1 Colo. Code Regs. § 211-1-3

Current through Register Vol. 47, No. 16, August 25, 2024

Rule 1 CCR 211-1-3 - Hearing Process

Basis and Purpose. The statutory authority for this Rule includes, but is not limited to, §§ 24-2-105 and 24-35-103, C.R.S. The purpose of this Rule is to define the hearing process and procedures applicable in administrative cases before the Colorado Department of Revenue's Hearings Division.

3.1.Hearing Officer Authority

A. Hearings will be held before a Hearing Officer designated by the Executive Director of the Department. In addition to any other powers authorized by statute, including § 24-4-105(4), C.R.S., the Hearing Officer shall have the authority and responsibility to:

1. Conduct a full, fair, and impartial hearing;

2. Take action to avoid unnecessary delay in the disposition of the proceeding;

3. Maintain order and professional decorum;

4. Administer oaths for the purpose of obtaining testimony;

5. Rule on matters of evidence and law;

6. Issue orders relating to hearing and prehearing matters, including discovery orders and orders requiring prehearing conferences for simplification of issues;

7. Conduct conferences with the parties and issue orders relating to prehearing, hearing, and post-hearing matters;

8. Limit irrelevant, immaterial, and unduly repetitious testimony, and reasonably limit time for presentations;

9. Rule on motions of parties or the Hearing Officer's own motion;

10. Issue initial decisions/recommendations or final decisions and orders as required or authorized by statute;

11. Order the production of any documents which are required by any statute or rule;

12. Issue or deny subpoenas; and

13. In the event of noncompliance with these Rules or any order, the Hearing Officer may impose appropriate sanctions, including, but not limited to, striking proposed witnesses and exhibits.

3.2.Entry of Appearance and Withdrawal of Counsel

A. Entries of Appearance and Withdrawals of Counsel shall be in conformance with C.R.C.P. 121 § 1-1. Any out-of-state attorney shall comply with C.R.C.P. 205.1.

1. Incorporation by Reference. C.R.C.P. 121 § 1-1 and C.R.C.P. 205.1 incorporated by reference in Rule 3.2(A) include only the versions that were in effect as of July 2023, and do not include any later amendments or editions. The Colorado Rules of Civil Procedure are available for public inspection during regular business hours at the Office of the Hearings Division of the Department of Revenue, 1881 Pierce Street, Lakewood, CO 80214. The Colorado Rules of Civil Procedure are also available for a reasonable charge from the Hearings Division at this same address, and free of charge from the Hearings Division's website.

B. An individual who is a party may be represented by an attorney or may represent themselves. In any Regulatory Hearing where the amount at issue exceeds $15,000.00, a closely held entity must be represented by an attorney according to § 13-1-127(2), C.R.S., unless the exception described in § 13-1-127, C.R.S., applies. If the Department or one of its constituent divisions appears at the hearing, the Department or constituent division will be represented by an Assistant Attorney General as required by § 24-35-112, C.R.S.

3.3.Service and Filing with the Hearings Division

A. Unless otherwise provided by statute, service of pleadings or other papers on a party or attorney representing a party should be served electronically and on the Hearings Division by emailing dor_regulatoryhearings@state.co.us. Alternatively, service may also be made by hand delivery or by first class mail to the Hearings Division address and the party's last known address. When a party is represented by an attorney, service shall be made on the attorney.

1. All pleadings or other papers are considered filed with the Hearings Division on the date of receipt by the Hearings Division. The date of receipt is reflected by the transmission date and time indicated in an electronic communication containing a filing, if the document is filed electronically, or by date and time of physical receipt by the Hearings Division, if the document is delivered via another method.

2. Parties may use an electronic signature where applicable.

B. After the Hearings Division has assigned a case number to a proceeding, all pleadings, documents, or other papers filed with the Hearings Division shall contain that case number.

C. All pleadings, exhibits, or other papers meant to be part of the administrative record in any Regulatory Hearing must be sent to the following recipients:

(1) the Hearings Division by email to dor_regulatoryhearings@state.co.us;

(2) the Hearing Officer assigned to the proceeding; and

(3) any party that has filed an appearance in the Regulatory Hearing.

D. All pleadings or other papers sent to the Hearings Division must contain a certificate of service attesting to service on all other parties to the Regulatory Hearing, and in the case of service by hand delivery or by mail, the certificate of service must provide the address where pleadings or other papers were served. The certificate must be signed, indicate which materials were served, and reflect how service was effectuated on any other parties.

E. All hearing exhibits must be submitted to the Hearing Officer in an electronic format unless a party is unable to, in which case, they can be served by hand delivery or first class mail.

1. The Hearing Officer may, in their discretion, require paper copies of the exhibits in addition to electronic copies. If paper copies of hearing exhibits are required, the Hearing Officer assigned to the proceeding will provide mailing and/or delivery instructions.

2. The Hearing Officer has the discretion to modify the means and methods of submission for hearing exhibits. Any modification to the means and methods for the submission of hearing exhibits shall be contained in the Hearing Officer's prehearing order.

3.4.Prehearing Procedures

A. If a Setting Conference is held, the Hearing Officer will issue a notice of hearing that will provide notice of the date, place, and time of the hearing and any information necessary to access a virtual hearing by video or telephone. The Hearing Officer may also issue a prehearing order that will establish all prehearing deadlines and other instructions for the submission and exchange of prehearing statements, hearing exhibits, requests for subpoenas, and filing and responding to motions.

B. Parties to a Regulatory Hearing may be required to file prehearing statements when ordered by the Hearing Officer, either in a prehearing or other order.

C. Prehearing Conferences may be held at the request of any party or upon motion or order of the Hearing Officer. Written notice of the Prehearing Conference shall be sent to all parties to a proceeding. The purpose of such a conference is to define the issues and the scope of the proceeding, to secure statements of the positions of the parties and amendments to the pleadings, to schedule the exchange of exhibits before the date set for hearing, and to arrive at any agreements that will aid in the conduct and disposition of the proceeding, including settlement between the parties prior to hearing.

3.5.Subpoenas

A. Subpoenas shall be requested from and issued by the Hearings Division and must comply with the requirements of C.R.C.P. 45. Any motion to quash a subpoena must comply and will be determined pursuant to C.R.C.P. 45.

1. Incorporation by Reference. C.R.C.P. 45 incorporated by reference in Rule 3.5(A) includes only the version that was in effect as of July 2023, and does not include any later amendments or editions. The Colorado Rule of Civil Procedure is available for public inspection during regular business hours at the Office of the Hearings Division at the Department of Revenue, 1881 Pierce Street, Lakewood, CO 80214. The Colorado Rule of Civil Procedure is also available for a reasonable charge from the Hearings Division at this same address, and free of charge from the Hearings Division's website.

3.6.Rules of Civil Procedure

A. To the extent practicable, and unless inconsistent with these Rules, the Colorado Rules of Civil Procedure apply to matters before the Hearings Division. Unless the context otherwise requires, whenever the words "court" or "judge" appears in a relevant Colorado Rule of Civil Procedure, those words shall be construed to mean the Hearings Division and Hearing Officer, respectively.

B. C.R.C.P. 16 and 26-37 do not apply to Regulatory Hearings unless otherwise ordered by the assigned Hearing Officer.

C. Incorporation by Reference. The Colorado Rules of Civil Procedure incorporated by reference in Rules 3.7(A) and 3.7(B) include only the versions that were in effect as of July 2023, and do not include any later amendments. The Colorado Rules of Civil Procedure are available for public inspection during regular business hours at the Office of the Hearings Division at the Department of Revenue, 1881 Pierce Street, Lakewood, CO 80214. The Colorado Rules of Civil Procedure are also available for a reasonable charge from the Hearings Division at this same address, and free of charge from the Hearings Division's website.

3.7.Submission of Stipulations/Agreements as to Facts and/or Law

A. Parties are encouraged to save time at hearing by stipulating, preferably in advance, to facts or law when they are not in dispute. Such agreements shall be reduced to writing and filed with the Hearings Division as soon as practicable.

B. When no factual disputes exist, the Hearing Officer may proceed to oral argument or argument by brief from the parties on the legal issues in dispute without an evidentiary hearing.

3.8.Settlements

A. Parties shall promptly notify the Hearing Officer of all settlements, stipulations, agency orders, or any other action eliminating the need for a hearing. Following final agency action by the State Licensing Authority, the division of the Department that initiated the Regulatory Hearing and/or referred it to the Hearings Division for hearing shall file a notice of final agency action alerting the Hearings Division that the case can be closed.

3.9.Ex Parte Communications

A. A party or legal counsel for a party shall not initiate any communication with a Hearing Officer pertaining to a matter before the Hearings Division unless all other parties participate in the communication or the prior consent of all other parties or their counsel has been obtained. Copies of all pleadings or correspondence filed with the Hearings Division or directed to a Hearing Officer by any party shall be served upon all other parties or their counsel.

3.10.Computation of Time

A. In computing any period of time prescribed or allowed by these Rules, the provision of C.R.C.P. 6 shall apply. The time periods of these Rules may be modified at the discretion of the Hearing Officer.

B. Incorporation by Reference. C.R.C.P. 6 incorporated by reference in Rule 3.12(A) includes only the version that was in effect as of July 2023, and does not include later amendments or editions. The Colorado Rule of Civil Procedure is available for public inspection during regular business hours at the Office of the Hearings Division at the Department of Revenue, 1881 Pierce Street, Lakewood, CO 80214. The Colorado Rule of Civil Procedure is also available for a reasonable charge from the Hearings Division at this same address, and free of charge from the Hearings Division's website.

3.11.Default Procedures

A. Except in Tax Matters, any default procedures requested by any party shall be governed by the Administrative Procedures Act pursuant to § 24-4-105(2)(b),

C.R.S.

3.12.Hearing Officer Decisions

A. Following any Regulatory Hearing, the Hearing Officer shall issue an initial decision or final determination. The Hearing Officer shall determine whether the proponent of the Regulatory Hearing has proven its case by a preponderance of the evidence, and make written findings of evidentiary fact, conclusions of law, and a recommendation as to the appropriate sanction, if applicable. The written findings shall constitute the initial decision subject to review by the State Licensing Authority or the referring board or commission. The initial decision of the Hearing Officer shall be served to all parties to the proceeding.

B. Hearing Officer decisions issued in Tobacco and Taxation cases are final agency actions.

3.13.Dismissal for Lack of Jurisdiction

A. Whenever it appears that a matter pending before the Hearings Division involves questions over which the Hearings Division does not have jurisdiction, the matter may be dismissed on motion of any party to the action or on the Hearing Officer's own motion.

3.14.Testimony Under Oath

A. All testimony in Hearings Division proceedings shall be given under oath, administered by the Hearing Officer presiding over the hearing.

3.15.Hearing Procedure

A. Objections shall be made pursuant to the Colorado Rules of Evidence.

1. Incorporation by Reference. The Colorado Rules of Evidence incorporated by reference in Rule 3.17(A) include only the version that was in effect as of July 2023, and do not include any later amendments or editions. The Colorado Rules of Evidence are available for public inspection during regular business hours at the Office of the Hearings Division at the Department of Revenue, 1881 Pierce Street, Lakewood, CO 80214. The Colorado Rules of Evidence are also available for a reasonable charge from the Hearings Division at this same address, and free of charge from the Hearing Division's website.

B. Motions and objections are permitted throughout Regulatory Hearings.

C. Hearings are recorded. Any party may request a copy of the recording. The official case file will be maintained in electronic format by the Department.

1 CCR 211-1-3

46 CR 21, November 10, 2023, effective 11/30/2023

47 CR 08, April 25, 2024, effective 5/15/2024