Ariz. Admin. Code § 4-38-114

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

Section R4-38-114 - Rehearing or Review of Decision

A. Except as provided in subsection (G), any party to an appealable agency action or a contested case before the Board who is aggrieved by a decision rendered in the case may file with the Board not later than 30 days after service of the decision, a written motion for rehearing or review of the decision, specifying the particular grounds for the motion. A decision is served when personally delivered or five days after the date the decision is mailed to the party at the party's last known residence or place of business.

B. A motion for rehearing may be amended at any time before a ruling by the Board. Any other party may file a response within 15 days after the motion or amended motion is filed. The Board may require the filing of written briefs upon the issues raised in the motion and may provide for oral argument.

C. The Board may grant a rehearing or review of the decision for any of the following reasons materially affecting the moving party's rights:

1. Irregularity in the administrative proceedings of the Board or the hearing officer, or any order or abuse of discretion that results in the moving party being deprived of a fair hearing;

2. Misconduct of the Board or the non-moving party;

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

4. Newly discovered material evidence that with reasonable diligence could not have been discovered 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 administrative hearing; or

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

D. The Board may affirm or modify the decision or grant a rehearing to all or any of the parties and on all or part of the issues for any of the reasons set forth in subsection (C). An order granting a rehearing shall specify the ground or grounds on which the rehearing is granted, and the rehearing shall cover only those matters.

E. Not later than 30 days after a decision is rendered, the Board may on its own initiative order a rehearing or review of its decision for any reason for which it might have granted a rehearing on motion of a party. After giving the parties or their counsel notice and an opportunity to be heard on the matter, the Board may grant a motion for rehearing for a reason not stated in the motion. In either case, the order granting the rehearing shall specify the grounds for the rehearing.

F. When a motion for rehearing is based upon an affidavit the party shall serve the affidavit with the motion. Within 10 days after service, an opposing party may serve an opposing affidavit. The Board may extend the period to serve an opposing affidavit for an additional 20 days for good cause shown or by written stipulation of the parties. The Board may permit a reply affidavit.

G. If the Board makes specific findings that the immediate effectiveness of the decision is necessary for the immediate preservation of the public peace, health, or safety and that a rehearing or review of the decision is impracticable, unnecessary, or contrary to the public interest, the Board 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, any application for judicial review of the decision shall be made within the time limits permitted for applications for judicial review of the Board's final decisions.

H. The terms "contested case" and "party" as used in this Section are defined in A.R.S. § 41-1001. The term "appealable agency action" is defined in A.R.S. § 41-1092.

Ariz. Admin. Code § R4-38-114

Adopted effective June 3, 1988 (Supp. 88-2). Amended by final rulemaking at 11 A.A.R. 2008, effective July 2, 2005 (Supp. 05-2).