2020 -- H 7357

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LC003248

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2020

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A N   A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT -- ADMINISTRATIVE

PROCEDURES

     Introduced By: Representatives Place, Nardone, Lyle, and Filippi

     Date Introduced: January 30, 2020

     Referred To: House Judiciary

     It is enacted by the General Assembly as follows:

     SECTION 1. Chapter 42-35 of the General Laws entitled "Administrative Procedures" is

hereby amended by adding thereto the following sections:

     42-35-8.1. License and permit issuance.

     Notwithstanding any other law, in any case in which a license or permit is required prior

to a person engaging in any constitutionally protected activity, the criteria for the granting or

denial of that license or permit shall be specified in clear and unambiguous language, and the

applicant shall be entitled to a review and determination of that permit or license application

within thirty (30) days or such other time as the legislature shall by law prescribe. The

determination of what constitutes clear and unambiguous language shall be a judicial question,

without deference to the legislature or the agency.

     42-35-8.2. Burden of proof.

     The burden of proof in agency hearings shall be the preponderance of the evidence.

Notwithstanding any other law, at a hearing on an agency’s denial of a license or permit or a

denial of an application or request for modification of a license or permit, the agency has the

burden of persuasion. At a hearing on an agency action to suspend, revoke, terminate, or modify

on its own initiative material conditions of a license or permit, the agency has the burden of

persuasion. At a hearing on an agency’s imposition of fees or penalties or any agency compliance

order, the agency has the burden of persuasion.

     42-35-8.3. Deposition testimony.

     On application of a party or the agency and for use as evidence, the hearing officer,

referee or administrative law judge may permit a deposition to be taken, in the manner and on the

terms designated by the hearing officer, referee or administrative law judge, of a witness who

cannot be subpoenaed or who is unable to attend the hearing. Subpoenas for the production of

documents may be ordered by the hearing officer, referee or administrative law judge if the party

seeking the discovery demonstrates that the party has reasonable need of the materials being

sought. All provisions of law compelling a person under subpoena to testify are applicable.

     42-35-8.4. Motion to disqualify.

     A party may file a motion with the director of the agency to disqualify the hearing

officer, referee or an administrative law judge from conducting a hearing for bias, prejudice,

personal interest, or lack of technical expertise necessary for a hearing.

     42-35-8.5. Issuance of subpoenas and administration of oaths.

     The hearing officer, referee or administrative law judge may issue subpoenas to compel

the attendance of witnesses and the production of documents. The subpoenas shall be served and,

on application to the superior court, enforced in the manner provided by law for the service and

enforcement of subpoenas in civil matters. The hearing officer, referee or administrative law

judge may administer oaths and affirmations to witnesses.

     SECTION 2. Sections 42-35-9, 42-35-10 and 42-35-15 of the General Laws in Chapter

42-35 entitled "Administrative Procedures" are hereby amended to read as follows:

     42-35-9. Contested cases -- Notice -- Hearing -- Records.

     (a) In any contested case, all parties shall be afforded an opportunity for a hearing after

reasonable notice.

     (b) The notice shall include:

     (1) A statement of the time, place, and nature of the hearing;

     (2) A statement of the legal authority and jurisdiction under which the hearing is to be

held;

     (3) A reference to the particular sections of the statutes and rules involved;

     (4) A short and plain statement of the matters inserted. If the agency or other party is

unable to state the matters in detail at the time the notice is served, the initial notice may be

limited to a statement of the issues involved and detailed statement shall be furnished.

     (c) Opportunity shall be afforded all parties to be represented by counsel or to proceed

without counsel and to respond and present evidence and argument on all issues involved.

     (d) Unless precluded by law, informal disposition may be made of any contested case by

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stipulation, agreed settlement, consent order, or default.

     (e) The record in a contested case shall include:

     (1) All pleadings, motions, intermediate rulings and a verbatim transcript of any

contested hearing;

     (2) Evidence received or considered;

     (3) A statement of matters officially noticed;

     (4) Questions and offers of proof and rulings thereon;

     (5) Proposed findings and exceptions;

     (6) Any decision, opinion, or report by the officer presiding at the hearing;

     (7) All staff memoranda or data submitted to the hearing officer or members of the

agency in connection with their consideration of the case.

     (f) Oral proceedings or any part thereof conducted under the provisions of this chapter

shall be transcribed on request by any party. Stenotypists occupying positions within the state

service as hearing reporters for any state agency, who report stenographically the proceedings in

administrative hearings and the taking of depositions in their capacity as reporters for a state

agency, shall be paid at the rate established by § 8-5-5 from the requesting party; provided,

however, the state agency shall not be required to compensate the stenotypists for the transcript

recorded at the agency's expense.

     (g) Findings of fact shall be based exclusively on the evidence and matters officially

noticed.

     42-35-10. Rules of evidence -- Official notice Rules of evidence and procedure --

Official notice.

     In contested cases:

     (1) Irrelevant, immaterial, or unduly repetitious evidence shall be excluded. The rules of

evidence and procedure as applied in civil cases in the superior courts of this state shall be

followed; but, when necessary to ascertain facts not reasonably susceptible of proof under those

rules, evidence not admissible under those rules may be submitted (except where precluded by

statute) if it is of a type commonly relied upon by reasonably prudent men and women in the

conduct of their affairs. Agencies shall give effect to the rules of privilege recognized by law.

Objections to evidentiary offers may be made and shall be noted in the record. Subject to these

requirements, when a hearing will be expedited and the interests of the parties will not be

prejudiced substantially, any part of the evidence may be received in written form;

     (2) Documentary evidence may be received in the form of copies or excerpts, if the

original is not readily available. Upon request, parties shall be given an opportunity to compare

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the copy with the original;

     (3) A party may conduct cross examinations required for a full and true disclosure of the

facts;

     (4) Notice may be taken of judicially cognizable facts. In addition, notice may be taken of

generally recognized technical or scientific facts within the agency's specialized knowledge; but

parties shall be notified either before or during the hearing, or by reference in preliminary reports

or otherwise, of the material noticed, including any staff memoranda or data, and they shall be

afforded an opportunity to contest the material so noticed. The agency's experience, technical

competence, and specialized knowledge may be utilized in the evaluation of the evidence.

     42-35-15. Judicial review of contested cases.

     (a) Any person, including any small business, who has exhausted all administrative

remedies available to him or her within the agency, and who is aggrieved by a final order in a

contested case is entitled to judicial review under this chapter. This section does not limit

utilization of or the scope of judicial review available under other means of review, redress, relief,

or trial de novo provided by law. Any preliminary, procedural, or intermediate agency act or

ruling is immediately reviewable in any case in which review of the final agency order would not

provide an adequate remedy.

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

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

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

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

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

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

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

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

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

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

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

the court.

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

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

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

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

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

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

permit subsequent corrections or additions to the record.

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

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

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

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

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

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

or decisions with the reviewing court.

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

record. The court shall decide de novo all relevant questions of law, including the interpretation

of constitutional, statutory, and regulatory provisions, unless the parties stipulate otherwise. In

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

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

written briefs.

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

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

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

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

decisions are:

     (1) In violation of constitutional or statutory provisions;

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

     (3) Made upon unlawful procedure;

     (4) Affected by other error of law;

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

whole record; or

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

exercise of discretion.

     SECTION 3. This act shall take effect upon passage.

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LC003248

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT -- ADMINISTRATIVE

PROCEDURES

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     This act would provide that the burden of proof in an administrative hearing is by a

preponderance of the evidence. The act would allow hearing officers to issue subpoenas;

authorize the use of deposition testimony; and mandate that superior court rules of evidence and

procedure be utilized. On appeal, issues of law would be decided de novo.

     This act would take effect upon passage.

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LC003248

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