BEFORE THE LIQUOR CONTROL COMMISSION by TBd92btU

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									                 BEFORE THE LIQUOR CONTROL COMMISSION
                        OF THE STATE OF OREGON


In the Matter of the                   )     FINAL
Application for a                      )     FINDINGS OF FACT,
Service Permit by:                     )     CONCLUSIONS OF LAW,
                                       )     AND ORDER
                                       )
       Kathyrn A. Leany                )     OLCC-94-SPR-044


     A telephone hearing was held in the above matter on May 25, 1994, in

Portland, Oregon, before Hearings Examiner Cheryl Lee Ho.      None of the

participants were represented by legal counsel.

     The Hearings Examiner considered the record of the hearing and the

applicable law and issued a Proposed Order mailed August 1, 1994.

     No Exceptions to the Proposed Order were filed within the 15-day

period specified in OAR 845-03-080.

     The Commission adopts the Proposed Order of the Hearings Examiner as

the Final Order of the Commission and enters the following based on the

preponderance of the evidence:

                                 WITNESSES

FOR THE COMMISSION:           Gerriann Fox.

FOR THE APPLICANT:            Kathyrn A. Leany.

                                   ISSUE

     Whether the Commission should refuse to grant a service permit to

Applicant pursuant to OAR 845-09-020(6)(a), because the Applicant has had

two DUII convictions or one conviction and one diversion within three

years, and one of these was within 12 months of the application.

/ / / / /

/ / / / /




Page 1 of 5 - FINAL ORDER
                        SERVICE PERMIT DENIAL CRITERIA

            (1) ORS 471.380(1) and (4) allow the Commission
            to deny a service permit based on the applicant's
            habit of using alcohol or controlled substances to
            excess and on the applicant's law violation
            history. This rule describes how the Commission
            applies these statutory provisions.

            (2) For this rule, references to a period of time
            mean a period of time ending on the date the
            Commission receives the application. For example,
            "within two years" means within two years of the
            date the Commission receives the application.

            . . . . .

            (6)   Driving Under the Influence of Intoxicants
            (DUII)/Furnishing Alcohol to Minors/Liquor Law
            Violations.   The Commission will deny a service
            permit if:

            (a) Within three years the applicant has had two
            DUII convictions or one diversion and one
            conviction, any one of which was within 12 months.
             OAR 845-09-020(1), (2), and (6)(a).


Findings of Fact

      1.    Kathyrn A. Leany (Applicant) has applied for a service permit.

Applicant's service permit application was received by the Commission on

approximately February 2, 1994.

      2.    On February 15, 1994, the Regulatory Process Division sent

Applicant a Service Permit Refusal letter.    The letter advised Applicant

that the Commission proposed to deny Applicant's service permit for the

following reasons:

            The Commission will deny a service permit, if
            within three years, the applicant has had two
            Driving Under the Influence of Intoxicants (DUII)
            convictions or one DUII Diversion and one DUII


/ / / / /




Page 2 of 5 - FINAL ORDER
             conviction, any one of which was within twelve
             months of the service permit application.

             You were convicted of Driving Under the Influence

             of Intoxicants on or about January 3, 1994, after

             you completed a DUII diversion program on or about

             August 28, 1992.    (Exhibit B.)

        3.   Applicant made a timely request for hearing.

       4.    On approximately August 28, 1992, Applicant completed a

Diversion program.     The incident leading to the Diversion involved an

arrest for DUII in approximately July 1991.        (See Discussion below.)

      On approximately January 3, 1994, Applicant was convicted of DUII.

The   incident   leading   to   the   conviction   occurred   on   approximately

November 7, 1993.

       5.    No good cause reasons to outweigh the refusal basis were

offered for the record.

Discussion

      Applicant requested a hearing because she disagreed with the date

that the Regulatory staff asserted was the date that she completed her

Diversion.

      The Regulatory staff asserts that Applicant completed her Diversion

on August 28, 1992.    As evidence of this, the Regulatory staff introduced

a copy of Applicant's Diversion Agreement which states:

             The Petition is allowed and the Diversion Agreement
             shall run for 365 days, beginning on August 28,
             1991 and ending on August 28, 1992. (Exhibit F3.)




/ / / / /




             Page 3 of 5 - FINAL ORDER
/ / / / /

        Applicant contends that she completed her Diversion in May 1992.

Applicant       did   not   provide         evidence,     other      than    her    testimony,       to

establish May 1992 as the date she completed Diversion.

        After    talking       with     Applicant        during      the     hearing,    Applicant

acknowledged, that even if the evidence supported her assertion that she

completed Diversion in May 1992 (instead of August 1992 as alleged), this

different date would make no difference in the outcome of this case.

        The   Commission       finds        that    Applicant     did       not    establish    by    a

preponderance of the evidence that the date of her Diversion was May

1992.     Even if she did, the May 1992 date would not have a different

result than the August 1992 date for purposes of this refusal basis

because either date is still within the three-year period stated in the

rule.

Conclusions of Law

        OAR 845-09-020(6)(a) provides that the Commission will refuse to

grant a service permit where the applicant has had two DUII convictions

or one DUII diversion and one DUII conviction within three years, and one

of   these    was     within    12    months       of   the   date     of    the   service     permit

application.

        The record shows that Applicant has had one DUII conviction and one

diversion within the last three years.                          The January 3, 1994, DUII

conviction occurred within 12 months of February 2, 1994, the date that

Applicant's       application         for    a     service    permit    was       received   by   the

Commission.




                Page 4 of 5 - FINAL ORDER
/ / / / /

/ / / / /

     The rule does not state any good cause reasons to outweigh the

diversion and conviction.     OAR 845-09-020.

     The Commission concludes that OAR 845-09-020(6)(a) provides a basis

to deny Applicant a service permit.

                        ULTIMATE CONCLUSIONS OF LAW

     There is a basis to deny Applicant a service permit under OAR 845-

09-020(6)(a).

                                FINAL ORDER

     The Commission orders that the application for a service permit by

Kathyrn A. Leany be DENIED.

     It is further ordered that notice of this action, including the

reasons for it, be given.

     Dated this 31st day of August, 1994.




/s/ Cheryl Lee Ho                    /s/ Chris Lyons
Cheryl Lee Ho                        Chris Lyons
Hearings Examiner                    Administrator
Hearings Division                    OREGON LIQUOR CONTROL COMMISSION


Mailed this 31st day of August, 1994.

THIS ORDER IS EFFECTIVE 10 DAYS AFTER THE MAILING DATE.


NOTICE:     You are entitled to judicial review of this Order. Judicial
            review may be obtained by filing a petition for judicial review
            within 60 days from the service of this Order. Judicial review
            is pursuant to the provisions of ORS Chapter 183.




             Page 5 of 5 - FINAL ORDER

								
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