§281-59 - Hearing; rehearing.

§281-59 Hearing; rehearing. (a) Upon
the day of hearing, or any adjournment thereof, the liquor commission shall
consider the application and any protests and objections to the granting
thereof, and hear the parties in interest. The liquor commission shall accept
all written or oral testimony for or against the application whether the
application is denied, refused, or withdrawn. Within ninety days after the
hearing, or within one hundred twenty days thereafter if in its discretion the
commission extends the ninety days to one hundred twenty days, and gives public
notice of same, the commission shall give its decision granting or refusing the
application; provided that if a majority of the:

(1) Registered voters for the area within five
hundred feet of the nearest point of the premises for which the license is
asked; or

(2) Owners and lessees of record of real estate and
owners of record of shares in a cooperative apartment within five hundred feet
of the nearest point of the premises for which the license is asked,

have duly filed or caused to be filed their protests
against the granting of the license, or if there appears any other
disqualification under this chapter, the application shall be refused.
Otherwise, the commission may in its discretion grant or refuse the same.

For purposes of defining "a majority of
the owners and lessees of record of real estate and owners of record of shares
in a cooperative apartment", each property counts only once; provided that
roadways shall not be included. A protest submitted by the majority of the
co-owners or the majority of the co-lessees of a property shall constitute a
protest by all the owners or lessees of record of that property. A protest
filed by owners or lessees who own more than one property shall be counted for
each property.

(b) The liquor commission shall make available
to the applicant and any protester for review before the public hearing, the
protest list of those persons who filed a protest or objection to the
application; provided that the applicant shall not use the protest list to
attempt to influence in any way any protester to withdraw the protest or
objection. All applicants and protesters may submit corrections, additions,
and subtractions to the master list and the protest list at the public hearing;
provided that additions or corrections to the voter registration list shall be
certified by the clerk of the county. The liquor commission shall rule on
proposed corrections, additions, and subtractions and give reasons for the ruling.

(1) Grant a license to one person in preference to
another, without reference to any priority in the order of filing of the
applications; and

(2) Of its own motion, or on the suggestion of any
member, or of the investigator take notice of any matter or thing which in the
opinion of a majority of its members would be a sufficient objection to the
granting of a license; but in such case if the objection is one to which the
applicant should be given a reasonable time to answer, a continuance may be
granted in the discretion of the commission;

provided that in any case where any person affected
by such decision petitions the commission for a rehearing of the application
and on oath alleges facts and grounds for consideration which were not formerly
presented or considered, or any other matter of fact which in the judgment of
the commission seems sufficient to warrant a rehearing, such rehearing may be
granted by the commission in its discretion upon the publication of notice of
rehearing at least seven days before the date of the rehearing. When a
rehearing is allowed notice shall be given to the applicant and to the
applicant's opponents, by publication or otherwise as the commission shall
direct. [L Sp 1933, c 40, §34; RL 1935, §2603; RL 1945, §7255; RL 1955,
§159-58; am L 1957, c 321, §1(g); HRS §281-59; am L 1972, c 177, §7; am L 1984,
c 123, §3; gen ch 1985; am L 1990, c 171, §19; am L 1995, c 142, §2; am L 2001,
c 257, §7; am L 2008, c 168, §15; am L 2009, c 184, §10]

Cross References

Administrative hearings, see chapter 91.

Case Notes

Based on a plain and unambiguous reading of this section, a
majority of co-owners or co-lessees must register a protest in order for that
property to be counted as one protest vote; thus, even if commission were to
have counted the two protest votes that were disallowed, the two added votes
would not have resulted in a majority vote nullifying the liquor license
application. 111 H. 234, 140 P.3d 1014.

State and county entities, as owners of real property, are
included as owners for both notice and protest purposes as set forth under
§281-57 and this section. 111 H. 234, 140 P.3d 1014.

The State and county governments fall within the definition
of "owner of record" under this section as property owners of real
estate. 111 H. 234, 140 P.3d 1014.

As it is possible to give effect to §91-11 and this section
insofar as a public hearing on a license application must be regarded as a
contested case subject to the requirements of chapter 91, this section does not
conflict with §91-11. 118 H. 320, 189 P.3d 432.

Public hearings on liquor license applications held by the
liquor commission are contested case hearings such that §91-11 requires any
commissioner who is not present at any stage of the public hearing to become
familiar with the record before voting on a liquor license application, unless
the application is automatically rejected pursuant to subsection (a). 118 H.
320, 189 P.3d 432.

The liquor commission's failure to comply with §91-11,
requiring that all commissioners personally consider the entire record before
voting on a liquor license application, was not a "failure to act"
such as would trigger the automatic approval provision of §91-13.5 where the liquor
commission voted, albeit ineffectively, within the fifteen day period
prescribed by this section. 118 H. 320, 189 P.3d 432.