Rhode Island 2023 Regular Session

Rhode Island House Bill H5306 Compare Versions

Only one version of the bill is available at this time.

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5	5	2023 -- H 5306
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7	7	LC000487
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9	9	S TATE OF RHODE IS LAND
10	10	IN GENERAL ASSEMBLY
11	11	JANUARY SESSION, A.D. 2023
12	12	____________
13	13
14	14	A N A C T
15	15	RELATING TO STATE AFFAIRS AND GOVERNMENT -- ADMINISTRATIVE
16	16	PROCEDURES
17	17	Introduced By: Representatives Place, and Rea
18	18	Date Introduced: February 01, 2023
19	19	Referred To: House State Government & Elections
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22	22	It is enacted by the General Assembly as follows:
23	23	SECTION 1. Chapter 42-35 of the General Laws entitled "Administrative Procedures" is 1
24	24	hereby amended by adding thereto the following sections: 2
25	25	42-35-8.1. License and permit issuance. 3
26	26	Notwithstanding any other law, in any case in which a license or permit is required prior 4
27	27	to a person engaging in any constitutionally protected activity, the criteria for the granting or denial 5
28	28	of that license or permit shall be specified in clear and unambiguous language, and the applicant 6
29	29	shall be entitled to a review and determination of that permit or license application within thirty 7
30	30	(30) days or such other time as the legislature shall by law prescribe. The determination of what 8
31	31	constitutes clear and unambiguous language shall be a judicial question, without deference to the 9
32	32	legislature or the agency. 10
33	33	42-35-8.2. Burden of proof. 11
34	34	The burden of proof in agency hearings shall be the preponderance of the evidence. 12
35	35	Notwithstanding any other law, at a hearing on an agency’s denial of a license or permit or a denial 13
36	36	of an application or request for modification of a license or permit, the agency has the burden of 14
37	37	persuasion. At a hearing on an agency action to suspend, revoke, terminate, or modify on its own 15
38	38	initiative material conditions of a license or permit, the agency has the burden of persuasion. At a 16
39	39	hearing on an agency’s imposition of fees or penalties or any agency compliance order, the agency 17
40	40	has the burden of persuasion. 18
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42	42
43	43	LC000487 - Page 2 of 6
44	44	42-35-8.3. Deposition testimony. 1
45	45	On application of a party or the agency and for use as evidence, the hearing officer, referee 2
46	46	or administrative law judge may permit a deposition to be taken, in the manner and on the terms 3
47	47	designated by the hearing officer, referee or administrative law judge, of a witness who cannot be 4
48	48	subpoenaed or who is unable to attend the hearing. Subpoenas for the production of documents 5
49	49	may be ordered by the hearing officer, referee or administrative law judge if the party seeking the 6
50	50	discovery demonstrates that the party has reasonable need of the materials being sought. All 7
51	51	provisions of law compelling a person under subpoena to testify are applicable. 8
52	52	42-35-8.4. Motion to disqualify. 9
53	53	A party may file a motion with the director of the agency to disqualify the hearing officer, 10
54	54	referee or an administrative law judge from conducting a hearing for bias, prejudice, personal 11
55	55	interest, or lack of technical expertise necessary for a hearing. 12
56	56	42-35-8.5. Issuance of subpoenas and administration of oaths. 13
57	57	The hearing officer, referee or administrative law judge may issue subpoenas to compel 14
58	58	the attendance of witnesses and the production of documents. The subpoenas shall be served and, 15
59	59	on application to the superior court, enforced in the manner provided by law for the service and 16
60	60	enforcement of subpoenas in civil matters. The hearing officer, referee or administrative law judge 17
61	61	may administer oaths and affirmations to witnesses. 18
62	62	SECTION 2. Sections 42-35-9, 42-35-10 and 42-35-15 of the General Laws in Chapter 42-19
63	63	35 entitled "Administrative Procedures" are hereby amended to read as follows: 20
64	64	42-35-9. Contested cases — Notice — Hearing — Records. 21
65	65	(a) In any contested case, all parties shall be afforded an opportunity for a hearing after 22
66	66	reasonable notice. 23
67	67	(b) The notice shall include: 24
68	68	(1) A statement of the time, place, and nature of the hearing; 25
69	69	(2) A statement of the legal authority and jurisdiction under which the hearing is to be held; 26
70	70	(3) A reference to the particular sections of the statutes and rules involved; 27
71	71	(4) A short and plain statement of the matters inserted. If the agency or other party is unable 28
72	72	to state the matters in detail at the time the notice is served, the initial notice may be limited to a 29
73	73	statement of the issues involved and detailed statement shall be furnished. 30
74	74	(c) Opportunity shall be afforded all parties to be represented by counsel or to proceed 31
75	75	without counsel and to respond and present evidence and argument on all issues involved. 32
76	76	(d) Unless precluded by law, informal disposition may be made of any contested case by 33
77	77	stipulation, agreed settlement, consent order, or default. 34
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79	79
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81	81	(e) The record in a contested case shall include and a verbatim transcript of any contested 1
82	82	hearing: 2
83	83	(1) All pleadings, motions, intermediate rulings; 3
84	84	(2) Evidence received or considered; 4
85	85	(3) A statement of matters officially noticed; 5
86	86	(4) Questions and offers of proof and rulings thereon; 6
87	87	(5) Proposed findings and exceptions; 7
88	88	(6) Any decision, opinion, or report by the officer presiding at the hearing; 8
89	89	(7) All staff memoranda or data submitted to the hearing officer or members of the agency 9
90	90	in connection with their consideration of the case. 10
91	91	(f) Oral proceedings or any part thereof conducted under the provisions of this chapter shall 11
92	92	be transcribed on request by any party. Stenotypists occupying positions within the state service as 12
93	93	hearing reporters for any state agency, who report stenographically the proceedings in 13
94	94	administrative hearings and the taking of depositions in their capacity as reporters for a state 14
95	95	agency, shall be paid at the rate established by § 8-5-5 from the requesting party; provided, 15
96	96	however, the state agency shall not be required to compensate the stenotypists for the transcript 16
97	97	recorded at the agency's expense. 17
98	98	(g) Findings of fact shall be based exclusively on the evidence and matters officially 18
99	99	noticed. 19
100	100	42-35-10. Rules of evidence — Official notice. 20
101	101	In contested cases: 21
102	102	(1) Irrelevant, immaterial, or unduly repetitious evidence shall be excluded. The rules of 22
103	103	evidence and procedure as applied in civil cases in the superior courts of this state shall be followed; 23
104	104	but, when necessary to ascertain facts not reasonably susceptible of proof under those rules, 24
105	105	evidence not admissible under those rules may be submitted (except where precluded by statute) if 25
106	106	it is of a type commonly relied upon by reasonably prudent men and women in the conduct of their 26
107	107	affairs. Agencies shall give effect to the rules of privilege recognized by law. Objections to 27
108	108	evidentiary offers may be made and shall be noted in the record. Subject to these requirements, 28
109	109	when a hearing will be expedited and the interests of the parties will not be prejudiced substantially, 29
110	110	any part of the evidence may be received in written form; 30
111	111	(2) Documentary evidence may be received in the form of copies or excerpts, if the original 31
112	112	is not readily available. Upon request, parties shall be given an opportunity to compare the copy 32
113	113	with the original; 33
114	114	(3) A party may conduct cross examinations required for a full and true disclosure of the 34
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117	117	LC000487 - Page 4 of 6
118	118	facts; 1
119	119	(4) Notice may be taken of judicially cognizable facts. In addition, notice may be taken of 2
120	120	generally recognized technical or scientific facts within the agency’s specialized knowledge; but 3
121	121	parties shall be notified either before or during the hearing, or by reference in preliminary reports 4
122	122	or otherwise, of the material noticed, including any staff memoranda or data, and they shall be 5
123	123	afforded an opportunity to contest the material so noticed. The agency’s experience, technical 6
124	124	competence, and specialized knowledge may be utilized in the evaluation of the evidence. 7
125	125	42-35-15. Judicial review of contested cases. 8
126	126	(a) Any person, including any small business, who has exhausted all administrative 9
127	127	remedies available to him or her within the agency, and who is aggrieved by a final order in a 10
128	128	contested case is entitled to judicial review under this chapter. This section does not limit utilization 11
129	129	of or the scope of judicial review available under other means of review, redress, relief, or trial de 12
130	130	novo provided by law. Any preliminary, procedural, or intermediate agency act or ruling is 13
131	131	immediately reviewable in any case in which review of the final agency order would not provide 14
132	132	an adequate remedy. 15
133	133	(b) Proceedings for review are instituted by filing a complaint in the superior court of 16
134	134	Providence County or in the superior court in the county in which the cause of action arose, or 17
135	135	where expressly provided by the general laws in the sixth division of the district court or family 18
136	136	court of Providence County, within thirty (30) days after mailing notice of the final decision of the 19
137	137	agency or, if a rehearing is requested, within thirty (30) days after the decision thereon; provided, 20
138	138	however, that any person who is aggrieved by a final order concerning the assessment or 21
139	139	determination of any tax, interest, or penalty made by the tax administrator must pay the amount 22
140	140	of the tax, interest, or penalty to the administrator as a prerequisite to the filing of such complaint. 23
141	141	Copies of the complaint shall be served upon the agency and all other parties of record in the manner 24
142	142	prescribed by applicable procedural rules within ten (10) days after it is filed in court; provided, 25
143	143	however, that the time for service may be extended for good cause by order of the court. 26
144	144	(c) The filing of the complaint does not itself stay enforcement of the agency order. The 27
145	145	agency may grant, or the reviewing court may order, a stay upon the appropriate terms. 28
146	146	(d) Within thirty (30) days after the service of the complaint, or within further time allowed 29
147	147	by the court, the agency shall transmit to the reviewing court the original or a certified copy of the 30
148	148	entire record of the proceeding under review. By stipulation of all parties to the review proceedings, 31
149	149	the record may be shortened. Any party unreasonably refusing to stipulate to limit the record may 32
150	150	be taxed by the court for the additional costs. The court may require or permit subsequent 33
151	151	corrections or additions to the record. 34
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154	154	LC000487 - Page 5 of 6
155	155	(e) If, before the date set for the hearing, application is made to the court for leave to present 1
156	156	additional evidence, and it is shown to the satisfaction of the court that the additional evidence is 2
157	157	material and that there were good reasons for failure to present it in the proceeding before the 3
158	158	agency, the court may order that the additional evidence be taken before the agency upon conditions 4
159	159	determined by the court. The agency may modify its findings and decision by reason of the 5
160	160	additional evidence and shall file that evidence and any modifications, new findings, or decisions 6
161	161	with the reviewing court. 7
162	162	(f) The review shall be conducted by the court without a jury and shall be confined to the 8
163	163	record. The court shall decide de novo all relevant questions of law, including the interpretation of 9
164	164	constitutional, statutory, and regulatory provisions, unless the parties stipulate otherwise. In cases 10
165	165	of alleged irregularities in procedure before the agency, not shown in the record, proof thereon may 11
166	166	be taken in the court. The court, upon request, shall hear oral argument and receive written briefs. 12
167	167	(g) The court shall not substitute its judgment for that of the agency as to the weight of the 13
168	168	evidence on questions of fact. The court may affirm the decision of the agency or remand the case 14
169	169	for further proceedings, or it may reverse or modify the decision if substantial rights of the appellant 15
170	170	have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: 16
171	171	(1) In violation of constitutional or statutory provisions; 17
172	172	(2) In excess of the statutory authority of the agency; 18
173	173	(3) Made upon unlawful procedure; 19
174	174	(4) Affected by other error of law; 20
175	175	(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the 21
176	176	whole record; or 22
177	177	(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted 23
178	178	exercise of discretion. 24
179	179	SECTION 3. This act shall take effect upon passage. 25
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181	181	LC000487
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186	186	EXPLANATION
187	187	BY THE LEGISLATIVE COUNCIL
188	188	OF
189	189	A N A C T
190	190	RELATING TO STATE AFFAIRS AND GOVERNMENT -- ADMINISTRATIVE
191	191	PROCEDURES
192	192	***
193	193	This act would provide that the burden of proof in an administrative hearing is by a 1
194	194	preponderance of the evidence. The act would allow hearing officers to issue subpoenas; authorize 2
195	195	the use of deposition testimony; and mandate that superior court rules of evidence and procedure 3
196	196	be utilized. On appeal, issues of law would be decided de novo. 4
197	197	This act would take effect upon passage. 5
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199	199	LC000487
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