1 CCR 203-1-7-200 - Petitions for Statements of Position and Declaratory Orders
Basis and Purpose. The statutory authority for this rule includes, but is not limited to, subsections 44-7-104(5)(a) and 24-4-105(11), C.R.S. The purpose of this rule is to establish clear and comprehensive procedures and considerations required for a statement of position and/or a declaratory order.
A.
Statements of Position. Any person may petition the
Division for a statement of position concerning the applicability to the
petitioner of any provision of article
7 of title
44 or the rules promulgated pursuant
thereto, contained in
1 CCR
203-1. The petition must include the information set
forth in paragraph (E)(1)-(E)(6) of this regulation.
B.
Service of Petition for
Statement of Position. A letter for petition for a statement of
position shall be served on the Division by mailing or emailing such petition
to the Division with a copy sent on the same date to the local licensing
authority in the county or municipality where the petitioner's retail location
or proposed retail location is located, if applicable. Each petition for a
statement of position shall contain a certification that the service
requirements of this paragraph have been met.
C.
Time to Respond.
The Division shall respond to a petition for a statement of position in writing
setting forth its position and the reasons therefore within forty-five (45)
days of receiving such petition and set forth its position and the reasons
therefore, or the grounds on which the Division declines to provide a statement
of position pursuant to section
24-4-105(11),
C.R.S., and/or paragraph (G) of this regulation.
D.
Declaratory
Orders. Any person who has petitioned the Division for a statement
of position and who is dissatisfied with the statement of position may petition
the Executive Director within forty-five (45) days of the issuance of the
statement of position, or any amended statement of position, for a declaratory
order pursuant to section
24-4-105(11),
C.R.S. Any person who has not received a statement of position response within
forty-five (45) days, may petition the Executive Director for a declaratory
order pursuant to section
24-4-105(11),
C.R.S. The parties to any petition for a declaratory order pursuant to this
rule shall be the petitioner and the Division.
E.
Requirements for a Petition
for a Statement of Position or a Petition for Declaratory Order.
Each petition for a statement of position or petition for a declaratory order
shall set forth the following:
1. The name and
address of the petitioner; whether the petitioner is licensed pursuant to the
article 7 of title
44 and, if so, the type of license or
permit and address of the retail location.
2. The statute, rule, or order to which the
petition relates.
3. A concise
statement of all of the facts necessary to show the nature of the controversy
or the uncertainty as to the applicability to the petitioner of the statute,
rule or order to which the petition relates.
4. A concise statement of the legal
authorities if any, and such other reasons upon which petitioner
relies.
5. A concise statement of
the statement of position or declaratory order sought by the
petitioner.
6. The Statement of
Position previously issued if the petitioner is filing a Petition for a
Declaratory Order.
F.
Service of Petition for Declaratory Order. A petition
for a declaratory order shall be served on the Executive Director by mailing
such petition to the Executive Director with a copy of the petition sent on the
same date to the Division, the local authority in the county or municipality
where the petitioner's retail location or proposed retail location is located,
and to the Revenue & Utilities Section of the Colorado Department of Law.
Each petition for a declaratory order shall contain a certification that the
service requirements of this paragraph have been met.
G.
Acceptance. The
Division will determine whether to entertain any petition for a statement of
position. The Executive Director will determine whether to entertain any
petition for declaratory order. If either the Division or the Executive
Director decides it will not entertain a petition, it shall promptly notify the
petitioner in writing of its decision and the reasons for that decision. Any of
the following grounds may be sufficient reason to refuse to entertain a
petition:
1. For a petition for declaratory
order, the petitioner has failed to petition the Division for a statement of
position, or if a statement of position has been issued, the petition for
declaratory order was filed with the Executive Director more than forty-five
(45) days after issuance of the statement of position.
2. A ruling on the petition will not
terminate the controversy nor remove uncertainties concerning the applicability
to petitioner of the statute, rule, or order in question.
3. The petition involves a subject, question
or issue which is currently involved in a court action, an administrative
action before the state or any local licensing authority, an ongoing
investigation conducted by the Division, or a written complaint filed with the
Executive Director or Division.
4.
The petition seeks a ruling on a moot or hypothetical question, having no
applicability to the petitioner.
5.
Petitioner has some other adequate legal remedy, other than an action for
declaratory relief pursuant to Colo.R.Civ.P. 57, which will terminate the
controversy or remove any uncertainty concerning applicability of the statute,
rule, or order.
6. The petitioner
failed to properly serve the petition pursuant to this regulation.
7. The petitioner failed to include
information required in paragraph (E) of this regulation.
H.
Determination. If
the Executive Director determines that it will entertain the petition for
declaratory order, it shall promptly so notify all parties involved, and the
following procedures shall apply:
1. The
Executive Director may expedite the hearing, where the interests of the
petitioner will not be substantially prejudiced thereby, by ruling on the basis
of the facts and legal authority presented in the petition, or by requesting
the petitioner or the Division to submit additional evidence and legal argument
in writing. Any such request for additional information shall be served on all
parties.
2. If the Executive
Director determines that an evidentiary hearing or legal argument is necessary
to a ruling on the petition, the Executive Director shall issue a Notice to Set
to all parties and on the date so set, a hearing shall be conducted in
conformance with section
24-4-105, C.R.S.
3. In ruling on a petition for declaratory
order, the Executive Director may take administrative notice of general,
technical, or scientific facts within its knowledge, so long as the fact 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.
4. Every
declaratory order shall be promptly decided and issued in writing, specifying
the basis in fact and law for the order.
5. Any other interested person may seek leave
of the Executive Director to intervene in the proceeding and such leave may be
granted if the Executive Director determines that such intervention will make
unnecessary a separate petition for declaratory order by the interested
person.
6. A declaratory order
shall constitute final agency action subject to judicial review pursuant to
section 24-4-106, C.R.S.
I.
Record Retention
and Reliability. Files of all requests, statements of position,
and declaratory orders will be maintained and relied upon by the Division,
unless the statement of position or declaratory order is superseded by a
statutory or regulatory change, amended by the Division, or amended or reversed
by the Executive Director. Except with respect to any material required by law
to be kept confidential, such files shall be available for public
inspection.
Notes
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