2009 Hawaii Code
Volume 05
TITLE 16 - INTOXICATING LIQUOR
CHAPTER 281 - INTOXICATING LIQUOR
§281-59 - Hearing; rehearing.

     §281-59  Hearing; rehearing.  (a)  Upon the day of hearing, or any adjournment thereof, the liquor commission shall consider the application and any protests and objections to the granting thereof, and hear the parties in interest.  The liquor commission shall accept all written or oral testimony for or against the application whether the application is denied, refused, or withdrawn.  Within ninety days after the hearing, or within one hundred twenty days thereafter if in its discretion the commission extends the ninety days to one hundred twenty days, and gives public notice of same, the commission shall give its decision granting or refusing the application; provided that if a majority of the:

     (1)  Registered voters for the area within five hundred feet of the nearest point of the premises for which the license is asked; or

     (2)  Owners and lessees of record of real estate and owners of record of shares in a cooperative apartment within five hundred feet of the nearest point of the premises for which the license is asked,

have duly filed or caused to be filed their protests against the granting of the license, or if there appears any other disqualification under this chapter, the application shall be refused.  Otherwise, the commission may in its discretion grant or refuse the same.

     For purposes of defining "a majority of the owners and lessees of record of real estate and owners of record of shares in a cooperative apartment", each property counts only once; provided that roadways shall not be included.  A protest submitted by the majority of the co-owners or the majority of the co-lessees of a property shall constitute a protest by all the owners or lessees of record of that property.  A protest filed by owners or lessees who own more than one property shall be counted for each property.

     (b)  The liquor commission shall make available to the applicant and any protester for review before the public hearing, the protest list of those persons who filed a protest or objection to the application; provided that the applicant shall not use the protest list to attempt to influence in any way any protester to withdraw the protest or objection.  All applicants and protesters may submit corrections, additions, and subtractions to the master list and the protest list at the public hearing; provided that additions or corrections to the voter registration list shall be certified by the clerk of the county.  The liquor commission shall rule on proposed corrections, additions, and subtractions and give reasons for the ruling.

     (c)  The commission may also, with like discretion:

     (1)  Grant a license to one person in preference to another, without reference to any priority in the order of filing of the applications; and

     (2)  Of its own motion, or on the suggestion of any member, or of the investigator take notice of any matter or thing which in the opinion of a majority of its members would be a sufficient objection to the granting of a license; but in such case if the objection is one to which the applicant should be given a reasonable time to answer, a continuance may be granted in the discretion of the commission;

provided that in any case where any person affected by such decision petitions the commission for a rehearing of the application and on oath alleges facts and grounds for consideration which were not formerly presented or considered, or any other matter of fact which in the judgment of the commission seems sufficient to warrant a rehearing, such rehearing may be granted by the commission in its discretion upon the publication of notice of rehearing at least seven days before the date of the rehearing.  When a rehearing is allowed notice shall be given to the applicant and to the applicant's opponents, by publication or otherwise as the commission shall direct. [L Sp 1933, c 40, §34; RL 1935, §2603; RL 1945, §7255; RL 1955, §159-58; am L 1957, c 321, §1(g); HRS §281-59; am L 1972, c 177, §7; am L 1984, c 123, §3; gen ch 1985; am L 1990, c 171, §19; am L 1995, c 142, §2; am L 2001, c 257, §7; am L 2008, c 168, §15; am L 2009, c 184, §10]

 

Cross References

 

  Administrative hearings, see chapter 91.

 

Case Notes

 

  Based on a plain and unambiguous reading of this section, a majority of co-owners or co-lessees must register a protest in order for that property to be counted as one protest vote; thus, even if commission were to have counted the two protest votes that were disallowed, the two added votes would not have resulted in a majority vote nullifying the liquor license application.  111 H. 234, 140 P.3d 1014.

  State and county entities, as owners of real property, are included as owners for both notice and protest purposes as set forth under §281-57 and this section.  111 H. 234, 140 P.3d 1014.

  The State and county governments fall within the definition of "owner of record" under this section as property owners of real estate.  111 H. 234, 140 P.3d 1014.

  As it is possible to give effect to §91-11 and this section insofar as a public hearing on a license application must be regarded as a contested case subject to the requirements of chapter 91, this section does not conflict with §91-11.  118 H. 320, 189 P.3d 432.

  Public hearings on liquor license applications held by the liquor commission are contested case hearings such that §91-11 requires any commissioner who is not present at any stage of the public hearing to become familiar with the record before voting on a liquor license application, unless the application is automatically rejected pursuant to subsection (a).  118 H. 320, 189 P.3d 432.

  The liquor commission's failure to comply with §91-11, requiring that all commissioners personally consider the entire record before voting on a liquor license application, was not a "failure to act" such as would trigger the automatic approval provision of §91-13.5 where the liquor commission voted, albeit ineffectively, within the fifteen day period prescribed by this section.  118 H. 320, 189 P.3d 432.