This post continues our discussion of rule changes proposed by the Oregon Liquor and Cannabis Commission (OLCC). (Other posts here and here, and please stay tuned for an omnibus post by Vince Sliwoski). Today the topic is a proposed revision to the rules governing changes in business structure. In particular, a proposed conditional approval rule that threatens the ability of licensees to raise capital.
How OLCC changes in business structure work today
When a licensee desires to change their business structure, the present rules require the licensee to provide notification to the OLCC pursuant to OAR 845-025-1160(4). Under the current rules, when a licensee changes its business structure by adding and individual or entity, the OLCC requires the licensee to notify the OLCC prior to addition of an individual when that person qualifies as an “applicant” as defined in OAR 845-025-1145.
Under that rule, among other things, an applicant includes an individual or person who holds or controls a direct or indirect interest of more than 20 percent, or entitled to receive a portion of revenue, proceeds, or profits more than 20 percent. For such persons the OLCC performs an inquiry to determine whether that person is licensable.
All of this means that when raising capital and seeking investors, the 20 percent threshold is important. But even the 20 percent threshold does not require pre-approval by the OLCC and allows licensees to raise capital immediately by simply by notifying the OLCC and adding the investor to their business structure. If the investor were later found unlicensable, the licensee would be required to remove the applicant. A licensee is not required to wait for conditional approval from the OLCC and may raise capital quickly when necessary.
The proposed conditional approval rule lacks sufficient clarity to guide the OLCC, licensees and investors
The OLCC proposes to eliminate entirely the Change in Business structure rule found in OAR 845-025-1160(4) and replace it with a new rule, OAR 845-025-1165. Among the changes is that when a licensee submits the form notifying the OLCC of a change in business structure:
“The Commission must review the form and other information submitted under section (2) of this rule. If the Commission determines that the submission appears to be complete, the Commission will notify the licensee or laboratory licensee that the change is conditionally approved.” OAR 845-025-1165(3).
So the proposed rule provides that if the OLCC determines the submission is complete, the OLCC will notify the licensee the change is conditionally approved. But what if the submission is not complete? Presumably, the OLCC would notify the licensee the change is not conditionally approved. If so, the rule should say so explicitly. And if the submission is incomplete, may the licensee correct the form and resubmit? Presumably, yes. Why not say so in the rule?
Another issue is timing. The rule is silent as to how long the OLCC may take to review the form and other information to notify the licensee if the change is conditionally approved. And the proposed rule says nothing about how long the OLCC may take to notify the licensee if the change is not conditionally approved. So how long will the OLCC take to review the form and other information and issue (or deny) a conditional approval to a change in business structure? No one knows.
That lack of clarity would significantly affect the ability of licensees to add investors. And this may prove disastrous for struggling licensees who need an immediate capital infusion, despite the indeterminate amount given to the OLCC to review the change of ownership form and conditionally approve the change.
Note: this author is not opposed to the concept of conditional pre-approval process. But such a rule ought to be explicitly clear about the timelines for the OLCC to perform its review and its obligations to notify the licensees whether or not the change has conditional approval.
Public hearing tomorrow! (Oct 25)
A public hearing is scheduled on this proposed change in location rule, and other proposed rules, on October 25, 2022. The hearing will be at the OLCC offices in Portland and online from 10:00 – 11:00 am (Yeah, just one hour!). The last day to comment on these rules is Halloween, October 31 at 12:00 p.m. Contact information is in the link above.
Hat tip to Alex Berger of Emerge Law on this issue. Also, check out our recent Oregon posts for more on Oregon cannabis licensing trends and OLCC updates.
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