1 BEFORE THE LIQUOR CONTROL COMMISSION
OF THE STATE OF OREGON
3 In the Matter of the ) FINAL
Application for a ) FINDINGS OF FACT,
4 Service Permit by: ) CONCLUSIONS OF LAW,
) AND ORDER
Christi R. Boatner ) OLCC-93-SPR-136
7 A telephone hearing was held in the above matter on January 4,
8 1994, between Portland and Albany, Oregon, before Hearings Examiner
9 Cheryl Lee Ho. None of the participants were represented by an
10 attorney. The record of the hearing was held open until January 11,
12 On April 26, 1994, the Commission considered the record of the
13 hearing, the applicable law, the Proposed Order of the Hearings
14 Examiner, Exceptions to the Proposed Order of the Hearings Examiner,
15 and Response to Exceptions. Based on this review and the
16 preponderance of the evidence, the Commissioners voted unanimously to
17 adopt the Proposed Order as the Final Order in this matter. The
18 Commission enters the following:
20 FOR THE COMMISSION: Gerriann Fox.
21 FOR THE APPLICANT: Christi R. Boatner.
23 At the hearing, the Hearings Examiner reserved ruling on the
24 Commission Regulatory staff's request to admit Exhibits J and K.
25 The Hearings Examiner rules that Exhibit J is admitted and that
26 Exhibit K is not admitted.
Whether the application for a service permit should be denied
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1 because Applicant has been convicted of two felonies involving violent
2 crimes, either of which was within three years, and the convictions
3 are related to Applicant's ability to exercise the license privileges.
4 OAR 845-09-020(4)(b); ORS 670.280.
5 FELONY CONVICTIONS
6 (1) ORS 471.380(1) and (4) allow the Commission
to deny a service permit based on the applicant's
7 habit of using alcohol or controlled substances
to excess and on the applicant's law violation
8 history. This rule describes how the Commission
applies these statutory provisions.
(2) For this rule, references to a period of
10 time mean a period of time ending on the date
the Commission receives the application. For
11 example, "within two years" means within two
years of the date the Commission receives the
. . . . .
(4) Felony Involving the Commission of a
15 Violent Crime. The Commission will deny a
service permit if the applicant has had:
. . . . .
(b) Two felony convictions for the
commission of violent crimes, any one of
19 which was within three years.
20 . . . . .
21 (d) "Violent crime" means crimes which
cause, attempt to cause, or threaten physical
22 injury or harm to another person. Examples
are: murder, rape, assault, sodomy, armed
23 robbery. OAR 845-09-020(1), (2), and (4).
* * * * *
Notwithstanding any other law, no licensing
26 board or agency shall deny, suspend or revoke
an occupational or professional license or
certification solely for the reason that the
applicant or licensee has been convicted of a
crime, but it may consider the relationship
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1 of the facts which support the conviction and
all intervening circumstances to the specific
2 occupational or professional standards in
determining the fitness of the person to
3 receive or hold such license or certificate.
Findings of Fact
1. Christi R. Boatner (Applicant) has applied for a service
permit. Applicant's service permit application was received by the
Commission on October 5, 1993. (Exhibit F1.)
2. On November 8, 1993, the Commission sent Applicant a Service
Permit Refusal letter. The letter stated that the Commission proposed
to deny Applicant's service permit application pursuant to OAR 845-09-
020(4)(b), for the reason that Applicant has been convicted of two
felonies involving violent crimes, one of which was within three years
of the date of her application. (Exhibit B.)
3. Applicant made a timely request for a hearing.
4. Applicant has been convicted of the following crimes:
18 Incident Date Conviction Date Crime
19 unknown 6/30/89 Second Degree Robbery
7/8/92 10/2/92 Conspiracy to Commit
21 Assault III (a
5. The circumstances involved in Applicant's felony conviction
on June 30, 1989, for Second Degree Robbery were as follows.
Applicant was hitchhiking from Corvallis after a domestic
dispute. A man in a truck picked her up and gave her a ride. When
the man pulled over to let her out of the truck, Applicant used a gun
and took the man's truck and wallet and left him stranded on the
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2 Applicant went to prison for approximately three and one-half
3 years for this robbery conviction. Applicant got out of prison in May
5 6. The circumstances involved in Applicant's felony
6 conviction on October 2, 1992, for Conspiracy to Commit Assault
7 III are as follows.
On July 8, 1992, Applicant drove a man (hereafter victim)
out to the jetty in Newport at night. On the jetty, Applicant
and the victim were met by two men who were acquaintances of
Applicant. The two men beat up the victim. A baseball bat and a
knife were used. The victim was beaten all over and stabbed in
14 the neck and nose area. He was taken by ambulance to the
16 Good Cause
17 7. Applicant has been working for the past seven months as
18 a waitress at Pop's Branding Iron Restaurant and Lounge. Susan
19 Holman is manager at the premises. Ms. Holman wrote a letter in
support of Applicant. Ms. Holman wrote:
Christi Boatner is a dependable and efficient
22 employee. She works well with her fellow
co-workers and is well liked by her
Applicant testified that she drove the victim out to the jetty
25 because the man had sexually assaulted her approximately a week
before. Applicant testified that she told a friend of hers about the
26 assault and that he, her friend, said he would "take care of" the man
who had sexually assaulted her. On the night of this incident,
Applicant drove her alleged assailant out to the jetty so that her
friend could "take care of" him.
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Christi is required by her job to serve
2 alcohol. However, she serves a very small
amount, as her primary job is to serve food.
3 Occasionally, a customer will have a glass
of wine with dinner and Christi would then be
required to go to our lounge and get her
5 cocktail, and then she returns to the coffee
. . . . .
Christi has worked hard to be a good employee
and I feel as manager that it would be
10 beneficial for you to allow her the service
11 permit, for this job and for any future
12 employment that she may enter into. (Exhibit
14 8. Applicant is on parole for Assault III and on probation for
15 Forgery I.
16 9. Debbie Falton has been Applicant's parole officer since May
17 1993. Ms. Falton wrote a letter in support of Applicant in which she
19 . . . She (Applicant) is on parole for Assault
III and on probation for Forgery I. Christi has
20 done very well on supervision, making scheduled
office visits; no new criminal activity; keeping
21 a job and clean U/As.
I am writing this letter to advise you that
22 Christi is being responsible and getting a
license to serve alcohol will help her in her
23 job. (Exhibit H.)
10. While in prison, Applicant took computer courses. Applicant
plans to complete her training in computers and ultimately get a job
in that field. Until she can do that, she needs to support herself as
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1 11. Applicant testified sincerely that she is trying to turn her
2 life around. While in prison, Applicant underwent counseling which
3 helped her become more responsible. Applicant is genuinely remorseful
4 about the way she treated the man in the robbery because he had been
5 trying to help her.
7 Applicant argued that she has a defense to her October 2, 1992,
8 felony conviction for assault.
9 Applicant contends that the "victim" in that incident was a
10 sexual predator who sexually abused many other women before he
11 attacked her. Applicant stated that it was because this person
12 sexually assaulted her that she drove him out to the jetty in Newport
13 where he was assaulted by her male friends who were trying to teach
14 the man a lesson. Applicant testified that the "victim" was later
15 charged by the district attorney's office for sex related crimes and
16 that she cooperated with the district attorney's office in that
17 investigation and was a witness at the trial.
18 / / / / /
19 / / / / /
20 There was no evidence in the record to corroborate Applicant's
21 testimony that the victim was a sexual predator. The Hearings
22 Examiner advised Applicant that the record of the hearing would be
23 held open to allow Applicant opportunity to provide information to
24 corroborate her testimony. No corroborating information was provided
25 for the record.
26 Conclusions of Law
OAR 845-09-020(4)(b) provides that the Commission will deny a
service permit if the applicant has had two felony convictions for the
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1 commission of violent crimes, any one of which was within three years
2 of the date of the service permit application.
3 The record shows that Applicant has been convicted of two
4 felonies and that one of the felonies occurred within the last three
6 OAR 845-09-020(4)(d) provides that a "violent crime" means
7 "crimes which cause, attempt to cause, or threaten physical injury or
8 harm to another person." Examples include assault and armed robbery.
9 Based on the information in the record concerning the circumstances
10 involved in Applicant's two felony convictions, the Commission
11 concludes that the convictions involve violent crimes.
12 Therefore, the Commission concludes that OAR 845-09-020(4)(b)
13 provides a basis to deny Applicant a service permit.
14 / / / / /
15 / / / / /
16 / / / / /
17 / / / / /
18 The rule does not allow for good cause to overcome the refusal
19 basis. OAR 845-09-020. Therefore, the fact that Applicant's employer
20 and probation officer have given her favorable recommendations do not
21 weigh against refusal.
22 Pursuant to ORS 670.280, the Commission must establish that
23 Applicant's criminal convictions are related to her ability to
24 serve and sell alcoholic liquor.2 The Commission is not aware of
For purposes of ORS 670.280, the Commission has concluded that
criminal convictions involving use of illegal drugs or violations of
alcoholic liquor laws are related to an applicant's ability to serve
and sell alcoholic liquor. The Commission reasoned that having
exercised poor judgement with regard to the use of one controlled
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1 any precedent which concludes that commission of a violent crime
2 is related to the applicant's ability to serve and sell alcoholic
3 liquor. Therefore, this is an issue of first impression.
The Commission finds that the violent acts of robbing a
person at gunpoint and conspiring to assault another involve a
danger to the public safety. The Commission concludes that for
purposes of ORS 670.280 the violent nature of these acts and the
resulting danger to the public safety weigh against finding that
10 Applicant is fit to serve alcoholic liquor.
11 The Commission concludes that pursuant to OAR 845-09-
12 020(4)(b), Applicant's application for a service permit should be
14 ULTIMATE CONCLUSIONS OF LAW
15 OAR 845-09-020(4)(b) provides a basis for the Commission to
deny a service permit to Applicant.
Applicant has been convicted of two felonies involving violent
crimes and one of these convictions was within three years of the date
of the application. The violent circumstances involved in the
convictions are related to the Applicant's ability to serve and sell
alcoholic liquor. The rule does not provide for good cause to
outweigh this refusal basis. OAR 845-09-020(4)(b); ORS 670.280.
The Commission orders that the service permit application of
26 substances (illegal drugs) that the applicant may also exercise the
same poor judgement with regard to service of alcoholic liquor, which
is also a controlled substance. John O. Myshak, OLCC-88-V-002, May
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1 Christi R. Boatner be DENIED.
2 It is further ordered that notice of this action, including the
3 reasons for it, be given.
4 Dated this 3rd day of May, 1994.
7 /s/ Chris Lyons
OREGON LIQUOR CONTROL COMMISSION
10 Mailed this 4th day of May, 1994.
11 THIS ORDER IS EFFECTIVE 10 DAYS AFTER THE MAILING DATE.
12 NOTICE: You are entitled to judicial review of this Order. Judicial
review may be obtained by filing a petition for judicial
13 review within 60 days from the service of this Order.
Judicial review is pursuant to the provisions of ORS Chapter
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