Any person may request that the Department issue an advisory
ruling with respect to the applicability of any statute or rule administered by
the Department to that person's property or to acts or events in which that
person has a substantial interest. A request for an advisory ruling must be
based on existing facts and not on hypothetical situations.
A.
Request. A request for an
advisory ruling must be in writing and must include:
(1) the name, address, and telephone number
of the person requesting the ruling;
(2) the name of the legal owner of the
property that is the subject of the request;
(3) the statute or rule of which an
interpretation is requested;
(4) a
clear and definite statement of the ruling requested, and the issues presented
by the request;
(5) all facts that
are necessary to issue the advisory ruling;
(6) all assumptions that relate to the
advisory ruling;
(7) facts that
establish the substantial interest of the requesting person in the acts, events
or property with respect to which the ruling is requested; and
(8) a statement of whether, to the
requester's knowledge, the issue upon which an advisory ruling is sought is the
subject of a pending Department licensing or enforcement proceeding or a prior
advisory ruling.
The written request must be clearly captioned as "REQUEST FOR
ADVISORY RULING" and directed to the division of the Department responsible for
administering the statute or rule in question. A request that does not specify
that it is for an advisory ruling will be treated as a request for an informal
staff opinion in accordance with section
4(D) of this
rule.
The Department may decline to provide an advisory ruling when
the person submitting the request does not demonstrate that it has title,
right, or interest or the written consent of the property owner to obtain the
ruling for the property that is the subject of the request.
B.
Department Action.
Issuance of advisory rulings by the Department is discretionary and will be
determined on a case-by-case basis. As expeditiously as possible, but no later
than 90 days from the filing of a request, the Department will either issue a
written advisory ruling or notify the requester of the reasons that an advisory
ruling will not be rendered.
C.
Advisory Ruling Not Binding. No advisory ruling constitutes
res judicata or legal precedent with respect to the issues
raised before the Department. Advisory rulings are not binding on the
Department in any subsequent enforcement action; however, justifiable reliance
on the ruling is considered in mitigation of any penalty sought to be assessed.
Advisory rulings are not final agency actions and are not appealable to the
Board or Superior Court.
D.
Informal Staff Opinions. Any person may informally inquire of the
Department staff with respect to the applicability of any statute or rule
administered by the Department. The staff may decline to respond to such
requests because the facts are not sufficiently complete or detailed to form
the basis of an opinion, because resources or time are not available to the
staff for the purposes of preparing an opinion, or because the matter is
properly the subject of an advisory ruling or legal opinion. A written or oral
opinion provided by Department staff under this subsection does not bind the
Department in any subsequent proceeding. Informal staff opinions are not final
agency actions and are not appealable to the Board or Superior Court.
