Ariz. Admin. Code § 4-26-308

Current through Register Vol. 30, No. 50, December 13, 2024

Section R4-26-308 - Rehearing or Review of Decision

A. Except as provided in subsection (G), any party in a contested case or appealable agency action before the Board who is aggrieved by a Board order or decision may file with the Board, not later than 30 days after service of the decision, a written motion for rehearing or review of the decision specifying the particular grounds for rehearing or review. For purposes of this subsection, service is complete on personal service or five days after the date that a Board order or decision is mailed to the party's last known address.

B. A motion for rehearing or review may be amended at any time before it is ruled upon by the Board. A party may file a response within 15 days after service of the motion or amended motion by any other party. The Board may require written briefs regarding the issues raised in the motion and may provide for oral argument.

C. The Board may grant rehearing or review of a Board order or decision for any of the following causes materially affecting the moving party's rights:

1. An irregularity in the administrative proceedings of the agency, its hearing officer, or the prevailing party, or any order or abuse of discretion that caused the moving party to be deprived of a fair hearing;

2. Misconduct of the Board, its hearing officer, or the prevailing party;

3. An accident or surprise that could not be prevented by ordinary prudence;

4. Newly discovered material evidence that could not with reasonable diligence be discovered and produced at the original hearing;

5. Excessive or insufficient penalties;

6. An error in the admission or rejection of evidence or other errors of law occurring at the administrative hearing or during the progress of the case; or

7. The order or decision is not justified by the evidence or is contrary to law.

D. The Board may affirm or modify a Board order or decision or grant a rehearing or review to all or any of the parties, on all or part of the issues, for any of the reasons specified in subsection (C). An order granting a rehearing or review shall specify the grounds on which the rehearing or review is granted, and the rehearing or review shall cover only the matters specified.

E. Not later than 30 days after a Board order or decision is rendered, the Board may on its own initiative order a rehearing or review of its order or decision for any reason specified in subsection (C). After giving the parties or their counsel notice and an opportunity to be heard on the matter, the Board may grant a motion for rehearing or review for a reason not stated in the motion.

F. When a motion for rehearing or review is based on affidavits, the party shall serve the affidavits with the motion. An opposing party may, within 15 days after service, serve opposing affidavits. The Board for good cause or by written agreement of all parties may extend the period for service of opposing affidavits to a total of 20 days. Reply affidavits are permitted.

G. If the Board finds that the immediate effectiveness of a Board order or decision is necessary to preserve public peace, health, or safety and that a rehearing or review of the Board order or decision is impracticable, unnecessary, or contrary to the public interest, the Board order or decision may be issued as a final order or decision without an opportunity for a rehearing or review. If a Board order or decision is issued as a final order or decision without an opportunity for rehearing or review, any application for judicial review of the order or decision shall be made within the time permitted for final orders or decisions.

H. For purposes of this Section, "contested case" is defined in A.R.S. § 41-1001 and "appealable agency action" is defined in A.R.S. § 41-1092.

I. A person who files a complaint with the Board against a licensee:

1. Is not a party to:

a. A Board administrative action, decision, or proceeding; or

b. A court proceeding for judicial review of a Board decision under A.R.S. §§ 12-901 through 12-914; and

2. Is not entitled to seek rehearing or review of a Board action or decision under this Section.

Ariz. Admin. Code § R4-26-308

Former Section R4-26-10 renumbered and adopted as R4-26-57 effective July 27, 1979 (Supp. 79-4). Amended subsection (c)(4) effective June 30, 1981 (Supp. 81-3). Renumbered from R4-26-157effective July 3, 1991 (Supp. 91-3). Amended effective March 3, 1995 (Supp. 95-1). Pursuant to the advice of the Attorney General, the text of this Section now contains the text certified by the Attorney General and filed as a copy effective March 3, 1995 (Supp. 95-3). Amended by final rulemaking at 6 A.A.R. 3297, effective August 7, 2000 (Supp. 00-3). Amended by final rulemaking at 10 A.A.R. 4743, effective January 1, 2005 (Supp. 04-4). Amended by final rulemaking at 21 A.A.R. 3444, effective 1/30/2016.