HOUSE OF REPRESENTATIVES

H.B. NO.

707

TWENTY-NINTH LEGISLATURE, 2017

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

relating to intoxicating liquor.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


     SECTION 1.  Section 281-17, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  The liquor commission, within its own county, shall have the jurisdiction, power, authority, and discretion, subject only to this chapter:

     (1)  To grant, refuse, suspend, and revoke any license for the manufacture, importation, and sale of liquors;

     (2)  To take appropriate action against a person who, directly or indirectly, manufactures, sells, or purchases any liquor without being authorized pursuant to this chapter; provided that in counties that have established by charter a liquor control adjudication board, the board shall have the jurisdiction, power, authority, and discretion to hear and determine administrative complaints of the director regarding violations of the liquor laws of the State or of the rules of the liquor commission, and impose penalties for violations thereof as may be provided by law;

     (3)  To control, supervise, and regulate the manufacture, importation, and sale of liquors by investigation, enforcement, and education; provided that any educational program shall be limited to the commission staff, commissioners, liquor control adjudication board members, and licensees and their employees, and shall be financed through the money collected from the assessment of fines against licensees; provided that fine moneys, not to exceed ten per cent a year of fines accumulated, may be used to fund public liquor-related educational or enforcement programs;

     (4)  From time to time to make, amend, and repeal rules, not inconsistent with this chapter, as in the judgment of the commission are deemed appropriate for carrying out this chapter and for the efficient administration thereof, and the proper conduct of the business of all licensees, including every matter or thing required to be done or which may be done with the approval or consent, by order, under the direction or supervision of, or as prescribed by the commission; which rules, when adopted as provided in chapter 91 shall have the force and effect of law;

     (5)  [Subject to chapter 76, to] To appoint and remove an administrator, subject to the advice and consent of the legislative body of the county, who may also be appointed an investigator and who shall be responsible for the operations and activities of the staff.  The administrator may hire and remove hearing officers, investigators, and clerical or other assistants as its business may from time to time require, prescribe their duties and fix their compensation, and engage the services of experts and persons engaged in the practice of a profession, if deemed expedient.  Every investigator, within the scope of the investigator's duties, shall have the powers of a police officer;

     (6)  To limit the number of licenses of any class or kind within the county, or the number of licenses of any class or kind to do business in any given locality, when in the judgment of the commission such limitations are in the public interest;

     (7)  To prescribe the nature of the proof to be furnished, the notices to be given, and the conditions to be met or observed in case of the issuance of a duplicate license in place of one alleged to have been lost or destroyed, including a requirement of any indemnity deemed appropriate to the case;

     (8)  To fix the hours between which licensed premises of any class or classes may regularly be open for the transaction of business, which shall be uniform throughout the county as to each class respectively;

     (9)  To prescribe all forms to be used for the purposes of this chapter not otherwise provided for in this chapter, and the character and manner of keeping of books, records, and accounts to be kept by licensees in any matter pertaining to their business;

    (10)  To investigate violations of this chapter, chapter 244D and, notwithstanding any law to the contrary, violations of the applicable department of health's allowable noise levels, through its investigators or otherwise, to include covert operations, and to report violations to the prosecuting officer for prosecution and, where appropriate, the director of taxation to hear and determine complaints against any licensee; provided that a liquor commission in a county with a population of seven hundred thousand or greater may establish a pilot program that employs both a dBA and a dBC sound level measurement system for the purpose of community noise control; provided further that the dBC sound level measurements shall be in accordance with the following maximum permissible sound levels in dBC:

         (A)  Zoning districts that include all areas equivalent to lands zoned residential, conservation, preservation, public space, open space, or similar type shall have a maximum dBC sound level of fifty-five from 7:00 a.m. to 10:00 p.m. and a maximum dBC level of forty-five from 10:00 p.m. to 7:00 a.m.;

         (B)  Zoning districts that include all areas equivalent to lands zoned for multi-family dwellings, apartment, business, commercial, hotel, resort, or similar type shall have a maximum dBC sound level of sixty from 7:00 a.m. to 10:00 p.m. and a maximum dBC level of fifty from 10:00 p.m. to 7:00 a.m.; and

         (C)  Zoning districts that include all areas equivalent to lands zoned in agriculture, country, industrial, or similar type shall have a maximum dBC sound level of seventy from 7:00 a.m. to 10:00 p.m. and a maximum dBC level of seventy from 10:00 p.m. to 7:00 a.m.;

    (11)  To prescribe, by rule, the terms, conditions, and circumstances under which persons or any class of persons may be employed by holders of licenses;

    (12)  To prescribe, by rule, the term of any license or solicitor's and representative's permit authorized by this chapter, the annual or prorated amount, the manner of payment of fees for the licenses and permits, and the amount of filing fees;

    (13)  To prescribe, by rule, regulations on dancing in licensed premises; and

    (14)  To prescribe, by rule, the circumstances and penalty for the unauthorized manufacturing or selling of any liquor."

     SECTION 2.  Section 281-45, Hawaii Revised Statutes, is amended to read as follows:

     "§281-45  No license issued, when.  No license shall be issued under this chapter:

     (1)  To any minor or to any person who has been convicted of a felony and not pardoned, or to any other person not deemed by the commission to be a fit and proper person to have a license; provided that the commission may grant a license under this chapter to a corporation that has been convicted of a felony where the commission finds that the corporation's officers and shareholders of twenty-five per cent or more of outstanding stock are fit and proper persons to have a license;

     (2)  To a corporation the officers and directors of which, or any of them, would be disqualified under paragraph (1) from obtaining the license individually, or a stockholder of which, owning or controlling twenty-five per cent or more of the outstanding capital stock, or to a general partnership, limited partnership, limited liability partnership, or limited liability company whose partner or member holding twenty-five per cent or more interest of which, or any of them would be disqualified under paragraph (1) from obtaining the license individually;

     (3)  Unless the applicant for a license or a renewal of a license, or in the case of a transfer of a license, both the transferor and the transferee, present to the issuing agency a tax clearance certificate from the department of taxation and from the Internal Revenue Service showing that the applicant or the transferor and transferee do not owe the state or federal governments any delinquent taxes, penalties, or interest; or that the applicant, or in the case of a transfer of a license, the transferor or transferee, has entered into an installment plan agreement with the department of taxation and the Internal Revenue Service for the payment of delinquent taxes in installments and that the applicant is or the transferor or transferee is, in the case of a transfer of a license, complying with the installment plan agreement; provided that when the applicant or the transferor or transferee, in the case of a transfer of a license, is actively challenging a tax assessment, penalty, or other proceeding that prevents the issuance of a signed certificate from the appropriate federal or state tax agency, the commission may issue a temporary license in accordance with section 281-32;

     (4)  To an applicant for a class 2, class 4 except for convenience minimarts, class 5, class 6, class 11, class 12, class 13, class 14, class 15, class 17, or class 18 license unless the applicant for issuance of a license or renewal of a license, or in the case of a transfer of a license, both the transferor and the transferee, present to the issuing agency proof of liquor liability insurance coverage in an amount of $1,000,000; or

     (5)  To any applicant who has had any liquor license revoked less than two years previous to the date of the application for any like or other license under this chapter."

     SECTION 3.  Section 281-51, Hawaii Revised Statutes, is amended to read as follows:

     "§281-51  Prior inspection.  No license shall be issued under this chapter unless and until the liquor commission has caused to be made a thorough inspection of the premises upon which the proposed business is to be conducted and is satisfied as to its fitness and that all other general conditions and proposed methods of operation under the license are such as are suitable for carrying on the business in a reputable way.  "In a reputable way" shall have the same meaning as defined under rules adopted by the commission pursuant to chapter 91 and includes, among other considerations, operating in such a manner that activities within the premises or in such adjacent related outdoor areas, such as parking lots or lanais, will not create noise in excess of standards contained in state or county noise or vibration codes [which] that intrudes into nearby residential units."

     SECTION 4.  Section 281-53.5, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§281-53.5[]]  County liquor commissions; criminal history record check.  (a)  The respective county liquor commissions may request a criminal history record check of an applicant for a liquor license in accordance with section 846‑2.7.  The criminal history record check, at a minimum, shall require the applicant to disclose whether:

     (1)  The applicant has been convicted in any jurisdiction of a crime that would tend to indicate the applicant may be unsuited for obtaining a liquor license; and

     (2)  The judgment of conviction has not been vacated.

     For the purpose of this section, the criminal history disclosure made by the applicant may be verified by the liquor commission by means of information obtained through the Hawaii criminal justice data center.  The applicant shall provide the Hawaii criminal justice data center with personal identifying information which shall include but not be limited to the applicant's name, social security number, date of birth, and gender.  This information shall be secured only for the purpose of conducting the criminal history record check authorized by this section.

     (b)  The applicant shall submit to the liquor commission:

     (1)  A statement signed under penalty of law as to whether the applicant has ever been convicted of a crime other than a minor traffic violation;

     (2)  Written consent to request and obtain criminal history record information for verification; and

     (3)  Permission to be fingerprinted.

     (c)  The liquor commission shall obtain criminal history record information through the Hawaii criminal justice data center on the applicant.  The information obtained shall be used exclusively for the stated purpose for which it was obtained and shall be subject to applicable federal laws and regulations currently or hereafter in effect.

     (d)  For the purposes of this section, if an applicant is a corporation or other entity, only the following individual persons shall be subject to criminal history record checks pursuant to this section:

     (1)  Persons who hold at least twenty-five per cent control over the corporation or other entity; and

     (2)  Individual persons with management or operational authority over liquor-related operations.

The commission may request an applicant to disclose whether any other individuals associated with the corporation or other entity has been convicted of a felony."

     SECTION 5.  Section 281-104, Hawaii Revised Statutes, is amended to read as follows:

     "§281-104  Investigators, employees, counsel for.  Whenever any investigator or other employee of the liquor commission shall be prosecuted for any crime or sued in any civil cause for acts done in the performance of the investigator's or employee's duty as such investigator or employee, the investigator or employee [shall] may be represented and defended [(1) in any such]:

     (1)  In a criminal proceeding, by an attorney to be employed and paid by the commission; and

     (2)  [in any such] In a civil cause, by the corporation counsel [or county attorney,] of the county in which the investigator or employee is serving or, if permitted under the appropriate county charter, by an outside attorney to be employed and paid for by the commission."

     SECTION 6.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 7.  This Act shall take effect upon its approval; provided that the amendments made to section 281-17(a), Hawaii Revised Statutes, by section 1 of this Act shall not be repealed when that subsection is reenacted on May 5, 2017, pursuant to Act 297, Session Laws of Hawaii 2012.

 

INTRODUCED BY:

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Report Title:

Liquor Commission; Administrator; Tax Clearance Challenges; Temporary License; Criminal History Record Checks; Legal Representation of Investigator or Other Employee of a Liquor Commission

 

Description:

Exempts the appointment and removal of an administrator of a liquor commission from civil service laws and requires the appointment to be subject to the advice and consent of the legislative body of the county.  Allows the commission to issue a temporary license when the applicant or the transferor or transferee, in the case of a transfer of a license, is actively challenging a tax assessment, penalty, or other proceeding that prevents the issuance of a signed certificate from the appropriate federal or state tax agency.  Limits the criminal history record check requirements for applicants of liquor licenses who are corporations or other entity to those persons with management or operational authority over the liquor-related operations.  Allows, rather than requires, any investigator or other employee of the liquor commission to be represented and defended in any criminal or civil cause of action arising out of an action done as part of the investigator's or other employee's duty by certain specified counsel.

 

 

 

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