Commerce, Occupational and Professional Licensing

Rule R156-46b

Division Utah Administrative Procedures Act Rule

Notice of Proposed Rule

(Amendment)

DAR File No.: 36630
Filed: 08/06/2012 03:32:02 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this filing is to reclassify certain Division of Occupational and Professional Licensing (DOPL) adjudicative proceedings from formal to informal proceedings and to make technical changes. The Division has considered the criteria for classifying adjudicative proceedings as informal as set forth in Section 63G-4-202 and has determined these proposed changes meet that statutory criteria.

Summary of the rule or change:

In Section R156-46b-201, the filing changes this section by deleting existing Subsections (1)(a) through (c) thereby deleting the classification of denial of application for renewal and reinstatement of licensure adjudicative proceedings as formal proceedings, and by renumbering accordingly. Technical amendments are also made to Subsections (2)(v) and (vi). In Section R156-46b-202, the filing changes Subsections (1)(c) and (d) by deleting (d) and classifying all denials of renewal and reinstatement of licensure adjudicative proceedings as informal proceedings, and renumbering accordingly. This filing also changes existing Subsection (2)(b) by deleting it and moving it to Subsection (1)(s) to achieve greater clarity, and by renumbering accordingly. Finally, this adds new Subsections (2)(c) and (2)(d) to reclassify as informal disciplinary proceedings first, proceedings initiated by a notice of agency action and order to show cause concerning violations of an order governing a license and second, disciplinary proceedings initiated by a notice of agency action in which the allegations of misconduct are limited to one of more of Subsection 58-1-501(2)(c) or (d), or Subsections R156-1-501(1) through (5). Section R156-46b-402 is added to provide that a written response in informal adjudicative proceedings initiated by a Notice of Agency Action may, as set forth in a Notice of Agency Action, be required to be filed within 30 days of the mailing date of the Notice of Agency Action or other date specified in the Notice of Agency Action.

State statutory or constitutional authorization for this rule:

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

Anticipated cost or savings to:

the state budget:

The proposed changes will bring greater efficiency, timeliness, and capacity to DOPL by reclassifying the described formal adjudicative proceedings to informal proceedings. The cost savings of the efficiencies cannot be estimated but they will hopefully help address the consistent increases in the number of licensees regulated by the Division.

local governments:

The proposed changes do not affect local government and thus will not have any cost or savings impact upon local governments.

small businesses:

The proposed changes should not affect small business except where we license small businesses or when small businesses employ individuals licensed by the Division. To the limited extent to which the changes impact small business, they should be cost savings as well as greater efficiency and timeliness to most adjudicative proceedings in which small business or employees of small business are involved. However, these cost savings cannot be estimated by the Division due to a wide range of circumstances.

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

The proposed changes should better protect public health, safety and welfare through the greater efficiency, timeliness and capacity they bring to the Division. This will equate to economic savings to those who avoid being negatively impacted by a licensee engaged in unprofessional or unlawful conduct who would otherwise remain in practice for a much longer period of time during cumbersome formal adjudicative proceedings. The economic impact of these savings cannot be estimated by the Division.

Compliance costs for affected persons:

The proposed changes should bring cost savings as well are greater efficiency and timeliness to most adjudicative proceedings in which licensees or applicants for licensure are involved. The cost savings cannot be estimated by the Division due to a wide range of circumstances.

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
HEBER M WELLS BLDG
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:

10/01/2012

This rule may become effective on:

10/08/2012

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]a) special appeals board held in accordance with Section 58-1-402;

([e]b) 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]c) board of appeal held in accordance with Subsection 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 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]through a citation[ or by an order in a contested citation hearing];

(vi) administrative fine except when imposed [by]through a 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 renewal or 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]d) approval or denial of application for inactive or emeritus licensure status;

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

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

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

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

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

([k]j) matters relating to diversion program;

([l]k) citation hearings held in accordance with citation authority established under Title 58;

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

([n]m) 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]n) approval or denial of request for correction of procedural or clerical mistakes;

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

([q]p) denial of application for renewal of:

(i) a contractor, plumber, 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]q) denial of application for reinstatement of:

(i) a contractor, plumber, 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]r) disciplinary proceedings against:

(i) a contractor, plumber, 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]

(s) disciplinary sanctions imposed in a memorandum of understanding with an applicant for licensure; 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, 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.

(c) disciplinary proceedings initiated by a notice of agency action and order to show cause concerning violations of an order governing a license;

(d) disciplinary proceedings initiated by a notice of agency action in which the allegations of misconduct are limited to one or more of the following:

(i) Subsection 58-1-501(2)(c) or (d); or

(ii) Subsections R156-1-501(1) through (5).

 

R156-46b-402. Response to Notice of Agency Action in an Informal Proceeding.

A written response or answer to the allegations in a notice of agency action or incorporated by reference into a notice of agency action that initiates an informal adjudicative proceeding may, as set forth in a notice of agency action, be required to be filed within 30 days of the mailing date of the notice of agency action or other date specified in the notice of agency action.

 

KEY: administrative procedures, government hearings, occupational licensing

Date of Enactment or Last Substantive Amendment: [July 26, 2011]2012

Notice of Continuation: January 31, 2011

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