Section R2-8-405. Rehearing; Review of a Final Decision

A.      Except as provided in subsection (H), any party in an appeal- able agency action aggrieved by a final decision may file with the Board a written motion for rehearing or review of the final decision specifying the particular grounds not later than 30 days after service of the decision.

B.       A party may amend a motion for rehearing or review at any time before the Board rules on the motion. A 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 argu- ment.

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

1.        Irregularity in the administrative proceedings of the agency or the hearing officer, or any order or abuse of discretion that deprives the moving party of a fair hear- ing;

2.        Misconduct of the Board, the hearing officer, or the pre- vailing party;

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

4.        Newly discovered material evidence that could not with reasonable diligence 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.        That 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 or review to all or any of the parties on all or part of the issues for any of the reasons in subsection (C). An order granting a rehearing or review shall specify with particularity the grounds for the order.

E.       Not later than 10 days after the decision, the Board may, after giving each party notice and an opportunity to be heard, order a rehearing or review of its decision for any reason for which it might have granted a rehearing or review on motion of a party. After giving the parties or their counsel notice and an opportu- nity to be heard on the matter, the Board may grant a motion for rehearing or review for a reason not stated in the motion. In either case, the order granting a rehearing or review shall spec- ify the grounds on which it is granted.

F.       When a motion for rehearing or review is based upon an affi- davit, the affidavit shall be filed with the motion. An opposing party may, within 15 days after filing, file an opposing affida- vit. The Board may extend the period for filing an opposing affidavit for not more than 20 days for good cause shown or by written stipulation of the parties. The Board may permit a reply affidavit.

G.      The Board shall rule on the motion within 15 days after the response to the motion is filed or if a response is not filed, within five days of the expiration of the response period.

H.      If the Board makes a specific finding that the immediate effec- tiveness of a particular decision is necessary for the preserva- tion of the public peace, health, and safety and that a rehearing or review of the decision is impracticable, unnecessary, or con- trary to the public interest, the decision may be issued as a final decision without an opportunity for a rehearing or review. If a decision is issued as a final decision without an opportu- nity for rehearing or review, an application for judicial review of the decision may be made within the time limits permitted for applications for judicial review of the Board’s final deci- sions.

Historical Note

New Section made by final rulemaking at 11 A.A.R. 444, effective January 4, 2005 (Supp. 05-1).