75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 193
Senate Bill 274
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Senate Interim Committee on
Judiciary)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Requires that in hearing conducted by administrative law judge
assigned from Office of Administrative Hearings, administrative
law judge must issue final order on behalf of agency. Provides
procedure for judicial review of final orders issued by
administrative law judge assigned from office. Allows agency to
appeal final order.
Provides that party may request change of administrative law
judge assigned from office upon showing of good cause.
Requires administrative law judge assigned from office to
disclose ex parte communications made by any agency. Eliminates
exemption for duty of disclosure for certain communications from
assistant attorney generals.
Requires that training for administrative law judge assigned
from office not be provided by agency when administrative law
judge is conducting hearing on behalf of agency and when training
relates to matters to be decided in proceeding.
A BILL FOR AN ACT
Relating to administrative law judges; creating new provisions;
and amending ORS 25.768, 183.310, 183.411, 183.480, 183.486,
183.625, 183.645, 183.650, 183.680, 183.685, 196.825, 196.835,
196.860, 293.316, 339.430, 358.495, 390.659, 390.663, 421.647,
421.653, 448.255, 466.185, 466.305, 468.110, 471.331, 506.462,
517.983, 527.700, 536.075, 543A.130, 657.683, 679.160, 701.149,
703.230, 737.209, 813.410, 813.450 and 813.460.
Be It Enacted by the People of the State of Oregon:
{ +
ISSUANCE OF FINAL ORDER + }
{ +
BY ADMINISTRATIVE LAW JUDGES + }
SECTION 1. ORS 183.650 is amended to read:
183.650. (1) In any { - contested case - } hearing conducted
by an administrative law judge assigned from the Office of
Administrative Hearings, the administrative law judge shall
prepare and serve on the agency and all parties to the hearing a
{ - form of - } { + proposed + } order, including
{ - recommended - } findings of fact and conclusions of law.
{ - The administrative law judge shall also prepare and serve a
proposed order in the manner provided by ORS 183.464 unless the
agency or hearing is exempt from the requirements of ORS
183.464. - } { + The administrative law judge shall thereafter
issue a final order on behalf of the agency, and mail copies of
the final order to the agency and all parties in the proceeding.
A final order issued under this section may be appealed in the
manner provided by section 7 of this 2009 Act. + }
{ - (2) If the administrative law judge assigned from the
office will not enter the final order in a contested case
proceeding, and the agency modifies the form of order issued by
the administrative law judge in any substantial manner, the
agency must identify the modifications and provide an explanation
to the parties to the hearing as to why the agency made the
modifications. - }
{ - (3) An agency conducting a contested case hearing may
modify a finding of historical fact made by the administrative
law judge assigned from the Office of Administrative Hearings
only if the agency determines that the finding of historical fact
made by the administrative law judge is not supported by a
preponderance of the evidence in the record. For the purposes of
this section, an administrative law judge makes a finding of
historical fact if the administrative law judge determines that
an event did or did not occur in the past or that a circumstance
or status did or did not exist either before the hearing or at
the time of the hearing. - }
{ - (4) If a party seeks judicial review of an agency's
modification of a finding of historical fact under subsection (3)
of this section, the court shall make an independent finding of
the fact in dispute by conducting a review de novo of the record
viewed as a whole. If the court decides that the agency erred in
modifying the finding of historical fact made by the
administrative law judge, the court shall remand the matter to
the agency for entry of an order consistent with the court's
judgment. - }
{ + (2) Notwithstanding any other provision of law, a
petition for reconsideration or rehearing may not be filed with
an agency in any proceeding conducted by administrative law
judges assigned from the Office of Administrative Hearings. + }
{ + (3) If the administrative law judge finds that the agency
has erroneously interpreted a provision of law and that a correct
interpretation compels a particular action, the judge shall:
(a) Set aside or modify the order; or
(b) Remand the case to the agency for further action under a
correct interpretation of the provision of law.
(4) The administrative law judge shall remand the order to the
agency if the judge finds the agency's exercise of discretion to
be:
(a) Outside the range of discretion delegated to the agency by
law;
(b) Inconsistent with an agency rule, an officially stated
agency position, or a prior agency practice, and the
inconsistency is not explained by the agency; or
(c) Otherwise in violation of a constitutional or statutory
provision.
(5) The administrative law judge shall set aside or remand the
order if the judge finds that the order is not supported by
substantial evidence in the record. For the purposes of this
subsection, substantial evidence exists to support a finding of
fact when the record, viewed as a whole, would permit a
reasonable person to make the finding. + }
SECTION 2. ORS 183.310 is amended to read:
183.310. As used in this chapter:
(1) 'Agency' means any state board, commission, department, or
division thereof, or officer authorized by law to make rules or
to issue orders, except those in the legislative and judicial
branches.
(2)(a) 'Contested case' means a proceeding before an agency:
(A) In which the individual legal rights, duties or privileges
of specific parties are required by statute or Constitution to be
determined only after an agency hearing at which such specific
parties are entitled to appear and be heard;
(B) Where the agency has discretion to suspend or revoke a
right or privilege of a person;
(C) For the suspension, revocation or refusal to renew or issue
a license where the licensee or applicant for a license demands
such hearing; or
(D) Where the agency by rule or order provides for hearings
substantially of the character required by ORS 183.415, 183.417,
183.425, 183.450, 183.460 and 183.470.
(b) 'Contested case' does not include proceedings in which an
agency decision rests solely on the result of a test.
(3) 'Economic effect' means the economic impact on affected
businesses by and the costs of compliance, if any, with a rule
for businesses, including but not limited to the costs of
equipment, supplies, labor and administration.
(4) 'Hearing officer' includes an administrative law judge.
(5) 'License' includes the whole or part of any agency permit,
certificate, approval, registration or similar form of permission
required by law to pursue any commercial activity, trade,
occupation or profession.
(6)(a) 'Order' means any agency action expressed orally or in
writing directed to a named person or named persons, other than
employees, officers or members of an agency. 'Order' includes any
{ - agency - } determination or decision issued in connection
with a contested case proceeding { + if the agency is not
required to use administrative law judges assigned from the
Office of Administrative Hearings + }. 'Order' includes:
(A) Agency action under ORS chapter 657 making determination
for purposes of unemployment compensation of employees of the
state;
(B) Agency action under ORS chapter 240 which grants, denies,
modifies, suspends or revokes any right or privilege of an
employee of the state; and
(C) Agency action under ORS 468B.050 to issue a permit.
(b) 'Final order' means final agency action expressed in
writing. 'Final order' does not include any tentative or
preliminary agency declaration or statement that:
(A) Precedes final agency action; or
(B) Does not preclude further agency consideration of the
subject matter of the statement or declaration.
(7) 'Party' means:
(a) Each person or agency entitled as of right to a hearing
before the agency;
(b) Each person or agency named by the agency to be a party; or
(c) Any person requesting to participate before the agency as a
party or in a limited party status { - which - } { + that + }
the agency determines either has an interest in the outcome of
the agency's proceeding or represents a public interest in such
result. { - The agency's determination is subject to judicial
review in the manner provided by ORS 183.482 after the agency has
issued its final order in the proceedings. - }
(8) 'Person' means any individual, partnership, corporation,
association, governmental subdivision or public or private
organization of any character other than an agency.
(9) 'Rule' means any agency directive, standard, regulation or
statement of general applicability that implements, interprets or
prescribes law or policy, or describes the procedure or practice
requirements of any agency. The term includes the amendment or
repeal of a prior rule, but does not include:
(a) Unless a hearing is required by statute, internal
management directives, regulations or statements which do not
substantially affect the interests of the public:
(A) Between agencies, or their officers or their employees; or
(B) Within an agency, between its officers or between
employees.
(b) Action by agencies directed to other agencies or other
units of government which do not substantially affect the
interests of the public.
(c) Declaratory rulings issued pursuant to ORS 183.410 or
305.105.
(d) Intra-agency memoranda.
(e) Executive orders of the Governor.
(f) Rules of conduct for persons committed to the physical and
legal custody of the Department of Corrections, the violation of
which will not result in:
(A) Placement in segregation or isolation status in excess of
seven days.
(B) Institutional transfer or other transfer to secure
confinement status for disciplinary reasons.
(C) Disciplinary procedures adopted pursuant to ORS 421.180.
(10) 'Small business' means a corporation, partnership, sole
proprietorship or other legal entity formed for the purpose of
making a profit, which is independently owned and operated from
all other businesses and which has 50 or fewer employees.
SECTION 3. ORS 183.411 is amended to read:
183.411. Unless otherwise provided by law, an agency { + that
is not required to use administrative law judges assigned from
the Office of Administrative Hearings + } may delegate authority
to enter a final order in a proceeding or class of proceedings to
an officer or employee of the agency, or to a class of officers
or employees of the agency. A delegation of authority under this
section must be made in writing before the issuance of any order
pursuant to the delegation and must be retained in the agency's
records.
SECTION 4. ORS 183.625 is amended to read:
183.625. (1) In assigning an administrative law judge to
conduct hearings on behalf of an agency, the chief administrative
law judge shall, whenever practicable, assign an administrative
law judge that has expertise in the legal issues or general
subject matter of the proceeding.
(2) Notwithstanding any other provision of state law, any
agency that is required to use administrative law judges assigned
from the Office of Administrative Hearings to conduct hearings
must delegate responsibility for the conduct of the hearing to an
administrative law judge assigned from the Office of
Administrative Hearings, and the hearing may not be conducted by
the administrator, director, board, commission or other person or
body charged with administering the agency.
{ - (3) Any agency may authorize an administrative law judge
assigned to conduct a hearing on behalf of the agency under this
section to enter a final order for the agency. - }
{ - (4) - } { + (3) + } An agency that is not required to
use administrative law judges assigned from the office may
contract with the chief administrative law judge for the
assignment of an administrative law judge from the office for the
purpose of conducting one or more contested cases on behalf of
the agency.
SECTION 5. ORS 813.450 is amended to read:
813.450. (1) The petition to the circuit court appealing an
order of the Department of Transportation after a hearing under
ORS 813.410 shall state the nature of the petitioner's interest
and the ground or grounds upon which the petitioner contends the
order should be reversed or remanded.
(2) The court shall conduct the review without a jury. Review
shall be limited to the record of the department's hearing.
(3) { + The department or + } any party to the proceedings
before the circuit court may appeal from the judgment of the
court to the Court of Appeals.
(4) Upon review in the circuit court and Court of Appeals, the
court may affirm, reverse or remand the order as follows:
(a) If the court finds that the { - department - } { +
administrative law judge + } has erroneously interpreted a
provision of law and that a correct interpretation compels a
particular action, { - it - } { + the court + } shall:
(A) Set aside or modify the order; or
(B) Remand the case to the { - department - } { +
administrative law judge + } for further action under a correct
interpretation of the provision of law.
(b) The court shall remand the order to the department if it
finds the department's exercise of discretion to be any of the
following:
(A) Outside the range of discretion delegated to the agency by
law.
(B) Inconsistent with a department rule, an officially stated
department position, or a prior department practice, if the
inconsistency is not explained by the department.
(C) Otherwise in violation of a constitutional or statutory
provision.
(c) The court shall set aside or remand the order if it finds
that the order is not supported by substantial evidence in the
record.
(5) Upon review, the court shall affirm the
{ - department's - } order unless the court finds a ground for
setting aside, modifying or remanding { - to the department - }
under a specified provision of this section.
{ - (6) In any review under this section, the court shall
also review de novo determinations made by an agency that are
subject to ORS 183.650 (4). - }
{ +
JUDICIAL REVIEW OF FINAL ORDERS + }
{ +
ISSUED BY ADMINISTRATIVE LAW JUDGES + }
SECTION 6. { + Section 7 of this 2009 Act is added to and made
a part of ORS 183.480 to 183.484. + }
SECTION 7. { + (1) Jurisdiction for judicial review of final
orders issued on behalf of agencies by administrative law judges
assigned from the Office of Administrative Hearings is conferred
upon the Court of Appeals. Proceedings for review shall be
instituted by filing a petition in the Court of Appeals. Unless
otherwise provided by law, the petition must be filed within 60
days after the date on which the agency delivered or mailed its
order in accordance with ORS 183.470.
(2) Agencies may seek judicial review of final orders issued by
administrative law judges assigned from the Office of
Administrative Hearings.
(3) A petition for review filed under this section must state
the nature of the final order to be reviewed and whether the
petitioner is:
(a) The agency;
(b) A party to the administrative proceeding;
(c) A person who was denied status as a party to the
administrative proceeding; or
(d) A person who is otherwise adversely affected or aggrieved
by the final order.
(4) If a petitioner claims standing under subsection (3)(d) of
this section, the petitioner must attach to the petition an
affidavit that states facts showing how the petitioner is
adversely affected or aggrieved by the final order. The Court of
Appeals shall decide whether or not the petitioner is entitled to
standing under subsection (3)(d) of this section before
considering the merits of the petition.
(5) If the petitioner is the agency, the agency must serve
copies of the petition by registered or certified mail on all
other parties of record in the proceeding. If the petitioner is
not the agency, the petitioner must serve copies of the petition
by registered or certified mail on the agency and all other
parties of record in the proceeding.
(6)(a) The filing of the petition for review under this section
does not stay enforcement of the final order, but the
administrative law judge may stay enforcement of the final order
upon a showing of:
(A) Irreparable injury to the petitioner; and
(B) A colorable claim of error in the final order.
(b) If a petitioner makes the showing required by paragraph (a)
of this subsection, the administrative law judge shall grant the
stay unless the judge determines that substantial public harm
will result if the final order is stayed. If the administrative
law judge denies the stay, the denial shall be in writing and
shall specifically state the substantial public harm that would
result from the granting of the stay.
(c) If an administrative law judge grants a stay, the judge may
impose such reasonable conditions as the giving of a bond,
irrevocable letter of credit or other undertaking and the filing
by the petitioner of all documents necessary to bring the matter
to issue before the Court of Appeals within a specified period of
time.
(d) Denial of a motion for stay under this subsection is
subject to review by the Court of Appeals under such rules as the
court may establish.
(7) Within 30 days after service of the petition under this
section, or within such further time as the court may allow, the
administrative law judge shall transmit to the reviewing court
the original or a certified copy of the entire record of the
proceeding under review, or of such limited record as may be
agreed to by all parties to the appeal. The court may require or
permit subsequent corrections or additions to the record. The
cost of the record shall not be taxed to the parties to the
appeal, except:
(a) Any party to the appeal unreasonably refusing to stipulate
to limit the record may be taxed for the additional cost of
preparing copies of the entire record; and
(b) The cost of the record may be taxed to a petitioner that
files a frivolous petition for review.
(8) If before the date set for hearing a party makes a motion
requesting permission to present additional evidence, and the
moving party shows to the satisfaction of the court that the
additional evidence is material and that there were good and
substantial reasons for failure to present it in the proceeding
before the administrative law judge, the court may order that the
additional evidence be taken before the administrative law judge
under such conditions as the court deems proper. The
administrative law judge may modify the findings and final order
by reason of the additional evidence and shall, within a time to
be fixed by the court, file the additional evidence with the
reviewing court.
(9) The court shall confine review of a final order under this
section to the record. If there is an allegation of an
irregularity in the procedure before the administrative law judge
that is not shown in the record, the court may refer the
allegations to a master appointed by the court to take evidence
and make findings of fact. The court shall remand the final order
for further consideration by the administrative law judge if the
court finds that the fairness of the proceedings may have been
impaired by either a material error in procedure or a failure to
follow prescribed procedure, including a failure by the
administrative law judge to comply with the requirements of ORS
183.417 (8).
(10) The court may affirm, reverse or remand a final order
under this section. + }
SECTION 8. ORS 25.768 is amended to read:
25.768. The order of the administrative law judge is final and
is subject to judicial review as provided in { - ORS
183.482 - } { + section 7 of this 2009 Act + }. Any suspension
under ORS 25.750 to 25.783 is not stayed pending judicial review.
SECTION 9. ORS 183.480 is amended to read:
183.480. (1) Except as provided in ORS 183.417 (3)(b), any
person adversely affected or aggrieved by an order or any party
to an agency proceeding is entitled to judicial review of a final
order, whether such order is affirmative or negative in form. A
petition for rehearing or reconsideration need not be filed as a
condition of judicial review unless specifically otherwise
provided by statute or agency rule.
(2) Judicial review of final orders of agencies shall be solely
as provided by { + section 7 of this 2009 Act and + } ORS
183.482, 183.484, 183.490 and 183.500. { + A final order issued
by an administrative law judge on behalf of an agency under ORS
183.650 may be appealed only in the manner provided by section 7
of this 2009 Act. + }
(3) No action or suit shall be maintained as to the validity of
any agency order except a final order as provided in this
section { + , section 7 of this 2009 Act + } and ORS 183.482,
183.484, 183.490 and 183.500 or except upon showing that the
agency is proceeding without probable cause, or that the party
will suffer substantial and irreparable harm if interlocutory
relief is not granted.
(4) Judicial review of orders issued pursuant to ORS 813.410
shall be as provided by ORS 813.410.
SECTION 10. ORS 183.486 is amended to read:
183.486. (1) The reviewing court's decision under { + section
7 of this 2009 Act or + } ORS 183.482 or 183.484 may be
mandatory, prohibitory, or declaratory in form, and it shall
provide whatever relief is appropriate irrespective of the
original form of the petition. The court may:
(a) Order agency action required by law, order agency exercise
of discretion when required by law, set aside agency action,
remand the case for further agency proceedings or decide the
rights, privileges, obligations, requirements or procedures at
issue between the parties; and
(b) Order such ancillary relief as the court finds necessary to
redress the effects of official action wrongfully taken or
withheld.
(2) If the court sets aside agency action or remands the case
to the agency for further proceedings, it may make such
interlocutory order as the court finds necessary to preserve the
interests of any party and the public pending further proceedings
or agency action.
(3) Unless the court finds a ground for setting aside,
modifying, remanding, or ordering agency action or ancillary
relief under a specified provision of this section, it shall
affirm the agency action.
SECTION 11. ORS 196.825 is amended to read:
196.825. (1) The Director of the Department of State Lands
shall issue a permit applied for under ORS 196.815 if the
director determines that the project described in the
application:
(a) Is consistent with the protection, conservation and best
use of the water resources of this state as specified in ORS
196.600 to 196.905; and
(b) Would not unreasonably interfere with the paramount policy
of this state to preserve the use of its waters for navigation,
fishing and public recreation.
(2) In determining whether to issue a permit, the director
shall consider all of the following:
(a) The public need for the proposed fill or removal and the
social, economic or other public benefits likely to result from
the proposed fill or removal. When the applicant for a permit is
a public body, the director may accept and rely upon the public
body's findings as to local public need and local public benefit.
(b) The economic cost to the public if the proposed fill or
removal is not accomplished.
(c) The availability of alternatives to the project for which
the fill or removal is proposed.
(d) The availability of alternative sites for the proposed fill
or removal.
(e) Whether the proposed fill or removal conforms to sound
policies of conservation and would not interfere with public
health and safety.
(f) Whether the proposed fill or removal is in conformance with
existing public uses of the waters and with uses designated for
adjacent land in an acknowledged comprehensive plan and land use
regulations.
(g) Whether the proposed fill or removal is compatible with the
acknowledged comprehensive plan and land use regulations for the
area where the proposed fill or removal is to take place or can
be conditioned on a future local approval to meet this criterion.
(h) Whether the proposed fill or removal is for streambank
protection.
(i) Whether the applicant has provided all practicable
mitigation to reduce the adverse effects of the proposed fill or
removal in the manner set forth in ORS 196.800. If off-site
compensatory wetland mitigation is proposed, the applicant shall
document the impracticability of on-site compensatory wetland
mitigation.
(3) The director may issue a permit for a project that results
in a substantial fill in an estuary for a nonwater dependent use
only if the project is for a public use and would satisfy a
public need that outweighs harm to navigation, fishery and
recreation and if the proposed fill meets all other criteria
contained in ORS 196.600 to 196.905.
(4) If the director issues a permit, the director may impose
such conditions as the director considers necessary to carry out
the purposes of ORS 196.805 and 196.830 and subsection (1) of
this section and to provide mitigation for the reasonably
expected adverse effects of project development. In formulating
such conditions the director may request comment from public
bodies, as defined in ORS 174.109, federal agencies and tribal
governments affected by the permit. Each permit is valid only for
the time specified therein. The director shall impose, as
conditions to any permit, general authorization or wetland
conservation plan, measures to provide mitigation for the
reasonably expected adverse effects of project development.
Compensatory wetland mitigation shall be limited to replacement
of the functional attributes of the lost wetland.
(5) The director may request comment from interested parties
and adjacent property owners on any application for a permit. The
director shall furnish to any person, upon written request and at
the expense of the person who requests the copy, a copy of any
application for a permit or authorization under this section or
ORS 196.850.
(6) Any applicant whose application for a permit or
authorization has been deemed incomplete or has been denied, or
who objects to any of the conditions imposed under this section
by the director, may, within 21 days of the denial of the permit
or authorization or the imposition of any condition, request a
hearing from the director. Thereupon the director shall set the
matter down for hearing, which shall be conducted as a contested
case in accordance with ORS 183.415 to 183.430, 183.440 to
183.460 and 183.470. { - After such hearing, the director shall
enter an order containing findings of fact and conclusions of
law. The order shall rescind, affirm or modify the director's
initial order. - } Appeals from the { - director's - } final
order may be taken to the Court of Appeals in the manner provided
by { - ORS 183.482 - } { + section 7 of this 2009 Act + }.
(7) Except for a permit issued under the process set forth in
ORS 517.952 to 517.989, the director shall:
(a) Determine whether an application is complete within 30 days
from the date the Department of State Lands receives the
application. If the director determines that an application is
complete, the director shall distribute the application for
comment pursuant to subsection (4) of this section. If the
director determines that the application is not complete, the
director shall notify the applicant in writing that the
application is deficient and explain, in the same notice, the
deficiencies.
(b) Issue a permit decision within 90 days after the date the
director determines that the application is complete unless:
(A) An extension of time is granted under subsection (9)(b) of
this section; or
(B) The applicant and the director agree to a longer time
period.
(8) Permits issued under this section shall be in lieu of any
permit or authorization that might be required for the same
operation under ORS 164.775, 164.785, 468.020, 468.035, 468.045,
468.055, 468.060, 468.110, 468.120, 468B.005 to 468B.030 and
468B.048 to 468B.085, so long as:
(a) The operation is that for which the permit or authorization
is issued; and
(b) The standards for granting the permit or authorization are
substantially the same as those established pursuant to ORS
164.775, 164.785, 468.020, 468.035, 468.045, 468.055, 468.110,
468.120, 468B.005 to 468B.030 and 468B.048 to 468B.085 to the
extent they affect water quality.
(9)(a) Any public body, as defined in ORS 174.109, federal
agency or tribal government requested by the director to comment
on an application for a permit must submit its comments to the
director not more than 30 days after receiving the request for
comment. If a public body, federal agency or tribal government
fails to comment on the application within 30 days, the director
shall assume that the public body, federal agency or tribal
government has no objection.
(b) The Department of Environmental Quality shall provide
comments to the director within 75 days after receiving notice
under subsection (4) of this section if the permit action
requires certification under the Federal Water Pollution Control
Act (P.L. 92-500), as amended.
(10) In determining whether to issue a permit, the director may
consider only standards and criteria in effect on the date the
director receives the completed application.
(11) As used in this section:
(a) 'Applicant' means a landowner or person authorized by a
landowner to conduct a removal or fill activity.
(b) 'Completed application' means a signed permit application
form that contains all necessary information for the director to
determine whether to issue a permit, including:
(A) A map showing the project site with sufficient accuracy to
easily locate the removal or fill site;
(B) A project plan showing the project site and proposed
alterations;
(C) The fee required under ORS 196.815;
(D) Any changes that may be made to the hydraulic
characteristics of waters of this state and a plan to minimize or
avoid any adverse effects of those changes;
(E) If the project may cause substantial adverse effects on
aquatic life or aquatic habitat within this state, documentation
of existing conditions and resources and identification of the
potential impact if the project is completed;
(F) An analysis of alternatives that evaluates practicable
methods to minimize and avoid impacts to waters of this state;
(G) If the project is to fill or remove material from wetlands,
a wetlands mitigation plan; and
(H) Any other information that the director deems pertinent and
necessary to make an informed decision on whether the application
complies with the policy and standards set forth in this section.
SECTION 12. ORS 196.835 is amended to read:
196.835. Any person aggrieved or adversely affected by the
grant of a permit by the Director of the Department of State
Lands may file a written request for hearing with the director
within 21 days after the date the permit was granted. If the
director finds that the person making the written request has a
legally protected interest which is adversely affected by the
grant of the permit, the director shall set the matter down for
hearing within 30 days after receipt of the request. The hearing
shall be conducted as a contested case in accordance with ORS
183.415 to 183.430, 183.440 to 183.460 and 183.470. The permittee
shall be a party to the proceeding. Within 45 days of the hearing
the { - director - } { + administrative law judge + } shall
enter { - an - } { + a final + } order
{ - containing findings of fact and conclusions of law. The
order shall rescind, affirm or modify the director's original
order - } . Appeals from the { - director's - } final order
may be taken to the Court of Appeals in the manner provided by
{ - ORS 183.482 - } { + section 7 of this 2009 Act + }. A
permit to fill granted by the director may be suspended by the
director during the pendency of the proceedings before the
director and any appeal. The director shall not suspend the
permit unless the person aggrieved or adversely affected by grant
of permit makes a showing before the director by clear and
convincing evidence that commencement or continuation of the fill
would cause irremediable damage and would be inconsistent with
ORS 196.600 to 196.905.
SECTION 13. ORS 196.860 is amended to read:
196.860. (1) If the Director of the Department of State Lands
determines that material is being removed from or filling is
occurring in any of the waters of this state without a permit
issued under ORS 196.825, or in a manner contrary to the
conditions set out in the permit, or in a manner contrary to the
conditions set out in an order approving a wetland conservation
plan, the director may:
(a) Investigate, hold hearings, make orders and take action, as
provided in ORS 196.600 to 196.905, as soon as possible.
(b) For the purpose of investigating conditions relating to the
removal or filling, through the employees or the duly authorized
representatives of the Department of State Lands, enter at
reasonable times upon any private or public property.
(c) Conduct public hearings in accordance with ORS chapter 183.
(d) Publish findings and recommendations as they are developed
relative to public policies and procedures necessary for the
correction of conditions or violations of ORS 196.600 to 196.905.
(e) Give notice of any proposed order relating to a violation
by personal service or by mailing the notice by registered or
certified mail to the person affected. Any person aggrieved by a
proposed order of the director may request a hearing within 20
days of the date of personal service or mailing of the notice.
Hearings shall be conducted under the provisions of ORS chapter
183 applicable to contested cases, and judicial review of final
orders shall be conducted in the Court of Appeals according to
{ - ORS 183.482 - } { + section 7 of this 2009 Act + }. If no
hearing is requested or if the party fails to appear, a final
order shall be issued upon a prima facie case on the record of
the agency.
(f) Take appropriate action for the enforcement of any rules or
final orders. Any violation of ORS 196.600 to 196.905 or of any
rule or final order of the director under ORS 196.600 to 196.905
may be enjoined in civil abatement proceedings brought in the
name of the State of Oregon. In any such proceedings the director
may seek and the court may award a sum of money sufficient to
compensate the public for any destruction or infringement of any
public right of navigation, fishery or recreation resulting from
the violation. Proceedings thus brought by the director shall set
forth if applicable the dates of notice and hearing and the
specific rule or order of the director, together with the facts
of noncompliance, the facts giving rise to the public nuisance,
and a statement of the damages to any public right of navigation,
fishery or recreation, if any, resulting from the violation.
(2)(a) In addition to the administrative action the director
may take under subsection (1) of this section, the director may
enter an order requiring any person to cease and desist from any
violation if the director determines that the violation presents
an imminent and substantial risk of injury, loss or damage to
water resources.
(b) An order under this subsection:
(A) May be entered without prior notice or hearing.
(B) Shall be served upon the person by personal service or by
registered or certified mail.
(C) Shall state that a hearing will be held on the order if a
written request for hearing is filed by the person subject to the
order within 10 days after receipt of the order.
(D) May not be stayed during the pendency of a hearing
conducted under paragraph (c) of this subsection.
(c) If a person subject to an order under this subsection files
a timely demand for hearing, the director shall hold a contested
case hearing according to the applicable provisions of ORS
chapter 183. If the person fails to request a hearing, the order
shall be entered as a final order upon prima facie case made on
the record of the agency.
(d) Neither the director nor any duly authorized representative
of the department shall be liable for any damages a person may
sustain as a result of a cease and desist order issued under this
subsection.
(e) The state and local police shall cooperate in the
enforcement of any order issued under this subsection and shall
require no further authority or warrant in executing or enforcing
the order. If any person fails to comply with an order issued
under this subsection, the circuit court of the county in which
the violation occurred or is threatened shall compel compliance
with the director's order in the same manner as with an order of
that court.
(3) As used in this section, 'violation' means removing
material from or placing fill in any of the waters of this state
without a permit or in a manner contrary to the conditions set
out in a permit issued under ORS 196.825.
SECTION 14. ORS 293.316 is amended to read:
293.316. Any person aggrieved by the disallowance of a claim
for payment of any moneys in the State Treasury, if the claim is
subject to disapproval by the Oregon Department of Administrative
Services under ORS 293.300, or by the state agency that incurred
the obligation or made the expenditure on which the claim is
based, if the claim is not subject to disapproval by the
department under ORS 293.300, may appeal the disallowance by the
department or agency under { - ORS 183.482 - } { + section 7
of this 2009 Act + }.
SECTION 15. ORS 339.430 is amended to read:
339.430. (1) Voluntary organizations that desire to administer
interscholastic activities shall apply to the State Board of
Education for approval.
(2) The board shall review the rules and bylaws of the
voluntary organization to determine that the rules and bylaws do
not conflict with state law or rules of the board.
(3) A voluntary organization must submit to the board for
review any rules, or changes in rules, that specify the criteria
for the placement of a school into an interscholastic activity
district. A voluntary organization may not establish or change an
interscholastic activity district until the board has approved
the rules of the voluntary organization.
(4) If a voluntary organization meets the standards established
under ORS 326.051 and its rules and bylaws do not conflict with
state law or rules of the board, the board shall approve the
organization. An approved voluntary organization is qualified to
administer interscholastic activities.
(5) The board may suspend or revoke its approval if an approved
organization is found to have violated state law, rules of the
board or subsection (3) of this section. If a voluntary
organization is not approved or its approval is suspended or
revoked, it may appeal the denial, suspension or revocation as a
contested case under ORS chapter 183.
(6) A voluntary organization's decisions concerning
interscholastic activities may be appealed to the board { - ,
which may hear the matter or by rule may delegate authority to a
hearing officer to hold a hearing and enter a final order under
ORS chapter 183. Such decisions - } { + for a contested case
hearing under ORS chapter 183. The final order + }may be
appealed under { - ORS 183.482 - } { + section 7 of this 2009
Act + }.
SECTION 16. ORS 358.495 is amended to read:
358.495. (1) Immediately following approval or disapproval of
an application under ORS 358.490, the State Historic Preservation
Officer shall notify the county assessor, the governing body and
the applicant which shall in no event be later than September 15
of the tax year for which classification and special assessment
are first desired. In no event later than September 15 of the
year for which classification and special assessment are desired,
the State Historic Preservation Officer shall cause a copy of the
preservation plan approved under ORS 358.490 to be delivered or
mailed to the county assessor and the governing body. An
application not denied on or before September 15 shall be deemed
approved, and the property that is the subject of the application
shall be considered to be historic property that qualifies under
ORS 358.480 to 358.545.
(2) If the State Historic Preservation Officer determines that
the historic property qualifies under ORS 358.480 to 358.545, the
State Historic Preservation Officer shall certify that fact in
writing and shall file a copy of the certificate with the county
assessor and the governing body. The certificate shall state the
facts upon which the approval was based and list any condition on
which approval is based. The county assessor, as to any historic
property, shall assess on the basis provided in ORS 358.505, and
each year the historic property is classified and so assessed
shall also enter on the assessment and tax roll that the property
is being specially assessed as historic property and is subject
to potential additional taxes as provided in ORS 358.525 by
adding the notation 'historic property (potential additional
tax). '
(3) If the State Historic Preservation Officer determines that
the property does not qualify for classification and assessment
under ORS 358.480 to 358.545, the State Historic Preservation
Officer shall give written notice of the denial to the applicant.
The notice shall state the reasons for the denial.
(4) { - (a) - } Any owner, governing body or county assessor
affected by a determination of the State Historic Preservation
Officer made under ORS 358.480 to 358.545 may request a contested
case hearing according to the provisions of ORS chapter 183.
{ - (b) After a contested case hearing has been held, the
administrative law judge shall present the proposed order to the
Historic Assessment Review Committee. The review committee shall
determine the final order in the case. - }
SECTION 17. ORS 390.659 is amended to read:
390.659. (1) Any applicant whose application for a permit under
ORS 390.650 has been denied or who objects to any condition
imposed on the permit or any person aggrieved or adversely
affected by the granting of a permit may, within 30 days after
the denial of the permit or the imposition of the condition,
request a hearing from the State Parks and Recreation Director.
(2) Upon receipt of a request for hearing from the applicant or
if the director finds that the person other than the applicant
making the request has a legally protected interest that is
adversely affected by the grant of the permit, the director shall
set the matter down for hearing within 30 days after receipt of
the request. The hearing shall be conducted as a contested case
in accordance with ORS 183.415 to 183.430, 183.440 to 183.460 and
183.470. The applicant shall be a party to any contested case
hearing requested by a person other than the applicant.
(3) Within 45 days after the hearing the { - director - }
{ + administrative law judge + } shall enter { - an - }
{ + a final + } order
{ - containing findings of fact and conclusions of law. The
order shall rescind, affirm or modify the director's original
order - } . Appeals from the { - director's - } final order
may be taken to the Court of Appeals in the manner provided by
{ - ORS 183.482 - } { + section 7 of this 2009 Act + }.
(4) A permit granted by the director may be suspended by the
director during the pendency of the proceedings before the
director and any appeal. The director shall not suspend the
permit unless the person aggrieved or adversely affected by grant
of permit makes a showing before the director by clear and
convincing evidence that commencement or continuation of the
improvement would cause irremediable damage and would be
inconsistent with ORS 390.610, 390.620 to 390.676, 390.690 and
390.705 to 390.770.
SECTION 18. ORS 390.663 is amended to read:
390.663. (1) If the State Parks and Recreation Director
determines that any improvement is being made on property within
the ocean shore without a permit issued under ORS 390.650, or in
a manner contrary to the conditions set out in the permit, the
director may:
(a) Investigate, hold hearings, make orders and take action, as
provided in ORS 390.620 to 390.676, as soon as possible.
(b) For the purpose of investigating conditions relating to
such improvements, through the employees or the duly authorized
representatives of the State Parks and Recreation Department,
enter at reasonable times upon any private or public property.
(c) Conduct public hearings in accordance with ORS chapter 183.
(d) Publish findings and recommendations as they are developed
relative to public policies and procedures necessary for the
correction of conditions or violations of ORS 390.620 to 390.676.
(e) Give notice of any proposed order relating to a violation
by personal service or by mailing the notice by registered or
certified mail to the person or governmental body affected. Any
person aggrieved by a proposed order of the director may request
a hearing within 20 days of the date of personal service or
mailing of the notice. Hearings shall be conducted under the
provisions of ORS chapter 183 applicable to contested cases, and
judicial review of final orders shall be conducted in the Court
of Appeals according to { - ORS 183.482 - } { + section 7 of
this 2009 Act + }. If no hearing is requested or if the party
fails to appear, a final order shall be issued upon a prima facie
case on the record of the department.
(f) Take appropriate action for the enforcement of any rules or
final orders. Any violation of ORS 390.620 to 390.676 or of any
rule or final order of the director under ORS 390.620 to 390.676
may be enjoined in civil abatement proceedings brought in the
name of the State of Oregon. In any such proceedings, the
director may seek and the court may award a sum of money
sufficient to compensate the public for any destruction or
infringement of any public right of navigation, fishery or
recreation resulting from such violation. Proceedings brought by
the director shall set forth, if applicable, the dates of notice
and hearing and the specific rule or order of the director,
together with the facts of noncompliance, the facts giving rise
to the public nuisance and a statement of the damages to any
public right of navigation, fishery or recreation, if any,
resulting from such violation.
(2) In addition to the administrative action the director may
take under subsection (1) of this section, the director may enter
an order requiring any person to cease and desist from any
violation if the director determines that such violation presents
an imminent and substantial risk of injury, loss or damage to the
ocean shore.
(3) An order under subsection (2) of this section:
(a) May be entered without prior notice or hearing.
(b) Shall be served upon the person by personal service or by
registered or certified mail.
(c) Shall state that a hearing will be held on the order if a
written request for hearing is filed by the person subject to the
order within 10 days after receipt of the order.
(d) Shall not be stayed during the pendency of a hearing
conducted under subsection (4) of this section.
(4) If a person subject to an order under subsection (2) of
this section files a timely demand for hearing, the director
shall hold a contested case hearing according to the applicable
provisions of ORS chapter 183. If the person fails to request a
hearing, the order shall be entered as a final order upon prima
facie case made on the record of the department.
(5) Neither the director nor any duly authorized representative
of the department shall be liable for any damages a person may
sustain as a result of a cease and desist order issued under
subsection (2) of this section.
(6) The state and local police shall cooperate in the
enforcement of any order issued under subsection (2) of this
section and shall require no further authority or warrant in
executing or enforcing such order. If any person fails to comply
with an order issued under subsection (2) of this section, the
circuit court of the county in which the violation occurred or is
threatened shall compel compliance with the director's order in
the same manner as with an order of that court.
(7) As used in this section, 'violation' means making an
improvement on property within the ocean shore without a permit
or in a manner contrary to the conditions set out in a permit
issued under ORS 390.650.
SECTION 19. ORS 421.647 is amended to read:
421.647. (1) Notwithstanding ORS 183.400, 183.482, 183.484 or
197.825 { + , section 7 of this 2009 Act + } or any other law,
review of any decision or action relating to the issuance or
denial of a permit, license or certificate under ORS 421.645 (1)
to (7) is as described in this section.
(2) A person or governmental entity adversely affected by a
decision or action may institute a proceeding for review by
filing a petition in Marion County Circuit Court that meets the
following requirements:
(a) The petition must be filed within 21 days of issuance of
the specific decision or action on which the petition is based.
(b) The petition must include the following:
(A) A statement of the nature of the decision or action the
petitioner desires to be reviewed.
(B) A statement of the constitutional, statutory or other legal
provision providing a basis for the challenge.
(C) A statement of whether the validity of the decision or
action depends on factual findings and whether it is necessary to
create a record in order to review the challenge.
(D) A statement and supporting affidavit showing how the
petitioner is adversely affected by the decision or action.
(c) The petitioner shall serve a copy of the petition by
registered or certified mail upon the Department of Corrections
and the Attorney General.
(3) The court may affirm, reverse or remand the decision or
action. The court shall reverse or remand the decision or action
if the court finds that the entity making the decision or taking
the action:
(a) Exceeded its statutory or constitutional authority; or
(b) Made a decision or took an action, the validity of which
depends on the existence of one or more facts, when the requisite
fact or facts do not exist.
(4) As to any decision or action, the validity of which depends
on the existence of a particular fact:
(a) The court shall first decide whether any claims of error
require fact-finding because the challenged decision or action
depends on the existence of one or more facts. If the court
determines that the claim of error requires fact-finding, the
court shall decide whether additional evidence is required in
order to determine whether the necessary fact exists. To be
considered by the court, the evidence, if required, need not have
been before the decision maker at the time of making the decision
or taking the action.
(b) In determining the existence of a necessary fact, the fact
shall be deemed to exist if the court finds, based on the record
presented to or made before it, that there is evidence, taken in
isolation, from which a reasonable person could conclude that the
fact exists.
(5) If the court determines that the claim of error may be
resolved without taking additional evidence, the court shall
certify the matter to the Supreme Court and the Supreme Court
shall accept the certification. The Supreme Court shall conduct
its review as provided in subsections (3) and (4) of this
section.
(6) Any party to the proceedings before the court may appeal
from the judgment of that court to the Supreme Court by filing a
petition meeting the criteria set forth in subsection (2) of this
section. The petition must be filed within 21 days after the
entry of the judgment. The Supreme Court shall conduct its review
as provided in subsections (3) and (4) of this section.
SECTION 20. ORS 421.653 is amended to read:
421.653. (1) Except as provided in ORS 421.647 and
notwithstanding ORS 183.400, 183.482, 183.484 or 197.825 { + ,
section 7 of this 2009 Act + } or any other law, exclusive
jurisdiction for review of the constitutionality of ORS 421.635
to 421.651 and any decision relating to the siting of a women's
correctional facility and intake center complex under ORS
421.637, 421.641, 421.643, 421.645 (8), 421.649 and 421.651
{ - and section 8 (2), chapter 982, Oregon Laws 1999, - } is
conferred upon the Supreme Court.
(2) A person or local government adversely affected by ORS
421.635 to 421.651 may institute a proceeding for review by
filing with the Supreme Court a petition that meets the following
requirements:
(a) The petition for review of the constitutionality of ORS
421.635 to 421.657 { - and section 8 (2), chapter 982, Oregon
Laws 1999, - } must be filed within 21 days after August 20,
1999. The petition must include the following:
(A) A statement of the constitutional provision providing a
basis for the challenge.
(B) A statement and supporting affidavit showing how the
petitioner is adversely affected.
(b) A petition for review of a decision made under ORS 421.637,
421.641, 421.643, 421.645 (8), 421.649 and 421.651 { - and
section 8 (2), chapter 982, Oregon Laws 1999, - } shall be filed
within 21 days of issuance of the specific decision on which the
petition is based.
(3) The petitioner shall serve a copy of the petition by
registered or certified mail upon the Department of Corrections
and the Attorney General.
(4) A petition filed under subsection (2)(b) of this section
shall state the nature of the decision the petitioner desires
reviewed and in what manner the decision below rejected the
position raised by the petitioner.
(5) Within 30 days after service of the petition under
subsection (2)(a) of this section, the department shall transmit
to the Supreme Court, or a special master it designates, the
original or a certified copy of the entire record and any
findings that may have been made. The court shall not substitute
its judgment for that of the Governor or the Director of the
Department of Corrections as to any issue of fact or issue within
executive branch discretion.
(6) If the petition is filed under subsection (2)(b) of this
section, the record shall include only:
(a) The director's final report prepared under ORS 421.641.
(b) The conditions, if any, on the proposed site.
(c) The transcript of the hearing before the department.
However, on motion of the director, the Supreme Court may limit
the transcript to those matters in which the petitioner is
interested as provided in subsection (2)(b) of this section.
(d) Evidence submitted by the petitioner to the director, but
on motion of any party to the judicial review, the Supreme Court
may supplement the record with additional materials from the
hearing before the director.
(7) Upon review, the Supreme Court may reverse or remand a
decision made under ORS 421.637, 421.641, 421.643, 421.645 (8),
421.649 and 421.651 { - and section 8 (2), chapter 982, Oregon
Laws 1999, - } if the Supreme Court finds the director,
Department of Corrections or the Governor:
(a) Exceeded the statutory or constitutional authority of the
decision maker; or
(b) Made a decision not supported by substantial evidence. For
purposes of this subsection, 'substantial evidence' means
evidence that, taken in isolation, a reasonable mind could accept
as adequate to support a conclusion. The substantiality of the
evidence shall not be evaluated by considering the whole record.
(8) Proceedings for review under this section shall be given
priority over all other matters before the Supreme Court.
SECTION 21. ORS 448.255 is amended to read:
448.255. (1) Whenever the Director of Human Services has
reasonable grounds to believe that a water system or part thereof
is being operated or maintained in violation of any rule adopted
pursuant to ORS 448.115 to 448.285, 454.235 and 454.255, the
director shall give written notice to the water supplier
responsible for the system.
(2) The notice required under subsection (1) of this section
shall include the following:
(a) Citation of the rule allegedly violated;
(b) The manner and extent of the alleged violation; and
(c) A statement of the party's right to request a hearing.
(3) The notice shall be served personally or by registered or
certified mail and shall be accompanied by an order of the
director requiring remedial action which, if taken within the
time specified in the order, will effect compliance with the rule
allegedly violated. The order shall become final unless request
for hearing is made by the party receiving the notice within 10
days from the date of personal service or the date of mailing of
the notice.
(4) The form of petition for hearing and the procedures
employed in the hearing shall be consistent with the requirements
of ORS chapter 183 and shall be in accordance with rules adopted
by the Department of Human Services.
(5) Hearings under this section shall be conducted by an
administrative law judge assigned from the Office of
Administrative Hearings established under ORS 183.605.
{ - (6) The order shall be affirmed or reversed by the
director after hearing. A copy of the director's decision setting
forth findings of fact and conclusions shall be sent by
registered or certified mail to the petitioner or served
personally upon the petitioner. An appeal from such decision may
be made as provided in ORS 183.480 relating to a contested
case. - }
SECTION 22. ORS 466.185 is amended to read:
466.185. (1) The Department of Environmental Quality shall
investigate any complaint made to it by any person that the
operation of any generator, air or water transporter or hazardous
waste disposal, storage or treatment site is unsafe or that the
operation is in violation of the provisions of ORS 466.005 to
466.385 and 466.992 or the rules adopted under ORS 466.005 to
466.385 and 466.992.
(2) If, after making an investigation under subsection (1) of
this section, the department is satisfied that sufficient grounds
exist to justify a hearing upon the complaint, it shall give 10
days' written notice of the time and place of the hearing and the
matters to be considered at the hearing. A copy of the complaint
shall be furnished by the department to the respondent. Both the
complainant and the respondent are entitled to be heard, produce
evidence and offer exhibits and to require the attendance of
witnesses at the hearing.
(3) An administrative law judge assigned from the Office of
Administrative Hearings established under ORS 183.605 shall hear
the matter. Within 30 days after the date of the hearing and
after considering all evidence and testimony submitted, the
{ - Environmental Quality Commission shall make a specific
order as it considers necessary. Any order issued by the
commission under this subsection shall be - } { +
administrative law judge shall issue a final order. The order
is + } subject to judicial review in the manner provided by ORS
183.480 for judicial review of orders in contested cases. The
costs of reporting and of transcribing the hearing for the
purpose of judicial review shall be paid by the party seeking
judicial review.
SECTION 23. ORS 466.305 is amended to read:
466.305. (1) The Department of Environmental Quality shall
investigate any complaint made to it by any person that the
operation of any PCB disposal facility is unsafe or that the
operation is in violation of a condition of the operator's permit
or any provisions of ORS 466.025 to 466.065, 466.250, 466.255 (2)
and (3) and 466.260 to 466.340 or the rules adopted under ORS
466.025 to 466.065, 466.250, 466.255 (2) and (3) and 466.260 to
466.350. Upon receiving a complaint, the department shall furnish
a copy of the complaint to the person holding the permit to
operate the PCB disposal facility.
(2) If, after making an investigation under subsection (1) of
this section, the department is satisfied that sufficient grounds
exist to justify a hearing upon the complaint, it shall give 10
days' written notice of the time and place of the hearing and the
matters to be considered at the hearing. Both the complainant and
the respondent are entitled to be heard, produce evidence and
offer exhibits and to require the attendance of witnesses at the
hearing.
(3) An administrative law judge assigned from the Office of
Administrative Hearings established under ORS 183.605 shall hear
the matter. Within 30 days after the date of the hearing and
after considering all evidence and testimony submitted, the
{ - Environmental Quality Commission shall make a specific
order as it considers necessary. Any order issued by the
commission under this subsection shall be - } { +
administrative law judge shall issue a final order. The order
is + } subject to judicial review in the manner provided by ORS
183.480 for judicial review of orders in contested cases. The
costs of reporting and of transcribing the hearing for the
purpose of judicial review shall be paid by the party seeking
judicial review.
SECTION 24. ORS 468.110 is amended to read:
468.110. Any person adversely affected or aggrieved by any
order of the Environmental Quality Commission may appeal from
such order in accordance with the provisions of ORS chapter 183.
However, notwithstanding { - ORS 183.482 (3) - } { + section
7 (6) of this 2009 Act + }, relating to a stay of enforcement of
an agency order and the giving of bond or other undertaking
related thereto, any reviewing court before it may stay an order
of the commission shall give due consideration to the public
interest in the continued enforcement of the commission's order,
and may take testimony thereon.
SECTION 25. ORS 471.331 is amended to read:
471.331. (1) Whenever the Oregon Liquor Control Commission
proposes to refuse to renew or to suspend or cancel any license
issued under this chapter because of adverse neighborhood impact
of the licensee's operation, notwithstanding ORS 183.435, the
commission shall grant the affected licensee 20 days from
notification of the proposed commission action to request a
hearing.
(2) Notwithstanding { - ORS 183.482 (3), the Oregon Liquor
Control Commission shall - } { + section 7 (6) of this 2009
Act, an administrative law judge may + } not stay any order
refusing a license or suspending or canceling any license if the
order was entered on grounds stated in ORS 471.313 (5) or 471.315
(1)(c).
SECTION 26. ORS 506.462 is amended to read:
506.462. (1) A person whose application for a developmental
fisheries permit or a restricted permit established under
subsection (6) of this section, or for the renewal or transfer of
a developmental fisheries permit or restricted permit, is denied
may make written request to the Commercial Fishery Permit Board
for review of the denial. The review provided in this subsection
is in lieu of any review by the State Department of Fish and
Wildlife or the State Fish and Wildlife Commission. The request
shall be in such form and shall contain such information as the
board considers appropriate. The request shall be accompanied by
a nonrefundable fee of $75. The fee shall apply toward any
applicable permit fees resulting from an order of the board in
favor of the requesting applicant.
(2) The board shall review a denial as a contested case under
ORS chapter 183. Orders issued by the board are not subject to
review by the commission, but may be appealed as provided in
{ - ORS 183.482 - } { + section 7 of this 2009 Act + }.
(3) The board may waive requirements for renewal of a
developmental fisheries permit or a restricted permit established
under subsection (6) of this section if the board finds that an
individual applicant fails to meet the requirements as the result
of illness, accident or other circumstances beyond the
individual's control.
(4) The board may delegate to the department the board's
authority to waive requirements for renewal of developmental
fisheries permits or restricted permits established under
subsection (6) of this section.
(5) The board may adopt such rules as it determines necessary
to carry out its duties, functions and powers under this section.
(6) Once the commission determines that a commercial harvest of
a developmental fishery can be sustained, it may remove that
fishery from the developmental fisheries list, and may, by rule,
establish a restricted participation system or a restricted
vessel permit system for that fishery. These restricted permit
systems may include, but are not limited to, provisions relating
to the following matters:
(a) Establishment of criteria for initial entry into the
restricted permit system and criteria for annual qualification
for continued participation in the system; and
(b) Establishment of terms and conditions for transferring
participation rights.
SECTION 27. ORS 517.983 is amended to read:
517.983. (1) The applicant or any person who appeared before a
permitting agency at the consolidated public hearing under ORS
517.981, either orally or in writing, regarding a permit granted
or denied by the permitting agency may file with the State
Geologist a written request for a consolidated contested case
hearing. The request shall be filed within 30 days after the date
the permit was granted or denied.
(2) Upon receipt of a request under subsection (1) of this
section, the State Department of Geology and Mineral Industries
shall schedule a consolidated contested case hearing which shall
be held not less than 60 days or more than 75 days after the
notice of permit issuance under ORS 517.982. The hearing shall be
conducted in accordance with the provisions applicable to
contested case proceedings under ORS chapter 183. Any permit
granted by a permitting agency shall be suspended until
completion of the administrative hearings process.
(3) Hearings under this section shall be conducted by an
administrative law judge assigned from the Office of
Administrative Hearings established under ORS 183.605.
(4) The administrative law judge shall prepare a proposed order
for each contested permit. A party may file written exceptions to
the proposed order with the permitting agency. If the permitting
agency determines that additional information may be included in
the record, the agency shall remand the order to the appropriate
administrative law judge for further consideration. After
receiving exceptions and hearing argument on the exceptions, the
governing body or person within the permitting agency responsible
for making a final decision on a permit may adopt the proposed
order or issue a new order.
(5) Jurisdiction for judicial review of a permitting agency's
issuance or denial of a permit is conferred upon the Supreme
Court. Proceedings for review shall be instituted by filing a
petition in the Supreme Court. The petition shall be filed within
60 days following the date the permit is issued or denied. If the
permit with prescribed conditions is approved, the filing of the
petition for review shall stay the permit during the pendency of
judicial review for a period of up to six months from the date
the petition for review is filed. The Supreme Court may extend
the stay beyond the six-month period upon written request and a
showing by the petitioner that the activities under the permit
could result in irreparable harm to the site. Except as otherwise
provided in this subsection, the review by the Supreme Court
shall be as provided in { - ORS 183.482 - } { + section 7 of
this 2009 Act + }. The Supreme Court shall give priority on its
docket to such a petition for review.
(6) When only the applicant files a petition for judicial
review, the six-month stay imposed under subsection (5) of this
section may be removed by the permitting agency upon written
request within 60 days after the filing of the petition and a
showing by the applicant to support a finding by the permitting
agency that proceeding with any or all activities under the
permit will not result in irreparable harm to the site. In making
such findings the permitting agency may require an additional
bond or alternative security to be filed with the State
Department of Geology and Mineral Industries as provided in ORS
517.987. The bond shall be in an amount the permitting agency
determines necessary to assure complete restoration of the site
if the petitioner elects not to complete the project following
judicial review. Agency denial of the request to remove the stay
is subject to review by the Supreme Court under such rules as the
Supreme Court may establish.
SECTION 28. ORS 527.700 is amended to read:
527.700. (1) Any operator, timber owner or landowner affected
by any finding or order of the State Forester issued under ORS
527.610 to 527.770 and 527.992 may request a hearing within 30
days after issuance of the order. The hearing shall be commenced
within 14 days after receipt of the request for hearing and a
final order shall be issued within 28 days of the request for the
hearing unless all parties agree to an extension of the time
limit.
(2) { - The State Board of Forestry may delegate to the
administrative law judge the authority to issue final orders on
matters under this section. - } Hearings provided under this
section shall be conducted as contested case hearings under ORS
183.413 to 183.470. The { + State + } Board { + of Forestry + }
may establish such rules as it deems appropriate to carry out the
provisions of this section. Appeals from final hearing orders
under this section shall be { + as + } provided in { - ORS
183.482 - } { + section 7 of this 2009 Act + }, except that the
comments of the board or the State Forester concerning a written
plan are not reviewable orders under ORS 183.480.
(3) Any person adversely affected or aggrieved by an operation
described in subsection (4) of this section may file a written
request to the board for a hearing if the person submitted
written comments pertaining to the operation within the time
limits established under ORS 527.670 (9).
(4) A request for hearing may be filed under subsection (3) of
this section only if a written plan was required pursuant to ORS
527.670 (3).
(5) A request for hearing filed under subsection (3) of this
section shall be filed within 14 calendar days of the date the
State Forester completed review of the written plan and issued
any comments. Copies of the complete request shall be served,
within the 14-day period, on the operator, timber owner and
landowner. The request shall include:
(a) A copy of the written plan on which the person is
requesting a hearing;
(b) A copy of the comments pertaining to the operation that
were filed by the person requesting the hearing;
(c) A statement that shows the person is adversely affected or
aggrieved by the operation and has an interest which is addressed
by the Oregon Forest Practices Act or rules adopted thereunder;
and
(d) A statement of facts that establishes that the operation is
of the type described in ORS 527.670 (3).
(6) If the board finds that the person making the request meets
the requirement of subsection (5)(c) of this section, the board
shall set the matter for hearing within 21 calendar days after
receipt of the request for hearing. The operator, timber owner
and landowner shall be allowable parties to the hearing. The
person requesting the hearing may raise, in the hearing, only
those issues that the person raised in written comments filed
under ORS 527.670 (9) relating to conformity with the rules of
the board. The board shall issue its own comments, which may
affirm, modify or rescind comments of the State Forester, if any,
on the written plan within 45 days after the request for hearing
was filed, unless all parties agree to an extension of the time
limit. The comments of the board or of the State Forester
concerning a written plan are not reviewable orders under ORS
183.480.
(7) The { - board - } { + administrative law judge + } may
award reasonable attorney fees and expenses to each of the
prevailing parties against any other party who the
{ - board - } { + administrative law judge + } finds presented
a position without probable cause to believe the position was
well-founded, or made a request primarily for a purpose other
than to secure appropriate action by the board.
(8)(a) Upon the written request of a person requesting a
hearing under subsection (3) of this section, a stay of the
operation subject to the hearing may be granted upon a showing
that:
(A) Commencement or continuation of the operation will
constitute a violation of the rules of the board;
(B) The person requesting the stay will suffer irreparable
injury if the stay is not granted; and
(C) The requirements of subsections (3), (4) and (5) of this
section are met.
(b) If the { - board - } { + administrative law judge + }
grants the stay, it shall require the person requesting the stay
to give an undertaking which may be in the amount of the damages
potentially resulting from the stay, but in any event shall not
be less than $15,000. The { - board - } { + administrative
law judge + } may impose other reasonable requirements pertaining
to the grant of the stay. The
{ - board - } { + administrative law judge + } shall limit
the effect of the stay to the specific geographic area or
elements of the operation for which the person requesting the
stay has demonstrated a violation of the rules and irreparable
injury under paragraph (a) of this subsection.
(c) If the { - board - } { + administrative law judge + }
determines in
{ - its - } { + the judge's + } comments that the written
plan pertaining to the operation for which the stay was granted
is likely to result in compliance with ORS 527.610 to 527.770 or
the rules of the board, the { - board - } { + administrative
law judge + } may award reasonable attorney fees and actual
damages in favor of each of the prevailing parties, to the extent
incurred by each, against the person requesting the stay.
(9) If the { - board - } { + administrative law judge + }
rescinds or modifies the comments on the written plan as
submitted by the State Forester pertaining to any operation, the
{ - board - } { + administrative law judge + } may award
reasonable attorney fees and costs against the state in favor of
each of the prevailing parties.
(10) As used in this section, 'person' means any individual,
partnership, corporation, association, governmental subdivision
or public or private organization of any character.
SECTION 29. ORS 536.075 is amended to read:
536.075. (1) Any party affected by a final order other than
contested case issued by the Water Resources Commission or Water
Resources Department may appeal the order to the Circuit Court of
Marion County or to the circuit court of the county in which all
or part of the property affected by the order is situated. The
review shall be conducted according to the provisions of ORS
183.484, 183.486, 183.497 and 183.500. A final order other than
contested case issued by the Water Resources Commission or the
Water Resources Department must state on the first page of the
order that the order is a final order other than contested case,
that the order is subject to judicial review under ORS 183.484
and that any petition for judicial review of the order must be
filed within the time specified by ORS 183.484 (2). Any order
other than contested case issued by the Water Resources
Commission or by the Water Resources Department that does not
comply with the requirements of this section is not a final
order.
(2) Any party affected by a final order in a contested case
issued by the Water Resources Commission or the Water Resources
Department may appeal the order to the Court of Appeals.
(3) An appeal under subsection (2) of this section shall be
conducted as provided in ORS { - 183.482 - } { + section 7 of
this 2009 Act + } except as specifically provided in subsections
(4), (5) and (6) of this section.
(4) The petition shall state the facts showing how the
petitioner is adversely affected by the order and the ground or
grounds upon which the petitioner contends the order should be
reversed or remanded.
(5) The filing of a petition in either the circuit court or the
Court of Appeals shall stay enforcement of the order of the
commission or the department unless the commission or the
department determines that substantial public harm will result if
the order is stayed. If the commission or the department denies
the stay, the denial shall be in writing and shall specifically
state the substantial public harm that will result from allowing
the stay.
(6) The review by the Court of Appeals under subsection (2) of
this section shall be on the entire record forwarded by the
{ - commission or department - } { + administrative law
judge + }. The court may remand the case for further evidence
taking, correction or other necessary action. The court may
affirm, reverse, modify or supplement the order appealed from,
and make such disposition of the case as the court determines to
be appropriate.
(7) The provisions of this section shall not apply to any
proceeding under ORS 537.670 to 537.695 or ORS chapter 539.
(8) For the purposes of this section, 'final order' and '
contested case' have the meanings given those terms in ORS
183.310.
SECTION 30. ORS 543A.130 is amended to read:
543A.130. (1) If a contested case hearing is conducted under
ORS 543A.120, the issues to be considered in the contested case
hearing shall be limited to issues identified by the
administrative law judge.
(2) Notwithstanding the provisions of ORS chapter 183
pertaining to contested case proceedings, the parties to any
contested case hearing initiated under this section shall be
limited to:
(a) The applicant;
(b) Any person who timely filed a protest; and
(c) Any person who timely filed a request for standing under
ORS 543A.120 and who requests to intervene in the contested case
hearing prior to the start of the proceeding.
(3) The contested case proceeding shall be conducted in
accordance with the applicable provisions of ORS chapter 183
except:
(a) As provided in subsections (1) and (2) of this section; and
(b) An interlocutory appeal under ORS 183.480 (3) shall not be
allowed.
(4) Each person submitting a protest or a request for standing
shall raise all reasonably ascertainable issues and submit all
reasonably available arguments supporting the person's position
by the close of the protest period. Failure to raise a reasonably
ascertainable issue in a protest or in a hearing or failure to
provide sufficient specificity to afford the Water Resources
Department an opportunity to respond to the issue precludes
judicial review based on that issue.
(5) If, after the contested case hearing or, if a hearing is
not held, after the close of the period allowed to file a
protest,
{ - the Water Resources Director determines - } { + it is
determined + } that the proposed reauthorization does not comply
with the standards set forth in ORS 543A.025 or rules adopted by
the Water Resources Commission under ORS 543A.025, { - the
director shall issue - } a final order { + shall be issued + }
rejecting the application or modifying the proposed final order
to conform to the public interest. If, after the contested case
hearing or, if a hearing is not held, after the close of the
period allowed to file a protest, { - the director
determines - } { + it is determined + } that the proposed
reauthorization complies with ORS 543A.025, { - the director
shall issue - } a final order { + shall be issued + } approving
the application for reauthorization or otherwise modifying the
proposed final order. A final order may set forth any of the
provisions or restrictions to be included in the certificate
concerning the use, control and management of the water to be
appropriated for the project, including but not limited to a
specification of reservoir operation and minimum releases to
protect the public interest.
(6) If a contested case hearing is not held:
(a) Where the final order modifies the proposed final order,
the applicant may request and the department shall schedule a
contested case hearing as provided under subsection (3) of this
section by submitting the information required for a protest
under ORS 543A.120 within 14 days after the director issues the
final order. However, the issues on which a contested case
hearing may be requested and conducted under this paragraph shall
be limited to issues based on the modifications to the proposed
final order.
(b) Only the applicant or a protestant may appeal the
provisions of the final order in the manner established in ORS
chapter 183 for appeal of orders other than contested cases.
{ - (7) Before issuing a final order, the director or the
commission, if applicable, shall make the final determination of
whether the proposed reauthorization or the proposed
reauthorization as modified in the proposed final order complies
with the standards set forth in ORS 543A.025. - }
{ - (8) - } { + (7) + } In a proceeding to reauthorize a
water right for a federally licensed project, the final order may
be different from the proposed final order based on:
(a) New information developed during the federal relicensing
process pertaining to environmental impacts or assessments that
reveals impacts not known at the time the proposed final order
was issued;
(b) Significant changes in the final application to the Federal
Energy Regulatory Commission;
(c) Conditions and restrictions in the Federal Energy
Regulatory Commission license that are inconsistent with the
water right as proposed in the proposed final order; or
(d) Protests received after the proposed final order is issued.
{ - (9) - } { + (8) + } Upon { - issuing - } { +
issuance of + } a final order, the director shall notify the
applicant and each person who submitted written comments or
protests or otherwise requested notice of the final order and
send a copy of the final order to any person who requested a copy
and paid the fee required under ORS 536.050 (1)(p).
SECTION 31. ORS 657.683 is amended to read:
657.683. (1) An application for hearing under ORS 657.480,
657.679, 657.681 or 657.682 shall be in writing and shall state
that a determination or assessment of the Director of the
Employment Department or authorized representative is unjust or
incorrect and that the employing unit requests a hearing. The
application shall set forth the objections of the employing unit
to the determination or assessment and the amount of
contributions, if any, that the applicant admits to be due to the
Employment Department. An application for a hearing to review an
assessment made under ORS 657.681 (4) that was accompanied by a
demand for a bond or deposit is not valid unless the bond or
deposit is filed with the application in a form acceptable to the
director or authorized representative.
(2) If a valid application for hearing is filed within the time
provided by ORS 657.480, 657.679, 657.681 or 657.682, an
administrative law judge shall review the determination or
assessment and if requested by the employing unit shall grant a
hearing unless a hearing has previously been afforded the
employing unit on the same grounds as set forth in the
application. The administrative law judge shall give notice of
the time and place of the hearing to the director or authorized
representative and shall also give notice to the employing unit
by mail directed to the last-known address of the employing unit
of record with the director.
(3) Hearings under ORS 657.480, 657.679, 657.681 or 657.682
shall be conducted in accordance with this chapter. The filing of
an application for hearing with respect to a disputed assessment
does not affect the right of the director or authorized
representative to perfect any liens provided by this chapter.
(4) All testimony at any hearing held under ORS 657.480,
657.679, 657.681 or 657.682 shall be recorded but need not be
transcribed unless a petition for judicial review from the
decision of the administrative law judge is filed in the manner
and within the time prescribed. At any hearing held as provided
in ORS 657.480, 657.679, 657.681 or 657.682, the determination or
assessment of the director or authorized representative shall be
prima facie correct and the burden shall be upon the protesting
employing unit to prove that it is incorrect. Thereafter the
administrative law judge shall enter the findings of fact and
decision, either affirming, modifying, or setting aside the
determination or assessment of the director or authorized
representative and in the case of an assessment, the
administrative law judge may increase or decrease the amount of
the assessment. The employing unit and the director shall be
promptly notified of the decision of the administrative law
judge.
(5) A decision of the administrative law judge becomes final on
the date of notification or the mailing of the decision to the
director and to the employing unit at the last-known address of
record with the director unless, within the time specified in
{ - ORS 183.480 (2), - } { + section 7 (1) of this 2009 Act,
and before the filing of an appeal under section 7 of this 2009
Act, + } the administrative law judge on the administrative law
judge's own motion reviews the decision and issues an amended
decision in which case the amended decision becomes the final
decision.
SECTION 32. ORS 679.160 is amended to read:
679.160. (1) Any licensee who has been disciplined by the
Oregon Board of Dentistry may obtain judicial review of the
decision in the manner prescribed by ORS chapter 183.
(2) Notwithstanding ORS 676.210, enforcement of the board's
disciplinary order pending appeal shall be determined pursuant to
{ - ORS 183.482 (3) - } { + section 7 (6) of this 2009
Act + }.
SECTION 33. ORS 701.149 is amended to read:
701.149. (1) An arbitration conducted under ORS 701.148 must be
held before an administrative law judge assigned under ORS
183.600 to 183.690 to act as arbitrator on behalf of the
Construction Contractors Board. The assignment of an
administrative law judge to act as arbitrator is subject to a
request for a different arbitrator under ORS 183.645 or a rule
adopted pursuant to ORS 183.645.
(2) If a party to a complaint under ORS 701.145 requests a
contested case hearing, the board shall schedule the hearing.
(3) The board may adopt rules governing the avoidance of a
contested case hearing. The rules may include, but need not be
limited to, a limit on the time period during which a party to a
complaint may avoid a contested case hearing by filing a court
action.
(4) Contested case hearings before the board must be conducted
by an administrative law judge assigned under ORS 183.600 to
183.690. { - Notwithstanding ORS 670.325, the board may
delegate authority to the administrative law judge to issue a
final order in any matter. - }
{ - (5) In assigning administrative law judges for
arbitration and contested case hearings conducted under this
section, the chief administrative law judge of the Office of
Administrative Hearings established under ORS 183.605 shall defer
to board requests. - }
{ - (6) - } { + (5) + } If a complainant to the board files
a court action, the board may require that the complainant
provide status reports on the pending court action. The board may
dismiss or close a complaint filed under ORS 701.139 if the
complainant fails to submit status reports on a pending court
action.
{ - (7) - } { + (6) + } ORS 183.600 to 183.690 do not limit
in any way the ability of the board to make full use of
alternative dispute resolution, including mediation or
arbitration, to resolve complaints against contractors filed
under ORS 701.139.
SECTION 34. ORS 703.230 is amended to read:
703.230. (1) The Department of Public Safety Standards and
Training shall conduct all proceedings under ORS 703.010 to
703.310 in accordance with ORS chapter 183. Judicial review of an
action of the department shall be { + as + } provided in
{ - ORS 183.480, 183.485, 183.490 and 183.500 - } { + section
7 of this 2009 Act + }.
(2) The Board on Public Safety Standards and Training, or the
department with the board's approval, shall adopt, in accordance
with ORS chapter 183, rules for the administration and
enforcement of ORS 703.010 to 703.310.
SECTION 35. ORS 737.209 is amended to read:
737.209. (1) The Director of the Department of Consumer and
Business Services may hold a hearing on a filing made pursuant to
ORS 737.207 if the director determines that such a hearing would
aid the director in determining whether to approve or disapprove
the filing. A hearing under this section may be held at a place
designated by the director and upon not less than 10 days'
written notice to the insurer or rating organization that made
the filing and to any other person the director decides should be
notified. A filing that is the subject of a hearing under this
section becomes effective, if approved, as provided in subsection
{ - (4) - } { + (3) + } of this section.
(2) A hearing held pursuant to subsection (1) of this section
must be conducted by an administrative law judge assigned from
the Office of Administrative Hearings established under ORS
183.605. { - The administrative law judge shall report
findings, conclusions and recommendations to the director within
30 days of the close of the hearing. - } The insurer or rating
organization proposing the rate filing shall have the burden of
proving that the rate proposal is justified and shall pay to the
director the fair and reasonable costs of the hearing, including
actual necessary expenses.
{ - (3) Within 10 days of receiving a report from the
administrative law judge, the director shall issue an order
approving or disapproving the filing. - }
{ - (4) - } { + (3) + } An order issued under
{ - subsection (3) of - } this section may be reviewed as
provided in ORS 183.480 to 183.540 for review of contested cases.
A filing approved { - by the director - } under this section
{ - shall be - } { + becomes + } effective 10 days after the
order { + is + } issued under { - subsection (3) of - } this
section and { - shall remain - } { + remains + } effective
during any review of the order.
SECTION 36. ORS 813.410 is amended to read:
813.410. (1) If the Department of Transportation receives from
a police officer a report that is in substantial compliance with
ORS 813.120, the department shall suspend the driving privileges
of the person in this state on the 30th day after the date of
arrest or, if the report indicates that the person failed a blood
test, on the 60th day after receipt of the report, unless, at a
hearing described under this section, the department determines
that the suspension would not be valid as described in this
section. A suspension of driving privileges imposed under this
subsection shall be for a period of time established under ORS
813.420.
(2) If the department receives from a police officer a report
pursuant to ORS 813.120 that discloses that the person holds a
commercial driver license and that the person was driving a motor
vehicle or commercial motor vehicle and refused to submit to a
test under ORS 813.100 or that the person was driving a
commercial motor vehicle and submitted to a breath or blood test
and the person's blood, as shown by the test, had 0.04 percent or
more by weight of alcohol, the department shall suspend the
person's commercial driver license on the 30th day after the date
of arrest or, if the report indicates that the person failed a
blood test, on the 60th day after receipt of the report, unless,
at a hearing described under this section, the department
determines that the suspension would not be valid as described in
this section. A commercial driver license suspension imposed
under this subsection shall be for a period of time established
under ORS 813.404.
(3) If within 10 days from the date of arrest, or, if the
person fails a blood test, within 10 days from the date the
department sends notice of suspension, the department receives a
written request for a hearing from a person whose driving
privileges or commercial driver license the department proposes
to suspend under this section, the department shall provide a
hearing in accordance with this section. Except as otherwise
provided under this section, a hearing held by the department
under this section shall be subject to the provisions for
contested cases, other than appeal provisions, under ORS chapter
183. The applicable appeal provisions are as provided under ORS
813.450 and section 24, chapter 672, Oregon Laws 1985.
Notwithstanding ORS 809.430, the department is not required to
give any notice of intent to suspend or suspension in addition to
that provided under ORS 813.100.
(4) A hearing required by this section is subject to all of the
following:
(a) The hearing shall be before an administrative law judge
assigned from the Office of Administrative Hearings established
under ORS 183.605.
(b) Unless there is an agreement between the person and the
department that the hearing be conducted elsewhere, the hearing
shall be held either in the county where the alleged offense
occurred or at any place within 100 miles of the place where the
offense is alleged to have occurred, as established by the
department by rule.
{ - (c) The department may authorize the administrative law
judge to issue a final order in any case. - }
{ - (d) - } { + (c) + } A person who requests a hearing
under this section and who fails, without just cause, to appear
in person or through an attorney waives the right to a hearing.
If a person waives a right to a hearing under this paragraph, the
department is not required to make any showing at hearing.
{ - (e) - } { + (d) + } Except as provided in ORS 813.440
or upon remand under ORS 813.450, the department shall hold the
hearing and { + the administrative law judge shall + } issue a
final order within 30 days of the date of the arrest or, if the
person fails a blood test, within 60 days from the date the
department received the report of the failure.
{ - (f) - } { + (e) + } In connection with the hearing, the
{ - department or its authorized representative - } { +
administrative law judge + } may administer oaths and shall issue
subpoenas for the attendance of witnesses at the hearing
requested by the person or the department and the production of
relevant documents.
{ - (g) - } { + (f) + } The hearing shall be recorded by
whatever means may be determined by the department and shall
include testimony and exhibits, if any. The record of the
proceedings shall not be transcribed unless requested by a party
to the proceeding.
(5) This subsection shall be narrowly construed so as to effect
the legislative purpose of limiting the scope of hearings under
this section. The scope of a hearing under this section shall be
limited to whether the suspension is valid as described in this
subsection. A suspension under this section is valid if all of
the following requirements have been met:
(a) The person, at the time the person was requested to submit
to a test under ORS 813.100, was under arrest for driving while
under the influence of intoxicants in violation of ORS 813.010 or
a municipal ordinance.
(b) The police had reasonable grounds to believe, at the time
the request was made, that the person arrested had been driving
under the influence of intoxicants in violation of ORS 813.010 or
of a municipal ordinance.
(c) The person refused a test under ORS 813.100, or took a
breath or blood test and the test disclosed that the level of
alcohol in the person's blood at the time of the test was:
(A) 0.08 percent or more by weight if the person was not
driving a commercial motor vehicle;
(B) 0.04 percent or more by weight if the person was driving a
commercial motor vehicle; or
(C) Any amount if the person was under 21 years of age.
(d) If the report under ORS 813.120 indicates that the person
was driving a commercial motor vehicle, the vehicle was in fact a
commercial motor vehicle as defined in ORS 801.208.
(e) The person had been informed under ORS 813.100 of rights
and consequences as described under ORS 813.130.
(f) The person was given written notice required under ORS
813.100.
(g) If the person arrested submitted to a test under ORS
813.100, the person administering the test was qualified to
administer the test under ORS 813.160.
(h) If the person arrested submitted to a test under ORS
813.100, the methods, procedures and equipment used in the test
complied with requirements under ORS 813.160.
(6) A suspension imposed under this section shall remain in
effect pending any appeal or remand of a final order issued under
this section and there shall be no stay of the suspension pending
appeal or remand.
(7) Unless a person fails, without just cause, to appear in
person or through an attorney at a hearing requested under this
section, { - a person shall have the right to - } { + the
person or the department may + } appeal { - any - } { +
the + } final order { - by the department - } { + of the
administrative law judge + } after a hearing under this section
by filing a petition. The following apply to this subsection:
(a) The { - person shall file the - } petition { + must be
filed + } in the circuit court for the county where the person
resides or, if the person does not reside in Oregon, in the
circuit court of the county in which the arrest took place within
30 days after issuance of the final order of the department.
(b) The court upon receipt of the petition shall set the matter
for hearing upon 10 days' notice to the department and the
{ - petitioner - } { + person + } unless hearing is waived by
both the department and the { - petitioner - } { +
person + }.
SECTION 37. ORS 813.460 is amended to read:
813.460. If the Department of Transportation verifies to its
satisfaction that it has suspended the driving privileges of the
wrong person under ORS 813.410 because a person arrested for
driving under the influence of intoxicants gave false
identification at the time of the arrest, all the following
apply:
(1) The department shall immediately rescind the suspension
order under the false name and shall issue a suspension order for
the period set forth in ORS 813.420 to the person arrested.
(2) The department shall issue the order in the manner set
forth in ORS 809.430.
(3) No further notice of suspension need be given.
(4) The time limitations in ORS 813.410 (1), (2), (3) and
{ - (4)(e) - } { + (4)(d) + } do not apply to a suspension
order issued under this section.
{ +
CHANGE OF ADMINISTRATIVE LAW JUDGE + }
SECTION 38. ORS 183.645 is amended to read:
183.645. { - (1) - } After assignment of an administrative
law judge from the Office of Administrative Hearings to conduct a
hearing on behalf of an agency, the chief administrative law
judge shall assign a different administrative law judge for the
hearing
{ - upon receiving - } { + if + } a written request
{ - from - } { + is made by + } any party in the contested
case { + , + } or { - from - } { + by + } the agency { + ,
and good cause is shown + }. The chief administrative law judge
may by rule establish time limitations and procedures for
requests under this section.
{ - (2) Only one request for a change of assignment of
administrative law judge under subsection (1) of this section may
be granted by the chief administrative law judge without a
showing of good cause. If a party or agency fails to make a
request under subsection (1) of this section within the time
allowed, or if a party or agency objects to an administrative law
judge assigned after a request for a different administrative law
judge has been granted under subsection (1) of this section, the
chief administrative law judge shall assign a different
administrative law judge only upon a showing of good cause. - }
{ - (3) Notwithstanding subsection (1) of this section, a
different administrative law judge may not be assigned for a
hearing provided under ORS 813.410 or 813.440 on suspension of
driving privileges, except upon a showing of good cause. - }
{ +
EX PARTE COMMUNICATIONS + }
SECTION 39. ORS 183.685 is amended to read:
183.685. (1) An administrative law judge assigned from the
Office of Administrative Hearings who is presiding in a contested
case proceeding and who receives an ex parte communication
described in subsections (3) and (4) of this section shall place
in the record of the pending matter:
(a) The name of each person from whom the administrative law
judge received an ex parte communication;
(b) A copy of any ex parte written communication received by
the administrative law judge;
(c) A copy of any written response to the communication made by
the administrative law judge;
(d) A memorandum reflecting the substance of any ex parte oral
communication made to the administrative law judge; and
(e) A memorandum reflecting the substance of any oral response
made by the administrative law judge to an ex parte oral
communication.
(2) Upon making a record of an ex parte communication under
subsection (1) of this section, an administrative law judge shall
advise the agency and all parties in the proceeding that an ex
parte communication has been made a part of the record. The
administrative law judge shall allow the agency and parties an
opportunity to respond to the ex parte communication.
(3) Except as otherwise provided in this section, the
provisions of this section apply to communications that:
(a) Relate to a legal or factual issue in a contested case
proceeding;
(b) Are made directly or indirectly to an administrative law
judge while the proceeding is pending; and
(c) Are made without notice and opportunity for the agency and
all parties to participate in the communication.
(4) The provisions of this section apply to any ex parte
communication made directly or indirectly to an administrative
law judge, or to any agent of an administrative law judge, by:
(a) A party;
(b) A party's representative or legal adviser;
(c) Any other person who has a direct or indirect interest in
the outcome of the proceeding;
(d) Any other person with personal knowledge of the facts
relevant to the proceeding; or
(e) Any officer, employee or agent of { - the - } { +
an + } agency { - that is using the administrative law judge to
conduct the hearing - } .
(5) The provisions of this section do not apply to:
(a) Communications made to an administrative law judge by other
administrative law judges; { + or + }
(b) Communications made to an administrative law judge by any
person employed by the office to assist the administrative law
judge { - ; or - }
{ - (c) Communications made to an administrative law judge by
an assistant attorney general if the communications are made in
response to a request from the administrative law judge and the
assistant attorney general is not advising the agency that is
conducting the hearing - } .
{ +
TRAINING OF ADMINISTRATIVE LAW JUDGES BY AGENCIES + }
SECTION 40. ORS 183.680 is amended to read:
183.680. (1) The chief administrative law judge for the Office
of Administrative Hearings, working in coordination with the
Attorney General, shall design and implement a standards and
training program for administrative law judges employed by the
office and for persons seeking to be employed as administrative
law judges by the office. The program shall include:
(a) The establishment of an ethical code for persons employed
as administrative law judges by the office.
(b) Training for administrative law judges employed by the
office that is designed to assist in identifying cases that are
appropriate for the use of alternative dispute resolution
processes.
(2) The program established by the chief administrative law
judge under this section may include:
(a) The conducting of courses on administrative law, evidence,
hearing procedures and other issues that arise in presiding over
administrative hearings, including courses designed to provide
any training required by the chief administrative law judge for
administrative law judges employed by the office.
(b) The certification of courses offered by other persons for
the purpose of any training required by the chief administrative
law judge for administrative law judges employed by the office.
(c) The provision of specialized training for administrative
law judges in subject matter areas affecting particular agencies
required to use administrative law judges assigned from the
office.
(3) The chief administrative law judge is bound by the ethical
code established under this section and must satisfactorily
complete training required of administrative law judges employed
by the office other than specialized training in subject matter
areas affecting particular agencies.
{ + (4) The chief administrative law judge shall ensure that
training for an administrative law judge is not provided by an
agency when the administrative law judge is conducting a hearing
on behalf of the agency and the training relates to matters to be
decided by the judge in the proceeding. + }
SECTION 41. { + Section 7 of this 2009 Act and the amendments
to ORS 25.768, 183.310, 183.411, 183.480, 183.486, 183.625,
183.645, 183.650, 183.685, 196.825, 196.835, 196.860, 293.316,
339.430, 358.495, 390.659, 390.663, 421.647, 421.653, 448.255,
466.185, 466.305, 468.110, 471.331, 506.462, 517.983, 527.700,
536.075, 543A.130, 657.683, 679.160, 701.149, 703.230, 737.209,
813.410, 813.450 and 813.460 by sections 1 to 5 and 8 to 39 of
this 2009 Act apply only to hearings for which an administrative
law judge is assigned from the Office of Administrative Hearings
to an agency on or after the effective date of this 2009 Act. + }
SECTION 42. { + The unit captions used in this 2009 Act are
provided only for the convenience of the reader and do not become
part of the statutory law of this state or express any
legislative intent in the enactment of this 2009 Act. + }
----------