§ 4-21.5-3-5 — Notice required; certain licensing and other decisions; persons who must be notified; contents; effectiveness of order; stays

Indiana § 4-21.5-3-5

• Jurisdiction: Indiana
• Art. 21.5: ADMINISTRATIVE ORDERS AND
• Ch. 3: Adjudicative Proceedings

Text

(a) Notice shall be given under this section
concerning the following:
(1) The grant, renewal, restoration, transfer, or denial of a license
not described by section 4 of this chapter.
(2) The approval, renewal, or denial of a loan, grant of property
or services, bond, financial guarantee, or tax incentive.
(3) The grant or denial of a license in the nature of a variance or
exemption from a law.
(4) The determination of tax due or other liability.
(5) A determination of status.
(6) Any order that does not impose a sanction or terminate a legal
right, duty, privilege, immunity, or other legal interest.
(b) When an agency issues an order described in subsection (a), the
agency shall give a written notice of the order to the following persons:
(1) Each person to whom the order is specifically directed.
(2) Each person to whom a law requires notice to be given.
(3) Each competitor who has applied to the agency for a mutually
exclusive license, if issuance is the subject of the order and the
competitor's application has not been denied in an order for which
all rights to judicial review have been waived or exhausted.
(4) Each person who has provided the agency with a written
request for notification of the order, if the request:
(A) describes the subject of the order with reasonable
particularity; and
(B) is delivered to the agency at least seven (7) days before the
day that notice is given under this section.
(5) Each person who has a substantial and direct proprietary
interest in the subject of the order.
(6) Each person whose absence as a party in the proceeding
concerning the order would deny another party complete relief in
the proceeding or who claims an interest related to the subject of
the order and is so situated that the disposition of the matter, in
the person's absence, may:
(A) as a practical matter impair or impede the person's ability
to protect that interest; or
(B) leave any other person who is a party to a proceeding
concerning the order subject to a substantial risk of incurring
multiple or otherwise inconsistent obligations by reason of the
person's claimed interest.
A person who is entitled to notice under this subsection is not a party
to any proceeding resulting from the grant of a petition for review
under section 7 of this chapter unless the person is designated as a
party in the record of the proceeding.
(c) The notice required by subsection (a) must include the
following:
(1) A brief description of the order.
(2) A brief explanation of the available procedures and the time
limit for seeking administrative review of the order under section
7 of this chapter.
(3) A brief explanation of how the person may obtain notices of
any prehearing conferences, preliminary hearings, hearings, stays,
and any orders disposing of the proceedings without intervening
in the proceeding, if a petition for review is granted under section
7 of this chapter.
(4) Any other information required by law.
(d) An agency issuing an order under this section or conducting an
administrative review of the order shall give notice of any:
(1) prehearing conference;
(2) preliminary hearing;
(3) hearing;
(4) stay; or
(5) order disposing of all proceedings;
concerning the order to a person notified under subsection (b) who
requests these notices in the manner specified under subsection (c)(3).
(e) If a statute requires an agency to solicit comments from the
public in a nonevidentiary public hearing before issuing an order
described by subsection (a), the agency shall announce at the opening
and the close of the public hearing how a person may receive notice of
the order under subsection (b)(4).
(f) If a petition for review and a petition for stay of effectiveness of
an order described in subsection (a) has not been filed, the order is
effective fifteen (15) days (or any longer period during which a person
may, by statute, seek administrative review of the order) after the order
is served. If both a petition for review and a petition for stay of
effectiveness are filed before the order becomes effective, any part of
the order that is within the scope of the petition for stay is stayed for an
additional fifteen (15) days. Any part of the order that is not within the
scope of the petition is not stayed. The order takes effect regardless of
whether the persons described by subsection (b)(5) or (b)(6) have been
served. An agency shall make a good faith effort to identify and notify
these persons, and the agency has the burden of persuasion that it has
done so. The agency may request that the applicant for the order assist
in the identification of these persons. Failure to notify any of these
persons is not grounds for invalidating an order, unless an unnotified
person is substantially prejudiced by the lack of notice. The burden of
persuasion as to substantial prejudice is on the unnotified person.
(g) If a timely and sufficient application has been made for renewal
of a license with reference to any activity of a continuing nature and
review is granted under section 7 of this chapter, the existing license
does not expire until the agency has disposed of a proceeding under
this chapter concerning the renewal, unless a statute other than this
article provides otherwise. This subsection does not preclude an agency
from issuing, under IC 4-21.5-4, an emergency or other temporary
order with respect to the license.
(h) On the motion of any party or other person having a pending
petition for intervention in the proceeding, an administrative law judge
shall, as soon as practicable, conduct a preliminary hearing to
determine whether the order should be stayed. The burden of proof in
the preliminary hearing is on the person seeking the stay. The
administrative law judge may stay the order in whole or in part. The
order concerning the stay may be issued before or after the order
described in subsection (a) becomes effective. The resulting order
concerning the stay shall be served on the parties, any person who has
a pending petition for intervention in the proceeding, and any person
who has requested notice under subsection (d). It must include a
statement of the facts and law on which it is based.

Legislative History

As added by P.L.18-1986, SEC.1. Amended by P.L.35-1987, SEC.4.