E & J Lounge Operating Co. v. Liquor Commission of HonoluluE & J Lounge Operating Co. v. Liquor Commission of Honolulu
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Petitioner/Appellant-Appellee/Cross-Ap-pellee E & J Lounge Operating Company, Inc., a Hawai‘i corporation (Petitioner), seeks review of the judgment of the Intermediate Court of Appeals (the ICA)1 filed on January 8, 2008, pursuant to its December 24, 2007 published opinion vacating the April 20, 2006(1) Findings of Fact (FOF), Conclusions of Law (COL) and Decision and Order and (2) Judgment of the Circuit Court of the First Circuit2 (the court), and remanding the case to the court to determine Petitioner’s appeal on the merits. See E & J Lounge Operating Co. v. Liquor Comm’n, City & County of Honolulu, 116 Hawai‘i 528, 556, 174 P.3d 367, 395 (App.2007).
We hold that (1) public hearings on liquor license applications held by the liquor commission are contested case hearings such that Hawai‘i Revised Statutes (HRS) § 91-11 (1993)3 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
I.
Petitioner submitted an Application for Liquor License to the Commission for a General Dispenser License for the Island Colony condominium located at 445 Seaside Avenue in Waikiki. On February 24, 2005, pursuant to
On April 21, 2005, the first of what would be three public hearing-dates pursuant to
The hearing was continued to April 28, 2005, at which time the Commission received additional testimony and evidence. Four out of five Commissioners were in attendance at that hearing: Enomoto, Kim, Kwock, and Danny Auyoung (Auyoung). Id.
The hearing was again continued to May 12, 2005. Three out of the five Commissioners were in attendance at the meeting: Au-young, Enomoto, and Kwoek. Id. at 542, 174 P.3d at 381. On that date, the Commission voted to deny Petitioner’s license application.
On August 11, 2005, Petitioner filed a notice of appeal to the court pursuant to
1. [Petitioner] filed a Liquor License application for a Dispenser General License (Category 3-Live Entertainment, Recorded Music, and Dancing) with the Commission on January 10, 2005 (herein “Application”).
2. On February 24, 2005, the Commission held a preliminary hearing to review the Application. Commissioners were provided with the investigation report and [Petitioner] did not object to the contents of the investigation report, the Commission approved the setting of a Public Hearing for the Application.
3. The Commission is composed of five members, who are appointed for terms of five yeai-s.HRS § 281-11 . At the February 24, 2005 preliminary hearing, four Commissioners attended the hearing; Chair [Enomoto], Co-Vice Chairs Clyde J. Eugenio [ (Eugenio) ] and [Kwock] and Commissioner [Kim]. At that time, the fifth commissioner’s seat was vacant.
4. On February 25, 2005, [Petitioner] was informed that the public hearing would be scheduled for April 21, 2005.
5. As required underHRS § 281-57(b) , notice of the public hearing for [Petitioner’s] application was published in the Midweek and Honolulu Star-Bulletin on March 3rd and 10th, 2005. In addition to the publication of the public notice, [Petitioner] submitted an affidavit that the mailing of notices of the hearing to those who reside within the five hundred feet of the premises was completed as required byHRS § 281-57 .
6. On April 21.2005, the public hearing for [Petitioner’s] liquor license application began. The Commissioners that were present were Chair Enomoto, Co-Vice Chair Kivock and Member Kim. Two Commissioners were absent, Co-Vice Chair Eugenio and Member Au Young. [Petitioner] was represented by its President William Comerford and Counsel Wayne Luke.
7. Testimony from the members of the public Questioned the Commission as to whether the proper notices were sent out as required underHRS § 281-57 . The Commissioners commented that this matter should be looked into.
8. The Commission was again provided with the investigation report and received both written comments and oral testimony regarding [Petitioner’s] liquor license application. The Commissioners then decided to continue the public hearing to April 28, 2005.
9. At the April 28, 2005 continuation of the public meeting, present were Chair Enomoto, Co-Vice Chair Kwock, Member Kim and, Member Au Young. [Petitioner] was represented by its President William Comerford and Counsel Wayne Luke. Again, the Commissioners were provided with the investigation report. In addition, the Commissioners were provided with a supplemental investigation report. The Commission continued to accept oral testimony and written comments. Prior to ending or closing the public hearing, [Petitioner] through its President Mr. Comer-fordwas permitted to respond on questions and comments raised during the two days of public hearings.
10. Testimony from the members of the public again questioned whether the number of notices as required underHRS § 281-57 was sent out.
11. At the end of the April 28 2005 meeting, the Administrator of the [Commission] requested two weeks to verify the total number of written protest. The Commission ended or closed the public hearing and continued its decision making to May 12, 2005. In addition, the Commission permitted additional written comments to be accepted up until April 29, 2005.
12. At the continued hearing of May 12, 2005, Chair Enomoto, Co-Vice Chair Kwock and Member Au Young were present. [Petitioner] was again represented by its President William Comerford and Counsel Wayne Luke.
13. At the May 12, 2005 public hearing, the investigator for the Liquor Administrator informed the Commission that he was not able to verify the total number of owners and lessees who opposed the liquor license. The investigator further informed the Commission that thirty-two percent of the registered voters within five hundred feet of the proposed liquor license premises opposed the liquor license.
14. Counsel for [Petitioner] then objected to Commissioner Au Yoimg participating in the decision since he was not present at the April 21st meeting. The issue was also referred to counsel for the Commission, who advised that since this was a public hearing and not a contested case or adjudicatory hearing, Commissioner Au Young could patiicipate. The Chair also verified that all of the Commissioners were provided with all of the investigative reports and supplemental reports.
15. The Commission then decided to deny [Petitioner’s] liquor license. Chair Enomoto, Co-Vice Chair Kwock and member Au Young vot[ed] to deny the license.
16. [Petitioner] filed a timely appeal underHRS § 91-14 to the Circuit Court on August 11, 2005.
17. On September 6, 2005, Interve-nors[ ] filed a Motion to Intervene, and said Motion was granted on October 26, 2005.
18. On or about December 14, 2005, Intervenors filed a Motion to Present Additional Evidence to the Commission, alleging that the number of notices of public hearing as required underHRS § 281-57 was not proper.
(Emphases added.) Based on the foregoing, the court concluded:
1. The Commission is required to hold a public hearing prior to issuance of a liquor license underHRS § 281-52 .
2. HawaiH [cjourts have determined that public hearings held before administrative agencies are contested cases. Simpson v. [Dep’t] of Land [&] Natural Res[.], 8 Haw.App. 16, 23, 791 P.2d 1267, 1272 (1990)[ (]citing In re Application of Hawaiian Elec. Co., 56 Haw. 260, 264, 535 P.2d 1102, 1105 (1975) (citing [E.] Diamond Head Ass’n v. Zoning Bd. of Appeals, 52 Haw. 572, 479 P.2d 796 (1971))[;] Mahuiki v. Planning [Comm’n], 65 Haw. 506, 654 P.2d 874 (1982)).
3. [Petitioner] seeks relief before this [e]ourt pursuant toHRS § 91-14 which permits judicial relief for any person aggrieved by an agency’s final decision and order in a contested case.
4. The public hearings held before the Commission prior to issuance of a Liquor License are adjudicatory in nature and are therefore contested cases.
5. This [c]ourt therefore has jurisdiction over [Petitioner’s] appeal from the Commission’s denial of its Liquor License Application.
6. Intervenors’ Application to Present Additional Evidence, pursuant toHRS § 91-14(e) was timely filed.
7. Because the public hearing before the Commission is a contested case hearing, the Commission was required to comply with the contested case procedures in HRS Section 91 et sea. [sic] includingHRS § 91-11 . The Commission did not comply withHRS § 91-11 .
8. UnderHRS § 281-59(a) the Commission is required to approve or deny the license application within 15 days of closing of the public hearing unless [it] extend[s] the time to thirty days.
9.HRS § 91-13.5(c) requires the Commission to take action on the application tmthin the time prescribed byHRS § 281-59(a) or the license is deemed granted.
10. At this time the [cjourt does not rule on whether the Commission’s denial of the Application in light of its failure to comply withHRS § 91-11 , would be deemed a failure to act underHRS § 19-13.5 [91-13.5](c).
11. UnderHRS § 281-59(b) [,] the Commission was required to make a ruling on corrections, additions or subtraction of the persons required to be notified of the public hearing, as required underHRS § 281-59(a) . The [c]ourt finds that the Commission did not make such rulings.
12. Under HRS S 281-57[J if the proper notices have not been sent out, the Commission shall cancel the public hearing.
13. The Commission did not make a determination as required underHRS § 281-57 that the proper number of notices had been sent out.
14. The Court grants the Intervenors’ Application to. Present Additional Evidence.
(Emphases added.)
Pursuant to its findings and conclusions, the court entered the following decision and order:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the de-cisión of the Commission to Deny [Petitioner’s] Application is REVERSED and REMANDED; and that [the] Application to Present Additional Evidence is hereby GRANTED with the following instructions:
1. The Commission shall determine whether the proper notice as required underHRS § 281-57 was made by [Petitioner], In doing so the Commission may accept additional evidence and argument, and may hold additional hearings regarding the proper number or persons required to be served underHRS § 281-57 .
2. Upon determining the proper number of persons required to be served underHRS § 291-57 [sic], the Commission may grant or deny the Application based on its ruling, may require [Petitioner] to serve all persons required to be served underHRS § 281-59 , and or hold additional public hearings.
(Emphases added.) On its face, the court’s first instruction appeal’s to be somewhat unclear. However, reading the decision and order in context with the parties’ arguments, it can be discerned that the first instruction is addressed to the Intervenors’ argument that Petitioner did not serve notice on (1) at least two-thirds of the owners and lessees of record within five hundred feet of Petitioner’s premises including at least three-quarters of those within one hundred feet and (2) at least two-thirds of the registered voters and small businesses within five hundred feet of Petitioner’s premises including at least three-fourths of those within one hundred feet of the premises, as required by
The Commission filed a notice of appeal to the ICA on May 18, 2006.12 Intervenors13 filed a notice of cross-appeal14 on May 22,
On December 24, 2007, the ICA filed its decision. In its decision, the ICA (1) concluded that “the Commission was not required to comply with
II.
Petitioner lists the following questions in its Application:
1. Did the ICA err in deciding that hearings before the [Commission] to determine whether to issue individual liquor licenses, required by HRS [§§ ]281—57 and 281-52, are not contested case hearings?
2. Did the ICA err in determining thatHRS § 91-14 provided jurisdiction for judicial review of [the Commission’s] decision while also determining that no contested case hearing occurred?
On March 24, 2008, the Commission filed a memorandum in opposition to the Application.16
On July 3, 2008, this court heard oral argument in this case.
III.
In sum, the ICA held “that the Commission was required to comply with the more specific ‘public hearing’ procedures set forth in HRS chapter 281, rather than the ‘contested case’ procedures delineated in HRS chapter 91, in deciding whether to grant or deny [Petitioner’s] liquor-license application[,]” but “agree[d] that the court had jurisdiction pursuant to
However, it appears that the ICA gravely erred in concluding that the public hearing did not constitute a contested case and that an aggrieved party to a non-contested case hearing could seek judicial review pursuant to
IV.
(a) The liquor commission, within its own county, shall have the sole jurisdiction, power, authority, and discretion, subject only to this chapter:
(1) To grant, refuse, suspend, and revoke any licenses for the manufacture, importation, and sale of liquors;
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(b)....
The exercise by the commission or board of the power, authority, and discretion vested in it pursuant to this chapter shall be final and shall not be revieivable by or appealable to any comi or tribunal except as otherwise provided in this chapter or chapter 91.
(Emphasis added.) See also Singleton, 111 Hawai‘i at 241, 140 P.3d at 1021 (stating that, “[generally, pursuant to
HRS chapter 91, codifying the Hawai‘i Administrative Procedures Act (HAPA), establishes requisite procedures for an agency conducting contested case hearings.
V.
As to the first prong of the contested case test, an agency hearing is required by law if there is a “statutory, rule-based, or constitutional mandate for a hearingf.]” Bush v. Hawaiian Homes Comm’n, 76 Hawai‘i 128, 137, 870 P.2d 1272, 1281 (1994). With respect to the instant case,
[u]pon the day of hearing, or any adjournment thereof, the [Commission] shall consider the application and any protests and objections to the granting thereof, and hear the parties in interest. The commission shall accept all written or oral testimony for or against the application whether the application is denied, refused, or withdrawn.
(Emphasis added.)
The ICA agreed that “[i]n this case, there is no question that HRS chapter 281 mandates, in most circumstances, that the Commission conduct a ‘public hearing’ when it considers an application for a liquor license.” E & J Lounge, 116 Hawai‘i at 547-48, 174 P.3d at 386-87 (citing
VI.
With respect to the second prong of the contested case test, Mahuiki is instructive. Mahuiki involved a public hearing on the applications for the project development permit, zoning permit, and special management area use permit for the construction of a condominium apartment and single-family residential dwellings in a coastal management zone. Id. at 506, 508, 654 P.2d at 874, 876. In that case, the petitioners appealed from the County of Kauai Planning Commission’s grant of the permits to the developer. Id. at 506, 654 P.2d at 874. This court held that Mahuiki involved “a contested case from which an appeal could have been taken” pursuant to
As in MaMdki, the instant case also involves a permit applicant. Petitioner, that seeks “to have the legal rights, duties, or privileges” relative to the sale of liquor at its establishment “declared over the objections of other landowners and residents of’ the area where the applicant’s establishment is located. Id. at 513, 654 P.2d at 879 (footnote omitted). As noted before, a liquor license, such as the Class 5 Dispenser’s license sought by Petitioner, “authorize^ the licensee to sell liquors ... for consumption on the premises.”
Liquor licenses belonging to other classes confer other various rights and privileges such as the right to manufacture liquor and sell it at wholesale, import and sell liquor, and sell liquor while aboard a vessel. See
VII.
Relevant to its first conclusion, see supra page 328, 189 P.3d at 440, the ICA (1) relied on this court’s analysis of the statutes, rules, and regulations governing decisions of the Hawaiian Homes Commission (HHC) related to approval of third-party agreements (TPAs) covering Hawaiian Home Lands in Bush, see 116 Hawai‘i at 545-47, 174 P.3d at 384-86, and (2) compared the procedural requirements pertinent to public hearings under HRS chapter 281 to those for contested ease hearing conducted pursuant to HRS chapter 91, id. at 548-49, 174 P.3d at 387-88.
A. It may be noted initially that, as stated by this court in Bush,
[i]f the statute or rule governing the activity in question does not mandate a hearing prior to the administrative agency’s decision-making, the actions of the administrative agency are not “required by law” and do not amount to “a final decision or order in a contested case” from which a direct appeal to circuit court is possible.
76 Hawai‘i at 134, 870 P.2d at 1278 (emphasis in original). In that case the appellants sought judicial review of a decision by the HHC to approve TPAs between native Hawaiian lessees of HHC homestead lots and non-Hawaiian third parties. This court held that “[although the procedures involved in a requested contested case hearing, and the substance of a contested case hearing once it has been granted by the [HHC], are outlined in the administrative rules, the absolute right to such hearing is not provided by these same [administrative] rules.” Id. at 135, 870 P.2d at 1279 (emphasis added).
Thus, this court decided that the rules in that case did not, in and of themselves, amount to a “regulatory mandate” of a contested case hearing but instead amounted to a “conditional right” to a contested case hearing. Id. This court also held in Bush that “there is no statutory mandate entitling Appellants to a hearing,” id. at 134, 870 P.2d at 1278, and no constitutional mandate for a hearing because the TPAs did not constitute
Petitioner is therefore correct in arguing that it is a prerequisite to judicial review under
B.
Despite the fact that a public hearing is statutorily required prior to the issuance of a liquor license, the ICA maintained that “the statutory procedures governing the ‘public hearings’ that the Commission must hold in considering liquor license applications are very different in nature from the procedures governing a ‘contested case’ healing under HRS chapter 91.” E & J Lounge, 116 Hawai‘i at 548, 174 P.3d at 387. The ICA contended that “public hearings required by HRS chapter 281 are designed to elicit public comments, especially from neighbors surrounding the premises for which a liquor license is sought, about the wisdom of allowing a liquor license for the premises.”
According to the ICA, such hearings “are not trial-like in nature, but are more akin to the public hearings that legislative committees conduct to receive public input on proposed bills or the public hearings that state and county agencies conduct as part of the process for adopting, amending, or repealing rules.” Id. Contrasting public hearings on liquor licenses to the types of hearings encompassed by HRS chapter 91, the ICA argued that the latter were “trial-type eviden-tiary hearing[s]” in which “parties are given the opportunity to present arguments on all issues, submit evidence, and cross-examine witnesses” in a setting that is “adversarial in nature” and “generally more costly, time consuming, and burdensome than public hearings.” Id. at 548-49, 174 P.3d at 287-88. The ICA cited these purported differences as a basis for its holding that the liquor license hearing was not a contested case hearing.
C.
Respectfully, this argument by the ICA is inapposite. Under the plain language of
VIII.
As to its second conclusion, see supra page 328, 189 P.3d at 440, the ICA decided (a) that a contested case hearing was not expressly required by any provision of HRS chapter 281, see 116 Hawai‘i at 549, 174 P.3d at 388, and in so doing, distinguished Town v. Land Use Comm’n, 55 Haw. 538, 524 P.2d 84 (1974), which the ICA interpreted as embodying a “determin[ation] that a contested-case hearing was required ... in addition to the statutorily mandated public hearing ... [,] ” E & J Lounge, 116 Hawai‘i at 550, 174 P.3d at 389, and that based on the legislative history of HRS chapter 91, “the term agency hearing was not intended to incorporate hearings other than contested-case proceedings within its scope[,]” id. at 550-51, 174 P.3d at 389-90; (b) without discussion, that the rules promulgated by the Commission did not require the Commission to conduct a contested-case hearing before acting on a liquor license application, see id. at 551, 174 P.3d at 390; (c) that “[tjhere is no constitutional requirement for a contested case hearing” because Petitioner had no “right” to obtain a liquor license .and thus, Petitioner had no “property interest” inherent in a liquor license, see id. at 551-52, 174 P.3d at 390-91; and (d) that “other courts ... have ... concluded that the initial grant or denial of a liquor license is not a ‘contested case’ under the Administrative Procedures Act (APA) of their respective states,” id. at 553, 174 P.3d at 392 (citing Kassab v. Acho, 150 Mich.App. 104, 388 N.W.2d 263, 265 (1986); Prestige Stations, Inc. v. Washington Liquor Control Bd., 33 Wash.App. 669, 657 P.2d 322, 325 (1982)).
A.
1.
As to item (a) above, the ICA argues that even though a public hearing was required under
The ICA noted that in oral argument, the Intervenors “pointed out ... that pursuant to
[t]hus, under HRS chapter 281, a distinction exists between an initial application for a liquor license, which requires a public hearing but not a contested-case hearing to be held, and a proceeding that affects an existing liquor license, which requires that a contested-case healing be conducted.
Id. at 549-50, 174 P.3d at 388-89.
The position of the ICA and the In-tervenors cannot be supported. Nothing in the
2.
Additionally, the ICA’s attempt to distinguish Town, where this court held that a petition before the Land Use Commission (LUC) to amend district designation of certain property from agricultural to rural was a contested case, is not persuasive. Contrary to the ICA’s contention. Town did not require that a contested case hearing be held in addition to a public hearing mandated by statute.21 In that case, a public hearing was held on July 16, 1971, on the appellants’ petition to the LUC to amend district designation of property. Town, 55 Haw. at 539, 524 P.2d at 86. A meeting to render a final decision on the petition was scheduled for October 8,1971, deferred until November 19, 1971, and finally held on January 7, 1972. Id. at 539-40, 524 P.2d at 86. This court held that it was “of the opinion that the [case was] a ‘contested case.’ ” Id. at 548, 524 P.2d at 91.
Like the instant case. Town involved a public hearing before a commission as required by statute. The ICA stated that this court “determined that the adjoining property owner had a property interest in the district-boundary amendment and was therefore entitled to a contested-case determination of
However, Town does not stand for the proposition that a property interest is a prerequisite for a contested case hearing. Rather, Town merely acknowledged that the appellant landowner there had “a property interest in the amending of a district boundary,” id. at 549, 174 P.3d at 389, and employed this factor with respect to the second prong requirement for contested eases—that “the legal rights, duties, or privileges of specific parties” be determined as required by law,
Town is akin to the instant case in that both involve a statutorily mandated public hearing before a commission. As noted above, that the appellant in Town was deemed to have a property interest with respect to the issue before the commission, is not decisively determinative of whether a case is a contested case. Thus, there is no persuasive basis for distinguishing Town from the instant case. Accordingly, the holding in Town that the commission there was required to comply with the contested case provisions contained in chapter 91, is applicable to the instant case.22 See also In re Hawaiian Elec. Co., 56 Haw. at 264, 535 P.2d at 1105 (reaffirming that “a public hearing, conducted pursuant to published notice, was a contested case within the meaning of HRS [§ ]91—1” (internal quotation marks omitted) (emphasis added)); Mahuiki, 65 Haw. at 516, 654 P.2d at 880 (noting that “a public hearing, conducted pursuant to a public notice, has been deemed a contested case within the meaning of
3.
The ICA also contended that there is “a legislative intent to exempt the Commission from the contested-case procedures set forth in HRS chapter 91 when it decides applications for liquor licenses and to require the Commission to hold a public hearing in compliance with HRS chapter 281 instead.” E & J Lounge, 116 Hawai‘i at 550, 174 P.3d at 389. As support for its proposition, the ICA asserts that HRS chapter 91 was intended to apply to those agency hearings “ ‘immediately prior to the stage when judicial review becomes available[,]’ ” id. (quoting Hse. Stand. Comm. Rep. No. 8, in 1961 House Journal, at 656), under
But, as noted by the ICA dissent in E & J Lounge, 116 Hawai‘i at 558-59, 174 P.3d at 397-98 (Nakamura, J., dissenting), the legislative history of HRS chapter 91 demonstrates the intent that chapter 91 apply to liquor license hearings like the one in the instant case. Legislative history may be used to confirm interpretation of a statute’s plain language. See Blaisdell v. Dep’t of Pub. Safety, 113 Hawai‘i 315, 319 n. 5, 151 P.3d 796, 800 n. 5 (2007) (citing “[t]he legislative history of
Act 103,1961 Haw. Sess. L., Act 103 §§ 1-21, at 85-91, was codified as HRS chapter 91. As the dissenting opinion elucidated, a review of the associated House Committee Report demonstrates that the legislature specifically intended the provisions of that chapter to apply to liquor license application denials as follows:
The [Commission] raised the question whether denial of a liquor license application came under [the definition of a contested case]. A summary submitted by the [Commission] indicates that there is judicial review in 27 states and no judicial review in 21 states although it has been urged by the liquor commission to exclude matters of liquor license application from under the definition of a “contested case”. There has been no real showing why the liquor license application should be excluded and your Committee intends said definition to include the denial of said liquor license application.
E & J Lounge, 116 Hawai‘i at 559, 174 P.3d at 398 (Nakamura, J., dissenting) (quoting Hse. Stand Com. Rep. No. 8, in 1961 House Journal, at 653-61) (emphasis added).
B.
As to item (b) above, Petitioner points out that the Rules of the Liquor Commission of the City and County of Honolulu (Rules) state that “[a]ll hearings shall be conducted pursuant to Chapters 91 and 92, [HRS], and [the Rules].” Rules § 3-81-19.1 (2005). Thus, consistent with the construction of
C.
As to item (c) above, inasmuch as there was a statutory mandate it is not necessary to address whether there existed a rule-based or constitutional mandate to hold a contested case hearing. Cf. Keahole Def. Coalition, Inc. v. Bd. of Land & Natural Res., 110 Hawai‘i 419, 432, 134 P.3d 585, 598 (2006) (agreeing with the circuit court’s holding that the appellant, with economic interests in opposing the proposed energy facility expansion at issue before the Board of Land and Natural Resources, “does not have a due process right to a contested case hearing because its economic interests do not constitute ‘property’ within the meaning of the due process clauses of the federal and state constitutions” (internal quotation marks, citation and emphasis omitted)).
D.
As to item (d) above, the ICA cites Kassab, 388 N.W.2d at 265, and Prestige Stations, 657 P.2d at 325, as cases “that have considered the issue before us [and] have concluded that the initial grant or denial of a liquor license is not a ‘contested case’ under the [APA] of their respective states.” E & J Lounge, 116 Hawai‘i at 553, 174 P.3d at 392.
These cases are inapposite. Kassab held that the liquor license case there was not a contested case “because the statute governing the issuance” of such licenses “does not require that the selection of a licensee be preceded by notice and the opportunity for a hearing.” 388 N.W.2d at 265 (citing T.D.N. Enters., Inc. v. Liquor Control Comm’n, 90 Mich.App. 437, 280 N.W.2d 622 (1979)). In contrast, here,
Again, here, the operative limiting language in Prestige Stations is not contained in the
IX.
With regard to its third conclusion, see supra page 328, 189 P.3d at 440, the ICA states that “[i]n light of [its] conclusion that the Commission was not required to hold a contested-case hearing on [Petitioner’s] application for a liquor license, [it is] inclined to conclude, based on the literal language of
Nevertheless, citing Mahuiki and Singleton, the ICA states that this court “has concluded that a ‘public hearing’ held in accordance with statutory requirements qualified as a ‘contested case’ for purposes of
[i]n light of Singleton, Mahuiki, and prior supreme court precedent, ... an applicant who is denied a liquor license following a “public hearing” held in compliance with HRS chapter 281 is entitled to seek judicial review pursuant toHRS § 91-14 .
Id. at 555, 174 P.3d at 394. However, those cases do not support the ICA’s proposition that a public hearing as in the instant case is a “contested case” subject to judicial review under
As indicated before, in Mahuiki, the petitioners appealed from the County of Kaua‘i Planning Commission’s grant of permits for the development of residential dwellings in a coastal management zone. 65 Haw. at 506, 654 P.2d at 874. The issues raised there were whether the appellants’ “interests were injured” and whether the appellants “were involved in the administrative proceeding that culminated in the unfavorable decision” such that they had standing to invoke judicial review, and whether the Planning Commission complied with the directives of the Coastal Zone Management Act when it granted the permit. Id. at 514-16, 654 P.2d at 879-81.
Mafvuiki recognized that “the pertinent inquiry at the outset is whether there was a final decision and order in a contested case from which an appeal could have been taken.” Id. at 513, 654 P.2d at 879. This court held “[that the proceeding before the Planning Commission ivas a contested case is obvious ” as the permit applicant “sought to have the legal rights, duties, or privileges of This company] relative to the development of land in which it held an interest declared
Singleton also does not advance such a position. In that ease, the appellant appealed the Commission’s grant of a liquor license to the applicant for an establishment at the Kona Marketplace Shopping Center on the island of Hawai‘i. 111 Hawai‘i at 237, 140 P.3d at 1017. The appellant challenged the grant of the license on the alleged grounds that the Commission erroneously interpreted
Singleton did state that the Commission’s “decisions are final subject to judicial review under HRS chapter 91” and cited
Moreover, Singleton does not support the ICA’s proposition that a case may be considered a “contested case” to which
That case did not recite any arguments that the Commission had failed to act in accordance with contested case requirements prescribed by HRS chapter 91. Thus, it cannot be said that because this court did not discuss the applicability of HRS chapter 91 contested-case rales to the Commission, that the Commission is excused from complying with those rules.
X.
A.
In their brief to the ICA, Intervenors argued that to deem Petitioner’s case a contested case subject to HRS chapter 91 would be problematic in that the requirement in
[w]henever in a contested case the officials of the agency who are to render the final decision have not heard and examined all of the evidence, the decision, if adverse toa party to the proceeding other than the agency itself, shall not be made until a proposal for decision containing a statement of reasons and including determination of each issue of fact or law necessary to the proposed decision has been served upon the parties, and an oppo-rtunity has been afforded to each party adversely affected to file exceptions and present argument to the officials who are to render the decision, who shall personally consider the whole record or such portions thereof as may be cited by the parties.
(Emphasis added.) Also to reiterate,
Within fifteen days after the hearing, or within thirty days thereafter if in its discretion the [CJommission extends the fifteen days to thirty days, and gives public notice of same, the [CJommission 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 [CJommission may in its discretion grant or refuse the same.
(Emphases added.)
Intervenors posit that “[i]f the application hearings are considered contested cases ...[,] then
Relatedly, this court has said, “Legal issues not raised in the trial court are ordinarily deemed waived on appeal.” Kau v. City & County of Honolulu, 104 Hawai‘i 468, 475 n. 6, 92 P.3d 477, 484 n. 6 (2004) (internal quotation marks and citation omitted). The rationale behind this rule is to “prevent[J appellants from presenting new legal theories as to why they should have prevailed at trial.” State v. Moses, 102 Hawai‘i 449, 456, 77 P.3d 940, 947 (2003). “The duty of this court, as of every other judicial tribunal is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.” Wong v. Bd. of Regents, 62 Haw. 391, 395, 616 P.2d 201, 204 (1980). See also In re Hawaiian Elec. Co., 56 Haw. at 267, 535 P.2d at 1107 (holding that it is not “deem[ed] advisable to decide [a] particular issue, inasmuch as it was not briefed and argued before this court”). Thus, this issue raised by the Intervenors need not be reached.
B.
Nevertheless, in light of the fact that the
Reading the statutes in pari mate-ria.
It may be noted that pursuant to
Consequently, it is possible to give effect to both statutes as described above insofar as a public hearing on a license application must be regarded as a contested case subject to the requirements of HRS chapter 91. See Richardson v. City & County of Honolulu, 76 Hawai‘i 46, 55, 868 P.2d 1193, 1202 (1994) (“[Wjhere the statutes simply overlap in their application, effect will be given to both if possible, as repeal by implication is disfavored.” (Internal quotation marks and
XI.
As previously noted, the court, in its Decision and Order, “reversed” the Commission’s denial of Petitioner’s application and remanded the case to the Commission with instructions to: (1) “determine whether [Petitioner made] the proper notice as required under
XII.
A.
Related to the court’s instructions on remand, it should be noted that HRS chapter 91 also contains notice provisions, namely sections 91-9 (1993)28 and 91-9.5 (1993).29 However, for purposes of conducting a public hearing on a liquor license application, the notice provisions of
The legislative history of
B.
Similarly,
On the other hand, in this case, the content requirement of
Similarly,
XIII.
Relatedly it may be noted that without taking direct issue with the scope of the court’s remand instructions, the ICA alluded to two issues not raised by the parties or the court regarding the Commission’s receipt of protests against Petitioner’s application. First, the ICA said that the Commission’s rule requiring protests to an application for a liquor license be submitted to the Commission three business days before the public hearing, but that gave the Commission discretion to “allow additional protests to be filed at the public hearing or any adjournment thereof[,]” Rules § 3-83-58.1, “appear[ed] to be inconsistent with HRS 281-57(b),” which requires that such protests can be filed “at or before the time of hearing.” E & J Lounge, 116 Hawai‘i at 541 n. 26, 174 P.3d at 380 n. 26 (quoting
Pursuant toHRS § 281-57(b) , the cut-off time for receipt of protests or objections against the issuance of a liquor license is the date of the healing stated in the hearing notice that is published in the newspaper. If the Commission continues the hewing because it is unable to complete its decision-making on the published hearing date, there appears to be no statutory authority that allows the Commission to accept additional protests. If the date for receipt of protests is a moving target, it would be difficult for the Commission or its staff to determine whether the requisite number of protests has been received for automatic refusal of the application pursuant toHRS § 281-59(a)(2) (Supp.2006).
Id. at 542 n. 29, 174 P.3d at 381 n. 29 (emphasis added).37 However, inasmuch as the parties did not raise these issues in their appeal to the ICA and Petitioner did not raise these issues in its Application, the issues are deemed waived and need not be considered. See HRAP Rule 8(b) (“Points not presented in accordance with [HRAP Rule 28] will be disregarded, except that the appellate court, at its option, may notice a plain error not presented”); Sprague v. Cal. Pac. Bankers & Ins. Ltd., 102 Hawai‘i 189, 195, 74 P.3d 12, 18 (2003) (“It is within the appellate court’s discretion whether to recognize points not presented in accordance with HRAP Rule 28(b)(4).”).
XIV.
A.
Because the case must be remanded to the Commission in light of the court’s instructions concerning notices, the question of whether Petitioner’s application must be deemed automatically granted for the alleged failure of the Commission to comply with
9.HRS § 91-13.5(c) requires the Commission to take action on the application within the time prescribed byHRS § 281-59(a) or■ the license is deemed granted.
10. At this time the [cjourt does not rule on whether the Commission’s denial of the Application in light of its failure to comply withHRS § 91-11 , would be deemed a failure to act underHRS § 19-13.5 [91-13.5](c).
(Emphasis added.) The resolution of this issue is pertinent to the disposition of this case. If Petitioner’s arguments are well-taken, an appellate court would be constrained to order the Commission to grant Petitioner’s liquor license rather than confirm the court’s decision to remand the case.
In Petitioner’s Notice of Appeal filed in the court, Petitioner contended that because the Commission did not comply with HRS § Dill, it “failed to follow the well-established law to issue a decision within the time period required by
Petitioner stated in its Opening Brief to the court that at the May 12, 2005 meeting, the Commission’s counsel advised that “a decision needed to be made on the liquor license application or else, by operation of law, the license would soon be approved since the [fifteen] days after the close of the public hearing had nearly expired.” Without addressing the limitations contained in
[t]he maximum time allowed for liquor license applications is provided by HRS [§ ]281-59. [The Commission] was required by HRS [§ ]281-59 to either approve or deny [Petitioner’s] liquor license application within [fifteen] days of the close of the public hearing on the application. This meant that if the [Commission] did not follow all of the steps necessary to deny [Petitioner’s] application by May H, 2005, [Petitioner’s] license would be granted.
HRS [§ ]91—11 prohibits an adverse decision on [Petitioner’s] liquor license application by the [Commission] until its statutory requirements are fulfilled. Since the [Commission] has not fulfilled those statutory requirements, the [Commission] was, and continues to be, legally prohibited from deciding against [Petitioner’s] license application. Because the deadline mandated by HRS [§ ]91-13.5 [in conjunction untilHRS § 281-59 ] has passed, [the comt] should order the [Commission] to issue [Petitioner’s] license.
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The [e]ourt should not order an extension of the time for the [Commission] to rule on [Petitioner’s] application since such extension of time would clearly violate HRS [§ ]91—13.5. Any extension of time would violate the letter of the law and frustrate the legislature’s intent to fix a maximum time for administrative action on business-related permits.
(Emphases added.)
The Commission did not dispute that
It does not appear in the record that this issue was argued further before the court. As noted previously, the court declined to rule on whether the Commission had failed to act on Petitioner’s liquor license application such that the automatic approval provision of
any state or county application, petition, permit, license, certificate, or any other form of a request for approval required by law to be obtained prior to the formation, operation or expansion of a commercial or industrial enterprise, or for any permit, license, certificate or any form of approval required under sections 46-4, 46-4.2, 46-4.5, 46-5, and chapter 183C, 205, 205A, 340A, 340B, 340E, 340F, 342B, 342C, 342D, 342E, 342F, 342G, 342H, 3421, 342J, 342L, and 342P.
E & J Lounge, 116 Hawai‘i at 543 n. 29, 174 P.3d at 382 n. 29 (quoting
C.
In that regard, and as a threshold matter, it must be determined whether the Commission’s failure to comply with
It may be concluded that the Commission’s vote to deny Petitioner’s application “decided] or settled] a controversy or question.” No party argues that, but for the fact that Commissioner Au Young was not present at the first meeting and was not made familiar’ with the course of that meeting pursuant to
Such an interpretation would violate the well-established tenet of statutory construction that “an interpreting court should not fashion a construction of statutory text that effectively renders the statute a nullity or creates an absurd or unjust result. ” Konno v. County of Hawai’i, 85 Hawai‘i 61, 71, 937 P.2d 397, 407 (1997) (internal quotation marks and citation omitted) (emphasis added). Under such a rule, any procedural error committed in the course of denying a license or permit would trigger the automatic approval provision, requiring the reviewing court to order the pertinent agency to grant said license or permit. Given that the legislature provided an avenue for judicial review pursuant to
XV.
Accordingly, we hold that the ICA erred in determining that the Commission was not obligated to comply with HRS chapter 91 in considering Petitioner’s application for a liquor license. The public hearing on Petitioner’s application constituted a contested case
For purposes of guiding the Commission on remand, it is noted that there is no conflict between
Petitioner’s application is remanded to the Commission with respect to the notices sent by Petitioner pursuant to
XVI.
Hence, the ICA’s December 24, 2007 decision and January 8, 2008 judgment are vacated. The case is remanded to the court for disposition by it as follows: (1) the Commission’s June 16, 2005 order denying the application shall be vacated and the case remanded to the Commission for further proceedings, (2) that portion of the court’s decision and order instructing that on remand to the Commission, “[t]he Commission shall determine whether the proper notice as required under
Notes
. The published opinion was authored by Associate Judge Corinne K.A. Watanabe and joined by Chief Judge Mark E. Recktenwald. Associate Judge Craig H. Nakamura filed a separate dissenting opinion. ICA, as used in connection with this appeal, refers to the majority opinion.
. The Honorable Eden Elizabeth Hifo presided.
.
.
(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.
.In pertinent part,
(c) All such issuing agencies shall take action to grant or deny any application for a business or de\>elopment-related permit, license, or approval within the established maximum period of time, or the application shall be deemed approved.
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(e) For purposes of this section, “application for a business or development-related permit, license, or approval” means any state or county application, petition, permit, license, certificate, or any other form of a request for approval required by law to be obtained prior to the formation, operation, or expansion of a commercial or industrial enterprise, or for any permit, license, certificate, or any form of approval required under sections 46-4, 46-4.2, 46—4.5, 46-5, and chapters 183C, 205, 205A, 34-A, 340B, 340E, 340F, 342B, 342C, 342D, 342E, 342F, 342G, 342H, 3421, 342J, 342L, and 342P.
(Emphases added.)
. The relevant provisions of
.
.
If no preliminary hearing is had or if the application is not denied upon a preliminary hearing, the [Cfommission shall fix a day for the public hearing of the application ... and shall give the public notice of the hearing .... The notice shall require that all protests or objections against the issuance of the license applied for shall be filed with the administrator of the [Commission at or before the time of hearing....
(Emphases added.)
.On appeal to the court from the Commission‘s June 16, 2005 FOF, COL, and Decision and Order, Petitioner raised the following issues in its opening brief before the court: (1) “[t]he [Commission‘s] Order denying the liquor license must be vacated for failure to comply with
In its answering brief before the court, the Commission stated the following: (1) “[p]ublic hearings and contested case hearings have different statutory procedure requirements and are governed by different liquor statutes and rules%[]”; (2) “[c]ontrary to [Petitioner‘s] argument,
In its answer to Petitioner‘s Statement of the Case, Respondents/Intervenors-Appellees/Inter-venors-Cross-Appellants H. James Stahl, Tyson J. Thomas, Randi Thomas, Emily Reed, and Bill Maxwell [collectively, Intervenors] stated the following: (1) “[c]ommissioners are absent from hearings constantly and if every action of the Committee [sic] which occurred when one of them was absent could be challenged, the Committee [sic] would be useless! 1”; (2) “Where was sufficient written testimony on file from the April 21, 2005 hearing for Mr. Auyoung to make an informed decision and to vote accordingly! ]”; (3) ” ‘although the location of the proposed licensed premises is in Waikiki, the specific area and more particularly the specific building is a residential area[and, a]s a result!,] it would be incompatible to permit this type of license to be situated at this location[]’ ” (quoting Commission‘s Findings of Fact at 5, Paragraph 15); (4) considering the location of Petitioner‘s establishment and the surrounding residential units, ” ‘[i]t would not be in the public interest to grant a Dispenser General License to [Petitioner]’ ” (quoting Commission‘s Findings of Fact at 5, Paragraph 2); (5) “[flor the court to order [the Commission] to issue the Dispenser General License to [Petitioner] using as its sole reason that the alleged oversight of a procedural technicality occurred!,] would be tantamount to the court ruling that the needs of one outweigh the needs of the many.”
Additionally, in their Opposing Brief to the court, Intervenors argued that in mailing the notices, Petitioner did not satisfy the requirements of
.
[wjhenever in a contested case the officials of the agency who are to render the final decision have not heard and examined all of the evidence, the decision, if adverse to a party to the proceeding other than the agency itself, shall not be made until a proposal for decision containing a statement of reasons and including determination of each issue of fact or law necessary to the proposed decision has been served upon the parties, and an opportunity has been afforded to each party adversely affected to file exceptions and present argument to the officials who are to render the decision, who shall personally consider the whole record or such portions thereof as my be cited by the parties.
(Emphases added.)
. At oral argument, the court questioned Petitioner about the effect of
there‘s a requirement that whoever wants to make corrections to the list offer those corrections ... and, Your Honor, as far as I‘m aware, that was not done in this particular case. If no offer of corrections is made, I do not believe the [Commission] is obliged to make any findings or conclusions or give any reasons for any changes because no changes are going to be made.... I do not believe ... that that particular section is going to be relevant.
Petitioner further argued that any such error was immaterial on the ground that the Commission had not complied with
However, these issues were not challenged by the Commission or the Intervenors on appeal to the ICA. See infra at 48. In fact, on appeal to the ICA, the Commission noted that at the first public hearing, questions arose whether proper notice was supplied to the community in accordance with
.On appeal to the ICA the Commission argued (1) the hearing in question was a public hearing governed by the State‘s Sunshine Laws in
Petitioner answered that “proceedings held to determine whether a liquor license should be issued are contested cases[,]” (formatting altered), arguing that “the procedures of [HRS § ]281-59 are consistent with [c]ontested [c]ase [h]earings[,]” (formatting altered).
. The Intervenors are Owners and Resident-Owners of the Island Colony and Seaside Suites, part of the “[c]ommunity” that opposed having a bar operating in its apartment building.
. The Commission filed its notice of appeal first. Under Hawaii Rules of Appellate Procedure (HRAP) Rule 4.1, after one party in a multiparty litigation files an appeal, every other party’s appeal is designated as a cross-appeal, even if the party that files subsequently shares the position of the party that filed first.
. On appeal to the ICA the Intervenors contended (1) “HRS [chapter] 281 references
In response, Petitioner answered simply that “HRS [chapter] 91 applies to [Commission] hearings required by HRS §[§ ]281-52 and [-]59” (formatting altered), and that “judicial review of the [Commission] is necessary[,]” (formatting altered).
. The Commission’s position in its objection to Petitioner’s application for certiorari was that ”[t]he decision of the ICA is consistent with case law and the intent of
. A license for purposes of HRS chapter 281 “means any license granted under this chapter.”
. The preliminary hearing requirement in
. Contrary to the ICA‘s assertion that the instant public hearings were not “trial type eviden-tiary hearing[s]” in which parties are given the “opportunity to present arguments on all issues, submit evidence, and cross-examine witnesses” in a setting that is “adversarial in nature[,]” E & J Lounge, 116 Hawai‘i at 548-49, 174 P.3d at 387-88, the public hearings are nonetheless adversarial in that the Commission “shall consider the application and any protests and objections to the granting thereof, and hear the parties in interest!,]”
. Additionally, this addresses Intervenor‘s contention that the public hearing was subject to HRS chapter 92, commonly known as the “Sunshine Law.” This argument is untenable in that chapter 92, by its own terms is inapplicable to contested case hearings. See
. The ICA maintained that ”[t]he crux of [Petitioner’s] appeal is whether the Commission was required to conduct both the public hearing required by HRS chapter 281 and a contested-case hearing that complied with the requirements of
.
. Hence, Intervenors’ argument that the Commission was not careful in wording rule 19.1 to say that “[a]ll hearings shall be conducted pursuant to Chapters 91 and 92” is not persuasive.
. This addresses the Intervenors’ contention that Petitioner did not mail notices to the requisite number of neighboring owners and lessees of record and registered voters, as required under
. Presumably, the court meant that if the Commission decided to hold additional hearings, it could require Petitioner to mail notice of such hearings to neighboring tenants and lessees as required under
. Only the second part of the court’s decision and order is implicated by the points discussed by the ICA inasmuch as the ICA does not raise any questions regarding how to calculate the number of people who must be mailed notice pursuant to
.In addition, the ICA noted several differences between the 1961 Model State Administrative Procedures Act (MSAPA) and HRS chapter 91, none of which are relevant to the issues raised in this appeal. E &J Lounge, 116 Hawai‘i at 536 n. 21, 174 P.3d at 375 n. 21. These differences include differences in the definition of “contested case,” “license,” and “licensing” that are not relevant to the disposition of this case. See id. Also, the ICA noted that the MSAPA was amended in 1981, but that Hawai‘i has not adopted those amendments. Id.
. Specifically,
(a) In any contested case, all parties shall be afforded an opportunity for hearing after reasonable notice.
(b) The notice shall include a statement of:
(1) The date, time, place, and nature of hearing;
(2) The legal authority under which the hearing is to be held;
(3) The particular sections of the statutes and rules involved;
(4) An explicit statement in plain language of the issues involved and the facts alleged by the agency in support thereof; provided that if the agency is unable to state such issues and facts in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved, and thereafter upon application a bill of particulars shall be furnished;
(5) The fact that any party may retain counsel if the party so desires and the fact that an individual may appear on the individual’s own behalf, or a member of a partnership may represent that partnership, or an officer of authorized employee of a corporation or trust or association may represent the corporation, trust, or association.
.
(a) Unless otherwise provided by law, all parties shall be given written notice of hearing by registered or certified mail with return receipt requested at least fifteen days before the hearing.
(b) Unless otherwise provided by law, if service by registered or certified mail is not made because of the refusal to accept service or the board or its agents have been unable to ascertain the address of the party after reasonable and diligent inquiry, the notice of hearing may be given to the party by publication at least once in each of two successive weeks in a newspaper of general circulation. The last published notice shall appear at least fifteen days prior to the date of the hearing.
(Emphases added.)
.
(b) If no preliminary hearing is had or if the publication is not denied upon a preliminary hearing, the [C]ommission shall fix a day for the public hearing of the application (other than an application for an alcohol license or a license in classes 7 to 10 and 13) and shall give public notice of the hearing at least once in each of two consecutive weeks, in the county, the date of the hearing to be not less than forty-five days after the first notice. The notice shall require that all protests or objections against the issuance of the license applied for shall be filed with the administrator of the [C]omission at or before the time of hearing. Before giving the notice the [Commission shall collect from the applicant the cost of giving the public notice or require a deposit to cover the same.
(c) Immediately upon the [Commission’s fixing a day for the public hearing of the application, the applicant shall mail a notice setting forth the time and place of the hearing on the application to each of the following:
(1) Not less than two-thirds of the owners and lessees of record of real estate and owners of record of shares in a cooperative apartment or to those individuals on the list of owners as provided by the managing agent or governing body of the shareholders association situated within a distance of five hundred feet from the nearest point of such real estate or cooperative apartment; provided that in meeting this requirement, the applicant shall mail a notice to not less than three-fourths of the owners and lessees of record of real estate and owners of record of shares in a cooperative apartment situated within a distance of one hundred feet from the nearest point of the premises for which the license is asked. Notice by mail may be addressed to the last known address of the person concerned or to the address as shown in the last tax return filed by the person or the person‘s agent or representative.
(2) In counties with a population of two hundred-fifty thousand or more, not less than two-thirds of the registered voters residing within, and small businesses situated within, a distance of five hundred feet from the nearest point of the premises for which the license is asked; provided that in meeting this requirement, the applicant shall mail notices to not less than three-fourths of the registered voters residing within, and small businesses situated within, a distance of one hundred feet of the premises for which the license is asked This paragraph shall not apply to any applicant that is a hotel as defined in section 486K-1, a restaurant, or a convenience store. A notice sent pursuant to this paragraph shall be addressed to the “occupant” of the residential unit or small business!)]
(Emphases added.)
. Of the contested case hearing provisions, only
This addresses the ICA’s argument that the incompatibility of the notice requirements in
Also, this addresses the ICA’s apparent concern that “contested-case proceedings are generally more costly, time consuming, and burdensome than public hearings.” Id. at 549, 174 P.3d at 388. However, these considerations are not germane in determining whether the hearing on Petitioner’s application was a contested case hearing. Moreover, inasmuch as
. HRS chapter 91 was patterned after the 1959 draft MSAPA, which was passed in 1961. See Stand. Comm. Rep. No. 8, in 1961 House Journal at 654. The Comment on the 1981 MSAPA notes that the last clause in the definition of “party,” ” ‘properly seeking and entitled ...’ was intended to confer upon would-be intervenors the right to seek judicial review if their petitions for intervention were denied.” 15 ULA at 3 (2000). Hence, the 1981 MSAPA was amended to include distinct definitions for (1) “party to agency proceedings!)]” 15 ULA § 1-102(6) (2000), and (2) “party to judicial review or civil enforcement proceedings])]” 15 ULA § 1-102(7) (2000). The amendment was deemed necessary because “the 1961 Revised Model Act‘s concept of persons ‘properly seeking and entitled ... ’ could lead to awkward consequences, if included in the definition of ‘party.’ For example, it could compel a person serving copies of pleadings to ascertain whether each potential recipient of service, known or unknown, is ‘properly seeking and entitled ....’” 15 ULA Comment on § 1-102 (2000) at 14 (emphasis added).
The ICA opinion echoed the concern stated above, noting that “contested-case proceedings are generally more costly, time consuming, and burdensome than public hearings.” E & J Lounge, 116 Hawai‘i at 549, 174 P.3d at 388. The additional costs of a contested case hearing include sending notice by registered mail as required under
. In that connection, the Commission’s Rules elaborate on to how notice is to be served. Hawaii Administrative Rules (HAR) § 3-81-19.6 (2005) instructs that
(a) Unless otherwise provided by this chapter or by other applicable law, whenever sewice is required to be made on any party to a proceeding before the Commission, sewice shall be made personally or by certified mail; the document to be sewed at the party‘s last known address or to the party’s attorney of record or to any other individual duly authorized to represent the party in the proceeding, (b) If personal service or service by certified mail is unsuccessful, the Commission may authorize service by publication if permitted by statute. The Commission may require that personal service be attempted prior to permitting service by publication. After service by publication has been authorized, whenever service is required to be made on that party thereafter, service by first class mail to the party’s last known address shall be sufficient.
(Emphasis added.) Relatedly, HAR § 3-81-19.7 (2005) states that
[u]nless otherwise provided by these rules, a party filing a pleading, motion, memorandum, document, or other paper in connection with an adjudication hearing shall cause a copy of the pleading, motion, memorandum, document, or other paper to be sewed upon each of the other parties to the adjudication hearing, or upon any agent or attorney representing the other party. The party shall attach to the pleading, motion, memorandum, document, or other paper a certificate of service indicating the date and manner of service.
(Emphasis added).
. The Commission‘s Rules define parties as, inter alia, “a petitioner, claimant, respondent, in-tervenor, or ... [person] other than ... a witness.” HAR § 3-80-1.1 (June 2005).
. It should be noted that
In turn, whether one has suffered an “injury in fact” is determined under a three part test: (1) whether the person “has suffered an actual or threatened injury as a result of the defendant’s wrongful conduct,” (2) whether “the injury is fairly traceable to the defendant’s actions,” and (3) whether “a favorable decision would likely provide relief for [the person‘s] injury.” Keahole Def. Coal., 110 Hawai‘i at 434, 134 P.3d at 600 (citations and internal quotation marks omitted). It seems that Intervenors would satisfy this test. First, Intervenors contend that they were deprived of the opportunity to effectively oppose Petitioner’s application, i.e., to trigger the automatic denial provision contained in
In addition to being “aggrieved,” a person seeking judicial review of an agency decision “must have been involved in the contested case before the [agency].” City & County of Honolulu v. Pub. Utils. Comm’n, 53 Haw. 431, 433, 495 P.2d 1180, 1182 (1972); see also Jordan v. Hamada, 64 Haw. 451, 458, 643 P.2d 73, 75-76 (1982) (explaining that, in order to have standing to appeal an agency decision pursuant to
This court has also said that involvement in a contested case hearing does not require that the person seeking judicial review formally intervene in the matter, but rather, that the person participated in an adversarial-type hearing. See PASH, 79 Hawai‘i at 433, 903 P.2d at 1254 (appellant had followed the Rules of the Hawai‘i Planning Commission in seeking a contested case hearing and judicial review, such that its right to appeal was perfected notwithstanding that fact that the agency had not granted it formal leave to intervene); Mahuiki, 65 Haw. at 515, 654 P.2d at 880 (explaining that “[p]articipation in a hearing as an adversary ... has been held sufficient to give rise to appeal rights” (citation and internal quotation marks omitted) (ellipsis in original)); In re App. of Hawaiian Elec. Co., 56 Haw. at 264, 535 P.2d at 1105 (explaining that “adversary participation need not be confined to formal proceedings before the agency”); E. Diamond Head Ass‘n, 52 Haw. at 524, 479 P.2d at 799 (holding that because rules of the Zoning Board of Appeals did not provide for formal intervention but merely contained “a requirement for the presentation of grievances,” which mandated that the agency provide all parties an opportunity “to present evidence and argument on all issues involved,” the appellants perfected their right to appeal by testifying at the public hearing and they were not required to “formally intervene” (citations and internal quotation marks omitted)).
The Intervenors also participated in the public hearings. At the commencement of testimony, the Chairman of the Commission instructed the members of the public that the Commission‘s counsel informed him that “if [they wanted to] be counted as a[n] official protestor,” they should “state [their] name and address ... for that count,” the total count. Four of the five Interve-nors complied with the Commission’s instructions. The final Intervenor, H. James Stahl, testified before the Commission, and indicated that he was “president of the AOAO Board,” but did not give his full address.
Related to the second standing requirement, it should be noted that the Commission has not promulgated procedures for admitting persons seeking admission to contested case hearings. See HAR § 3-81-19 (June 2005) (“Hearings, Attendance, Examinations”), and HAR § 3-83-52 (June 2005) (“Public Hearing (Reserved)”). In this case, the Commission was not treating the hearing on Petitioner‘s application as a contested case hearing and thus, any such procedure would not have been invoked. However, the existence of such procedures would facilitate ascertaining which statutes and rules pertain to whom.
. This issue was not raised to the court or the ICA at any stage of the appeal. Nor was it presented to this court in the Application. Moreover, it is inapposite to the disposition herein inasmuch as it is undisputed that the Commission took protests and objections, including testimony from each of the Intervenors, at both the April 21, 2005 and the April 28, 2005 public hearings. Furthermore, while Petitioner opposed Intervenors’ Motion to Intervene in the court, its opposition was not based on any argument that the Intervenors had not participated in the agency proceeding, but rather, on the ground that the Intervenors’ “positions [were] not supported by law[,]” insofar as the Intervenors argued that (1) “[i]f [Kim] had been in attendance on May 12, 2005, he would have voted against [Petitioner’s] application,” which Petitioner dismissed as “not relevant” and “simply conjecture[,]” and (2) “[a]lthough he was not present at the April 21, 2005[] hearing, [Auyoung] had enough information on which to base his decision to deny [Petitioner’s] applicationf,]” which is fundamentally contrary to the requirements of
. Relatedly, HRS 281-59(c)(2) provides that, in certain instances, the Commission may continue a hearing and allow the Petitioner to respond to objections. Specifically, the Commission may continue the hearing to investigate or consider further “any matter or thing which in the opinion of the majority of its members would be a sufficient objection to the granting of a licensee,]” but if “the objection is one to which the application should be given a reasonable time to answer,” the Commission may grant a continuance in its discretion.
. In Hawaii Electric Light Co., this court held that “any action by the Board of Land and Natural Resources [(the Board)]” required a vote by the majority “of all the members to which the Board is statutorily enlitled[,]” i.e., four members. 102 Hawai‘i at 261, 75 P.3d at 164. Thus, “because the Board failed to render four votes either approving or rejecting” the subject application, it was deemed granted by operation of the default provision contained in
. Subsequent to this decision,