's decision and rejected Rollins's due process and selective enforcement claims.  



Rollins now appeals to this court.  



          8          See AS 04.11.330(a)(3); 3 AAC 304.170(g).  



                                                                 -5-                                                              6842  


----------------------- Page 6-----------------------

III.	      STANDARD OF REVIEW  



                     Where  the  superior  court  acts  as  an  intermediate  appellate  court,  we  

                                                                                                      

"independently  review  the  merits  of  the  underlying  administrative  decision."9                                         The  

                                      



"substantial evidence" standard applies to questions of fact, and the "reasonable basis"  

                                                                                             

test applies to questions of law involving agency expertise.10  "We apply our independent  

                                               



judgment  to  questions  of  law   that  do  not  involve  agency  expertise,   including  

                                                                                       

constitutional questions."11  



IV.	      DISCUSSION  



                     Alaska Statute 04.11.330(a)(3) provides that  



                     an  application for renewal shall be denied if . . . the applicant         

                     has  not  operated  the  licensed  premises  for  at  least  30  

                     eight-hour days during each of the two preceding calendar  

                     years, unless the board determines that the licensed premises  

                                                                                 

                     are under construction or cannot be operated through no fault  

                                                                           

                     of the applicant.  

                                                



The implementing regulation, 3 AAC 304.170(b), provides that a licensee may apply to  

                                                                                                                         



the board for a waiver of the operating requirement in AS 04.11.330(a)(3) and "the board  

                                                                              



will determine whether, through no fault of the licensee or because the premises are  



under construction, the licensed premises could not be operated for the required time[.]"  



          A.	        The Board Did Not Err When It Assigned The Burden Of Proof To  

                                                                                                   

                     Rollins.  



          9          Stevens v. State of Alaska, Alcoholic Beverage Control Bd., 257 P.3d 1154,   



 1156 (Alaska 2011).  



           10       Rollins , 991 P.2d at 206 (quoting Handley v. State, Dep't of Revenue , 838  

                                                                                                   

P.2d 1231, 1233 (Alaska 1992).  



           11        Stevens, 257 P.3d at 1156 (quoting Squires v. Alaska Bd. of Architects,  

                                                                                          

Eng'rs, & Land Surveyors , 205 P.3d 326, 332 (Alaska 2009)) (internal quotation marks  

omitted).  



                                                                -6-	                                                        6842
  


----------------------- Page 7-----------------------

                      The   ALJ  concluded  that  Rollins  bore  the  burden  of  proof  because  she  



sought to change the status quo by requesting a waiver from the operating requirement.                



Rollins argues that the Board should bear the burden of proof.  Rollins relies on                                                  Alaska  



Alcohol Control Board v. Malcolm, Inc. , where this court held that in denying                                                 a renewal  

                                                                              12  In reaching that conclusion, this court  

of a license, the Board bears the burden of proof.                                                                               



relied on the fact that a person who seeks renewal of a liquor license is designated as the  

                                                                                          



                    13  

respondent.              In State, Alcoholic Beverage Control Board v. Decker, however, this court  

                                                                                                                                 



placed the burden of proof on a liquor license applicant, stating that "[o]rdinarily the  

                                

party seeking a change in the status quo has the burden of proof."14  



                      After Malcolm and Decker , the Administrative Procedure Act (APA) was  

                                 

amended  to  place  the  burden  of  proof  on  the  respondent  in  certain  circumstances.15  



Alaska Statute 44.62.460(e) now provides:  



                      Unless a different standard of proof is stated in applicable  

                                                      

                      law, the  



                      (1) petitioner has the burden of proof by a preponderance of  

                                                                           

                      the     evidence          if    an     accusation          has      been       filed     under  

                      AS 44.62.360 or if the renewal of a right, authority, license,  

                                                       

                      or privilege has been denied;  



                      (2) respondent has the burden of proof by a preponderance of  

                                                      

                      the  evidence  if  a  right,  authority,  license, or  privilege  has  

                                                                                              

                      been initially denied or not issued.  



           12         391 P.2d 441, 444 (Alaska 1964).  



           13         Id. at 444.  



           14         700 P.2d 483, 485 (Alaska 1985).  



           15         Ch. 63,  8, SLA 1995.  



                                                                     -7-                                                               6842
  


----------------------- Page 8-----------------------

                    In  this  case,  Rollins  initiated  the  administrative  proceeding  by  filing  a  



                                                                                        

waiver of operation application under AS 04.11.330(a)(3).  This statute provides that an  



application for renewal must be denied if "the applicant has not operated the licensed  



                                                                                

premises for at least 30 eight-hour days during each of the two preceding calendar years,  



                                                 

unless the board determines that the licensed premises are under construction or cannot  



                                                                            16  

be  operated  through  no  fault  of  the  applicant[.]"                          In  addition,  the  implementing  



regulation clearly requires a licensee to make a special application for this waiver and  



                                                                                      17  

                                                                                          Because the licensee must  

clearly requires the Board to make the same determination.  



                                         

apply  for  a  waiver,  and  because  the  Board  must  make  an  affirmative  no-fault  



                                                             

determination, it is clear that a waiver of operation is a privilege, and that the applicant  



                                                      

must affirmatively prove the lack of fault.  Thus, the Board properly assigned the burden  



of proof to the respondent in her application for a waiver.  



                    The  ALJ  also  relied  on  a  regulation  associated  with  the  APA,  which  



                                                                                                                 

provides that "[u]nless otherwise provided by applicable statute or regulation, the burden  



of proof and of going forward with evidence is on the party who requested the  



                    18  

hearing. . . ."     Here it is Rollins who exercised her right to a hearing after the Board  



                                                                                       

initially denied her application for waiver.  Therefore, this regulation also supports the  



                                         

ALJ's recommendation on the burden of proof.  We conclude that the Board correctly  



required Rollins to bear this burden.  



          B.        The Board's Decision Was Supported By Substantial Evidence.  



                    Under  AS  04.11.330(a)(3),  the  Board  was  required  to  deny  Rollins's  



                                                       

application unless it determined that her failure to operate under the license was not her  



          16        AS 04.11.330(a)(3) (emphasis added).  



          17        3 AAC 304.170(b).  



          18        2 AAC 64.290(e).  



                                                              -8-                                                          6842  


----------------------- Page 9-----------------------

fault.    Rollins  argues  that  the  ALJ  erred  when  he  ruled  against  her  on  this  issue.  



                                                                                                                       

                    At the hearing, Rollins presented little evidence regarding her efforts to  



                                                                                                        

operate her license after she vacated the Old Airport Way location. Rollins testified that  



                                       

between May 2008 and  May 2009, she had approximately six conversations with a  



potential buyer.  In August 2009, she investigated the possibility of moving to another  



                                                                                                                            

location.  Although it appears the location was equipped to operate a bar, Rollins did not  



                                         

want to share the location with a restaurant that was already operating there.  In October  



                                                                                      

2009, Rollins prepared a business plan and spoke with a bank about obtaining a loan, but  



she did not receive the loan.  Rollins also spoke with a real estate agent about other  



possible locations, and she placed an ad in the newspaper offering the license for sale.  



                                                                      

                     The ALJ found that Rollins did not establish the requisite absence of fault.  



                                                                                  

First, the ALJ explained that the problems at the Old Airport Way location were within  



Rollins's control, and she did not take reasonable steps to eliminate them before she  



voluntarily left in May 2008.  Second, the ALJ found that Rollins did not take reasonable  



                                                                            

steps to operate the license again in 2009.  Third, the ALJ commented that Rollins failed  



                                                                

to show her plan to operate the license at the Old Richardson Highway location (where  



                                                                                                   

she previously failed to operate the license) was feasible or that it could be accomplished  



                                                                                                         

in a reasonable time.  The ALJ relied on this court's holding that the purpose of the  



                                                                                                     

operating requirement was  to "prevent a licensee from holding onto one of a limited  



                                                                                     

number  of licenses  without operating  it . . . beyond  a  reasonable  time  necessary  to  



                                                                          19  

construct or otherwise establish premises. . . ."                             The ALJ ultimately concluded that  



Rollins was not entitled to a waiver because she did not take reasonable steps to operate  

                                                                                                              



the license and instead chose not to operate the license for business reasons.  



          19        Rollins , 991 P.2d at 209.  



                                                                -9-                                                              6842  


----------------------- Page 10-----------------------

                     Rollins challenges several of the ALJ's factual findings.  She argues that   



the ALJ improperly speculated about measures Rollins could have taken to resolve issues  



                                                                                                     

at the Old Airport Way location when he found that her actions were not reasonable.  



                                                                                         

Rollins also asserts that there were legitimate reasons to reject the alternative location  



and clarifies that her advertisement for sale of the license ran in the newspaper for six  



weeks.  



                     We note that the Board was required to deny Rollins's application for a  



                                                                                            

waiver unless it found that the licensed premises could not be operated and that Rollins  



                                                     20  

was not at fault for this condition.                     In this appeal, we decide only whether the ALJ's  



                                                                                              21  

conclusion on this issue is supported by substantial evidence.                                    In deciding whether the  



license was not operated through no fault of the applicant for waiver, it was appropriate  



for the ALJ to consider the options available to the applicant.  



                                                                                                                     

                     The evidence Rollins presented at the hearing showed that she did not take  



reasonable steps to operate her license.  Rollins admitted she voluntarily left the Old  



Airport Way location in May 2008 and that her lease was still valid.  She was concerned  



        

that the building manager was operating her license after hours, but she presented no  



                    

evidence of steps she took to prevent this after-hours operation.  Rollins presented no  



                                                                             

evidence that she attempted to operate her license from May 2008 to May 2009.  Rollins  



                                                                        

did investigate other options to operate or sell the license, but ultimately rejected them.  



        

She considered but rejected an opportunity to lease another location.  Rollins tried to  



obtain a loan to buy property but the bank refused.  



          20         See AS 04.11.330(a)(3).  



          21        Rollins , 991 P.2d at 206 (the "substantial evidence" test applies to questions  



of fact).  



                                                                -10-                                                              6842  


----------------------- Page 11-----------------------

                    At the hearing, Rollins was asked if it was correct that she "could have  

                                                                                                            



operated [the license], but . . . chose not to do that because . . . it [wasn't] profitable  



                                                                                            

enough."  She responded, "That's exactly right.  I could not afford to do that. . . . I don't  



                                                                                      

feel like throwing all my retirement monies away."  She explained that she couldn't sell  



                   

the  license  because  she  wanted  cash,  and  she  couldn't  find  a  buyer.    Based  on  this  



evidence, the ALJ reasonably concluded that Rollins's failure to operate the license was  



the result of business decisions.     



                    Although in her application Rollins stated that she planned to operate the  



license at the Old Richardson Highway location, she presented no evidence of actions  



                                                                                                               

she had taken which would make it possible to operate a bar there.  And, if her previous  



                                                                                                               

attempts  to  operate  at  that  location  were  any  indication,  the  premises  likely  needed  



                                                                                                   

significant renovations.  We conclude that the Board's ultimate finding - that Rollins  



                                                                                             

failed  to  establish  that  she  was  without  fault  in  failing  to  operate  her  license  -  is  



                                                                         22  

supported by substantial evidence in the record.                             



          C.        Rollins Was Not Denied Due Process.  



                    Rollins argues that she was denied due process at the hearing.  She argues  



that she understood that the hearing would address the effect of the settlement letter and  



whether this was her first application for waiver. Rollins also asserts that the hearing was  

                                                                           



generally unfair and that she was "denied the right to interject and present her findings  

                                             



in her own word and manner."  



          22  

                                                                                   

                    Because the ALJ treated her application as a first application for a waiver  

and because the ALJ did not rely on the 2003 settlement, we do not need to address  

                                                                                                                          

Rollins's arguments that her application should be treated as a first application or that the  

Board cannot place "a lifetime waiver restriction on a license."  



                                                               -11-                                                             6842  


----------------------- Page 12-----------------------

                                                                                                                 

                    Rollins correctly notes that a litigant has a due process right to fair notice  

                                       23   But the record does not support Rollins's argument that she  

                                            

of the issue to be litigated.  



was misled about the issue to be addressed.  After Rollins exercised her right to a formal  

                                                                                                                    



hearing,  the  Board  filed  and  served  a  statement  which  framed  the  issue  as  follows:  



                                                                                 

"Should the Alcoholic Beverage Control Board grant [Rollins's] request, dated October  



                                     

21, 2009, for waiver of the AS 04.11.330 requirement to operate its alcoholic beverage  



dispensary license - whether the requested waiver be viewed as a first or a sixth  



waiver . . . ?"   



                    At a pre-hearing conference, the ALJ clarified the issue by explaining to  



                                                                     

Rollins that the effect of the settlement letter and whether this application was the sixth  



                                                                                                   

application for a waiver were topics that could be addressed.  But the ALJ reiterated that  



the ultimate question was "whether a waiver should be granted under the circumstances  



                                         

in  2009"  and  explained  that  Rollins  would  need  to  present  evidence  about  the  



                                          

circumstances in 2009 that supported a waiver.  When Rollins indicated that she did not  



                                                       

understand,  the  ALJ  repeated  that  the  Board  would  have  to  make  a  decision  about  



                                                                          

whether to grant a waiver "regardless of what happened in 2003 and the settlement  



agreement."  



                                                                                                      

                    We  have  explained  that  "due  process  requires  that  a  license  holder  be  



                                   

provided  with  notice  and  an  opportunity  to  be  heard  in  a  meaningful,  impartial  

              24  Here, Rollins does not allege that there were any procedural defects in her  

hearing."                                                                                                      



          23        See Cushing v. Painter, 666 P.2d 1044, 1046 (Alaska 1983) (reversing a  



final  child  custody  decision  made  after  a  hearing  scheduled  to  determine  interim  

                                                        

custody).  



          24        Stevens v. State of Alaska, Alcoholic Beverage Control Bd., 257 P.3d 1154,  

                                                            

1160  (Alaska  2011)  (quoting Rollins ,  991  P.2d  at  211)  (internal  quotation  marks  

                                                                                  

                                                                                                               (continued...)  



                                                               -12-                                                        6842
  


----------------------- Page 13-----------------------

hearing or that it did not comply with the APA.                        She was given an opportunity to speak  



and to present and cross-examine witnesses. When she testified, the ALJ asked questions      



regarding  her  actions  over  the  period  from   2008  to  2009.    During  the  questioning,  



Rollins  spoke  freely.    And  at  the  end  of  his  questions,  the  ALJ  asked  if  there  was  



anything Rollins wanted to add.  She replied, "Nope that's it."  



                                                                                                 

                    Rollins's arguments that she was denied fair notice and a fair hearing are  



not supported by the record.  We therefore conclude that Rollins was not denied due  



process.  



                                                                                                          

          D.	       The Board Did Not Violate Rollins's Right To Equal Protection By  

                    Engaging In Selective Prosecution.  



                                                      

                    Rollins argues that the Board's decision amounts to selective prosecution  



because the Board has previously granted multiple waivers to other license holders.  In  



our previous decision in this case, we explained that "[i]n order to make a prima facie  



case that the Board selectively enforced the annual operating requirement . . . Rollins  



would have to show that the Board intended to discriminate against her based on an  



                                                           25  

arbitrary or unjustifiable classification."                    As in the previous case, Rollins has failed to  



                                                                26  

offer any evidence of discriminatory intent.                        



                    Both the current executive director and the former executive director of the  

                                  



Board testified that Rollins's case is unique.  The former attorney for the Board agreed.  

                                                                                    



Although the current executive director could not remember if the Board had ever denied  

                                                                                        



a first application for waiver, she also testified that there are situations when a first  



          24        (...continued)  



omitted).  



          25       Rollins , 991 P.2d at 210.  



          26        See id.  



                                                             -13-	                                                      6842
  


----------------------- Page 14-----------------------

                                                                                          

waiver might be rejected.  Rather, the Board inquires as to the reasons for the application  



                                                                                

in order to make the required determination under AS 04.11.330(a)(3).  The Board also  



                                      

considers  the  history  of  a  license  in  evaluating  whether  the  licensee  is  entitled  to  a  



                                                                                  

waiver.  The former attorney for the Board testified that in determining whether to grant  



a waiver, the Board considers whether a waiver is in the public interest.  



                   This testimony suggests that the Board does not automatically grant first  



and second applications for waiver, and that the Board generally considers the licensee's  



                                   

history when deciding whether to grant a waiver.  We conclude that Rollins has failed  



to  show  that  the  Board's  decision  in  this  case  involved  any  arbitrary  or  unjust  



classification that would violate her right to equal protection.  



V.        CONCLUSION  



                                                                      

                   We AFFIRM the superior court's decision to uphold the Board's decision  



                                               

denying  Rollins's  application  for  a  waiver  of  the  annual  operating  requirement.  



                                                            -14-                                                       6842
  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC