DAR File No. 39034

Commerce, Administration

Section R151-14-3

Adjudicative Proceedings

Notice of Proposed Rule

(Amendment)

DAR File No.: 39034
Filed: 12/29/2014 10:27:31 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This change is proposed in order to establish procedures for adjudications that are requested under Title 13, Chapter 14 et seq.

Summary of the rule or change:

Evidentiary hearings will be conducted to adjudicate matters brought under statutory sections that specifically call for hearings. Adjudications that are requested under other sections of the statute will be accomplished through briefing, without hearing or oral argument before the Board.

State statutory or constitutional authorization for this rule:

• Section 13-14-101 et seq.

Anticipated cost or savings to:

the state budget:

Adjudicating certain matters without convening the Board for hearing will relieve the state from paying the costs associated with hearings (i.e., staff time, Board member per diem, mileage, and parking).

local governments:

Local governments are not required to comply with or enforce the New Automobile Franchise Act rule. No fiscal impact to local government is anticipated.

small businesses:

Small businesses that request an adjudication in a matter that does not require hearing will save litigation costs that are typically associated with hearings (i.e., travel costs and witness fees).

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

Affected persons that request an adjudication in a matter that does not require hearing will save litigation costs that are typically associated with hearings (i.e., travel costs and witness fees).

Compliance costs for affected persons:

This filing establishes procedures for adjudicative proceedings. No specific compliance is required. No compliance costs are anticipated.

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

This filing establishes procedures for adjudicating certain matters without hearing. As stated in the rule analysis, businesses that are not required to go to hearing will avoid certain litigation costs. Such savings cannot be estimated.

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

Direct questions regarding this rule to:

• Jennie Jonsson at the above address, by phone at 801-530-6706, by FAX at 801-526-4387, or by Internet E-mail at jjonsson@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:

02/17/2015

This rule may become effective on:

02/24/2015

Authorized by:

Thomas Brady, Deputy Director

R151. Commerce, Administration.

R151-14. New Automobile Franchise Act Rule.

R151-14-3. Adjudicative Proceedings.

(1) Informal Proceeding. Adjudicative proceedings before the Board and the Executive Director are designated as informal adjudicative proceedings.

(2) Applicable Rules. In addition to Title 63G, Chapter 4, Utah Administrative Procedures Act, any adjudicative proceedings under the New Automobile Franchise Act shall be conducted in accordance with this rule and with the Department of Commerce Administrative Procedures Act Rule, R151-4.

(3) Procedure for Substitution of Presiding Officer. In accordance with Section 63G-4-103(1)(h), the Executive Director of the Department may upon his/her own motion substitute an administrative law judge as the presiding officer to conduct certain aspects of the adjudicative proceedings before the Board if he/she determines that fairness to the parties would not be compromised by such substitution. The substitution order shall give any party who feels that such substitution would compromise fairness an opportunity to request the Executive Director to reconsider the substitution by submitting written objections and supporting arguments to the Executive Director. Upon reconsideration, the Executive Director may leave the order intact or make such other orders as he/she deems appropriate.

(4) Submissions. Except as otherwise expressly required or permitted in this Rule or in the New Automobile Franchise Act, all correspondence or other submissions shall be directed to the Chair of the Utah Motor Vehicle Franchise Advisory Board at the Utah Department of Commerce.

(5) Form of Pleadings. A notice of agency action by the agency shall comply with the requirements of the Utah Administrative Procedures Act, Section 63G-4-201(2). A request to commence an adjudicative proceeding pursuant to Section 13-14-107(1), shall be a pleading headed "BEFORE THE DEPARTMENT OF COMMERCE, UTAH MOTOR VEHICLE FRANCHISE ADVISORY BOARD" and captioned "Request for Agency Action." The pleading shall substantially comply with the Utah Administrative Procedures Act, Section 63G-4-201(3), and the Department of Commerce Administrative Procedures Act Rule, R151-4-201 to -205.

(6) Answer. If the presiding officer determines that an answer to any notice of agency action or request for agency action would be helpful to the proceedings, the presiding officer may order a party to the proceedings to file an answer.

(7)(a) An evidentiary hearing before the Board shall be held for a matter brought under:

(i) Section 13-14-202 Sale or transfer of ownership;

(ii) Section 13-14-203 Succession to franchise;

(iii) Section 13-14-301 Termination or noncontinuance of franchise; or

(iv) Section 13-14-302 Issuance of additional franchises -- Relocation of existing franchisees.

(b) An adjudication requested under any section not listed in this Subsection (7)(a) shall be conducted without hearing, as follows:

(i) Parties to the action may submit to the Executive Director or the Executive Director's designee briefs, memoranda, exhibits, expert opinions, and affidavits in support of their positions.

(ii) If it appears to the Executive Director or the Executive Director's designee that the matter raises issues of fact, the Board shall convene to act as the fact-finder.

(iii) A meeting of the Board that is convened pursuant to this Subsection (7)(b)(ii) may be live or electronic, according to the sole discretion of the Executive Director or the Executive Director's designee.

(iv) Parties may appear at a meeting of the Board that is convened pursuant to this Subsection (7)(b)(ii) and may answer questions of the Board. Parties may not engage in oral argument.

(v) Board deliberations shall be conducted according to Utah Administrative Code Section R151-4-703(2).

(8)(a) Pursuant to Utah Code Ann. Section 63G-4-203(1), discovery is prohibited, but the presiding officer may issue subpoenas requiring the appearance of witnesses at an evidentiary hearing before the Board or the production of documents.

(b) Any subpoena issued shall conform with the requirements set forth in Utah Admin Code Section R151-4-513.

(c) The party requesting a subpoena shall comply with the requirements set forth in Section R151-4-712.

([7]9) Memoranda. If the presiding officer determines that [prehearing briefs]written arguments would be helpful to the proceedings, the presiding officer may order the parties to submit memoranda in accordance with any scheduling order entered by the presiding officer.

([8]10) GRAMA. Any request for records of the proceedings before the Board and the Executive Director will be governed by GRAMA (Government Records Access and Management Act), Utah Code Ann. Section 63G-2-101 et seq. Any schedule of records classifications maintained by the Department shall be made available to the parties upon request.

 

KEY: adjudicative proceedings, automobiles, motor vehicles, franchises[, recreational vehicles]

Date of Enactment or Last Substantive Amendment: [May 2, 2006]2015

Notice of Continuation: May 2, 2011

Authorizing, and Implemented or Interpreted Law: 13-14-101 et seq.