Wednesday's WCF writeup, wherein we announced that this year's Snowbird Oktoberfest event stands in jeopardy, due to a quirky DABC re-interpretation of Utah "special event" adeministrative liquor license rules, we'll note a few interesting developments, which we've dredged up whilst googling.
First, this strong editorial from the Salt Lake Tribune, laden with some pretty decent legal analysis:
"for the common good" is found nowhere within the State's enabling statutes, but is instead a concept which an overzealous regulatory agency has pulled straight out of its... hat.
Next, although tongue-in cheek, X96 Radio presents this intriguing and amusing spoof, which illuminates the slippery slope upon which Utahs find themselves perched, as our renegade State liquor regulatory bureaucracy cavalierly, unilaterally (and mindlessly) "tightens up" its rules:
And last but not least, and back on Capitol Hill, we learn of this promising "background" remedial legislative activity, via State Senator Jim Dabakis:
Friday night. I am a bit scarily consumed by DABC policy regarding OkertFest at Snowbird "No Beer at...". The event draws 60,000 people and has been creating memories since the mid-1970's. This and many, many other single permit licenses issued to so many non-profits across the state have been thrown into chaos by herky jerky DABC policy changes.
I formally ask that the Legislature's joint Administrative Rules Review Committee 'request' the presence of the DABC executive director, compliance director and other senior staff to address the following issues about their administrative rulemaking. I believe that Co-Chairs Senator Stephenson and Rep Oda will see the need to address the issues as soon as possible.
The customers of the DABC deserve the respect of a consistent, reasonable rulemaking process open to a full, complete public comment. Without fear of retribution and done with well thought out policies that do not end up regularly on the pages of the worlds newspapers relegating Utah to scorn and ridicule. Hurting both economic development and tourism.
DABC seems prone to an annoying pattern, regularly doing one or both of the following:
1. Changing a long-standing practice that significantly alters how it implements a rule, but then decides not to amend the rule because it has determined that the new practice more accurately implements the intent of the rule; or,
2. Amended a rule in a way that significantly alters how it implements the rule. In these cases, the agency has sometimes pointed out that the changes made were still within the scope of the statutory authority it was granted to regulate by rule. However, I contend the following points are applicable:
a. changing a long-standing rule in a way that significantly alters its implementation can cause significant disruption within the regulated community that increases in severity the more the amendments depart from the previous rule language; and b. because rules have the effect of law, rule language, particularly long-standing rule language, comes to represent the state’s public policy, and changing it should involve more discussion and review than can usually occur when a rule change proposal is simply made public.
The current DABC scenario more closely follows #1 above because the agency has not amended its rule but changed its practice. DABC’s changes to its practice more accurately reflect the implicit intent of the rule, but detailing the changes in practice in a rule change, filed with and published by the Division of Administrative Rules, would have provided notice of the changes to the public and the regulated community and created the opportunity for public input.Will our state legislature act to rein in this latest DABC exhibition of Utah-style nanny government?"
The ball's in the legislature's court, wethink.