ARTICLE 4 RULE MAKING AND LICENSING PROCEDURES BY STATE AGENCIES

• Jurisdiction: Colorado

ARTICLE 4 RULE-MAKING AND LICENSING PROCEDURES BY STATE AGENCIES

Cross references: For limitation on licensing and revocation of licenses, see Graeb v. State Board of Medical Examiners, 55 Colo. 523, 139 P. 1099; Chenowith v. State Board of Medical Examiners, 57 Colo. 74, 141 P. 132 (1914); Sapero v. State Board of Medical Examiners, 90 Colo. 568, 11 P.2d 555 (1932); Paine v. People, 106 Colo. 258, 103 P.2d 686 (1940); Prouty v. Heron, 127 Colo. 168, 255 P.2d 755 (1953); Colorado State Board of Nurse Examiners v. Hohu, 129 Colo. 195, 268 P.2d 401 (1954); In re Hearings Concerning Canon 35, 132 Colo. 591, 296 P.2d 465 (1956); and Geer v. Stathopulos, 135 Colo. 146, 309 P.2d 606 (1957). For the distinction between "standards" which must be enacted by the general assembly and rules and regulations which can be enacted by the department, see cases annotated under article III of the Colorado Constitution; Schechter Poultry Corp. v. U.S., 295 U.S. 495, 55 S. Ct. 837, 79 L. Ed. 1570 (1935); Prouty v. Heron, 127 Colo. 168, 255 P.2d 755 (1953); and Casey v. People, 139 Colo. 89, 336 P.2d 308 (1959); for article, "Administrative Rule Review: Procedures and Oversight by the Colorado General Assembly", see 33 Colo. Law. 83 (June 2004).

Law reviews: For article, "The Colorado Administrative Procedure Act: Exclusive Demanding Reform", see 44 Den. L.J. 42 (1967); for comment on the Colorado Administrative Procedure Act and its construction, see 51 Den. L.J. 275 (1974); for comment, "Pre-Enforcement Judicial Review: CF Steel Corp. v. Colorado Air Pollution Control Commission", see 58 Den. L.J. 693 (1981); for article, "Administrative Law", which discusses Tenth Circuit decisions dealing with questions of administrative law, see 61 Den. L.J. 109 (1984); for article, "Administrative Law", which discusses Tenth Circuit decisions dealing with questions of administrative law, see 62 Den. U. L. Rev. 9 (1985); for "Administrative Law", which discusses Tenth Circuit decisions dealing with questions of administrative law, see 63 Den. U. L. Rev. 165 (1986); for article, "A Practitioner's Guide to the Colorado Air Quality Control Commission", see 16 Colo. Law. 1405 (1987); for article, "General Principles of the Colorado Administrative Procedure Act", see 16 Colo. Law. 1983 (1987); for article, "Prosecuting an Appeal from a Decision of the Colorado Public Utilities Commission", see 16 Colo. Law. 2163 (1987); for article, "Practicing Before the Colorado Civil Rights Commission", see 17 Colo. Law. 259 (1988); for article, "Administrative Law", which discusses Tenth Circuit decisions dealing with questions of administrative law, see 65 Den. U. L. Rev. 357 (1988); for a discussion of Tenth Circuit decisions dealing with questions of administrative law, see 66 Den. U. L. Rev. 667 (1989); for a discussion of Tenth Circuit decisions dealing with questions of administrative law, see 67 Den. U. L. Rev. 603 (1990); for article, "Parallel Criminal and Administrative Licensure Proceedings", see 20 Colo. Law. 213 (1991); for article, "Legislative Sunset of Administrative Rules", see 21 Colo. Law. 2191 (1992); for article, "Representing a Professional Licensee in A Regulatory Board Investigation", see 21 Colo. Law. 1397 (1992).

PART 1 GENERAL

24-4-105. Hearings and determinations -repeal. (1) In order to assure that all parties to any agency adjudicatory proceeding are accorded due process of law, the provisions of this section shall be applicable.

(2)(a) In any such proceeding in which an opportunity for agency adjudicatory hearing is required under the state constitution or by this or any other statute, the parties are entitled to a hearing and decision in conformity with this section. Any person entitled to notice of a hearing shall be given timely notice of the time, place, and nature thereof, the legal authority and jurisdiction under which it is to be held, and the matters of fact and law asserted. Unless otherwise provided by law, such notice shall be served personally or by mailing by first-class mail to the last address furnished the agency by the person to be notified at least thirty days prior to the hearing. In fixing the time and place for a hearing, due regard shall be had for the convenience and necessity of the parties and their representatives.

(b) Any person given such notice shall file a written answer thirty days after the service or mailing of such notice. If such person fails to answer, any agency, administrative law judge, or hearing officer, upon motion, may enter a default. For good cause shown, the entry of default may be set aside within ten days after the date of such entry.

(c) A person who may be affected or aggrieved by agency action shall be admitted as a party to the proceeding upon his filing with the agency a written request therefor, setting forth a brief and plain statement of the facts which entitle him to be admitted and the matters which he claims should be decided. Nothing in this subsection (2) shall prevent an agency from admitting any person or agency as a party to any agency proceeding for limited purposes.

(3) At a hearing only one of the following may preside: The agency, an administrative law judge from the office of administrative courts, or, if otherwise authorized by law, a hearing officer who if authorized by law may be a member of the body which comprises the agency. Upon the filing in good faith by a party of a timely and sufficient affidavit of personal bias of an administrative law judge or a hearing officer or a member of the agency or the agency, the administrative law judge, hearing officer, or agency shall forthwith rule upon the allegations in such affidavit as part of the record in the case. An administrative law judge or a hearing officer may at any time withdraw if he or she deems himself or herself disqualified or for any other good reason in which case another administrative law judge or hearing officer may be assigned to continue the case, and he or she shall do so in such manner that no substantial prejudice to any party results therefrom. An agency or a member of an agency may withdraw for any like reason and in like manner, unless his or her withdrawal makes it impossible for the agency to render a decision.

(4)(a) Any agency conducting a hearing, any administrative law judge, and any hearing officer shall have authority to: Administer oaths and affirmations; sign and issue subpoenas; rule upon offers of proof and receive evidence; dispose of motions relating to the discovery and production of relevant documents and things for inspection, copying, or photographing; regulate the course of the hearing, set the time and place for continued hearings, and fix the time for the filing of briefs and other documents; direct the parties to appear and confer to consider the simplification of the issues, admissions of fact or of documents to avoid unnecessary proof, and limitation of the number of expert witnesses; issue appropriate orders that shall control the subsequent course of the proceedings; dispose of motions to dismiss for lack of agency jurisdiction over the subject matter or parties or for any other ground; dispose of motions to amend or to dismiss without prejudice applications and other pleadings; dispose of motions to intervene, procedural requests, or similar matters; reprimand or exclude from the hearing any person for any improper or indecorous conduct in his or her presence; award attorney fees for abuses of discovery procedures or as otherwise provided under the Colorado rules of civil procedure; and take any other action authorized by agency rule consistent with this article 4 or in accordance, to the extent practicable, with the procedure in the district courts. All parties to the proceeding shall also have the right to cross-examine witnesses who testify at the proceeding. In the event more than one person engages in the conduct of a hearing, such persons shall designate one of their number to perform such of the above functions as can best be performed by one person only, and thereafter such person only shall perform those functions that are assigned to him or her by the several persons conducting such hearing.

(b)(I)(A) The general assembly hereby finds that the mediation process generally saves the state and the licensee time and money. Mediation takes much less time than moving a case through agency proceedings and judicial review. These cases typically take months or years to resolve, but mediation typically achieves a resolution in a matter of hours. Taking less time means expending less money on hourly fees and costs. This benefits both the agency and the licensee, and because the result is attained by the parties working together, compliance with the mediated agreement is usually high. This further reduces costs because agencies do not have to pay an attorney or investigators to force compliance.

(B) The general assembly hereby declares that, in order to save time and money, the policy of Colorado is to use mediation whenever appropriate to settle disputes between agencies and licensees.

(II) Upon petition of the agency or licensee after the licensee has received the notice of hearing under subsection (2)(a) of this section, the hearing officer or administrative law judge shall order mediation between the agency and the licensee unless the license was summarily suspended in accordance with section 24-4-104 (4). When mediation is ordered, the agency shall:

(A) Assign a person with authority to make prehearing decisions concerning disposition of the matter to be present during meetings related to settlement communications or mediation communications and to be included in any material settlement communications with the licensee or the licensee's representative over the matter; and

(B) Upon the licensee's request, allow a private or public mediator chosen by the licensee to be present during meetings related to mediation and to be included in any material settlement...