DAR File No. 39144

Commerce, Administration

Section R151-4-109

Extension of Time and Continuance of Hearing

Notice of Proposed Rule

(Amendment)

DAR File No.: 39144
Filed: 02/17/2015 07:15:15 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this amendment is to provide additional flexibility when an extension of time or continuance of hearing is warranted.

Summary of the rule or change:

A hearing may be continued to accommodate the schedule of the board or commission that is designated to act as the fact-finder. If other extenuating circumstances exist to justify a continuance, the presiding officer may file a request with the Executive Director.

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:

This amendment introduces some flexibility into an existing rule governing the time frame in which an administrative proceeding is required to be concluded. No fiscal impact to the state budget is anticipated.

local governments:

Local governments are not required to comply with or enforce the rules governing administrative proceedings before the Department of Commerce. No fiscal impact to local government is anticipated.

small businesses:

Small businesses will benefit from having more flexibility in the scheduling of hearings. However, no fiscal impact to small businesses is anticipated.

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

Affected persons will benefit from having more flexibility in the scheduling of hearings. However, no fiscal impact is anticipated.

Compliance costs for affected persons:

Affected persons will benefit from having more flexibility in the scheduling of hearings. However, no compliance costs will result.

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

As stated in the rule analysis, this amendment allows a presiding officer to schedule an administrative hearing according to the availability of the board or commission that is designated to act as the finder of fact. No fiscal impact to businesses is anticipated.

Francine A. Giani, Executive Director

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

03/31/2015

This rule may become effective on:

04/07/2015

Authorized by:

Thomas Brady, Deputy Director

R151. Commerce, Administration.

R151-4. Department of Commerce Administrative Procedures Act Rule.

R151-4-109. Extension of Time and Continuance of Hearing.

(1) When ruling on a motion or request for extension of time or continuance of a hearing, the presiding officer shall consider:

(a) whether there is good cause for granting the extension or continuance;

(b) the number of extensions or continuances the requesting party has already received;

(c) whether the extension or continuance will work a significant hardship upon the other party;

(d) whether the extension or continuance will be prejudicial to the health, safety or welfare of the public; and

(e) whether the other party objects to the extension or continuance.

(2)(a) Except as provided in R151-4-109(2)(b), 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 on which:

(i) the notice of agency action was issued; or

(ii) the initial decision with respect to a request for agency action was issued.

(b) Notwithstanding R151-4-109(2)(a), an extension of a time period or a continuance may exceed the time restriction in R151-4-109(2)(a) only if:

(i)(A) 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;

(B) counsel for a party withdraws shortly before the final hearing, unless the presiding officer finds the withdrawal was for the purpose of delaying the hearing, in which case the hearing will go forward with or without counsel;[ or]

(C) a parallel criminal proceeding or investigation exists based on facts at issue in the administrative proceeding, in which case the continuance must address the expiration of the continuance upon the conclusion of the criminal proceeding; or

(D) the board or commission designated to act as the fact-finder at hearing is unavailable to meet on a date that:

(I) allows the parties a reasonable period of time for discovery, motion practice, or hearing preparation; and

(II) falls within the 240-day deadline for resolution; and

(ii) the presiding officer finds that injustice would result from failing to grant the extension or continuance.

(c)(i) If the presiding officer considers that extenuating circumstances not contemplated in R151-4-109(2)(b) justify a continuance beyond the 240-day deadline, the presiding officer shall file a written request for continuance with the Executive Director.

(ii) A party may not directly petition the Executive Director for a continuance.

(iii) The Executive Director's decision on the presiding officer's request for continuance shall be issued on an interlocutory basis, not subject to a request for reconsideration or judicial review until after a final order on the merits is issued.

[(c)](d) The failure to conclude a hearing within the required time period is not a basis for dismissal.

(3) The presiding officer may not grant an extension of time or continuance that is not authorized by statute or rule.

 

KEY: administrative procedures, adjudicative proceedings, government hearings

Date of Enactment or Last Substantive Amendment: [August 21, 2012]2015

Authorizing, and Implemented or Interpreted Law: 13-1-6; 63G-4-102(6)