Including Procedure for Application, Cancellation, Suspension or Revocation of Permit.
Section 1.47 All Hearings for Cancellation, Suspension or Revocation of Permits to be Before Director or Designated Hearing Officer Upon Notice of Hearing; Emergency Exception.
All hearings for the cancellation, suspension, revocation, or money fine of permits shall initially be before the Director or a Hearing Officer designated as provided in this Article, pursuant to the notice required by this Article, with an opportunity for interested parties to respond and present evidence and argument on all issues involved. Hearings, including proceedings on an application for a permit, may initially be held before the Director, at his discretion, pursuant to the same notice requirements stated above. Provided, that if the Director finds that the public health, safety or welfare imperatively requires emergency action, and incorporates a finding to that effect in his Order, summary suspension of the permit may be ordered pending proceedings for revocation or other action, which proceedings shall be promptly instituted and determined. (Amended 12-17-82)
Section 1.48 Contents of Notice Required.
In every case in which a hearing is required by these Regulations or by any law of the State of Arkansas pursuant to notice, such notice shall include the following:
(1) A statement of the time, place and nature of the hearing;
(2) A statement of the legal authority and jurisdiction under which the hearing is to be held;
(3) A short and plain statement of the matters of fact and law asserted.
Section 1.49 Conduct of Hearing by Director or Hearing Officer.
In the conduct of any hearing held by the Director or the Hearing Officer designated as provided in these Articles, the Director or such Hearing Officer shall be authorized to examine or cause to be examined under oath any person, and to examine or cause to be examined books and records of any permittee; to hear testimony, to take proof material for his information and for the purposes of the hearing; to administer or cause to be administered oaths; and for such purposes to issue subpoenas to require the appearance of witnesses and the production of books and records, which subpoena shall be effective in any part of this state. Any Circuit Court, either in the term time or vacation, may by order duly entered require the attendance of witnesses or the production of relevant books and records subpoenaed by the Director and the Court may compel obedience to its orders by proceedings for contempt. Any applicant or permittee involved in a hearing before the Director shall be entitled, on request, to a subpoena for the compulsory attendance of witnesses desired by him. All witnesses subpoenaed by the Director or Board shall be entitled to such mileage and fees as are prescribed by law for witnesses in the Circuit Courts in the state. The mileage and fees of witnesses subpoenaed at the request of any applicant or permittee shall be paid by him. (Amended 8-19-93)
Section 1.50 Order Denying, Cancelling, Suspending, Revoking or Imposing a Money Fine Against the Permit.
Whenever the Director shall deny an application for any permit or shall cancel, suspend, revoke, or impose a money fine against any permit, he shall prepare an Order so providing, which shall be signed by the Director or some person designated by him and the seal of the Director shall be affixed thereto. Said Order shall include findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. Said Order shall be mailed by certified mail by the Director to the applicant at the address shown on the application or to the permittee at the address of the permitted business as the case may be. Such Order shall be final and binding on all parties until such Order has been appealed as provided in this Article.
Section 1.51 Appeal by Person Aggrieved by Order of Director.
Any applicant or permittee aggrieved by an Order of cancellation, denial, suspension, revocation, or the imposition of a money fine by the Director, or any person or group of persons who have formally protested the issuance of any permit before a decision was rendered by the Director and are aggrieved by the issuance of such permit, may appeal from such Order to the Alcoholic Beverage Control Board by filing a notice of appeal with the Board. The notice of appeal must be mailed or delivered to the offices of the Alcoholic Beverage Control Division within fifteen (15) days after the Order to be appealed from was received by the recipient, as shown by the Certified Mail Return Receipt card returned to the Alcoholic Beverage Control Division. In the event the person filing an appeal of the Director’s Decision or Order was not sent a certified letter of the same, then the fifteen (15) day appeal period begins on the date the Director’s Decision or Order was issued. The notice of appeal shall designate the name of the permittee or applicant.
At least ten (10) days before the time set for the hearing the Alcoholic Beverage Control Division shall notify the applicant, permittee, or protestor of the time and place where said appeal shall be heard by the Board or by a Hearing Officer designated as provided in this article. Such notice to the applicant, permittee or protestor shall be mailed by regular first class mail. Said hearing shall be held within at least sixty (60) days after the date of the filing of the notice of appeal unless the person appealing shall consent to a later hearing. No request for a continuance of a Board hearing made after the Friday before a scheduled Board hearing will be considered by the Director, absent emergency circumstances, the determination of which is vested in the discretion of the Director. (Amended 8-16-11)
Section 1.52 Review by Board of Action of Director on Own Motion; Effective Date of Director’s Action.
The Alcoholic Beverage Control Board may on its own motion review any action of the Director in granting or failing to grant, renewing or failing to renew, cancelling, revoking or suspending, fining, or failing to cancel, revoke, suspend, or fine upon complaint any permit; and, upon such review, set aside any action of the Director in any of said respects. For purposes of this Section only, any action by the Director in any of said respects shall not become effective until the day following the next meeting of the Board following the action by the Director, and then only if the Board fails to make a motion to exercise its right of review. In exercising such right of review the Board may hold any hearing deemed necessary and shall have the power to conduct such hearing in the manner required by this Article. (Amended 8-19-93)
Section 1.53 Conduct of Hearing by Board.
For the purpose of hearing or conducting any appeal authorized to be heard by it, the Board or any Hearing Officer designated as provided in this Article, shall have the power to examine or cause to be examined under oath any permittee, the Director, or any other person, and to examine or cause to be examined the books and records of any such permittee; to hear testimony and to take proof material for its information or the information of such Hearing Officer in hearing such appeal; to administer or cause to be administered oaths; and for such purposes to issue subpoenas requiring the attendance of witnesses and the production of books and records, such subpoenas shall be effective in any part of this State; and any Circuit Court may by order duly entered require the attendance of witnesses and the production of relevant books and records subpoenaed by the Board and the Court may compel obedience to its orders by proceedings for contempt. An applicant involved in a hearing before the Board shall be entitled, on request, to a subpoena for the compulsory attendance of witnesses desired by him. All witnesses subpoenaed by the Director or the Board shall be entitled to such mileage and fees as are prescribed by law for witnesses in the Circuit Courts of the State; and the mileage and fees of witnesses subpoenaed at the request of an applicant or permittee shall be paid by him.
Section 1.54 Decision or Order by Board.
Within five (5) days after a hearing is concluded by the Board, the Board shall render its written decision or Order. Such written opinion, decision or Order shall include findings of facts and conclusions of law, separately stated. Findings of fact, if set forth in statutory language shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. A copy of such opinion, decision, or Order shall be mailed by the Board by certified mail to the applicant, permittee, or protestor. Such Order and decision shall be final and binding on the Director and the applicant, permittee, or protestor. Provided, however, that an appeal may be taken from any Order cancelling, suspending, revoking, or placing a money fine against a permit or failing to grant or deny a permit as provided for in this Article. (Amended 8-19-93)
Section 1.55 Appeal from Board to Courts.
Within thirty (30) days after the mailing of the Order of the Board, any permittee aggrieved by an Order of the Board or any person or group of persons who have formally appealed a decision of the Director to the Board and are aggrieved by a decision of the Board, may appeal to the Circuit Court system in accordance with the Arkansas Administrative Procedure Act. An appeal from the judgment of the Circuit Court may be taken to the Arkansas Court of Appeals or the Supreme Court of Arkansas in the manner generally provided for the appeal of civil matters from the Circuit Court. (Amended 8-19-93)
Section 1.55.1 Appellant to Pay Costs of Preparing Transcript of Board Hearings.
Pursuant to the provisions of the Arkansas Administrative Procedure Act, the Alcoholic Beverage Control Division shall prepare the certified copy of the agency record for filing in any appeal filed under the Arkansas Administrative Procedure Act. However, the Alcoholic Beverage Control Division will recover $1.50 per page for each page of the transcript of the Alcoholic Beverage Control proceedings filed with the Circuit Court, if the Alcoholic Beverage Control Division is determined to be the prevailing party in the Administrative Procedure Act review. In the event any parties request that the Alcoholic Beverage Control Division provide a copy of the agency record, the Alcoholic Beverage Control Division shall be entitled to recover forty cents ($.40) per page for each copy of the transcript. Any copies of Alcoholic Beverage Control files, records, or transcripts shall be paid for at the rates noted above. All monies received by the Alcoholic Beverage Control Division pursuant to the above provisions shall be deposited to the General Revenues of the State of Arkansas. (Amended 8-19-93)
Section 1.56 Admissibility of Evidence in Hearings.
In any hearing provided for by this Article or by any alcoholic beverage control law of the State of Arkansas, the Director, the Board and any Hearing Officer designated pursuant to this Article to conduct such hearing, shall not be bound by the legal rules of evidence in conducting any hearing and in making any decision, and may take into consideration any testimony, papers or documents which may be deemed relevant to the issues involved.
Section 1.57 Record of Hearing Required; Contents of Record.
In any hearing held pursuant to this Article or any alcoholic beverage control law of the State of Arkansas, the person conducting such hearing shall cause to be prepared a record of the hearing which shall include:
(1) All pleadings, motions and intermediate rulings;
(2) Evidence received or considered, including, on request of the party, a transcript of all proceedings or any part thereof;
(3) Offers of proof, objections and rulings thereon;
(4) Proposed findings and exceptions thereto.
Section 1.58 Designation of Hearing Officer.
Pursuant to the power granted to the Alcoholic Beverage Control Division, in part by ACA § 25-15-213 and pursuant to other powers granted to the Director and the Board, the Director or the Board may designate any member of the Alcoholic Beverage Control Division to conduct any hearing authorized by this Article or by any alcoholic beverage control law of the State of Arkansas. (Amended 8-19-93)
Section 1.59 Decision or Order in Hearing Conducted by Hearing Officer.
When in the case of any hearing conducted by a Hearing Officer designated as provided in this Article the Director or a majority of the Board, as the case may be, has not heard the case or reviewed the record, the decision, if adverse to a party other than the Director or Board, shall not be made until a proposal for decision is served upon the parties, and an opportunity is afforded to each party adversely affected to file exceptions and present briefs and oral arguments to the Director or the Board, whichever is to render the decision. The proposal for decision shall contain a statement of the reasons therefor and the issues of fact or law necessary thereto, prepared by the person who conducted the hearing. If the Director or the Board, as the case may be, has heard the case, or reviewed the record, their decision shall be made and entered as otherwise provided by this Article.
Section 1.60 Notice Required by Director to Certain Persons Upon Application for Permit.
Upon receipt by the Director of an application for permit, written notice thereof, which shall include a copy of the application, shall be mailed by the Director to the Sheriff, Chief of Police, if located within a city, and Prosecuting Attorney of the locality in which the premises is situated, and to the Mayor and City Board of Directors or other governing body of the city in which the premises is situated, if within an incorporated area. No permit shall be issued by the Director until at least thirty (30) days have passed from the mailing by the Director of the notices required by this Regulation. Provided, that this requirement shall not apply if the applicant holds a restaurant mixed drink permit and subsequently makes application for a beer and/or wine permit only at the same location. (Amended 8-20-03)
Section 1.61 Hearing to be Held if Protest Within Thirty (30) Days.
If within the thirty (30) day period following the date of the mailing of the notices required by Section 1.60 of these Regulations the Director receives any written protest from any person to whom such notice was sent against the issuance of a permit, the Director shall not issue the permit until a hearing has been held on the issuance of the permit as provided in this Article.
Section 1.62 Right to Counsel and to Cross-Examine Witnesses for Any Person Compelled to Appear at Hearing.
Any person compelled to appear at any hearing provided for by this Article or by any alcoholic beverage control law of the State of Arkansas shall have the right to be accompanied and advised by counsel and to cross-examine witnesses.
Section 1.63 Cancelled, Suspended, or Revoked Permit to be Surrendered.
Within three (3) days after a permit shall have been cancelled, suspended, or revoked, pursuant to the Director’s summary authority under this Article or pursuant to any Order of the Director, Board, or any Court which has become final, notice thereof shall be given by the Director to the permittee by mailing such notice by certified mail to the permittee at the premises permitted or by personal service thereof upon the permittee. Upon receipt of such notice, the permittee shall immediately surrender the permit to the Director. The Director, immediately upon giving such notice of cancellation, suspension, or revocation, shall cause to be notified in any manner he deems appropriate the chief of police of the city or town in which the subject premises is located or the county sheriff in any case where the subject premises is located outside a city or town.
If such permit is not immediately surrendered, the Director shall issue a written demand for the surrender of the permit and deliver said demand to the sheriff of the county in which the permitted premises is located or to any authorized agent of the Alcoholic Beverage Control Enforcement Division. Said sheriff or authorized agent shall immediately take possession of the permit and return it to the Director. (Amended 8-19-93)