The DBCF may, for good cause, refuse to issue a declaratory
opinion. The circumstances in which declaratory opinions will not be issued
include, but are not necessarily limited to:
1. The matter is outside the primary
jurisdiction of the DBCF;
2. Lack
of clarity concerning the question presented;
3. There is pending or anticipated
litigation, administrative action, or other adjudication which may either
answer the question presented by the request or otherwise make an answer
unnecessary;
4. The statute, rule,
or order on which a declaratory opinion is sought is clear and not in need of
interpretation to answer the question presented by the request;
5. The facts presented in the request are not
sufficient to answer the question presented;
6. The request fails to contain information
required by these rules or the requestor failed to follow the procedure set
forth in these rules;
7. The
request seeks to resolve issues which have become moot, or are abstract or
hypothetical such that the requestor is not substantially affected by the rule,
statute or order on which a declaratory opinion is sought;
8. No controversy exists concerning the issue
as the requestor is not faced with existing facts or those certain to arise
which raise a question concerning the application of the statute, rule, or
order;
9. The question presented by
the request concerns the legal validity of a statute, rule or order;
10. The request is not based upon facts
calculated to aid in the planning of future conduct, but is, instead, based on
past conduct in an effort to establish the effect of that conduct;
11. No clear answer is
determinable;
12. The question
presented by the request involves the application of a criminal statute or sets
forth facts which may constitute a crime;
13. The answer to the question presented
would require the disclosure of information which is privileged or otherwise
protected by law from disclosure;
14. The question is currently the subject of
an Attorney General's opinion request; or,
15. The question has been answered by an
Attorney General's opinion.
Additionally, a declaratory opinion will not be issued where
a similar request is pending before this agency, or any other agency or a
proceeding is pending on the same subject matter before any agency,
administrative or judicial tribunal, or where such an opinion would constitute
the unauthorized practice of law.
A declaratory opinion will not be issued if it may adversely
affect the interests of the State, the DBCF, or any of their officers or
employees in any litigation which is pending or may reasonably be expected to
arise. Where a request for a declaratory opinion involves a question of law,
the DBCF may refer the matter to the State Attorney General.
Moreover, a declaratory opinion will not be issued where the
question involves eligibility for a license, permit, certificate or other
approval by the DBCF or some other agency and there is a statutory or
regulatory application process by which eligibility for said license, permit,
or certificate or other approval may be determined.
