DAR File No. 40920

Commerce, Consumer Protection

Rule R152-6

Utah Administrative Procedures Act Rules

Notice of Proposed Rule

(Amendment)

DAR File No.: 40920
Filed: 10/28/2016 01:52:32 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The main purpose is to clarify that a party may move to convert an informal administrative proceeding to formal. In addition, the amendment removes a redundant reference to the fact that hearings must be timely requested, which is satisfactorily addressed elsewhere in the rules and Utah Code. It also removes a department rule citation that is no longer up to date.

Summary of the rule or change:

The amended Rule R152-6 expressly permits a party to convert an informal proceeding to a formal proceeding by motion.

Statutory or constitutional authorization for this rule:

• Subsection 13-2-5(1)

Anticipated cost or savings to:

the state budget:

The Division of Consumer Protection (Division) anticipates conversion of proceedings will be rare and have a minimal impact on the state budget. A formal proceeding is more expensive to conduct than an informal proceeding. However, holding a formal proceeding is less expensive than holding both an informal proceeding and defending the matter on a trial de novo before a district court. As a result, the state may save resources if complex matters are converted to formal proceedings. A formal proceeding avoids the possibility of holding two trials on a matter, one at the administrative level and a trial de novo with a Utah district court. In such instances, the state will likely save on attorneys' time or fees, filing fees, and other expense involved in litigating the matter twice. If a case is converted to a formal proceeding that would have been resolved through the informal process, the cost to the state would be higher to proceed with the formal proceeding. The Division anticipates that most cases that would be converted to formal proceedings would also be likely candidates for an appeal to a judicial court following an informal proceeding. As a result, the net result should be a savings to the state budget. The net savings cannot be estimated because the circumstance for each proceeding will vary.

local governments:

The proposed amendment does not affect local governments' costs because the amendment only addresses the procedural rights of parties to an administrative proceeding before the Division to move to convert informal adjudicative proceedings to formal adjudicative proceedings.

small businesses:

The Division anticipates a minimal aggregate impact to small businesses. Those small businesses that are the subject of a Division administrative proceeding that is converted to a formal proceeding may save money by avoiding a second trial at the district court level. However in some cases, if the person would not have appealed to district court, the cost of conducting a formal proceeding will likely be higher than the cost would have been in an informal proceeding. The net savings/cost cannot be estimated because the circumstance for each proceeding will vary.

persons other than small businesses, businesses, or local governmental entities:

The Division anticipates a minimal aggregate impact to other persons. Those persons who are the subject of a Division administrative proceeding that is converted to a formal proceeding may save money by avoiding a second trial at the district court level. However in some cases, if the person would not have appealed to district court, the cost of conducting a formal proceeding will likely be higher than the cost would have been in an informal proceeding. The net savings/cost cannot be estimated because the circumstance for each proceeding will vary.

Compliance costs for affected persons:

The rule governs an action that may be taken by a party, namely the ability to move to convert informal adjudicative proceedings to formal adjudicative proceedings. As such, there are no foreseeable compliance costs.

Comments by the department head on the fiscal impact the rule may have on businesses:

The rule change permits either party to a proceeding before the Utah Division of Consumer Protection to move to convert an informal adjudicative proceeding into a formal adjudicative proceeding. The motion cannot be granted unless the presiding officer determines that the proceeding does not unfairly prejudice the rights of any party. This determination would include a consideration of the fiscal impact to the business named in the citation. There could be increased costs in formal proceedings, particularly the costs related to discovery procedures that are not permitted in informal proceedings. However, the costs for both parties of a de novo trial in the district court, as the appeal mechanism for the parties in an informal proceeding, would be eliminated. This creates a basis for potential cost savings. A negligible fiscal impact to businesses is anticipated.

Francine A. Giani, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Commerce
Consumer Protection
HEBER M WELLS BLDG
160 E 300 S
SALT LAKE CITY, UT 84111-2316

Direct questions regarding this rule to:

• Jacob Hart at the above address, by phone at 801-530-6636, by FAX at , or by Internet E-mail at [email protected]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

12/15/2016

This rule may become effective on:

12/23/2016

Authorized by:

Daniel O'Bannon, Director

R152. Commerce, Consumer Protection.

R152-6. Utah Administrative Procedures Act Rules.

R152-6-1. Designation of Adjudicative Proceedings.

A. All adjudicative proceedings within the Division [shall ]are designated as[be] informal proceedings.

B. Notwithstanding Subsection A, a party may move to convert proceedings to formal adjudicative proceedings in accordance with the provisions of Subsection 63G-4-202(3).

C[B]. No hearing will be held unless specifically allowed or required under any laws administered by the Division, or by the Utah Administrative Procedures Act.[ If a hearing is allowed, it will be held only if timely requested pursuant to Department Rule 151-46b-10.]

 

R152-6-2. Designation of Presiding Officer.

The presiding officer in any proceeding shall be the director of the division. The director may designate another person to act as presiding officer in any proceeding or portion thereof.

 

KEY: administrative procedures , government hearings, consumer protection

Date of Enactment or Last Substantive Amendment: [1992]2016

Notice of Continuation: March 26, 2012

Authorizing, and Implemented or Interpreted Law: 13-2-5(1)