2012 -- H 7461

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LC00553

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

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A N A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT -- ADMINISTRATIVE

PROCEDURE REVIEW ACT

     Introduced By: Representatives Ucci, and Petrarca

     Date Introduced: February 09, 2012

     Referred To: House Judiciary

It is enacted by the General Assembly as follows:

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     SECTION 1. Title 42 of the General Laws entitled "STATE AFFAIRS AND

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GOVERNMENT" is hereby amended by adding thereto the following chapter:

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     CHAPTER 35.2

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ADMINISTRATIVE PROCEDURES REVIEW ACT

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     42-35.2-1. Definitions. – As used in this chapter:

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     (1) "Agency" means and includes each state board, commission, department, or officer,

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other than the legislature or the courts, authorized by law to make rules or to determine contested

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cases, and all "authorities", as that term is defined below;

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      (2) "Authorities" means and includes the following: the Rhode Island industrial building

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authority, the Rhode Island recreational building authority, the Rhode Island economic

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development corporation, the Rhode Island industrial facilities corporation, the Rhode Island

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refunding bond authority, the Rhode Island housing and mortgage finance corporation, the Rhode

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Island solid waste management corporation, the Rhode Island public transit authority, the Rhode

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Island student loan authority, the Howard development corporation, the water resources board,

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the Rhode Island health and educational building corporation, the Rhode Island higher education

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assistance authority, the Rhode Island turnpike and bridge authority, the Blackstone Valley

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district commission, the Narragansett Bay water quality management district commission, their

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successors and assigns, and any body corporate and politic with the power to issue bonds and

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notes, which are direct, guaranteed, contingent, or moral obligations of the state, which is

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hereinafter created or established in this state.

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      (3) "Contested case" means a proceeding, including but not restricted to ratemaking,

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price fixing, and licensing, in which the legal rights, duties, or privileges of a specific party are

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required by law to be determined by an agency after an opportunity for hearing;

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      (4) "License" means and includes the whole or part of any agency permit, certificate,

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approval, registration, charter, or similar form of permission required by law, but it does not

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include a license required solely for revenue purposes;

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      (5) "Licensing" means and includes the agency process respecting the grant, denial,

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renewal, revocation, suspension, annulment, withdrawal, or amendment of a license;

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      (6) "Party" means each person or agency named or admitted as a party, or properly

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seeking, and entitled as of right, to be admitted as a party;

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      (7) "Person" means any individual, partnership, corporation, association, governmental

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subdivision, or public or private organization of any character other than an agency;

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      (8) "Rule" means each agency statement of general applicability that implements,

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interprets, or prescribes law or policy or describes the organization, procedure, or practice

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requirements of any agency. The term includes the amendment or repeal of a prior rule, but does

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not include: (1) Statements concerning only the internal management of an agency and not

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affecting private rights or procedures available to the public; or (2) Declaratory rulings issued

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pursuant to section 42-35-8; (3) Intra-agency memoranda, or (4) An order;

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      (9) "Small business" shall have the same meanings that are provided for under title 13,

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volume 1, part 121 of the Code of Federal Regulations (13 CFR 121, as may be amended from

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time to time);

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      (10) "Order" means the whole or a part of a final disposition, whether affirmative,

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negative, injunctive or declaratory in form, of a contested case;

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      (11) "Small business advocate" means the person appointed by the director of the

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economic development corporation as provided in section 42-64-34.

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     42-35.2-2. Review of orders. – Any person, including any small business, aggrieved by a

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final order in a contested case, shall be entitled to a review of said order issued pursuant to

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chapter 42-35, the administrative procedures act. Said review shall be conducted in accordance

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with this chapter and prior to any judicial review as provided in section 42-35-15.

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     42-35.2-3. Review procedure. – The director of the department of administration shall

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establish and is hereby empowered and directed to establish rules and regulations necessary to

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implement the provisions of this chapter and to appoint hearing officers with appropriate

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knowledge of administrative procedures and rules and regulations relative thereto to carry out the

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purposes of this chapter. Hearing officers shall function within a separate division and shall

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comply with all procedural and evidentiary rules applied to contested cases pursuant to chapter

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42-35 and shall render a decision as to whether an order issued pursuant to chapter 42-35 is

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appropriate.

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     42-35.2-4. Severability. – If any provision of this chapter or the application thereof to

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any person or circumstances is held invalid, the invalidity does not affect other provisions or

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applications of the chapter which can be given effect without the invalid provision or application,

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and to this end the provisions of this chapter are declared to be severable.

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     SECTION 2. Section 42-35-15 of the General Laws in Chapter 42-35 entitled

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"Administrative Procedures" is hereby amended to read as follows:

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     42-35-15. Judicial review of contested cases. -- (a) Any person, including any small

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business, who has exhausted all administrative remedies available to him or her within the

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agency, including a review of any order pursuant to chapter 42-35.2, and who is aggrieved by a

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final order in a contested case is entitled to judicial review under this chapter. This section does

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not limit utilization of or the scope of judicial review available under other means of review,

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redress, relief, or trial de novo provided by law. Any preliminary, procedural, or intermediate

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agency act or ruling is immediately reviewable in any case in which review of the final agency

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order would not provide an adequate remedy.

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      (b) Proceedings for review are instituted by filing a complaint in the superior court of

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Providence County or in the superior court in the county in which the cause of action arose, or

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where expressly provided by the general laws in the sixth division of the district court or family

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court of Providence County, within thirty (30) days after mailing notice of the final decision of

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the agency or, if a rehearing is requested, within thirty (30) days after the decision thereon;

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provided, however, that any person who is aggrieved by a final order concerning the assessment

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or determination of any tax, interest, or penalty made by the tax administrator must pay the

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amount of the tax, interest, or penalty to the administrator as a prerequisite to the filing of such

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complaint. Copies of the complaint shall be served upon the agency and all other parties of record

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in the manner prescribed by applicable procedural rules within ten (10) days after it is filed in

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court; provided, however, that the time for service may be extended for good cause by order of

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the court.

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      (c) The filing of the complaint does not itself stay enforcement of the agency order. The

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agency may grant, or the reviewing court may order, a stay upon the appropriate terms.

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      (d) Within thirty (30) days after the service of the complaint, or within further time

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allowed by the court, the agency shall transmit to the reviewing court the original or a certified

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copy of the entire record of the proceeding under review. By stipulation of all parties to the

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review proceedings, the record may be shortened. Any party unreasonably refusing to stipulate to

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limit the record may be taxed by the court for the additional costs. The court may require or

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permit subsequent corrections or additions to the record.

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      (e) If, before the date set for the hearing, application is made to the court for leave to

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present additional evidence, and it is shown to the satisfaction of the court that the additional

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evidence is material and that there were good reasons for failure to present it in the proceeding

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before the agency, the court may order that the additional evidence be taken before the agency

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upon conditions determined by the court. The agency may modify its findings and decision by

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reason of the additional evidence and shall file that evidence and any modifications, new findings,

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or decisions with the reviewing court.

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      (f) The review shall be conducted by the court without a jury and shall be confined to the

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record. In cases of alleged irregularities in procedure before the agency, not shown in the record,

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proof thereon may be taken in the court. The court, upon request, shall hear oral argument and

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receive written briefs.

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      (g) The court shall not substitute its judgment for that of the agency as to the weight of

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the evidence on questions of fact. The court may affirm the decision of the agency or remand the

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case for further proceedings, or it may reverse or modify the decision if substantial rights of the

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appellant have been prejudiced because the administrative findings, inferences, conclusions, or

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decisions are:

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      (1) In violation of constitutional or statutory provisions;

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      (2) In excess of the statutory authority of the agency;

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      (3) Made upon unlawful procedure;

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      (4) Affected by other error or law;

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      (5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the

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whole record; or

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      (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted

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exercise of discretion.

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     SECTION 3. This act shall take effect upon passage.

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LC00553

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT -- ADMINISTRATIVE

PROCEDURE REVIEW ACT

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     This act would create a review process of any order issued pursuant to the administrative

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procedures act.

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     This act would take effect upon passage.

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LC00553

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