Bill Text: AZ HB2062 | 2018 | Fifty-third Legislature 2nd Regular | Engrossed
Bill Title: Permits; licenses; denials; agency hearings
Spectrum: Partisan Bill (Republican 1-0)
Status: (Vetoed) 2018-05-16 - Governor Vetoed [HB2062 Detail]
Download: Arizona-2018-HB2062-Engrossed.html
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Senate Engrossed House Bill |
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State of Arizona House of Representatives Fifty-third Legislature Second Regular Session 2018
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HOUSE BILL 2062 |
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AN ACT
Amending title 9, chapter 7, article 4, Arizona Revised Statutes, by adding section 9-842; amending title 11, chapter 11, article 1, Arizona Revised Statutes, by adding section 11-1612; amending sections 41-1062, 41‑1079 and 41-1092.07, 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. Title 9, chapter 7, article 4, Arizona Revised Statutes, is amended by adding section 9-842, to read:
9-842. License criteria; constitutionally protected activity
A. IN ANY CASE IN WHICH A LICENSE IS REQUIRED BEFORE A PERSON ENGAGES IN ANY CONSTITUTIONALLY PROTECTED ACTIVITY, A MUNICIPALITY SHALL SPECIFY IN CLEAR AND UNAMBIGUOUS LANGUAGE THE CRITERIA FOR APPROVAL OF A LICENSE UNLESS THE CRITERIA IS ESTABLISHED BY FEDERAL LAW.
B. IN ANY COURT PROCEEDINGS INVOLVING A DENIAL OF A LICENSE APPLICATION FOR CONSTITUTIONALLY PROTECTED ACTIVITY, A COURT SHALL DETERMINE WHETHER THE LANGUAGE IS CLEAR AND UNAMBIGUOUS UNLESS THE CRITERIA IS ESTABLISHED BY FEDERAL LAW.
C. THE APPLICANT FOR A LICENSE INVOLVING CONSTITUTIONALLY PROTECTED ACTIVITY IS ENTITLED TO A REVIEW AND DETERMINATION OF THE APPROVAL OR DENIAL OF THE LICENSE APPLICATION PURSUANT TO THIS ARTICLE WITHIN THIRTY DAYS AFTER THE APPLICATION IS SUBMITTED TO THE MUNICIPALITY UNLESS ANOTHER PERIOD OF TIME IS SPECIFIED BY LAW.
Sec. 2. Title 11, chapter 11, article 1, Arizona Revised Statutes, is amended by adding section 11-1612, to read:
11-1612. License criteria; constitutionally protected activity
A. IN ANY CASE IN WHICH A LICENSE IS REQUIRED BEFORE A PERSON ENGAGES IN ANY CONSTITUTIONALLY PROTECTED ACTIVITY, A COUNTY SHALL SPECIFY IN CLEAR AND UNAMBIGUOUS LANGUAGE THE CRITERIA FOR APPROVAL OF A LICENSE UNLESS THE CRITERIA IS ESTABLISHED BY FEDERAL LAW.
B. IN ANY COURT PROCEEDINGS INVOLVING A DENIAL OF A LICENSE APPLICATION FOR CONSTITUTIONALLY PROTECTED ACTIVITY, A COURT SHALL DETERMINE WHETHER THE LANGUAGE IS CLEAR AND UNAMBIGUOUS UNLESS THE CRITERIA IS ESTABLISHED BY FEDERAL LAW.
C. THE APPLICANT FOR A LICENSE INVOLVING CONSTITUTIONALLY PROTECTED ACTIVITY IS ENTITLED TO A REVIEW AND DETERMINATION OF THE APPROVAL OR DENIAL OF THE LICENSE APPLICATION PURSUANT TO THIS ARTICLE WITHIN THIRTY DAYS AFTER THE APPLICATION IS SUBMITTED TO THE COUNTY UNLESS ANOTHER PERIOD OF TIME IS SPECIFIED BY LAW.
Sec. 3. Section 41-1062, Arizona Revised Statutes, is amended to read:
41-1062. Hearings; evidence; official notice; power to require testimony and records; rehearing
A. Unless otherwise provided by law, in contested cases the following shall apply:
1. A hearing may be conducted in an informal manner and without adherence to the Unless knowingly and voluntarily waived by the parties, all agency hearings shall comply with either the uniform administrative hearing procedures prescribed in article 10 of this chapter or the rules of procedure and rules of evidence required in judicial proceedings. Neither the manner of conducting the hearing nor the failure to adhere to the rules of evidence required in judicial proceedings shall be grounds for reversing any administrative decision or order providing the evidence supporting such decision or order is substantial, reliable, and probative. Irrelevant, immaterial or unduly repetitious evidence shall be excluded. Every person who is a party to such proceedings shall have the right to be represented by counsel, and to submit evidence in open hearing and shall have the right of cross‑examination. Unless otherwise provided by law, hearings may be held at any place determined by the agency.
2. Copies of documentary evidence may be received in the discretion of the presiding officer. Upon On request, the parties shall be given an opportunity to compare the copy with the original.
3. Notice may be taken of judicially cognizable facts. In addition, notice may be taken of generally recognized technical or scientific facts within the agency's specialized knowledge. The parties shall be notified either before or during the hearing or by reference in preliminary reports or otherwise of the material noticed, including any staff memoranda or data, and they the parties shall be afforded an opportunity to contest the material so noticed. The agency's experience, technical competence and specialized knowledge may be utilized used in the evaluation of the evidence.
4. The officer presiding at the hearing may cause to be issued subpoenas for the attendance of witnesses and for the production of books, records, documents and other evidence and shall have the power to administer oaths. Unless otherwise provided by law or agency rule, subpoenas so issued shall be served and, upon on application to the court by a party or the agency, enforced in the manner provided by law for the service and enforcement of subpoenas in a civil action. On application of a party or the agency and for use as evidence, the officer presiding at the hearing may permit a deposition to be taken, in the manner and upon on the terms designated by him the officer, of a witness who cannot be subpoenaed or is unable to attend the hearing. The officer presiding at the hearing may order prehearing depositions and subpoenas for the production of documents may be ordered by the officer presiding at the hearing, provided that if the party seeking such discovery demonstrates that the party has reasonable need of the deposition testimony or materials being sought. All provisions of law compelling a person under subpoena to testify are applicable. Fees for attendance as a witness shall be the same as for a witness in the superior courts of the state of Arizona court, unless otherwise provided by law or agency rule. Notwithstanding the provisions of section 12‑2212, no subpoenas, depositions or other discovery shall be permitted in contested cases except as provided by agency rule or this paragraph.
B. Except when good cause exists otherwise, the agency shall provide an opportunity for a rehearing or review of the decision of an that agency before such decision becomes final. Such rehearing or review shall be governed by agency rule rules drawn as closely as practicable from rule 59, Arizona rules of civil procedure, relating to new trial in superior court.
Sec. 4. Section 41-1079, Arizona Revised Statutes, is amended to read:
41-1079. Information required to be provided
A. An agency that issues licenses shall provide the following information to an applicant at the time the applicant obtains an application for a license:
1. A list of all of the steps the applicant is required to take in order to obtain the license.
2. The applicable licensing time frames.
3. The name and telephone number of an agency contact person who can answer questions or provide assistance throughout the application process.
B. In any case in which a license is required before a person engages in any constitutionally protected activity, an agency shall specify in clear and unambiguous language the criteria for approval of a license unless the criteria is established by federal law. A court of competent jurisdiction shall determine whether the language is clear and unambiguous, without deference to the agency. If a written clarification is issued by an agency pursuant to section 41-1001.02 or a rule is adopted pursuant to article 3 of this chapter, the language is presumed clear and unambiguous.
C. The applicant for a license is entitled to a review and determination of the approval or denial of the license application by the appropriate agency within thirty days after the application is submitted unless another period of time is specified by law or by a rule adopted pursuant to section 41-1073.
D. This section does not apply to the Arizona peace officer standards and training board established by section 41‑1821.
Sec. 5. Section 41-1092.07, Arizona Revised Statutes, is amended to read:
41-1092.07. Hearings
A. A party to a contested case or appealable agency action may file a nonperemptory motion with the director to disqualify an office administrative law judge from conducting a hearing for bias, prejudice, personal interest or lack of technical expertise necessary for a hearing.
B. The parties to a contested case or appealable agency action have the right to be represented by counsel or to proceed without counsel, to submit evidence and to cross‑examine witnesses.
C. The administrative law judge may issue subpoenas to compel the attendance of witnesses and the production of documents. The subpoenas shall be served and, on application to the superior court, enforced in the manner provided by law for the service and enforcement of subpoenas in civil matters. The administrative law judge may administer oaths and affirmations to witnesses.
D. All parties shall have the opportunity to respond and present evidence and argument on all relevant issues. All relevant evidence is admissible, but the administrative law judge may exclude evidence if its probative value is outweighed by the danger of unfair prejudice, by confusion of the issues or by considerations of undue delay, waste of time or needless presentation of cumulative evidence. The administrative law judge shall exercise reasonable control over the manner and order of cross‑examining witnesses and presenting evidence to make the cross‑examination and presentation effective for ascertaining the truth, avoiding needless consumption of time and protecting witnesses from harassment or undue embarrassment.
E. All hearings shall be recorded. The administrative law judge shall secure either a court reporter or an electronic means of producing a clear and accurate record of the proceeding at the agency's expense. Any party that requests a transcript of the proceeding shall pay the costs of the transcript to the court reporter or other transcriber.
F. Unless otherwise provided by law, the following apply:
1. A hearing may be conducted in an informal manner and without adherence to the Unless knowingly and voluntarily waived by the parties, all agency hearings shall comply with either the uniform administrative hearing procedures prescribed in this article or the rules of procedure and rules of evidence required in judicial proceedings. Neither the manner of conducting the hearing nor the failure to adhere to the rules of evidence required in judicial proceedings is grounds for reversing any administrative decision or order if the evidence supporting the decision or order is substantial, reliable and probative.
2. Copies of documentary evidence may be received in the discretion of the administrative law judge. On request, parties shall be given an opportunity to compare the copy with the original.
3. Notice may be taken of judicially cognizable facts. In addition, notice may be taken of generally recognized technical or scientific facts within the agency's specialized knowledge. The parties shall be notified either before or during the hearing or by reference in preliminary reports or otherwise of the material noticed, including any staff memoranda or data, and they the parties shall be afforded an opportunity to contest the material so noticed. The agency's experience, technical competence and specialized knowledge may be used in the evaluation of the evidence.
4. On application of a party or the agency and for use as evidence, the administrative law judge may permit a deposition to be taken, in the manner and on the terms designated by the administrative law judge, of a witness who cannot be subpoenaed or who is unable to attend the hearing. The administrative law judge may order subpoenas for the production of documents may be ordered by the administrative law judge if the party seeking the discovery demonstrates that the party has reasonable need of the materials being sought. All provisions of law compelling a person under subpoena to testify are applicable. Fees for attendance as a witness shall be the same as for a witness in court, unless otherwise provided by law or agency rule. Notwithstanding section 12‑2212, subpoenas, depositions or other discovery shall not be permitted except as provided by this paragraph or subsection C of this section.
5. Informal disposition may be made by stipulation, agreed settlement, consent order or default.
6. Findings of fact shall be based exclusively on the evidence and on matters officially noticed.
7. A final administrative decision shall include findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. Conclusions of law shall specifically address the agency's authority to make the decision consistent with section 41‑1030.
G. Except as otherwise provided by law:
1. At a hearing on in which an applicant seeks a review of an agency's denial of a license or permit or a denial of an application or request for modification of a an existing license or permit, the applicant agency has the burden of persuasion.
2. At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.
3. At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.
4. At a hearing held pursuant to chapter 23 or 24 of this title, the appellant or claimant has the burden of persuasion.
5. The burden of proof in all agency hearings is the preponderance of evidence.
H. Subsection G of this section does not affect the law governing burden of persuasion in an agency denial of, or refusal to issue, a license renewal.
