Sun Valley Express Moving & Storage, Inc. v. Arizona Department of Economic Security

680 P.2d 841, 140 Ariz. 131, 1984 Ariz. App. LEXIS 476
CourtCourt of Appeals of Arizona
DecidedApril 5, 1984
DocketNo. 1 CA-UB 318
StatusPublished
Cited by2 cases

This text of 680 P.2d 841 (Sun Valley Express Moving & Storage, Inc. v. Arizona Department of Economic Security) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sun Valley Express Moving & Storage, Inc. v. Arizona Department of Economic Security, 680 P.2d 841, 140 Ariz. 131, 1984 Ariz. App. LEXIS 476 (Ark. Ct. App. 1984).

Opinion

OPINION

CONTRERAS, Presiding Judge.

This is an appeal from a decision of the Unemployment Insurance Appeals Board (Appeals Board) of the Department of Economic Security (Department). We are presented with the question of whether the Department abused its discretion by refusing to reconsider a liability determination which had become final. We conclude that the Appeals Board did abuse its discretion by reason of its failure to fairly consider its determination in light of the provisions of A.R.S. § 23-724(C) which specifically authorizes the Department “in its discretion [to] reconsider a determination ... which has become final.”

The parties are substantially in agreement with respect to the chronology of events. Appellant is engaged in the trucking business and provides a delivery service within the State of Arizona. On August 24, 1981, the Department issued a written notice of liability determination in which it was administratively determined that the services of certain of appellant’s truck drivers constituted employment as defined in A.R.S. § 23-615 and that remuneration for such services constitute wages as defined in A.R.S. § 23-622 which must be reported and on which state taxes for unemploy[132]*132ment insurance are required to be paid. This written notice of liability determination was duly sent by certified mail correctly addressed to appellant. The written notice states the “determination becomes final unless written request for reconsideration is filed within fifteen days of the date of this notice as provided in Section 23-724 A.R.S.” It is clear from the record that Jeri Morrison, an accounts clerk employed by appellant, signed for this certified mailing and, therefore, the employer received notice. It is similarly clear that a written request for reconsideration was not filed by appellant within fifteen days of the date of the notice.

On January 7, 1982, counsel for appellant hand delivered to the Department a written request for reconsideration of the August 24, 1981 determination. The request acknowledged receipt of the determination by one of appellant’s employees but further informed the Department by an affidavit that no responsible officer of appellant was advised of the determination when it was received. The written request stated that it was “made pursuant to A.R.S. § 23-724.-C.” and submitted the following pertinent information.

To the best knowledge of the responsible officers of Sun Valley, the August 24, 1981 determination was not preceded by an opportunity on the part of Sun Valley to furnish complete information pertaining to Sun Valley’s treatment of the truck drivers who perform services for Sun Valley and to urge the appropriate recognition of those truck drivers from the Department’s standpoint in light of the fact that Sun Valley operates in accordance with a regulatory scheme administered by the Arizona Corporation Commission.

On January 15, 1982, the Department’s chief of contributions issued a document designated as “Untimely Disposition” in which, after briefly setting forth the chronology of events and setting forth the provisions of A.R.S. § 23-724(A) and (E),1 decided that the August 24, 1981 liability determination became final since a request for reconsideration was not filed within fifteen days of the date of determination. Appellant then filed a petition for hearing.2 On March 5, 1982 the Appeals Board entered an order assigning the matter to a hearing officer with directions to schedule a hearing, notify appellant of the date, time and place of hearing “together with a statement of the issues to be considered”. The hearing officer was also directed to submit written recommendations to the Appeals Board.

The hearing officer issued the prescribed notice of hearing and set forth the issue to be considered as follows:

Whether Sun Valley Express Moving & Storage, Inc., filed a timely request for reconsideration of the Notice of Liability for Employment or Wages dated August 24, 1981, as provided in A.R.S. Section 23-724-A (emphasis added).

[133]*133At the hearing, appellant was represented by counsel and the chief of the Department’s contributions section appeared on behalf of the Department. At the commencement of the hearing the chief of the contributions section in an opening statement stated that the Department had declined to exercise the discretion granted the Department in A.R.S. § 23-724(C). He further stated that adjustments had been made by the Department following the original liability determination on the basis that certain individuals previously held to be employees were independent contractors for whom the appellant did not have to pay contributions. He also stated that the Department had declined to go any further for enumerated reasons. The opening statement was then interrupted by the hearing officer:

HEARING OFFICER: I just want to interrupt you. I just want the record to show that our issue today is one of timeliness, whether or not a Request for Reconsideration was timely filed to a determination. What you’re addressing now has nothing to do with this current issue of timeliness, directly anyway. You’re justifying your failure or your refusal to make another determination retroactively, perhaps, or even prospectively.

Counsel for appellant categorically admitted at the hearing that under A.R.S. § 23-724(A) the August 24, 1981 liability determination became final after fifteen days. It is apparent from the record that counsel for the appellant, pursuant to A.R.S. § 23-724(C), was attempting to present information which it deemed pertinent so that the Department might, in its discretion, reconsider a determination which had become final. Notwithstanding counsel’s continued attempts to present such information, the hearing officer refused to consider it and continued to adhere to his previously stated position that all that would be considered was the issue of timeliness.

On July 27, 1982 the Appeals Board, in a proposed decision, determined that the request for reconsideration was untimely and that the liability determination of August 24, 1981 became final, conclusive and binding against appellant. After reviewing exceptions filed by appellant, the Appeals Board approved its proposed decision. The Board subsequently affirmed its decision after considering appellant’s request for administrative review. Appellant’s application for appeal to this Court was granted. We have jurisdiction pursuant to A.R.S. § 41-1993.

As pointed out by the Department, our scope of review is limited.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Old West Bonding Co.
56 P.3d 42 (Court of Appeals of Arizona, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
680 P.2d 841, 140 Ariz. 131, 1984 Ariz. App. LEXIS 476, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sun-valley-express-moving-storage-inc-v-arizona-department-of-economic-arizctapp-1984.