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HomeMy WebLinkAbout2022_1228 Liquor Open Session-Minutes - APPROVED.pdfALWIFIFIR-i-i'01WERCOUNTY OF KAUAI Minutes of Meeting OPEN SESSION See Open Session Minutes of 2/8/2023. Board/Commission: LIQUOR CONTROL COMMISSION Meeting Date December 28, 2022 Location Pi'ikoi Building, Suite 300 4444 Rice Street, Lihue, HI 96766 Start of Meeting: 1:00 p.m. End of Meeting: 4:07 p.m. Present Chair Dee Crowell, Vice Chair Leland Kahawai Members: Paul Endo, Gerald Matsunaga, Lorna Nishimitsu, Randall Nishimura, Tess Shimabukuro. Also: Liquor Control Staff: Director Leo Sandoval -Reyes, Liquor Private Secretary: Malialani Kelekoma, Boards & Commission Administrator Ellen Ching, Deputy County Attorney: Charles Foster Excused Absent SUBJECT DISCUSSION ACTION A. CALL TO ORDER Chair Crowell called the meeting to order @ 1:00 p.m. B. ROLL CALL Director Leo Sandoval -Reyes called for a roll call to ascertain quorum to conduct business, noting seven members were present to conduct business. C. ANNOUNCEMENTS: Date should be January 11, 2023 Next Scheduled Meeting: January 11,2022 — 1:00 p.m. or shortly thereafter. D. APPROVAL OF AGENDA Director Sandoval -Reyes asked if there's anyone in the public who wishes to testify on No Public Testimony. this agenda item. Chair Crowell stated Item G: Public Hearing may be taken out of sequence; licensee will show up at 1:30 p.m. Liquor Control Commission Open Session December 28, 2022 Page 2 SUBJECT DISCUSSION ACTION Motion: Director Sandoval -Reyes requested changes to the agenda: The applicant has pursued not to do a permanent increase. They would like to do temporary as needed and be Nishimura moved to approve removed from the agenda. thhee agenda as modified: Item G taken out of sequence and removing Item I. Request for Permanent Increase of Premises. Mr. Matsunaga seconded the motion. Motion carried 7:0. E. CONSENT AGENDA: Director Sandoval -Reyes asked if there's anyone in the public who wishes to testify on No Public Testimony. this item at this time. 1. DIRECTOR'S REPORT: December 7, 2022 — December 21, 2022 2. EMPLOYEES IN LICENSED PREMISES: a. Managers and Assistant Managers Red/Blue Card exam list - See Attachment RA// 3. ACTIONS OF THE DIRECTOR: a. Request for Temporary Reduction of Premise: 1. Zelos Enterprises, LLC. dba Kalypso Island Bar and Grill (2G-001): Approval of Temporary Reduction of Premises to include the entire premise as indicated by diagram submitted for an employee holiday party to be held at 5-5156 Kuhio Highway, Hanalei, Kauai, Hawaii on December 20, 2022, from 6:00 P.M. until 10:00 P.M. Liquor Control Commission Open Session December 28, 2022 Page 3 SUBJECT DISCUSSION ACTION b. Request for Temporary Increase of Premise: 1. XV Corporation dba Wranglers Steakhouse (2G-030): Approval of Temporary Increase of Premises to include the back parking lot, backyard space, and the enclosed front area within the wooden fence, per diagram submitted, to accommodate large catered parties from December 17, 2022, through December 31, 2022, from 11:00 A.M. until 11:00 P.M. c. Request for Use of Gaming Device: 1. XV Corporation dba Wranglers Steakhouse: License No. 2G-030 located at 9852 Kaumuali'i Highway, Waimea, Hawaii requested approval of the use of four Cornhole Boards & Bean Bags. Request was approved on December 8, 2022, through June 30, 2023. Motion: d. Application for Product Tasting Permit: Ms. Nishimitsu moved to approve the Consent Agenda. Mr. 1. Safeway, Inc. dba Safeway Store #2894 (4G-011): Approval of product Matsunaga seconded the motion. tasting permit to be conducted at 4454 Nuhou Street, Lihue, Kauai, Motion carried 7:0. Hawaii on December 16, 17, and 23, 2022. F. PUBLIC TESTIMONY ON ALL AGENDA ITEMS: Director Sandoval -Reyes asked if there's anyone in the public who wishes to testify on No Public Testimony. this item at this time. Liquor Control Commission Open Session December 28, 2022 Page 4 SUBJECT DISCUSSION ACTION H. VIOLATION HEARING: Director Sandoval -Reyes asked if there's anyone in the public who wishes to testify on No Public Testimony. this item at this time. 1. Case No.2023-013: Lahaina Petroleum, LLC. dba Rainbow Gas & Mini Mart located at 4-350 Kuhio Hwy., Wailua, Kauai, Hawaii. Violation of Rule 10.2, Manager on Duty. John Williams, General Manager was present for Lahaina Petroleum, LLC. dba Rainbow Gas & Mini Mart. He rose his right hand and solemnly swore to tell the truth the whole truth and nothing but the truth. He received a copy of the charges, understood, and admitted to the charge. He explained to the Commission in this circumstance, there was a misunderstanding of the code and the scheduling, it has been very difficult to hire people, due to job shortages. Once we get them hired there has been a time lag before they can get in for a red card exam. We did not have anyone in that store, the manager put a girl in there, we had specific instructions for her. All of the beer and all of the alcohol cabinets were locked up. We had a sign on the counter saying that we are unable to sell alcohol at this time. We were under the understanding that would be "ok". It wasn't until later after the inspector came by and talked to us and clarified to us that we had to have someone there with a card as long as the hours were available to sell alcohol. Not just whether we were or not selling alcohol, when the inspector came, we did have all of the alcohol in locked coolers, and no one had access to it. We also had a sign on the counter telling people we are unable to sell alcohol at this time. The cashier that he had met with, she was a new employee, she already had a reservation to take the test. It was three weeks out from the time that she signed up, so there was that lag time. Unfortunately, we have been having that challenge with a lot of our stores, we manage nine different gas stations here. Liquor Control Commission Open Session December 28, 2022 Page 5 SUBJECT DISCUSSION ACTION We are trying to operate the best we can there was just a lot of limitations, it happened we are sorry, and we did not intend for this to happen. It was just a misunderstanding of that part of the code. As soon as we found out that part of the code and with better clarification then we went through and redid all of our schedules and reviewed everything. We did not have issues at the other stations apparently that was the one off. We adjusted our hours and closed earlier until we could find out and get someone that could pass their test. Director Sandoval -Reyes advised the Commission that the employee did take her test and for Mr. Williams for your information if you are having problems with getting people into the exam just call our office. We have the capability since it is on-line to open up as many spots as you need available to take that test. So, there is no cap on it, if there is a restriction on the spots you can just call us, and we can add them in. Mr. Williams replied I was not aware of that, in fact in order to make sure that my people were giving me a clear understanding I went on and signed up to take the test to make sure that what they were representing to me was correct before I came and say that in front of you. I did not want to misrepresent what happened again my apologies there was certainly no intent there, we thought we have done everything that we possibly could to secure everything. Once I read through that part of the code and yes, we were in violation. Chair Crowell asked the Commission are there any questions for Mr. Williams. Commissioner Matsunaga commented I am looking at the violation report that was submitted you acknowledged that you were given two warnings during 2022. One on February 25, 2022, and the second on May 25, 2022. Mr. Williams replied, I was not aware of those violations, and I am sorry. Liquor Control Commission Open Session December 28, 2022 Page 6 SUBJECT DISCUSSION ACTION Commissioner Matsunaga replied in February a warning by Investigator Stem for violation of Rule 3.1, posting of license and on May 25, 2022, violation of Manager on Duty. So, actually you were given two warnings during the year. Mr. Williams replied we just acquired this station within this last year, and I know that there were some challenges earlier on getting the license from the previous owner. Our main office is in Sacramento, California; I know at one point we had a situation where the license was mailed to Sacramento and was mail was delayed at that point. The company was leaving mail in a separate area because of COVID for a couple of days before they got to that. By the time, they got that and forwarded it on. As far as the other Manager violation that you mentioned, I am not aware, of that do you know what that was for? Commissioner Matsunaga commented the second one was for Manager on Duty. Mr. Williams asked is there any more specific details as to what that was. Commissioner Matsunaga replied whoever was on duty did not have a Red Card in their possession. Mr. Williams replied I was not aware of that, I am sorry. Commissioner Matsunaga commented you understand that as a licensee it's an incumbent upon you or your employees to familiarize yourself with the Liquor Laws. Mr. Williams replied, I understand yes. Chair Crowell asked the Commission are there any other questions. Liquor Control Commission Open Session December 28, 2022 Page 7 SUBJECT DISCUSSION ACTION Commissioner Nishimura asked Director Sandoval -Reyes any idea when the transfer of license took place. Director Sandoval -Reyes replied February 20, 2022. Chair Crowell asked Director Sandoval -Reyes under which situation short of closing the store would they be in compliance? Director Sandoval -Reyes replied doors closed for business, they would have to be completely closed. Chair Crowell commented that would apply to everybody for example, Long's or Big Save. Director Sandoval -Reyes replied yes or get cited. Chair Crowell commented even if they are cited, they don't have a Manager on Duty. Director Sandoval -Reyes replied they would be in violation, the department will not close them down, the Commission would adjudicate for suspension against the store. Commissioner Nishimura commented this is one of the quandaries that I have, allegedly they are being cited for not having a Manager on Duty, but we allow them to keep selling despite not having a Manager on Duty. Director Sandoval -Reyes replied the Department is not going to close them down for the operations of that. It would be the decision of the Commission to shut them down. We can just find the violation and forward to the Commission. Liquor Control Commission Open Session December 28, 2022 Page 8 SUBJECT DISCUSSION ACTION Commissioner Nishimitsu commented with respect to this particular licensee they were pro -active in the sense they locked up their stock, which is not what I think, other licensee's may have done. I think what happened several times we have had people not knowing that their red card had expired. That means the upper level wouldn't know that the manager wasn't qualified to and there is all these things going on. Mr. Williams commented there was a time to for if I am not mistaken a time where people were getting grandfathered in for like an extra year or six -months. When their red card expired during COVID wasn't there an extension that was given to people. There was a while where they just stop doing the test completely. Director Sandoval -Reyes we never stop doing it, we transitioned to on-line. Vice Chair Kahawai asked Director Sandoval -Reyes for any recommendations. Director Sandoval -Reyes replied, the recommendation since it's their first in front of the Commission would be under the schedule that we have is for $500.00 and that is with the discretion of the Commission. Vice Chair Kahawai asked they were cited two other times but have not come before the Commission. Director Sandoval -Reyes replied yes, they were just warnings. Commissioner Nishimitsu commented I kind of get the sense in my mind that the licensee did what it could to try and mitigate. By believing that locking up the stock and preventing itself from selling was a noble action on its part. While there may have been two prior warnings that were given the facts were different. So, I won't be able to support the motion. Liquor Control Commission Open Session December 28, 2022 Page 9 SUBJECT DISCUSSION ACTION Chair Crowell asked the Commission are there any further discussion and called for a Motion: motion. Mr. Matsunaga moved that a fine Commissioner Nishimura asked Commissioner Matsunaga the $1,000.00 is being of $1,000.00 be imposed. Mr. Endo assessed with the departmental recommendation. seconded the motion. Motion carried 4:3. Commissioner Matsunaga replied to Commissioner Nishimura, "the fact that they were given two other warnings". Which could have resulted in citations, but they were given Roll Call Vote: warnings. Commissioner Endo —Aye Mr. Williams asked there is no other options for us, so if somebody calls in sick, we Commissioner Matsunaga — Aye basically have to lock the doors of the business? Commissioner Shimabukuro — Aye Commissioner Nishimitsu — No Director Sandoval -Reyes replied to be in compliance, yes you would have to close down. Commissioner Nishimura —Aye Advised Mr. Williams if you have employees that need to be trained as soon as possible, Vice Chair Kahawai — No call our office if you are in a hard spot, even though it is not on the day of the training. Chair Crowell - No We can make an arrangement. Mr. Williams asked who the best person would be to contact for that, unfortunately we are in that position often. Director Sandoval -Reyes replied, it would be Malia who is right behind you, and she will assist you or Stacy Iwasaki. G. PUBLIC HEARINGS: Director Sandoval -Reyes asked if there's anyone in the public who wishes to testify on this item at this time. Liquor Control Commission Open Session December 28, 2022 Page 10 SUBJECT DISCUSSION ACTION Mrs. Kelekoma commented she received two testimony's that was walked in before the meeting started and did not have time to make copies. 1. Red Rooster Restaurants LLC. dba Fish Bar Deli Market: Application No. 2023- 044 was filed on October 14, 2022, by Red Rooster Restaurants LLC. dba Fish Bar Deli Market for a New Retail Dealer General license to be located at 4-1380 Kuhio Highway, Kapaa, Hawaii. Ms. Jessica Brown, Market Manager present to represent Red Rooster Restaurants LLC. dba Fish Bar Deli Market. She has a notification of authorized agent on file with the department. The owner is stuck on the mainland and was not able to get a flight back. Chair Crowell asked Ms. Brown if she was represented by Counsel and if she received a copy of the Investigator's report. Ms. Brown replied no Counsel, and she did not receive a copy of the Investigator's report. I was advised by the owner last night that she was unable to get a flight back. I can fill in as much as I can. I am here impromptu; I have worked at the company for over a year. I have worked for small business on the island for twenty years. Chair Crowell called for a recess @ 1:21 p.m. Chair Crowell resumed the meeting @ 1:27 p.m. Chair Crowell asked do you have any comments on the report. Ms. Brown replied everything seems clear and important as to what I discussed with you. Liquor Control Commission Open Session December 28, 2022 Page 11 SUBJECT DISCUSSION ACTION Chair Crowell asked the Commissioners are there any questions. Commissioner Nishimura asked Mrs. Kelekoma to bring up the site plan. He asked Ms. Brown, the red line by the deli place and corner, is there any plans to put barriers across there to prevent patrons from going into the bar area from the deli area. Ms. Brown replied it has a hostess stand and signage as there is a photo, that has customers not seating themselves specifically, we already have a separation that stops them from one place to the other. Yes, technically it is one space but there is signage at the hostess stand and has so far effectively stop individuals from seating themselves and going from one place to the next. Commissioner Nishimura asked Director Sandoval -Reyes if I was to buy beer in the Deli and walk into the bar and the hostess bar is unmanned and the inspector is in there would that be a violation of their license. Director Sandoval -Reyes replied, yes. Ms. Brown replied I believe that would be the same issue if a patron were to, we have two outdoor benches and there is no alcohol outside as well. We have successfully managed not to have anyone ever walk the 3 ft. Commissioner Nishimura replied I just want to make sure you are aware of the consequences. Ms. Brown thanked Commissioner Nishimura. Commissioner Shimabukuro asked Ms. Brown for a picture of the hostess stand, I see the sign, but I don't see the stand. Liquor Control Commission Open Session December 28, 2022 Page 12 SUBJECT DISCUSSION ACTION Ms. Brown replied this has been slightly modified where this table is what is set up as their stand. Commissioner Shimabukuro commented besides the redline that was drawn page 29, there really is no physical barrier. The redline is indicating the barrier. Ms. Brown replied, correct. The redline is indicating the stop part. Commissioner Nishimitsu asked patrons of either the restaurant or the deli pay at the same location. Ms. Brown replied, they do not, the restaurant and bar has its own register. The line that says counter and deli case it's below that there is another register POS System. Commissioner Endo asked wouldn't it be more prudent to have a physical barrier then a host or hostess standing at that station. Ms. Brown replied, the only bathroom that we have is through the market. Commissioner Endo commented that was a consideration basically it's the restroom. Ms. Brown replied they need to be able to exit to get to the restroom, which is right across from the office on that bottom space to the side. Commissioner Shimabukuro asked Ms. Brown, I am assuming the entrance is on the right, is that correct. Liquor Control Commission Open Session December 28, 2022 Page 13 SUBJECT DISCUSSION ACTION Ms. Brown replied the entrance is where the number 22 and a half are and there is another entrance where it says 14 ft. just down at the bottom. One you see the deli case the other you see the market. Chair Crowell asked the Commissioners are there any further questions. Are there two benches outside? Ms. Brown replied there are two small seating areas outside, we don't service them we don't have any waitress out there taking orders or seating. It is just seating that is available outside for any passerby. Because it's there, there is a temptation, but we did not have any issues. Chair Crowell asked a restaurant patron might go outside and drink, but the patron that bought on the retail side could. Vice Chair Kahawai asked where is the outside seating area? Ms. Brown replied the 22 and a half where it says that there are seats on either side of the door. Again, any passerby can sit there, it's not something we service per say. Commissioner Nishimitsu asked Director Sandoval -Reyes earlier it was indicated that there were two late letters that were received regarding this application, can you tell us what the contents are. Director Sandoval -Reyes commented we are supposed to read it in the Public Hearing portion. Chair Crowell asked are there any other questions for the applicant. Liquor Control Commission Open Session December 28, 2022 Page 14 SUBJECT DISCUSSION ACTION Vice Chair Kahawai commented there appears to be another open door, it is blocked by a table, is there any effort to open that. Ms. Brown replied all the way at the top there are two doors that are open, there is a full built-in seating area, so no one can enter or exit that spot. Vice Chair Kahawai asked is there any reason why that cannot be the primary entrance for the bar side? Ms. Brown replied to Vice Chair Kahawai it has never been an entrance, there is potted plants outside in the front. I don't believe technically a door it might be windows, secondly there is such limited space for seating and it's an additional six top that was a bar. That would eliminate more dine -in. Vice Chair Kahawai replied, I think the previous business had it as an entrance at that angle. Ms. Brown replied the previous tenant was Erin Keller as the Local, I don't recall it being an entrance. Commissioner Nishimitsu commented I understand the dilemma because you only have one restroom facility, which is more crucial for the restaurant patrons then the retail patrons. Ms. Brown replied absolutely, and it is inconveniently located, a second comment about the seating in that area. We had a table that is low enough for handicap which none of the other seating provided. That is one area we could offer that as an option. Liquor Control Commission Open Session December 28, 2022 Page 15 SUBJECT DISCUSSION ACTION Chair Crowell asked are there any other questions, hearing none he opened the Public Hearing for Application No. 2023-044 Red Rooster Restaurant LLC. dba Fish Bar Deli Market. Anyone wishing to testify on this application. Director Sandoval -Reyes replied we have two letters in opposition that was received by the department for the record. Letter from Sammy Wunschel: I, Sammy Wunschel object to the granting of liquor license for the applicant Red Rooster Restaurant LLC. I have lived at my residence at 4473 Kukui Street, Kapaa, HI. For over 60 years and I am not happy with the thought of another bar being opened in my neighborhood, particularly the presence and noise that it will bring. Motion: Letter from Nohealani Soboleski: I, Nohealani Soboleski object to the granting of liquor Mr. Nishimura moved to close the license for the applicant Red Rooster Restaurant LLC. On the grounds of it polluting the Public Hearing. Ms. Nishimitsu community with another bar. Noise and presence of intoxicated individuals disturb the seconded the motion. Motion residents. carried 7:0. Chair Crowell asked are there here anyone in the public that would like to testify on this Motion: application. Hearing none called for a motion. Mr. Matsunaga moved to approve Commissioner Nishimura commented I am going to vote for the motion because, Application No. 2023-044 Red despite the two letters of opposition. The letters are in opposition of a bar which Rooster Restaurants LLC. dba Fish already exists, this is for a retail license. Bar Deli Market. Mr. Nishimura seconded the motion. Motion Chair Crowell asked are there any further discussions. carried 7:0. I. REQUEST FOR PERMANENT INCREASE OF PREMISES: Liquor Control Commission Open Session December 28, 2022 Page 16 SUBJECT DISCUSSION ACTION Director Sandoval -Reyes asked if there's anyone in the public who wishes to testify on No Public Testimony. this item at this time. 1. XV Corporation dba Wranglers Steakhouse (2G-030): Request for Permanent There was a unanimous vote and Increase of Premises to include the back parking lot, backyard space, and the no objections from the Commission enclosed front area within the wooden fence, per diagram submitted. The to accept the withdrawal XV proposed increase is located at 9852 Kaumuali'i Highway, Waimea, Hawaii. Corporation dba Wranglers Application was submitted on December 15, 2022. Applicant has met all Steakhouse. Requested a letter or requirements and clearances with the Department of Health, the County of email from the owner. Kauai Building Division and Planning Department. J. NEW SOLICITOR'S PERMIT Director Sandoval -Reyes asked if there's anyone in the public who wishes to testify on No Public Testimony. this item at this time. 1. Jesse Schwartz: Application No. 2023-075 was filed on December 9, 2022, by Jesse Motion: Schwartz for a Solicitor's Permit in the County of Kauai to represent Chambers & Chambers, Inc., a Wholesale Dealer General license in the City & County of Mr. Endo moved to approve Honolulu. Application No. 2023-075 for a Solicitor's Permit for Jesse Schwartz. Mr. Kahawai seconded the motion. Motion carried 7:0. K. DISCUSSION CONCERNING VIOLATION HEARING FINES AS APPLIED Director Sandoval -Reyes asked if there's anyone in the public who wishes to testify on No Public Testimony. this item at this time. Liquor Control Commission Open Session December 28, 2022 Page 17 SUBJECT DISCUSSION ACTION There was no objection from the Commission to take Item K. Discussion Concerning Violation Hearing Fines as Applied out of order. L. PRESENTATION OF 2023 PROPOSED RULE AMENDMENTS FOR COMMISSION DISCUSSION Director Sandoval -Reyes asked if there's anyone in the public who wishes to testify on No Public Testimony. this item at this time. Director Sandoval -Reyes commented he has met with representatives of the Chamber of Commerce, members of the Restaurant Association they have provided feedback as to their views of the rules and amendments. They really weren't that many on there, there was a comment from the Restaurant Association for Rule 2.3.1 this may be extending too much authority to the Director. I think the context was taken out, the rationale for putting that one was not to be given more powers, to allow for the Director to be given additional duties by the Commission. In case we have another situation like, where the special meeting that we had but was cancelled. Another way to get around it, however the way that it is worded, probably needs to be taken out at another time. At the request of the Department, I would like to (X) that one out for now. Unless the Commission wants to take it up in another way. Commissioner Nishimura replied that is a standard rule right now. Liquor Control Commission Open Session December 28, 2022 Page 18 SUBJECT DISCUSSION ACTION Director Sandoval -Reyes replied yes, it is, it is not written. As far as the delegation of authority where there are certain things that you tell me to do, like who we do the waiver of rule. There is a particular area that is for authority granted to the Director, such as granting of temporary's, gaming permits, things like that. Anything that is outside the scope of that is granted by the Commission that's where the delegation rule came through. Not particular the written, the Commission could direct the Director to do that duty if you wanted me to do it. Its getting a little more confusing the way it was being presented. I thought I would write it a little better. Commissioner Nishimura replied Rule 2.3.1 does not exist at this time. Director Sandoval -Reyes replied, at this time, no after talking to the Restaurant Association it was probably something that they were going to push back on. Vice Chair Kahawai asked was it to broad? Director Sandoval -Reyes replied it was too broad, they were comparing also to the neighboring island rule that is in their rule book and it has left a bad taste in their mouth. From ways that they are allowing the outer islands to run under that rule. I don't want to go down that road right now. The rest of them are up for discussion there were no other additional push backs on them. Ones that I wanted to go over are going to be on the fees. I do know that the fees itself those take an additional step, which do call for the County to have a resolution made by the Council. However, the step for any kind of increases on fines or fees have to be done initially through the Commission and then we do a Public Hearing. We would have to do a presentation to the Council and ratify the decision made by the Commission. Then it's given to the County Commission to pass on to the Lt. Governor's office. My take on it was we did request to increase on the temporary and special license. I did not know if the Commission since I am going through the process already. Liquor Control Commission Open Session December 28, 2022 Page 19 SUBJECT DISCUSSION ACTION It's going to be the exact same process if the Commission wanted me to do any comparison with the current prices of license with the rest of the islands. Or maybe we may want to revisit at another time. I had no problem doing the research for this as it is still in draft form, this is not going anywhere yet until the Commission moves to approve to move forward. The money on the licenses is on page 4.1 where it ends up being an increase for the temporary license from $60.00 to $120.00. That has not been increased since 1988. Increases for special licenses would be $33.00 to $90.00, for general license $24.00 to $60.00 for beer and wine and special beer license from $16.00 to $45.00 that has not been increased since 1983. We have the cheapest license on the chain of islands, and they have been set since the Territory Days. I did the research I have the actual Territory Rules and the price is the same. I can bring the Commission comparisons if they would like to review it. The numbers can be adjusted it does not have to be what I am presenting to you. If there is any kind of adjustments that you would like to make to the license since I am going down that route. Then I would have to go to the full Council I might as well present everything in front of them for Council and to provide justifications. Commissioner Nishimitsu asked is this in respect to fines, you don't have to do that with the other proposed rule amendments? Director Sandoval -Reyes replied this is regarding a license fee increase. Commissioner Nishimitsu asked how did we jump to 4.1? Director Sandoval -Reyes replied we can go through everything. On 1.1 the definition have added in, to keep up with the industry the definition of growlers. The second one is industry member we did not have a definition to address to call in that line. Meals have not been defined as well it is important as we start thinking about restaurants Liquor Control Commission Open Session December 28, 2022 Page 20 SUBJECT DISCUSSION ACTION license. Noise needed to be defined we did not have a great definition of noise. 2.4.1. this is where we start getting into the portion that addresses the rules for contested case hearings we are missing in our rules. I have forwarded this to Charles to review legal counsel and other representative who can and who cannot be representing the licensee. We have been getting more of a habit now asking that the person that is representing is actually an officer or member authorized. The department has been doing their best before every meeting to make sure everyone that comes in has an authorized agent document on file. I want to make sure it is written so that way if they come back and ask us, where is it at, it's in the rules now. Commissioner Nishimura asked a question on subsection c. which says withdrawal of counsel will be effective only upon this Commissions approval. I am not sure that we have the authority to force an Attorney to represent a client. Because if the client for whatever reason fails to get substitute counsel and we tell the attorney who is trying to withdraw you have to continue to represent this guy. It's kind of unpaid representation at some point. The withdraw might be because failure of the client to pay. I don't know why we would want to get our fingers in that sticky (inaudible). Director Sandoval -Reyes replied this is just a draft under our current authorization it is only valid as the maximum representation is one year. At the expiration of one year, they supposed to be sending another one, under our current rules. Commissioner Nishimitsu replied that is for an agent or representative not for legal counsel. I am not sure whether we should overreach and try to apply it to an attorney license. They are going to be subject to disciplinary proceedings under through the judiciary if there is a problem between them and the client. We start interjecting ourselves into that process, by telling the attorney "sorry" you gotta continue to represent his clients, I am not comfortable with that. Liquor Control Commission Open Session December 28, 2022 Page 21 SUBJECT DISCUSSION ACTION Director Sandoval -Reyes replied to Commissioner Nishimitsu, removal of "c."? Commissioner Nishimura asked are their instances where they withdraw their counsel as a means to prolong things. Commissioner Nishimitsu replied I think it's foreseen because subsection d. says you can't do that if it's only to prolong a proceeding. How we make the determination for the purposes of prolonging, I don't know how we are going to make that decision. We might just say you got thirty days to find substitute counsel or just proceed unrepresented, that is mostly thirty days. Director Sandoval -Reyes commented these are all drafts, this can all be changed or removed. Commissioner Nishimura replied I see no problem in taking out c. Commissioner Nishimitsu commented I have had clients who won't return calls and force to withdraw at that point, due to lack of communication. Director Sandoval -Reyes responded if we are good with that, we can move on to the next Rule 2.4.2. This is going to be addressing the authorized agent representing the party, not the counsel but the other representatives. Commissioner Nishimitsu asked my question is on subsection c. how we can say the professional rules of conduct governing attorneys can apply to agents. Commissioner Shimabukuro asked this is an administrative question do you guys validate the signatures of the party that is allowing someone else to represent. Liquor Control Commission Open Session December 28, 2022 Page 22 SUBJECT DISCUSSION ACTION Director Sandoval -Reyes replied we have been using DocuSign for it and has been an acceptable format. Sorry we have been using adobe signature. Commissioner Shimabukuro thanked Director Sandoval -Reyes. Chair Crowell commented seems to being applied to violation hearings. This whole section that you added, what about public hearings. Director Sandoval -Reyes replied this is basically their representatives. Commissioner Nishimitsu asked would that be applicable to those. Director Sandoval -Reyes replied not on these, well technically a Public Hearing is a Contested Case if they come in as Contested. Chair Crowell commented we do not have rules for a contested case. Director Sandoval -Reyes replied, no. Mr. Foster asked is the hearing rules included. Director Sandoval -Reyes replied just the contested for the violation. Because it starts going into evidence and they can present their evidence. Moving on to Rule 2.4.3 testimony recording this is basically for the adjudication hearings. Any witness to testify in an adjudication hearing shall be administered under oath, which we have been doing. Now it is just written. (b) A record shall be made of all oral testimony taken at the hearing. Testimony taken at the hearing may be electronically recorded by video or audio recording and need not be transcribed. The cost of any transcription shall be paid by the requesting party, unless otherwise provided. Liquor Control Commission Open Session December 28, 2022 Page 23 SUBJECT DISCUSSION ACTION The Commission shall make the written record of the testimony available to the parties for use in preparing exceptions to or statements in support of a recommended decision or recommended order. (c) Unless otherwise provided by law, the record shall consist of the following: (1) All pleadings, motions, and intermediate rulings. (2) All evidence received or considered, including without limitation, oral testimony, exhibits, and matters officially noted by the Commission: (3) All offers of proof and rulings thereon: and (4) All proposed findings and exceptions. Commissioner Nishimura asked is this how other departments apply their adjudication hearings as far as records. Director Sandoval -Reyes replied they will do the open records as well, anything that is on the record. We never had any of this written in the rules to give the guidance to the public if they want to obtain this information. Commissioner Nishimura asked how long do you have to keep these records. Director Sandoval -Reyes replied I don't have a question on that, I believe it would still have to hold on to retention. I will have to look into that. Commissioner Nishimitsu asked the other thing is turn into digital format at some point, right. Director Sandoval -Reyes replied yes, we do even though we don't have the paper, we have the digital copies in our office. Commissioner Nishimitsu commented so you keep it forever, the digital form. Liquor Control Commission Open Session December 28, 2022 Page 24 SUBJECT DISCUSSION ACTION Director Sandoval -Reyes replied yes. Ms. Ching commented typically State is 7-10 years and, in the County, you cannot destroy any records. Unless we request permission from Council. Now, the one kind of difference or work around, if you have a digital copy of your record then you can destroy your paper record you have to have a digital copy. Otherwise, any record that is destroyed you will need to go before Council to request to destroy the record. Commissioner Nishimura asked Ms. Ching, Administrator is this typically how the other departments have their adjudication hearings. Ms. Ching replied, you will need to look at the rule. Director Sandoval -Reyes commented Rule 2.4.5. Commissioner Nishimura commented as far as having it in here is good, I just want to make sure it is consistent throughout the other boards and commissions. So, everybody is working out the same way. Ms. Ching responded I will tell you because we do all contested hearings, they are all recorded and transcribed both. With Planning Commission, we audio record it and transcribe, that is the procedure. Director Sandoval -Reyes asked is that State? Ms. Ching replied no, that is only the County. Director Sandoval -Reyes replied, you can do either or, but the Country requires it is a procedure of the County. Liquor Control Commission Open Session December 28, 2022 Page 25 SUBJECT DISCUSSION ACTION Mr. Foster commented for clarification a License Case Hearing that is a Contested Case Hearing. If there was a battle it would fall under these proceedings. Chair Crowell commented this would apply to license hearings also. Mr. Foster replied yes. Ms. Ching commented let's just say this applies to applications, violation hearings the new regulation in Sunshine complicates it. If you are going to do away with written transcription and you have forty days to post the written whether it is draft or approved. The minute you go to recording right after the meeting you have to post on the website your virtual or digital recording. One of the problems that we have is our storage capacity we are constantly battling with IT on how to manage that. Can imagine how many records that can be. That is something that is on -going, right now we have stayed with written minutes and in compliance with sunshine and to stick with the forty days. With Planning Commission which is the most meticulous we don't keep the video recording; we have an audio recording. As soon as we are done, we record over it. There is, I think that it is good to have as part of a rule, policy, and procedure. So that it is clear for everyone. I think you really got to look at Sunshine in particular we do have the odd person who will file a complaint with OIP, and you would have to do your meeting all over again. Which we had to do with planning commission. Commissioner Nishimitsu replied because you are making video record of all meetings, is there any way to separate the video from the audio part? Ms. Ching replied we do video and audio separately. Commissioner Nishimitsu asked the audio part can that be put online without taking up as much space as the video. Liquor Control Commission Open Session December 28, 2022 Page 26 SUBJECT DISCUSSION ACTION Ms. Ching replied that I do not know as we have never done it. We are going to go down with the written and just follow that. It is narrow and it doesn't upset anybody's (inaudible) recording or any kind of digital storage. Commissioner Nishimitsu replied except your written minutes are not verbatim, they are a summary there is going to be a dichotomy between the audio recording and written minutes. Ms. Ching answered I can tell you there is other issues with the video or the audio recording. There are a lot of changes because of COVID and because we pivoted so I believe one of the other problems with posting a video or audio recordings under Sunshine requiring us to tag it. For instance, we would have to tag it where is Item K. it makes it very difficult. Quite frankly we got enough on our plate, and we are sticking with the written. Mr. Foster asked Ms. Ching parties can order actual transcripts is that right. Ms. Ching responded we do have even with the audio and UIPA requests for excerpts which we are not a studio it is difficult for us, and we need to request assistance to get an excerpt. Or we have transcribed verbatim an excerpt and it happens quite frequently and the Council will request that. Mr. Foster commented my thinking is someone filing an appeal and it goes to the Circuit Court. They would ask for a written transcript. Ms. Ching replied yes, our Contested Case Hearings and Planning Commission are verbatim, the record is verbatim. You can pass on it, Director Sandoval -Reyes, I suggest you look at Sunshine in regard to posting on audio and video. I think it is very problematic and if it is I would recommend you stick with the written. Liquor Control Commission Open Session December 28, 2022 Page 27 SUBJECT DISCUSSION ACTION Commissioner Nishimitsu commented upon notice of appeal the Secretary would have the audio transcript and then would have to prepare a verbatim written transcript. Is that correct. Ms. Ching replied if you look the cost of any transcript shall be paid by the requesting party, unless otherwise provided. When we have been really behind, we have used a transcription service and it is quite fast. It is a twenty-four hour turn around, but you still have to review it. The reason they get it messed up between Nishimura, Nishimitsu, Kahalewai all of the ethnic words, names and everything. On Planning Commission, we have Commissioner Apisa, that always appears as O Pizza. Then we have Commissioner Otsuka, that one is always crazy. Like I said it can come back in twenty-four hours. Malia is familiar she has seen our Planning Commission and has assisted and is familiar with the craziness that happens. Director Sandoval -Reyes continued with Rule 2.4.5 Evidence: Adjudication Hearings. (a) The admissibility of evidence at an adjudication hearing shall not be governed by the laws of evidence and all relevant oral or documentary evidence shall be admitted. Irrelevant, immaterial, or unduly repetitious material shall not be admitted into evidence. The Commission shall give effect to the privileges recognized at law. (b) Documentary evidence may be received in the form of copies, provided that, upon request, all other parties to the proceeding shall be given an opportunity to compare the copy with the original. If the original is not available, a copy may still be admissible but the non -availability of he original and the reasons therefore may be considered by the Commission when considering the weight of the documentary evidence. (c) The Commission may take notice of judicially recognizes facts and of generally recognized technical or scientific facts. The parties, whenever possible, shall be notified before the hearing of the material to be so noticed and shall be afforded an opportunity to contest the facts so noticed. Liquor Control Commission Open Session December 28, 2022 Page 28 SUBJECT DISCUSSION ACTION (d) Except as otherwise provided by law, the burden of proof, including the burden of producing the evidence and the burden of persuasion, shall be upon the party initiating the proceeding. Proof of a matter shall be by preponderance of the evidence. Commissioner Matsunaga asked if hearsay is permissible? Director Sandoval -Reyes replied yes if you want. Mr. Foster replied under this; however, it would be overweighing the (inaudible) of evidence. It is pretty standard planning goes by that. Chair Crowell commented they can say whatever they want except for a contested case. Commissioner Nishimitsu replied if all of the proceedings are treated as a contested case proceedings there is not going to be much of a distinction in how you categorize the way of the evidence. So, are you using contested case synonymously with adjudication hearings. Director Sandoval -Reyes replied yes only adjudication hearings. Mr. Foster replied I have seen a similar rule that gives the body where the hearing office the discretion as to here say as another point of evidence. Whether to take evidence that wouldn't be admitted in court. Commissioner Nishimitsu responded a simpler way to say it you didn't give it any weight. Rather than to cut them off or not allow it to be submitted. Mr. Foster replied I think that would be fine that witness'Y' was found uncredible, and "y' was found credible. Liquor Control Commission Open Session December 28, 2022 Page 29 SUBJECT DISCUSSION ACTION Chair Crowell commented in Planning Commission there's a Public Hearing portion that has a contested case portion. They are two different things that are happening at the same time. You can say all you want in a Public Hearing and not in a Contested Case. Not anybody can testify. Commissioner Nishimura asked for Contested Case do they follow the rule book of evidence. In this one it says will not be following. That is Rule 2.4.5 Evidence. Commissioner Matsunaga asked so you are saying after shall not be we should delete, take out not. Commissioner Nishimura replied if it is for adjudication hearing and that's how it's been applied. For the Public Hearing it would not apply for a contested case I don't know if that is the case. If it is saying it can be permitted, then it has to be weighted. We follow it one way then if it is, it is if it's not it's not. If it's an adjudication hearing, you got to add something. Commissioner Nishimitsu added I don't remember the Planning Commission rules adhering to the Hawaii Rules of Evidence and it's statutory. Did they adhere to the statutory rules of evidence. Chair Crowell replied I don't know what the statutory rules of evidence are but there is a whole process of producing your witness list, present your evidence so that each side. Commissioner Nishimitsu replied, the Hawaii Rules of Evidence governs issues like privileges, whether it is admissible or not. Then the judge can say you just can't testify on that matter. I don't recall that rule something that happened at the planning commission level. Liquor Control Commission Open Session December 28, 2022 Page 30 SUBJECT DISCUSSION ACTION Ms. Ching replied I do attend the planning commission I don't attend all of the contested case hearings only some of them. On the planning commission meetings, have never seen where the commission has been guided by the County Attorney regarding the Hawaii Rules of Evidence. I have never heard that in the entire time that have been attending the Planning Commission. Now, in contested cases it is a lot more formal where each party had to submit a witness list, what documents and they have to make sure it goes to all parties including the hearings officer. I've seen on occasion where the parties will go through the documents and stipulate this to be submitted. So, it is not as formal as rules of evidence certainly more formal than what planning commission goes through. Have I seen where the hearings officer say they are not going to allow so and so to testify, no I have not. Commissioner Nishimitsu replied I don't ever recall making objections citing a rule and having the Commission Chair strike testimony. Mr. Foster replied I can now address this looking at the rules of the planning commission contested case hearing rule. Evidence (a) Form and Admissibility. The Commission shall not be bound by the Hawaii Rules of Evidence relating to the admission or rejection of evidence but may exercise its own discretion in such a matter with a view towards insuring that justice is served. (c) Exclusion of Irrelevant Material. As a matter of policy, the Commission shall provide for the exclusion or irrelevant, immaterial, or unduly repetitious evidence. (d) Ruling. The Presiding Officer shall rule on the admissibility of all evidence. Such ruling may be reviewed by the Commission in determining the matter on its merits. In extraordinary circumstances, where prompt decision by the Commission is necessary to promote justice, the Presiding Officer may refer the matter to the Commission for determination. There could be objections. Liquor Control Commission Open Session December 28, 2022 Page 31 SUBJECT DISCUSSION ACTION Commissioner Nishimitsu replied so let's propose to Director Sandoval -Reyes for planning we are not going to be governed by the Hawaii Rules of Evidence. But we have the discussion to say five people already testified with the same thing and hear the same testimony. Commissioner Nishimura asked why we cannot just mirror their rules, I am just curious. Chair Crowell commented you never know what they are going to say until they say it. Commissioner Nishimitsu replied but you can say that it is stricken from the record. Because it has been said five times. Although most commission chairs don't want to and would not say it like that. Because they still have filters. Commissioner Matsunaga asked Commissioner Nishimura do you wish to remove "not". Commissioner Nishimura responded I have no problem with whatever language but I would like to see that it mirrors something that already exists as oppose to. I don't know where you got the language for this. Director Sandoval -Reyes replied I got it from the neighboring islands. Commissioner Matsunaga asked which neighboring island. Director Sandoval -Reyes answered with Big Island (Hawaii) and Honolulu (Oahu). Commissioner Matsunaga asked they have "shall not". Director Sandoval -Reyes replied yes. Liquor Control Commission Open Session December 28, 2022 Page 32 SUBJECT DISCUSSION ACTION Ms. Ching commented I will give you an example in a Contested Case Hearing there was a very drawn out one where you had a party that was represented. It was the department, and it was an individual that decided not to be represented by an attorney. They were talking about flora and fauna studies they basically tried to present a report with their friend who knows a lot about flowers. They basically walked the property and it was x,y,z and for the (inaudible) study they basically talked about well this is the tallest tree on the property and it is about this tall and nothing goes above that. They actually submitted that, it was up to the hearings officer as to how much weight they are going to put on that. It gave them flexibility it gave them more latitude as they did not have an attorney representing them. That gives you an idea even contested cases not necessarily to that criteria of level otherwise that would have never been accepted. Commissioner Nishimitsu commented they were not represented by counsel and probably did not have the money for experts to provide the studies. Ms. Ching replied it was one of the cases where they felt they were very smart individual that they could do that. Vice Chair Kahawai asked Ms. Ching who is the Hearings Officer is there even a position. Ms. Ching replied yes, Harlan Kimura he is an Attorney and fly's over here for all our contested cases. We go out for bids every couple of years. Mr. Foster explained either the whole Commission sits in and hears or hires an officer, that person gives a report to the Commission. Then the Commission acts on the report. Ms. Ching commented I am a big proponent of going to a Hearings Officer cause we had a couple of occasions where we have been delayed for almost a whole year. The reason we can't get all of the commissioners, once you start a hearing it has to be consistent. Liquor Control Commission Open Session December 28, 2022 Page 33 SUBJECT DISCUSSION ACTION The same commissioners have to be at every single occasion where evidence is presented and everything. Because we have had trouble once where a case was delayed for almost a year on a hearing. Given that experience a big proponent of having a Hearing's Officer and the commission gets the report and makes a decision on that. Mr. Foster replied I think with planning it is so complex and here the hearings takes an hour or two. Commissioner Nishimitsu replied the stakes are not as high. Mr. Foster commented they are not all these issues of environmental impact statements and native rights. Director Sandoval -Reyes replied the only reason it's good to have because we work on (inaudible) in case someone was going to contest. Mr. Foster replied under HRS 281 we are supposed to have a hearings officer. Ms. Ching replied it's one of those things its nice to have just in case. When you need it and it is not there, you're really messed up. Commissioner Matsunaga asked are we going to delete "not"? Mr. Foster pointed out about Rules of Evidence that when we do have a party that can't afford an attorney it can be very difficult. Someone with a savvy counsel can make it very difficult and impossible for them to represent their own interest. Commissioner Nishimitsu commented that happens in court too, but they are going by the Rules of Evidence. Liquor Control Commission Open Session December 28, 2022 Page 34 SUBJECT DISCUSSION ACTION Commissioner Matsunaga replied if he goes by the rules if he goes (inaudible) that's his problem. I would like to see some rules. Director Sasndoval-Reyes replied it is still in draft format. Rule 2.4.6 Disclosure; Adjudication Hearings (a) Any party to an adjudication hearing may, by written demand timely filed with the Commission, and served upon any other party, request of any other party to the proceeding, the full disclosure of: (1) The identity of all witnesses to be called by the other party, including their addresses and phone numbers, if known; (2) The identity of all persons, including their addresses and phone numbers, known by the other party to have material knowledge relevant to the proceeding; and (3) All exhibits, including, but not limited to documents, photographs, and other tangible evidence to be introduced by the other party at the adjudication hearing. The requesting party shall have the right to examine the exhibits and make copies thereof. (b) In order to be admitted at the adjudication hearing, a copy of an investigation report shall be provided to all parties upon request not later than seven days before such hearing. If a copy of the investigation report is not provided to all parties, the report shall not be permitted to be introduced at the adjudication hearing. (c) The Commission may take notice of judicially recognizable facts and generally recognized technical or scientific facts. The parties, whenever possible, shall be notified before the hearing of the material to be so noticed and shall be afforded an opportunity to contest the facts so noticed. (d) Except as otherwise provided by law, the burden of proof, including the burden of producing the evidence and the burden of persuasion, shall be upon the party initiating the proceeding. Proof of a matter shall be by preponderance of the evidence. Liquor Control Commission Open Session December 28, 2022 Page 35 SUBJECT DISCUSSION ACTION Commissioner Nishimitsu asked proceedings before this Commission as with others the parties would be the department, the person seeking the license and any permitted interveners. Director Sandoval -Reyes replies yes interested persons. Commissioner Nishimitsu asked if the department is a party and the investigator's report isn't ready as when it should be ready, would the department be able to request a continuance to allow that report to be submitted. Director Sandoval -Reyes replied the report has to be done before anything starts, that is when we will initiate the initial adjudication request. Commissioner Nishimitsu commented it says in order to be permitted to the adjudication hearing, the investigation report shall be provided to the parties'Y' amount of days before the hearing. And if it's not allowed as evidence if there is a problem with getting that investigation report prepared in a timely fashion, shouldn't the department be entitled to request a continuance. It is not clear if it would be allowed. Vice Chair Kahawai commented the Violation reports and the Investigators report triggers the adjudication. Director Sandoval -Reyes explained we accept it the violation and then schedule for an Adjudication Hearing it's ready at that time. Whenever we do the Violation Hearing at that point if they deny they can request their Contested Case Hearing at that point. Then we can give them the instructions of what is required under a Contested Case Hearing, which is the disclosures, laws of information for evidence. We can disclose what we have because they can ask for that as well. Liquor Control Commission Open Session December 28, 2022 Page 36 SUBJECT DISCUSSION ACTION If they give us names whoever they are calling as witness, we can email them the information. The report is ready we just need to contact them to make sure that they are present to be presenting. Commissioner Nishimitsu replied you have your written proof that it was delivered. Director Sandoval -Reyes replied we are going to count on the receive with docu-sign and proof that they received it and not deny that they did not receive it. Commissioner Nishimura asked is the requirement for them to get a license to have an email address? Director Sandoval -Reyes replied no, but we do we are updating our file as we go, due to changes to their email. Commissioner Nishimitsu asked is it sent certified mail? Director Sandoval -Reyes replied we have the option to send via certified mail or hand delivered by the investigator. 2.4.7 Procedures; Adjudication Hearings — Unless otherwise stipulated by the parties, all adjudication hearings shall proceed as follows: (a) The licensee who has been notified to appear before the Commission shall enter a pleas admitting or not contesting or denying the allegations contained in the Notice of Hearing. Director Sandoval -Reyes commented this part right here, I wanted to bring this to the attention in our Adjudication Hearing we ask if they admit or deny we don't ask them if they want a no contest. Which could be an option also. Commissioner Nishimitsu replied only for some violations though, right. Liquor Control Commission Open Session December 28, 2022 Page 37 SUBJECT DISCUSSION ACTION Director Sandoval -Reyes replied yes. From what I have heard historically do you admit or deny. We haven't given them the option how would you like to plea. Because we give them those two options. (b) If the licensee admits or does not contest the allegations contained in the Notice of Hearing, the Commission shall determine what action, if any, should be taken against the licensee. (c) If the licensee denies the allegations contained in the Notice of Hearing, the parties shall have the opportunity to present any facts tending to prove or disprove the allegations contained in the Notice of Hearing. Director Sandoval -Reyes commented that would be for a Contested Case. Commissioner Nishimitsu asked would that be for a different date, right. Director Sandoval -Reyes replied as soon as the person says Contested, we have to immediately at that point schedule you for another day for a Contested Case and at that point we would contact the County Attorney's office. Mr. Foster replied yes and they would send over another attorney, I would stay in this role an have the other represent. Commissioner Nishimura asked for certain violations they are able to waive, so those would not be part of this section, correct. Director Sandoval -Reyes replied correct and those are coming up. Liquor Control Commission Open Session December 28, 2022 Page 38 SUBJECT DISCUSSION ACTION Mr. Foster pointed out on the admit or deny, recently we had what was really an admission with an explanation but they casted not knowing what to do and casted as a denial. We almost set a hearing in which they backed that all out. It made sense to make something clear in the rule; admit with or the explanation. And then deny. Commissioner Matsunaga commented normally when they admit, the Chair will usually ask whether they have any statements to make. Mr. Foster replied that would cover that point. Commissioner Nishimura asked to add after part (b) add a section if you so choose. Commissioner Nishimitsu replied may provide an explanation. Commissioner Nishimura commented or present a daily fact in consideration of actions that the Commission may want to take. Commissioner Matsunaga commented isn't that a given already. If they admit usually the Chair asks for any explanation at that time mitigating circumstances. Chair Crowell asked about Ex-Parte communications is that in here or under someplace else. Rule 4. under license fees and gross sales report, should it be under this or under definition, or where prevue resides. Director Sandoval -Reyes replied if that is what you want. Commissioner Nishimitsu commented you can define it, but you still have to have the prohibition. Liquor Control Commission Open Session December 28, 2022 Page 39 SUBJECT DISCUSSION ACTION Chair Crowell asked what he is thinking at the time of posting of the agenda, the time of hearing. Commissioner Nishimitsu commented once the commission knows it's on an agenda that we shouldn't be approached by or speak with anybody who has an interest in the proceeding. Including department staff. Chair Crowell asked is it the posting of the agenda or when the department receives the application. When is that? Commissioner Nishimitsu replied we don't know that the department knows. We only know when we get the agenda. So, wouldn't that be the day of posting? Chair Crowell replied to you would give to the staff and commission. Commissioner Nishimitsu replied I don't know how the commission would be expected to know things by osmosis. Ms. Ching commented I will tell you my concerns about that I have quite a few occasions where people know they are going to file stuff with the Commission and then they try to approach and talk to Commissioners ahead of time on the agenda. So, I try to tell Commissioners that if people start talking about something. You kind of have an idea that maybe it might be on the agenda just stop right there. Because it is really problematic. Commissioner Nishimura commented Rule 4.13 should be on the rules of practice and procedures on the general heading. Liquor Control Commission Open Session December 28, 2022 Page 40 SUBJECT DISCUSSION ACTION Commissioner Nishimitsu commented about a general comment on this section, should we call the County, the Department, instead of calling it the County. So, that the department is a party, a licensee is a party and interveners are another party. Commissioner Nishimura replied why don't you make it vague. To be continued at next meeting on January 11, 2023, starting at Commissioner Nishimitsu explained Planning Commission rules is the department is a 2.4.8 party to the (inaudible) not the County. M. EXECUTIVE SESSION: Motion: Pursuant to HRS §92-7(a), the Commission may, when deemed necessary, hold an executive session on any agenda item without written public notice if the executive. Mr. Nishimura moved to go into session was not anticipated in advance. Any such executive session shall be held Executive Session. Ms. Nishimitsu pursuant to H.R.S. §92-4 and shall be limited to those items described in HRS §92-5(a) seconded the motion. Motion carried 7:0. 1. DISCUSSION AND POSSIBLE ACTION ON THE DIRECTOR'S SALARY 2. PRESENTATION ON THE DIRECTOR'S MONTHLY REPORT 3. DISCUSSION AND POSSIBLE ACTION ON THE DIRECTOR'S ANNUAL JOB PERFORMANCE 4. DISCUSSION CONCERNING VIOLATION HEARING FINES AS APPLIED Liquor Control Commission Open Session December 28, 2022 Page 41 SUBJECT DISCUSSION ACTION N. RETURN TO OPEN SESSION Returned to Open Session 3:55 p.m. O. ROLL CALL FOR THE RETURN TO OPEN SESSION At 3:55 p.m. the Commissioners reconvened in Open Session. Chair Crowell sought a motion to ratify the actions taken in executive session. P. RATIFY ACTIONS TAKEN IN EXECUTIVE SESSION Motion: Mr. Nishimura moved to ratify the actions taken in Executive Session. Mr. Endo seconded the motion. Motion carried 7:0. Q. ADJOURNMENT Motion: Mr. Nishimura moved to adjourn With no further business to conduct, Chair Crowell sought a motion to adjourn the the meeting. Mr. Matsunaga meeting. seconded the motion. Motion carried 7:0, the meeting adjourned at 4:07 p.m. Liquor Control Commission Open Session December 28, 2022 Submitted by: Malialani Kelekoma, Private Secretary Page 42 (X) Approved as circulated. ( ) Approved with amendments. See meeting. Reviewed and Approved by: Leo Sandoval -Reyes, Director of Liquor Control