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Utah Administrative Code (Current through November 1, 2019) |
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R651. Natural Resources, Parks and Recreation |
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R651-101. Adjudicative Proceedings |
| R651-101-1. Authority and Effective Date |
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This rule does not apply to an Agency action that is not governed by the Administrative Procedures Act and the laws of the State of Utah, including: (a) Subsection 63G-4-102, Administrative Procedures Act; and (b) Title 63G, Chapter 6, Utah Procurement Code. |
| R651-101-2. Definitions |
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These definitions are in addition to definitions in Section 63-46b-2. (a) "Adjudicative proceeding" means a Division action or proceeding that determines the legal rights, duties, privileges, immunities, or other legal interests of one or more identifiable persons, including all Division actions to grant, deny, revoke, suspend, modify, annul, withdraw, or amend the authority, right, permit or license; and judicial review of all such actions. Any matters not governed by Chapter 63-46b shall not be included within this definition. (b) "Board" means the Board of Parks and Recreation. (c) "Director" means the Director of the Division. (d) "Division" means the Division of Parks and Recreation and (as the context requires) its officers, employees, or agents. (e) "Party" means the Division, Director or other person commencing an adjudicative proceeding, all respondents, and all persons authorized by statute or agency rule to participate as parties in an adjudicative proceeding. (f) "Presiding officer" means the Director or an individual or body of individuals designated by the Director, rules or statute to conduct a particular adjudicative proceeding. (g) "Respondent" means any person against whom an adjudicative proceeding is initiated, whether by the Division, Director or any other person. The meaning of any other words used shall be as defined in Chapters 41-22, 63-11, 73-18, 73-18a or 73-18b; or any rules subsequently promulgated. |
| R651-101-3. Designation of Informal Proceedings |
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All adjudicative proceedings of the Division or Director are hereby designated as informal proceedings. |
| R651-101-4. Construction |
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(a) These rules shall be construed in accordance with the Utah Administrative Procedures Act, Chapter 63-46b, and supersede any conflicting provision of procedural rules promulgated by the Board or Division. (b) These rules shall be liberally construed to secure a just, speedy and economical determination of all issues presented to the Division or Director. (c) Deviation from Rules For good cause, and where no party will be prejudiced, the Division or Director may permit a deviation from these rules except where precluded by statute. (d) Computation of Time The time within which any act shall be done, as herein provided, shall be computed by excluding the first day and including the last, unless the last day is a Saturday, Sunday, or State holiday, and then it is excluded and the period runs until the end of the next day which is neither a Saturday, Sunday, or State holiday. |
| R651-101-5. Commencement of Proceedings |
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(a) Proceedings Commenced by the Division or Director. All informal adjudicative proceedings commenced by the Division or Director, shall be initiated as provided by applicable statute, Division rules, and Section 63-46b-3(2)(a). (b) Proceedings Commenced by Persons Other than the Division or Director. (1) All informal adjudicative proceedings commenced by persons other than the Division or Director shall be commenced by either completing prepared forms requesting agency action on file at the Division or, if no such forms are required to initiate a particular proceeding, by submitting in writing a request for agency action in accordance with Subsection 63-46b-3(2)(c). |
| R651-101-6. Pleadings |
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(a) Pleadings before the Presiding Officer for administrative hearings shall consist of a notice of agency action, a request for agency action, responses and motions together with affidavits, briefs, memoranda of law and fact in support thereof. (b) Motions may be submitted for the Presiding Officer's consideration on either written or oral argument and the filing of affidavits in support or contravention thereof may be permitted. Any written motion shall be accompanied by a short supporting memorandum of fact and law. (c) Amendments to Pleadings The Presiding Officer may allow pleadings to be amended or corrected, and defects which do not affect substantial rights of the parties may be disregarded; provided, however, that applications and other similar documents which are governed by specific statutory provisions shall be amended only as provided by statute. |
| R651-101-7. Hearings |
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(a) The Division, Director or a Presiding Officer shall hold a hearing if a hearing is required by statute, or if a hearing is permitted by statute and is requested by a party within 30 days of the commencement of the adjudicative proceeding. The Division, Director or a Presiding Officer may at their discretion initiate a hearing to determine matters within their authority. (b) Notice of the hearing will be served on all parties by regular mail at least ten (10) days prior to the hearing. (c) If no hearing is held in a particular adjudicative proceeding, the Presiding Officer shall within a reasonable time issue a decision pursuant to Subsection 63-46b-5(1)(i). |
| R651-101-8. Intervention |
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Intervention is prohibited except where a federal statute or rule requires that a state permit intervention. |
| R651-101-9. Pre-hearing Procedure |
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The Presiding Officer may, upon written notice to all parties of record, hold a pre-hearing conference for the purposes of formulating or simplifying the issues, obtaining admissions of fact and of documents which will avoid unnecessary proof, arranging for the exchange of proposed exhibits, and agreeing to such other matters as may expedite the orderly conduct of the proceedings or the settlement thereof. |
| R651-101-10. Continuance |
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If application is made to the Presiding Officer within a reasonable time prior to the date of hearing, upon proper notice to the other parties the Presiding Officer may grant a continuance of the hearing. |
| R651-101-11. Parties to a Hearing |
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(a) All persons defined as a "party" are entitled to participate in hearings before the Division or Director. (b) All parties shall be entitled to introduce evidence, examine and cross-examine witnesses, make arguments, and fully participate in the proceeding. |
| R651-101-12. Appearances and Representation |
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(a) Taking Appearances Parties shall enter their appearances at the beginning of a hearing or at such time as may be designated by the Presiding Officer by giving their names and addresses and stating their positions or interests in the proceeding. (b) Representation of Parties (1) An individual who is a party to a proceeding, or an officer designated by a partnership, corporation, association or governmental subdivision or agency which is a party to a proceeding, may represent his or its interest in the proceeding. (2) Any party may be represented by an attorney licensed to practice in the State of Utah. |
| R651-101-13. Failure to Appeal--Default |
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When a party or his authorized representative to a proceeding fails to appear at a hearing after due notice has been given, the Presiding Officer may continue the matter or may enter an order of default as provided by Section 63-46b-11 or may proceed to hear the matter in the absence of the defaulting party. |
| R651-101-14. Discovery, Testimony, Evidence and Argument |
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(a) Discovery is prohibited and the Division or Director may not issue subpoenas or other discovery orders. (b) All parties shall have access to information contained in the Division's files of public record and to all materials and information gathered in any investigation, to the extent permitted by law. (c) Testimony At the hearing, the Presiding Officer shall accept oral or written testimony from any party. Further, the Presiding Officer shall have the right to question and examine any witnesses called to present testimony at a hearing. The testimony and statements which are received at hearings may, but need not, be under oath. (d) Order of Presentation of Evidence Unless otherwise directed by the Presiding Officer at a hearing, the presentation of evidence shall be as follows: (1) When agency action is initiated by a person other than the Division or Director: (i) person initiating the action, (ii) respondent (if any), then (iii) Division staff. (2) When the Division or Director initiates agency action: (i) Division staff, (ii) respondent, then (ii) other interested parties (if any). During any hearing a party may offer rebuttal evidence. (e) Rules of Evidence A hearing may be conducted in an informal manner and without adherence to the rules of evidence required in judicial proceedings. Irrelevant, immaterial and unduly repetitious evidence shall be excluded. The weight to be given to evidence shall be determined by the Presiding Officer. Any relevant evidence may be admitted if it is the type of evidence commonly relied upon by prudent man in the conduct of their affairs. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible in a judicial proceeding. (f) Documentary Evidence Documentary evidence may be received in the form of copies or excerpts. However, upon request, parties shall be given an opportunity to compare the copy with the original. (g) Official Notice The Presiding Officer may take official notice of the following matters: (1) Rules, regulations, official reports, written decisions, orders or policies of the Board, Division or any other regulatory agency, state or federal; (2) Official documents introduced into the record by proper reference; provided, however such documents shall be made available so that the parties to the hearing may examine the documents and present rebuttal testimony if they so desire; (3) Matters of common knowledge and generally recognized technical or scientific facts within the Division's or Director's specialized knowledge and of any factual information which the Presiding Officer may have gathered from a field inspection. (h) Oral Argument and Memoranda Upon the conclusion of the taking of evidence, the Presiding Officer may, in his discretion, permit the parties to make oral arguments setting forth their positions and also to submit written memoranda within the time specified by the Presiding Officer. |
| R651-101-15. Record of Hearing |
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(a) A record of any hearing shall be recorded at the Division's expense. When a record is made by the Division, it shall be done by means of an automatic recording device. Any party, at his own expense, may have a reporter approved by the Division prepare a transcript from the record of the hearing. (b) If a party desires that the testimony be recorded by means of a court reporter, that party may employ a court reporter at his own expense and shall furnish a transcript of the testimony to the Division free of charge. This transcript shall be available at the Division office to any party to the hearing. |
| R651-101-16. Decisions and Orders |
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(a) Report and Order After the Presiding Officer has reached a final decision upon any adjudicative proceeding, he shall make and enter a signed order in writing that states the decision, the reasons for the decision, a notice of the rights of the parties to request Division or Director review reconsideration or judicial review, as appropriate, and notice of the time limits for filing a request for review, reconsideration or a court appeal. The order shall be based on the facts appearing in any of the Division's files and on the facts presented in evidence at any hearings. (b) Service of Decisions A copy of the Presiding Officer's order shall be promptly mailed by regular mail to each of the parties. |
| R651-101-17. Agency Review |
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Who may file (a) Where the agency action is taken by a Presiding Officer other than the Director, any aggrieved party may seek review of an order or decision, to the Director as the case may be, by following the procedures of Section 63-46b-12 and the following additional rules. Such review shall be considered a prerequisite for judicial review. The requests for review shall be to the Director, as provided by law. (b) Filing of Request for Review. (1) Requests for review of agency action within the statutory or regulatory purview of the Division shall be filed with the Director within ten days after the issuance of the order. (c) Action on the Request for Review (1) Where the request for review is to the Director, the request shall be reviewed by the Director. (2) Unless otherwise provided by law, all reviews shall be based on the record before the Presiding Officer. In order to assist in review, parties, upon request, may be allowed to file briefs or other documents explaining their position. (3) Parties shall not be entitled to a hearing on review, except as allowed by law; provided, however, that the Director may, in his discretion, grant a hearing for their benefit to assist them in the review. Notice of any hearing shall be mailed to all parties at least 10 days prior to the hearing. (d) Action on Review Within a reasonable time after the filing of any response, other filings, or after any hearing, the Director shall issue a written order on review which shall be signed by the Director and shall be mailed to each party. The order shall contain the items, findings, conclusions and notices more fully set forth in Subsection 63-46b-12(6)(c). |
| R651-101-18. Judicial Review |
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Any party aggrieved by final agency action may obtain judicial review of such action pursuant to sections 63-46b-14 and 15, except where judicial review is expressly prohibited by statute. A petition for judicial review shall be filed within 30 days after the date that the order constituting final agency action is issued. |
| R651-101-20. Declaratory Orders |
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An interested person may file a request for agency action requesting that the Division or Director issue a declaratory order determining the applicability of any statute, rule, or order within the primary jurisdiction of the Board, Division or Director pursuant to Section 63-46b-21. A request for a declaratory order shall set forth in detail the specific statute, rule, or order which is in question, the specific facts for which the order is requested, the manner in which the person making the request claims the statute, rule, or order may affect him, and the specific questions for which a declaratory order is requested. The Division or Director may in their discretion decline to issue declaratory orders where they deem the facts presented to be conjectural, or where the public interest would best be served by not issuing such order. |
| R651-101-21. Emergency Orders |
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The Division or Director may issue an order on an emergency basis without complying with these rules under the circumstances and procedures set forth in Section 63-46b-20. |