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House Engrossed |
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State of Arizona House of Representatives Fifty-third Legislature Second Regular Session 2018
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HOUSE BILL 2523 |
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AN ACT
amending sections 41-1061 and 41-1092.12, Arizona Revised Statutes; relating to administrative procedures.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 41-1061, Arizona Revised Statutes, is amended to read:
41-1061. Contested cases; notice; hearing; records
A. In a contested case, all parties shall be afforded an opportunity for a hearing after reasonable notice. Unless otherwise provided by law, the notice shall be given at least twenty days prior to before the date set for the hearing.
B. The notice shall include:
1. A statement of the time, place and nature of the hearing.
2. A statement of the legal authority and jurisdiction under which the hearing is to be held.
3. A reference to the particular sections of the statutes and rules involved.
4. A short and plain statement of the matters asserted. If the agency or other party is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter upon on application a more definite and detailed statement shall be furnished.
C. Opportunity shall be afforded all parties to participate in a settlement conference or mediation unless both parties or the hearing officer decline to set a settlement conference or mediation.
C. D. Opportunity shall be afforded all parties to respond and present evidence and argument on all issues involved. If there is no genuine issue of material fact, a party may seek disposition of the case by motion.
D. E. Unless precluded by law, and except as to claims for compensation and benefits under chapter 6 of title 23, chapter 6, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order or default.
E. F. The record in a contested case shall include:
1. All pleadings, motions, and interlocutory rulings.
2. Evidence received or considered.
3. A statement of matters officially noticed.
4. Objections and offers of proof and rulings thereon.
5. Proposed findings and exceptions.
6. Any decision, opinion or report by the officer presiding at the hearing.
7. All staff memoranda, other than privileged communications, or data submitted to the hearing officer or members of the agency in connection with their consideration of the case.
F. G. Oral proceedings or any part thereof of the proceedings shall be recorded manually or by a recording device and shall be transcribed on request of any party, unless otherwise provided by law. The cost of such the transcript shall be paid by the party making the request, unless otherwise provided by law or unless assessment of the cost is waived by the agency.
G. H. Findings of fact shall be based exclusively on the evidence and on matters officially noticed.
Sec. 2. Section 41-1092.12, Arizona Revised Statutes, is amended to read:
41-1092.12. Private right of action; recovery of costs and fees; definitions
A. If an agency takes an action against a party that is arbitrary, capricious or not in accordance with law, the action is an appealable agency action if all of the following apply:
1. Within ten days after the action that is arbitrary, capricious or not in accordance with law, the party notifies the director of the agency in writing of the party's intent to file a claim pursuant to this section. This notice shall include a description of the action the party claims to be arbitrary, capricious or not in accordance with law and reasons why the action is arbitrary, capricious or not in accordance with law.
2. The agency continues the action that is arbitrary, capricious or not in accordance with law more than ten days after the agency receives the notice.
3. The action is not excluded from the definition of appealable agency action as defined in section 41‑1092.
B. This section only applies if an administrative remedy or an administrative or a judicial appeal of final agency action is not otherwise provided by law.
C. If the party prevails, the agency shall pay reasonable costs and fees to the party from any monies appropriated to the agency and available for that purpose or from other operating monies of the agency. If the agency fails or refuses to pay the award within fifteen days after the demand, and if no further review or appeal of the award is pending, the prevailing party may file a claim with the department of administration. The department of administration shall pay the claim within thirty days in the same manner as an uninsured property loss under title 41, chapter 3.1, article 1 of this title, except that the agency is responsible for the total amount awarded and shall pay it from its operating monies. If the agency had appropriated monies available for paying the award at the time it failed or refused to pay, the legislature shall reduce the agency's operating appropriation for the following fiscal year by the amount of the award and shall appropriate that amount to the department of administration as reimbursement for the loss.
D. If the administrative law judge determines that the appealable agency action is frivolous or finds against an agency after the agency prevails in the INITIAL agency determination and a subsequent appeal to an appeals board results in a decision against the agency, the administrative law judge may require the party or agency to pay reasonable costs and fees to the party or agency in responding to the appeal filed before the office of administrative hearings.
E. For the purposes of this section:
1. "Action against the party" means any of the following that results in the expenditure of costs and fees:
(a) A decision.
(b) An inspection.
(c) An investigation.
(d) The entry of private property.
2. "Agency" means the department of environmental quality established pursuant to title 49, chapter 1, article 1.
3. 2. "Costs and fees" means reasonable attorney and professional fees.
4. 3. "Party" means an individual, partnership, corporation, association and public or private organization at whom the action was directed and who has expended costs and fees as a result of the action against the party.