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shall acceptall written or oral testimony for or against the application whether theapplication is denied, refused, or withdrawn.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

(1)  Registered voters for the area within fivehundred feet of the nearest point of the premises for which the license isasked; or

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

have duly filed or caused to be filed their protestsagainst the granting of the license, or if there appears any otherdisqualification 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 ofthe owners and lessees of record of real estate and owners of record of sharesin a cooperative apartment", each property counts only once; provided thatroadways shall not be included.  A protest submitted by the majority of theco-owners or the majority of the co-lessees of a property shall constitute aprotest by all the owners or lessees of record of that property.  A protestfiled by owners or lessees who own more than one property shall be counted foreach property.

(b)  The liquor commission shall make availableto the applicant and any protester for review before the public hearing, theprotest list of those persons who filed a protest or objection to theapplication; provided that the applicant shall not use the protest list toattempt to influence in any way any protester to withdraw the protest orobjection.  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 becertified by the clerk of the county.  The liquor commission shall rule onproposed corrections, additions, and subtractions and give reasons for the ruling.

(c)  The commission may also, with likediscretion:

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

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

provided that in any case where any person affectedby such decision petitions the commission for a rehearing of the applicationand on oath alleges facts and grounds for consideration which were not formerlypresented or considered, or any other matter of fact which in the judgment ofthe commission seems sufficient to warrant a rehearing, such rehearing may begranted by the commission in its discretion upon the publication of notice ofrehearing at least seven days before the date of the rehearing.  When arehearing is allowed notice shall be given to the applicant and to theapplicant's opponents, by publication or otherwise as the commission shalldirect. [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, amajority of co-owners or co-lessees must register a protest in order for thatproperty to be counted as one protest vote; thus, even if commission were tohave counted the two protest votes that were disallowed, the two added voteswould not have resulted in a majority vote nullifying the liquor licenseapplication.  111 H. 234, 140 P.3d 1014.

  State and county entities, as owners of real property, areincluded 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 definitionof "owner of record" under this section as property owners of realestate.  111 H. 234, 140 P.3d 1014.

  As it is possible to give effect to §91-11 and this sectioninsofar as a public hearing on a license application must be regarded as acontested case subject to the requirements of chapter 91, this section does notconflict with §91-11.  118 H. 320, 189 P.3d 432.

  Public hearings on liquor license applications held by theliquor commission are contested case hearings such that §91-11 requires anycommissioner who is not present at any stage of the public hearing to becomefamiliar with the record before voting on a liquor license application, unlessthe 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 beforevoting 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 liquorcommission voted, albeit ineffectively, within the fifteen day periodprescribed by this section.  118 H. 320, 189 P.3d 432.