File No. 34480
This rule was published in the March 15, 2011, issue (Vol. 2011, No. 6) of the Utah State Bulletin.
Department of Commerce Administrative Procedures Act Rules
Notice of Proposed Rule
DAR File No.: 34480
Filed: 03/01/2011 12:51:17 PM
Purpose of the rule or reason for the change:
The substantive elements of this rule have been incorporated into the proposed new Rule R151-4. Therefore, this rule is no longer needed. (DAR NOTE: A proposed new Rule R151-4 is under DAR No. 34479 in this issue, March 15, 2011, of the Bulletin.)
Summary of the rule or change:
The rule is repealed in its entirety.
State statutory or constitutional authorization for this rule:
- Section 13-1-6
- Subsection 63G-4-102(6)
Anticipated cost or savings to:
the state budget:
As the substantive provisions of this rule are incorporated into the proposed new Rule R151-4, no costs or savings should result from this filing.
Local governments generally do not appear before the Department in adjudicative proceedings, but even if they do, no costs or savings should result to local governments from this filing as the elements are now incorporated in Rule R151-4.
As the substantive provisions of this rule are incorporated into the proposed new Rule R151-4, no costs or savings should result from this filing to small businesses.
persons other than small businesses, businesses, or local governmental entities:
As the substantive provisions of this rule are incorporated into the proposed new Rule R151-4, no costs or savings should result from this filing to other persons.
Compliance costs for affected persons:
No compliance costs are expected with this repeal, which relieves affected persons from any obligations to comply with the rule.
Comments by the department head on the fiscal impact the rule may have on businesses:
No fiscal impact to businesses is anticipated from this rule repeal as the substance of these provisions is contained in the new Rule R151-4 proposed by the Department.
Francine A. Giani, Executive Director
The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:Commerce
160 E 300 S
SALT LAKE CITY, UT 84111-2316
Direct questions regarding this rule to:
- Masuda Medcalf at the above address, by phone at 801-530-7663, by FAX at 801-530-6446, or by Internet E-mail at firstname.lastname@example.org
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:
This rule may become effective on:
Francine Giani, Executive Director
R151. Commerce, Administration.
R151-46b. Department of Commerce Administrative Procedures
R151-46b-1. Title. These rules are known as the "Department of Commerce
Administrative Procedures Act Rules."
R151-46b-2. Definitions. In addition to the definitions in Title 63G, Chapter 4,
Administrative Procedures Act, which apply to these
(1) "Agency head" means the executive director
of the department, the director of a division, or the
committee's residential and small commercial representative,
respectively, as used in context.
(2) "Applicant" means a person who submits an
(3) "Application" means a request for
licensure, certification, registration, permit, or other right or
authority granted by the department.
(4) "Committee" means the Committee of Consumer
Services of the department.
(5) "Department" means the department, a
division, or the committee, respectively or collectively, as used
(6) "Division" means a division of the
(7) "Intervenor" means a person permitted to
intervene in an adjudicative proceeding before the
(8) "Motion" means a request for any action or
relief submitted to the presiding officer in an adjudicative
(9) "Petition" means the charging document,
typically incorporated by reference into a notice of agency
action, setting forth a statement of jurisdiction, statement of
allegations, statement of legal authority, and prayer for
(10) "Pleadings" include the notice of agency
action or request for agency action, any response filed thereto,
the petition, motions, briefs or other documents filed by the
parties to an adjudicative proceeding, any request for agency
review or agency reconsideration, any response filed thereto, and
any motions, briefs or other documents filed by the parties on
(11) "Record" means the record of a hearing in
an adjudicative proceeding or the record of the entire
adjudicative proceeding, as used in context.
R151-46b-3. Authority - Purpose. These rules are adopted by the department under the
authority of Subsection 63G-4-102(6) and Section 13-1-6 to
define, clarify, or establish the procedures which govern
adjudicative proceedings before the department.
R151-46b-4. Supplementing Provisions of Rule R151-46b. Any provision of these rules may be supplemented by
division or committee rules unless expressly prohibited by these
R151-46b-5. General Provisions. (1) Purpose.
These rules are intended to secure the just, speedy, and
economical determination of all issues presented in adjudicative
proceedings before the department.
(2) Deviation from Rules.
The presiding officer may permit or require a deviation
from these rules upon a determination that compliance therewith
is impractical or unnecessary.
(3) Utah Rules of Civil Procedure.
The Utah Rules of Civil Procedure and case law thereunder
may be looked to as persuasive authority upon these rules, but
shall not, except as otherwise provided by Title 63G, Chapter 4,
Administrative Procedures Act, or by these rules, be considered
(4) Computation of Time.
(a) Periods of time prescribed or allowed by these rules,
by any applicable statute or by an order of a presiding officer
shall be computed as to exclude the first day of the act, event,
or default from which the designated period of time begins to
run. The last day of the period so computed shall be included,
unless it is a Friday, Saturday, Sunday, or legal holiday, in
which event the period runs until the end of the next day which
is not a Friday, Saturday, Sunday, or legal holiday. When the
period of time prescribed or allowed is less than seven days,
intermediate Fridays, Saturdays, Sundays, and legal holidays
shall be excluded in the computation. Whenever a party has the
right or is required to do some act or take some action within a
prescribed period after the service of a notice or other paper
upon him and service is by mail, three days shall be added to the
prescribed period. No additional time is provided if service is
accomplished by facsimile or other electronic means.
(b) Subject to the provisions of Subsections R151-46b
-5(5)(b) and -9(9)(c)(ii), for good cause shown, the presiding
officer may extend a time period under these rules on his own
motion or upon written application from either party.
(5) Extension of Time; Continuance of Hearing.
(a) When a statute, or these rules, authorizes the
presiding officer to extend a time period or grant a continuance
of a hearing, the presiding officer shall consider the following
factors, and such other factors as may be appropriate, in
determining whether to grant such extension or
(i) whether there is good cause for granting the
extension or continuance;
(ii) the number of extensions or continuances the
requesting party has already received;
(iii) whether the extension or continuance will work a
significant hardship upon the other party;
(iv) whether the extension or continuance will be
prejudicial to the health, safety or welfare of the public;
(v) whether the other party objects to the extension or
(b)(i) Notwithstanding the provisions of Subsection
R151-46b-5(2) or any other provision of these rules, and except
as provided in Subsection (5)(b)(ii), an extension of a time
period or a continuance of a hearing may not result in the
hearing being concluded more than 240 calendar days after the day
(A) the notice of agency action was issued; or
(B) the initial decision with respect to a request for
agency action was issued.
(ii) Notwithstanding the provisions of Subsection
(5)(b)(i), an extension of a time period or a continuance may
exceed the time restriction outlined in Subsection (5)(b)(i) only
(A)(I) a party provides an affidavit or certificate
signed by a licensed physician verifying that an illness of the
party, the party's counsel, or a necessary witness precludes
the presence of the party, the party's counsel, or a
necessary witness at the hearing;
(II) counsel for a party withdraws shortly before the
final hearing, unless the presiding officer finds that the
withdrawal was for the purpose of delaying the hearing;
(III) a parallel criminal proceedings exists based on
facts at issue in the administrative proceeding; and
(B) the presiding officer finds that injustice would
result from failing to grant the extension or
(iii) The failure of the presiding officer to comply with
the requirements of this Subsection
(5)(b) is not a basis for dismissal of the
In the event of a conflict between these rules and any
statutory provision, the statute shall govern.
(7) Necessity of Compliance with GRAMA.
To the extent that the Utah Government Records Access and
Management Act ("GRAMA") would impose a restriction on
the ability of a party to disclose any record which would
otherwise have to be disclosed under these rules, such record
shall not be disclosed except upon compliance with the
requirements of that Act.
R151-46b-6. Representation of Parties. (a) A party may be represented by counsel or may
represent oneself individually, or if not an individual, may
represent itself through an officer or employee. For the purpose
of this provision, the term "counsel" means active
members of the Utah State Bar or active members of any other
(b) Counsel from a foreign licensing state shall submit a
notice of appearance to the presiding officer along with a
certificate of good standing from the foreign licensing
R151-46b-7. Pleadings. (1) Docket Number and Title.
An agency shall assign a docket number to each notice of
agency action and, where appropriate, to each request for agency
action. The docket number shall consist of a letter code
identifying the agency in which the matter originated
(CORP-Corporations; CP-Consumer Protection; CCS-Committee of
Consumer Services; DOPL-Occupational and Professional Licensing;
D-Diversion; NAFA-New Automobile Franchise Act; PVFA-Powersport
Vehicle Franchise Act; RE-Real Estate, AP-Real Estate Appraisers;
MG-Mortgage; SD-Securities), a numerical code indicating the year
the matter arose, and another number indicating chronological
position among notices of agency action or requests for agency
action filed during the year. The department shall give each
adjudicative proceeding a title that shall be in substantially
the following form:
BEFORE THE (DIVISION/COMMITTEE)
OF THE DEPARTMENT OF COMMERCE
OF THE STATE OF UTAH
In the Matter of (Notice of Agency Action)
(the application, (Request for Agency Action)
petition or license
of John Doe) No. AA-2000-001
(2) Content and Size of Pleadings.
Pleadings shall be double-spaced, typewritten and
presented on standard 8 1/2 x 11 inch white paper. Pleadings
shall contain a clear and concise statement of the allegations or
facts relied upon as the basis for the pleading, together with an
appropriate prayer for relief when relief is sought.
(3) Signing of Pleadings.
Pleadings shall be signed by the party or the party's
representative and shall show the signer's address. The
signature shall be deemed to be a certification that the signer
has read the pleading and that, to the best of his knowledge and
belief, there is good ground to support it.
(4) Amendments to Pleadings.
A party may amend a pleading once as a matter of course
at any time before a responsive pleading is served. Otherwise, a
party may amend a pleading only by leave of the presiding officer
or by written consent of the adverse party. Leave shall be freely
given when justice so requires. A party shall plead in response
to an amended pleading within the time remaining for response to
the original pleading or within ten days after service of the
amended pleading, whichever period may be longer, unless the
presiding officer otherwise orders. Defects in a pleading that do
not affect substantial rights of a party need not be amended and
shall be disregarded.
(5) Response to a Notice of Agency Action.
(a) Formal Adjudicative Proceedings.
In accordance with Subsection 63G-4-201(2)(a)(vi), a
respondent in a formal adjudicative proceeding shall file a
response to the notice of agency action.
(b) Informal Adjudicative Proceedings.
(i) In accordance with Subsection 63G-4-203(1)(a), a
respondent in an informal adjudicative proceeding may file, but
is not required to file except as provided in Subsection (ii), a
response to a notice of agency action.
(ii) The presiding officer may, upon a determination of
good cause, require a person against whom an informal
adjudicative proceeding has been initiated to submit a response
by so ordering in the notice of agency action or the notice of
receipt of request for agency action.
(c) Time Period for Filing a Response.
Unless a different date is established by law, rule, or
by the presiding officer, a response to a notice of agency action
or a notice of receipt of request for agency action shall be
filed within 30 days of the mailing date of the notice.
(a) General. Any motion that is relevant to an
adjudicative proceeding and is timely may be filed. All motions
shall be filed in writing, unless the necessity for a motion
arises at a hearing and could not have been anticipated prior to
the hearing. Subsection 63G-4-102(4)(b) shall not be construed to
prohibit a presiding officer from granting a timely motion to
dismiss for failure to prosecute, failure to comply with these
rules, failure to establish a claim upon which relief may be
granted, or any other good cause basis.
(b) Time for Filing Motions to Dismiss.
Any motion to dismiss on a ground described in Rule
12(b)(1) through (7) of the Utah Rules of Civil Procedure shall
be filed prior to filing a responsive pleading if such a pleading
is permitted unless, subject to Subsections R151-46b-5(5)(b) and
-9(9)(c)(ii), the presiding officer allows additional time upon a
determination of good cause.
(c) Memoranda and Affidavits.
The presiding officer shall permit and may require
memoranda and affidavits in support or contravention of a motion.
Unless otherwise governed by a scheduling order issued by the
presiding officer, any memorandum or affidavits in support of a
motion shall be filed concurrently with the motion, any
memorandum or affidavits in response to a motion shall be filed
no later than ten days after service of the motion, and any final
reply shall be filed no later than five days after service of the
(d) Oral Argument.
(i) The presiding officer may permit or require oral
argument on a motion.
(ii) Any oral argument on a motion shall be scheduled to
take place no more than 10 calendar days after the day on which
the final submission on the motion is filed.
(e) Ruling on a motion.
(i) The presiding officer shall verbally rule on a motion
at the conclusion of oral argument whenever possible.
(ii) When a presiding officer verbally rules on a motion,
the presiding officer shall issue a written ruling within 30
calendar days after the day on which the presiding officer made
the verbal ruling.
(iii) If the presiding officer does not verbally rule on
a motion at the conclusion of oral argument, the presiding
officer shall issue a written ruling on the motion no more than
30 calendar days after:
(A) oral argument; or
(B) if there was no oral argument, the final submission
on the motion.
(iv) The failure of the presiding officer to comply with
the requirements of this Subsection (6)(e) is not a basis for
dismissal of the matter, and may not be considered an automatic
denial or grant of the motion.
R151-46b-8. Filing and Service. (1) Filing.
(a) Pleadings shall be filed with the agency in which the
adjudicative proceeding is being conducted. If an administrative
law judge is conducting part of the adjudicative proceeding, then
the party shall cause a courtesy copy of such pleadings to be
filed with the administrative law judge. The filing of discovery
documents is governed by Subsection R151-46b-9(11)(a).
(b) Manner and time of filing.
(i) A filing may be accomplished by hand delivery or by
mail to the agency in which the adjudicative proceeding is being
(ii)(A) A filing may also be accomplished by facsimile or
other electronic means, so long as the original document is also
mailed to the agency the same day, as evidenced by a postmark or
(B) Filing by electronic means is complete upon
transmission if transmission is completed during normal business
hours at the place receiving the filing; otherwise, filing is
complete on the next business day.
(C) A filing by electronic means is not effective unless
the agency receives all pertinent pages of the document
(D) The burden is on the party filing the document to
ensure that a transmission is properly completed.
Pleadings filed by the parties and documents issued by
the presiding officer shall be served upon the parties to the
adjudicative proceeding concurrently with the filing or issuance
thereof. The party who files the pleading shall be responsible
for service of the pleading. The presiding officer who issues a
document shall be responsible for service of the
(a) Service may be made upon any person upon whom a
summons may be served in accordance with the Utah Rules of Civil
Procedure and may be made personally or upon the agent of the
person being served. If a party is represented by an attorney,
service may be made upon the attorney.
(b) Service may be accomplished by hand delivery or by
mail to the last known address of the intended recipient. Service
by mail is complete upon mailing. Service may also be
accomplished by facsimile or other electronic means. Service by
electronic means is complete on transmission if transmission is
completed during normal business hours at the place receiving the
service; otherwise, service is complete on the next business
(c) There shall appear on all documents required to be
served a certificate of service in substantially the following
CERTIFICATE OF SERVICE
I hereby certify that I have this day served the
foregoing document upon the parties of record in this
proceeding set forth below (by delivering a copy thereof
in person) (by mailing a copy thereof, properly addressed
by first class mail with postage prepaid, to) (by
facsimile/electronic means and first class mail to):
(Name(s) of parties of record)
Dated this (day) day of (month), (year).
R151-46b-9. Discovery - Formal Proceedings Only. This rule applies only to formal adjudicative
proceedings. Discovery is prohibited in informal adjudicative
(1) Scope of discovery.
(a) Parties may obtain discovery regarding any matter,
not privileged, which is relevant to the subject matter involved
in the proceeding, whether it relates to the claim or defense of
the party seeking discovery or to the claim or defense of any
(b) Subject to the provisions of Subsections
R151-46b-9(1)(c) and R151-46b-9(3)(a), a party may obtain
discovery of documents and tangible things otherwise discoverable
under Subsection R151-46b-9(1)(a) and prepared in anticipation of
litigation or for hearing by or for another party or by or for
that party's representative, including his attorney,
consultant, insurer or other agent, only upon a showing that the
party seeking discovery has substantial need of the materials in
the preparation of his case and that he is unable without undue
hardship to obtain the substantial equivalent of the materials by
other means. In ordering discovery of such materials when the
required showing has been made, the presiding officer shall
protect against disclosure of the mental impressions,
conclusions, opinions, or legal theories of an attorney or other
representative of a party concerning the litigation.
(c) Discovery of facts known and opinions held by
experts, otherwise discoverable under the provisions of
Subsection R151-46b-9(1)(a) and acquired or developed in
anticipation of litigation or for hearing, may be obtained only
through the disclosures required by Subsection
(2) Disclosures Required By Initial Prehearing
(a) Pursuant to the initial prehearing order issued in
accordance with Subsection R151-46b-9(9)(c), the presiding
officer may require each party to disclose:
(i) the name and, if known, the address and telephone
number of each individual likely to have discoverable information
supporting its claims or defenses, identifying the subjects of
the information; and
(ii) a copy of, or a description by category and location
of, and reasonable access to, all discoverable documents, data
compilations, and tangible things which are in its possession,
custody, or control and which support its claims or
(b) The order shall not require disclosure of expert
testimony, which is governed by Subsection R151-46b-9(3)(a). The
order also shall not require the disclosure of information
regarding persons or things intended to be used solely for
(c) The disclosures required by Subsection
R151-46b-9(2)(a) shall be made within 14 days after the written
initial prehearing order is issued unless that order provides
otherwise. A party joined after the initial prehearing conference
shall make these disclosures within 30 days after being served
unless otherwise stipulated by the parties or ordered by the
presiding officer. A party shall make initial disclosures based
on the information then reasonably available and is not excused
from making disclosures because the party has not fully completed
the investigation of the case or because the party challenges the
sufficiency of another party's disclosures or because another
party has not made disclosures.
(3) Disclosures Otherwise Required.
(a) Expert Testimony.
A party shall disclose the name, address and telephone
number of any person who may be called as an expert witness at
(i) Except as otherwise stipulated by the parties or
ordered by the presiding officer, this disclosure shall, with
respect to a witness who is retained or specially employed to
provide expert testimony in the case or whose duties as an
employee of the party regularly involve giving expert testimony,
be accompanied by a written report prepared and signed by the
witness. The report shall contain a complete statement of all
opinions to be expressed and the basis and reasons therefore; the
data or other information considered by the witness in forming
the opinions; any exhibits to be used as a summary of or support
for the opinions; the qualifications of the witness, including a
list of all publications authored by the witness within the
preceding ten years; the compensation to be paid for the study
and testimony; and a listing of any other cases in which the
witness has testified as an expert at trial or by deposition
within the preceding four years.
(ii) Unless otherwise stipulated by the parties or
ordered by the presiding officer, the disclosures required by
Subsection R151-46b-9(3)(a) shall be made within 30 days after
the expiration of discovery as provided by Subsection
R151-46b-9(7)(b) or, if the evidence is intended solely to
contradict or rebut evidence on the same subject matter
identified by another party under Subsection R151-46b-9(3)(a)(i),
within 60 days after the disclosure made by the other
(b) Prehearing Disclosures.
In addition to the disclosures required pursuant to
Subsection R151-46b-9(3)(a), a party shall disclose the following
information regarding the evidence that it may present at trial
other than solely for impeachment purposes:
(i) the name and, if not previously provided, the address
and telephone number of each witness, including the general scope
of their anticipated testimony, separately identifying those whom
the party expects to present and those whom the party may call if
the need arises;
(ii) the designation of those witnesses whose testimony
is expected to be presented by means of a deposition and, if not
taken stenographically, a transcript of the pertinent portions of
the deposition testimony; and
(iii) an appropriate identification of each document or
other exhibit, including summaries of other evidence, separately
identifying those which the party expects to offer and those
which the party may offer if the need arises.
These disclosures shall be made at least 30 days before
the hearing unless otherwise ordered by the presiding officer. A
party may serve and file any objection to the use under
Subsection R151-46b-9(13)(i) of a deposition designated by
another party under Subsection R151-46b-9(3)(b)(ii) and any
objection, together with the grounds therefore, as to the
admissibility of materials identified under Subsection
R151-46b-9(3)(b)(iii). Any such objections shall be made within
14 days after service of the disclosures required by Subsection
R151-46b-9(3)(b) unless a different time is specified by the
presiding officer. Objections not timely made under this
Subsection, other than objections on grounds of relevancy, shall
be deemed waived unless excused by the presiding officer for good
(c) Form of Disclosures.
Unless otherwise stipulated by the parties or ordered by
the presiding officer, all disclosures under Subsections
R151-46b-9(2) through (3)(b) shall be made in writing, signed and
(4) Other Discovery Methods.
Parties may also obtain discovery by one or more of the
following methods: depositions upon oral examination as provided
in these rules, production of documents or things, permission to
enter upon land or other property for inspection and other
purposes, and physical and mental examinations.
(5) Limits on Use of Discovery.
The frequency and extent of use of the discovery methods
set forth in Subsection R151-46b-9(4) shall be limited by the
presiding officer if it is determined that:
(a) the discovery sought is unreasonably cumulative,
duplicative or is obtainable from some other source that is more
convenient, less burdensome, or less expensive;
(b) the party seeking discovery has had ample opportunity
by discovery in the action to obtain the information sought;
(c) the discovery is unduly burdensome or expensive,
taking into account the needs of the case, the amount in
controversy, limitations on the parties' resources, and the
importance of the issues at stake in the litigation. The
presiding officer may act on his own motion after reasonable
notice or pursuant to a motion under Subsection
(6) Protective Orders.
Upon motion by a party or by the person from whom
discovery is sought, and for good cause shown, the presiding
officer may make any order which justice requires to protect a
party or person from annoyance, embarrassment, oppression, or
undue burden or expense, including one or more of the
(a) that the discovery not be had;
(b) that the discovery may be had only on specified terms
and conditions, including a designation of the time or
(c) that the discovery may be had only by a method of
discovery other than that selected by the party seeking
(d) the certain matters not be inquired into, or that the
scope of the discovery be limited to certain matters;
(e) that discovery be conducted with no one present
except persons designated by the presiding officer;
(f) that a deposition after being sealed be opened only
by order of the presiding officer;
(g) that a trade secret or other confidential research,
development, or commercial information not be disclosed or be
disclosed only in a designated way;
(h) that the parties simultaneously file specified
documents or information enclosed in sealed envelopes to be
opened as directed by the presiding officer.
If the motion for a protective order is denied in whole
or in part, the presiding officer may, on such terms and
conditions as are just, order that any party or person provide or
(7) Timing, Completion and Sequence of
(a) A party may not use any of the discovery methods
described in Subsection R151-46b-9(4) prior to the date that the
disclosures required in the initial prehearing order are received
unless otherwise stipulated by the parties or ordered by the
presiding officer. If the initial prehearing order does not
require the parties to make disclosures, then the parties may use
those discovery methods at any time after the date of the initial
(b) Unless otherwise stipulated by the parties or ordered
by the presiding officer for good cause shown, all discovery,
except for prehearing disclosures governed by Subsection
R151-46b-9(3), shall be completed within 120 days after the date
of the initial prehearing conference. Factors the presiding
officer shall consider in determining whether a party has
demonstrated good cause to shorten this time period include
whether that party's interests will be prejudiced if the time
period is not shortened, whether the relative simplicity or
nonexistence of factual issues justifies a shortening of
discovery time, and whether the health, safety or welfare of the
public will be prejudiced if the time period is not shortened.
Factors the presiding officer shall consider in determining
whether a party has demonstrated good cause to extend this time
period include, in addition to those set forth in R151-46b-5(5),
whether the complexity of the case warrants additional discovery
time, and whether that party has made reasonable and prudent use
of the discovery time that has already been available to the
party since the proceeding commenced.
(c) Unless the presiding officer upon motion, for the
convenience of parties and witnesses and in the interests of
justice, orders otherwise, and except as otherwise provided by
these rules, methods of discovery described in Subsection
R151-46b-9(4) may be used in any sequence. The fact that a party
is conducting discovery shall not operate to delay any other
(8) Supplemented Disclosures and Amended Responses. A
party who has made a disclosure under Subsections (2) or (3) or
responded to a request for discovery with a response that was
complete when made shall supplement the disclosure or amend the
response to include information thereafter acquired if ordered by
the presiding officer or in the following circumstances:
(a) A party shall supplement at appropriate intervals
disclosures under Subsections R151-46b-9(2) and (3) if the party
learns that in some material respect the information disclosed is
incomplete or incorrect and if the additional or corrective
information has not otherwise been made known to the other
parties during the discovery process or in writing. With respect
to testimony of an expert from whom a report is required under
Subsection R151-46b-9(3)(a), the duty extends to information
contained in the report, and any additions or other changes to
this information shall be disclosed by the time the party's
disclosures under Subsection R151-46b-9(3)(b) are due.
(b) A party shall amend a prior response to a request for
production within a reasonable time after the party learns that
the response is in some material respect incomplete or incorrect
and if the additional or corrective information has not otherwise
been made known to the other parties during the discovery process
or in writing.
(9) Initial Prehearing Conference.
(a) The party initiating the adjudicative proceeding
shall file a written request for the scheduling of an initial
prehearing conference and provide a copy to the presiding officer
within 10 days after the filing of the response to the notice of
agency action or within 10 days after the filing of the request
for agency action in a case commenced by such a request. The
presiding officer shall contact the parties upon receiving that
request for the scheduling of the conference and arrange for that
conference to be held at the earliest feasible time. Nothing in
this rule shall limit the ability of the presiding officer to
contact the parties and schedule the conference on his own
(b) The conference may be conducted either in person or
telephonically. All parties, or their counsel, shall participate
in the conference. The conference shall include discussion of
discovery, prehearing motions and other matters pertaining to the
orderly management of the proceeding.
(c) During the initial prehearing conference, the
presiding officer shall issue a verbal order regarding the
following matters, and shall issue a written order to the same
effect after the conference is concluded:
(i) scheduling any additional prehearing
(ii) setting a deadline for the filing of all prehearing
motions and cross-motions, including motions for summary
judgment, which deadline shall allow for all motions to be
submitted and ruled on prior to the hearing date;
(iii) modifying, if appropriate, any of the deadlines for
disclosures under Subsection R151-46b-9(3);
(iv) resolving any discovery issues;
(v) establishing a schedule for briefing, discovery
needs, expert witness reports, witness and exhibit lists,
objections, and any other necessary or appropriate prehearing
(vi) scheduling a hearing date, which notwithstanding the
provisions of Subsection R151-46b-5(2), shall provide for the
hearing to be concluded not more than 180 calendar days after the
day on which:
(A) the notice of agency action was issued; or
(B) the initial decision with respect to a request for
agency action was issued; and
(vii) dealing with any other matters appropriate in the
circumstances of the case.
(d) A party joined after the initial prehearing
conference is bound by the order issued as a result of that
conference, unless the presiding officer orders on stipulation or
motion a modification of that order. Any such stipulation or
motion shall be filed within a reasonable time after
(e) Notwithstanding Subsection R151-46b-9(7)(b) or any
other provision of these rules that provides a maximum time frame
for any prehearing matter, the presiding officer shall schedule
all prehearing matters consistent with Subsection
R151-46b-9(9)(c)(vi). The presiding officer may:
(i) adjust any time frames as necessary to accommodate
Subsection R151-46b-9(9)(c)(vi); and/or
(ii) schedule any appropriate prehearing matters to occur
(10) Signing of Disclosures, Discovery Requests,
Responses, and Objections.
(a) Every disclosure made pursuant to Subsections
R151-46b-9(2) and (3) shall be signed by at least one attorney of
record or by the party if not represented, whose address shall be
stated. The signature of the attorney or party constitutes a
certification that to the best of the signer's knowledge,
information, and belief, formed after a reasonable inquiry, the
disclosure is complete and correct as of the time it was
(b) Every request for discovery or any response or
objection thereto made by a party shall be signed by at least one
attorney of record or by the party if not represented, whose
address shall be stated. The signature of the attorney or party
constitutes a certification that he has read the request,
response, or objection, and that to the best of his knowledge,
information, and belief formed after a reasonable inquiry it
(i) consistent with these rules and warranted by existing
law or a good faith argument for the extension, modification, or
reversal of existing law;
(ii) not interposed for any improper purpose, such as to
harass or to cause unnecessary delay or needless increase in the
cost of litigation; and
(iii) not unreasonable or unduly burdensome or expensive,
given the needs of the case, the discovery already had in the
case, and the importance of the issues at stake in the
(c) If a request, response, or objection is not signed,
it shall be stricken unless it is signed promptly after the
omission is called to the attention of the party making the
request, response or objection and a party shall not be obligated
to take any action with respect to it until it is
(11) Filing of Discovery Requests or
(a) Unless otherwise ordered by the presiding officer, a
party shall not file any request for or response to discovery,
but shall file only the original certificate of service stating
that the request or response has been served on the other parties
and the date of service. Unless otherwise ordered by the
presiding officer, a party shall not file any of the disclosures
required by the initial prehearing order pursuant to Subsection
R151-46b-9(2) or any of the disclosures required by Subsection
R151-46b-9(3)(a), but shall file only the original certificate of
service stating that the disclosures have been served on the
other parties and the date of service. Except as provided in
Subsection R151-46b-9(13)(f)(i) or unless otherwise ordered by
the presiding officer, depositions shall not be filed. A party
shall file the disclosures required by Subsection
R151-46b-9(3)(b) unless otherwise ordered by the presiding
(b) A party filing a motion for a protective order or a
motion for an order compelling discovery shall attach to the
motion a copy of the request for discovery or the response which
is at issue.
(a) Every subpoena shall be issued by the presiding
officer under the seal of the department or applicable division,
shall state the title of the action, and shall command every
person to whom it is directed to attend and give testimony at a
hearing or deposition at a time and place therein specified. A
subpoena may also command the person to whom it is directed to
produce books, papers, or tangible things designated therein, and
in the case of a subpoena for a deposition, to also permit
inspection and copying of such items. A subpoena for a deposition
must limit its designation of such items to matters which
properly fall within the scope of discoverable information as
provided in Subsection R151-46b-9(1)(a). The presiding officer
shall issue a subpoena, or a subpoena for the production of
documentary evidence, signed and sealed but otherwise in blank,
to a party requesting it, who shall fill it in before
(b) Service of a subpoena upon a person named therein
shall be accompanied by a tender of fees for one day's
attendance and the mileage allowed by law.
(c) A subpoena commanding a person to appear at a hearing
or a deposition being held in this state may be served at any
place within this state. A person who resides in this state may
be required to appear at a deposition only in the county where
the person resides, or is employed, or transacts business in
person, or at such other place as the presiding officer may
order. A person who does not reside in this state may be required
to appear at a deposition only in the county of this state where
the person is served with a subpoena, or at such other place as
the presiding officer may order.
(d) A subpoena commanding a person to appear at a
deposition or to produce or allow the inspection of documents,
tangible things or premises located outside this state shall be
served in accordance with the requirements of the jurisdiction in
which such service is made.
(e) Upon motion made promptly, and in any event at or
before the time specified in the subpoena for compliance
therewith, the presiding officer may:
(i) quash or modify the subpoena, if it is shown to be
unreasonable and oppressive; or
(ii) condition denial of the motion upon the advancement
by the person in whose behalf the subpoena is issued of the
reasonable cost of producing the books, papers, documents, or
(f) In the case of subpoenas requiring the production of
books, papers, or other tangible things at a deposition, the
person to whom the subpoena is directed may, within 10 days after
the service thereof or on or before the time specified in the
subpoena for compliance if such time is less than 10 days after
service, serve upon the attorney designated in the subpoena a
written objection to production, inspection or copying of any or
all of the designated materials. If such objection is made, the
party serving the subpoena shall not be entitled to production,
inspection or copying of the materials except pursuant to a
further order of the presiding officer who issued the
(13) Depositions Upon Oral Examination: General
provision; Persons who may be deposed.
Under the limited circumstances prescribed in this
Subsection, a party may with leave of the presiding officer take
the testimony by deposition upon oral examination of certain
persons, including parties, who have knowledge of facts relevant
to the claims or defenses of any party in the proceeding. The
attendance of witnesses may be compelled by subpoena as provided
in Subsection R151-46b-9(12). Depositions of expert witnesses
shall not be permitted.
(a)(i) Before a party may request leave to take a
person's deposition, the party must first make diligent
efforts to obtain discovery from that person by means of an
informal interview. A party shall not be granted leave to take a
deposition unless the party, upon motion, demonstrates to the
satisfaction of the presiding officer that the person has
knowledge of facts relevant to the claims or defenses of any
party in the proceeding and:
(A) has refused a reasonable request by the moving party
for an informal interview;
(B) after having notice of at least two reasonable
requests by that party for an informal interview, has failed to
respond to those requests;
(C) has refused to answer reasonable questions propounded
to him by that party in an informal interview; or
(D) will be unavailable to testify at the
In deciding whether to issue such an order, the presiding
officer shall take into consideration the probative value which
the testimony of that witness is likely to have in the
proceeding. The burden of demonstrating the need for a deposition
shall be upon the party requesting the deposition.
(ii) For an informal interview:
(A) a party or counsel has no obligation to notify the
other party or counsel of an intention to hold an informal
interview with a potential witness;
(B) a party or counsel does not have a right to be
present during an informal interview with a potential witness
conducted by another party or counsel; and
(C) there is no requirement to have a potential witness
placed under oath before providing information in an informal
(b) Notice of Examination: General Requirements; Notice;
Non-Stenographic Recording; Production of Documents and Things;
Deposition of Organization; Deposition by Telephone.
(i) A party permitted to take the deposition of any
person upon oral examination shall give reasonable notice in
writing to every other party to the action. The notice shall
state the time and place for taking the deposition and the name
and address of each person to be examined, if known, and, if the
name is not known, a general description sufficient to identify
him or the particular class or group to which he belongs. If a
subpoena duces tecum is to be served on the person to be
examined, the designation of the materials to be produced, as set
forth in the subpoena, shall be attached to or included in the
(ii) The parties may stipulate in writing or, upon
motion, the presiding officer may order the testimony at a
deposition be recorded by other than stenographic means. The
stipulation or order shall designate the person before whom the
deposition shall be taken, the manner of recording, preserving
and filing the deposition, and may include other provisions to
assure that the recorded testimony will be accurate and
trustworthy. A party may arrange to have a stenographic
transcription made at his own expense. Any objections under
Subsection R151-46b-9(13)(c), any changes made by the witness,
his signature identifying the deposition as his own or the
statement of the officer that is required if the witness does not
sign, as provided in this rule, and the certification of the
officer required by Subsection R151-46b-9(13)(f), shall be set
forth in a writing to accompany a deposition recorded by
(iii) The notice to a party deponent may be accompanied
by a request made in compliance with Subsection R151-46b-9(14)
for the production of documents and tangible things at the taking
of the deposition.
(iv) A party may, in his notice and in a subpoena, name
as the deponent a public or private corporation or a partnership
or association or governmental agency and describe with
reasonable particularity the matters on which examination is
requested. In that event, the organization so named shall
designate one or more officers, directors, or managing agents, or
other persons who consent to testify on its behalf, and may set
forth, for each person designated, the matters on which he will
testify. A subpoena shall advise a non-party organization of its
duty to make such a designation. The persons so designated shall
testify as to matters known or reasonably available to the
organization. This subsection does not preclude taking a
deposition by any other procedure authorized in these
(v) The parties may stipulate in writing or, upon motion,
the presiding officer may order a deposition be taken by
(c) Examination and Cross-Examination; Record of
Examination; Oath; Objections.
Examination and cross-examination of witnesses may
proceed as permitted at the hearing under the provisions of the
Utah Administrative Procedures Act and the Utah Rules of
Evidence. The officer before whom the deposition is to be taken
shall put the witness on oath and shall personally, or by someone
acting under his direction and in his presence, record the
testimony of the witness. The testimony shall be taken
stenographically or recorded by any other means ordered in
accordance with Subsection R151-46b-9(13)(b)(ii) of this rule. If
requested by one of the parties, the testimony shall be
transcribed. All objections made at the time of the examination
to the qualifications of the officer taking the deposition, to
the manner of taking it, to the evidence presented, or to the
conduct of any party, and any other objection to the proceedings,
shall be noted by the officer upon the deposition. Evidence
objected to shall be taken subject to the objections. In lieu of
participating in the oral examination, parties may serve written
questions in a sealed envelope on the party taking the deposition
and he shall transmit them to the officer, who shall propound
them to the witness and record the answer verbatim.
(d) Motion to Terminate or Limit Examination.
At any time during the taking of the deposition, on
motion of either a party or the deponent and upon a showing that
the examination is being conducted in bad faith or in such manner
as unreasonably to annoy, embarrass, or oppress the deponent or
party, the presiding officer may order the officer conducting the
examination to cease forthwith from taking the deposition or may
limit the scope and manner of the taking of the deposition, as
provided in Subsection R151-46b-9(6). If the order made
terminates the examination, it shall be resumed thereafter only
upon the order of the presiding officer. Upon demand of the
objecting party or deponent, the taking of the deposition shall
be suspended for the time necessary to make a motion for an
(e) Submission to Witness; Changes; Signing.
When the testimony is fully transcribed, the deposition
shall be submitted to the witness for examination and shall be
read to or by him, unless such examination and reading are waived
by the witness and by the parties. Any changes in form or
substance which the witness desires to make shall be entered upon
the deposition by the officer with a statement of the reasons
given by the witness for making them. The deposition shall then
be signed by the witness, unless the parties by stipulation waive
the signing or the witness is ill or cannot be found or refuses
to sign. If the deposition is not signed by the witness within 30
days of its submission to him, the officer shall sign it and
state on the record the fact of the waiver or of the illness or
absence of the witness or the fact of the refusal to sign
together with the reason, if any, given therefore. The deposition
may then be used as though signed, unless a motion to suppress is
filed pursuant to Subsection R151-46b-9(13)(i)(c)(v) and the
presiding officer holds that the reasons given for the refusal to
sign require rejection of the deposition in whole or in
(f) Certification and Filing by Officer; Exhibits;
Copies; Notice of Filing.
(i) The officer shall certify on the deposition that the
witness was duly sworn by him and that the deposition is a true
record of the testimony given by the witness. Unless otherwise
ordered by the presiding officer, he shall then securely seal the
deposition in an envelope indorsed with the title of the action
and marked "Deposition of (here insert name of
witness)" and shall promptly send the sealed transcript of
the deposition to the attorney who arranged for the transcript to
be made. If the party taking the deposition is not represented by
an attorney, the transcript of the deposition shall be filed with
the division or committee before which the proceeding is being
held unless otherwise ordered by the presiding officer. An
attorney receiving the transcript of the deposition shall store
it under conditions that will protect it against loss,
destruction, tampering or deterioration. The officer shall file,
and serve upon all parties, a certificate indicating to whom he
delivered the transcript, and the date he did so.
Documents and things produced for inspection during the
examination of the witness shall, upon the request of a party, be
marked for identification and annexed to the deposition, and may
be inspected and copied by any party, except that if the person
producing the materials desires to retain them, he may either
offer copies to be marked for identification and annexed to the
deposition and to serve thereafter as originals, if he affords to
all parties fair opportunity to verify the copies by comparison
with the originals, or offer the originals to be marked for
identification, after giving to each party an opportunity to
inspect and copy them, in which event the materials may then be
used in the same manner as if annexed to the deposition. Any
party may move for an order that the original be annexed to the
original transcript of the deposition pending final disposition
of the case.
(ii) Upon payment of reasonable charges therefore, the
officer shall furnish a copy of the deposition to any party or to
(g) Failure to Attend or to Serve Subpoena;
(i) If the party giving the notice of the taking of a
deposition fails to attend and proceed therewith and another
party attends in person or by attorney pursuant to the notice,
the presiding officer may order the party giving the notice to
pay to such other party the reasonable expenses incurred by him
and his attorney in attending, including reasonable
(ii) If the party giving the notice of the taking of a
deposition of a witness fails to serve a subpoena upon him and
the witness because of such failure does not attend, and if
another party attends in person or by attorney because he expects
the deposition of that witness to be taken, the presiding officer
may order the party giving the notice to pay to such other party
the reasonable expenses incurred by him and his attorney in
attending, including reasonable attorney's fees.
(h) Persons Before Whom Depositions May Be
(i) Within the United States or within a territory or
insular possession subject to the jurisdiction of the United
States, depositions shall be taken before an officer authorized
to administer oaths by the laws of the United States or of the
place where the examination is held, or before a person appointed
by the presiding officer in which the action is pending. A person
so appointed has power to administer oaths and take
(ii) In a foreign country, depositions may be
(A) on notice before a person authorized to administer
oaths in the place in which the examination is held, either by
the law thereof or by the law of the United States; or
(B) before a person commissioned by the presiding
officer. The person so commissioned shall have the power, by
virtue of his commission, to administer any necessary oath and
take testimony. A commission shall be issued on application and
notice and on terms that are just and appropriate. It is not
requisite to the issuance of a commission that the taking of the
deposition in any other manner in impracticable or inconvenient;
and a commission may be issued in proper cases. A notice or
commission may designate the person before whom the deposition is
to be taken either by name or descriptive title.
(iii) No deposition shall be taken before a person who is
a relative or employee or attorney or counsel of any of the
parties, or is a relative or employee of such attorney or
counsel, or is financially interested in the proceeding.
(i) Use of Depositions in Agency Adjudicative
(a) Use of Depositions.
At a hearing or upon argument of a motion or an
interlocutory proceeding, any part or all of a deposition, so far
as admissible under the rules of evidence applied as though the
witness were then present and testifying, may be used against any
party who was present or represented at the taking of the
deposition or who had reasonable notice thereof, in accordance
with any of the following provisions:
(i) Any deposition may be used by any party for the
purpose of contradicting or impeaching the testimony of the
deponent as a witness, or for any other purpose permitted by the
Utah Rules of Evidence.
(ii) The deposition of either a party or anyone who, at
the time of taking the deposition, was an officer, director, or
managing agent, or a person designated under Subsection
R151-46b-9(13)(b)(iv) to testify on behalf of a public or private
corporation, partnership or association or governmental agency
which is a party, may be used by an adverse party for any
(iii) The deposition of a witness, whether or not a
party, may be used by any party for any purpose if the presiding
officer finds that:
(A) the witness is dead;
(B) the witness is at a greater distance than 100 miles
from the place of hearing, or is out of the United States, unless
it appears that the absence of the witness was procured by the
party offering the deposition;
(C) the witness is unable to attend or testify because of
age, illness, infirmity, or imprisonment;
(D) the party offering the deposition has been unable to
procure the attendance of the witness by subpoena; or
(E) upon application and notice, such exceptional
circumstances exist as to make it desirable, in the interest of
justice and with due regard to the importance of presenting the
testimony of witnesses orally in open court, to allow the
deposition to be used.
(iv) If only part of a deposition is offered in evidence
by a party, an adverse party may require him to introduce any
other part which ought, in fairness, to be considered with the
part introduced, and any party may introduce any other
All depositions lawfully taken and duly filed in any
court or another agency of this state may be used as if
originally taken in the pending proceeding. A deposition
previously taken may also be used as permitted by the Utah Rules
(b) Objections to Admissibility.
Subject to the provisions of Subsection
R151-46b-9(13)(i)(c), objection may be made at the hearing to
receiving in evidence any deposition or part thereof for any
reason which would require the exclusion of the evidence if the
witness were then present and testifying.
(c) Effect of Errors and Irregularities in
(i) All errors and irregularities in the notice for
taking a deposition are waived unless written objection is
promptly served upon the party giving the notice.
(ii) Objection to taking a deposition because of
disqualification of the officer before whom it is to be taken is
waived unless made before the taking of the deposition begins or
as soon thereafter as the disqualification becomes known or could
be discovered with reasonable diligence.
(iii) Objections to the competency of a witness or to the
competency, relevancy, or materiality of testimony are not waived
by failure to make them before or during the taking of the
deposition, unless the ground of the objection is one which might
have been obviated or removed if presented at that time.
(iv) Errors and irregularities occurring at the oral
examination in the manner of taking the deposition, in the form
of the questions or answers, in the oath or affirmation, or in
the conduct of parties, and errors of any kind which might be
obviated, removed, or cured if promptly presented, are waived
unless seasonable objection thereto is made at the taking of the
(v) Errors and irregularities in the manner in which the
testimony is transcribed or the deposition is prepared, signed,
certified, sealed, indorsed, transmitted, filed, or otherwise
dealt with are waived unless a motion to suppress the deposition
or some part thereof is made with reasonable promptness after
such defect is, or with due diligence might have been,
(14) Production of Documents and Things and Entry Upon
Land for Inspection and Other Purposes.
Upon approval by the presiding officer, any party may
serve on any other party a request:
(i) to produce and permit the party making the request,
or someone acting on his behalf, to inspect and copy any
designated documents, including writings, drawings, graphs,
charts, photographs, phonorecords, and other data compilations
from which information can be obtained, translated, if necessary,
by the respondent through detection devices into reasonably
usable form, or to inspect and copy, test, or sample any tangible
things which constitute or contain matters within the scope of
Subsection R151-46b-9(1)(a) and which are in the possession,
custody or control of the party upon whom the request is served;
(ii) to permit entry upon designated land or other
property in the possession or control of the party upon whom the
request is served for the purpose of inspection and measuring,
surveying, photographing, testing, or sampling the property or
any designated object or operation thereon, within the scope of
Before permitting a party to serve a request for
production of documents, the presiding officer must first find
that the party seeking such leave has demonstrated that the
records he seeks have not already been provided to him in the
initial disclosures submitted by another party. After approval by
the presiding officer, the request may be served upon any party.
The request shall set forth the items to be inspected either by
individual item or by category, and describe each item and
category with reasonable particularity. The request shall specify
a reasonable time, place, and manner of making the inspection and
performing the related acts.
The party upon whom the request is served shall serve a
written response within 20 days after the service of the request.
The presiding officer may allow a shorter or longer time. The
response shall state, with respect to each item or category, that
inspection and related activities will be permitted as requested,
unless the request is objected to, in which event the reasons for
objection shall be stated. If objection is made to part of an
item or category, the part shall be specified. The party
submitting the request may move for an order under Subsection
R151-46b-9(16) with respect to any objection to or other failure
to respond to the request or any part thereof, or any failure to
permit inspection as requested.
A party who produces documents for inspection shall
produce them as they are kept in the usual course of business or
shall organize and label them to correspond with the categories
in the request.
(15) Physical and Mental Examination of Persons.
(a) Order for Examination.
When the mental or physical condition, including the
blood group, of a party or of a person in the custody or under
the legal control of a party is in controversy, the presiding
officer may order the party to submit to a physical or mental
examination by a physician or to produce for examination the
person in his custody or legal control. The order may be made
only on motion for good cause shown and upon notice to the person
to be examined and to all parties and shall specify the time,
place, manner, conditions, and scope of the examination and the
person or person by whom it is to be made.
(b) Report of Examining Physician.
(i) If requested by the party against whom an order is
made under Subsection (a) of this rule or the person examined,
the party causing the examination to be made shall deliver to him
a copy of a detailed written report of the examining physician
setting out his findings, including results of all tests made,
diagnoses and conclusions, together with like reports of all
earlier examinations of the same condition. After delivery, the
party causing the examination shall be entitled, upon request, to
receive from the party against whom the order is made a like
report of any examination, previously or thereafter made, of the
same condition unless, in the case of a report of examination of
a person not a party, the party shows that he is unable to obtain
it. The presiding officer on motion may make an order against a
party requiring delivery of a report on such terms as are just,
and if a physician fails or refuses to make a report, the
presiding officer may exclude his testimony if offered at the
(ii) By requesting and obtaining a report of the
examination so ordered or by taking the deposition of the
examiner, the party examined waives any privilege he may have in
that action or any other involving the same controversy,
regarding the testimony of every other person who has examined or
may thereafter examine him in respect of the same mental or
(iii) Subsection R151-46b-9(15)(b) applies to examination
made by agreement of the parties unless the agreement expressly
provides otherwise. Subsection R151-46b-9(15)(b) does not
preclude discovery of a report of an examining physician or the
taking of a deposition of the physician in accordance with the
provisions of any other rule.
(16) Motion to Compel Discovery; Sanctions for Failure to
Make or Cooperate in Discovery.
(a) A party may request entry of an order compelling
discovery as follows:
(i) If a party fails to make disclosures required by an
initial prehearing order pursuant to R151-46b-9(2), or a party
fails to make the disclosures required by R151-46b-9(3), or a
deponent fails to answer a question propounded under Subsection
R151-46b-9(13), or a corporation or other entity fails to make a
designation under Subsection R151-46b-9(13)(b)(iv), or a party,
in response to a request for inspection submitted under
Subsection R151-46b-9(14), fails to respond that inspection will
be permitted as requested or fails to permit inspection as
requested, the discovering party may move for an order compelling
such disclosures, or an answer, or a designation, or an order
compelling inspection in accordance with the request. When taking
a deposition on oral examination, the proponent of the question
may complete or adjourn the examination before he applies for an
If the presiding officer denies the motion in whole or in
part, the presiding officer may make such protective order as he
would have been empowered to make on a motion made pursuant to
(ii) For purposes of Subsection R151-46b-9(16)(a)(i), an
evasive or incomplete answer is to be treated as a failure to
(b) Discovery Sanctions.
(i) If a party or other person fails to comply with an
order compelling discovery issued by the presiding officer, the
department may seek enforcement of that order by seeking civil
enforcement in the district court as provided in Section
(ii) If a party, an officer, director, or managing agent
of a party or a person designated under Subsection
R151-46b-9(13)(b)(iv) to testify on behalf of a party fails to
obey an order or provide or permit discovery, including an order
made under Subsection R151-46b-9(16)(a), the presiding officer
may make such orders in regard to the failure as are just,
(A) An order that the matters regarding which the order
was made or any other designated facts shall be taken to be
established for the purposes of the action in accordance with the
claim of the party obtaining the order;
(B) An order refusing to allow the disobedient party to
support or oppose designated claims or defenses, or prohibiting
him from introducing designated matters in evidence;
(C) An order striking out pleadings or parts thereof, or
staying further proceedings until the order is obeyed, or
dismissing the action or proceeding or any part thereof, or
rendering a judgment by default against the disobedient
(iii) If a party fails to comply with an order under
Subsection R151-46b-9(15)(a) requiring him to produce another for
examination, the presiding officer may enter any order listed in
paragraphs (A), (B), and (C) of Subsection R151-46b-9(16)(b)(ii)
unless the party failing to comply shows that he is unable to
produce such person for examination.
(iv) If a party, an officer, director, or managing agent
of a party or a person designated under Subsection
R151-46b-9(13)(b)(iv) to testify on behalf of a party fails to
appear before the officer who is to take his deposition, after
being served with a proper notice, fails to serve a written
response to a request for inspection submitted under Subsection
R151-46b-9(14), after proper service of the request, the
presiding officer on motion may make such orders in regard to the
failure as are just and may take any action authorized under
paragraphs (A), (B) and (C) of Subsection R151-46b-9(16)(b)(ii).
In lieu of any order or in addition thereto, the presiding
officer shall require the party failing to act or the attorney
advising him or both to pay the reasonable expenses, including
attorney's fees, caused by the failure, unless the presiding
officer finds that the failure was substantially justified or
that other circumstances make an award of expenses
The failure to act described in Subsection R151-46b-9(16)
may not be excused on the ground that the discovery sought is
objectionable unless the party failing to act has applied for a
protective order as provided in Subsection
(v) The failure to comply with Subsections R151-46b-9(1)
through R151-46b-9(15) or to honor any certification made under
those rules may be found by the presiding officer to be a default
under Section 63G-4-209.
R151-46b-10. Hearings. (1) Hearings Required or Permitted.
A hearing shall be held in all adjudicative proceedings
in which a hearing is:
(a) required by statute or rule and not waived by the
(b) permitted by statute or rule and timely
(2) Time to Request Permissive Hearing.
A request for a hearing permitted by statute or rule must
be received no later than:
(a) the time period for filing a response to a notice of
agency action if a response is required or permitted;
(b) twenty days following the issuance of a notice of
agency action if a response is not required or permitted;
(c) the filing of the request for agency action.
(3) Scheduling of Hearings.
(a)(i) The date, time, and place of a hearing shall be
set forth in the notice of agency action or the notice of receipt
of request for agency action, or, if not known at the time of the
notice, in a separate notice of hearing.
(ii) Notwithstanding the provisions of Subsection
R151-46b-5(2), the hearing in any formal or informal adjudicative
proceeding shall be concluded not more than 180 calendar days
after the day on which:
(A) the notice of agency action was issued; or
(B) the initial decision with respect to a request for
agency action was issued.
(b) Subject to the provisions of Subsection
R151-46b-5(5)(b), the presiding officer may, upon a determination
of good cause, issue an order modifying the date, time, or place
of a hearing.
(4) Hearings Open to Public; Exceptions.
(a) Any hearing in an adjudicative proceeding is open to
the public unless closed by the presiding officer conducting the
hearing, pursuant to Title 63G, Chapter 4, the Administrative
Procedures Act, or by a presiding officer who is a public body,
pursuant to Title 52, Chapter 4, the Open and Public Meetings
(b) The deliberative process of an adjudicative
proceeding is a quasi-judicial function exempt from the Open and
Public Meetings Act. Deliberations are closed to the
(5) Bifurcation of Hearing.
The presiding officer, good cause appearing, may order a
hearing bifurcated into a findings phase relative to the
allegations set forth in the petition, and a sanctions phase, if
required, based upon the findings.
(6) Order of Presentation in Hearings.
The order of presentation of evidence in hearings in
formal adjudicative proceedings shall normally be as
(a) opening statement of the party with the burden of
(b) opening statement of the opposing party, unless the
party reserves the opening statement until the presentation of
(c) case-in-chief of the party which has the burden of
proof and cross examination of witnesses by opposing
(d) case-in-chief of the opposing party and cross
examination of witnesses by the party with the burden of
(e) rebuttal case by the party which has the burden of
(f) surrebuttal case by the opposing party;
(g) further rebuttal or surrebuttal as permitted by the
(h) closing argument by the party which has the burden of
(i) closing argument by the opposing party; and
(j) final argument by the party which has the burden of
(7) Testimony Under Oath.
All testimony presented at a hearing, if offered as
evidence to be considered in reaching a decision on the merits,
shall be given under oath administered by the presiding
(8) Telephonic Testimony.
(a) Telephonic testimony is only permissible in a formal
adjudicative proceeding upon the consent of the parties or if
warranted by exigent circumstances. Normally, expenses which
would be incurred by a party to produce in-person testimony do
not constitute an exigent circumstance as to justify telephonic
testimony in a formal adjudicative proceeding. Telephonic
testimony is generally permissible in an informal proceeding upon
the request of any party.
(b) When telephonic testimony is to be presented, the
presiding officer shall require that the identity of any witness
so testifying be established. The presiding officer shall also
provide safeguards to assure the witness does not refer to
documents improperly and to reduce the possibility the witness
may be coached or influenced during their testimony.
(9) Standard of Proof.
The standard of proof in all proceedings under these
rules, whether initiated by a notice of agency action or request
for agency action, shall be a preponderance of the
(10) Burden of Proof.
The department has the burden of proof in any proceeding
initiated by a notice of agency action. The party who seeks
action from the department has the burden of proof in any
proceeding initiated by a request for agency action.
(11) Default Procedures.
(a) Order entering the default of a party.
(i) The presiding officer may enter the default of a
party in accordance with Section 63G-4-209, sua sponte or upon
motion of a party.
(ii) A party filing a motion for entry of default shall
also file an affidavit substantiating the grounds for the
(iii) If the submissions establish a basis for entry of
default, the presiding officer may enter the default without
notice to the defaulting party or a hearing.
(b) Additional proceedings.
(i) Following the entry of default, the presiding officer
may, sua sponte or upon motion of a party, conduct further
proceedings and enter a final order based on the submissions
filed without notice to or participation by the defaulting party
(A) the relief sought against the party is specifically
set forth in the pleadings that were served upon that
(B) the factual allegations contained in those pleadings
are supported by affidavit or by a verified petition;
(C) those factual allegations, and applicable law,
support the granting of the relief sought against that
(ii) In all other cases, the presiding officer shall not
enter a final order without conducting a hearing in which the
party seeking relief may submit proffers, evidence, or legal
arguments in support of the relief it requests against the
defaulting party. The hearing may be held without notice to or
participation by the defaulting party if the pleadings served
upon the defaulting party set forth the potential relief which
could be obtained against such party.
(c) The order of default and the final order may be
(12) Record of Hearing.
(a) Record Requirement.
The presiding officer shall cause a record to be made of
all prehearing conferences and all hearings which are
(b) Record Methods.
(i) Formal Adjudicative Proceedings.
The presiding officer shall cause the record of a hearing
in a formal adjudicative proceeding to be made by means
(A) a certified court reporter pursuant to Title 58,
Chapter 74, Certified Court Reporters Licensing Act; or
(B) a digital audio or video recording in a commonly used
(ii) Informal Adjudicative Proceedings.
The presiding officer may cause a record of a hearing in
an informal adjudicative proceeding to be made by a method set
forth in Subsection (i) or by minutes prepared or adopted by the
(c) Record Expense.
The hearing in an adjudicative proceeding shall be
recorded at the expense of the agency.
(d) Transcription of Record.
(i) If a party is required by Subsection
R151-46b-12(3)(d) regarding agency review proceedings to obtain a
transcript of a hearing, the party must ensure that the record is
(A) in a formal adjudicative proceeding, by a certified
court reporter; or
(B) in an informal adjudicative proceeding, by any
certified court reporter or by a person who is not a party in
interest. For purposes of this Subsection, "a party in
interest" is defined to include a party or a relative of the
party. Neither a party's counsel nor an employee of a
party's counsel is considered "a party in interest"
for purposes of this Subsection.
(ii) Where a transcript is prepared by someone other than
a certified court reporter, a party shall file an affidavit of
the transcriber stating under penalty of perjury that the
transcript is a correct and accurate transcription of the hearing
(iii) Pages and lines in a transcript shall be numbered
for referencing purposes.
(iv) The party requesting the transcript shall bear the
cost of the transcription.
(v) The original transcript of a record of a hearing
shall be filed with the presiding officer.
(a) Witness Fees.
Witnesses appearing upon the demand or at the request of
a party shall be entitled to receive payment from that party in
the amount of $18.50 for each day in attendance and, if traveling
more than 50 miles to attend and return from the hearing, shall
be entitled to receive 25 cents per mile for each mile thus
actually and necessarily traveled. Any witness subpoenaed by a
party other than the department may, at the time of service of
the subpoena, demand one day's witness fee and mileage in
advance and unless such fee is tendered, the witness shall not be
required to appear.
(b) Interpreter and Translator Fees.
Interpreters and translators, including those skilled in
foreign languages and communication with the deaf, shall be
allowed such compensation for their services as the presiding
officer may allow.
(c) Officers and Employees not Entitled to Fees -
No officer or employee of the United States, or of the
State of Utah, or of any county, incorporated city or town within
the State of Utah, shall receive any witness fee when testifying
in an adjudicative proceeding unless the officer or employee is
required to testify at a time other than during his normal
(d) Only One Fee Per Day Allowed.
No witness shall receive fees in more than one
adjudicative proceeding on the same day.
R151-46b-11. Orders. (1) Requirements.
(a) All orders issued by a presiding officer shall comply
with the requirements of Subsection 63G-4-203(1)(i) or Section
63G-4-208, respectively. In the case of default orders and orders
issued subsequent to a default order, the requirements of
Subsections 63G-4-203(1)(i)(iii) and (iv) and 63G-4-208(1)(e),(f)
and (g) are satisfied if the order includes a notice of the right
to seek to set aside the order as provided in Subsection
(b) Except as provided in Sections 63G-4-502 and
R151-46b-16, as to emergency proceedings, the presiding officer
shall issue an order within 45 calendar days after the day on
which the hearing concludes.
(c) If the presiding officer permits the filing of any
post-hearing documents, that filing shall be scheduled in a way
that allows the presiding officer to issue an order within 45
calendar days after the day on which the hearing
(d) The failure of the presiding officer to comply with
the requirements of this Subsection (1) is not a basis for
dismissal of the matter, and may not be considered an automatic
denial or grant of any motion.
(2) Effective Date.
The effective date of the final order in an adjudicative
proceeding shall be 30 days after the issuance thereof unless
otherwise provided in the order.
(3) Clerical Mistakes.
Clerical mistakes in orders or other parts of the record
and errors therein arising from oversight or omission may be
corrected by the department on its own initiative or on the
motion of any party and after such notice, if any, as the
department orders. Such mistakes may be so corrected at any time
prior to the docketing of a petition for judicial review or as
governed by Rule 11(h) of the Utah Rules of Appellate
R151-46b-12. Agency Review. (1) Availability of Agency Review.
Except as otherwise provided in Subsection
63G-4-209(3)(c), an aggrieved party may obtain agency review of a
final order issued in an adjudicative proceeding by filing a
request with the executive director of the department within
thirty days following the issuance of the order.
(2) When Agency Review Is Not Available.
(a) Agency review is not available as to any order or
decision entered by the following agencies:
(i) the Real Estate Appraiser Licensing and Certification
(ii) the Utah Motor Vehicle Franchise Advisory Board;
(iii) the Utah Powersport Vehicle Franchise Advisory
(b) Agency review is not available for any decisions or
orders entered by the Division of Occupational and Professional
Licensing as to the following matters:
(i) Prelitigation proceedings conducted pursuant to Title
78B, Chapter 3, the Utah Health Care Malpractice Act;
(ii) Requests for modification to disciplinary orders
issued by the Division of Occupational and Professional
(iii) Requests for entry into the Diversion Program
pursuant to Section 58-1-404(4).
(c) Agency review is not available for any decisions or
orders entered by the Division of Corporations and Commercial
Code as to the following matters:
(i) refusal to file a document under the Utah Revised
Business Corporations Act pursuant to Section
(ii) revocation of a foreign corporation's authority
to transact business pursuant to Section 16-10a-1532;
(iii) refusal to file a document under the Utah Revised
Limited Liability Company Act pursuant to Section 48-2c-211;
(iv) revocation of a foreign limited liability
company's authority to transact business pursuant to Section
(d)(i) Agency reconsideration may be requested for orders
or decisions exempt from agency review under Subsections
R151-46b-12(2)(a), (b)(ii), and (c) pursuant to Section
(ii) Agency reconsideration is not available for orders
or decisions exempt from agency review under Subsections (b)(i)
and (b)(iii), pursuant to Subsections 58-1-404(4)(d) and
(3) Content of a Request for Agency Review - Transcript
of Hearing - Service.
(a) The content of a request for agency review shall be
in accordance with Subsection 63G-4-301(1)(b) and as provided in
this Subsection. The request for agency review shall include a
copy of the order that is the subject of the request.
(b) A party requesting agency review shall set forth any
factual or legal basis in support of that request, including
adequate supporting arguments and citation to appropriate legal
authority and to the relevant portions of the record developed
during the adjudicative proceeding.
(c) If a party challenges a finding of fact in the order
subject to review, the party must demonstrate, based on the
entire record, that the finding is not supported by substantial
evidence. A party challenging the facts bears the burden to
marshal or gather all of the evidence in support of a finding and
to show that despite such evidence, the finding is not supported
by substantial evidence. The failure to so marshal the evidence
permits the executive director to accept a division's
findings of fact as conclusive. A party challenging a legal
conclusion must support the argument with citation to any
relevant authority and also cite to those portions of the record
that are relevant to that issue.
(d) If the grounds for agency review include any
challenge to a determination of fact or conclusion of law as
unsupported by or contrary to the evidence, the party seeking
agency review shall order and cause a transcript of the record
relevant to such finding or conclusion to be prepared. When a
request for agency review is filed under such circumstances, the
party seeking review shall certify that a transcript has been
ordered and shall notify the department when the transcript will
be available for filing with the department. The party shall
thereafter file the transcript with the executive director in
accordance with the time frame stated in the certification
regarding transcript. The party seeking agency review shall bear
the cost of the transcript.
(e) A party seeking agency review shall, in the manner
described in R151-46b-8, file and serve upon all other parties
copies of correspondence, pleadings, and other submissions. If an
attorney enters an appearance on behalf of a party, service shall
thereafter be made upon that attorney, instead of directly to the
(f) Failure to comply with this rule may result in
dismissal of the request for agency review.
(4) Stay Pending Agency Review.
(a) Upon the timely filing of a request for agency
review, the party seeking review may request that the effective
date of the order subject to review be stayed pending the
completion of review. If a stay is not timely requested and
subsequently granted, the order subject to review shall take
effect according to its terms.
(b) The division or committee that issued the order
subject to review may oppose the request for a stay in writing
within ten days from the date the stay is requested. Failure to
oppose a timely request for a stay shall result in an order
granting the stay unless the department determines that a stay
would not be in the best interest of the public. The department
may also enter an interim order granting a stay pending a
decision on the motion for a stay.
(c) In determining whether to grant a request for a stay
or a motion opposing that request, the department shall review
the division's or committee's findings of fact,
conclusions of law and order to determine whether granting a stay
would, or might reasonably be expected to, pose a significant
threat to the public health, safety and welfare. The department
may also issue a conditional stay by imposing terms, conditions
or restrictions on a party pending agency review.
(a) The department may order or permit the parties to
file memoranda to assist in conducting agency review. Any
memoranda shall be filed consistent with these rules or as
otherwise governed by any scheduling order entered by the
(b) When no transcript is necessary to conduct agency
review, any memoranda supporting a request for such review shall
be concurrently filed with the request. If a transcript is
necessary to conduct agency review, any supporting memoranda
shall be filed no later than 15 days after the filing of the
transcript with the department.
(c) Any response to a request for agency review and any
memoranda supporting that response shall be filed no later than
15 days from the filing of the request for agency review or no
later than 15 days from the service of any subsequent memoranda
supporting that request. Any final reply memoranda shall be filed
no later than five days after the service of a response to the
request for agency review.
(6) Oral Argument.
The request for agency review or the response thereto
shall state whether oral argument is sought in conjunction with
agency review. The department may order or permit oral argument
if the department determines such argument is warranted to assist
in conducting agency review.
(7) Standard of Review.
The standards for agency review correspond to the
standards for judicial review of formal adjudicative proceedings,
as set forth in Subsection 63G-4-403(4).
(8) Type of Relief.
The type of relief available on agency review shall be
the same as the type of relief available on judicial review, as
set forth in Subsection 63G-4-404(1)(b).
(9) Order on Review.
The order on review shall comply with the requirements of
R151-46b-14. Exhaustion of Administrative Remedies. (1) In accordance with Section 63G-4-401, an aggrieved
party may seek judicial review of a final order only after
exhausting all administrative remedies available.
(2) The order on review constitutes final agency action
for purposes of Subsection 63G-4-401(1).
R151-46b-15. Stay and Other Temporary Remedies Pending
Judicial Review. (1) Unless otherwise provided by statute, a motion for a
stay of an order or other temporary remedy during the pendency of
judicial review shall include:
(a) a statement of the reasons for the relief
(b) a statement of the facts relied upon;
(c) affidavits or other sworn statements if the facts are
subject to dispute;
(d) relevant portions of the record of the adjudicative
proceeding and agency review thereof;
(e) a memorandum of law identifying the issues to be
presented on appeal and supporting the aggrieved party's
position that those issues raise a substantial question of law or
fact reasonably likely to result in reversal, remand for a new
hearing, or relief from the order entered;
(f) clear and convincing evidence that if the requested
stay or other temporary remedy is not granted, the aggrieved
party will suffer irreparable injury;
(g) clear and convincing evidence that if the requested
stay or other temporary remedy is granted, it will not
substantially harm other parties to the proceeding; and
(h) clear and convincing evidence that if the requested
stay or other temporary remedy is granted, the aggrieved party
will not pose a significant danger to public health, safety and
(2) The executive director of the department may grant a
motion for a stay of an order or other temporary remedy during
the pendency of judicial review upon a showing by the aggrieved
party that the requirements for such relief established in this
rule are met.
R151-46b-16. Emergency Adjudicative Proceedings. Unless otherwise provided by statute or rule:
(1) When a division commences an emergency adjudicative
proceeding and issues an order in accordance with Section
63G-4-502 which results in a continued impairment of the affected
party's rights or legal interests, the division that issued
the emergency order shall schedule a hearing upon written request
of the affected party to determine whether the emergency order
should be affirmed, set aside, or modified based on the standards
set forth in Section 63G-4-502. The hearing will be conducted in
conformity with Section 63G-4-206.
(2) Upon request for a hearing pursuant to this rule, the
Division will conduct a hearing as soon as reasonably practical
but not later than 20 days from the receipt of a written request
unless the Division and the party requesting the hearing agree to
conduct the hearing at a later date. The Division shall have the
burden of proof to establish, by a preponderance of the evidence,
that the requirements of Section 63G-4-502 have been
(3) Except as otherwise provided by statute, the division
director or his designee shall select an individual or body of
individuals to act as the presiding officer at the hearing. The
presiding officer shall not include any individual who directly
participated in issuing the emergency order.
(4) Within 15 calendar days after the day in which the
emergency hearing concludes, the presiding officer shall issue an
order in accordance with the requirements of Section 63G-4-208.
The order of the presiding officer shall be considered final
agency action with respect to the emergency adjudicative
proceeding and shall be subject to agency review in accordance
with Section R151-46b-12.
R151-46b-17. Declaratory Orders. (1) Filing of Petition for Declaratory Order.
A petition for the issuance of a declaratory order shall
be filed with the agency head which has primary jurisdiction to
enforce or implement the statute, rule, or order for which a
declaratory order is sought. The petition shall set forth the
question to be answered, the facts and circumstances related to
the question, the statute, rule, or order to be applied to the
question, and whether oral argument is sought in conjunction with
the petition. The Petition shall comply with the requirements for
pleadings set forth in Section R151-46b-7.
(2) Disposition of Petition.
Upon receipt of a petition for a declaratory order, the
agency head shall issue a written order in accordance with
Subsection 63G-4-503(6) or allow the petition to be denied in
accordance with Subsection 63G-4-503(7).
(a) If the agency head issues a declaratory order
declaring the applicability of the statute, rule, or order in
question to the specified facts and circumstances set forth in
the petition without setting the matter for an adjudicative
proceeding, the order shall be based upon a review of the
petition and oral argument upon the petition, if any; laws and
rules applicable to the petition; records maintained by the
agency; or any other relevant information reasonably available to
(b) If the agency head sets the matter for an
adjudicative proceeding, a notice of adjudicative proceeding
shall be issued in accordance with the requirements of Subsection
63G-4-201(2)(a), to the extent applicable.
(3) Classes of Circumstances in Which the Agency Will Not
Issue a Declaratory Order.
The following are defined as classes of circumstances in
which the agency will not issue a declaratory order:
(a) questions involving circumstances set forth in
Subsection 63G-4-503(3)(a)(ii) or (3)(b);
(b) questions which are not within the jurisdiction of
the agency to address;
(c) questions which have already been adequately
addressed by an agency in the form of an order;
(d) questions which can be adequately addressed by an
agency in the form of informal advice;
(e) questions which are already clearly addressed by
statute or rule and do not warrant a declaratory order;
(f) questions which are more properly addressed by
statute or rule;
(g) questions which arise out of pending or anticipated
litigation in a civil, criminal, or administrative forum which
are more properly addressed by that forum; and
(h) questions which are irrelevant, insignificant,
meaningless, or spurious.
(4) Agency Review.
The recipient of a declaratory order may request agency
review pursuant to Section 63G-4-301 and these rules.
R151-46b-18. Record of an Adjudicative Proceeding. (1) Definition.
The record of an adjudicative proceeding includes the
pleadings and exhibits filed by the parties, the recording of any
hearing under Subsection R151-46b-10(11), any transcript of a
hearing, and orders or other documents issued by any presiding
officer in the adjudicative proceeding or on agency review or
reconsideration of the adjudicative proceeding.
The record of an adjudicative proceeding shall be
retained by the department pursuant to Title 63, Chapter 2, the
Government Records Access and Management Act ("GRAMA").
As used herein, "department" means the department,
division or committee before whom the adjudicative proceeding was
The record of an adjudicative proceeding is classified as
a "public record" except as otherwise classified by the
department pursuant to GRAMA.
KEY: administrative procedures, adjudicative proceedings,
Date of Enactment or Last Substantive Amendment: July 22,
Notice of Continuation: May 3, 2006
Authorizing, and Implemented or Interpreted Law: 13-1-6;
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For questions regarding the content or application of this rule, please contact Masuda Medcalf at the above address, by phone at 801-530-7663, by FAX at 801-530-6446, or by Internet E-mail at email@example.com.