Ariz. Admin. Code § R19-2-123 - Procedure before the Department

A. Appeal of stewards' rulings and referrals.

1. A person aggrieved by a ruling of the stewards may appeal to the Director. An appeal shall be filed in writing to the office of the Director within three days after receipt of the steward's ruling.

2. The failure of the stewards to convene a hearing within 10 days after an objection is made shall be deemed a denial by the stewards and may be appealed by filing a written appeal in the office of the Director within 10 days from the date the objection was denied.

3. 2. An appeal shall be signed by the person making the appeal or by the person's attorney and shall contain the grounds for appeal and the reasons for believing the person is entitled to a hearing.

4. A person filing an appeal of a ruling may be required by the Director or the Commission to furnish a bond in the amount equal to an assessed fine and an additional $200 to cover the costs, which may be forfeited should the appeal be denied.

5. 3. The stewards may refer any ruling to the Director, recommending further action, including revocation of a license suspended by the stewards. On receipt of a referral, the Director shall review the record and may affirm, reverse, or modify the stewards' ruling or conduct other proceedings the Director deems appropriate.

6. 4. If the Director decides that hearing or other proceeding is appropriate, the Director shall fix a time and place for a hearing. The Director shall give written notice of the hearing to the appellant at least 30 days before the date set for the hearing unless the 30 days' notice is waived in writing by the appellant.

7. Nothing contained in this Section shall affect the distribution of the pari-mutuel pools.

8. In case of an appeal or protest, the purse money affected shall be retained by the permittee subject to order of the Director.

B.Appeal of stewards' inquiry and objection rulings.

1. Failure of the stewards to convene a hearing within 10 days after an objection is made shall be deemed a denial that may be appealed by filing a written appeal to the office of the Director within 10 days after the date the objection is denied.

2. A person making an appeal or the person's attorney shall sign the appeal and ensure that it contains the grounds for appeal and reasons for believing the person is entitled to a hearing.

3. After an appeal is filed under subsection (B)(2), the Director shall fix a time and place for hearing or refer the matter to a hearing officer. The Director shall give written notice of the hearing to the appellant at least 30 days before the date set for the hearing unless the 30 days' notice is waived in writing by the appellant.

4. Nothing contained in this Section shall affect distribution of pari-mutuel pools.

5. The Department shall retain purse money affected by an appeal until an order regarding the appeal is issued by the Director.

B. C.License denial, suspension, or revocation.

1. The Director may deny a license without prior notice to a license applicant. However, if the applicant files an appeal with the Director within 30 days after receipt of the denial notice, the Director shall fix a time and place for a hearing on the matter and give written notice of the hearing to the applicant at least 30 days before the date set for the hearing, unless the 30 days' notice is waived in writing by the applicant.

2. The Director may revoke or, independently of the stewards, suspend a license only after notice and opportunity for hearing. The Director shall give written notice of the hearing at least 30 days before the date set for hearing unless the 30 days' notice is waived in writing by the licensee.

3. Unless specifically ordered otherwise, if the Director suspends one license held by an individual, all licenses held by the individual are suspended for the term of the suspension.

C. D. Director's hearings.

1. A party appearing before the Director or the Director's designee shall be afforded an opportunity to a hearing and to respond and present evidence and argument on all issues.

2. An individual appearing before the Director or the Director's designee has the right to appear in person or by counsel. A corporation appearing before the Director shall appear only through counsel. A party may submit the party's case in writing. If a party fails to appear for a hearing, the Director may act on the evidence without further notice to the party. The Director may reopen a proceeding if a party to the proceeding submits a written petition to the Director within XX days after the proceeding.

D. E.Hearing officer. If the Director assigns a matter to a hearing officer, the hearing officer shall submit to the Director within 15 days after conclusion of the hearing a written decision that includes proposed findings of fact, conclusions of law, and order. The Director may accept, reject, or modify the decision of the hearing officer . Unless modified, the decision of the hearing officer becomes the decision of the Director 45 days after the hearing officer submits the decision to the Director.

E. F.Depositions.

1. If a party desires to take the oral deposition of a witness residing outside the state or otherwise unavailable as a witness, the party shall file with the Director a petition for permission to take the deposition of the witness. The party shall specify in the deposition petition the name and address of the witness and the nature and substance of the testimony expected to be given by the witness. The Director shall grant permission to take the deposition if the Director is able to determine from the deposition petition that the witness resides outside the state or is otherwise unavailable and the witness's testimony is relevant and material.

2. The Director may, at the Director's discretion, designate the time and place at which the deposition may be taken. The party that takes a deposition is responsible for all expenses involved in taking the deposition.

3. A party taking a deposition under this subsection shall return and file the deposition with the Director within 30 days after permission for taking the deposition is granted.

F. G.Service.

1. The Department shall make service of a decision, order, or other process in person or by mail. The Department shall make service by mail by enclosing a copy of the material to be served in a sealed envelope and depositing the envelope in the United States mail, postage prepaid, addressed to the party served at the address shown by the records of the Department.

2. The Department shall calculate time periods prescribed or allowed by this Chapter, order of the Department, or applicable statute as provided in the Arizona Rules of Civil Procedure.

3. Service on an attorney who has appeared on behalf of a party constitutes service on the party. A person required to serve papers on the Director or Commission shall file the papers in the office of the Department and serve a copy on the Attorney General.

4. Proof of service may be made by the affidavit or oral testimony of the person making service.

G. H.Rehearing, review, or appeal.

1. Except as provided in subsection (H)(7), a party aggrieved by a final administrative decision rendered by the Director, may file with the Director within 30 days after service of the final administrative decision, a written motion for rehearing or review. A party filing a motion for rehearing or review of the decision shall specify in the motion the particular grounds on which the motion is made.

2. A motion for rehearing or review may be amended at any time before it is ruled on by the Director. A response may be filed within 10 days after service of the motion or amended motion by any other party. The Director may require the filing of written briefs on the issues raised in the motion and may provide for oral argument.

3. The Department may grant a rehearing or review of a decision for any of the following causes materially affecting a party's rights:

a. Irregularity in the administrative proceedings, or an order or abuse of discretion that deprived a party of a fair hearing;

b. Misconduct of the hearing officer, Director, or the prevailing party;

c. Accident or surprise that could not have been prevented by ordinary prudence;

d. Newly discovered material evidence that could not, with reasonable diligence, have been discovered and produced at the hearing;

e. Excessive or insufficient penalty;

f. Error in the admission or rejection of evidence or other errors of law occurring at the administrative hearing or during the progress of the proceedings; and

g. The findings of fact or decision is not justified by the evidence or is contrary to law.

4. The Director may affirm or modify a decision or grant a rehearing to all or any of the parties on all or part of the issues for any of the reasons listed in subsection (H)(3). The Director shall specify with particularity the grounds for an order modifying a decision or granting a rehearing. A rehearing shall cover only the matters specified.

5. Not later than 10 days after the date of a decision, after giving the parties notice and an opportunity to be heard, the Director may, on the Director's initiative, order a rehearing or review for any reason for which the Director might have granted a rehearing or review on motion of a party. After giving the parties or their counsel notice and an opportunity to be heard, the Director may grant a motion for rehearing or review for a reason not stated in the motion. In either case, the Director shall ensure that the order granting a rehearing or review specifies the grounds for the order.

6. When a motion for rehearing or review is based on affidavits, the party making the motion shall serve the affidavits with the motion. An opposing party may, within 15 days after service, serve opposing affidavits. This period may be extended by the Director for an additional 20 days for good cause shown or by written stipulation of the parties. Reply affidavits may be permitted.

7. If the Director makes a specific finding that a particular decision needs to be effective immediately to preserve the public peace, health, safety, and welfare and that a rehearing or review of the decision is impracticable, unnecessary, or contrary to the public interest, the Director shall issue the decision as a final decision without an opportunity for a rehearing or review.

8. For purposes of this subsection the terms "contested case" and "party" shall be defined as provided in A.R.S. & 41-1001.

9. 8. If the provisions of this Section are in conflict with the provisions of a statute providing for rehearing of decisions of the Director, the statutory provisions shall govern.

Notes

Ariz. Admin. Code § R19-2-123

Adopted effective August 5, 1983 (Supp. 83-4). Amended effective March 20, 1990 (Supp. 90-1). R19-2-123 recodified from R4-27-123 (Supp. 95-1). Amended by final rulemaking at 19 A.A.R. 3412, effective November 30, 2013.