Ariz. Admin. Code § 3-7-110

Current through Register Vol. 30, No. 50, December 13, 2024

Section R3-7-110 - Motion for Rehearing or Review

A. Except as provided in subsection (I), any party in a contested case or appealable agency action before the Division who is aggrieved by a decision rendered in the case may file with the Division, not later than 10 days after service of the decision, a written motion for rehearing or review of the decision, pursuant to A.R.S. Title 41, Chapter 6, Article 10, specifying the particular grounds for the motion. For purposes of this subsection, a decision shall be deemed to have been served when personally delivered or mailed by certified mail to the party at the party's last known residence or place of business; or by electronic mail if the party has agreed to receive electronic notifications.

B. A motion for rehearing or review may be amended at any time before it is ruled upon by the Division. A party shall provide a copy of any pleading on all opposing parties or parties who may be directly affected by the issues presented, and the pleading shall contain a certification of delivery to listed recipients. A response may be filed within 15 days after service of the motion or amended motion by any other party. The Division may require the filing of written briefs upon the issues raised in the motion and may provide for oral argument.

C. A rehearing or review of the decision may only be granted for any of the following reasons materially affecting the moving party's rights:

1. Any irregularity in the hearing, order, or abuse of discretion depriving the moving party of a fair hearing;

2. Misconduct of the Division, the administrative law judge, or the prevailing party;

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

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

5. Excessive or insufficient penalties;

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

7. That the decision is not justified by the evidence or is contrary to law.

D. If a rehearing is granted, the Division may hear the case or may refer the case to the Office of Administrative Hearings. The decision of the administrative law judge becomes the decision of the Division unless rejected or modified by the Division in accordance with A.R.S. Title 41, Chapter 6, Article 10. A decision of the Division at this level of review is a final decision.

E. Except for a decision under subsection (I), a rehearing or review of the final Division decision shall be requested in order for the aggrieved party to have the right to appeal under A.R.S. Title 12, Chapter 7, Article 6.

F. The Division may affirm or modify its decision, or grant a rehearing or review. After giving the parties or their counsel notice and an opportunity to be heard, the Division may grant a rehearing or review for a reason not stated in a party's motion. An order granting a rehearing or review shall specify the grounds on which the rehearing or review is granted. The rehearing or review shall cover only those matters so specified.

G. The Division, on its own initiative, within the time-frame for filing a motion for rehearing or review under this rule, may order a rehearing or review for any of the reasons set forth in subsection (C), after giving the parties notice and an opportunity to be heard.

H. When a motion for rehearing or review is based upon affidavits, the moving party shall serve the affidavits with the motion. An opposing party has 15 days from the date of service to serve opposing affidavits. The Division may extend the period to respond up to 20 days for good cause, or by written stipulation of the parties. If the Division permits reply affidavits, the replying party has five business days in which to serve them.

I. If the Division makes specific findings that the immediate effectiveness of a decision is necessary for the immediate preservation of the public peace, health, and safety and that a rehearing or review of the decision is impracticable, unnecessary, or contrary to the public interest, the Division may issue the decision as a final decision without an opportunity for a rehearing or review. If a decision is issued as a final decision without an opportunity for rehearing or review, any application for judicial review of the decision shall be made within the time limits permitted for applications for judicial review of the Division's final decision.

Ariz. Admin. Code § R3-7-110

Adopted by final rulemaking at 23 A.A.R. 2280, effective 10/2/2017. Amended by final rulemaking at 29 A.A.R. 441, effective 3/5/2023.