State Codes and Statutes

Statutes > Utah > Future-title-32b > Chapter-03 > 32b-3-204-effective-07-01-11

32B-3-204 (Effective 07/01/11). Disciplinary proceeding procedure.
(1) (a) Subject to Section 32B-3-202, the following may conduct an adjudicativeproceeding to inquire into a matter necessary and proper for the administration of this title andrules adopted under this title:
(i) the commission;
(ii) a hearing examiner appointed by the commission to conduct a suspension orrevocation hearing required by law;
(iii) the director; and
(iv) the department.
(b) Except as provided in this section or Section 32B-2-605, a person described inSubsection (1)(a) shall comply with Title 63G, Chapter 4, Administrative Procedures Act, in anadjudicative proceeding.
(c) Except when otherwise provided by law, an adjudicative proceeding before thecommission or a hearing examiner appointed by the commission shall be:
(i) video or audio recorded; and
(ii) subject to Subsection (3)(b), conducted in accordance with Title 52, Chapter 4, Openand Public Meetings Act.
(d) A person listed in Subsection (1)(a) shall conduct an adjudicative proceedingconcerning departmental personnel in accordance with Title 67, Chapter 19, Utah State PersonnelManagement Act.
(e) A hearing that is informational, fact gathering, and nonadversarial in nature shall beconducted in accordance with rules, policies, and procedures made by the commission, director,or department.
(2) (a) Subject to Section 32B-3-202, a disciplinary proceeding shall be conducted underthe authority of the commission, which is responsible for rendering a final decision and order ona disciplinary matter.
(b) (i) The commission may appoint a necessary officer, including a hearing examiner,from within or without the department, to administer the disciplinary proceeding process.
(ii) A hearing examiner appointed by the commission:
(A) may conduct a disciplinary proceeding hearing on behalf of the commission; and
(B) shall submit to the commission a report including:
(I) findings of fact determined on the basis of a preponderance of the evidence presentedat the hearing;
(II) conclusions of law; and
(III) recommendations.
(iii) A report of a hearing examiner under this Subsection (2)(b) may not recommend apenalty more severe than that initially sought by the department in the notice of agency action.
(iv) A copy of a hearing examiner report under this Subsection (2)(b) shall be servedupon the respective parties.
(v) Before final commission action, the commission shall give a respondent and thedepartment reasonable opportunity to file a written objection to a hearing examiner report.
(3) (a) The commission or an appointed hearing examiner shall preside over adisciplinary proceeding hearing.
(b) A disciplinary proceeding hearing may be closed only after the commission orhearing examiner makes a written finding that the public interest in an open hearing is clearly

outweighed by factors enumerated in the closure order.
(c) (i) The commission or its hearing examiner as part of a disciplinary proceedinghearing may:
(A) administer an oath or affirmation;
(B) take evidence;
(C) take a deposition within or without this state; and
(D) require by subpoena from a place within this state:
(I) the testimony of a person at a hearing; and
(II) the production of a record or other evidence considered relevant to the inquiry.
(ii) A person subpoenaed in accordance with this Subsection (3)(c) shall testify andproduce a record or tangible thing as required in the subpoena.
(iii) A witness subpoenaed, called to testify, or called to produce evidence who claims aprivilege against self-incrimination may not be compelled to testify, but the commission or thehearing examiner shall file a written report with the county attorney or district attorney in thejurisdiction where the privilege is claimed or where the witness resides setting forth thecircumstance of the claimed privilege.
(iv) (A) A person is not excused from obeying a subpoena without just cause.
(B) A district court within the judicial district in which a person alleged to be guilty ofwillful contempt of court or refusal to obey a subpoena is found or resides, upon application bythe party issuing the subpoena, may issue an order requiring the person to:
(I) appear before the issuing party; and
(II) (Aa) produce documentary evidence if so ordered; or
(Bb) give evidence regarding the matter in question.
(C) Failure to obey an order of the court may be punished by the court as contempt.
(d) In a case heard by the commission, the commission shall issue its final decision andorder in accordance with Subsection (2).
(4) (a) The commission shall:
(i) render a final decision and order on a disciplinary action; and
(ii) cause its final order to be prepared in writing, issued, and served on all parties.
(b) An order of the commission is final on the date the order is issued.
(c) The commission, after the commission renders its final decision and order, mayrequire the director to prepare, issue, and cause to be served on the parties the final written orderon behalf of the commission.
(5) (a) If a respondent requests a disciplinary proceeding hearing, the hearing held by thecommission or a hearing examiner appointed by the commission shall proceed formally inaccordance with Sections 63G-4-204 through 63G-4-209 if:
(i) the alleged violation poses, or potentially poses, a grave risk to public safety, health,and welfare;
(ii) the alleged violation involves:
(A) selling or furnishing an alcoholic product to a minor;
(B) attire, conduct, or entertainment prohibited by Chapter 1, Part 5, Attire, Conduct, andEntertainment Act;
(C) fraud, deceit, willful concealment, or misrepresentation of the facts by or on behalf ofthe respondent;
(D) interfering or refusing to cooperate with:

(I) an authorized official of the department or the state in the discharge of the official'sduties in relation to the enforcement of this title; or
(II) a peace officer in the discharge of the peace officer's duties in relation to theenforcement of this title;
(E) an unlawful trade practice under Chapter 4, Part 7, Trade Practices Act;
(F) unlawful importation of an alcoholic product; or
(G) unlawful supply of liquor by a liquor industry member, as defined in Section32B-4-702, to a person other than the department or a military installation, except to the extentpermitted by this title; or
(iii) the department determines to seek in a disciplinary proceeding hearing:
(A) an administrative fine exceeding $3,000;
(B) a suspension of a license, permit, or certificate of approval of more than 10 days; or
(C) a revocation of a license, permit, or certificate of approval.
(b) If a respondent does not request a disciplinary proceeding hearing, a hearing shallproceed informally unless it is designated as a formal proceeding pursuant to rules adopted by thecommission in accordance with Subsection (5)(c).
(c) The commission shall make rules to provide a procedure to implement thisSubsection (5).

Enacted by Chapter 276, 2010 General Session

State Codes and Statutes

Statutes > Utah > Future-title-32b > Chapter-03 > 32b-3-204-effective-07-01-11

32B-3-204 (Effective 07/01/11). Disciplinary proceeding procedure.
(1) (a) Subject to Section 32B-3-202, the following may conduct an adjudicativeproceeding to inquire into a matter necessary and proper for the administration of this title andrules adopted under this title:
(i) the commission;
(ii) a hearing examiner appointed by the commission to conduct a suspension orrevocation hearing required by law;
(iii) the director; and
(iv) the department.
(b) Except as provided in this section or Section 32B-2-605, a person described inSubsection (1)(a) shall comply with Title 63G, Chapter 4, Administrative Procedures Act, in anadjudicative proceeding.
(c) Except when otherwise provided by law, an adjudicative proceeding before thecommission or a hearing examiner appointed by the commission shall be:
(i) video or audio recorded; and
(ii) subject to Subsection (3)(b), conducted in accordance with Title 52, Chapter 4, Openand Public Meetings Act.
(d) A person listed in Subsection (1)(a) shall conduct an adjudicative proceedingconcerning departmental personnel in accordance with Title 67, Chapter 19, Utah State PersonnelManagement Act.
(e) A hearing that is informational, fact gathering, and nonadversarial in nature shall beconducted in accordance with rules, policies, and procedures made by the commission, director,or department.
(2) (a) Subject to Section 32B-3-202, a disciplinary proceeding shall be conducted underthe authority of the commission, which is responsible for rendering a final decision and order ona disciplinary matter.
(b) (i) The commission may appoint a necessary officer, including a hearing examiner,from within or without the department, to administer the disciplinary proceeding process.
(ii) A hearing examiner appointed by the commission:
(A) may conduct a disciplinary proceeding hearing on behalf of the commission; and
(B) shall submit to the commission a report including:
(I) findings of fact determined on the basis of a preponderance of the evidence presentedat the hearing;
(II) conclusions of law; and
(III) recommendations.
(iii) A report of a hearing examiner under this Subsection (2)(b) may not recommend apenalty more severe than that initially sought by the department in the notice of agency action.
(iv) A copy of a hearing examiner report under this Subsection (2)(b) shall be servedupon the respective parties.
(v) Before final commission action, the commission shall give a respondent and thedepartment reasonable opportunity to file a written objection to a hearing examiner report.
(3) (a) The commission or an appointed hearing examiner shall preside over adisciplinary proceeding hearing.
(b) A disciplinary proceeding hearing may be closed only after the commission orhearing examiner makes a written finding that the public interest in an open hearing is clearly

outweighed by factors enumerated in the closure order.
(c) (i) The commission or its hearing examiner as part of a disciplinary proceedinghearing may:
(A) administer an oath or affirmation;
(B) take evidence;
(C) take a deposition within or without this state; and
(D) require by subpoena from a place within this state:
(I) the testimony of a person at a hearing; and
(II) the production of a record or other evidence considered relevant to the inquiry.
(ii) A person subpoenaed in accordance with this Subsection (3)(c) shall testify andproduce a record or tangible thing as required in the subpoena.
(iii) A witness subpoenaed, called to testify, or called to produce evidence who claims aprivilege against self-incrimination may not be compelled to testify, but the commission or thehearing examiner shall file a written report with the county attorney or district attorney in thejurisdiction where the privilege is claimed or where the witness resides setting forth thecircumstance of the claimed privilege.
(iv) (A) A person is not excused from obeying a subpoena without just cause.
(B) A district court within the judicial district in which a person alleged to be guilty ofwillful contempt of court or refusal to obey a subpoena is found or resides, upon application bythe party issuing the subpoena, may issue an order requiring the person to:
(I) appear before the issuing party; and
(II) (Aa) produce documentary evidence if so ordered; or
(Bb) give evidence regarding the matter in question.
(C) Failure to obey an order of the court may be punished by the court as contempt.
(d) In a case heard by the commission, the commission shall issue its final decision andorder in accordance with Subsection (2).
(4) (a) The commission shall:
(i) render a final decision and order on a disciplinary action; and
(ii) cause its final order to be prepared in writing, issued, and served on all parties.
(b) An order of the commission is final on the date the order is issued.
(c) The commission, after the commission renders its final decision and order, mayrequire the director to prepare, issue, and cause to be served on the parties the final written orderon behalf of the commission.
(5) (a) If a respondent requests a disciplinary proceeding hearing, the hearing held by thecommission or a hearing examiner appointed by the commission shall proceed formally inaccordance with Sections 63G-4-204 through 63G-4-209 if:
(i) the alleged violation poses, or potentially poses, a grave risk to public safety, health,and welfare;
(ii) the alleged violation involves:
(A) selling or furnishing an alcoholic product to a minor;
(B) attire, conduct, or entertainment prohibited by Chapter 1, Part 5, Attire, Conduct, andEntertainment Act;
(C) fraud, deceit, willful concealment, or misrepresentation of the facts by or on behalf ofthe respondent;
(D) interfering or refusing to cooperate with:

(I) an authorized official of the department or the state in the discharge of the official'sduties in relation to the enforcement of this title; or
(II) a peace officer in the discharge of the peace officer's duties in relation to theenforcement of this title;
(E) an unlawful trade practice under Chapter 4, Part 7, Trade Practices Act;
(F) unlawful importation of an alcoholic product; or
(G) unlawful supply of liquor by a liquor industry member, as defined in Section32B-4-702, to a person other than the department or a military installation, except to the extentpermitted by this title; or
(iii) the department determines to seek in a disciplinary proceeding hearing:
(A) an administrative fine exceeding $3,000;
(B) a suspension of a license, permit, or certificate of approval of more than 10 days; or
(C) a revocation of a license, permit, or certificate of approval.
(b) If a respondent does not request a disciplinary proceeding hearing, a hearing shallproceed informally unless it is designated as a formal proceeding pursuant to rules adopted by thecommission in accordance with Subsection (5)(c).
(c) The commission shall make rules to provide a procedure to implement thisSubsection (5).

Enacted by Chapter 276, 2010 General Session


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State Codes and Statutes

Statutes > Utah > Future-title-32b > Chapter-03 > 32b-3-204-effective-07-01-11

32B-3-204 (Effective 07/01/11). Disciplinary proceeding procedure.
(1) (a) Subject to Section 32B-3-202, the following may conduct an adjudicativeproceeding to inquire into a matter necessary and proper for the administration of this title andrules adopted under this title:
(i) the commission;
(ii) a hearing examiner appointed by the commission to conduct a suspension orrevocation hearing required by law;
(iii) the director; and
(iv) the department.
(b) Except as provided in this section or Section 32B-2-605, a person described inSubsection (1)(a) shall comply with Title 63G, Chapter 4, Administrative Procedures Act, in anadjudicative proceeding.
(c) Except when otherwise provided by law, an adjudicative proceeding before thecommission or a hearing examiner appointed by the commission shall be:
(i) video or audio recorded; and
(ii) subject to Subsection (3)(b), conducted in accordance with Title 52, Chapter 4, Openand Public Meetings Act.
(d) A person listed in Subsection (1)(a) shall conduct an adjudicative proceedingconcerning departmental personnel in accordance with Title 67, Chapter 19, Utah State PersonnelManagement Act.
(e) A hearing that is informational, fact gathering, and nonadversarial in nature shall beconducted in accordance with rules, policies, and procedures made by the commission, director,or department.
(2) (a) Subject to Section 32B-3-202, a disciplinary proceeding shall be conducted underthe authority of the commission, which is responsible for rendering a final decision and order ona disciplinary matter.
(b) (i) The commission may appoint a necessary officer, including a hearing examiner,from within or without the department, to administer the disciplinary proceeding process.
(ii) A hearing examiner appointed by the commission:
(A) may conduct a disciplinary proceeding hearing on behalf of the commission; and
(B) shall submit to the commission a report including:
(I) findings of fact determined on the basis of a preponderance of the evidence presentedat the hearing;
(II) conclusions of law; and
(III) recommendations.
(iii) A report of a hearing examiner under this Subsection (2)(b) may not recommend apenalty more severe than that initially sought by the department in the notice of agency action.
(iv) A copy of a hearing examiner report under this Subsection (2)(b) shall be servedupon the respective parties.
(v) Before final commission action, the commission shall give a respondent and thedepartment reasonable opportunity to file a written objection to a hearing examiner report.
(3) (a) The commission or an appointed hearing examiner shall preside over adisciplinary proceeding hearing.
(b) A disciplinary proceeding hearing may be closed only after the commission orhearing examiner makes a written finding that the public interest in an open hearing is clearly

outweighed by factors enumerated in the closure order.
(c) (i) The commission or its hearing examiner as part of a disciplinary proceedinghearing may:
(A) administer an oath or affirmation;
(B) take evidence;
(C) take a deposition within or without this state; and
(D) require by subpoena from a place within this state:
(I) the testimony of a person at a hearing; and
(II) the production of a record or other evidence considered relevant to the inquiry.
(ii) A person subpoenaed in accordance with this Subsection (3)(c) shall testify andproduce a record or tangible thing as required in the subpoena.
(iii) A witness subpoenaed, called to testify, or called to produce evidence who claims aprivilege against self-incrimination may not be compelled to testify, but the commission or thehearing examiner shall file a written report with the county attorney or district attorney in thejurisdiction where the privilege is claimed or where the witness resides setting forth thecircumstance of the claimed privilege.
(iv) (A) A person is not excused from obeying a subpoena without just cause.
(B) A district court within the judicial district in which a person alleged to be guilty ofwillful contempt of court or refusal to obey a subpoena is found or resides, upon application bythe party issuing the subpoena, may issue an order requiring the person to:
(I) appear before the issuing party; and
(II) (Aa) produce documentary evidence if so ordered; or
(Bb) give evidence regarding the matter in question.
(C) Failure to obey an order of the court may be punished by the court as contempt.
(d) In a case heard by the commission, the commission shall issue its final decision andorder in accordance with Subsection (2).
(4) (a) The commission shall:
(i) render a final decision and order on a disciplinary action; and
(ii) cause its final order to be prepared in writing, issued, and served on all parties.
(b) An order of the commission is final on the date the order is issued.
(c) The commission, after the commission renders its final decision and order, mayrequire the director to prepare, issue, and cause to be served on the parties the final written orderon behalf of the commission.
(5) (a) If a respondent requests a disciplinary proceeding hearing, the hearing held by thecommission or a hearing examiner appointed by the commission shall proceed formally inaccordance with Sections 63G-4-204 through 63G-4-209 if:
(i) the alleged violation poses, or potentially poses, a grave risk to public safety, health,and welfare;
(ii) the alleged violation involves:
(A) selling or furnishing an alcoholic product to a minor;
(B) attire, conduct, or entertainment prohibited by Chapter 1, Part 5, Attire, Conduct, andEntertainment Act;
(C) fraud, deceit, willful concealment, or misrepresentation of the facts by or on behalf ofthe respondent;
(D) interfering or refusing to cooperate with:

(I) an authorized official of the department or the state in the discharge of the official'sduties in relation to the enforcement of this title; or
(II) a peace officer in the discharge of the peace officer's duties in relation to theenforcement of this title;
(E) an unlawful trade practice under Chapter 4, Part 7, Trade Practices Act;
(F) unlawful importation of an alcoholic product; or
(G) unlawful supply of liquor by a liquor industry member, as defined in Section32B-4-702, to a person other than the department or a military installation, except to the extentpermitted by this title; or
(iii) the department determines to seek in a disciplinary proceeding hearing:
(A) an administrative fine exceeding $3,000;
(B) a suspension of a license, permit, or certificate of approval of more than 10 days; or
(C) a revocation of a license, permit, or certificate of approval.
(b) If a respondent does not request a disciplinary proceeding hearing, a hearing shallproceed informally unless it is designated as a formal proceeding pursuant to rules adopted by thecommission in accordance with Subsection (5)(c).
(c) The commission shall make rules to provide a procedure to implement thisSubsection (5).

Enacted by Chapter 276, 2010 General Session


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