Utah Admin. Code R156-1-109 - Presiding Officers
(1) This section
establishes the presiding officers for the Division under Subsection
63G-4-103(1)(h)
and Sections
58-1-104,
58-1-106,
58-1-109,
58-1-202,
58-1-203,
58-55-103, and
58-55-201, except as otherwise
designated in writing by the Director, or by the Construction Services
Commission under Title 58, Chapter 55, Utah Construction Trades Licensing
Act.
(2) The Division or Department
employee designated in writing by the Director is the presiding officer for
issuance of:
(a) notices of agency action;
and
(b) notices of hearing issued
concurrently with a notice of agency action or issued in response to a request
for agency action.
(3)
Under Subsections
58-1-109(2) and
58-1-109(4) a
Department administrative law judge is the presiding officer for entering an
order of default against a party and conducting further proceedings to complete
the adjudicative proceeding, including issuing a recommended order to the
Director or Construction Services Commission determining the discipline to be
imposed, licensure action to be taken, relief to be granted, or other
appropriate matters.
(4) Except as
provided in Subsection (9), the presiding officers for adjudicative proceedings
before the Division are as follows:
(a) the
Director is the presiding officer for the following adjudicative proceedings,
however resolved, including stipulated settlements and hearings:
(i) formal adjudicative proceedings under:
(A) Subsection
R156-46b-201(1)(b),
request for declaratory order conducted as a formal adjudicative
proceeding;
(B) Subsection
R156-46b-201(2)(a),
formal disciplinary proceeding for revocation, suspension, restricted
licensure, probationary licensure, cease and desist order or administrative
fine not through citation, or public reprimand;
(C) Subsection
R156-46b-201(2)(b),
unilateral modification of disciplinary order; and
(D) Subsection
R156-46b-201(2)(c),
termination of diversion agreement or program contract under Section
58-4a-107; and
(ii) informal adjudicative
proceedings under:
(A) Subsection
R156-46b-202(1)(d),
payment of approved claim against the Residence Lien Recovery Fund;
(B) Subsection
R156-46b-202(1)(e)(iii),
approval or denial of request for modification of a disciplinary
order;
(C) Subsection
R156-46b-202(1)(e)(v),
approval or denial of request for correction of other than procedural or
clerical mistakes;
(D) Subsection
R!56-46b-202(1)(h), request for declaratory order conducted as an informal
adjudicative proceeding;
(E)
Subsection R156-46b-202(1)(i),
disciplinary sanction imposed in a stipulation or memorandum of understanding
with a licensure applicant;
(F)
Subsection R156-46b-202(1)(j),
other requests for agency action not designated as a formal adjudicative
proceeding;
(G) Subsection
R156-46b-202(2)(a),
nondisciplinary proceeding that results in cancellation of licensure;
(H) Subsection
R156-46b-202(2)(b)(ii),
disciplinary proceeding against a controlled substance licensee;
(I) Subsection
R156-46b-202(2)(c),
disciplinary proceeding for violation of an order governing a license;
and
(J) Subsection
R156-46b-202(2)(d),
disciplinary proceeding limited to Subsection
58-1-501(2)(a)(iii) or
(iv) or Section
R156-1-501.
(b) the bureau manager or program
coordinator over the profession or program involved is the presiding officer
for:
(i) formal adjudicative proceedings under
Subsection R156-46b-201(1)(c),
for determining if a request for a board of appeal is properly filed under
Subsections R156-15A-210(1) through
(4); and
(ii) informal adjudicative proceedings under:
(A) Subsection
R156-46b-202(1)(a),
approval or denial of an application for initial licensure, renewal,
reinstatement, inactive or emeritus status, tax credit certificate, or criminal
history determination;
(B)
Subsection R156-46b-202(1)(b),
favorable or unfavorable criminal history determination;
(C) Subsection
R156-46b-202(1)(e)(i),
approval or denial of request to surrender licensure;
(D) Subsection
R156-46b-202(1)(e)(iv),
approval or denial of request for correction of procedural or clerical
mistakes;
(E) Subsection
R156-46b-202(2)(b)(iii),
disciplinary proceeding against a contract security company or armored car
company for failure to replace a qualifier;
(F) Subsection
R156-46b-202(2)(b)(iv),
disciplinary proceeding against a hunting guide or outfitter for unprofessional
conduct under Subsection
R156-79-502(12)
or R156-79-502(14);
and
(G) Subsection
R156-46b-202(2)(e),
disciplinary proceeding regarding renewal requirements.
(5) A Department
administrative law judge licensed in good standing with the Utah State Bar is
the presiding officer for informal citation hearings under Subsection
R156-46b-202(1)(g).
(6)
(a) The
Uniform Building Code Commission is the presiding officer for formal
adjudicative proceedings under Subsection
R156-46b-201(1)(c)
for convening a board of appeal under Subsection
15A-1-207(3),
serving as fact finder at the evidentiary hearing, and entering the final
order.
(b) A Department
administrative law judge shall conduct the hearing as specified in Subsection
58-1-109(2).
(7) The Residence Lien Recovery
Fund manager, bureau manager, or program coordinator designated in writing by
the Director is the presiding officer for informal adjudicative proceedings
under Subsection R156-46b-202(1)(c),
for approval or denial of claims against the Residence Lien Recovery
Fund.
(8)
(a) The Utah Professionals Health Program
manager or an alternate Department employee designated in writing by the
Director is the presiding officer for informal adjudicative proceedings under
Title 58, Chapter 4a, Utah Professionals Health Program, including:
(i) Subsection
R156-46b-202(1)(e)(ii),
request for entry into and participation in the Utah Professionals Health
Program; and
(ii) Subsection
R156-46b-202(1)(f),
matters relating to the Utah Professionals Health Program that do not involve
termination under Section
58-4a-107.
(b) Each program contract for entry into and
participation in the Utah Professionals Health Program shall require the
written concurrence of the Division director.
(9)
(a)
(i)
(A) The
Construction Services Commission is the presiding officer for adjudicative
proceedings under Title 58, Chapter 55, Utah Construction Trades Licensing Act,
however resolved including stipulated settlements and hearings, except as
otherwise specified in this rule.
(B) Orders adopted by the Commission as
presiding officer require the concurrence of the Director.
(ii) The Construction Services Commission is
the presiding officer:
(A) for informal
adjudicative proceedings under:
(I) Subsection
R156-46b-202(1)(e)(iii),
approval or denial of request for modification of a disciplinary
order;
(II) Subsection
R156-46b-202(1)(e)(v),
approval or denial of request for correction of other than procedural or
clerical mistakes;
(III) Subsection
R156-46b-202(1)(h),
request for declaratory order conducted as an informal adjudicative
proceeding;
(IV) Subsection
R156-46b-202(1)(i),
disciplinary sanctions imposed in a stipulation or memorandum of understanding
with a licensure applicant;
(V)
Subsection R156-46b-202(1)(j),
other requests for agency action not designated as a formal adjudicative
proceeding;
(VI) except for
dismissals under Subsection (9)(d)(vi), Subsection
R156-46b-202(2)(b)(i)
disciplinary proceedings against a contractor, plumber, electrician, or alarm
company;
(VII) Subsection
R156-46b-202(2)(c),
disciplinary proceedings concerning violations of an order governing a license;
and
(VIII) Subsection
R156-46b-202(2)(d),
disciplinary proceeding limited to Subsection
58-1-501(2)(a)(iii) or
(iv) or Section
R156-1-501;
(B) to serve as fact finder and adopt orders
in formal evidentiary hearings for adjudicative proceedings involving persons
licensed or required to be licensed under Title 58, Chapter 55, Utah
Construction Trades Licensing Act; and
(C)
(I) to
review recommended orders of a board, an administrative law judge, or other
presiding officer who acted as the fact finder in an evidentiary hearing
involving a person licensed or required to be licensed under Title 58, Chapter
55, Utah Construction Trades Licensing Act, and to adopt an order of its own;
and
(II) in adopting its order, the
Construction Services Commission may accept, modify, or reject the recommended
order.
(iii)
(A) Orders of the Construction Services
Commission shall address the issues before the Construction Services Commission
and shall be based upon the record developed in an adjudicative proceeding
conducted by the Construction Services Commission.
(B) If the Commission has designated another
presiding officer to conduct an adjudicative proceeding and submit a
recommended order, the record to be reviewed by the Construction Services
Commission shall consist of the findings of fact, conclusions of law, and
recommended order submitted by the presiding officer based upon the evidence
presented in the adjudicative proceeding before the presiding
officer.
(iv)
(A) The Construction Services Commission or
its designee shall submit an adopted order to the Director for the Director's
concurrence or rejection within 30 days after it receives a recommended order
or adopts an order, whichever is earlier.
(B) An adopted order is issued and becomes a
final order upon the concurrence of the Director.
(v)
(A)
Under Subsection
58-55-103(10), if
the Director refuses to concur in an adopted order, the Director shall return
the adopted order to the Construction Services Commission or its designee with
the reasons in writing.
(B) The
Construction Services Commission or its designee shall reconsider the returned
adopted order and resubmit an adopted order to the Director, whether or not
modified, within 30 days of the date of the initial or subsequent
return.
(C) The Director shall
consider the resubmitted adopted order and either concur rendering the order
final, or refuse to concur and issue a final order, within 90 days of the date
of the initial recommended order.
(D) If the time frames in this subsection are
followed, this subsection may not preclude an informal resolution such as an
executive session of the Construction Services Commission or its designee with
the Director to resolve the reasons for the Director's refusal to concur in an
adopted order.
(vi) The
record of the adjudicative proceeding shall include recommended orders, adopted
orders, refusals to concur in adopted orders, and final orders.
(vii) The final order issued by the
Construction Services Commission and concurred in by the Director, or not
concurred in by the Director and issued by the Director, may be appealed by
filing a request for agency review with the Executive Director.
(viii) The content of orders shall comply
with Subsection
63G-4-203(1) and
Sections 63G-4-208 and
63G-4-209.
(b) The Director is the presiding officer for
the concurrence role in disciplinary proceedings under Subsections
R156-46b-202(2)(b)(i),
R156-46b-202(2)(c),
and R156-46b-202(2)(d)
as required by Subsection
58-55-103(1)(b)(iv).
(c) A Department administrative law judge is
the presiding officer to conduct formal adjudicative proceedings before the
Construction Services Commission and its advisory boards, as specified in
Subsection
58-1-109(2).
(d) The bureau manager is the presiding
officer to conduct informal adjudicative proceedings under:
(i) Subsections
R156-46b-202(1)(a)(i) through
(1)(a)(iv), approval or denial of an
application for initial licensure, renewal, reinstatement, inactive or emeritus
status;
(ii) Subsection
R156-46b-202(1)(a)(vi),
approval or denial of an application for criminal history
determination;
(iii) Subsection
R156-46b-202(1)(b),
favorable or unfavorable criminal history determination;
(iv) Subsection
R156-46b-202(1)(e)(i),
approval or denial of request to surrender licensure;
(v) Subsection
R156-46b-202(1)(e)(iv),
approval or denial of request for correction of procedural or clerical
mistakes;
(vi) dismissal of a
Subsection R156-46b-202(2)(b)(i)
disciplinary proceeding based upon the respondent's documented compliance, such
as by the respondent replacing a qualifier, providing a required bond, or
obtaining necessary insurance; and
(vii) Subsection
R156-46b-202(2)(e),
disciplinary proceeding regarding renewal requirements.
(e) The Plumbers Licensing Board is the
presiding officer to serve as the fact finder and to issue recommended orders
to the Construction Services Commission in formal evidentiary hearings for
adjudicative proceedings involving persons licensed as or required to be
licensed as plumbers.
(f) The
Electricians Licensing Board is the presiding officer to serve as the fact
finder and to issue recommended orders to the Construction Services Commission
in formal evidentiary hearings for adjudicative proceedings involving persons
licensed as or required to be licensed as electricians.
(g) The Alarm System Security and Licensing
Board is the presiding officer to serve as the fact finder and to issue
recommended orders to the Construction Services Commission in formal
evidentiary hearings for adjudicative proceedings involving persons licensed as
or required to be licensed as alarm companies or agents.
(10) At the direction of a manager or program
coordinator, a licensing technician or program technician may sign an informal
order in the technician's name if:
(a) the
manager or program coordinator approves the wording in advance; and
(b) the caption "FOR THE MANAGER" or "FOR THE
PROGRAM COORDINATOR" immediately precedes the technician's signature.
Notes
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