CO Code § 24-4-105 (2021)
2021 Colorado Code|Title 24 - Government - State|Article 4 - Rule-Making and Licensing Procedures by State Agencies|Part 1 - General|§ 24-4-105. Hearings and Determinations - Repeal

  In order to assure that all parties to any agency adjudicatory proceeding are accorded due process of law, the provisions of this section shall be applicable.      In any such proceeding in which an opportunity for agency adjudicatory hearing is required under the state constitution or by this or any other statute, the parties are entitled to a hearing and decision in conformity with this section. Any person entitled to notice of a hearing shall be given timely notice of the time, place, and nature thereof, the legal authority and jurisdiction under which it is to be held, and the matters of fact and law asserted. Unless otherwise provided by law, such notice shall be served personally or by mailing by first-class mail to the last address furnished the agency by the person to be notified at least thirty days prior to the hearing. In fixing the time and place for a hearing, due regard shall be had for the convenience and necessity of the parties and their representatives. (2) (a) In any such proceeding in which an opportunity for agency adjudicatory hearing is required under the state constitution or by this or any other statute, the parties are entitled to a hearing and decision in conformity with this section. Any person entitled to notice of a hearing shall be given timely notice of the time, place, and nature thereof, the legal authority and jurisdiction under which it is to be held, and the matters of fact and law asserted. Unless otherwise provided by law, such notice shall be served personally or by mailing by first-class mail to the last address furnished the agency by the person to be notified at least thirty days prior to the hearing. In fixing the time and place for a hearing, due regard shall be had for the convenience and necessity of the parties and their representatives.    Any person given such notice shall file a written answer thirty days after the service or mailing of such notice. If such person fails to answer, any agency, administrative law judge, or hearing officer, upon motion, may enter a default. For good cause shown, the entry of default may be set aside within ten days after the date of such entry.    A person who may be affected or aggrieved by agency action shall be admitted as a party to the proceeding upon his filing with the agency a written request therefor, setting forth a brief and plain statement of the facts which entitle him to be admitted and the matters which he claims should be decided. Nothing in this subsection (2) shall prevent an agency from admitting any person or agency as a party to any agency proceeding for limited purposes.       At a hearing only one of the following may preside: The agency, an administrative law judge from the office of administrative courts, or, if otherwise authorized by law, a hearing officer who if authorized by law may be a member of the body which comprises the agency. Upon the filing in good faith by a party of a timely and sufficient affidavit of personal bias of an administrative law judge or a hearing officer or a member of the agency or the agency, the administrative law judge, hearing officer, or agency shall forthwith rule upon the allegations in such affidavit as part of the record in the case. An administrative law judge or a hearing officer may at any time withdraw if he or she deems himself or herself disqualified or for any other good reason in which case another administrative law judge or hearing officer may be assigned to continue the case, and he or she shall do so in such manner that no substantial prejudice to any party results therefrom. An agency or a member of an agency may withdraw for any like reason and in like manner, unless his or her withdrawal makes it impossible for the agency to render a decision.      Any agency conducting a hearing, any administrative law judge, and any hearing officer shall have authority to: Administer oaths and affirmations; sign and issue subpoenas; rule upon offers of proof and receive evidence; dispose of motions relating to the discovery and production of relevant documents and things for inspection, copying, or photographing; regulate the course of the hearing, set the time and place for continued hearings, and fix the time for the filing of briefs and other documents; direct the parties to appear and confer to consider the simplification of the issues, admissions of fact or of documents to avoid unnecessary proof, and limitation of the number of expert witnesses; issue appropriate orders that shall control the subsequent course of the proceedings; dispose of motions to dismiss for lack of agency jurisdiction over the subject matter or parties or for any other ground; dispose of motions to amend or to dismiss without prejudice applications and other pleadings; dispose of motions to intervene, procedural requests, or similar matters; reprimand or exclude from the hearing any person for any improper or indecorous conduct in his or her presence; award attorney fees for abuses of discovery procedures or as otherwise provided under the Colorado rules of civil procedure; and take any other action authorized by agency rule consistent with this article 4 or in accordance, to the extent practicable, with the procedure in the district courts. All parties to the proceeding shall also have the right to cross-examine witnesses who testify at the proceeding. In the event more than one person engages in the conduct of a hearing, such persons shall designate one of their number to perform such of the above functions as can best be performed by one person only, and thereafter such person only shall perform those functions that are assigned to him or her by the several persons conducting such hearing. (4) (a) Any agency conducting a hearing, any administrative law judge, and any hearing officer shall have authority to: Administer oaths and affirmations; sign and issue subpoenas; rule upon offers of proof and receive evidence; dispose of motions relating to the discovery and production of relevant documents and things for inspection, copying, or photographing; regulate the course of the hearing, set the time and place for continued hearings, and fix the time for the filing of briefs and other documents; direct the parties to appear and confer to consider the simplification of the issues, admissions of fact or of documents to avoid unnecessary proof, and limitation of the number of expert witnesses; issue appropriate orders that shall control the subsequent course of the proceedings; dispose of motions to dismiss for lack of agency jurisdiction over the subject matter or parties or for any other ground; dispose of motions to amend or to dismiss without prejudice applications and other pleadings; dispose of motions to intervene, procedural requests, or similar matters; reprimand or exclude from the hearing any person for any improper or indecorous conduct in his or her presence; award attorney fees for abuses of discovery procedures or as otherwise provided under the Colorado rules of civil procedure; and take any other action authorized by agency rule consistent with this article 4 or in accordance, to the extent practicable, with the procedure in the district courts. All parties to the proceeding shall also have the right to cross-examine witnesses who testify at the proceeding. In the event more than one person engages in the conduct of a hearing, such persons shall designate one of their number to perform such of the above functions as can best be performed by one person only, and thereafter such person only shall perform those functions that are assigned to him or her by the several persons conducting such hearing.        The general assembly hereby finds that the mediation process generally saves the state and the licensee time and money. Mediation takes much less time than moving a case through agency proceedings and judicial review. These cases typically take months or years to resolve, but mediation typically achieves a resolution in a matter of hours. Taking less time means expending less money on hourly fees and costs. This benefits both the agency and the licensee, and because the result is attained by the parties working together, compliance with the mediated agreement is usually high. This further reduces costs because agencies do not have to pay an attorney or investigators to force compliance. (b) (I) (A) The general assembly hereby finds that the mediation process generally saves the state and the licensee time and money. Mediation takes much less time than moving a case through agency proceedings and judicial review. These cases typically take months or years to resolve, but mediation typically achieves a resolution in a matter of hours. Taking less time means expending less money on hourly fees and costs. This benefits both the agency and the licensee, and because the result is attained by the parties working together, compliance with the mediated agreement is usually high. This further reduces costs because agencies do not have to pay an attorney or investigators to force compliance.    The general assembly hereby declares that, in order to save time and money, the policy of Colorado is to use mediation whenever appropriate to settle disputes between agencies and licensees.       Upon petition of the agency or licensee after the licensee has received the notice of hearing under subsection (2)(a) of this section, the hearing officer or administrative law judge shall order mediation between the agency and the licensee unless the license was summarily suspended in accordance with section 24-4-104 (4). When mediation is ordered, the agency shall:   Assign a person with authority to make prehearing decisions concerning disposition of the matter to be present during meetings related to settlement communications or mediation communications and to be included in any material settlement communications with the licensee or the licensee's representative over the matter; and    Upon the licensee's request, allow a private or public mediator chosen by the licensee to be present during meetings related to mediation and to be included in any material settlement communications with the licensee or the licensee's representative over the matter. If the mediator is privately retained, the licensee must pay the mediator's reasonable fees, and the agency need not pay the privately retained mediator's fees.       To the extent feasible, for the purpose of carrying out this subsection (4):   Administrative law judges shall make themselves available as public mediators without cost to the licensee;    The members of any governing body that regulates the licensee shall make a member or other person available for mediation as a person with authority to make prehearing decisions concerning disposition of the matter.       If an agency fails to comply with an order of mediation, a licensee adversely affected by the failure may petition the administrative law judge or hearing officer to suspend the proceedings and require compliance with the order, to be completed in good faith as soon as practicable, under the administrative law judge's or the hearing officer's supervision.    If mediation fails, the agency shall notify the administrative law judge or the hearing officer, and the administrative law judge or the hearing officer shall lift the suspension and proceed with the hearing.    When determining the place to hold the mediation, the agency shall give due consideration to the location of the licensee's occupation or residence, the availability of an administrative law judge to mediate, and the availability of a member of the governing body that regulates the licensee to be a person with authority to make prehearing decisions concerning disposition of the matter.    This subsection (4)(b) applies only to agency proceedings that concern an individual who is licensed to practice an occupation or profession; except that this subsection (4)(b) does not apply to a commercial driver's license issued under part 4 of article 2 of title 42.    This subsection (4)(b) does not apply if a license has been summarily suspended because the agency finds, in accordance with section 24-4-104 (4), that the licensee is guilty of a deliberate and willful violation or that the public health, safety, or welfare imperatively requires emergency action and incorporates the findings in the agency's order. Nothing in this subsection (4)(b) prohibits an agency and licensee from voluntarily agreeing to a mediation following a summary suspension.    By January 1, 2022, the office of administrative courts and the division of professions and occupations in the department of regulatory agencies shall issue a joint report to the judiciary committee and the state, veterans, and military affairs committee of the house of representatives and the judiciary committee and the state, veterans, and military affairs committee of the senate or their successor committees. This subsection (4)(b)(IX) is repealed, effective July 1, 2022. The report must contain the following:   The number of hearings affecting licenses held between July 1, 2016, and July 1, 2018;    The number of hearings affecting licenses held between July 1, 2019, and July 1, 2021;    The number of mediations held between July 1, 2016, and July 1, 2018;    The number of mediations held between July 1, 2019, and July 1, 2021;    The number of proceedings in which the licensee and agency agreed to settle the proceedings between July 1, 2016, and July 1, 2018; and    The number of proceedings in which the licensee and agency agreed to settle the proceedings between July 1, 2019, and July 1, 2021.             Subpoenas shall be issued without discrimination between public and private parties by any agency or any member, the secretary, or chief administrative officer thereof or, with respect to any hearing for which an administrative law judge or a hearing officer has been appointed, the administrative law judge or the hearing officer. A subpoena shall be served in the same manner as a subpoena issued by a district court. Upon failure of any witness to comply with such subpoena, the agency may petition any district court, setting forth that due notice has been given of the time and place of attendance of the witness and the service of the subpoena; in which event, the district court, after hearing evidence in support of or contrary to the petition, may enter an order as in other civil actions compelling the witness to attend and testify or produce books, records, or other evidence, under penalty of punishment for contempt in case of contumacious failure to comply with the order of the court and may award attorney fees under the Colorado rules of civil procedure. A witness shall be entitled to the fees and mileage provided for a witness in a court of record.    No person engaged in conducting a hearing or participating in a decision or an initial decision shall be responsible to or subject to the supervision or direction of any officer, employee, or agent engaged in the performance of investigatory or prosecuting functions for the agency.    Except as otherwise provided by statute, the proponent of an order shall have the burden of proof, and every party to the proceeding shall have the right to present his case or defense by oral and documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. Subject to these rights and requirements, where a hearing will be expedited and the interests of the parties will not be substantially prejudiced thereby, a person conducting a hearing may receive all or part of the evidence in written form. The rules of evidence and requirements of proof shall conform, to the extent practicable, with those in civil nonjury cases in the district courts. However, when necessary to do so in order to ascertain facts affecting the substantial rights of the parties to the proceeding, the person so conducting the hearing may receive and consider evidence not admissible under such rules if such evidence possesses probative value commonly accepted by reasonable and prudent men in the conduct of their affairs. Objections to evidentiary offers may be made and shall be noted in the record. The person conducting a hearing shall give effect to the rules of privilege recognized by law. He may exclude incompetent and unduly repetitious evidence. Documentary evidence may be received in the form of a copy or excerpt if the original is not readily available; but, upon request, the party shall be given an opportunity to compare the copy with the original. An agency may utilize its experience, technical competence, and specialized knowledge in the evaluation of the evidence presented to it.    An agency may take notice of general, technical, or scientific facts within its knowledge, but only if the fact so noticed is specified in the record or is brought to the attention of the parties before final decision and every party is afforded an opportunity to controvert the fact so noticed.      Any party, or the agent, servant, or employee of any party, permitted or compelled to testify or to submit data or evidence shall be entitled to the benefit of legal counsel of his or her own choosing and at his or her own expense, but a person may appear on their own behalf. An attorney who is a witness may not act as counsel for the party calling the attorney as a witness. Any party, upon payment of a reasonable charge therefor, shall be entitled to procure a copy of the transcript of the record or any part thereof. Any person permitted or compelled to testify or to submit data or evidence shall be entitled to the benefit of legal counsel of such person's own choosing and, upon payment of a reasonable charge therefor, to procure a copy of the transcript of such person's testimony if it is recorded. (9) (a) Any party, or the agent, servant, or employee of any party, permitted or compelled to testify or to submit data or evidence shall be entitled to the benefit of legal counsel of his or her own choosing and at his or her own expense, but a person may appear on their own behalf. An attorney who is a witness may not act as counsel for the party calling the attorney as a witness. Any party, upon payment of a reasonable charge therefor, shall be entitled to procure a copy of the transcript of the record or any part thereof. Any person permitted or compelled to testify or to submit data or evidence shall be entitled to the benefit of legal counsel of such person's own choosing and, upon payment of a reasonable charge therefor, to procure a copy of the transcript of such person's testimony if it is recorded.      Except as provided in subparagraph (III) of this paragraph (b), no attorney shall submit a document concerning an adjudicatory proceeding after January 1, 1994, unless such document is submitted on recycled paper. The provisions of this section shall apply to all papers appended to each such document. (b) (I) Except as provided in subparagraph (III) of this paragraph (b), no attorney shall submit a document concerning an adjudicatory proceeding after January 1, 1994, unless such document is submitted on recycled paper. The provisions of this section shall apply to all papers appended to each such document.    (A) Any state agency that adopts policies, procedures, rules, or regulations for the purpose of implementing the provisions of this section shall ensure that the conduct of state business is not impeded and that no person is denied access to the services or programs of a state agency as a result of such implementation.    Nothing in this section shall be construed to apply to:   Photographs;    An original document that was prepared or printed prior to January 1, 1994;    A document that was not created at the direction or under the control of the submitting attorney;    Facsimile copies concerning an adjudicatory proceeding otherwise permitted to be filed in lieu of the original document; however, if the original is also required to be filed, such original shall be submitted in compliance with this section;    Existing stocks of nonrecycled paper and preprinted forms acquired or printed prior to January 1, 1994.       The provisions of this section shall not be applicable if recycled paper is not readily available.    For purposes of this paragraph (b), unless the context otherwise requires:   "Attorney" means an attorney-at-law admitted to practice law before any court of record in this state.    "Document" means any pleading or any other paper submitted as an appendix to such pleading by an attorney, which document is required or permitted to be filed with a state agency concerning any action to be commenced or which is pending before such agency.    "Recycled paper" means paper with not less than fifty percent of its total weight consisting of secondary and postconsumer waste and with not less than ten percent of such total weight consisting of postconsumer waste.             Every agency shall proceed with reasonable dispatch to conclude any matter presented to it with due regard for the convenience of the parties or their representatives, giving precedence to rehearing proceedings after remand by court order. Prompt notice shall be given of the refusal to accept for filing or the denial in whole or in part of any written application or other request made in connection with any agency proceeding or action, with a statement of the grounds therefor. Upon application made to any court of competent jurisdiction by a party to any agency proceeding or by a person adversely affected by agency action and a showing to the court that there has been undue delay in connection with such proceeding or action, the court may direct the agency to decide the matter promptly.    Every agency shall provide by rule for the entertaining, in its sound discretion, and prompt disposition of petitions for declaratory orders to terminate controversies or to remove uncertainties as to the applicability to the petitioners of any statutory provision or of any rule or order of the agency. The order disposing of the petition shall constitute agency action subject to judicial review.    Nothing in this article shall affect statutory powers of an agency to issue an emergency order where the agency finds and states of record the reasons for so finding that immediate issuance of the order is imperatively necessary for the preservation of public health, safety, or welfare and observance of the requirements of this section would be contrary to the public interest. Any person against whom an emergency order is issued, who would otherwise be entitled to a hearing pursuant to this section, shall be entitled upon request to an immediate hearing in accordance with this article, in which proceeding the agency shall be deemed the proponent of the order.    The administrative law judge or the hearing officer shall cause the proceedings to be recorded by a reporter or by an electronic recording device. When required, the administrative law judge or the hearing officer shall cause the proceedings, or any portion thereof, to be transcribed, the cost thereof to be paid by the agency when it orders the transcription or by any party seeking to reverse or modify an initial decision of the administrative law judge or the hearing officer. If the agency acquires a copy of the transcription of the proceedings, its copy of the transcription shall be made available to any party at reasonable times for inspection and study.      For the purpose of a decision by an agency that conducts a hearing or an initial decision by an administrative law judge or a hearing officer, the record must include: All pleadings, applications, evidence, exhibits, and other papers presented or considered, matters officially noticed, rulings upon exceptions, any findings of fact and conclusions of law proposed by any party, and any written brief filed. The agency, administrative law judge, or hearing officer may permit oral argument. The agency, the administrative law judge, or the hearing officer shall not receive or consider ex parte material or representation of any kind offered without notice. The agency, an administrative law judge, or hearing officer, with the consent of all parties, may eliminate or summarize any part of the record where this may be done without affecting the decision. In any case in which the agency has conducted the hearing, the agency shall prepare, file, and serve upon each party its decision. In any case in which an administrative law judge or a hearing officer has conducted the hearing, the administrative law judge or the hearing officer shall prepare and file an initial decision that the agency shall serve upon each party, except where all parties with the consent of the agency have expressly waived their right to have an initial decision rendered by such administrative law judge or hearing officer. Each decision and initial decision must include a statement of findings and conclusions upon all the material issues of fact, law, or discretion presented by the record and the appropriate order, sanction, relief, or denial. An appeal to the agency must be made as follows: (14) (a) For the purpose of a decision by an agency that conducts a hearing or an initial decision by an administrative law judge or a hearing officer, the record must include: All pleadings, applications, evidence, exhibits, and other papers presented or considered, matters officially noticed, rulings upon exceptions, any findings of fact and conclusions of law proposed by any party, and any written brief filed. The agency, administrative law judge, or hearing officer may permit oral argument. The agency, the administrative law judge, or the hearing officer shall not receive or consider ex parte material or representation of any kind offered without notice. The agency, an administrative law judge, or hearing officer, with the consent of all parties, may eliminate or summarize any part of the record where this may be done without affecting the decision. In any case in which the agency has conducted the hearing, the agency shall prepare, file, and serve upon each party its decision. In any case in which an administrative law judge or a hearing officer has conducted the hearing, the administrative law judge or the hearing officer shall prepare and file an initial decision that the agency shall serve upon each party, except where all parties with the consent of the agency have expressly waived their right to have an initial decision rendered by such administrative law judge or hearing officer. Each decision and initial decision must include a statement of findings and conclusions upon all the material issues of fact, law, or discretion presented by the record and the appropriate order, sanction, relief, or denial. An appeal to the agency must be made as follows:   With regard to initial decisions regarding agency action by the department of health care policy and financing, the state department of human services, or county department of human or social services, or any contractor acting for any such department, under section 26-1-106 (1)(a) or 25.5-1-107 (1)(a), by filing exceptions within fifteen days after service of the initial decision upon the parties, unless extended by the department of health care policy and financing, or the state department of human services, as applicable, or unless a review has been initiated in accordance with this subsection (14)(a)(I) upon motion of the applicable department within fifteen days after service of the initial decision. In the event a party fails to file an exception within fifteen days, the applicable department may allow, upon a showing of good cause by the party, for an extension of up to an additional fifteen days to reconsider the final agency action.    With regard to initial decisions regarding agency action of any other agency, by filing exceptions within thirty days after service of the initial decision upon the parties, unless extended by the agency or unless review has been initiated upon motion of the agency within thirty days after service of the initial decision.    In the absence of an exception filed pursuant to subparagraph (I) of paragraph (a) of this subsection (14), the executive director of the state department of human services shall review the initial decision regarding agency action by such department in accordance with a procedure adopted by the state board of human services pursuant to section 26-1-106 (1), C.R.S.    In the absence of an exception filed pursuant to subparagraph (II) of paragraph (a) of this subsection (14), the initial decision of any other agency shall become the decision of the agency, and, in such case, the evidence taken by the administrative law judge or the hearing officer need not be transcribed.            Any party who seeks to reverse or modify the initial decision of the administrative law judge or the hearing officer shall file with the agency, within twenty days following such decision, a designation of the relevant parts of the record described in subsection (14) of this section and of the parts of the transcript of the proceedings which shall be prepared and advance the cost therefor. A copy of this designation shall be served on all parties. Within ten days thereafter, any other party or the agency may also file a designation of additional parts of the transcript of the proceedings which is to be included and advance the cost therefor. The transcript or the parts thereof which may be designated by the parties or the agency shall be prepared by the reporter or, in the case of an electronic recording device, the agency and shall thereafter be filed with the agency. No transcription is required if the agency's review is limited to a pure question of law. The agency may permit oral argument. The grounds of the decision shall be within the scope of the issues presented on the record. The record shall include all matters constituting the record upon which the decision of the administrative law judge or the hearing officer was based, the rulings upon the proposed findings and conclusions, the initial decision of the administrative law judge or the hearing officer, and any other exceptions and briefs filed. (15) (a) Any party who seeks to reverse or modify the initial decision of the administrative law judge or the hearing officer shall file with the agency, within twenty days following such decision, a designation of the relevant parts of the record described in subsection (14) of this section and of the parts of the transcript of the proceedings which shall be prepared and advance the cost therefor. A copy of this designation shall be served on all parties. Within ten days thereafter, any other party or the agency may also file a designation of additional parts of the transcript of the proceedings which is to be included and advance the cost therefor. The transcript or the parts thereof which may be designated by the parties or the agency shall be prepared by the reporter or, in the case of an electronic recording device, the agency and shall thereafter be filed with the agency. No transcription is required if the agency's review is limited to a pure question of law. The agency may permit oral argument. The grounds of the decision shall be within the scope of the issues presented on the record. The record shall include all matters constituting the record upon which the decision of the administrative law judge or the hearing officer was based, the rulings upon the proposed findings and conclusions, the initial decision of the administrative law judge or the hearing officer, and any other exceptions and briefs filed.    The findings of evidentiary fact, as distinguished from ultimate conclusions of fact, made by the administrative law judge or the hearing officer shall not be set aside by the agency on review of the initial decision unless such findings of evidentiary fact are contrary to the weight of the evidence. The agency may remand the case to the administrative law judge or the hearing officer for such further proceedings as it may direct, or it may affirm, set aside, or modify the order or any sanction or relief entered therein, in conformity with the facts and the law.         Each decision and initial decision shall be served on each party by personal service or by mailing by first-class mail to the last address furnished the agency by such party and, except as provided in paragraph (b) of this subsection (16), shall be effective as to such party on the date mailed or such later date as is stated in the decision. (16) (a) Each decision and initial decision shall be served on each party by personal service or by mailing by first-class mail to the last address furnished the agency by such party and, except as provided in paragraph (b) of this subsection (16), shall be effective as to such party on the date mailed or such later date as is stated in the decision.    Upon application by a party, and prior to the expiration of the time allowed for commencing an action for judicial review, the agency may change the effective date of a decision or initial decision.       (b) (I) In the absence of an exception filed pursuant to subparagraph (I) of paragraph (a) of this subsection (14), the executive director of the department of health care policy and financing shall review the initial decision regarding agency action by such department in accordance with a procedure adopted by the medical services board pursuant to section 25.5-1-107 (1), C.R.S.    (c) Failure to file the exceptions prescribed in this subsection (14) shall result in a waiver of the right to judicial review of the final order of such agency, unless that portion of such order subject to exception is different from the content of the initial decision.   Source: L. 59: p. 162, § 4. CRS 53: § 3-16-4. L. 61: p. 138, § 1. C.R.S. 1963: § 3-16-4. L. 69: p. 85, § 5. L. 76: (13) and (14) amended and (15) R&RE, pp. 583, 584, §§ 16, 17, effective May 24. L. 77: (14) amended, pp. 1137, 1145, §§ 2, 2, effective June 19. L. 81: (4) amended, p. 1134, § 3, effective June 6. L. 87: (3), (4), (5), (13), (14), and (15) amended, p. 961, § 66, effective March 13. L. 93: (14) amended, p. 426, § 3, effective April 19; (2), (4), (5), (14), (15)(a), and (16) amended, p. 1327, § 4, effective June 6; (9) amended, p. 624, § 3, effective July 1; (9)(b)(V)(B) amended, p. 1798, § 107, effective July 1. L. 94: (14)(a)(I) and (14)(b) amended, p. 2692, § 228, effective July 1. L. 95: (14)(a)(I) and (14)(b) amended, p. 902, § 1, effective May 25. L. 2005: (3) amended, p. 857, § 21, effective June 1. L. 2018: (4) amended, (HB 18-1224), ch. 288, p. 1780, § 2, effective May 29; IP(14)(a) and (14)(a)(I) amended, (SB 18-092), ch. 38, p. 440, § 96, effective August 8. L. 2019: (4)(b)(IX) amended, (SB 19-241), ch. 390, p. 3469, § 26, effective August 2.   Editor's note: Amendments to subsection (14) by Senate Bill 93-133 and House Bill 93-1001 were harmonized.   Cross references: (1) For mileage allowances and fees of witnesses, see §§ 13-33-102 and 13-33-103.   (2) For the legislative declaration in SB 18-092, see section 1 of chapter 38, Session Laws of Colorado 2018.   ANNOTATION   Analysis    I. General Consideration.    II. Notice.    III. Administrative Law Judges.    IV. Evidence.    V. Agency and Judicial Review.     I. GENERAL CONSIDERATION.   Law reviews. For article, "Discovery and Judicial Review in State Administrative Practice", see 10Colo. Law. 2490 (1981). For article, "Administrative Law", which discusses a Tenth Circuit decision dealing with Miranda rights in administrative proceedings, see 61 Den. L. J. 131 (1984). For article, "General Principles of the Colorado Administrative Procedure Act", see 16Colo. Law. 1983 (1987). For article, "Hearsay Evidence and the Residuum Rule in Colorado", see 17Colo. Law. 651 (1988). For article, "Administrative Law", which discusses a Tenth Circuit decision dealing with fifth amendment rights and administrative proceedings, see 65 Den. U. L. Rev. 379 (1988). For article, "Challenges to Agency Rules in Adjudicatory-Type Hearings", see 17Colo. Law. 1991 (1988). For article, "Law and Strategy in Licensing Disciplinary Proceedings", see 18Colo. Law. 647 (1988). For article, "Practicing Law Before Part-Time Citizen Boards and Commissions", see 18Colo. Law. 1133 (1989). For article, "Alternative Dispute Resolution Meets the Administrative Process", see 24Colo. Law. 1549 (1995). For article, "Appealing an Administrative Order: The Exceptions Process", see 30Colo. Law. 91 (Sept. 2001).   Annotator's note. Cases included in the annotations to this section which refer to a hearing officer were decided prior to the enactment of 1987 House Bill No. 1049 which changed the title of hearing officers to administrative law judges.   Purpose of section. These statutory provisions are designed to assure that administrative adjudicatory proceedings are conducted in accordance with due process and will be expedited in the interest of the parties so that no party will be substantially prejudiced thereby. Weiss v. Dept. of Pub. Safety, 847 P.2d 197 (Colo. App. 1992).   Authority of state personnel board hearing officer with respect to hearing procedures is established by this section in accordance with Art. XII, §§ 13 and 14, of the state constitution. Weiss v. Dept. of Pub. Safety, 847 P.2d 197 (Colo. App. 1992).   Under the State Administrative Procedure Act (APA), an administrative agency has authority and, in certain situations, the duty to issue subpoenas. Nye v. State, Dept. of Rev., 902 P.2d 959 (Colo. App. 1995).   Whether to apply the fifth amendment adverse inference in a civil proceeding and what weight to give that adverse inference in an agency's determination is an ultimate conclusion of fact. Romero v. Colo. Dept. of Human Servs.,2018 COA 2, 417 P.3d 914.   In its final decision, the department is required to make a determination of whether to apply the adverse inference, and state what weight it held, if any, in its determination. Romero v. Colo. Dept. of Human Servs.,2018 COA 2, 417 P.3d 914.   <b> Section not applicable to the director of the department of revenue's discretionary decision. </b> Because <cite class="occo"><a href="gov.co.crs.title.39.html#t39-salesandusetax-ar26-s39-26-111" target="_blank">§ 39-26-111</a></cite> makes the authority of the director of the department of revenue to withdraw permission to make returns and pay taxes on the cash basis discretionary, that specific provision controls over the general provisions of <cite class="occo"><a href="gov.co.crs.title.24.html#t24-administration-ar04-s24-4-104" target="_self">§ 24-4-104</a></cite> and this section. Montgomery Ward &amp; Co. v. Dept. of Rev., 628 P.2d 85 (Colo. 1981).   Nor to water commissioners supplying customers outside city. Denver's action in supplying customers outside the city does not subject the board of water commissioners to the notice and hearing requirements of this section. Cottrell v. City & County of Denver, 636 P.2d 703 (Colo. 1981).   Nor to delays prior to hearing. This section deals with the progress of proceedings before an agency after commencement thereof, and not with delays prior to hearing. Berry v. Dept. of Rev., 656 P.2d 721 (Colo. App. 1982).   Nor do subsection (14) requirements apply to the initiative title setting review board when it holds a meeting for designating and fixing a title, ballot title and submission clause, and summary. Specific process and procedure is set out in the initiative and referendum statutes. Matter of Title, Ballot Title et al., 831 P.2d 1301 (Colo. 1992).   Subsection (14) requirements do not apply to the board of equalization in light of the specific hearing and appellate provisions set out in the property tax statutes. Carrara Place v. Bd. of Equaliz., 761 P.2d 197 (Colo. 1988).   The APA does not bar a dual role as a fact witness at one step of the proceedings and a member of a reviewing body at another step in the proceedings. Leonard v. Bd. of Dirs., 673 P.2d 1019 (Colo. App. 1983).   The APA contains no statutory provision indicating that the director of the motor vehicle division of the department of revenue is one who is "engaged in the performance of investigatory or prosecuting functions" of the department. Cordova v. Mansheim, 725 P.2d 1158 (Colo. App. 1986).   Subsection (6), which requires separation of prosecutorial and judging functions, is only applicable when the statutory scheme requires both a prosecutor and a hearing examiner. When the statutory scheme provides for a nonadversarial, show cause proceeding, which does not require the participation of a prosecutor, subsection (6) does not apply. Woodrow v. Wildlife Comm'n, 206 P.3d 835 (Colo. App. 2009).   Subsection (6) is not violated simply because a hearing officer is a member of the relevant agency. Woodrow v. Wildlife Comm'n, 206 P.3d 835 (Colo. App. 2009).   Disqualification of hospital board members. The withdrawal of hospital board members for reason of alleged bias would make it impossible to decide the question of a physician's medical staff privileges where the board is the only body empowered under the bylaws to make such a decision. Disqualification will not be permitted to destroy the only tribunal with power in the premises. Leonard v. Bd. of Dirs., 673 P.2d 1019 (Colo. App. 1983).   Suspension or revocation hearing is a disciplinary proceeding. An administrative hearing to revoke or suspend a professional license is a disciplinary, not a criminal, proceeding. Commerce City Drug v. Bd. of Pharmacy, 32 Colo. App. 216, 511 P.2d 935 (1973).   License revocation proceeding is civil in nature, not criminal. Thus, the right to counsel is not constitutional, but rather is governed by statute. Bedell v. Dept. of Rev., 655 P.2d 849 (Colo. App. 1982).   Although the public utilities commission (PUC) has broad power to issue declaratory orders and to initiate various types of proceedings, where a declaratory order is in essence a rule, the commission is bound by the procedural requirements pertaining to rule-making proceedings. Colo. Office of Consumer Counsel v. Mtn. States Tel. & Tel. Co., 816 P.2d 278 (Colo. 1991).   A hearing on a contested permit application under the Colorado Oil and Gas Conservation Act is an agency adjudicatory proceeding subject to this section. Grand Valley Citizens v. Colo. Oil & Gas, 298 P.3d 961 (Colo. App. 2010), rev'd on other grounds, 2012 CO 52, 279 P.3d 646.   Due process rights in a liquor licensing hearing are diluted by strong state interest in liquor control and safeguards provided by judicial review. Therefore, where plaintiff had notice of issue and knowledge of contents of documents, failure to give him documents did not violate his due process rights. Fueston v. City of Colo. Springs, 713 P.2d 1323 (Colo. App. 1985).   Secretary of state need not hold public hearing regarding revocation of liquor license, but may rely on investigation reports and the hearing record of the local licensing authority, which by law must conduct a hearing. Potter v. Anderson, 155Colo. 25, 392 P.2d 650 (1964).   A quasi-judicial hearing must be conducted strictly in accordance with requirements of section. Carroll v. Barnes, 169Colo. 277, 455 P.2d 644 (1969).   It is within the discretion of the administrative law judge (ALJ) to decide, prior to issuing a decision which constitutes the final agency action in a particular matter, when that decision will become effective. Bethesda Found. v. Dept. of Soc. Servs., 877 P.2d 860 (Colo. 1994).   Administrative remedies available must be exhausted prior to seeking judicial relief. Leete v. Bd. of Med. Exam'rs, 807 P.2d 1249 (Colo. App. 1991).   There is no requirement that proceedings to review a hearing officer's initial decision concerning disciplinary actions be recorded. Ranum v. Colo. Real Estate Comm'n, 713 P.2d 418 (Colo. App. 1985).   1993 amendment to subsection (4) explicitly authorizing ALJs to award attorney fees was procedural and had no substantive effect on existing authority to award such fees. Colo. Dept. of Soc. Servs. v. Bethesda Care Ctr., Inc., 867 P.2d 4 (Colo. App. 1993).   Colorado department of social services is a party for purposes of an administrative proceeding conducted pursuant to this section and as such may be held liable for attorney fees for asserting a frivolous defense. Colo. Dept. of Soc. Servs. v. Bethesda Care Ctr., Inc., 867 P.2d 4 (Colo. App. 1993).   Where an agency's interpretation of a regulation clearly contradicts that agency's consistent practice, the agency's practices and not its interpretation should prevail. Geriatrics, Inc. v. Dept. of Soc. Servs., 712 P.2d 1035 (Colo. App. 1985).   Applied in Walton v. Banking Bd., 36 Colo. App. 311, 541 P.2d 1254 (1975); Kuiper v. Atchison, T. & S. F., Ry., 195Colo. 557, 581 P.2d 293 (1978); Johns v. Miller, 42 Colo. App. 97, 594 P.2d 590 (1979); People v. District Court, 200Colo. 65, 612 P.2d 87 (1980); Macleod v. Miller, 44 Colo. App. 313, 612 P.2d 1158 (1980); Ricci v. Davis, 627 P.2d 1111 (Colo. 1981); Stone Envtl. Eng'r Servs., Inc. v. Dept. of Health, 631 P.2d 1185 (Colo. App. 1981); Cavanaugh v. State, Dept. of Soc. Servs., 644 P.2d 1 (Colo. 1982); Spelts v. Klausing, 649 P.2d 303 (Colo. 1982); Lee v. State Bd. of Dental Exam'rs, 654 P.2d 839 (Colo. 1982); World Wide Constr. Servs., Inc. v. Chapman, 665 P.2d 132 (Colo. App. 1982); First Nat'l Bank v. Banking Bd., 663 P.2d 261 (Colo. App. 1983); In re Maul v. Bd. of Dental Exam'rs, 668 P.2d 933 (Colo. 1983); Rosenberg v. Bd. of Educ. of Sch. District #1, 710 P.2d 1095 (Colo. 1985); Platinum Props. v. Assess. App. Bd., 738 P.2d 34 (Colo. App. 1987); Beardsley v. Colo. State Univ., 746 P.2d 1350 (Colo. App. 1987), cert. discharged, 761 P.2d 792 (Colo. 1988); Lopez-Samoyoa v. Bd. of Med. Exam'rs, 868 P.2d 1110 (Colo. App. 1993); Partridge v. State, 895 P.2d 1183 (Colo. App. 1995).   II. NOTICE.   Liquor code notice requirements applicable in county proceeding. Since the general assembly has not adopted legislation requiring that license suspension proceedings by a county be conducted pursuant to the APA, and since a county does not have statewide jurisdiction, the notice requirements for a proceeding for the suspension of a liquor license are governed by the Colorado liquor code. Chroma Corp. v. County of Adams, 36 Colo. App. 345, 543 P.2d 83 (1975).   Test as to whether party is afforded procedural due process is "fundamental fairness" in light of total circumstances. The due process clause does not guarantee any particular mode of procedure, but it does require adequate notice of opposing claims, reasonable opportunity to prepare and meet them in an orderly hearing adapted to the nature of the case, and, finally, a fair and impartial decision. Sigma Chi Fraternity v. Regents of Univ. of Colo., 258 F. Supp. 515 (D.Colo. 1966).   The essence of procedural due process is fundamental fairness. Mtn. States Tel. & Tel. Co. v. Dept. of Labor & Emp., 184Colo. 334, 520 P.2d 586 (1974).   "Timely" notice, plus opportunity to submit arguments, is constitutionally required. When the specific time for a hearing is not expressly provided elsewhere, notice of hearing must be "timely", so that the licensee shall have the opportunity to submit data, views, and arguments in order to afford due process. Bd. of Med. Exam'rs v. Palmer, 157Colo. 40, 400 P.2d 914 (1965).   Opportunity to be heard, not an actual hearing, is all that due process requires. Where the respondent receives timely notice and elects not to appear, there is no violation. Colo. State Bd. of Nursing v. Geary, 954 P.2d 614 (Colo. App. 1997).   Fundamental fairness embodies adequate advance notice and an opportunity to be heard prior to state action resulting in the deprivation of a significant property interest. Mtn. States Tel. & Tel. Co. v. Dept. of Labor & Emp., 184Colo. 334, 520 P.2d 586 (1974).   It likewise entitles a litigant to timely notice of decisions which have adjudicated his property interests, in relation to available appellate remedies. Mtn. States Tel. & Tel. Co. v. Dept. of Labor & Emp., 184Colo. 334, 520 P.2d 586 (1974).   Where the parties, whether an employee or an employer, are represented in an administrative proceeding under consideration by attorneys of record, notice of decisions affecting the substantial rights of the parties must be given to their attorneys. Mtn. States Tel. & Tel. Co. v. Dept. of Labor & Emp., 184Colo. 334, 520 P.2d 586 (1974).   The requirement of this section that notice of the hearing be made by first-class mail is not satisfied when such notice is sent by certified mail, since the notice will not be delivered by certified mail if the addressee is not present at the time of the attempted delivery. Dodge v. Meyer, 793 P.2d 639 (Colo. App. 1990).   Party requesting early hearing cannot complain that statutory time period not observed. Where a party has adequate notice of a hearing and its purpose, and where promptness of a hearing is in accordance with that party's request that it be held at "as early a date as possible", the party may not complain that the commission conducting the hearing did not wait the 20 days prescribed in this section. Harbour v. Racing Comm'n, 32 Colo. App. 1, 505 P.2d 22 (1973).   Notice of state pharmacy board's changes in hearing officer's decision not required. Changes made by the state board of pharmacy in a hearing officer's penalty for a pharmacist's violation of § 12-22-124 (now § 12-22-126) rendered without notice to the appellant or without any further hearings following a hearing officer's initial decision and order are quasi-judicial in nature and, thus, neither statutory nor due process principles require that the board issue any notice prior to announcing its final decision. Mitchell v. Klapper, 626 P.2d 1163 (Colo. App. 1980).   Applied in Gessler v. Grossman,2015 COA 62, __ P.3d __, aff'd on other grounds sub nom. Gessler v. Smith, 2018 CO 48, 419 P.3d 964, cert. denied, __ U.S. __, 139 S. Ct. 430, 202 L. Ed. 2d 318 (2018).   III. ADMINISTRATIVE LAW JUDGES.   There is no requirement that a hearing officer be learned in the law. Campbell v. Dept. of Rev., 176Colo. 202, 491 P.2d 1385 (1971).   Officer may be appointed through oral examination. The fact that a hearing officer is appointed on the basis of an oral examination does not invalidate his appointment, because the mode of examination is discretionary with the civil service commission. Campbell v. Dept. of Rev., 176Colo. 202, 491 P.2d 1385 (1971).   No requirement that officer take oath before entering duties. Since a hearing officer possesses no independent power of his own, his position is that of employee, not that of civil officer; thus, there is no requirement that a hearing officer take an oath of office before entering upon his duties. Campbell v. Dept. of Rev., 176Colo. 202, 491 P.2d 1385 (1971).   Colorado rules of civil procedure offer guidance in deciding issues regarding conduct of hearings under this section. Weiss v. Dept. of Pub. Safety, 847 P.2d 197 (Colo. App. 1992).   Agency decision making must demonstrate the use of (1) sufficient standards ensuring rational and consistent results in the application of the statute and implementing regulations and (2) adequate procedural safeguards, determinations, and a record enabling judicial review. Zamarripa v. Q & T Food Stores, Inc., 929 P.2d 1332 (Colo. 1997).   Failure to make timely objection to the appointment of a hearing officer is a waiver, and the objection cannot be raised at a later date. Geriatrics, Inc. v. Dept. of Health, 650 P.2d 1288 (Colo. App. 1982), aff'd in part and rev'd in part on other grounds, 699 P.2d 952 (Colo. 1985).   Affidavit of personal bias required for disqualification of presiding officers. Under subsection (3), a motion seeking to disqualify a hearing officer, a member of the agency, or the agency itself from presiding over an administrative hearing must be accompanied by a timely and sufficient affidavit of personal bias. Peoples Natural Gas Div. v. Pub. Utils. Comm'n, 626 P.2d 159 (Colo. 1981).   Drastic sanctions such as dismissal with prejudice or striking of pleadings should be reserved for only the most flagrant cases in which a party acts deliberately, with rebellious disregard for authority, or with gross negligence and in which such actions result in prejudice to the other party. Weiss v. Dept. of Pub. Safety, 847 P.2d 197 (Colo. App. 1992).   Substitution of hearing officer following hospitalization constitutional. Where the initial hearing officer is hospitalized at the time further proceedings are scheduled, the substitution of a second hearing officer to hear the remainder of the case satisfies both statutory requirements and due process. Harris v. Charnes, 616 P.2d 996 (Colo. App. 1980).   <b> Hearing where examiner takes active role and where party represented by attorney is constitutional. </b> A hearing conducted under <cite class="occo"><a href="gov.co.crs.title.42.html#t42-regulationofvehiclesandtraffic-ar04-p12-s42-4-1202" target="_blank">§ 42-4-1202</a></cite> does not violate the requirement of separation of the judicial and executive functions, although the hearing examiner conducts the hearing without a prosecutor and takes an active role in the questioning of the witnesses, where the motorist accused of driving while intoxicated is represented by an attorney. Stream v. Heckers, 184Colo. 149, 519 P.2d 336 (1974).   Hearing officer abused discretion by rescinding disciplinary action for noncompliance with deadline schedule, where noncompliance was apparently innocent and opposing party was not prejudiced. Weiss v. Dept. of Pub. Safety, 847 P.2d 197 (Colo. App. 1992).   The power conferred in the ALJ to modify a decision upon a motion for reconsideration encompasses the power to modify the decision's effective date. Bethesda Found. v. Dept. of Soc. Servs., 877 P.2d 861 (Colo. 1994).   Any error by ALJ in requiring accountant to testify at proceeding to revoke license of physician without counsel was harmless where the essence of accountant's testimony was that he had been able to communicate with physician despite his incarceration in another state, which duplicated administrative clerk's testimony. Colo. Bd. of Med. Exam'rs v. Boyle, 924 P.2d 1113 (Colo. App. 1996).   The decision to disqualify an ALJ for personal bias is within the discretion of the ALJ and will not be disturbed absent an abuse of that discretion. Rice v. Dept. of Corr., 950 P.2d 676 (Colo. App. 1997).   IV. EVIDENCE.   Burden is upon the proponent of order of suspension or revocation to prove sufficient grounds therefor, not upon the licensee. People ex rel. Heckers v. District Court, 170Colo. 533, 463 P.2d 310 (1970); Colo. Real Estate Comm'n v. Bartlett, 272 P.3d 1099 (Colo. App. 2011).   "Proponent of an order" bearing the burden of proof under subsection (7), in the context of an employee's appeal of an allocation decision before the director of personnel, is not the appointing authority which made the decision appealed from, but is instead the employee who seeks an order of the director voiding the decision. Renteria v. State Dept. of Pers., 811 P.2d 797 (Colo. 1991).   The burden of proof is on the certified state employee to prove that she was terminated involuntarily and, once the employee prevails upon that issue, then it will be the appointing authority's burden to prove that the termination imposed was justified by the factual circumstances. Harris v. State Bd. of Agric., 968 P.2d 148 (Colo. App. 1998).   Hearing officer properly placed burden of proof on department of institutions as proponent of order upholding dismissal in proceeding involving state employee's appeal of termination. Kinchen v. Dept. of Insts., 867 P.2d 8 (Colo. App. 1993).   When an agency seeks revocation of an existing license, the agency is the proponent of the order and bears the burden of proof. Q & T Food Stores, Inc. v. Zamarripa, 910 P.2d 44 (Colo. App. 1995), aff'd, 929 P.2d 1332 (Colo. 1997).   Administrative hearing not bound by strict rules of evidence. A driver's license revocation hearing is an administrative hearing and is not governed by the strict rules of evidence and procedure which obtain in a criminal action. Campbell v. Dept. of Rev., 176Colo. 202, 491 P.2d 1385 (1971).   The state board of accountancy is not bound by the technical rules on the admission of documentary evidence. Hentges v. Bartsch, 35 Colo. App. 384, 533 P.2d 66 (1975).   A hearing officer has some flexibility in his adherence to the civil rules of evidence in order to promote the fact finding process. Fish v. Charnes, 652 P.2d 598 (Colo. 1982).   The standard to be applied is whether the evidence possesses probative value commonly accepted by reasonable and prudent persons in the conduct of their affairs. Partridge v. State, 895 P.2d 1183 (Colo. App. 1995).   Hearsay testimony may be allowed and reversal is proper only if otherwise inadmissible hearsay is sole evidence relied upon by trier of fact. Mondragon v. Poudre Sch. Dist. R-1, 696 P.2d 831 (Colo. App. 1984).   Hearsay evidence alone may be used to establish an element at a revocation hearing if such evidence is sufficiently reliable and trustworthy, and the evidence possesses probative value commonly accepted by reasonable and prudent persons in the conduct of their affairs. Dept. of Rev. v. Kirke, 743 P.2d 16 (Colo. 1987); Div. of Rev. v. Lounsbury, 743 P.2d 23 (Colo. 1987); Charnes v. Lobato, 743 P.2d 27 (Colo. 1987); Heller v. Velasquez, 743 P.2d 34 (Colo. 1987); Charnes v. Oldna, 743 P.2d 36 (Colo. 1987); Schaffer v. State Dept. of Soc. Servs., 759 P.2d 837 (Colo. App. 1988).   The PUC is allowed to consider a broader range of information in making an adjudicatory decision than that allowed by subsection (14). Colo. Energy Advocacy v. Pub. Serv. Co., 704 P.2d 298 (Colo. 1985).   Factors which provide guidance in determining whether evidence is reliable, trustworthy, and probative for the purposes of an administrative hearing are: (1) Whether the statement was written and signed; (2) Whether the statement was sworn to by the declarant; (3) Whether the declarant was a disinterested witness or had a potential bias; (4) Whether the hearsay statement is denied or contradicted by other evidence; (5) Whether the declarant is credible; (6) Whether there is corroboration for the hearsay statement; (7) Whether the case turns on the credibility of witnesses; (8) Whether the party relying on the hearsay offers an adequate explanation for the failure to call the declarant to testify; and, (9) Whether the party against whom the hearsay is used had access to the statements prior to the hearing or the opportunity to subpoena the declarant. Indus. Claim Appeals Office v. Flower Stop, 782 P.2d 13 (Colo. 1989); Partridge v. State, 895 P.2d 1183 (Colo. App. 1995).   Due process requires that hearsay evidence admitted at an administrative hearing be of a kind commonly relied upon so as to be worthy of belief under similar circumstances and must possess probative value commonly accepted by reasonable and prudent persons in the conduct of their affairs. 117th Assoc. v. Jefferson County, 811 P.2d 461 (Colo. App. 1991).   Agencies are not always restricted to litigants' record. Although courts are generally limited to the consideration of the record made by litigants in the trial court, administrative agencies are not always so restricted. City & County of Denver v. Dore, 176Colo. 367, 490 P.2d 694 (1971).   Therefore, records of the division of motor vehicles are not inadmissible hearsay. Campbell v. Dept. of Rev., 176Colo. 202, 491 P.2d 1385 (1971); Zaba v. Motor Vehicle Div., 183Colo. 335, 516 P.2d 634 (1973).   Driver's history record is prima facie evidence of its contents. Hoehl v. Motor Vehicle Div., 624 P.2d 907 (Colo. App. 1980).   Admitting photocopy of blood test into evidence in driver's license revocation was proper. Ellis v. Charnes, 722 P.2d 436 (Colo. App. 1986).   Hearing officer's insistence that witness testify in person, rather than via telephone, was within officer's discretion where credibility was a significant issue. Shaball v. State Compensation Ins. Auth., 799 P.2d 399 (Colo. App. 1990).   ALJ did not abuse her discretion in determining that good cause existed to take telephone testimony because of the limited testimony to be given by the witnesses, the absence of reference in their testimony to exhibits or to demonstrative evidence, and the inconvenience and expense to procure their live testimony. State Bd. of Med. Exam'rs v. Thompson, 944 P.2d 547 (Colo. App. 1996).   Rebuttal of driving record's accuracy presents a question of fact. Where evidence is presented which rebuts the accuracy of any item in a person's driving record, there is a fact question to be resolved by the hearing officer. Hoehl v. Motor Vehicle Div., 624 P.2d 907 (Colo. App. 1980).   Identical copies of cancelled checks from separate disinterested sources is competent evidence. Where two sets of copies of cancelled checks are put into evidence from separate disinterested sources, and the two sets are identical, the evidence is competent under the standards set out in the APA. Hentges v. Bartsch, 35 Colo. App. 384, 533 P.2d 66 (1975).   Court cannot release grand jury documents for use in civil action. The trial court does not have the jurisdiction to order an ex parte release of documents which are being used by a grand jury in a criminal investigation, for use in a civil liquor code violations action. Granbery v. District Court, 187Colo. 316, 531 P.2d 390 (1975).   Exchanges between tribunal parties cannot be screened from review. Ex parte exchanges between an advocate and the adjudicatory tribunal may not be screened arbitrarily from appellate scrutiny. Peoples Natural Gas Div. v. Pub. Utils. Comm'n, 626 P.2d 159 (Colo. 1981).   Findings of evidentiary fact of hearing officer supported ultimate finding of board of medical examiners that physician's actions were a manipulation of a patient for his own personal interest and constituted misconduct. Puls v. People ex rel. Woodard, 722 P.2d 424 (Colo. App. 1986).   Limitation on rebuttal evidence authorized and not a violation of due process. Hearing officer's limitation on oral rebuttal testimony did not violate licensee's due process rights to rebut expert witnesses' statements where licensee was given opportunity to present rebuttal evidence through presubmitted written statements and where such procedure was authorized by statute. Bassett v. State Bd. of Dental Exam'rs, 727 P.2d 864 (Colo. App. 1986).   In determining eligibility for Medicaid home-based services under § 25.5-6-306 , an ALJ is not limited to evidence that the case manager heard on the day of assessment. The ALJ may properly consider any testimony introduced at the hearing concerning the individual's condition as of the date of the level of care assessment. Reiff v. Colo. Dept. of Health Care Policy & Fin., 148 P.3d 355 (Colo. App. 2006).   Applied in Jimerson v. Prendergast, 697 P.2d 804 (Colo. App. 1985).   V. AGENCY AND JUDICIAL REVIEW.   Colorado statutory scheme makes adequate provisions for prompt hearing and determination of emergency summary license suspensions to meet due process requirements. Any vagueness in the term "promptly" is adequately cured by licensee's statutory right to request and obtain an "immediate" hearing following an emergency suspension. Motor Vehicle Div. v. Castro, 914 P.2d 517 (Colo. App. 1996).   Party status required for judicial review. One must comply with the requirements for obtaining party status in adjudicatory hearings as a prerequisite to seeking judicial review under the APA. Colo. Water Quality Control Comm'n v. Town of Frederick, 641 P.2d 958 (Colo. 1982).   There is no requirement, under the applicable statutes and rules, that the limited gaming control commission hold an evidentiary hearing on petitions for declaratory orders. Purcell v. Colo. Div. of Gaming, 924 P.2d 1203 (Colo. App. 1996).   <b> Order disposing of a petition for a declaratory order under subsection (11) </b> is subject to judicial review only when the order constitutes final agency action within the meaning of <cite class="occo"><a href="gov.co.crs.title.24.html#t24-administration-ar04-s24-4-106" target="_self">§ 24-4-106</a></cite> (2) or the exception to final agency action in <cite class="occo"><a href="gov.co.crs.title.24.html#t24-administration-ar04-s24-4-106" target="_self">§ 24-4-106</a></cite> (8) applies. Chittenden v. Bd. of Soc. Work Exam'rs,2012 COA 150M, 292 P.3d 1138.   Exhaustion of administrative remedies was not required by this section with respect to plaintiff's claims that lottery division and lottery commission knew that the last grand prize for a particular scratch game had been claimed, continued to sell tickets for the scratch game, did not inform potential ticket purchasers that the grand prize was no longer available, and continued to represent the availability of the grand prize. The applicable lottery statute does not provide a right to a hearing under this section. Bazemore v. Colo. State Lottery Div., 64 P.3d 876 (Colo. App. 2002).   District court's order can only apply to parties. Unless an agency has adjudicated the rights of a person who is also a party, a district court reviewing the agency action has no authority, sua sponte, to enter its own findings and conclusions of law with regard to that person. N.J. Zinc Co. v. Mined Land Reclamation, 738 P.2d 51 (Colo. App. 1987).   <b> "Final" agency action required for judicial review. </b> The decision of an agency (other than a remand for further proceedings) described in subsection (15)(b) is the "final" agency action subject to judicial review under <cite class="occo"><a href="gov.co.crs.title.24.html#t24-administration-ar04-s24-4-106" target="_self">§ 24-4-106</a></cite> (2). State Pers. Bd. v. District Court, 637 P.2d 333 (Colo. 1981).   A decision and order of a hearing officer or ALJ is an initial decision only, and becomes final only if no exceptions or agency motions have been submitted within the 30-day appeal period. Western Colo. Congress v. Dept. of Health, 844 P.2d 1264 (Colo. App. 1992).   Determination by a division of the department of public health and environment regarding whether documents contained confidential information did not constitute an adjudicatory agency action of the kind addressed in this section. Therefore, the trial court was deciding the dispute between the parties in the first instance and properly resolved the dispute in accordance with the standards applicable to injunctive relief. CF&I Steel, L.P. v. Air Pollution Control Div., 77 P.3d 933 (Colo. App. 2003).   This section contemplates that review of the ALJ's initial order be initiated by the filing of exceptions or upon the motion of the agency within the requisite time. Because exceptions were not timely filed by the agency and because review was not initiated upon motion of the agency within 30 days of service of the ALJ's initial decision, that decision became the agency's final order as a matter of law. Winterhawk Outfitters, Inc. v. Office of Outfitters Registration, 43 P.3d 745 (Colo. App. 2002).   An agency cannot vest final authority in a hearing officer when the regulation relied upon to make the delegation of final decision-making authority is contrary to statute. W. Colo. Congress v. Dept. of Health, 844 P.2d 1264 (Colo. App. 1992).   The department of health improperly denied plaintiff its right to agency review of a hearing officer's order. It was accordingly held that the order never became the decision of the department. W. Colo. Congress v. Dept. of Health, 844 P.2d 1264 (Colo. App. 1992).   An appeal from a decision of the hearing officer must be made within 30 days of the date the initial decision is mailed to the parties, and not within 30 days of the receipt of such decision by the parties. Vendetti v. Univ. of So. Colo., 793 P.2d 657 (Colo. App. 1990).   Dissatisfied party to appeal to agency within 30 days. A party dissatisfied with the rulings of a hearing officer may appeal to the Colorado civil rights commission by filing exceptions within 30 days after service of the initial decision. North Washington St. Water & San. Dist. v. Emerson, 626 P.2d 1152 (Colo. App. 1980); State Bd. of Med. Exam'rs v. Thompson, 944 P.2d 547 (Colo. App. 1996).   Placing exceptions in the mail is not the same as filing. For the purposes of this section, filing requires actual, physical presentation of documents to the appropriate official. State Bd. of Registration v. Brinker, 948 P.2d 96 (Colo. App. 1997).   Failure to file exceptions as prescribed in subsection (14) results in a waiver of the right to appeal. State Bd. of Registration v. Brinker, 948 P.2d 96 (Colo. App. 1997).   Exceptions to disciplinary finding were timely filed within 30 days after service of agency decision. State Bd. of Nursing v. Crickenberger, 757 P.2d 1167 (Colo. App. 1988).   The language of subsection (14) is directory and is not intended to limit the jurisdiction of an agency to review an initial decision outside of the 30-day period so long as the agency's motion to review was timely made. Cornell v. State Bd. of Pharmacy, 813 P.2d 771 (Colo. App. 1990).   Failure of exceptions to mention a ruling on a motion for a continuance constituted a waiver of any contention of error in the ruling pursuant to subsection (14)(c). State Bd. of Med. Exam'rs v. Thompson, 944 P.2d 547 (Colo. App. 1996).   The term "exception" in subsection (14)(a)(II) is designed to serve the same purpose as common law exceptions acting as a statement of specific formal objections designed to place the agency on notice of the basis for the requested review of the initial decision. Requiring a specific statement furthers the purpose of agency review of initial decisions, providing the agency with an opportunity to correct errors before judicial review is sought in the same way common law exceptions provided the trial court with an opportunity to correct errors and thereby make appellate review unnecessary. Lanphier v. Dept. of Pub. Health & Env't, 179 P.3d 148 (Colo. App. 2007).   Notice of review need not be given. Subsection (15) does not require that notice of the time and place of the agency review be given. Dixon v. Bd. of Optometric Exam'rs, 39 Colo. App. 200, 565 P.2d 960 (1977).   Subsection (15)(a) requires that a party's challenge to the factual findings of the ALJ must be supported by transcripts made available for the agency's review. Colo. State Bd. of Med. Exam'rs v. Hoffner, 832 P.2d 1062 (Colo. App. 1992).   Party may not decline to request a transcript and then assert, as a matter of law, that the board decided his case without review of a transcript. Tepley v. Pub. Emp. Retirement Ass'n, 955 P.2d 573 (Colo. App. 1997).   When agency seeks to reverse evidentiary facts found by an ALJ, subsection (15)(a) requires a transcript of the hearing. A tape recording of a hearing does not constitute a transcript within the meaning of subsection (15)(a). Rigmaiden v. Colo. Dept. of Health Care Policy & Fin., 155 P.3d 498 (Colo. App. 2006).   Aggrieved party may order hearing transcript from agency at own expense. A party seeking to reverse a hearing officer's decision may, at his or her own expense, order a hearing transcript from the agency involved. Loesch v. Dept. of Rev., 194Colo. 169, 570 P.2d 530 (1977).   A court order for transcript is unnecessary. A party desiring a hearing transcript may order it directly from the agency, and a court order would not be necessary absent agency refusal. Loesch v. Dept. of Rev., 194Colo. 169, 570 P.2d 530 (1977).   No error resulted from lack of a transcript of the proceedings, because the ALJ's finding were not challenged, and the review was limited to conclusions of law and findings of fact based on undisputed evidentiary facts. Hall v. State Bd. of Med. Exam'rs, 876 P.2d 77 (Colo. App. 1994).   Discovery in post-hearing, preappeal administrative proceeding available where party shows impermissible tribunal considerations. In a post-hearing, preappeal administrative proceeding, discovery should be available as a matter of right only if the party alleging procedural irregularities first shows, by affidavit or other substantial factual evidence, that there is good cause to believe that ex parte communications, personal bias, or other impermissible considerations played a part in the tribunal's decision. Peoples Natural Gas Div. v. Pub. Utils. Comm'n, 626 P.2d 159 (Colo. 1981).   Subsection (15) expressly makes discretionary with the agency the presentation of oral argument. Dixon v. Bd. of Optometric Exam'rs, 39 Colo. App. 200, 565 P.2d 960 (1977).   There is no constitutional requirement that the agency personally hear the licensee or other witnesses. Dixon v. Bd. of Optometric Exam'rs, 39 Colo. App. 200, 565 P.2d 960 (1977).   Board may review decision and adopt findings different than those of hearing officer where attorney general filed exceptions to decision, complaint charges were not unproven or unfounded, board expressly concluded that findings were contrary to weight of evidence, and decision was neither arbitrary nor capricious. Bd. of Med. Exam'rs v. Robertson, 751 P.2d 648 (Colo. App. 1987); Davis v. Bd. of Psychologist Exam'rs, 791 P.2d 1198 (Colo. App. 1989).   Presumption of correct findings. Classification and valuation of property by a county assessor is presumed correct, and in an appeal to the state board of assessment appeals, the burden of proof is on the taxpayer to rebut that presumption by showing, by a preponderance of the evidence, that the classification and valuation is incorrect. The determination whether that burden of proof has been met is a question of fact for the board and may not be displaced by a reviewing court. Gyurman v. Weld County Bd. of Equaliz., 851 P.2d 307 (Colo. App. 1993).   Hearing officer's decision held not contrary to weight of evidence and binding upon agency. Brennan v. Dept. of Local Affairs, 786 P.2d 426 (Colo. App. 1989).   Unless contrary to the weight of the evidence, a hearing officer's determinations of evidentiary fact cannot be set aside by a reviewing court. Colo. State Bd. of Nursing v. Geary, 954 P.2d 614 (Colo. App. 1997).   An agency's determination of ultimate fact may be set aside on review if it is unsupported by any reasonable basis. If there is sufficient evidentiary support in the record for that decision, a reviewing court must defer to the decision of an agency as to matters within the agency's discretion. Nat'l Inst. of Nutritional Educ. v. Meyer, 855 P.2d 31 (Colo. App. 1993).   Board exceeded its jurisdiction in finding that nurse was "presently" addicted to or dependent on drug where substantial evidence in the record supported findings that nurse had not used habit forming drugs for a substantial period of time and was not an habitual user of controlled substances at the time of the hearing. Colo. State Bd. of Nursing v. Lang, 842 P.2d 1383 (Colo. App. 1992).   Although an ALJ's finding of evidentiary fact may not be altered by the board if supported by the evidence, the board is not precluded from drawing a different ultimate conclusion therefrom. Puls v. People ex rel. Woodard, 722 P.2d 424 (Colo. App. 1986); Colo. State Bd. of Med. Exam'rs v. Hoffner, 832 P.2d 1062 (Colo. App. 1992).   In determining eligibility for Medicaid home-based services under § 25.5-6-306 , an ALJ is not limited to evidence that the case manager heard on the day of assessment. The ALJ may properly consider any testimony introduced at the hearing concerning the individual's condition as of the date of the level of care assessment. Reiff v. Colo. Dept. of Health Care Policy & Fin., 148 P.3d 355 (Colo. App. 2006).   Findings of evidentiary fact involve the raw, historical data underlying the controversy. If there is conflicting testimony, the credibility of witnesses and the weight to be given their testimony is within the province of the hearing officer. Barrett v. Univ. of Colo., 851 P.2d 258 (Colo. App. 1993).   Findings of ultimate fact, such as whether particular conduct constitutes "willful misconduct", may be disturbed on appellate review only if it is unsupported by any competent evidence or is based on an incorrect legal conclusion applied to the underlying facts. Barrett v. Univ. of Colo., 851 P.2d 258 (Colo. App. 1993).   An agency's determination of ultimate facts may be set aside if it is not supported by substantial evidence in the record. Department's decision reversing ALJ determination had no reasonable basis in fact or law and district court erred in upholding that decision. Moczygemba v. Colo. Dept. of Health Care Policy & Fin., 51 P.3d 1083 (Colo. App. 2002).   The distinction between evidentiary facts and ultimate conclusions of fact is not always clear. State Bd. of Med. Exam'rs v. McCroskey, 880 P.2d 1188 (Colo. 1994).   Evidentiary facts are detailed factual or historical findings upon which a legal determination rests, such as when a physician made certain entries into a patient's medical records. State Bd. of Med. Exam'rs v. McCroskey, 880 P.2d 1188 (Colo. 1994).   Ultimate conclusions of fact involve a conclusion of law, or at least a mixed question of law and fact, and settle the rights and liabilities of the parties. Unlike evidentiary facts, ultimate conclusions of fact usually are phrased in the language of the controlling statute or legal standard. State Bd. of Med. Exam'rs v. McCroskey, 880 P.2d 1188 (Colo. 1994).   The standard for setting aside a hearing officer's findings of fact, stated in subsection (15), establishes the assumption that the hearing officer's findings are accurate. If the evidence would equally support alternative findings, the hearing officer's determination may not be set aside. The party challenging the hearing officer's findings has the burden of proving the weight of the evidence. Samaritan Inst. v. Prince-Walker, 883 P.2d 3 (Colo. 1994).   Reversal of a driver's license revocation is warranted where the agency failed to comply with written request to issue a subpoena and this failure caused prejudice to the driver's substantial right to engage in cross-examination of witnesses. Nye v. State, Dept. of Rev., 902 P.2d 959 (Colo. App. 1995).   Remedy for driver who has had his driver's license revoked or suspended may be available pursuant to subsection (10) where the Colorado department of revenue does not hold an administrative hearing prior to the expiration of 60 days as the department is under statutory obligation to hold an administrative hearing within 60 days under either § 42-2-125 or § 42-2-126. Kriz v. Colo. Dept. of Rev., 916 P.2d 659 (Colo. App. 1996).   The fact that questions of statutory interpretation have been raised by claims does not exempt the matter from administrative review. Even if pure questions of law are concerned, agency review of the challenged action is desirable in order to provide the court with the benefit of the agency's considered interpretation of its enabling statute. Kendal v. Cason, 791 P.2d 1227 (Colo. App. 1990).   Prevailing party not required to file an appeal to defend the results reached by the hearing officer on any grounds. An appeal need not be filed unless an enlargement of rights under the original decision is sought. Ehrle v. Dept. of Admin., 844 P.2d 1267 (Colo. App. 1992).   There is no provision in subsection (14) for an administrative cross-appeal. Ehrle v. Dept. of Admin., 844 P.2d 1267 (Colo. App. 1992).   Where notice to the respondent did not apprise him of the type of conduct being alleged, the charge must be dismissed. Herein, the dental examiners' charge against respondent dentist was based upon respondent's alleged failure to wear gloves during a procedure but the evidence supported a finding that one of the respondent's assistants had failed to wear gloves during a procedure. State Bd. of Dental Exam'rs v. Micheli, 928 P.2d 839 (Colo. App. 1996).   Subsection (15)(b) is a broad grant of authority that permits the agency to enter additional orders as required to bring its prior orders into conformity with the mandate from the appellate court. Rodgers v. Colo. Dept. of Human Servs., 39 P.3d 1232 (Colo. App. 2001).   <b> The district court did not err in considering complainant's claims under the judicial review principles of the APA and in remanding the case for further administrative proceedings. </b> When considered in conjunction with this section, the purpose of <cite class="occo"><a href="gov.co.crs.title.01.html#t01-general,primary,recall,andcongressionalvacancyelections-ar1.5-s1-1.5-105" target="_blank">§ 1-1.5-105</a></cite> (3)(b), the so-called "adjudication clause" of the state version of the federal Help America Vote Act (HAVA), is to spare the secretary and persons filing administrative complaints under the state HAVA from having to observe the numerous, and somewhat complex, procedural requirements contained in this section, and to curtail the administrative rights and obligations the parties would ordinarily have in adjudicatory proceedings. The court also rejected the secretary of state's assertion that, if a statute precludes the application of the administrative procedures under <cite class="occo"><a href="gov.co.crs.title.01.html#t01-general,primary,recall,andcongressionalvacancyelections-ar1.5-s1-1.5-105" target="_blank">§ 1-1.5-105</a></cite> it necessarily precludes judicial review under the APA. Accordingly, the district court had plenary authority under <cite class="occo"><a href="gov.co.crs.title.24.html#t24-administration-ar04-s24-4-106" target="_self">§ 24-4-106</a></cite> (7) to review and remand this case for further proceedings if it concluded that the agency acted contrary to law. Marks v. Gessler,2013 COA 115, 350 P.3d 883.   The exclusive administrative remedy clause under <cite class="occo"><a href="gov.co.crs.title.01.html#t01-general,primary,recall,andcongressionalvacancyelections-ar1.5-s1-1.5-105" target="_blank">§ 1-1.5-105</a></cite> (3)(c) does not limit an aggrieved party's judicial remedies. The clause does not refer to a complainant's available judicial remedies; it refers only to the procedures that constitute the administrative remedy for a violation of title III of the federal HAVA. The plain meaning of "administrative remedy" does not include a judicial remedy. This interpretation is further supported by the appeals clause in <cite class="occo"><a href="gov.co.crs.title.01.html#t01-general,primary,recall,andcongressionalvacancyelections-ar1.5-s1-1.5-105" target="_blank">§ 1-1.5-105</a></cite> (4), which allows a person aggrieved by a final determination of the secretary to appeal the decision to the district court, and thus, potentially obtain a judicial remedy. Marks v. Gessler,2013 COA 115, 350 P.3d 883.   <b> Although the APA rules and procedures do not apply to the secretary's resolution of a state HAVA administrative complaint at the agency level, the APA does apply to judicial review in the district court of the secretary's determination. </b> Section <cite class="occo"><a href="gov.co.crs.title.01.html#t01-general,primary,recall,andcongressionalvacancyelections-ar1.5-s1-1.5-105" target="_blank"> 1-1.5-105</a></cite> (3)(b) and (3)(c) exclude only the administrative procedure provisions set forth under this section. They do not limit the availability of judicial remedies. At the agency level, a person filing a state HAVA administrative complaint is only entitled to administrative procedures and rights included in the state HAVA statute itself and is not entitled to or burdened by the additional administrative procedures, rights, and obligations provided under the APA. Marks v. Gessler,2013 COA 115, 350 P.3d 883.