No. 31804 (Amendment): R156-46b. Division Utah Administrative Procedures Act Rules

DAR File No.: 31804
Filed: 08/11/2008, 09:23
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The Division and the Construction Services Commission are proposing amendments to change certain limited formal adjudicative proceedings to informal adjudicative proceedings with respect to licensed contractors who fail to replace a qualifier within the 60 days required by statute or who fail to maintain liability insurance as required by statute. Many formal adjudicative proceedings with the potential result of revocation of license may involve substantial evidence presentation and weighing of evidence to determine if the case warrants the sanction of revocation of license. However, these two types of cases are all very simple fact patterns. That being the licensed contractor either has liability insurance or not or the contractor either has a qualifier on staff or not. The governing statute, Title 58, Chapter 55, provides contractors are obligated to maintain liability insurance and a qualifier. Division Bureau Managers are now successfully handling much more complicated factual reviews in informal adjudicative proceedings of new applications which result in denial of licensure for unqualified applicants than these cases present. Therefore, these proposed changes will not result in any detrimental effect on licensed contractors who are able to demonstrate that they are qualified and will not necessarily waste Division resources for a formal adjudicative proceeding when the case does not need that level of review and expense.

Summary of the rule or change:

Throughout the rule, the term "rules" has been replaced with "rule" where applicable. In Sections R156-46b-201 and R156-46b-202, amendments are proposed to change the requirement from a formal adjudicative proceeding to an informal adjudicative proceeding for contractors who fail to replace a qualifier within the 60 days required by statute or who fail to maintain liability insurance as required by statute.

State statutory or constitutional authorization for this rule:

Subsections 63G-4-102(6) and 58-1-106(1)(a)

Anticipated cost or savings to:

the state budget:

The Division anticipates no costs to the state budget as a result of these proposed amendments. The proposed amendments will allow the Division to more efficiently handle these two types of cases with respect to contractors in an informal setting without unnecessarily devoting resources to formal proceedings. Any savings realized will be absorbed in the Division's existing budget and will allow these resources to be directed to other functions needing attention.

local governments:

The proposed amendments do not apply to local governments. The proposed amendments only apply to licensed contractors who fail to replace a qualifier within the 60 days required by statute or who fail to maintain liability insurance as required by statute.

small businesses and persons other than businesses:

The proposed amendments only apply to licensed contractors who fail to replace a qualifier within the 60 days required by statute or who fail to maintain liability insurance as required by statute. Some of the licensed contractors who fail to comply with either of these two requirements may qualify as a "small business". No costs will be incurred by licensed contractors if they comply with all statutory requirements affecting their profession. The Division anticipates licensed contractors who fail to comply with either of these two requirements may realize a savings in time as a result of changing these two proceedings from formal to informal.

Compliance costs for affected persons:

The proposed amendments only apply to licensed contractors who fail to replace a qualifier within the 60 days required by statute or who fail to maintain liability insurance as required by statute. No costs will be incurred by licensed contractors if they comply with all statutory requirements affecting their profession. The Division anticipates licensed contractors who fail to comply with either of these two requirements may realize a savings in time as a result of changing these two proceedings from formal to informal.

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

This rule filing changes the designation of license revocation proceedings for failure to maintain a qualifier and failure to maintain liability insurance from formal adjudicative proceedings to informal adjudicative proceedings. It is expected that this change would result in a cost savings to the industry, as well as to the Division. No fiscal impact to other businesses is anticipated by this change in administrative procedures. 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:

Dan S. Jones at the above address, by phone at 801-530-6720, by FAX at 801-530-6511, or by Internet E-mail at [e-mail]

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:

10/01/2008

Interested persons may attend a public hearing regarding this rule:

9/24/2008 at 9:00 AM, Heber Wells Bldg, 160 E 300 S, Conference Room 474 (fourth floor), Salt Lake CIty, UT

This rule may become effective on:

10/08/2008

Authorized by:

F. David Stanley, Director

RULE TEXT

R156. Commerce, Occupational and Professional Licensing.

R156-46b. Division Utah Administrative Procedures Act Rule[s].

R156-46b-101. Title.

Th[ese]is rule[s are] is known as the "Division Utah Administrative Procedures Act Rule[s]."

 

R156-46b-103. Authority - Purpose.

Th[ese]is rule[s are] is adopted by the division under the authority of Title 63G, Chapter 4, Subsection 58-1-108(1), and Subsection 58-1-106(1)(a). The purposes of th[ese]is rule[s] 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 63G 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 nonpaying party involved in the claim because the nonpaying party filed bankruptcy;

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

(g) 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

(h) board of appeal held in accordance with Subsection 58-56-8(3).

(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, except a proceeding requesting revocation of licensure for failure to maintain a qualifier under Subsections 58-55-304(6) and (7) or a proceeding requesting revocation of licensure for failure to maintain liability insurance under Subsection 58-55-302(2)(b);

(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; and

(b) 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 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);

(g) 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 nonpaying party involved in the claim because the nonpaying party filed bankruptcy;

(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 hearing held in accordance with Subsection 58-55-503(4)(b);

(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; and

(q) 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) disciplinary proceeding seeking exclusively the issuance of a private reprimand;

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

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

(d) termination of diversion agreements;

(e) a proceeding requesting revocation of licensure for failure to maintain a qualifier under Subsections 58-55-304(6) and (7); and

(f) a proceeding requesting revocation of licensure for failure to maintain liability insurance under Subsection 58-55-302(2)(b).

 

KEY: administrative procedures, government hearings, occupational licensing

Date of Enactment or Last Substantive Amendment: [November 2, 2004]2008

Notice of Continuation: April 25, 2006

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