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Colorado Administrative Code
Department 700 - Department of Regulatory AgenciesDivision 728 - Division of Professions and Occupations - State Board of Optometry
Rule 4 CCR 728-1 - STATE BOARD OF OPTOMETRY RULES AND REGULATIONS
Section 4 CCR 728-1.23 - DECLARATORY ORDERS

4 Colo. Code Regs. § 728-1.23

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Current through Register Vol. 47, No. 22, November 25, 2024
Section 4 CCR 728-1.23 - DECLARATORY ORDERS

This Rule is promulgated pursuant to sections 12-20-204, 12-275-108(1)(b), and 24-4-105(11), C.R.S.

A. Any person may petition the Board for a declaratory order to terminate controversies or to remove uncertainties as to the applicability to the petitioner of any statutory provision or of any rule or order of the Board.
B. The Board will determine, in its discretion and without notice to petitioner, whether to rule upon any such petition. If the Board determines that it will not rule upon such a petition, the Board shall promptly notify the petitioner of its action and state the reasons for such action.
C. In determining whether to rule upon a petition filed pursuant to this Rule, the Board 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 the petitioner of any statutory provision or rule or order of the Board.
2. Whether the petition involves any subject, question or issue which is the focus of a formal or informal matter or investigation currently pending before the Board or a court but not involving any petitioner.
3. Whether the petition seeks a ruling on a moot or hypothetical question or will result in an advisory ruling or opinion.
4. Whether the petitioner has some other adequate legal remedy, other than an action for declaratory relief pursuant to Rule 57, Colo. R. Civ. P., 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 the provisions of section 12-275-101, C.R.S. et seq., as amended.
2. The statute, rule or order to which the petition relates.
3. A concise statement of all 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 Board determines that it will rule on the petition, the following procedures apply:
1. The Board may rule upon the petition solely upon the facts presented in the petition. In such a case, any ruling of the Board will apply only to the extent of the facts presented in the petition and any amendment to the petition.
2. The Board may order the petitioner to file a written brief, memorandum or statement of position.
3. The Board may set the petition, upon due notice to the petitioner, for a non-evidentiary hearing.
4. The Board may dispose of the petition on the sole basis of the matters set forth in the petition.
5. The Board 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. The Board may take administrative notice of the facts pursuant to the Administrative Procedure Act (section 24-4-105(8), C.R.S.) and may utilize its experience, technical competence and specialized knowledge in the disposition of the petition.
6. If the Board rules upon the petition without a hearing, it shall promptly notify the petitioner of its decision.
7. The Board may, in its discretion, set the petition for hearing, upon due notice to the 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.
8. The notice to the petitioner setting such hearing shall set forth, to the extent known, the factual or other matters into which the Board intends to inquire.
9. For the purpose of such a hearing, to the extent necessary, the petitioner shall have the burden of proving all of 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 Board to consider.
F. The parties to any proceeding pursuant to this Rule shall be the Board and the petitioner. Any other person may seek leave of the Board to intervene in such a proceeding, and leave to intervene will be granted at the sole discretion of the Board. A petition to intervene shall set forth the same matters as 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 Board.

4 CCR 728-1.23

37 CR 12, June 25, 2014, effective 7/15/2014
43 CR 12, June 25, 2020, effective 7/15/2020
43 CR 23, December 10, 2020, effective 12/30/2020
44 CR 12, June 25, 2021, effective 7/15/2021
44 CR 24, December 25, 2021, effective 1/14/2022
45 CR 21, November 10, 2022, effective 10/5/2022
45 CR 22, November 25, 2022, effective 10/26/2022
45 CR 23, December 10, 2022, effective 11/11/2022
45 CR 24, December 25, 2022, effective 1/14/2023