Current through Register Vol. 47, No. 5, March
10, 2024
Basis and Purpose. The statutory
authority for this regulation includes, but is not limited to sections
44-3-202(1)(b),
44-3-202 (1)(c), 44-3-202(1)(d),
44-3-202(2)(a)(l)(A), 44-3-202(2)(a)(l)(E), 44-3-202(2)(a)(l)(R), 44-3-601,
44-3-901, 24-4-104, 24-4-105, and 24-5-101 C.R.S The purpose of this regulation
is to establish what entity conducts the administrative hearings for the state
licensing authority, the procedures governing administrative hearings, and
other general hearings issues.
A.
Initiation of Disciplinary Actions.
1. If the
state licensing authority, on its own initiative or based on a complaint, has
reasonable cause to believe that a licensee has violated the Liquor Code, the
Beer and Wine Code, the Special Event Code, the Colorado Liquor Rules, or any
of the state licensing authority's orders, the state licensing authority shall
issue and serve upon the licensee an order to show cause as to why its license
should not be suspended, revoked, restricted, fined, or subject to other
disciplinary sanction.
2. The order
to show cause shall identify the statute, rule, regulation, or order allegedly
violated, and the facts alleged to constitute the violation. The order shall
also provide an advisement that the license could be suspended, revoked,
restricted, fined, or subject to other disciplinary sanction should the charges
contained in the notice be sustained upon final hearing.
3. A respondent that has been served with an
order to show cause shall be entitled to a hearing regarding the matters
addressed therein.
B.
License Denials.
1. If the state licensing
authority denies an application, the state licensing authority shall inform the
applicant in writing of the reasons for the denial in a notice of denial,
mailed to the denied applicant at the last-known address as shown by the
records of the Division and to the local licensing authority if a local license
has been granted. A notice of denial shall be deemed to have been received
three days after the date of mailing, if sent by mail.
2. If the denial of the application is based
on a criminal conviction, the state licensing authority shall consider the
factors set forth in section
24-5-101, C.R.S., and shall
provide the written notice required in subsections
24-5-101(7) and
(8), C.R.S.
3. A denied applicant that has been served
with a notice of denial may request a hearing within the time set forth in the
notice of denial by making a written request for a hearing to the Division. The
request must be submitted by United States mail, by hand delivery, or by email
at dor_led@state.co.us. The request must be sent to the mailing address of the
Division's headquarters, as listed on the Division's website. Include "Attn:
Hearing Request" in the mailing address. The written request for a hearing must
be received by the Division within the time stated in the notice of denial. An
untimely request for hearing will not be considered.
4. A denied applicant that timely requests a
hearing following issuance of a notice of denial shall be served with a Notice
of Grounds for Denial and shall be entitled to a hearing regarding the matters
addressed therein.
C.
General Procedures - Administrative Hearings.
1.
Hearing Location.
Hearings will generally be conducted by the Department of Revenue's Hearings
Division. Hearings will be held virtually, unless otherwise ordered by the
hearing officer for good cause. If the hearing officer orders an in-person
hearing, the hearing will be conducted at a location in the greater Denver
metropolitan area to be determined by the hearing officer. Good cause for
in-person hearings includes unusual circumstances where justice, judicial
economy, and convenience of the parties would be served by holding a hearing in
person.
2.
Scope of
Hearing Regulations. This Regulation shall be construed to promote
the just and efficient determination of all matters presented.
3.
Right to Legal
Counsel. Any denied applicant or respondent has a right to legal
counsel throughout all processes described in regulations associated with the
denial of an application and disciplinary action. Such counsel shall be
provided solely at the denied applicant's or respondent's expense. Unless a
denied applicant or respondent is an entity that satisfies the exception in
section 13-1-127(2),
C.R.S., the denied applicant or respondent must be represented by an attorney
admitted to practice law in the state of Colorado.
D. When a Responsive Pleading is Required.
1. A respondent shall file a written answer
with the hearings division and the Division within 30 days after the date of
mailing of any order to show cause. The written answer shall comply with the
requirements of Rule 8 of the Colorado Rules of Civil Procedure. If a
respondent fails to file a required answer, the Hearing Officer, upon motion,
may enter a default against that person pursuant to section
24-4-105(2)(b),
C.R.S. For good cause, as described in this Regulation, shown, the hearing
officer may set aside the entry of default within ten days after the date of
such entry.
2. A denied applicant
shall file a written answer with the Hearings Division and the Division within
30 days after the date of mailing of any Notice of Grounds for Denial. The
written answer shall comply with the requirements of Rule 8 of the Colorado
Rules of Civil Procedure. If a denied applicant fails to file a required
answer, the hearing officer, upon motion, may enter a default against that
person pursuant to section
24-4-105(2)(b),
C.R.S. For good cause shown, as described in this Regulation, the hearing
officer may set aside the entry of default within ten days after the date of
such entry.
E. Hearing
Notices.
1.
Notice to
Set. The Division shall send a notice to set a hearing to the
denied applicant or Respondent in writing by electronic mail or, if an
electronic mail address is unknown, by first-class mail to the last mailing
address of record.
2.
Notice of Hearing. The Hearings Division shall notify
the Division and denied applicant or Respondent of the date, place, time, and
nature of the hearing regarding denial of the license application or whether
discipline should be imposed against the Respondent's license at least 30 days
prior to the date of such hearing, unless otherwise agreed to by both parties.
This notice shall be sent to the Denied applicant or Respondent in writing by
first-class mail to the last mailing address of record. Hearings shall be
scheduled and held as soon as is practicable.
a. If an order of summary suspension has been
issued pursuant to Regulation 47-602, the hearing on the order to show cause
will be scheduled and held promptly.
b. Continuances may be granted for good
cause, as described in this Regulation, shown. A motion for a continuance must
be timely.
c. Good Cause for
Continuance. Good cause for a continuance may include but is not limited to:
death or incapacitation of a party or an attorney for a party; a court order
staying proceedings or otherwise necessitating a continuance; entry or
substitution of an attorney for a party a reasonable time prior to the hearing,
if the entry or substitution reasonably requires a postponement of the hearing;
a change in the parties or pleadings sufficiently significant to require a
postponement; a showing that more time is clearly necessary to complete
authorized discovery or other mandatory preparation for the hearing; or
agreement of the parties to a settlement of the case which has been or will
likely be approved by the final decision maker. Good cause for a continuance
normally will not include the following: unavailability of counsel because of
engagement in another judicial or administrative proceeding, unless the other
proceeding was involuntarily set subsequent to the setting in the present case;
unavailability of a necessary witness, if the witness' testimony can be taken
by telephone or by deposition; or failure of an attorney or a party timely to
prepare for the hearing.
F. Prehearing Matters Generally.
1.
Prehearing Conferences Once a
Hearing is Set. Prehearing conferences may be held at the
discretion of the hearing officer upon request of any party, or upon the
hearing officer's own motion. If a prehearing conference is held and a
prehearing order is issued by the hearing officer, the prehearing order will
control the course of the proceedings. Such prehearing conferences will be held
virtually or by telephone, unless otherwise ordered by the hearing
officer.
2.
Depositions. Depositions are generally not allowed;
however, a hearing officer has discretion to allow a deposition if a party
files a written motion and can show why such deposition is necessary to prove
its case. When a hearing officer grants a motion for a deposition, Colorado
Rules of Civil Procedure 30 controls. Hearings will not be continued because a
deposition is allowed unless (a) both parties stipulate to a continuance and
the hearing officer grants the continuance, or (b) the hearing officer grants a
continuance over the objection of any party in accordance with paragraphs
(E)(2)(b) and (c) of this Regulation.
3.
Prehearing Statements Once a
Hearing is Set. Prehearing Statements are required and unless
otherwise ordered by the hearing officer, each party shall file with the
hearing officer and serve on each party a prehearing statement no later than
seven calendar days prior to the hearing. Parties shall also exchange exhibits
at that time. Parties shall not file exhibits with the hearing officer. Parties
shall exchange exhibits by the date on which prehearing statements are to be
filed. Prehearing statements shall include the following information:
a.
Witnesses. The
name, mailing address, and telephone number of any witness whom the party may
call at hearing, together with a detailed statement of the expected
testimony.
b.
Experts. The name, mailing address, and brief summary
of the qualifications of any expert witness a party may call at hearing,
together with a statement that details the opinions to which each expert is
expected to testify. These requirements may be satisfied by the incorporation
of an expert's resume or report containing the required information.
c.
Exhibits. A
description of any physical or documentary evidence to be offered into evidence
at the hearing. Exhibits should be identified as follows: Division using
numbers and denied applicant or respondent using letters.
d.
Stipulations. A
list of all stipulations of fact or law reached.
4.
Prehearing Statements
Binding. The information provided in a party's prehearing
statement shall be binding on that party throughout the course of the hearing
unless modified to prevent manifest injustice. New witnesses or exhibits may be
added only if:
(1) the need to do so was not
reasonably foreseeable at the time of filing of the prehearing statement;
(2) it would not prejudice other
parties; and
(3) it would not
necessitate a delay of the hearing.
5.
Consequence of Not Filing a
Prehearing Statement Once a Hearing is Set. If a party does not
timely file a prehearing statement, the hearing officer may impose appropriate
sanctions including, but not limited to, striking proposed witnesses and
exhibits.
G. Conduct of
Hearings.
1. The hearing officer shall cause
all hearings to be electronically recorded.
2. The hearing officer may allow a hearing,
or any portion of the hearing, to be conducted in real time by telephone or
other electronic means. If a party is appearing by telephone, the party must
provide actual copies of the exhibits to be offered into evidence at the
hearing to the hearing officer when the prehearing statement is filed.
Electronic filings will be accepted at:
dor_regulatoryhearings@state.co.us.
3. The hearing officer shall administer oaths
to all witnesses at hearing. The hearing officer may question any
witness.
4. The hearing, including
testimony and exhibits, shall be open to the public unless otherwise ordered by
the hearing officer in accordance with a specific provision of law.
a. Reports and other information that would
otherwise be confidential pursuant to subsection
44-3-202(1)(d),
C.R.S., may be introduced as exhibits at hearing.
b. Any party may move the hearing officer to
seal an exhibit or order other appropriate relief if necessary to safeguard the
confidentiality of evidence.
5.
Court Rules.
a. To the extent practicable, the Colorado
Rules of Evidence apply. Unless the context requires otherwise, whenever the
word "court," "judge," or "jury" appears in the Colorado Rules of Evidence,
such word shall be construed to mean a hearing officer. A hearing officer has
discretion to consider evidence not admissible under such rules, including but
not limited to hearsay evidence, pursuant to section
24-4-105(7),
C.R.S.
b. To the extent
practicable, the Colorado Rules of Civil Procedure apply. However, Colorado
Rules of Civil Procedure 16 and 26-37 do not apply, although parties are
encouraged to voluntarily work together to resolve the case, simplify issues,
and exchange information relevant to the case prior to a hearing. Unless the
context otherwise requires, whenever the word "court" appears in a rule of
civil procedure, that word shall be construed to mean a hearing
officer.
6.
Exhibits.
a. All
documentary exhibits must be paginated by the party offering the exhibit into
evidence.
b. The Division shall use
numbers to mark its exhibits.
c.
The denied applicant or respondent shall use letters to mark its
exhibits.
7. The hearing
officer may proceed with the hearing or enter a default judgment if any party
fails to appear at hearing after proper notice.
H.
Post Hearing.
After considering all the evidence, the hearing officer shall determine whether
the proponent of the order has proven its case by a preponderance of the
evidence, and shall make written findings of evidentiary fact, ultimate
conclusions of fact, conclusions of law, and a recommendation. These written
findings shall constitute an initial decision subject to review by the state
licensing authority pursuant to the Colorado Administrative Procedure Act and
this paragraph H.
1.
Exception(s)
Process. Any party may appeal an initial decision to the State
licensing authority pursuant to the Colorado Administrative Procedure Act by
filing written exception(s) within 30 days after the date of mailing of the
initial decision to the denied applicant or respondent and the Division. The
written exception(s) shall include a statement giving the basis and grounds for
the exception(s). Any party who fails to properly file written exception(s)
within the time provided in these regulations shall be deemed to have waived
the right to an appeal. A copy of the exception(s) shall be served on all
parties. The address of the state licensing authority is: state licensing
authority, 1707 Cole Boulevard, Suite 350, Lakewood CO 80401.
2.
Designation of
Record. Any party that seeks to reverse or modify the Initial
Decision of the hearing officer shall file with the state licensing authority,
within 20 days from the mailing of the Initial Decision, a designation of the
relevant parts of the record and of the parts of the hearing transcript which
shall be prepared, and advance the costs therefore. A copy of this designation
shall be served on all parties. Within ten days thereafter, any other party may
also file a designation of additional parts of the transcript of the
proceedings which is to be included and advance the cost therefore. No
transcript is required if the review is limited to a pure question of law. A
copy of this designation of record shall be served on all parties.
3.
Deadline
Modifications. The state licensing authority may modify deadlines
and procedures related to the filing of exceptions to the initial decision upon
motion by either party for good cause shown.
4.
No Oral Argument
Allowed. Requests for oral argument will not be
considered.
I.
No Ex Parte Communication. Ex parte communication
shall not be allowed at any point following the formal initiation of the
hearing process. A party or counsel for a party shall not initiate any
communication with a hearing officer or the state licensing authority, or with
conflicts counsel representing the hearing officer or state licensing
authority, pertaining to any pending matter unless all other parties
participate in the communication or unless prior consent of all other parties
(and any pro se parties) has been obtained. Parties shall provide all other
parties with copies of any pleading or other paper submitted to the hearing
officer or the state licensing authority in connection with a hearing or with
the exceptions process.
J.
Liquor Enforcement Division representation. The
Division shall be represented by the Colorado Department of Law.