Oregon Administrative Rules › Chapter 836 - DEPARTMENT OF CONSUMER AND BUSINESS SERVICES, INSURANCE REGULATION › Division 72 - LICENSING GENERALLY › Section 836-072-0035 - Appealing a Fitness Determination

Current through Register Vol. 63, No. 7, July 1, 2024
(1) This rule establishes a contested case
			 hearing process by which an applicant may appeal a completed final fitness
			 determination made under OAR 836-072-0015  that the applicant is fit or not fit
			 for a license described in 836-072-0001  on the basis of information obtained as
			 the result of a LEDS-based criminal history check or criminal records check
			 conducted by or at the request of the Department pursuant to ORS
			 181.534.
(2) An applicant may appeal a fitness
			 determination by submitting a written request for a contested case hearing to
			 the address specified in the notice provided under OAR 836-072-0030. To be
			 timely, a request for hearing must be received by the Department not later than
			 the 10th day after the date of the notice. The Department shall address a
			 request received after the 10th day as provided under 137-003-0528.
(3) When a timely request is received by the
			 Department under section (2) of this rule, a contested case hearing shall be
			 conducted by an administrative law judge assigned by the Office of
			 Administrative Hearings, pursuant to the Attorney General's Uniform and Model
			 Rules, "Procedural Rules, Office of Administrative Hearings," OAR 137-003-0501  to 137-003-0700, as supplemented by this rule.
(4) An applicant's timely hearing request
			 under section (2) of this rule constitutes a discovery request for any records
			 that the applicant may inspect under OAR 836-072-0040(2)(e). The Department or
			 the administrative law judge may protect information made confidential by ORS
			 181.534(15) or
			 other applicable laws as provided in OAR 137-003-0570(7) or (8).
(5) A contested case hearing on a fitness
			 determination under this rule is closed to non-participants.
(6) After a hearing, the administrative law
			 judge shall issue a proposed order. Exceptions, if any, are due not later than
			 the 14th day after service of the proposed order. The proposed order must
			 provide an address to which exceptions may be sent.
(7) A completed final fitness determination
			 made under OAR 836-072-0015  constitutes a final order without a hearing as
			 provided under 137-003-0672.
(8) An
			 applicant may not use the appeals process established by this rule to challenge
			 the accuracy or completeness of information provided by the Oregon Department
			 of State Police, the Federal Bureau of Investigation, or agencies reporting
			 information to the Oregon Department of State Police or the Federal Bureau of
			 Investigation. To challenge the accuracy or completeness of any such
			 information, an applicant may use any process made available by the agency that
			 provided the information.
(9) If an
			 applicant successfully challenges the accuracy or completeness of information
			 provided by the Oregon Department of State Police, the Federal Bureau of
			 Investigation, or an agency reporting information to the Oregon Department of
			 State Police or the Federal Bureau of Investigation, the applicant may request
			 that the Department conduct a new criminal records check and re-evaluate the
			 original fitness determination made under OAR 836-072-0015  by submitting a new
			 DCBS Criminal Records Request form.
(10) An appeal of a fitness determination
			 under this rule, a challenge of criminal offender information with the agency
			 that provided the information or a request for a new LEDS-based criminal
			 history check or criminal records check and re-evaluation of the original
			 fitness determination under section (9) of this rule does not delay or postpone
			 a licensing decision by the Department unless the authorized designee decides
			 that a delay or postponement should occur.
Stat. Auth.: ORS
				  181.534,
				  705.135,
				  731.244
Stats. Implemented: ORS
				  181.534,
				  705.141,
				  744.001,
				  744.059,
				  744.326