DAR File No. 26834

Commerce, Occupational and Professional Licensing

R156-38

Residence Lien Restriction and Lien Recovery Fund Rules

NOTICE OF PROPOSED RULE

DAR File No.: 26834
Filed: 12/04/2003, 11:46
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

At the request of claimants to the Fund, the Division is proposing amendments which will codify existing Division practices with respect to claim processing deadlines.

Summary of the rule or change:

Section R156-38-105 is divided into two sections, Section R156-38-105a, which remains Adjudicative Proceedings, and Section R156-38-105b, which is now entitled Notices of Denial - Notice of Incomplete Application - Conditional Denial of Claims - Extensions of Time to Correct Claims - Prolonged Status. Additions are made to the new Section R156-38-105b which set out specific time frames for responding to Notices of Incomplete Application, for extensions of time to respond to Notices, and for having claims placed on prolonged status.

State statutory or constitutional authorization for this rule:

Section 38-11-101 and Subsections 58-1-106(1)(a) and 58-1-202(1)(a)

Anticipated cost or savings to:

the state budget:

The Division will incur minimal costs, approximately $50, to reprint the rule once the proposed amendments are made effective. Any costs incurred will be absorbed in the Division's current budget.

local governments:

These proposed rule amendments do not apply to local governments. Therefore, there is no anticipated cost or savings for local governments.

other persons:

The Division does not anticipate any costs or savings involved with the proposed amendments as the amendments are only codifying the Division's existing practice regarding claim processing deadlines.

Compliance costs for affected persons:

The Division does not anticipate any costs or savings involved with the proposed amendments as the amendments are only codifying the Division's existing practice regarding claim processing deadlines.

Comments by the department head on the fiscal impact the rule may have on businesses:

This rule change codifies existing standards and procedures regarding incomplete applications, extensions to complete applications and requests for prolonged status. There appears to be no fiscal impact to businesses as a result of this rule filing. Klare Bachman, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Direct questions regarding this rule to:

Earl Webster at the above address, by phone at 801-530-7632, by FAX at 801-530-6511, or by Internet E-mail at ewebster@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

02/02/2004

Interested persons may attend a public hearing regarding this rule:

1/14/2004 at 8:00 AM, 160 East 300 South - Room 426 (4th Floor) - Salt Lake City, Utah

This rule may become effective on:

02/03/2004

Authorized by:

J. Craig Jackson, Director

RULE TEXT

R156. Commerce, Occupational and Professional Licensing.

R156-38. Residence Lien Restriction and Lien Recovery Fund Rules.

R156-38-105a. Adjudicative Proceedings.

(1) The classification of adjudicative proceedings initiated under Title 38, Chapter 11 is set forth at Sections R156-46b-201 and R156-46b-202.

(2) The identity and role of presiding officers for adjudicative proceedings initiated under Title 38, Chapter 11, is set forth in Sections 58-1-109 and R156-1-109.

(3) Issuance of investigative subpoenas under Title 38, Chapter 11 shall be in accordance with Subsection R156-1-110.

(4) Adjudicative proceedings initiated under Title 38, Chapter 11, shall be conducted in accordance with Title 63, Chapter 46b, Utah Administrative Procedures Act, and Rules R151-46b and R156-46b, Utah Administrative Procedures Act Rules for the Department of Commerce and the Division of Occupational and Professional Licensing, respectively, except as otherwise provided by Title 38, Chapter 11 or these rules.

(5) Claims shall be filed with the division and served upon all necessary and permissive parties.

(6) Service of claims or other pleadings by mail to a qualified beneficiary of the fund addressed to the address shown on the division's records with a certificate of service as required by R151-46b-8, shall constitute proper service. It shall be the responsibility of each registrant to maintain a current address with the division.

(7) A permissive party is required to file a response to a claim against the fund within 30 days of notification by the division of the filing of the claim, to perfect the party's right to participate in the adjudicative proceeding to adjudicate the claim.

(8)(a) For informal claims, findings of fact and conclusions of law entered by a civil court or state agency submitted in support of or in opposition to a claim against the fund shall not be subject to readjudication in an adjudicative proceeding to adjudicate the claim.

(b) For formal claims, a claim or issue resolved by a prior judgment, order, findings of fact, or conclusions of law entered in by a civil court or a state agency submitted in support of or in opposition to a claim against the fund shall not be subject to readjudication with respect to the parties to the judgment, order, findings of fact, or conclusions of law.

(9) A party to the adjudication of a claim against the fund may be granted a stay of the adjudicative proceeding during the pendency of a judicial appeal of a judgment entered by a civil court or the administrative or judicial appeal of an order entered by an administrative agency provided:

(a) the administrative or judicial appeal is directly related to the adjudication of the claim; and

(b) the request for the stay of proceedings is filed with the presiding officer conducting the adjudicative proceeding and concurrently served upon all parties to the adjudicative proceeding, no later than the deadline for filing the appeal.

R156-38-105b. Notices of Denial - Notices of Incomplete Application - Conditional Denial of Claims - Extensions of Time to Correct Claims - Prolonged Status.

(1[0])(a) A written notice of denial of claim shall be provided to a claimant who submits a complete application if the division determines that the claim does not meet the requirements for payment.

(b) A written notice of incomplete application and conditional denial of claim shall be provided to a claimant who submits an incomplete application. The notice shall advise the claimant that the application is incomplete and that the application is denied, unless the claimant corrects the deficiencies within the time period specified in the notice and the claim otherwise meets all qualification for payment.

(2) A claimant may receive a single 30 day extension of the time period in Subsection (1)(b). Additional extensions of the time period shall only be granted if the claimant makes the request in writing and demonstrates, with adequate documentation, that the claimant:

(a) has made all reasonable efforts to complete the claim;

(b) has been prevented from completing the claim because of unusual and extraordinary circumstances entirely beyond its control; and

(c) can be reasonably expected to complete the claim if an additional extension is granted.

(3)(a) A claimant may for any reason be granted a single request that its claim be prolonged.

(b) A claim granted prolonged status shall be inactive for a period of one year or until reactivated by the claimant, whichever comes first.

(c) At the end of the one year period, the claimant shall be required to either complete the claim or demonstrate reasonable cause for prolonged status to be renewed for another one year period. The following shall constitute valid causes for renewing prolonged status:

(i) continuing litigation pursuant to Subsection R156-38-105a(9);

(ii) ongoing bankruptcy proceedings involving the nonpaying party that would prevent the claimant from complying with Section 38-11-204;

(iii) continuing compliance by the nonpaying party with a payment agreement between the claimant and the nonpaying party; or

(iv) other reasonable cause as determined by the presiding officer.

(d) Upon expiration of the one year prolonged status of a claim, the Division shall issue to the claimant an updated notice of incomplete application pursuant to Subsection (1)(b). Included with that notice shall be a form that provides the claimant an opportunity to:

(i) reactivate the claim by submitting documentation necessary to complete the claim;

(ii) withdraw the claim; or

(iii) request prolonged status be renewed pursuant to Subsection (3)(c).

(e) Any request for renewal of prolonged status made under Subsection (3)(c)(iv) shall include evidence sufficient to demonstrate the validity of the reasons given as justification for renewal.

(f) If a claimant's request for renewal of prolonged status is denied, the claimant may request agency review.

(g) A claim which has been reactivated from prolonged status may not be again prolonged unless the claimant can establish compliance with the requirements of Subsection (3)(c).

KEY: licensing, contractors, liens

[June 17, 2003]2004

Notice of Continuation April 6, 2000

38-11-101

58-1-106(1)(a)

58-1-202(1)(a)

ADDITIONAL INFORMATION

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For questions regarding the content or application of this rule, please contact Earl Webster at the above address, by phone at 801-530-7632, by FAX at 801-530-6511, or by Internet E-mail at ewebster@utah.gov

For questions about the rulemaking process, please contact the Division of Administrative Rules (801-538-3764). Please Note: The Division of Administrative Rules is NOT able to answer questions about the content or application of these administrative rules.