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Part 2: Defending Against an OLCC Notice of Violation

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Last month, Green Light Law Group discussed the reasons why licensees should always request a hearing following receipt of an Oregon Liquor Control Commission (OLCC) Notice of Proposed License Suspension or Notice of Proposed License Cancellation and the related procedures for doing so.

After filing a request for hearing (and, if applicable, an answer) the licensee can and should request materials from the OLCC well in advance of any pre-hearing conference (where matters are usually set for hearing or “trial” on the allegations contained in the Notice). While the OLCC is required to provide documents intended for use as evidence and to identify witnesses that will testify at the trial, these documents and this information is normally produced much closer to a hearing date. Fortunately, Oregon’s administrative regulations provide several tools for requesting information and documents from the OLCC beyond the narrower and required exchange of witness information and documents. Specifically, Oregon Administrative Regulation 137-003-0566 enables a licensee to request in writing that the OLCC admit certain facts and provide answers in writing in response to specific interrogatories. This is a unique and underused method of obtaining information about an alleged violation in a Notice. While Oregon Rules of Civil Procedure do not allow for these types of questions, they are actually allowed under Oregon’s Administrative Regulations. Propounding these requests early on in the matter is essential so that the licensee can evaluate their position well in advance of any hearing/trial date.

After receiving information and documentation responsive to the discovery methods above, the licensee will usually have a much better understanding of the facts underlying the allegations in the OLCC Notice, which often contain minimal detail. At this point, the licensee can make a more informed decision as to whether it is in the licensees’ long-term interests to further contest the Notice because the licensee can reasonably expect to prevail on at least some, or all, of the alleged violations in the Notice. After making this determination, the licensee can then use the discovery/information provided by the OLCC to begin preparing for a trial/hearing and possibly file a Motion for Summary Determination. A Motion for Summary Determination provides the licensee with an opportunity to request a ruling by an administrative judge on a legal issue (as well as claim or defense) based on the existing record before trial, which can save the licensee in both time and fees spent preparing a defense on a particular issue and further minimize the risks of any penalty, suspension or cancellation. In some cases, filing a Motion for Summary Determination can result in the complete disposition of a Notice without the need for a hearing/trial.

The above procedures are all pre-hearing/pre-trial procedural tools and protections that a licensee can and should utilize to defend against an OLCC Notice. By properly employing them to their advantage, the licensee can make informed decisions as to whether to stipulate to or contest some or all of the allegations and determine whether proceeding to hearing or trial on a Notice is the best course of action in the long-term. Green Light Law Group regularly defends licensees in matters before the Oregon Liquor Control Commission. If you have questions regarding these procedures and how they can be used to defend your license, please feel free to contact Green Light Law Group.

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Green Light Attorneys Perry N. Salzhauer, Daniel Shortt, and Brittany Adikes have joined McGlinchey Stafford