Current through Register Vol. 47, No. 5, March 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 Procedures 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 the Director will not rule upon such
a petition, the Director shall promptly notify the petitioner of the 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
Colorado Rules of Civil Procedure 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 200.
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 decides to 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
Procedures Act at section
24-4-105(8),
C.R.S., and may utilize the Director's experience, technical competence, and
specialized knowledge in the disposition of the petition.
2. If the Director rules upon the petition
without a hearing, the Director shall promptly notify the petitioner of her
decision.
3. The Director may, at
the Director's 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.
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 Procedures
Act at section
24-4-106, C.R.S.
