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HE 2012-003 Rodriguez Decision POWELL & GUNTER Attorneys at Law 1025 Jadwin Avenue Don E.Powell Richland,WA 99352 (509)943-6781 Alan B.Gunter Fax(509)946-5177 ----------------------- Rachel M Woodard January 22, 2013 Dave McDonald 525 N. 3rd Pasco, WA 99301 Re: Octavio Rodriguez Dear: Dave, Enclosed please find the Hearing Examiner's decision upon appeal from denial of a business license for a retail liquor store by Octavio Rodriguez. If you have any questions,contact the office at 943-6781. Yours very truly, POWoE/LLL&GGUNTE Alan B. Gunter ABG:al Enclosures F:/W ord/Alicia/DaveMcDonald.Rodriguez.Letter CITY OF PASCO HEARING EXAMINER HEARING APPEAL FROM DENIAL OF A BUSINESS ) LICENSE FOR A RETAIL LIQUOR STORE ) CASE#HE 2012-003 BY OCTAVIO RODRIGUEZ ) This appeal by Octavio Rodriguez of the denial by the City of Pasco of a business license for a retail liquor store to be located at 114 North 4 1 Avenue was heard on January 9,2013,at 3:30 p.m., at Pasco City Hall in Pasco,Washington.Present on behalf of the City of Pasco were Shane O'Neil, assistant city planner and Rick White, Pasco Community &Economic Development Director, and Patrick Galloway, attorney for the City of Pasco. Octavio Rodriguez, appeared personally and was represented by his attorney John Ziobro. Based on the testimony of Shane O'Niel and Rick White for the City of Pasco, the written report to the hearing examiner and the exhibits attached thereto which included: A. Business license application #17684 B. City of Pasco Business License denial letter from JoAnna Barra to Octavio Rodriguez dated October 22, 2012 C. PMC Section 25.44(current C-2 zone) D. PMC Section 25.42(current C-1 zone) E. PMC Section 22.44(C-2 zone pre-1988) F. PMC Section 22:44(C-2 zone post 1988) G. Letter from John Ziobro to Rick White and Gary Crutchfield dated 10/22/12 H. Letter from Rick White dated 10/24/12 1. Ordinance 2684. Also considered were the following: 1. Letter from Gary Crutchfield,City Manager,to Pat Kohler,Washington State Liquor Control Board dated July 10, 2012 2. Letter from John Ziobro to Rick White, Pasco Community & Economic Development Director together with its attachments dated 12/13/2012. 3. Court cases provided by John Ziobro. a) State of Washington v. Logan C. Baldwin, 109 Wash.App. 516 (2001) b) Blue Diamond Group, Inc. v. KB Seattle 1, Inc., 163 Wash.App 449 (2011) C) Personal Restraint Petition of Thomas J. Hopkins, 137 Wash.2d897 (1999) d) Detention of Sheldon Martin, 163 Wash.2d 501 (200 7) Page 1 of 2 City of Pasco/Octavio Rodriguez Hearing Examiner Decision I e) Milestone Homes Inc. v. The City of Bonney Lake, 145 Wn. App. 118 (2008) Based upon the above testimony and documents the following findings of fact are made: FINDINGS OF FACT A) Octavio Rodriguez applied for a City of Pasco business license(Lic.#17684)on October 26, 2012, to conduct retail sales of liquor for off-site consumption from a store to be located at 114 North 4t" Avenue, Pasco, Washington. B) 114 North 4`", Pasco, Washington is located within the city limits of Pasco, Washington. C) 114 North 4`"is zoned C-2 (Central Business). D) The City of Pasco denied the business license application for a retail business for the sale of liquor for off-site consumption located at 114 North 4t',Pasco,Washington(Lic.#17684)on October 29,2012 taking the position that such use was not a permitted use within C-2 zone. E) PMC 25.44 lists permitted uses in a C-2 Zone. F) Retail sale of liquor for offsite consumption is not listed as a permitted use or as a permitted accessory use in PMC 25.44. G) Retail sale of liquor for offsite consumption is not listed as a prohibited use in PMC 25.44. CONCLUSIONS OF LAW I. A retail liquor store for the sale of liquor for offsite use is not a permitted use in a C-2 zone. 2. Any use which is not a permitted use under PMC 25.44 is prohibited even if it is not specifically listed as a prohibited use in PMC 25.44. ORDER I Based upon the foregoing findings of fact and conclusions of law, the appeal of Octavio Rodriguez is denied. j Done this Z Z day of January, 2013. Alan B. Gunter, Hearing Examiner F.\...\docs\pasco.Rodriguezdecision j Page 2 of 2 City of Pasco/Octavio Rodriguez Hearing Examiner Decision I i