Vol. 2010, No. 11 (06/01/2010) PDF - Administrative Rules - Utah.gov

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NOTICES OF PROPOSED RULES DAR File No. 33639 unnecessary. This is done in Subsections R156-46b-201(1) and R156-46b-202(1). It should be noted that a companion rule filing that includes revisions to Section R156-1-109 makes correlating changes to the designation of presiding officer to address the changes to the designation of adjudicative proceedings made by this rule filing. Finally, this filing makes other cleanup and technical changes including capitalizing the word "Division" consistently throughout the rule and deleting the reference to a private reprimand in Section R156-46b-202. (DAR NOTE: The proposed amendment to Rule R156-1 is under DAR No. 33641 in this issue, June 1, 2010, of the Bulletin.) STATUTORY OR CONSTITUTIONAL AUTHORIZATION FOR THIS RULE: Subsection 58-1-106(1)(a) and Subsection 63G-4-102(6) ANTICIPATED COST OR SAVINGS TO: ♦ THE STATE BUDGET: The Division does not anticipate any increased costs as a result of the proposed amendments. The changes will allow the Division to more efficiently handle these types of cases in an informal setting without unnecessarily devoting resources to formal proceedings. The savings allow the Division to more efficiently handle its increasing workload without requiring additional resources as soon as would otherwise be required or without reducing the level of service provided. The changes necessitated by the 2010 Legislature addressed in this filing do not result in any additional impacts. ♦ LOCAL GOVERNMENTS: The proposed amendments only apply to adjudicative proceedings in the Division with respect to contractors and Lien Recovery Fund claims. As a result, the proposed amendments do not apply to local governments. ♦ SMALL BUSINESSES: The proposed amendments only apply to adjudicative proceedings in the Division with respect to contractors and Lien Recovery Fund claims. Contractors and companies who file a Lien Recovery Fund claim may qualify as a small business; however, these proposed amendments would not directly affect the business. ♦ PERSONS OTHER THAN SMALL BUSINESSES, BUSINESSES, OR LOCAL GOVERNMENTAL ENTITIES: The proposed amendments will not result in any additional costs or savings to licensees with regard to the change in classification of contractor adjudicative proceedings. Since most cases are currently resolved by informal means, those licensees will not be affected. For the more controversial cases, the overall expense to the licensee is not expected to change significantly. The changes necessitated by the 2010 Legislature addressed in this filing do not result in any additional impacts. COMPLIANCE COSTS FOR AFFECTED PERSONS: The proposed amendments will not result in any additional costs or savings to licensees with regard to the change in classification of contractor adjudicative proceedings. Since most cases are currently resolved by informal means, those licensees will not be affected. For the more controversial cases, the overall expense to the licensee is not expected to change significantly. The changes necessitated by the 2010 Legislature addressed in this filing do not result in any additional impacts. COMMENTS BY THE DEPARTMENT HEAD ON THE FISCAL IMPACT THE RULE MAY HAVE ON BUSINESSES: It is not expected that there will be a cost increase to the contractor industry as a result of the changes in the designation of adjudicative proceedings, as experience has shown that such cases are able to be resolved informally. No fiscal impact to other businesses is anticipated by such change of procedures. THE FULL TEXT OF THIS RULE MAY BE INSPECTED, DURING REGULAR BUSINESS HOURS, AT: COMMERCE OCCUPATIONAL AND PROFESSIONAL LICENSING HEBER M WELLS BLDG 160 E 300 S SALT LAKE CITY, UT 84111-2316 or at the Division of Administrative Rules. DIRECT QUESTIONS REGARDING THIS RULE TO: ♦ Dan Jones by phone at 801-530-6720, by FAX at 801-530-6511, or by Internet E-mail at dansjones@utah.gov ♦ Dane Ishihara by phone at 801-530-7632, by FAX at 801-530-6511, or by Internet E-mail at dishihara@utah.gov INTERESTED PERSONS MAY PRESENT THEIR VIEWS ON THIS RULE BY SUBMITTING WRITTEN COMMENTS NO LATER THAN AT 5:00 PM ON 07/01/2010 INTERESTED PERSONS MAY ATTEND A PUBLIC HEARING REGARDING THIS RULE: ♦ 06/30/2010 09:00 AM, Heber Wells Bldg, 160 E 300 S, Conference Room 474, Salt Lake City, UT THIS RULE MAY BECOME EFFECTIVE ON: 07/08/2010 AUTHORIZED BY: Mark Steinagel, Director R156. Commerce, Occupational and Professional Licensing. R156-46b. Division Utah Administrative Procedures Act Rule. R156-46b-103. Authority - Purpose. This rule is adopted by the [d]Division under the authority of Title 63G, Chapter 4, Subsection 58-1-108(1), and Subsection 58-1-106(1)(a). The purposes of this rule include: (a) classifying [d]Division adjudicative proceedings; (b) clarifying the identity of presiding officers at [d]Division adjudicative proceedings; and (c) defining procedures for [d]Division adjudicative proceedings which are consistent with the requirements of Titles 58 and 63G and Rule R151-46b. 92 UTAH STATE BULLETIN, June 01, 2010, Vol. 2010, No. 11
DAR File No. 33639 NOTICES OF PROPOSED RULES R156-46b-201. Formal Adjudicative Proceedings. (1) The following adjudicative proceedings initiated by a request for agency action are classified as formal adjudicative proceedings: (a) denial of application for renewal of licensure, except denial of an application for renewal of a contractor license under Title 58, Chapter 55; (b) denial of application for reinstatement of licensure submitted pursuant to Subsection 58-1-308(5), except denial of an application for reinstatement of a contractor license under Title 58, Chapter 55; (c) denial of application for reinstatement of licensure submitted pursuant to Subsection 58-1-308(6)(b), except denial of an application for reinstatement of a contractor license under Title 58, Chapter 55; (d) special appeals board held in accordance with Section 58-1-402; (e) [approval or denial of claims against the Residence Lien Recovery Fund created under Title 38, Chapter 11, in which the claimant is precluded from obtaining the required civil judgment or administrative order against the nonpaying party involved in the claim because the nonpaying party filed bankruptcy; (f) payment of approved claims against the Residence Lien Recovery Fund described in Subparagraph (e); (g) ]declaratory order determining the applicability of statute, rule or order to specified circumstances, when determined by the director to be conducted as a formal adjudicative proceeding; and ([h]f) board of appeal held in accordance with Subsection 58-56-8(3). (2) The following adjudicative proceedings initiated by a Notice of Agency Action are classified as formal adjudicative proceedings: (a) disciplinary proceedings, except disciplinary proceedings against a contractor licensed under Title 58, Chapter 55, which result in the following sanctions: (i) revocation of licensure[ except a proceeding requesting revocation of licensure for failure to maintain a qualifier under Subsections 58-55-304(6) and (7) or a proceeding requesting revocation of licensure for failure to maintain liability insurance under Subsection 58-55-302(2)(b)]; (ii) suspension of licensure; (iii) restricted licensure; (iv) probationary licensure; (v) issuance of a cease and desist order except when imposed by citation or by an order in a contested citation hearing; (vi) administrative fine except when imposed by citation or by an order in a contested citation hearing; and (vii) issuance of a public reprimand; (b) unilateral modification of a disciplinary order; and (c) termination of diversion agreements. R156-46b-202. Informal Adjudicative Proceedings. (1) The following adjudicative proceedings initiated by a request for agency action are classified as informal adjudicative proceedings: (a) approval of application for initial licensure, renewal or reinstatement of licensure, or relicensure; (b) denial of application for initial licensure or relicensure; (c) denial of application for reinstatement of licensure submitted pursuant to Subsection 58-1-308(6)(a); (d) denial of application for reinstatement of restricted, suspended, or probationary licensure during the term of the restriction, suspension, or probation; (e) approval or denial of application for inactive or emeritus licensure status; (f) board of appeal under Subsection 58-56-8(3); (g) approval or denial of claims against the Residence Lien Recovery Fund created under Title 38, Chapter 11[, except those in which the claimant is precluded from obtaining the required civil judgment or administrative order against the nonpaying party involved in the claim because the nonpaying party filed bankruptcy]; (h) payment of approved claims against the Residence Lien Recovery Fund described in Subparagraph (g); (i) approval or denial of request to surrender licensure; (j) approval or denial of request for entry into diversion program under Section 58-1-404; (k) matters relating to diversion program; (l) contested citation hearings held in accordance with Subsection 58-55-503(4)(b); (m) approval or denial of request for modification of disciplinary order; (n) declaratory order determining the applicability of statute, rule or order to specified circumstances, when determined by the director to be conducted as an informal adjudicative proceeding; (o) approval or denial of request for correction of procedural or clerical mistakes; (p) approval or denial of request for correction of other than procedural or clerical mistakes;[ and] (q) denial of application for renewal of licensure as a contractor under Title 58, Chapter 55; (r) denial of application for reinstatement of licensure as a contractor under Title 58, Chapter 55; (s) disciplinary proceedings against a contractor licensed under Title 58, Chapter 55; and ([q]t) all other requests for agency action permitted by statute or rule governing the Division not specifically classified as formal adjudicative proceedings in Subsection R156-46b-201(1). (2) The following adjudicative proceedings initiated by a notice of agency action or request for agency action are classified as informal adjudicative proceedings: (a) [disciplinary proceeding seeking exclusively the issuance of a private reprimand; (b) ]nondisciplinary proceeding which results in cancellation of licensure; ([c]b) disciplinary sanctions imposed in a memorandum of understanding with an applicant for licensure; and (c) disciplinary proceedings against a contractor licensed under Title 58, Chapter 55.[ (d) a proceeding requesting revocation of licensure for failure to maintain a qualifier under Subsections 58-55-304(6) and (7); and UTAH STATE BULLETIN, June 01, 2010, Vol. 2010, No. 11 93
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UTAH STATE BULLETIN OFFICIAL NOTICE
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TABLE OF CONTENTS SPECIAL NOTICES..
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SPECIAL NOTICES Health Health Care
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EXECUTIVE DOCUMENTS Gary R. Herbert
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NOTICES OF PROPOSED RULES DAR File
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Page 46 and 47: NOTICES OF PROPOSED RULES DAR File
Page 133 and 134: FIVE-YEAR NOTICES OF REVIEW AND STA
Page 135: NOTICES OF LEGISLATIVE NONREAUTHORI
Page 139 and 140: RULES INDEX BY AGENCY (CODE NUMBER)
Page 141 and 142: RULES INDEX R81-4D-1 Licensing 3315
Page 143 and 144: RULES INDEX of Program Funds R277-4
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RULES INDEX Child and Family Servic
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RULES INDEX R657-62 Drawing Applica
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RULES INDEX R994-204 Covered Employ
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RULES INDEX Capitol Preservation Bo
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RULES INDEX Human Services, Adminis
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RULES INDEX cross connection contro
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RULES INDEX Education, Administrati
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RULES INDEX fire marshal Environmen
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RULES INDEX Insurance, Administrati
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RULES INDEX Insurance, Administrati
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RULES INDEX Human Services, Adminis
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RULES INDEX mineral classification
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RULES INDEX performance standards H
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RULES INDEX Public Service Commissi
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RULES INDEX Acquisition risk manage
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RULES INDEX stabilization Environme
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RULES INDEX Workforce Services, Une
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