§91-11  Examination of evidence by agency. 
Whenever in a contested case the officials of the agency who are to render the
final decision have not heard and examined all of the evidence, the decision,
if adverse to a party to the proceeding other than the agency itself, shall not
be made until a proposal for decision containing a statement of reasons and
including determination of each issue of fact or law necessary to the proposed
decision has been served upon the parties, and an opportunity has been afforded
to each party adversely affected to file exceptions and present argument to the
officials who are to render the decision, who shall personally consider the
whole record or such portions thereof as may be cited by the parties. [L 1961,
c 103, §11; Supp, §6C-11; HRS §91-11]



 



Case Notes



 



  Deviation from
requirement that proposed decision be presented where the officials rendering
the decision have not heard and examined all the evidence is not permissible. 
52 H. 221, 473 P.2d 573.



  Procedural requirements
of section may be waived pursuant to §91-9(d).  54 H. 10, 501 P.2d 358.



  Requirement that
officials who are to render the decision personally consider the whole record
or portions thereof cited by the parties is satisfied where the officials
considered exceptions to the proposed decision and heard arguments thereon.  54
H. 10, 501 P.2d 358.



  Submission of
proposed decision is required whether a single official or a majority of the
officials have not heard the evidence.  54 H. 134, 504 P.2d 1214.



  "Final
decision" construed.  57 H. 535, 560 P.2d 1292.



  Person filing timely
exceptions is entitled to opportunity to present written and oral arguments,
and to have exceptions considered on merits based on record.  65 H. 257, 650
P.2d 574.



  Under circumstances,
board was not required to issue proposed decision.  65 H. 404, 652 P.2d 1143.



  Transcript of hearing
conducted by hearing officer not required for hearing on exceptions held
pursuant to this section.  65 H. 411, 652 P.2d 632.



  Where record reflected
that the commissioner heard and examined all the evidence, and appellants
pointed to no new evidence that the commissioner overlooked, the commissioner
did not violate this section by amending hearing officer's recommended order,
powers granted commissioner under Hawaii administrative rule §16-201-46, by
failing to provide appellants yet another opportunity to repeat their previous
arguments.  112 H. 90, 144 P.3d 1.



  As it is possible to
give effect to §281-59 and this section insofar as a public hearing on a
license application must be regarded as a contested case subject to the
requirements of chapter 91, this section does not conflict with §281-59.  118
H. 320, 189 P.3d 432.



  Public hearings on
liquor license applications held by the liquor commission are contested case
hearings such that this section requires any commissioner who is not present at
any stage of the public hearing to become familiar with the record before
voting on a liquor license application, unless the application is automatically
rejected pursuant to §281-59(a). 118 H. 320, 189 P.3d 432.



  The liquor
commission's failure to comply with this section, requiring that all
commissioners personally consider the entire record before voting on a liquor
license application, was not a "failure to act" such as would trigger
the automatic approval provision of §91-13.5 where the liquor commission voted,
albeit ineffectively, within the fifteen day period prescribed by §281-59.  118
H. 320, 189 P.3d 432.



  Where a public
hearing pertaining to the issuance of a liquor license was statutorily required
under §§281-52 and 281-57, and petitioner's legal rights, duties, and
privileges were determined based on the public hearing regarding the decision
to grant or deny a liquor license to petitioner, the public hearing was a
"contested case" hearing governed by chapter 91; thus, (1) petitioner
was entitled to judicial review under §91-14, (2) this section applied to
proceedings on petitioner's application for liquor license, and (3) the liquor
commission did not comply with this section.  118 H. 320, 189 P.3d 432.



  Phrase
"officials of the agency who are to render the final decision" refers
to all members of the agency.  2 H. App. 672, 638 P.2d 1386.



  Board met minimum
requirements of section by receiving briefs and hearing oral arguments.  5 H.
App. 59, 678 P.2d 576.



  Question not
preserved for appeal when party failed to object to denial of claim in agency's
proposed order.  5 H. App. 533, 704 P.2d 917.



 



Hawaii Legal Reporter Citations



 



  Opportunity to file
exceptions.  77-1 HLR 77-63.