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Rollins v. State, Dept. of Revenue, Alcoholic Beverage Control Board (11/12/99) sp-5200
Rollins v. State, Dept. of Revenue, Alcoholic Beverage Control Board (11/12/99) sp-5200
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.
THE SUPREME COURT OF THE STATE OF ALASKA
ELIZABETH ROLLINS, d/b/a )
ALASKA 1910, )
) Supreme Court No. S-8601
Appellant, )
) Superior Court No.
v. ) 4FA-97-4 CI
)
STATE OF ALASKA, DEPARTMENT ) O P I N I O N
OF REVENUE, ALCOHOLIC )
BEVERAGE CONTROL BOARD, )
)
Appellee. ) [No. 5200 - November 12, 1999]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Richard D. Savell, Judge.
Appearances: Elizabeth Rollins, North Pole,
pro se. Linda L. Kesterson, Assistant
Attorney General, Anchorage, Bruce M. Botelho, Attorney General,
Juneau, for appellee.
Before: Eastaugh, Fabe, Bryner, and
Carpeneti, Justices. [Matthews, Chief
Justice, not participating.]
CARPENETI, Justice.
I. INTRODUCTION
Elizabeth Rollins appeals the decision of the superior
court affirming the Alcoholic Beverage Control Board's decision to
deny her renewal of an alcohol beverage dispensary license because
she failed to meet the annual operational requirements specified by
statute. We affirm, although we grant leave to Rollins to pursue
further relief in the superior court.
II. FACTS AND PROCEEDINGS
In late 1990 Elizabeth 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. [Fn. 1] 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 1994. 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 able to
complete this work prior to December 1.
The Board denied this request. Additionally, because the
waiver of the annual operating requirement was necessary for the
renewal of Rollins's liquor license, [Fn. 2] the Board also denied
Rollins's license renewal. Rollins met with the Board at an
informal conference in April 1996. No settlement was reached at
this meeting and the Board affirmed its earlier decision to deny
Rollins's waiver. A formal hearing was then held in Fairbanks in
October 1996, at which Rollins represented herself pro se.
In November 1996 the hearing officer submitted his
proposed decision to the Board, affirming the Board's earlier
action. The Board adopted the decision. Rollins appealed to the
superior court, which affirmed the Board's decision. In February
1998 Rollins filed a Civ. R. 60(b)(2) motion for relief from
judgment, apparently based on new evidence, which was denied on
March 17, 1998. This appeal followed.
III. DISCUSSION
Rollins essentially makes six arguments on appeal: (1)
the Board exceeded its authority in adopting 15 Alaska
Administrative Code 104.170 which governs the waiver of the 30-day
annual operating requirement; (2) the Board erroneously concluded
that she had licensed premises subject to the operating
requirement; (3) the Board erroneously found that her premises were
neither condemned nor substantially destroyed and that she was not,
therefore, entitled to a fifth-year waiver of the operating
requirement; (4) the Board denied her equal protection under the
Alaska Constitution; (5) her rights under the Alaska Constitution
to due process were violated because her license was revoked in an
administrative rather than judicial proceeding before a jury, and
by the hearing officer's failure to compel the state to produce her
requested discovery; and (6) the state withheld discovery and
misrepresented facts to her and the superior court. We address
each of her arguments in turn.
A. Standard of Review
We give no deference to the decision of the superior
court where it acts as an intermediate appellate court; rather, we
independently review the merits of the administrative action. [Fn.
3] There are four principal standards of review for administrative
decisions: the "substantial evidence"test for questions of fact;
the "reasonable basis"test for questions of law involving agency
expertise; the "substitution of judgment"test for questions of law
where no agency expertise is involved; and the "reasonable and not
arbitrary"test for review of administrative regulations. [Fn. 4]
Finally, this court applies its independent judgment to questions
of constitutional law. [Fn. 5]
B. 15 AAC 104.170 Is a Valid Regulation.
Rollins argues that the Board exceeded its authority when
it adopted 15 AAC 104.170 [Fn. 6] because the regulation is more
restrictive than AS 04.11.330(a)(3), [Fn. 7] the statute providing
for the 30-day annual operating requirement and exceptions to it.
In addition, she argues that the regulation has no relation to "the
health, welfare, or safety of the citizens of the state." We
disagree.
Alaska Statute 04.11.330(a)(3) provides that a license
renewal shall be denied if the applicant has not operated the
licensed premises for 30 eight-hour days during each of the two
preceding calendar years. [Fn. 8] However, the Board may grant a
waiver if it determines that the licensed premises are "under
construction or cannot be operated through no fault of the
applicant."To implement this statutory provision, the Board
adopted 15 AAC 104.170. This regulation provides that the Board
will deny a third or subsequent request for waiver unless the
licensed premises were not operated because the premise was
"condemned or substantially destroyed." Rollins's contention that
this regulation is more restrictive than AS 04.11.330(a)(3) is
correct. Under 15 AAC 104.170, the Board will deny a third waiver
application unless the premises are condemned or substantially
destroyed, regardless of the broader exceptions provided in
statute. Nevertheless, the regulation is valid because it is
reasonably related to the statutory objectives of AS 04.11.330.
The legislature provided a broad grant of authority to
the Board to enact regulations "consistent"with and to carry out
"the purposes of"the alcoholic beverage statutes in a manner that
will protect "public health, safety, and welfare."[Fn. 9] This
grant of power to promulgate rules and regulations is "so complete
that there would be inconsistency only if the regulation bore no
reasonable relation to the statutory objectives."[Fn. 10]
In enacting AS 04.11.330, the legislature indicated that
it wanted licenses to be operated 30 days annually except under two
limited circumstances: (1) the licensed premises are under
construction; and/or (2) the licensed premises cannot be operated
through no fault of the applicant. [Fn. 11] The regulation
furthers this objective by defining the circumstances under which
premises could be considered to still be under construction or not
operated through no fault of the licensee for a third consecutive
year. While the broader "under construction"language of AS
04.11.330(a)(3) is excluded from 15 AAC 104.170(e), the Board
explicitly retains discretion to grant a waiver from the
operational requirement if the premises were substantially
destroyed and required new construction. More importantly, this
regulation furthers the legislative objective that licenses be
operated by precluding the situation where a licensee could claim
his or her premises are under construction year after year, keeping
the license from operation.
In sum, the regulation is reasonably related to the
statutory purpose of AS 04.11.330 and within the Board's authority
to promulgate. Therefore, 15 AAC 104.170 is valid.
C. Rollins Had Licensed Premises for Purposes of AS
04.11.330(a)(3). [Fn. 12]
Rollins next argues that she was not subject to the
annual operating requirement of AS 04.11.330(a)(3), which only
applies to "licensed premises,"because she was never issued a
license to operate at 1403 Old Richardson Highway. Specifically,
she relies on AS 04.21.080(b)(10) for the proposition that
"licensed premises"cannot exist unless a license to operate has
been issued. [Fn. 13]
The state counters that Rollins's reading would render
the statute invalid and related statutory provisions meaningless.
Rather, the state argues, the statute should be read in light of
its purpose and the overall context of Title 4, which governs the
sale and distribution of alcoholic beverages. The Board agreed and
concluded that the definition of "licensed premises"in AS
04.21.080(10) "in the case of a pending application for a license
that has not yet been issued, reasonably may be understood to
encompass the premises for which a license may be issued." We
agree.
In construing statutes, our goal is "to give effect to
the legislature's intent, with due regard for the meaning the
statutory language conveys to others."[Fn. 14] Basic principles
of statutory construction "militate against interpreting a statute
in a manner that renders other provisions meaningless."[Fn. 15]
Contradictions should be harmonized. [Fn. 16] Here, Rollins's
statutory interpretation is unpersuasive because it renders an
express exception superfluous and vitiates the objective of the
statute.
The legislature expressly provided an exception to the
annual operating requirement for premises under construction. [Fn.
17] In addition, the legislature has mandated that the Board
cannot issue a license to operate until the licensee receives
public health and safety approvals. [Fn. 18] If the building is
under construction, such approvals will not have been issued and
the licensee will not have been issued a license to operate. If
Rollins's interpretation were correct -- that AS 04.11.330(a)(3)
does not apply to licensees who have not been issued a license to
operate -- there would be no need for an express exception. This
is not a harmonious reading of the statute.
More importantly, Rollins's reading of the statute
contravenes the legislative purpose inherent in the statutory
framework governing the sale and distribution of alcohol. The sale
and distribution of alcohol in Alaska are thoroughly and strictly
regulated by the state. [Fn. 19] The number and type of liquor
licenses are limited by population and geographical area. [Fn. 20]
In addition, all licenses must be attached to specific premises.
[Fn. 21] Reading AS 04.11.330(a) in conjunction with these
statutes, it becomes apparent that the legislature intended to
prevent a licensee from holding onto one of a limited number of
licenses without operating it, at least beyond a reasonable time
necessary to construct or otherwise establish premises. This
objective maintains the character of the license as a license to
conduct business rather than a financial asset; and, as the state
suggests, maintains a certain number of facilities in the community
where people can purchase alcohol.
Under Rollins's statutory interpretation, a licensee
could hold a license indefinitely if that licensee was never issued
the physical license to operate. [Fn. 22] This is contrary to the
purpose and scheme of the statute.
Finally, Rollins argues that recognizing hers as
"licensed premises"for purposes of AS 04.11.330(a)(3) leads to a
conflict between 15 AAC 104.170 and 15 AAC 104.195, yielding absurd
results. [Fn. 23] This argument is meritless; it results from a
misunderstanding of the law. Under 15 AAC 104.195, a licensee must
surrender his or her license to the director at the Alcoholic
Beverage Control Board when his or her premises are lost,
surrendered, or the licensee ceases conducting business. The
regulation further provides that the director shall reissue the
license when the business is resumed. This regulation presumes a
license to operate the premises has been issued. If a license has
not been issued to operate, there is no license to surrender. The
purpose is to require an operating licensee to surrender his or her
license when he or she can no longer operate in compliance with the
law. [Fn. 24] Rollins asserts she should have been allowed to
surrender her license rather than suffer the loss of large
application fees and the ultimate loss of her license. This would
be pointless. As the state points out, a surrendered license is
still subject to the annual operating requirements of AS
04.11.330(a)(3) and 15 AAC 104.170.
In conclusion, Rollins's statutory interpretation is
strained and contravenes the statute's purpose. Accordingly, we
hold that Rollins had "licensed premises"for purposes of the
annual operating requirement.
D. Substantial Evidence Supports the Board's Determination
that Rollins's Premises Were Not Substantially Destroyed,
Precluding Her from Obtaining a Fifth Waiver of the Annual
Operating Requirement. [Fn. 25]
Rollins also challenges the Board's finding that her
premises were not substantially destroyed. She asserts that
vandalism and theft of parts and fuel from her boiler in November
1994, February 1995, and April 1995 resulted in frozen water lines
and damage throughout her entire heating and water system. This
damage, she argues, along with thefts of other property, caused her
premises to become substantially destroyed. [Fn. 26] The hearing
officer found, after an on-site visit, that although Rollins
established that incidents of vandalism had reduced the value of
her property and adversely affected her ability to use her property
for limited periods of time, she had not established that her
premises were substantially destroyed in 1995 as "that term is
commonly understood and used"in the regulations. Because
substantial evidence in the record supports this factual finding,
we will not upset it.
Black's Law Dictionary defines "destroy"as an "act which
renders the subject useless for its intended purpose."[Fn. 27]
Webster's Dictionary defines the term "to ruin completely,"
"spoil,"or "demolish."[Fn. 28] "Substantially destroyed"would
then require that the premises were substantially rendered useless
for use as a bar -- that they were substantially ruined,
demolished, or spoiled. Criminal activity no doubt hampered
Rollins's efforts to meet the health and safety requirements
necessary to receive a license to operate. However, we note that
Rollins does not assert that her premises were ever in a condition
to receive a license to operate. Moreover, given the significant
destruction that is required under the definition of "substantially
destroyed,"and the lack of evidence in the record indicating the
premises were substantially destroyed, we will not overrule the
Board's determination based on the hearing officer's on-site visit.
Accordingly, we hold that sufficient evidence exists to sustain the
Board's determination that Rollins failed to establish that her
premise was substantially destroyed.
E. The Board's Action Did Not Violate Rollins's Right to
Equal Protection.
Rollins next asserts that the Board's action violated her
right to equal protection because other bars that have engaged in
more egregious violations of alcohol regulations and statutes have
not lost their licenses. The hearing officer concluded that while
this may be true "to the extent one considers other types of
behaviors more serious than the violation of the failure to operate
requirement,"such judgments are neither determinative or relevant
because the "[B]oard must enforce and apply its regulations as in
effect." We agree.
In order to make a prima facie case that the Board
selectively enforced the annual operating requirement in violation
of Rollins's right to equal protection, Rollins would have to show
that the Board intended to discriminate against her based on an
arbitrary or unjustifiable classification. [Fn. 29] Rollins had
the initial burden of producing evidence demonstrating
discriminatory intent. However, Rollins failed to offer any
evidence of discriminatory intent or evidence to show that she was
treated differently than other license holders who had violated the
30-day operating requirement. Her mere conclusory accusations of
discrimination do not satisfy this burden. [Fn. 30]
Rollins contends that she could not present such evidence
because the state failed to respond to her discovery request and
the hearing officer failed to intervene. This due process argument
is addressed below. On the record before us, there is no merit to
Rollins's equal protection argument.
F. The Board Did Not Violate Rollins's Right to Procedural
Due Process.
Rollins also asserts two due process violations. First,
she contends that she was entitled to a judicial proceeding before
a jury to determine if her license would be revoked or, more
accurately, not renewed. Second, she argues that the hearing
officer should have compelled the state to provide her with
discovery she requested, and that this failure denied her a fair
hearing. We disagree with both contentions. Our review of the
record indicates that Rollins was afforded the procedural due
process to which she was entitled.
1. The denial of a liquor license renewal in an
administrative hearing does not violate the licensee's due process
rights.
Rollins correctly contends that she has a property right
in her license that is protected by the due process clause of the
Alaska Constitution. [Fn. 31] Her interest in the liquor license
is "not merely a privilege subject to withdrawal or denial at the
whim of the state,"but is "of considerable value."[Fn. 32]
Before this property interest can be taken, due process requires
that Rollins be provided with notice and an opportunity to be heard
in a meaningful, impartial hearing. [Fn. 33] However, under our
case law, Rollins is not entitled to a judicial proceeding prior to
the state's denial of her license renewal.
In State v. Zerkel, this court held that an individual is
not entitled to a jury trial for the revocation of a license to do
business when the basis for the revocation is not criminality but
fitness or other public considerations unrelated to guilt or
innocence for a crime. [Fn. 34] Here, criminality was not the
basis for the Board's denial of Rollins's license renewal; rather,
it was her failure to operate the license as required by statute
and regulation. In Frontier Saloon, Inc. v. Alcoholic Beverage
Control Bd., [Fn. 35] we held that due process merely required the
Board to hold a hearing before it could suspend a liquor license.
We specifically stated that the hearing need not be elaborate, and
the Board need not make written findings or even file a written
opinion explaining its action so long as it reached its decision
after hearing the appellant's presentation. [Fn. 36] These cases
control the disposition of this issue. Accordingly, Rollins was
not entitled to a judicial proceeding with a jury trial prior to
the Board's denial of her license renewal. [Fn. 37] She received
the procedural safeguards to which she was entitled; namely,
adequate notice and an opportunity to be heard in a meaningful,
impartial administrative hearing in full compliance with the
Administrative Procedures Act.
2. The hearing officer did not deny Rollins's
procedural due process rights by failing to compel discovery from
the state.
Rollins next contends that her due process rights were
violated when the hearing officer failed to order the state to
comply with her discovery request. [Fn. 38] We disagree.
A fair and meaningful hearing does entail adequate access
to information requested in discovery. [Fn. 39] If Rollins sought
to compel discovery, and the hearing officer ignored her request,
her right to due process may have been infringed. Thus, we must
review the record to determine whether Rollins requested the
hearing officer to compel discovery and, if so, whether the hearing
officer adequately addressed her request.
In July 1996, Rollins submitted the following request to
the Board's counsel, Linda O'Bannon of the Attorney General's
Office:
Please forward my ABC file. Also need
information of number of Revoked Licenses [sic] over past 5 years
& cause of loss.
Also number of suspensions & fines over
same period and reason for discipline.
Need to know how many complaint[s]
investigated and found valid, but action not taken for same period.
If research for information will take
longer than 10 days, please advise, but do send my file
immediately.
Shortly thereafter, O'Bannon instructed Board staff to
forward a copy of Rollins's file to her, but to ignore the rest of
the request as it involved legal issues which needed to be
addressed. In August, the Board sent Rollins a memorandum which
stated:
During the period from January 1990 to
August 19, 1996 a total of 614 notices of violation were issued to
licensed premises, within the state, for violations of Title 4
statutes.
If found to be a valid complaint some
type of action was always taken by the enforcement or licensing
staff to insure compliance. None of the valid complaints were
dropped and no action taken.
During the same period a total of 3
liquor licenses were revoked and 19 suspended.
In September, Rollins complained to O'Bannon, with a copy
faxed to the hearing officer, that the Board was deficient in
replying to her request and that the discovery deadline set by the
hearing officer had passed. Rollins further complained that the
lack of information put her in an untenable position in preparing
for the hearing in October. O'Bannon responded to Rollins, with a
copy to the hearing officer, that she disagreed with the contention
that there was any deficiency in the state's submission of
discovery. Nevertheless, O'Bannon indicated that she would try to
respond to Rollins's request and provided a list of witnesses.
O'Bannon closed her letter by stating "[h]opefully this answers all
your questions. If you have any further questions, please call me
at [phone number] and I will try to address them."
Rollins did not contact O'Bannon again regarding
discovery, nor did she bring any additional concerns to the hearing
officer's attention, though she had adequate opportunity to do so.
In addition, the correspondence between Rollins and the Board,
copied to the hearing officer, reasonably indicated that the
discovery issues were resolved. On this record, we do not find
that the hearing officer was under an obligation to inquire about
discovery, much less issue an order to compel the state to comply
with Rollins's request. Accordingly, we hold that Rollins's due
process rights to discovery were not violated by any action or
inaction of the hearing officer.
G. Rollins May Have a Valid Civil Rule 60(b)(3) Motion Based
on Post-Appeal Actions of the Board.
Finally, Rollins argues that the Board provided
misleading information to her from the onset of these proceedings
and provided false information to the superior court on appeal. We
cannot assess the validity of this claim, but Rollins should have
the opportunity to pursue it.
In its brief to the superior court, the Board stated:
Rollins never made any comparison to
actions of the Board against other licensees who failed to operate
as required by AS 04.11.330(a)(3). (If she had, the record would
show that other licensees have lost their licenses after waiver
requests have previously been granted, for failure to operate the
minimum time required when there was no condemnation of the
premises or substantial destruction of the premises.)
After the superior court affirmed the Board's decision,
Rollins filed a motion for relief from judgment under Alaska Civil
Rule 60(b)(2). She argued that the Board withheld information from
her because it could not make the assertions it had regarding other
applicants in a similar situation if it did not keep records as it
claimed post-trial in response to a freedom of information request
she filed. The Board responded that Rollins had not presented any
new evidence justifying Rule 60(b)(2) relief. The court denied her
motion on March 17, 1998. Rollins has not appealed this denial.
Subsequently, the Board's director wrote the following to
a state legislator regarding Rollins's case, which Rollins attached
to her brief to this court:
[T]he present ABC Board has become stricter in
enforcing the consecutive waiver policy. Unfortunately, Mrs.
Rollins, d/b/a Alaska 1910, was the first one to be affected by
this trend.
The apparent contradiction between the Board's
representation in the superior court and the director's letter is
disturbing. If Rollins's allegations are true, she might have a
colorable basis to seek relief from judgment based on
misrepresentation, under Alaska Civil Rule 60(b)(3). However, such
motions must be made within one year of the judgment, which in this
case was entered January 2, 1998. Therefore, such a motion would
now be untimely.
However, the director's letter was sent after Rollins had
appealed the Board's action to this court. She may have mistakenly
thought she could raise this issue on appeal before us, rather than
pursuing the proper procedure by filing a Rule 60(b)(3) motion in
the superior court. We have in the past relaxed procedural
requirements for pro se litigants. [Fn. 40] We have stated that
while the court is not required to "instruct a pro se litigant as
to each step in litigating a claim"as this would "compromise the
court's impartiality,"[Fn. 41] the court "should inform a pro se
litigant of the proper procedure for the action he or she is
obviously attempting to accomplish."[Fn. 42] Because the
director's letter was not written until after Rollins appealed to
this court, and because she sought the allegedly withheld
information from the onset of the adjudicative process and is pro
se, we grant her leave to file a Rule 60(b)(3) motion within 45
days of the issuance of this opinion. [Fn. 43] If she does so, the
superior court must determine whether the state misrepresented
facts to Rollins and to the court, entitling Rollins to additional
discovery and a remand to the Board on the issue of selective
enforcement. [Fn. 44]
IV. CONCLUSION
In sum, we conclude that 15 AAC 104.170 is a valid
regulation; that Rollins has licensed premises for purposes of the
annual operating requirement in AS 04.11.330(a)(3); and that the
Board's determination that her premises were not substantially
destroyed, thus precluding her from a fifth waiver of the
operational requirement, is supported by substantial evidence. In
addition, on the record before this court, we hold that her equal
protection and due process rights were not violated. Therefore, we
AFFIRM the superior court's decision upholding the Board's
determination to deny her license renewal. However, we grant
Rollins leave to file a Rule 60(b)(3) motion within 45 days of the
issuance of this opinion. If she prevails, she is entitled to
additional discovery and a remand to the Board on the issue of
selective enforcement.
FOOTNOTES
Footnote 1:
Prior to July 1995, a licensee was required to renew his or
her license annually. See former AS 04.11.540. After July 1,
1995, a licensee is required to renew his or her license every two
calendar years. See AS 04.11.540.
Footnote 2:
See AS 04.11.330(a)(3).
Footnote 3:
See Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233
(Alaska 1992) (citations omitted).
Footnote 4:
See id.
Footnote 5:
See State v. Anthony, 810 P.2d 155, 156-7 (Alaska 1991)
(citations omitted).
Footnote 6:
15 AAC 104.170 states:
WAIVER OF ANNUAL OPERATING REQUIREMENT AND
MINIMUM OPERATING REQUIREMENTS. (a) Except as provided in this
section, the board will deny an application for renewal of a
license if the licensed premises were not operated for the time
required by AS 04.11.330(a)(3). . . .
(b) A licensee may apply to the board,
requesting that the board waive the operating requirement of AS
04.11.330(a)(3). . . . Under AS 04.11.330(a)(3), 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 during the preceding year.
. . . .
(e) 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. If the premises identified on an
applicant's license are not leased or owned by the licensee, the
third or subsequent application will, in the board's discretion, be
denied. Additionally, a third or subsequent consecutive
application for waiver that does not identify a licensed premises
location will, in the board's discretion, be denied.
. . . .
(g) If an application for waiver is
denied, an application for license renewal for the succeeding
license period will be denied by the board under AS
04.11.330(a)(3).
(Emphasis added.)
Footnote 7:
AS 04.11.330(a)(3) provides:
(a) An application requesting renewal of
a license shall be denied if . . .
(3) 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[.]
Footnote 8:
Prior to December 31, 1993, an applicant need only have
operated his or her license for 30 days during the previous
calendar year. See the former AS 04.11.330(a)(3).
Footnote 9:
AS 04.06.100.
Footnote 10:
Boehl v. Sabre Jet Room, Inc., 349 P.2d 585, 588 (Alaska
1960).
Footnote 11:
See AS 04.11.330(a)(3).
Footnote 12:
This court will substitute its judgment for that of the agency
where the case concerns "statutory interpretation or other analysis
of legal relationships about which courts have specialized
knowledge and experience." Kelly v. Zamarello, 486 P.2d 906, 916
(Alaska 1971).
Footnote 13:
AS 04.21.080(b)(10) defines "licensed premises"as:
any or all designated portions of a building
or structure, rooms or enclosures in the building or structure, or
real estate leased, used, controlled, or operated by a licensee in
the conduct of business for which the licensee is licensed by the
board at the specific address for which the license is issued[.]
(Emphasis added.)
Footnote 14:
Forest v. Safeway Stores, 830 P.2d 778, 781 (Alaska 1992)
(citations omitted).
Footnote 15:
M.R.S. v. State, 897 P.2d 63, 66 (Alaska 1995).
Footnote 16:
See In re E.A.O., 816 P.2d 1352, 1357 (Alaska 1991).
Footnote 17:
See AS 04.11.330(a)(3).
Footnote 18:
See 15 AAC 104.155, which provides:
Upon approval of an application for a new
license or the renewal or transfer of an existing license, receipt
by the board of necessary public health and public safety approvals
and completion of any inspection considered necessary by the
director, the director will issue an appropriate license.
Footnote 19:
See AS 04.11.010-04.16.220.
Footnote 20:
See AS 04.11.400-420.
Footnote 21:
See AS 04.11.260(a)(2).
Footnote 22:
See 15 AAC 104.155, supra, note 17.
Footnote 23:
15 AAC 104.195 provides:
Within 10 days after the loss or surrender of
the licensed premises, or if a licensee ceases to conduct business
upon the licensed premises for a period expected to continue for
one month or more, the licensee shall inform the director and
surrender the license to the director. The license will be
reissued upon request when the conduct of business is resumed or
upon transfer of the license.
Footnote 24:
See AS 04.21.030(2); AS 04.11.580(b).
Footnote 25:
In reviewing an agency's factual determinations, this court
looks to the record as a whole to see if "such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion"
exists. The court does not choose between competing inferences,
nor evaluate the strength of the evidence, but merely notes its
presence. Handley, 838 P.2d at 1233 (citations omitted).
Footnote 26:
Rollins had argued at the administrative hearing and in the
superior court that the DEC water alert effectively condemned her
property. However, she failed to raise this in her points on
appeal or argue it in her brief. Accordingly, the issue is waived.
See Adamson v. University of Alaska, 819 P.2d 886, 889 n.3 (Alaska
1991); Oceanview Homeowners Ass'n, Inc. v. Quadrant Constr. and
Eng'g, 680 P.2d 793, 797 (Alaska 1984).
Footnote 27:
Black's Law Dictionary 535 (4th ed. 1968).
Footnote 28:
Webster's II New Riverside University Dictionary 368 (1988).
Footnote 29:
See Gates v. City of Tenakee Springs, 822 P.2d 455, 461
(Alaska 1991) (citing Barber v. Municipality of Anchorage, 776 P.2d
1034, 1040 (Alaska 1989)).
Footnote 30:
See id.
Footnote 31:
See Frontier Saloon, Inc. v. Alcoholic Beverage Control Bd.,
524 P.2d 657, 659 (Alaska 1974); see also Hilbers v. Municipality
of Anchorage, 611 P.2d 31, 36 (Alaska 1980) (due process may be
invoked as to the issuance of a business license); Herscher v.
State, Dep't of Commerce, 568 P.2d 996, 1002 (Alaska 1977)
(licensee had proprietary interest in hunting guide license
protected under due process).
Footnote 32:
Frontier, 524 P.2d at 659-60.
Footnote 33:
See Thorne v. State, Dep't of Public Safety, 774 P.2d 1326,
1329 (Alaska 1989) (due process in a license revocation hearing
requires a "meaningful hearing"); Frontier, 524 P.2d at 659 (due
process requires notice and an opportunity to be heard prior to the
taking of a valuable property right).
Footnote 34:
900 P.2d 744, 753 (Alaska App. 1995).
Footnote 35:
524 P.2d at 659.
Footnote 36:
See id. However, it should be noted that when the Board
denies an application for license renewal, AS 04.11.510(b)(1)
requires the Board to inform the applicant in writing with a clear
and concise statement of the reason for the denial. The Board must
also inform the applicant of his or her right to an informal
conference and, if still unsatisfied, the applicant's right to a
formal hearing. See id. The Board complied with these
requirements.
Footnote 37:
Of course, Rollins was entitled to and received judicial
review of the Board's determination. See AS 44.62.560.
Footnote 38:
Rollins did not specifically identify this argument as a
procedural due process issue. However, because it goes to the
meaningfulness of the hearing, which entails considerations of
fundamental fairness, it is properly analyzed as such. See Thorne,
774 P.2d at 1329; Application of Peterson, 459 P.2d 703, 711
(Alaska 1969).
Footnote 39:
See Application of Peterson, 459 P.2d at 711.
Footnote 40:
See Collins v. Arctic Builders, 957 P.2d 980, 982 (Alaska
1998) (citing Breck v. Ulmer, 745 P.2d 66 (Alaska 1987) and Bauman
v. State, Div. of Family & Youth Services, 768 P.2d 1097 (Alaska
1989)).
Footnote 41:
Id. (quoting Bauman, 768 P.2d at 1099).
Footnote 42:
Id. (quoting Breck, 745 P.2d at 75).
Footnote 43:
We also note that this order comports with the purpose of the
timeliness requirement for a Rule 60(b) motion -- to prevent
parties from sitting on their rights while claims become stale.
Rollins has pursued this case in a timely manner, albeit not
strictly in accordance with the Alaska Rules of Civil Procedure.
Footnote 44:
Although we recognize that Rollins might have a colorable
claim under Rule 60(b)(3) if the state misrepresented the facts by
informing the superior court that "other licensees have lost their
licenses after waiver requests have previously been granted, for
failure to operate the minimum time required,"we do not suggest
that this misrepresentation, standing alone, would necessarily
entitle Rollins to relief from judgment. Instead, relief would be
appropriate only if the misrepresentation could have affected the
outcome of the case -- that is, only if the state's records
disclosed that Rollins might have been the subject of selective
prosecution or some other form of impermissible discrimination. We
express no view as to the precise circumstances under which the
superior court might be justified in finding a prima facie case of
selective prosecution or impermissible discrimination, since the
parties have not briefed this issue.
