Current through Register Vol. 47, No. 17, September 10, 2024
The purpose of this Rule is to establish procedures for the
handling of requests for declaratory orders filed pursuant to the Colorado
Administrative Procedure Act at section
24-4-105(11),
C.R.S.
A. Any person or entity may
petition the Director for a declaratory order to terminate controversies or
remove uncertainties as to the applicability of any statutory provision or of
any rule or order of the Director.
B. The Director will determine, at her
discretion and without notice to petitioner, whether to rule upon such
petition. If the Director determines that she will not rule upon such a
petition, the Director shall promptly notify the petitioner of her action and
state the reasons for such decision.
C. In determining whether to rule upon a
petition filed pursuant to this rule, the Director will consider the following
matters, among others:
1. Whether a ruling on
the petition will terminate a controversy or remove uncertainties as to the
applicability to petitioner of any statutory provisions or rule or order of the
Director.
2. Whether the petition
involves any subject, question or issue that is the subject of a formal or
informal matter or investigation currently pending before the Director or a
court involving one or more petitioners.
3. Whether the petition involves any subject,
question or issue that is the subject of a formal or informal matter or
investigation currently pending before the Director or a court but not
involving any petitioner.
4.
Whether the petition seeks a ruling on a moot or hypothetical question or will
result in an advisory ruling or opinion.
5. Whether the petitioner has some other
adequate legal remedy, other than an action for declaratory relief pursuant to
C.R.C.P. 57, which will terminate the controversy or remove any uncertainty as
to the applicability to the petitioner of the statute, rule, or order in
question.
D. Any
petition filed pursuant to this Rule shall set forth the following:
1. The name and address of the petitioner and
whether the petitioner is licensed pursuant to Title 12, Article 205.
2. The statute, rule, or order to which the
petition relates.
3. A concise
statement of all of the facts necessary to show the nature of the controversy
or uncertainty and the manner in which the statute, rule, or order in question
applies or potentially applies to the petitioner.
E. If the Director determines that she will
rule on the petition, the following procedures shall apply:
1. The Director may rule upon the petition
based solely upon the facts presented in the petition. In such a case:
a. Any ruling of the Director will apply only
to the extent of the facts presented in the petition and any amendment to the
petition.
b. The Director may order
the petitioner to file a written brief, memorandum, or statement of
position.
c. The Director may set
the petition, upon due notice to petitioner, for a non-evidentiary
hearing.
d. The Director may
dispose of the petition on the sole basis of the matters set forth in the
petition.
e. The Director may
request the petitioner to submit additional facts in writing. In such event,
such additional facts will be considered as an amendment to the
petition.
f. The Director may take
administrative notice of facts pursuant to the Colorado Administrative
Procedure Act at section
24-4-105(8),
C.R.S., and may utilize her experience, technical competence, and specialized
knowledge in the disposition of the petition.
2. If the Director rules upon the petition
without a hearing, she shall promptly notify the petitioner of her
decision.
3. The Director may, at
her discretion, set the petition for hearing, upon due notice to petitioner,
for the purpose of obtaining additional facts or information or to determine
the truth of any facts set forth in the petition or to hear oral argument on
the petition. The hearing notice to the petitioner shall set forth, to the
extent known, the factual or other matters that the Director intends to
inquire.
4. For the purpose of such
a hearing, to the extent necessary, the petitioner shall have the burden of
proving all the facts stated in the petition; all of the facts necessary to
show the nature of the controversy or uncertainty; and the manner in which the
statute, rule, or order in question applies or potentially applies to the
petitioner and any other facts the petitioner desires the Director to
consider.
F. The parties
to any proceeding pursuant to this rule shall be the Director and the
petitioner. Any other person may seek leave of the Director to intervene in
such a proceeding, and leave to intervene will be granted at the sole
discretion of the Director. A petition to intervene shall set forth the same
matters as are required by Section D of this Rule. Any reference to a
"petitioner" in this rule also refers to any person who has been granted leave
to intervene by the Director.
G.
Any declaratory order or other order disposing of a petition pursuant to this
rule shall constitute agency action subject to judicial review pursuant to the
Colorado Administrative Procedure Act at §
24-4-106, C.R.S.
