3 CCR 710-1.11 - DECLARATORY ORDERS
This Rule is promulgated pursuant to sections 12-20-204, 12-115-107(2)(a), and 24-4-105(11), C.R.S.
A. Any person may petition the
Board for a declaratory order to terminate controversies or to remove
uncertainties as to the applicability to the petitioner of any statutory
provision or of any rule or order of the Board.
B. The Board will determine, in its
discretion and without notice to the petitioner, whether to rule upon any such
petition. If the Board determines that it will not rule upon such a petition,
the Board shall promptly notify the petitioner of its action and state the
reasons for such action.
C. The
Board shall consider the following matters, among others in determining whether
to rule upon a petition filed pursuant to this Rule:
1. If a rule on the petition will terminate a
controversy or remove uncertainties as to the applicability to petitioner of
any statutory provision or rule or order of the Board.
2. If the petition involves any subject,
question or issue which is the subject of a formal or informal matter or
investigation currently pending before the Board or a court involving one or
more of the petitioners.
3. If the
petition involves any subject, question or issue that is the subject of a
formal or informal matter of investigation currently pending before the Board
or a court but not involving any petitioner.
4. If the petition seeks a ruling on a moot
or hypothetical question or will result in an advisory ruling or
opinion.
5. If the petitioner has
some other adequate legal remedy, other than an action for declaratory relief
pursuant to Rule 57, Colo. R. Civ.P., that will terminate the controversy or
remove any uncertainty as to the applicability to the petitioner of the
statute, rule or order in question.
D. A petition filed pursuant to this Rule
shall set forth the following:
1. The name
and address of the petitioner and whether the petitioner is licensed pursuant
to the organic act.
2. The statute,
rule or order to which the petition relates; and,
3. A concise statement of all of the facts
necessary to show the nature of the controversy or uncertainty and the manner
in which the statute, rule or order in question applies or potentially applies
to the petitioner.
E. If
the Board determines that it will rule on the petition, the following
procedures shall apply:
1. The Board may rule
upon the petition based solely upon the facts presented in the petition. In
such a case:
a. Any ruling of the Board will
apply only to the extent of the facts presented in the petition and any
amendment to the petition.
b. The
Board may order the petitioner to file a written brief, memorandum or statement
of position.
c. The Board may set
the petition, upon due notice to petitioner, for a non-evidentiary
hearing.
d. The Board may dispose
of the petition on the sole basis of the matters set forth in the
petition.
e. The Board may request
the petitioner to submit additional facts, in writing. In such event, such
additional facts will be considered as an amendment to the petition.
f. The Board may take administrative notice
of facts pursuant to the Administrative Procedure Act (section
24-4-105(8),
C.R.S.) and may utilize its experience, technical competence and specialized
knowledge in the disposition. If the Board rules upon the petition without a
hearing, it shall promptly notify the petitioner of its decision.
2. The Board may, in its
discretion, set the petition for hearing upon due notice to petitioner, for the
purpose of obtaining additional facts or information or to determine the truth
of any facts set forth in the petition or to hear oral argument on the
petition. The notice to the petitioner setting such hearing shall set forth, to
the extent known, the factual or other matters into which the Board intends to
inquire. For the purpose of such a hearing, to the extent necessary, the
petitioner shall have the burden of proving all of the facts stated in the
petition, all of the facts necessary to show the nature of the controversy or
uncertainty and the manner in which the statute, rule or order in question
applies or potentially applies to the petitioner and any other facts the
petitioner desires the Board to consider.
F. The parties to any proceeding pursuant to
this Rule shall be the Board and the petitioner. Any other person may seek
leave of the Board to intervene in such a proceeding, and leave to intervene
will be granted at the sole discretion of the Board. A petition to intervene
shall set forth the same matters as required by Board Rule 1.11 . Any reference
to a "petitioner" in this Rule also refers to any person who has been granted
leave to intervene by the Board.
G.
A declaratory order or other order disposing of a petition pursuant to this
Rule shall constitute agency action subject to judicial review pursuant to
section 24-4-106, C.R.S.
Notes
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