Current through Register Vol. 30, No. 38, September 20, 2024
A.Hearing: The Board or an Administrative Law
Judge (ALJ) employed by the Office of Administrative Hearings (OAH) shall hear
all contested cases and appealable agency actions. The Board shall conduct
hearings according to the provisions of A.R.S. Title 41, Chapter 6, Article 10
as supplemented by R4-1-117. The OAH shall conduct hearings according to A.R.S.
Title 41, Chapter 6, Article 10 and the rules and procedures established by the
OAH. To the extent that there is no conflict with A.R.S. Title 41, Chapter 6,
Article 10, the provisions of A.R.S. §
32-743
apply to hearings conducted by the Board and the OAH. The following subsections
apply to hearings conducted by the Board and hearings conducted by the OAH
where applicable.
1. Power to join any
interested party: Any board member or the ALJ may join as a party applicant or
as a party defendant, any person, firm or corporation, that appears to have an
interest in the matter before the Board.
2. Stipulation at hearing: The parties may
stipulate to facts that are not in dispute. The stipulation may be in writing
or may be made orally by reading the stipulation into the record at the
hearing. The stipulation is binding upon the parties unless the Board or the
ALJ grants permission to withdraw from the stipulation. The Board or the ALJ
may set aside any stipulation.
3.
Settlements and consent orders: At any time before or after formal disciplinary
proceedings have been instituted against a registrant, the registrant may
submit to the Board an offer of conditional settlement to avoid formal
disciplinary proceedings by the Board. In the offer of conditional settlement,
the registrant shall agree to take specific remedial steps such as enrolling in
CPE courses, limiting the scope of the registrant's practice, accepting
limitation on the filing of public reports, and submitting the registrant's
work product for peer review . If the Board determines that the proposed
conditional settlement will protect the public safety and welfare and is more
likely to rehabilitate or educate the registrant than formal disciplinary
action under A.R.S. §
32-741,
the Board may accept the offer and enter an order that incorporates the
registrant's proposed conditional settlement and to which the registrant
consents. A consent order issued under this subsection shall provide that, upon
successful compliance by the registrant with all provisions of the order, the
disciplinary proceedings shall be terminated and any notice of hearing
previously issued shall be vacated. The consent order shall further provide
that, upon failure of the registrant to comply with all provisions of the
order, or upon the discovery of material facts unknown to the Board at the time
the Board issued the order, formal disciplinary proceedings against the
registrant may be instituted or resumed. The consent order additionally may
provide that, upon failure of the registrant to comply with all provisions of
the order, the Board may immediately and summarily suspend the registrant's
certificate for not more than one year. Within 30 days after the summary
suspension, the registrant may request a hearing solely concerning the issue of
compliance with the consent order.
4. Decisions and orders: The Board shall make
all decisions and orders by a majority vote of the members considering the
case. The Board shall issue a final written decision in a contested case or
state the decision on the record. The decision shall state separately the
findings of fact and conclusions of law on which the decision is based, and the
Board's order to implement the decision. All written decisions and orders of
the Board shall be signed by the President or Secretary of the Board. When the
Board suspends or revokes the certificate of a registrant, the Board may order
the registrant to return the registrant's certificate within 30 days after
receipt of the order. The Board shall serve each party, each attorney of
record, and the Attorney General with a copy of each decision or order of the
Board, as provided in R4-1-117.
B.ALJ: In hearings conducted by the OAH, the
ALJ shall provide the Board with written findings of fact, conclusions of law,
and a recommended order within 20 days after the conclusion of the hearing or
as otherwise provided by A.R.S. Title 41, Chapter 6, Article 10. The Board's
decision approving or modifying the ALJ's recommendations is the final decision
of the Board, subject to the filing of a motion for rehearing or review as
provided in subsection (C).
C.Rehearing or Review: Any party aggrieved by
a decision of the Board may file with the Board a written motion for rehearing
or review within 30 days after service of the decision specifying the
particular grounds for the motion. The Attorney General may file a response to
the motion for rehearing within 15 days after service of the motion. The Board
may require the filing of written briefs upon issues raised in the motion for
rehearing or review and provide for oral argument. Upon review of the documents
submitted, the Board may modify the decision or vacate it and grant a rehearing
for any of the following causes materially affecting a party's rights:
1. Irregularity in the administrative
proceedings or any order or abuse of discretion, that deprived a party of a
fair hearing;
2. Misconduct of the
Board or the ALJ;
3. Accident or
surprise that could not have been prevented by ordinary prudence;
4. Newly discovered material evidence, that
could not with reasonable diligence have been discovered and produced at the
original hearing;
5. Excessive or
insufficient penalties;
6. Error in
the admission or rejection of evidence or other errors of law occurring at the
administrative hearing, or during the progress of the proceeding; or
7. That the findings of fact or decision is
not justified by the evidence or is contrary to law.
