Section R4-21-309. Rehearing or Review of Board Decision

A.       The Board shall provide for a rehearing and review of its deci- sions under A.R.S. Title 41, Chapter 6, Article 10 and the rules established by the Office of Administrative Hearings.

B.       Except as provided in subsection (H), a party is required to file a motion for rehearing or review of a decision of the Board to exhaust the party’s administrative remedies.

C.       A party may amend a motion for rehearing or review at any time before the Board rules on the motion.

D.       The Board may grant a rehearing or review for any of the fol- lowing reasons materially affecting a party’s rights:

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

2.        Misconduct of the Board, its staff, or the administrative law judge;

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 hearing;

5.        Excessive or insufficient penalties;

6.        Error in the admission or rejection of evidence or other errors of law occurring at the hearing or in the course of the proceedings; and

7.        The findings of fact or decision is not justified by the evi- dence or is contrary to law.

E.       The Board may affirm or modify a decision or grant a rehear- ing or review to all or some of the parties on all or some of the issues for any of the reasons listed in subsection (D). An order modifying a decision or granting a rehearing or review shall specify with particularity the grounds for the order. If a rehear- ing or review is granted, the rehearing or review shall cover only the matters specified in the order.

F.        Not later than 30 days after the date of a decision and after giv- ing the parties notice and an opportunity to be heard, the Board may, on its own initiative, order a rehearing or review of its decision for any reason it might have granted a rehearing or review on motion of a party. The Board may grant a motion for rehearing or review, timely served, for a reason not stated in the motion. An order granting a rehearing or review shall spec- ify with particularity the grounds on which the rehearing or review is granted.

G.       When a motion for rehearing is based upon affidavits, they shall be  served with the  motion. An opposing party may, within 15 days after service, serve opposing affidavits. This period may be extended by the Board for a maximum of 20 days for good cause or by written stipulation of the parties. Reply affidavits may be permitted.

H.       If, in a particular decision, the Board makes a specific finding that the immediate effectiveness of the decision is necessary for preservation of the public peace, health, or safety and that a rehearing or review of the decision is impracticable, unneces- sary, or contrary to the public interest, the Board may issue the decision as a final decision without opportunity for a rehearing or review.

Historical Note

Section R4-21-309 renumbered from R4-21-308 and amended by final rulemaking at 14 A.A.R. 12, effective February 2, 2008 (Supp. 07-4).