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:
FOR THE COMMISSION: Gerriann Fox.
FOR THE APPLICANT: Kathyrn A. Leany.
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.
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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
(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
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
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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.
Applicant requested a hearing because she disagreed with the date
that the Regulatory staff asserted was the date that she completed her
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.)
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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
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
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
Page 4 of 5 - FINAL ORDER
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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-
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