Certified Final Objection No. 124 of the

Joint Legislative Committee on Administrative Rules

 

At its meeting on June 23, 2003, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, IV, to enter a preliminary objection to Final Proposal 2003-30 containing rules of the N.H. Liquor Commission (Commission) relative to the extension of licensed premises under RSA 178:21 (now RSA 178:24, pursuant to 2003, 231, effective July 1, 2003).

At its meeting on September 18, 2003 the Committee voted, pursuant to RSA 541-A:13, V(f), to enter a final objection to Final Proposal 2003-30. The final objection has been filed with the Director of the Office of Legislative Services for publication in the New Hampshire Rulemaking Register. The effect of a final objection is stated in RSA 541-A:13, VI:

After a final objection by the committee to a provision in the rule is filed with the director under subparagraph V(f), the burden of proof shall be on the agency in any action for judicial review or for enforcement of the provision to establish that the part objected to is within the authority delegated to the agency, is consistent with the intent of the legislature, is in the public interest, or does not have a substantial economic impact not recognized in the fiscal impact statement. If the agency fails to meet its burden of proof, the court shall declare the whole or portion of the rule objected to invalid. The failure of the committee to object to a rule shall not be an implied legislative authorization of its substantive or procedural lawfulness.

The following summarizes the bases for the Committee’s final objection:

Liq 404.05(d)(3)

The Committee objected that Liq 404.05(d)(3) is, pursuant to Committee Rule 401.01(c), beyond the authority of the Board.

Liq 404.05(d)(3) permits on-premise licensees to extend service of beverages and liquor to certain defined areas. However, the rule limits the occupancy of the extended service area to 3 times the seating specified on the license, unless further criteria are met. While RSA 178:24 authorizes the Commission to grant permission to extend service, it contains no reference to occupancy limitations. Therefore, the Committee determined that the General Court has not granted authority to the Commission to limit the occupancy of extended service areas.

Liq 404.05(d)(3)c.

The Committee objected that Liq 404.05(d)(3)c., is, pursuant to Committee rule 403.01(d), contrary to the public interest by not being clear and understandable. This clause contains criteria related to obtaining permission for an occupancy level greater than 3 times the

 

Certified Final Objection No. 124 of the

Joint Legislative Committee on Administrative Rules

Page 2

 

number of seats specified on the license. Under this clause, "all affected municipalities" must have been notified of the proposed extension, and must not have indicated that the proposed extension "would have an immediate negative fiscal impact on the municipality or require the provision of additional municipal services."

The Committee could not determine what constituted a municipality for the purposes of the rule. In particular, the Committee could not determine, from the language of the clause, which municipal officials would be authorized to indicate whether a proposed extension has an immediate negative fiscal impact or requires the provision of additional municipal services. The Committee concluded that the provision was not clear and understandable and therefore not in the public interest.