32B-3-307 (Effective 07/01/11) - Hearing on formal objections to renewal.
32B-3-307 (Effective 07/01/11). Hearing on formal objections to renewal.
(1) Upon receipt of a formal objection that meets the requirements of Section 32B-3-306,the department shall:
(a) issue a notice of agency action; and
(b) serve on the retail licensee no later than 30 days before the expiration of the retaillicensee's license:
(i) the notice of agency action; and
(ii) a copy of the formal objection.
(2) (a) A retail licensee against whom a notice of agency action is served underSubsection (1) may request a hearing.
(b) The request for hearing described in Subsection (2)(a) shall be:
(i) in writing; and
(ii) filed with the commission within 10 days of the day on which the notice of agencyaction is served on the retail licensee.
(c) If a retail licensee fails to file a request for hearing in accordance with this Subsection(2), the commission may not renew the license of the retail licensee.
(3) (a) Upon receipt of a request for hearing meeting the requirements of Subsection (2),the department shall immediately schedule a hearing that shall be:
(i) held no later than 10 days before the expiration date of the retail licensee's license;and
(ii) electronically recorded by the department.
(b) The retail licensee or an objecting governmental entity, at its own expense, may havea reporter approved by the department prepare a transcript from the department's record of thehearing.
(c) (i) The department shall present information at the hearing that supports a finding thata nuisance activity occurred.
(ii) The information described in Subsection (3)(c)(i) shall be made a part of the recordof the hearing.
(d) A retail licensee shall:
(i) have the opportunity to challenge or explain whether any of the nuisance activity thatforms the basis for the formal objection occurred; and
(ii) be permitted to:
(A) testify;
(B) present evidence; and
(C) comment on the issues at the hearing.
(4) (a) A hearing held under this chapter shall be conducted under the authority of thecommission.
(b) The commission is responsible for rendering a final order on whether a retaillicensee's license shall be renewed.
(c) Notwithstanding Subsections (4)(a) and (b), the commission may appoint a necessaryhearing examiner to administer the hearing process.
(d) The commission or the hearing examiner appointed by the commission shall serve asthe presiding officer at a hearing held under this section.
(e) The presiding officer at a hearing held under this section:
(i) shall evaluate:
(A) the information presented at the hearing in support of the formal objection; and
(B) any explanation and evidence offered by the retail licensee; and
(ii) may consider such factors as:
(A) the length of time the retail licensee has operated the licensed premises;
(B) the condition of the licensed premises;
(C) whether the retail licensee knew or should have known of the nuisance activity inquestion;
(D) whether the retail licensee failed to:
(I) make a substantial effort to correct the nuisance activity; and
(II) work with law enforcement to curtail the nuisance activity;
(E) whether the nuisance activity has been ongoing or temporary;
(F) whether the retail licensee or the retail licensee's staff:
(I) initiated contact with the law enforcement agency on the nuisance activity; and
(II) cooperated with the law enforcement agency's investigation; and
(G) whether prior efforts to stop the nuisance activity by the community or the retaillicensee have been unsuccessful.
(5) An order issued under this section shall:
(a) be based on the evidence presented at the hearing; and
(b) state whether:
(i) the continued operation of the licensed premises will endanger the public health,peace, safety, welfare, or morals of the community; and
(ii) the retail license should or should not be renewed.
(6) (a) If the presiding officer is a hearing examiner appointed by the commission, thehearing officer shall issue a signed order in writing that:
(i) complies with Subsection (5);
(ii) recommends to the commission whether the retail license should or should not berenewed;
(iii) states the reasons for the hearing officer's decision; and
(iv) notifies the retail licensee and the objecting governmental entity that the hearingexaminer's order will be considered by the commission at the next regularly scheduled meeting ofthe commission.
(b) The department shall promptly mail a copy of the hearing examiner's order to:
(i) the retail licensee; and
(ii) any objecting governmental entity.
(c) The commission at its next regularly scheduled meeting after receipt of a hearingexaminer's order, shall decide whether to renew or not renew the retail license on the basis of:
(i) the record and evidence presented at the hearing; and
(ii) the hearing examiner's recommendation.
(7) (a) As an alternative to ordering that a retail license not be renewed under thissection, the commission may conditionally renew a retail license by requiring that:
(i) the retail licensee and the licensed premises be closely monitored during the licensingyear by:
(A) the department;
(B) local government officials; and
(C) law enforcement; and
(ii) the matter be reviewed before the next renewal period.
(b) The commission may conditionally renew a retail license contingent on a personlisted in Subsection (7)(b)(ii) divesting all interest in the retail licensed business if:
(i) the retail licensee is a partnership, corporation, or limited liability company; and
(ii) the formal objection filed under this section if filed solely on the basis of a felonyconviction:
(A) of:
(I) a partner;
(II) a managing agent;
(III) a manager;
(IV) an officer;
(V) a director;
(VI) a stockholder who holds at least 20% of the total issued and outstanding stock of acorporate licensee; or
(VII) a member who owns at least 20% of a limited liability company licensee; and
(B) for illegal activity that occurred off of the licensed premises.
(8) (a) In accordance with this section, the commission shall issue a written order settingforth the commission's decision and the reason for the commission's decision.
(b) The order described in Subsection (8)(a) is considered final on the date the orderbecomes effective.
(c) The department shall serve a copy of the order on the retail licensee.
(9) A retail licensee whose retail license is not renewed by order of the commission mayseek judicial review under the procedures provided in Section 32B-3-207.
(10) A retail licensee whose retail license is not renewed may not reapply for a licenseunder this title for three years from the date the retail license is not renewed.
Enacted by Chapter 276, 2010 General Session