Commerce, Occupational and Professional Licensing

Rule R156-46b

Division Utah Administrative Procedures Act Rule

Notice of Proposed Rule

(Amendment)

DAR File No.: 34886
Filed: 05/31/2011 10:49:08 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this filing is to classify certain adjudicative proceedings under the Utah Administrative Procedures Act (UAPA), specifically those initiated under the authority established by S.B. 186 (2011 General Session) in Subsection 58-37-6(4)(g) of the Controlled Substances Act. This filing makes a statutory citation authority correction in the designation of citation hearings under UAPA, in order to be consistent with additional citation authority granted to the Division under H.B. 243 (2011 General Session) as well as other legislation in past years. This filing reclassifies adjudicative proceedings addressing the failure to replace a qualifying agent under Section 58-63-306. These designations to classify adjudicative proceedings as informal proceedings are made to achieve greater efficiency as a Division while providing licensee respondents adequate due process for these types of proceedings. A previous trial basis in this arena with contractors has proven highly successful. A companion rule filing to Rule R156-1 addresses the designation of presiding officers for these types of adjudicative proceedings. (DAR NOTE: H.B. 243 and S.B. 186 were both effective 05/10/2011. The proposed rule filing to Rule R156-1 is under DAR No. 34885 in this issue, June 15, 2011, of the Bulletin.)

Summary of the rule or change:

This filing classifies as informal proceedings, licensure or disciplinary actions against an individual's Division of Occupational and Professional Licensing (DOPL) controlled substance license in response to the individual's Drug Enforcement Agency (DEA) registration being denied, revoked, surrendered, or suspended. Such registration is a prerequisite for controlled substance licensure. These types of cases should be fairly routine by nature, and thus the decision to classify them as informal proceedings. DOPL believes that few participants would anticipate a formal proceeding in this setting, particularly in light of the new statutory language. Those who do can file a motion to convert the proceeding to a formal proceeding. This filing also clarifies that all citation hearings before the Division under Title 58 are informal adjudicative proceedings. It should be noted that occasionally, but rarely, these proceedings are converted to formal adjudicative proceedings. This filing also classifies as informal proceedings denial of renewal, denial of reinstatement, and other disciplinary actions, whether initiated by a Request for Agency Action or a Notice of Agency Action, to address a failure by a contract security company or armored car company to replace a qualifier as required under Section 58-63-306. These cases will also be quite routine by nature, and thus the decision to classify them as informal proceedings. Licensees who wish to avoid the impact of such an adjudicative proceeding merely need comply with Section 58-63-306 and replace their qualifier as required.

State statutory or constitutional authorization for this rule:

• Subsection 58-1-106(1)(a)
• Subsection 63G-4-102(6)

Anticipated cost or savings to:

the state budget:

The informal process can be more efficient and less cumbersome to the participants. The informal process normally involves a decision based upon a file review, and thus does not include a hearing, unless a statute or rule requires or permits a hearing. An informal hearing is simplified and does not include the full trappings of a formal hearing. An informal proceeding does not normally include a hearing at the agency level, except where the statute requires or permits a hearing, such as in DOPL's citation hearings. However, if an individual wants a hearing where one is not afforded at the agency level, they will ultimately get one, albeit at a different stage - in the judicial forum, after timely pursuing agency review as a prerequisite, and timely filing a petition for judicial review. The judicial hearing is a trial de novo hearing before a District Court. By contrast, in a formal proceeding, there is a hearing at the agency level unless the case is settled by stipulation and order. The agency hearing would be followed by agency review as a prerequisite to judicial review. The judicial hearing is an on the record hearing before the Court of Appeals. DOPL and its attorneys in this process may experience a cost or cost savings based upon the classification of these proceedings as informal, depending on the facts and circumstances of each case and the options selected by the parties, as each case will vary. These costs or cost savings cannot be estimated. It is anticipated that generally this change will allow DOPL to most efficiently handle these types of cases in an informal setting affording Respondents adequate due process without unnecessarily devoting resources to formal proceedings.

local governments:

The proposed amendments only apply to licensees within DOPL and as a result, the proposed amendments do not apply to local governments.

small businesses:

The proposed amendments will not result in any additional costs or savings to small businesses except as noted below under the section "Other Persons" when they constitute a small business.

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

The informal process can be more efficient and less cumbersome to the participants. The informal process normally involves a decision based upon a file review, and thus does not include a hearing, unless a statute or rule requires or permits a hearing. An informal hearing is simplified and does not include the full trappings of a formal hearing. An informal proceeding does not normally include a hearing at the agency level, except where the statute requires or permits a hearing, such as in DOPL's citation hearings. However, if an individual wants a hearing where one is not afforded at the agency level, they will ultimately get one, albeit at a different stage - in the judicial forum, after timely pursuing agency review as a prerequisite, and timely filing a petition for judicial review. The judicial hearing is a trial de novo hearing before a District Court. By contrast, in a formal proceeding, there is a hearing at the agency level unless the case is settled by stipulation and order. The agency hearing would be followed by agency review as a prerequisite to judicial review. The judicial hearing is an on the record hearing before the Court of Appeals. Individuals going through this process as the Respondent may experience a cost or cost savings based upon the classification of these cases as informal proceedings, depending on the facts and circumstances of each case and the options selected by the parties, as each case will vary. These costs or cost savings cannot be estimated.

Compliance costs for affected persons:

The informal process can be more efficient and less cumbersome to the participants. The informal process normally involves a decision based upon a file review, and thus does not include a hearing, unless a statute or rule requires or permits a hearing. An informal hearing is simplified and does not include the full trappings of a formal hearing. An informal proceeding does not normally include a hearing at the agency level, except where the statute requires or permits a hearing, such as in DOPL's citation hearings. However, if an individual wants a hearing where one is not afforded at the agency level, they will ultimately get one, albeit at a different stage - in the judicial forum, after timely pursuing agency review as a prerequisite, and timely filing a petition for judicial review. The judicial hearing is a trial de novo hearing before a District Court. By contrast, in a formal proceeding, there is a hearing at the agency level unless the case is settled by stipulation and order. The agency hearing would be followed by agency review as a prerequisite to judicial review. The judicial hearing is an on the record hearing before the Court of Appeals. Individuals going through this process as the Respondent may experience a cost or cost savings based upon the classification of these cases as informal proceedings, depending on the facts and circumstances of each case and the options selected by the parties, as each case will vary. These costs or cost savings cannot be estimated.

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

The change in designation of certain matters to informal adjudicative proceedings should result in a cost savings to the Division and to those licensees affected; it is not expected to increase costs. Experience has shown that routine cases are able to be resolved informally. No fiscal impact to other businesses is anticipated by this change in procedure.

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
Occupational and Professional Licensing
160 E 300 S
SALT LAKE CITY, UT 84111-2316

Direct questions regarding this rule to:

• W. Ray Walker at the above address, by phone at 801-530-6256, by FAX at 801-530-6511, or by Internet E-mail at raywalker@utah.gov

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:

07/15/2011

This rule may become effective on:

07/22/2011

Authorized by:

Mark Steinagel, Director

R156. Commerce, Occupational and Professional Licensing.

R156-46b. Division Utah Administrative Procedures Act Rule.

R156-46b-201. Formal Adjudicative Proceedings.

(1) The following adjudicative proceedings initiated by a request for agency action are classified as formal adjudicative proceedings:

(a) denial of application for renewal of licensure, except denial of an application for renewal of a contractor, plumber or electrician license under Title 58, Chapter 55;

(b) denial of application for reinstatement of licensure submitted pursuant to Subsection 58-1-308(5), except denial of an application for reinstatement of a contractor, plumber or electrician license under Title 58, Chapter 55;

(c) denial of application for reinstatement of licensure submitted pursuant to Subsection 58-1-308(6)(b), except denial of an application for reinstatement of a contractor, plumber or electrician license under Title 58, Chapter 55;

(d) special appeals board held in accordance with Section 58-1-402;

(e) declaratory order determining the applicability of statute, rule or order to specified circumstances, when determined by the director to be conducted as a formal adjudicative proceeding; and

(f) board of appeal held in accordance with Subsection [58-56-8(3)]15A-1-207(3).

(2) The following adjudicative proceedings initiated by a Notice of Agency Action are classified as formal adjudicative proceedings:

(a) disciplinary proceedings, except [disciplinary proceedings against a contractor, plumber or electrician licensed under Title 58, Chapter 55, which]those classified as informal proceedings under Section R156-46b-202 that result in the following sanctions:

(i) revocation of licensure;

(ii) suspension of licensure;

(iii) restricted licensure;

(iv) probationary licensure;

(v) issuance of a cease and desist order except when imposed by citation or by an order in a contested citation hearing;

(vi) administrative fine except when imposed by citation or by an order in a contested citation hearing; and

(vii) issuance of a public reprimand;

(b) unilateral modification of a disciplinary order; and

(c) termination of diversion agreements.

 

R156-46b-202. Informal Adjudicative Proceedings.

(1) The following adjudicative proceedings initiated by a request for agency action are classified as informal adjudicative proceedings:

(a) approval of application for initial licensure, renewal or reinstatement of licensure, or relicensure;

(b) denial of application for initial licensure or relicensure;

(c) denial of application for reinstatement of licensure submitted pursuant to Subsection 58-1-308(6)(a);

(d) denial of application for reinstatement of restricted, suspended, or probationary licensure during the term of the restriction, suspension, or probation;

(e) approval or denial of application for inactive or emeritus licensure status;

(f) board of appeal under Subsection [58-56-8(3)]15A-1-207(3);

(g) approval or denial of claims against the Residence Lien Recovery Fund created under Title 38, Chapter 11;

(h) payment of approved claims against the Residence Lien Recovery Fund described in Subparagraph (g);

(i) approval or denial of request to surrender licensure;

(j) approval or denial of request for entry into diversion program under Section 58-1-404;

(k) matters relating to diversion program;

(l) [contested] citation hearings held in accordance with [Subsection 58-55-503(4)(b)]citation authority established under Title 58;

(m) approval or denial of request for modification of disciplinary order;

(n) declaratory order determining the applicability of statute, rule or order to specified circumstances, when determined by the director to be conducted as an informal adjudicative proceeding;

(o) approval or denial of request for correction of procedural or clerical mistakes;

(p) approval or denial of request for correction of other than procedural or clerical mistakes;

(q) denial of application for renewal of:[ licensure as]

(i) a contractor, plumber, [or] electrician, or alarm company licensed under Title 58, Chapter 55;

(ii) a controlled substance licensee under Subsection 58-37-6(4)(g); and

(iii) a contract security company or armored car company for failure to replace a qualifier as required under Section 58-63-306;

(r) denial of application for reinstatement of:[ licensure as]

(i) a contractor, plumber, [or] electrician, or alarm company licensed under Title 58, Chapter 55;

(ii) a controlled substance licensee under Subsection 58-37-6(4)(g); and

(iii) a contract security company or armored car company for failure to replace a qualifier as required under Section 58-63-306;

(s) disciplinary proceedings against:

(i) a contractor, plumber, [or] electrician, or alarm company licensed under Title 58, Chapter 55;

(ii) a controlled substance licensee under Subsection 58-37-6(4)(g); and

(iii) a contract security company or armored car company for failure to replace a qualifier as required under Section 58-63-306; and

(t) all other requests for agency action permitted by statute or rule governing the Division not specifically classified as formal adjudicative proceedings in Subsection R156-46b-201(1).

(2) The following adjudicative proceedings initiated by a notice of agency action or request for agency action are classified as informal adjudicative proceedings:

(a) nondisciplinary proceeding which results in cancellation of licensure;

(b) disciplinary sanctions imposed in a memorandum of understanding with an applicant for licensure; and

(c) disciplinary proceedings against :

(i) a contractor, plumber, [or] electrician, or alarm company licensed under Title 58, Chapter 55 ;

(ii) a controlled substance licensee under Subsection 58-37-6(4)(g); and

(iii) a contract security company or armored car company for failure to replace a qualifier as required under Section 58-63-306.

 

KEY: administrative procedures, government hearings, occupational licensing

Date of Enactment or Last Substantive Amendment: [April 25, ]2011

Notice of Continuation: January 31, 2011

Authorizing, and Implemented or Interpreted Law: 63G-4-102(6); 58-1-106(1)(a)