Section R4-1-114. Hearing; Rehearing or Review

A.       Hearing: The Board or an Administrative Law Judge (ALJ) employed by the Office of Administrative Hearings (OAH) shall hear all contested cases and appealable agency actions. The Board shall conduct hearings according to the provisions of A.R.S. Title 41, Chapter 6, Article 10 as supplemented by R4-1-117.  The  OAH  shall  conduct  hearings   according  to

A.R.S. Title 41, Chapter 6, Article 10 and the rules and proce- dures established by the OAH. To the extent that there is no conflict with A.R.S. Title 41, Chapter 6, Article 10, the provi- sions of A.R.S. § 32-743 apply to hearings conducted by the Board and the OAH. The following subsections apply to hear- ings conducted by the Board and hearings conducted by the OAH where applicable.

1.        Power to join any interested party: Any board member or the ALJ may join as a party applicant or as a party defen- dant, any person, firm or corporation, that appears to have an interest in the matter before the Board.

2.        Stipulation at hearing: The parties may stipulate to facts that are not in dispute. The stipulation may be in writing or may be made orally by reading the stipulation into the record at the hearing. The stipulation is binding upon the parties unless the Board or the ALJ grants permission to withdraw from the stipulation. The Board or the ALJ may set aside any stipulation.

3.        Settlements and consent orders: At any time before or after formal disciplinary proceedings have been instituted against a registrant, the registrant may submit to the Board an offer of conditional settlement to avoid formal disciplinary proceedings by the Board. In the offer of conditional settlement, the registrant shall agree to take specific remedial steps such as enrolling in CPE courses, limiting the scope of the registrant's practice, accepting limitation on the filing of public reports, and submitting the registrant's work product for peer review. If the Board determines that the proposed conditional settlement will protect the public safety and welfare and is more likely to rehabilitate or educate the registrant than formal disci- plinary action under A.R.S. § 32-741, the Board may accept the offer and enter an order that incorporates the

registrant's proposed conditional settlement and to which the registrant consents. A consent order issued under this subsection shall provide that, upon successful compliance by the registrant with all provisions of the order, the disci- plinary proceedings shall be terminated and any notice of hearing previously issued shall be vacated. The consent order shall further provide that, upon failure of the regis- trant to comply with all provisions of the order, or upon the discovery of material facts unknown to the Board at the time the Board issued the order, formal disciplinary proceedings against the registrant may be instituted or resumed. The consent order  additionally may provide that, upon failure of the registrant to comply with all pro- visions of the order, the Board  may immediately  and summarily suspend the registrant's certificate for not more than one year. Within 30 days after the summary suspension, the registrant may request a hearing solely concerning the issue of compliance with the consent order.

4.        Decisions and orders: The Board shall make all decisions and orders by a majority vote of the members considering the case. The Board shall issue a final written decision in a contested case or state the decision on the record. The decision shall state separately the findings of fact and conclusions of law on which the decision is based, and the Board's order to implement the decision. All written decisions and orders of the Board shall be signed by the President or Secretary of the Board. When the Board sus- pends or revokes the certificate of a registrant, the Board may order the registrant to return the registrant's certifi- cate within 30 days after receipt of the order. The Board shall serve each party, each attorney of record, and the Attorney General with a copy of each decision or order of the Board, as provided in R4-1-117.

B.       ALJ: In hearings conducted by the OAH, the ALJ shall pro- vide the Board with written findings of fact, conclusions of law, and a recommended order within 20 days after the conclu- sion of the hearing or as otherwise provided by A.R.S. Title 41, Chapter 6, Article 10. The Board's decision approving or modifying the ALJ's recommendations is the final decision of the Board, subject to the filing of a motion for rehearing or review as provided in subsection (C).

C.       Rehearing or Review: Any party aggrieved by a decision of the Board may file with the Board a written motion for rehear- ing or review within 30 days after service of the decision spec- ifying the particular grounds for the motion. The Attorney General may file a response to the motion for rehearing within 15 days after service of the motion. The Board may require the filing of written briefs upon issues raised in the motion for rehearing or review and provide for oral argument. Upon review of the documents submitted, the Board may modify the decision or vacate it and grant a rehearing for any of the fol- lowing causes materially affecting a party's rights:

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

2.        Misconduct of the Board or the ALJ;

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 during the progress of the proceeding; or

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

Historical Note

Former Rules 5A, 5B, 5C; Amended effective January 3, 1977 (Supp. 77-1). Amended effective February 22, 1978 (Supp. 78-1). Former Section R4-1-14 renumbered as Section R4-1-114 without change effective July 1, 1983 (Supp. 83-4). Amended effective December 6, 1995

(Supp. 95-4). Amended effective November 20, 1998 (Supp. 98-4). Amended by final rulemaking at 20 A.A.R.

520, effective February 4, 2014 (Supp. 14-1).