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Rollins v. State, Department of Public Safety, Alcoholic Beverage Control Board

Supreme Court of Alaska

September 22, 2013

ELIZABETH H. ROLLINS, Appellant,
v.
STATE OF ALASKA, DEPARTMENT OF PUBLIC SAFETY, ALCOHOLIC BEVERAGE CONTROL BOARD, Appellee.

Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Michael P. McConahy, Judge. Superior Court No. 4FA-11-01678 CI

Appearances: Elizabeth H. Rollins, pro se, North Pole, Appellant. Harriet Dinegar Milks, Assistant Attorney

General, and Michael C. Geraghty, Attorney General, Juneau, for Appellee.

Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.

OPINION

BOLGER, Justice.

I. INTRODUCTION

Elizabeth Rollins appeals the superior court's decision upholding the Alcoholic Beverage Control Board's determination to deny her application for a waiver of the annual operating requirement for her liquor license. Rollins argues that: (1) the Board's decision was not supported by the evidence; (2) she was improperly assigned the burden of proof; (3) the hearing before the administrative law judge violated her right to due process; and (4) the Board's selective enforcement of its statutes violated her right to equal protection. We conclude that Rollins properly bore the burden of proof on the issue of whether she was entitled to a waiver, that the record supports the Board's decision, and that the Board proceedings did not violate her constitutional rights. We therefore affirm the superior court's decision to uphold the Board's action.

II. FACTS AND PROCEEDINGS

Elizabeth Rollins purchased a beverage dispensary license (liquor license) in late 1990.[1] Rollins attempted to open a bar on a property she owned on Old Richardson Highway, but was, for several years, unsuccessful. [2] Alaska Statute 04.11.330(a)(3) contains a requirement that an applicant for renewal of a liquor license must operate the licensed premises "for at least 30 eight-hour days during each of the two preceding calendar years . . . ." Each year from 1991 through 1994, Rollins applied for a waiver of the 30-day annual operating requirement for varying reasons.[3] Each year the Board granted Rollins a waiver.[4]

In December 1995, Rollins applied for her fifth waiver of the annual operating requirement. In her application Rollins explained that she attempted to open the bar, but needed extensive renovations in order to receive a health permit, and she could not complete those renovations by December 1, 1995. The Board denied her request for a waiver under the regulation governing a third or subsequent consecutive application for a waiver.[5] Because a waiver was required to renew her license, the Board also denied the renewal of her liquor license. Rollins appealed.

In Rollins v. State, Department of Revenue, Alcoholic Beverage Control Board, we upheld the superior court's decision up holding the Board's determination that the Board had the authority to enact the regulation governing consecutive applications for waiver and held that the Board's decision was supported by substantial evidence.[6]However, we granted Rollins leave to file an Alaska Civil Rule 60(b)(3) motion for relief from judgment based on a misrepresentation the Board had made in the superior court.[7]On remand, the superior court granted Rollins relief from its earlier judgment and reversed the Board's denial of the waiver application. In 2003, the Board sent Rollins a letter proposing terms for a settlement (the 2003 settlement). Rollins agreed to the terms outlined in the letter. According to the terms, the Board would grant her a fifth consecutive waiver "with the express warning that it is a final waiver of the operating requirement and no future waivers will be granted for this license." The letter also specified that the license may only be transferred to another licensee with an express warning that "[t]he Board currently reviews waiver histories by license" and "[t]he requirement that the license be operated for 30 consecutive days in the calendar year 2004 will transfer to the new licensee."

After the 2003 settlement, Rollins applied to transfer her license to a new location on Old Airport Way. Rollins operated at the Old Airport Way location beginning in August 2004. In May 2005, Rollins sold the license to Tracy Hester. Under the agreement, Rollins retained a security interest in the license. Hester operated the license until mid-2006 w hen she disappeared and became delinquent in her payments to Rollins. Although Hester had disappeared, Rollins claims the building owner at Old Airport Way continued to operate the license.

Rollins commenced foreclosure proceedings on the license in October 2006. She also renewed the license. At some point in mid-2007, Rollins began operating the license again.

Rollins operated the license at the Old Airport Way location until May or June 2008. After she repeatedly noticed her alcohol was missing and received reports that the building owner had been opening the bar after hours, Rollins shut down operations and vacated the property. However, the license remained registered to the Old Airport Way location.

In June 2009, Rollins saw an advertisement indicating that another bar was moving to the Old Airport Way location. She filed an application to transfer her license from the Old Airport Way location to "No Premises." Around the same time, the Board became aware that Rollins had lost the lease on the Old Airport Way location and had not operated her license since May 2008. In a letter to Rollins sent in August 2009, the Board informed Rollins that she "must find a suitable location and file a transfer application, and be able to operate the license for at least 30 eight-hour days in 2009." The letter reminded Rollins that under the terms of the 2003 settlement letter, no future waivers would be granted for the license.

In an attempt to operate her license, Rollins prepared a business plan and tried to obtain a bank loan. But the bank declined to make a loan. Rollins inquired about leasing the premises formerly occupied by the bar that had moved to the premises she had vacated, but she did not want to share the space with a restaurant that had already leased part of the property. Rollins also spoke with a real ...


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