§ 24-4-105 — Hearings and determinations

Colorado § 24-4-105

• Jurisdiction: Colorado
• Title 24: Government
• Art.: Rule-making and Licensing Procedures

Text

(1) In order to assure that all
parties to any agency adjudicatory proceeding are accorded due process of law, the
provisions of this section shall be applicable.

(2) (a) In any such proceeding in which an opportunity for agency
adjudicatory hearing is required under the state constitution or by this or any other
statute, the parties are entitled to a hearing and decision in conformity with this
section. Any person entitled to notice of a hearing shall be given timely notice of
the time, place, and nature thereof, the legal authority and jurisdiction under which
it is to be held, and the matters of fact and law asserted. Unless otherwise provided
by law, such notice shall be served personally or by mailing by first-class mail to
the last address furnished the agency by the person to be notified at least thirty
days prior to the hearing. In fixing the time and place for a hearing, due regard shall
be had for the convenience and necessity of the parties and their representatives.

(b) Any person given such notice shall file a written answer thirty days after
the service or mailing of such notice. If such person fails to answer, any agency,
administrative law judge, or hearing officer, upon motion, may enter a default. For
good cause shown, the entry of default may be set aside within ten days after the
date of such entry.

(c) A person who may be affected or aggrieved by agency action shall be
admitted as a party to the proceeding upon his filing with the agency a written
request therefor, setting forth a brief and plain statement of the facts which entitle
him to be admitted and the matters which he claims should be decided. Nothing in
this subsection (2) shall prevent an agency from admitting any person or agency as
a party to any agency proceeding for limited purposes.

(3) At a hearing only one of the following may preside: The agency, an
administrative law judge from the office of administrative courts, or, if otherwise
authorized by law, a hearing officer who if authorized by law may be a member of
the body which comprises the agency. Upon the filing in good faith by a party of a
timely and sufficient affidavit of personal bias of an administrative law judge or a
hearing officer or a member of the agency or the agency, the administrative law
judge, hearing officer, or agency shall forthwith rule upon the allegations in such
affidavit as part of the record in the case. An administrative law judge or a hearing
officer may at any time withdraw if he or she deems himself or herself disqualified
or for any other good reason in which case another administrative law judge or
hearing officer may be assigned to continue the case, and he or she shall do so in
such manner that no substantial prejudice to any party results therefrom. An
agency or a member of an agency may withdraw for any like reason and in like
manner, unless his or her withdrawal makes it impossible for the agency to render a
decision.

(4) (a) Any agency conducting a hearing, any administrative law judge, and
any hearing officer shall have authority to: Administer oaths and affirmations; sign
and issue subpoenas; rule upon offers of proof and receive evidence; dispose of
motions relating to the discovery and production of relevant documents and things
for inspection, copying, or photographing; regulate the course of the hearing, set
the time and place for continued hearings, and fix the time for the filing of briefs
and other documents; direct the parties to appear and confer to consider the
simplification of the issues, admissions of fact or of documents to avoid
unnecessary proof, and limitation of the number of expert witnesses; issue
appropriate orders that shall control the subsequent course of the proceedings;
dispose of motions to dismiss for lack of agency jurisdiction over the subject matter
or parties or for any other ground; dispose of motions to amend or to dismiss
without prejudice applications and other pleadings; dispose of motions to intervene,
procedural requests, or similar matters; reprimand or exclude from the hearing any
person for any improper or indecorous conduct in his or her presence; award
attorney fees for abuses of discovery procedures or as otherwise provided under
the Colorado rules of civil procedure; and take any other action authorized by
agency rule consistent with this article 4 or in accordance, to the extent
practicable, with the procedure in the district courts. All parties to the proceeding
shall also have the right to cross-examine witnesses who testify at the proceeding.
In the event more than one person engages in the conduct of a hearing, such
persons shall designate one of their number to perform such of the above functions
as can best be performed by one person only, and thereafter such person only shall
perform those functions that are assigned to him or her by the several persons
conducting such hearing.

(b) (I) (A) The general assembly hereby finds that the mediation process
generally saves the state and the licensee time and money. Mediation takes much
less time than moving a case through agency proceedings and judicial review.
These cases typically take months or years to resolve, but mediation typically
achieves a resolution in a matter of hours. Taking less time means expending less
money on hourly fees and costs. This benefits both the agency and the licensee,
and because the result is attained by the parties working together, compliance with
the mediated agreement is usually high. This further reduces costs because
agencies do not have to pay an attorney or investigators to force compliance.

(B) The general assembly hereby declares that, in order to save time and
money, the policy of Colorado is to use mediation whenever appropriate to settle
disputes between agencies and licensees.

(II) Upon petition of the agency or licensee after the licensee has received
the notice of hearing under subsection (2)(a) of this section, the hearing officer or
administrative law judge shall order mediation between the agency and the
licensee unless the license was summarily suspended in accordance with section
24-4-104 (4). When mediation is ordered, the agency shall:

(A) Assign a person with authority to make prehearing decisions concerning
disposition of the matter to be present during meetings related to settlement
communications or mediation communications and to be included in any material
settlement communications with the licensee or the licensee's representative over
the matter; and

(B) Upon the licensee's request, allow a private or public mediator chosen by
the licensee to be present during meetings related to mediation and to be included
in any material settlement communications with the licensee or the licensee's
representative over the matter. If the mediator is privately retained, the licensee
must pay the mediator's reasonable fees, and the agency need not pay the privately
retained mediator's fees.

(III) To the extent feasible, for the purpose of carrying out this subsection (4):

(A) Administrative law judges shall make themselves available as public
mediators without cost to the licensee;

(B) The members of any governing body that regulates the licensee shall
make a member or other person available for mediation as a person with authority
to make prehearing decisions concerning disposition of the matter.

(IV) If an agency fails to comply with an order of mediation, a licensee
adversely affected by the failure may petition the administrative law judge or
hearing officer to suspend the proceedings and require compliance with the order,
to be completed in good faith as soon as practicable, under the administrative law
judge's or the hearing officer's supervision.

(V) If mediation fails, the agency shall notify the administrative law judge or
the hearing officer, and the administrative law judge or the hearing officer shall lift
the suspension and proceed with the hearing.

(VI) When determining the place to hold the mediation, the agency shall give
due consideration to the location of the licensee's occupation or residence, the
availability of an administrative law judge to mediate, and the availability of a
member of the governing body that regulates the licensee to be a person with
authority to make prehearing decisions concerning disposition of the matter.

(VII) This subsection (4)(b) applies only to agency proceedings that concern
an individual who is licensed to practice an occupation or profession; except that
this subsection (4)(b) does not apply to a commercial driver's license issued under
part 4 of article 2 of title 42.

(VIII) This subsection (4)(b) does not apply if a license has been summarily
suspended because the agency finds, in accordance with section 24-4-104 (4), that
the licensee is guilty of a deliberate and willful violation or that the public health,
safety, or welfare imperatively requires emergency action and incorporates the
findings in the agency's order. Nothing in this subsection (4)(b) prohibits an agency
and licensee from voluntarily agreeing to a mediation following a summary
suspension.

(IX) Repealed.

(5) Subpoenas shall be issued without discrimination between public and
private parties by any agency or any member, the secretary, or chief administrative
officer thereof or, with respect to any hearing for which an administrative law judge
or a hearing officer has been appointed, the administrative law judge or the hearing
officer. A subpoena shall be served in the same manner as a subpoena issued by a
district court. Upon failure of any witness to comply with such subpoena, the
agency may petition any district court, setting forth that due notice has been given
of the time and place of attendance of the witness and the service of the subpoena;
in which event, the district court, after hearing evidence in support of or contrary to
the petition, may enter an order as in other civil actions compelling the witness to
attend and testify or produce books, records, or other evidence, under penalty of
punishment for contempt in case of contumacious failure to comply with the order
of the court and may award attorney fees under the Colorado rules of civil
procedure. A witness shall be entitled to the fees and mileage provided for a
witness in a court of record.

(6) No person engaged in conducting a hearing or participating in a decision
or an initial decision shall be responsible to or subject to the supervision or direction
of any officer, employee, or agent engaged in the performance of investigatory or
prosecuting functions for the agency.

(7) Except as otherwise provided by statute, the proponent of an order shall
have the burden of proof, and every party to the proceeding shall have the right to
present his case or defense by oral and documentary evidence, to submit rebuttal
evidence, and to conduct such cross-examination as may be required for a full and
true disclosure of the facts. Subject to these rights and requirements, where a
hearing will be expedited and the interests of the parties will not be substantially
prejudiced thereby, a person conducting a hearing may receive all or part of the
evidence in written form. The rules of evidence and requirements of proof shall
conform, to the extent practicable, with those in civil nonjury cases in the district
courts. However, when necessary to do so in order to ascertain facts affecting the
substantial rights of the parties to the proceeding, the person so conducting the
hearing may receive and consider evidence not admissible under such rules if such
evidence possesses probative value commonly accepted by reasonable and prudent
men in the conduct of their affairs. Objections to evidentiary offers may be made
and shall be noted in the record. The person conducting a hearing shall give effect
to the rules of privilege recognized by law. He may exclude incompetent and unduly
repetitious evidence. Documentary evidence may be received in the form of a copy
or excerpt if the original is not readily available; but, upon request, the party shall
be given an opportunity to compare the copy with the original. An agency may
utilize its experience, technical competence, and specialized knowledge in the
evaluation of the evidence presented to it.

(8) An agency may take notice of general, technical, or scientific facts within
its knowledge, but only if the fact so noticed is specified in the record or is brought
to the attention of the parties before final decision and every party is afforded an
opportunity to controvert the fact so noticed.

(9) (a) Any party, or the agent, servant, or employee of any party, permitted
or compelled to testify or to submit data or evidence shall be entitled to the benefit
of legal counsel of his or her own choosing and at his or her own expense, but a
person may appear on their own behalf. An attorney who is a witness may not act as
counsel for the party calling the attorney as a witness. Any party, upon payment of
a reasonable charge therefor, shall be entitled to procure a copy of the transcript of
the record or any part thereof. Any person permitted or compelled to testify or to
submit data or evidence shall be entitled to the benefit of legal counsel of such
person's own choosing and, upon payment of a reasonable charge therefor, to
procure a copy of the transcript of such person's testimony if it is recorded.

(b) (I) Except as provided in subparagraph (III) of this paragraph (b), no
attorney shall submit a document concerning an adjudicatory proceeding after
January 1, 1994, unless such document is submitted on recycled paper. The
provisions of this section shall apply to all papers appended to each such
document.

(II) (A) Any state agency that adopts policies, procedures, rules, or
regulations for the purpose of implementing the provisions of this section shall
ensure that the conduct of state business is not impeded and that no person is
denied access to the services or programs of a state agency as a result of such
implementation.

(B) No document shall be refused by a state agency solely because it was
not submitted on recycled paper.

(III) Nothing in this section shall be construed to apply to:

(A) Photographs;

(B) An original document that was prepared or printed prior to January 1,
1994;

(C) A document that was not created at the direction or under the control of
the submitting attorney;

(D) Facsimile copies concerning an adjudicatory proceeding otherwise
permitted to be filed in lieu of the original document; however, if the original is also
required to be filed, such original shall be submitted in compliance with this section;

(E) Existing stocks of nonrecycled paper and preprinted forms acquired or
printed prior to January 1, 1994.

(IV) The provisions of this section shall not be applicable if recycled paper is
not readily available.

(V) For purposes of this paragraph (b), unless the context otherwise requires:

(A) Attorney means an attorney-at-law admitted to practice law before any
court of record in this state.

(B) Document means any pleading or any other paper submitted as an
appendix to such pleading by an attorney, which document is required or permitted
to be filed with a state agency concerning any action to be commenced or which is
pending before such agency.

(C) Recycled paper means paper with not less than fifty percent of its total
weight consisting of secondary and postconsumer waste and with not less than ten
percent of such total weight consisting of postconsumer waste.

(10) Every agency shall proceed with reasonable dispatch to conclude any
matter presented to it with due regard for the convenience of the parties or their
representatives, giving precedence to rehearing proceedings after remand by court
order. Prompt notice shall be given of the refusal to accept for filing or the denial in
whole or in part of any written application or other request made in connection with
any agency proceeding or action, with a statement of the grounds therefor. Upon
application made to any court of competent jurisdiction by a party to any agency
proceeding or by a person adversely affected by agency action and a showing to
the court that there has been undue delay in connection with such proceeding or
action, the court may direct the agency to decide the matter promptly.

(11) Every agency shall provide by rule for the entertaining, in its sound
discretion, and prompt disposition of petitions for declaratory orders to terminate
controversies or to remove uncertainties as to the applicability to the petitioners of
any statutory provision or of any rule or order of the agency. The order disposing of
the petition shall constitute agency action subject to judicial review.

(12) Nothing in this article shall affect statutory powers of an agency to issue
an emergency order where the agency finds and states of record the reasons for so
finding that immediate issuance of the order is imperatively necessary for the
preservation of public health, safety, or welfare and observance of the
requirements of this section would be contrary to the public interest. Any person
against whom an emergency order is issued, who would otherwise be entitled to a
hearing pursuant to this section, shall be entitled upon request to an immediate
hearing in accordance with this article, in which proceeding the agency shall be
deemed the proponent of the order.

(13) The administrative law judge or the hearing officer shall cause the
proceedings to be recorded by a reporter or by an electronic recording device.
When required, the administrative law judge or the hearing officer shall cause the
proceedings, or any portion thereof, to be transcribed, the cost thereof to be paid
by the agency when it orders the transcription or by any party seeking to reverse or
modify an initial decision of the administrative law judge or the hearing officer. If
the agency acquires a copy of the transcription of the proceedings, its copy of the
transcription shall be made available to any party at reasonable times for
inspection and study.

(14) (a) For the purpose of a decision by an agency that conducts a hearing or
an initial decision by an administrative law judge or a hearing officer, the record
must include: All pleadings, applications, evidence, exhibits, and other papers
presented or considered, matters officially noticed, rulings upon exceptions, any
findings of fact and conclusions of law proposed by any party, and any written brief
filed. The agency, administrative law judge, or hearing officer may permit oral
argument. The agency, the administrative law judge, or the hearing officer shall not
receive or consider ex parte material or representation of any kind offered without
notice. The agency, an administrative law judge, or hearing officer, with the consent
of all parties, may eliminate or summarize any part of the record where this may be
done without affecting the decision. In any case in which the agency has conducted
the hearing, the agency shall prepare, file, and serve upon each party its decision. In
any case in which an administrative law judge or a hearing officer has conducted
the hearing, the administrative law judge or the hearing officer shall prepare and
file an initial decision that the agency shall serve upon each party, except where all
parties with the consent of the agency have expressly waived their right to have an
initial decision rendered by such administrative law judge or hearing officer. Each
decision and initial decision must include a statement of findings and conclusions
upon all the material issues of fact, law, or discretion presented by the record and
the appropriate order, sanction, relief, or denial. An appeal to the agency must be
made as follows:

(I) With regard to initial decisions regarding agency action by the
department of health care policy and financing, the department of early childhood,
the state department of human services, or county department of human or social
services, or any contractor acting for any such department, under section 26-1-106
(1)(a), 26.5-1-107, or 25.5-1-107 (1)(a), by filing exceptions within fifteen days after
service of the initial decision upon the parties, unless extended by the department
of health care policy and financing, the department of early childhood, or the state
department of human services, as applicable, or unless a review has been initiated
in accordance with this subsection (14)(a)(I) upon motion of the applicable
department within fifteen days after service of the initial decision. In the event a
party fails to file an exception within fifteen days, the applicable department may
allow, upon a showing of good cause by the party, for an extension of up to an
additional fifteen days to reconsider the final agency action.

(II) With regard to initial decisions regarding agency action of any other
agency, by filing exceptions within thirty days after service of the initial decision
upon the parties, unless extended by the agency or unless review has been initiated
upon motion of the agency within thirty days after service of the initial decision.

(b) (I) In the absence of an exception filed pursuant to subparagraph (I) of
paragraph (a) of this subsection (14), the executive director of the department of
health care policy and financing shall review the initial decision regarding agency
action by such department in accordance with a procedure adopted by the medical
services board pursuant to section 25.5-1-107 (1), C.R.S.

(II) In the absence of an exception filed pursuant to subparagraph (I) of
paragraph (a) of this subsection (14), the executive director of the state department
of human services shall review the initial decision regarding agency action by such
department in accordance with a procedure adopted by the state board of human
services pursuant to section 26-1-106 (1), C.R.S.

(III) In the absence of an exception filed pursuant to subparagraph (II) of
paragraph (a) of this subsection (14), the initial decision of any other agency shall
become the decision of the agency, and, in such case, the evidence taken by the
administrative law judge or the hearing officer need not be transcribed.

(c) Failure to file the exceptions prescribed in this subsection (14) shall result
in a waiver of the right to judicial review of the final order of such agency, unless
that portion of such order subject to exception is different from the content of the
initial decision.

(15) (a) Any party who seeks to reverse or modify the initial decision of the
administrative law judge or the hearing officer shall file with the agency, within
twenty days following such decision, a designation of the relevant parts of the
record described in subsection (14) of this section and of the parts of the transcript
of the proceedings which shall be prepared and advance the cost therefor. A copy
of this designation shall be served on all parties. Within ten days thereafter, any
other party or the agency may also file a designation of additional parts of the
transcript of the proceedings which is to be included and advance the cost therefor.
The transcript or the parts thereof which may be designated by the parties or the
agency shall be prepared by the reporter or, in the case of an electronic recording
device, the agency and shall thereafter be filed with the agency. No transcription is
required if the agency's review is limited to a pure question of law. The agency may
permit oral argument. The grounds of the decision shall be within the scope of the
issues presented on the record. The record shall include all matters constituting the
record upon which the decision of the administrative law judge or the hearing
officer was based, the rulings upon the proposed findings and conclusions, the
initial decision of the administrative law judge or the hearing officer, and any other
exceptions and briefs filed.

(b) The findings of evidentiary fact, as distinguished from ultimate
conclusions of fact, made by the administrative law judge or the hearing officer
shall not be set aside by the agency on review of the initial decision unless such
findings of evidentiary fact are contrary to the weight of the evidence. The agency
may remand the case to the administrative law judge or the hearing officer for such
further proceedings as it may direct, or it may affirm, set aside, or modify the order
or any sanction or relief entered therein, in conformity with the facts and the law.

(16) (a) Each decision and initial decision shall be served on each party by
personal service or by mailing by first-class mail to the last address furnished the
agency by such party and, except as provided in paragraph (b) of this subsection
(16), shall be effective as to such party on the date mailed or such later date as is
stated in the decision.

(b) Upon application by a party, and prior to the expiration of the time
allowed for commencing an action for judicial review, the agency may change the
effective date of a decision or initial decision.

Legislative History

Source: L. 59: p. 162, � 4. CRS 53: � 3-16-4. L. 61: p. 138, � 1. C.R.S. 1963: � 3-16-4. L. 69: p. 85, � 5. L. 76: (13) and (14) amended and (15) R&RE, pp. 583, 584, �� 16, 17, effective May 24. L. 77: (14) amended, pp. 1137, 1145, �� 2, 2, effective June 19. L. 81: (4) amended, p. 1134, � 3, effective June 6. L. 87: (3), (4), (5), (13), (14), and (15) amended, p. 961, � 66, effective March 13. L. 93: (14) amended, p. 426, � 3, effective April 19; (2), (4), (5), (14), (15)(a), and (16) amended, p. 1327, � 4, effective June 6; (9) amended, p. 624, � 3, effective July 1; (9)(b)(V)(B) amended, p. 1798, � 107, effective July 1. L. 94: (14)(a)(I) and (14)(b) amended, p. 2692, � 228, effective July 1. L. 95: (14)(a)(I) and (14)(b) amended, p. 902, � 1, effective May 25. L. 2005: (3) amended, p. 857, � 21, effective June 1. L. 2018: (4) amended, (HB 18-1224), ch. 288, p. 1780, � 2, effective May 29; IP(14)(a) and (14)(a)(I) amended, (SB 18-092), ch. 38, p. 440, � 96, effective August 8. L. 2019: (4)(b)(IX) amended, (SB 19-241), ch. 390, p. 3469, � 26, effective August 2. L. 2022: (14)(a)(I) amended, (HB 22-1295), ch. 123, p. 843, � 64, effective July 1.