Section R4-10-115. Rehearing or Review of Decisions

A.      Except as provided in subsection (G), any party in a contested case before the Board who is aggrieved by a decision rendered in such case may file with the Board, not later than 15 calendar days after service of the decision, a written motion for rehear- ing or review of the decision specifying particular grounds therefor. 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’s last known residence or place of business.

B.       A motion for rehearing or review may be amended at any time before it is ruled upon by the Board. A response may be filed within 10 calendar days after service of such motion or amended motion by any party. The Board may require the fil- ing 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 be granted for any of the following causes materially affecting the moving party’s rights:

1.        Irregularity in the administrative proceedings of the agency or its hearing officer or the prevailing party, or any order or abuse of discretion, whereby the moving party was deprived of a fair hearing;

2.        Misconduct of the Board or its hearing officer or prevail- ing party;

3 Accident or surprise  which could  not  have been  pre- vented by ordinary prudence;

4.        Newly discovered material evidence which could  not with reasonable diligence have been discovered and pro- duced 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.        A decision which is not justified by the evidence or is contrary to law.

D.      Not later than 10 calendar days after the Board’s receipt of a motion for rehearing or review, the Board may affirm or mod- ify the decision or grant a rehearing or review to 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 or review shall specify with particularity the ground or grounds on which the rehearing or review is granted, and the rehearing or review shall cover only those matters so specified.

E.       Not later than 15 calendar 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 or review on motion of a party. After giving the par- ties or their counsel notice and an opportunity 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 such a rehearing or review shall specify the grounds therefor.

F.       When a motion for rehearing or review is based upon affida- vits, they shall be served with the motion. An opposing party may, within 10 calendar days after such service, serve oppos- ing affidavits, which period may be extended for an additional period not exceeding 20 calendar days by the Board for good cause shown or by written stipulation of the parties. Reply affi- davits may be permitted.

G.      If in a particular decision 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 imprac- tical, unnecessary, or contrary to the public interest, the deci- sion may be issued as a final decision without an opportunity for rehearing or review. An 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.      For purposes of this Section, the terms “contested case” and “party” shall be defined as provided in A.R.S. § 41-1001.

Historical Note

New Section R4-10-115 renumbered from Section R4- 10-112 by final rulemaking at 5 A.A.R. 1791, effective

May 18, 1999 (Supp. 99-2).