On August 14, the Oregon Liquor Control Commission (“OLCC”) distributed to members of the Rules Advisory Committee (“RAC”) a revised draft of the rules that will affect the residency requirements for Ballot Measure 91 businesses.
There are several significant changes from the initial draft of the rules (which initial draft was discussed in Part 2 of this series).
Here are the latest versions of the most relevant provisions:
() “Applicant” means any person or legal entity having a financial interest in the business for which licensure is sought and who is directly involved in the operation or management of the business
(a) Direct involvement in the operation or management of the business may be indicated by, but is not limited to, the following behaviors, benefits or obligations:
(i) Any person or legal entity that exercises control over, or is entitled to exercise control over, the business;
(ii) Any person or legal entity, that incurs, or is entitled to incur, debt or similar obligations on behalf of the business;
(iii) Any person or legal entity, that enters into, or is entitled to enter into, a contract or similar obligations on behalf of business [sic];
(iv) Any person or legal entity that identified [sic] as the lessee of the premises proposed to be licensed.
() “Financial interest” means having an interest in the business such that the performance of the business causes, or is capable of causing, an individual or a legal entity with which the individual is affiliated, to benefit or suffer financially, and such interests include but are not limited to:
(a) Receiving, as an employee or agent, out-of-the-ordinary compensation, either in the form of over-compensation or under compensation;
(b) Lending money, real property or personal property to an applicant or licensee for use in the business;
(c) Giving money, real property or personal property to an applicant or licensee for use in the business; or
(d) Being the spouse or domestic partner of an applicant or licensee. For purposes of this subsection, “domestic partners” includes adults who qualify for a “domestic partnership” as defined under ORS 106.310.
Applicant and Licensee Qualifications
(1) An applicant must:
(a) Be at least 21 years of age; and
(b) Be the legitimate owner of the business proposed to be licensed; and
(c) Until January 1, 2020, have been a resident of Oregon for at least two consecutive two years [sic] prior to the date the initial or renewal application was submitted.
(2) Individuals listed as applicants on an initial or renewal application, or identified by the commission as an applicant must maintain Oregon residency while the business is licensed.
In determining whether an applicant is the legitimate owner of the business proposed to be licensed or subject to license renewal the Commission:
(1) Must consider whether at least one applicant owns at least 51% of the business proposed to be licensed or whether one or more applicant [sic] in sum owns at least 51% of the business proposed to be licensed; and
(2) May consider whether an individual or legal entity other than an applicant, or an employee acting under the direction of an applicant, is directly involved in the operation or management of the business.
This is my best analysis of what the latest versions of the rules say:
1. Two-year Oregon residents must own at least 51% of the business. The OLCC has provided for this in a rather roundabout way by adding the “legitimate owner” requirement to the Applicant and Licensee Qualifications provision, and then by saying that the OLCC, in determining the identity of the legitimate owner, must consider who (individually or in the aggregate) owns 51% of the business. See clause (1)(b)) of Applicant and Licensee Qualifications and clause (1) of Legitimate Ownership.
2. If any single individual controls the business, or if any single individual has the unilateral authority to take certain actions on behalf of the business (such as incurring debt or entering into contracts), then that individual must be a two-year Oregon resident. The OLCC’s language is not clear here, but this appears to me to be the most likely interpretation. Under the rules, an individual is not an “applicant” unless the individual is “directly involved” in the operation or management of the business. “Direct involvement” means controlling the business or having the right to take certain actions on behalf of the business. If there is a single owner who completely controls the business, then the rule is clear and can be simply applied. However, consider a multiple-owner scenario where a business is owned only by minority investors, some of whom are residents and some of whom are non-residents. For example, assume that a business is owned by four individual shareholders (25% each) and that all four shareholders are also directors. Then assume that the shareholders/directors adopt a common “majority rules” approach, where a majority of the shareholders/directors (three out of four) make all decisions on behalf of business. Finally, assume that two of the shareholder/directors satisfy the two-year Oregon residency requirement and the other two do not. Under this common scenario, no individual person controls the business and no individual person has the unilateral ability to do anything without the majority’s approval. Who then, from the OLCC’s perspective, would be “directly involved” in the operation or management? Because the definition of “direct involvement” in the latest version of the rules does not contain the “individually or in the aggregate” concept that appears in the Legitimate Ownership provision, it stands to reason that each individual person must be analyzed on his or her own to determine whether the individual controls the business or has the right to take certain actions on behalf of the business. Consequently, under the above multiple-owner scenario, I would say that none of the individuals is directly involved in the operation or management of the business.
Observation #1 – If my interpretations are correct, then the revised rules appear to be a complete flip-flop from the initial draft of the rules. As was noted in Part 2 of this series, in the initial draft of the rules, the OLCC seemed much more concerned with non-resident managers than non-resident owners. However, under the revised draft of the rules, the focus seems to be primarily on making sure: (1) that 51% of the owners (individually or in the aggregate) satisfy the residency requirements; and (2) that no single individual non-resident controls the management of the business.
Observation #2 – I’m a bit reluctant to say this, but at this point I believe it has to be said. Both drafts of the OLCC’s rules regarding residency are worded so poorly, and are so vague and ambiguous, that I essentially don’t have much faith in my own analysis of what the rules actually mean. Or to be more accurate, I don’t have much faith that the OLCC’s rules say what the OLCC actually means. Or even worse, it’s entirely possible that the OLCC does not even know what it wants to say in the first place. The rules regarding “direct involvement” in management are not clear even when considering the most basic and simple organizational structures. And there are many other more complicated (but quite common) organizational structures that are not even being contemplated by the OLCC. Additionally, the OLCC’s way of drafting open-ended non-exclusive definitions (“Direct involvement . . . may be indicated by, but is not limited to . . . .”), together with the absence of any safe harbors, will make compliance a virtual guessing game in many scenarios.
Observation #3 (editorial comment) – In my opinion, it is practically unconscionable that the residency requirements have not yet been finalized. The Oregon Medical Marijuana Act never contained any residency requirements for ownership or management. Ballot Measure 91 intentionally did not contain any residency requirements for anyone. The Oregon legislature, in an unfortunate move, imposed a residency requirement on somebody, but then failed to say who. And now the OLCC is struggling with what it wants to do on this issue. From a policy perspective, residency requirements have absolutely nothing to do with public safety, with the ability of the OLCC to conduct criminal records checks, with law enforcement, with the eight Federal enforcement priorities set forth in the “Cole Memo,” with Oregon tax revenues, with local jurisdictions, or with anything else, other than good old-fashioned economic protectionism. And for that very reason, from a legal perspective, residency requirements probably violate the U.S. Constitution (which I will discuss in a subsequent part of this series). In just a bit more than four months, hundreds and hundreds of businesses will be submitting license applications to the OLCC. And a substantial number of those businesses have no idea if their current ownership and management structures will be legal under the OLCC’s rules. Organizing and capitalizing businesses takes a significant amount of time, energy, and money. Reorganizing and recapitalizing businesses so close to the opening day of applications will cause a substantial number of businesses to spend time, energy, and money that is better spent on safety, compliance, higher employee wages, and other matters. For the sake of the entire industry, this issue should be decided and finalized as soon as possible. And just as importantly, the rules must be absolutely clear on the front end. If the rules are vague, ambiguous, or too simplistic, and if the applications of businesses are denied based on some 2016 after-the-fact policy interpretation by the OLCC, there is certain to be litigation and finger-pointing.
Recommendation to the OLCC
At this point, the OLCC should seriously consider taking a more benign and objective approach to residency. The OLCC would be well within its statutory authority to require only that a single individual on the application be a two-year Oregon resident, or that some other relatively minimum threshold be satisfied. This would have the following positive effects: (a) businesses would be better capitalized overall, and would be able to spend more money on “industry best practices” instead of being forced to spend money on corporate legal fees, owner buyouts, and other reorganization matters; (b) the process of reviewing initial applications by the OLCC would be simplified; (c) the process of reviewing change forms for future changes of ownership or business structures would be simplified; (d) the likelihood of one or more lawsuits being filed against the OLCC alleging the unconstitutionality of residency requirements would be practically eliminated; and (e) the likelihood of individual lawsuits being filed against the OLCC alleging the improper denial of an application based on unclear residency requirements would be substantially reduced.
To the extent that the OLCC is dead set on promulgating rules that impose significant residency requirements, the OLCC should promptly consult with one or more experienced business law attorneys to ensure: (a) that there are no ambiguities in the rules; (b) that the rules are sophisticated enough to capture scenarios that are common in organizing and structuring businesses; and (c) that the rules contain safe harbor provisions that make clear that certain organizational and management structures will not violate the rules.
What to Do
If your business is seeking an investment from one or more out-of-state investors, or if your business already has one or more out-of-state owners, and if you haven’t already discussed the issue with us, contact us today to do so. Additionally, if your business is made up entirely of out-of-state owners, and if you haven’t already done so, you should begin searching for one or more Oregon residents who you might be willing to make a co-owner or a manager, director, or officer.
Continue to stay tuned to our blog, as we will post any updated residency information when we receive it.