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[Utah Administrative Code Table of Contents]
[Title R156. Table of Contents]
R156-46b-101 Title.
These rules are known as the "Division Utah Administrative Procedures Act Rules."
R156-46b-103 Authority - Purpose.
These rules are adopted by the division under the authority of Title 63, Chapter 46b, Subsection 58-1-108 (1), and Subsection 58-1-106 (1). The purposes of these rules include:
(a) classifying division adjudicative proceedings;
(b) clarifying the identity of presiding officers at division adjudicative proceedings; and
(c) defining procedures for division adjudicative proceedings which are consistent with the requirements of Titles 58 and 63 and Rule R151-46b.
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;
(b) denial of application for reinstatement of licensure submitted pursuant to Subsection 58-1-308 (5);
(c) denial of application for reinstatement of licensure submitted pursuant to Subsection 58-1-308 (6)(b);
(d) special appeals board held in accordance with Section 58-1-402 ;
(e) approval or denial of claims against the Residence Lien Recovery Fund created under Title 38, Chapter 11, in which the claimant is precluded from obtaining the required civil judgment or administrative order against the original contractor involved in the claim because the original contractor filed bankruptcy; and
(f) 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.
(2) The following adjudicative proceedings initiated by a Notice of Agency Action are classified as formal adjudicative proceedings:
(a) disciplinary proceedings which 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) nondisciplinary proceedings which result in cancellation of licensure; and
(c) unilateral modification of a disciplinary order.
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 or denial of application to take a licensure examination;
(b) disqualification of examination results for cheating on examination;
(c) request for rescoring of examination;
(d) approval of application for initial licensure, renewal or reinstatement of licensure, or relicensure;
(e) denial of application for initial licensure or relicensure;
(f) denial of application for reinstatement of licensure submitted pursuant to Subsection 58-1-308 (6)(a);
(g) denial of application for reinstatement of restricted, suspended, or probationary licensure during the term of the restriction, suspension, or probation;
(h) determination of monetary limit under Section 58-55-21[Ed.Note: Apparent Utah Code Ref. not found.] , in conjunction with approval of application for initial licensure or relicensure, or in conjunction with an application for increased monetary limit;
(i) approval or denial of application for inactive or emeritus licensure status;
(j) approval or denial of claims against the Residence Lien Recovery Fund created under Title 38, Chapter 11, except those in which the claimant is precluded from obtaining the required civil judgment or administrative order against the original contractor involved in the claim because the original contractor filed bankruptcy;
(k) approval or denial of request to surrender licensure;
(l) approval or denial of request for entry into diversion program under Section 58-1-404 ;
(m) matters relating to diversion program;
(n) contested citation hearing held in accordance with Subsection 58-55-13[Ed.Note: Apparent Utah Code Ref. not found.] (4);
(o) board of appeal held in accordance with Subsection 58-56-8 (3);
(p) approval or denial of request for modification of disciplinary order;
(q) informal advice determining the applicability of statute, rule or order to specified circumstances;
(r) 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;
(s) approval or denial of request for correction of procedural or clerical mistakes;
(t) approval or denial of request for correction of other than procedural or clerical mistakes; and
(u) all other requests for agency action not specifically classified as formal adjudicative proceedings in Subsection R156-46b-201(1).
(2) A disciplinary proceeding initiated by a Notice of Agency Action issued pursuant to a Petition seeking exclusively the issuance of a private reprimand is classified as an informal adjudicative proceeding.
R156-46b-301 Designation.
The presiding officers for division adjudicative proceedings are as defined at Subsection 63-46b-2 (h) and as specifically established by Section 58-1-109 and by Section R156-1-109.
R156-46b-401 In General.
(1) The procedures for formal division adjudicative proceedings are set forth in Sections 63-46b-6 through 63-46b-10 , Rule R151-46b-1, and this rule.
(2) The procedures for informal division adjudicative proceedings are set forth in Section 63-46b-5 , Rule R151-46b-1, and this rule.
R156-46b-402 Default Procedures.
(1) When a motion for entry of default is filed on the failure to file a response in a formal adjudicative proceeding, the motion shall be supported by an affidavit which sets forth those facts relative to service of the notice of agency action and whether that notice was received. The Division shall serve notice of any hearing on a motion for entry of default unless Respondent has not received the notice of agency action and no reasonable likelihood exists Respondent would receive notice of the hearing on the pending motion.
(2) If the respondent appears for the hearing on a motion to enter default, the administrative law judge shall inquire as to respondent's failure to have filed a response. For good cause shown, the administrative law judge may allow the respondent a reasonable time to file a response and may further provide for the entry of respondent's default without notice if a response is not accordingly filed. The administrative law judge may also enter a further scheduling order as may be warranted.
(3) If the respondent fails to appear for the hearing on the motion to enter default, the respondent's default shall be entered. Further proceedings shall then be conducted, whereby the division shall submit a proffer of evidence as to the allegations set forth in the petition. Based thereon, the administrative law judge shall submit findings of fact, conclusions of law and a recommended order to the director for review and action.
R156-46b-403 Evidentiary Hearings in Informal Adjudicative Proceedings.
(1) Evidentiary hearings are not required for informal division adjudicative proceedings unless required by statute or rule, or permitted by rule and requested by a party within the time prescribed by rule.
(2) Unless otherwise provided, a request for an evidentiary hearing permitted by rule must be submitted in writing no later than 20 days following the issuance of the notice of agency action if the proceeding was initiated by the division, or together with the request for agency action if the proceeding was not initiated by the division.
(3) Evidentiary hearings are required for the following informal proceedings:
(a) R156-46b-202(1)(n), contested citation hearing held in accordance with Subsection 58-55-13[Ed.Note: Apparent Utah Code Ref. not found.] (4); and
(b) R156-46b-202(1)(o), board of appeal held in accordance with Subsection 58-56-8 (3).
(4) Evidentiary hearings are permitted for the following informal proceedings:
(a) R156-46b-202(1)(b), disqualification of examination results for cheating upon an examination;
(b) R156-46b-202(1)(m), matters relating to a diversion program; and
(c) R156-46b-202(2), issuance of a private reprimand.
(5) Unless otherwise agreed by the parties, no evidentiary hearing shall be held in an informal adjudicative proceeding unless timely notice of the hearing has been served upon the parties as required by Subsection 63-46b-5 (1)(d). Timely notice means service of a Notice of Hearing upon all parties not later than ten days prior to any scheduled evidentiary hearing.
(6) Parties shall be permitted to testify, present evidence, and comment on the issues at an evidentiary hearing in a division informal adjudicative proceeding.
R156-46b-404 Orders in Informal Adjudicative Proceedings.
(1) Orders issued in division informal adjudicative proceedings shall comply with Subsection 63-46b-5 (1)(i).
(2) Issuance of a license or approval of related requests in response to a request for agency action is sufficient to satisfy the requirements of Subsection 63-46b-5 (1)(i).
(3) Issuance of a letter denying a license or related requests is sufficient to satisfy the requirements of Subsection 63-46b-5 (1)(i). The letter must explain the reasons for the denial and the rights of the parties to seek agency review, including the time limits for requesting review.
(4) Unless otherwise specified by the director, the fact finder who serves as the presiding officer at an evidentiary hearing convened in division informal adjudicative proceedings shall issue a final order.
(5) Orders issued in division informal adjudicative proceedings in which an evidentiary hearing is convened shall comply with the requirements of Subsection 63-46b-10 (1).
R156-46b-405 Informal Agency Advice.
(1) The division may issue an informal guidance letter in response to a request for advice unless the request specifically seeks a declaratory order.
(2) A notice shall appear in the informal guidance letter notifying the subject of the letter that the letter is an informal guidance letter only and is not intended as a formal declaratory order. The notice shall also provide the citation where the requirements which govern declaratory orders are found.
[Indexing]
KEY: administrative procedure, government hearings, occupational
licensing
1994
[Editor's note: Below are references
to the Utah Code that are listed by the
agency making this rule as authority
for the rule.]
63-46b-1
(6)
58-1-106
(1)
Notice of Continuation October 22, 1996
