The

Janet Napolitano
Governor

OAH

Cliff J. Vanell
Director

Vol. 32
July 2004
www.azoah.com

Official Newsletter of the Arizona Office of Administrative Hearings

REHEARING AND APPEAL OF FINAL ADMINISTRATIVE ACTIONS
At the conclusion of an administrative
hearing in the Office of Administrative Hearings
(“OAH”), the Administrative Law Judge who presided over the case will prepare a written decision
setting forth findings of fact, conclusions of law,
and, in most cases, an order for the disposition of
the matter. After the Administrative Law Judge
completes the decision, the agency from which the
case arose will review the decision and make a
determination (with certain exceptions) to accept,
reject or modify the decision. The agency will then
issue its final administrative decision. See Arizona
Revised Statutes (“A.R.S.”) § 41-1092.08(B). [For
further discussion of the post-hearing review process, see After the Hearing, THE OAH NEWSLETTER,
Vol. 29 (October 2003)] Alternatively, an agency
may fail to take action with respect to a decision, in
which case the decision will be certified by OAH as
the final administrative decision. See A.R.S. § 411092.08(D). [For further discussion of certification,
see Certification of Administrative Decisions, THE
OAH NEWSLETTER, Vol. 31 (May 2004)]
If a party disagrees with a final administraDirector’s note: OAH is committed to fairness and making hearings
accessible to all. This article is part of a series of informational articles to
educate the public and parties who appear before us about the hearing
process and how to better present their cases. The following articles may be
found at OAH’s website at www.azoah.com along with all previous articles
published in the OAH Newsletter.

The Office of Administrative Hearings (OAH) began operations on January 1, 1996.
Administrative Hearings previously provided by regulatory agencies (except those
specifically exempted) are now transferred to the OAH for independent proceedings. Our statutory mandate is to “ensure that the public receives fair and independent administrative hearings.”
The process of unifying the administrative hearings function in OAH-style agencies

Daniel G. Martin, Administrative Law Judge

tive decision, that party may file a motion for
rehearing or review of the decision. See A.R.S. §
41-1092.09. Motions for rehearing or review must
be filed not later than thirty days after service of
the decision (thirty-five days if the decision is
served by mail). See A.R.S. § 41-1092.09(A)(1).
Although specific grounds for rehearing or review
vary from agency to agency, typical grounds
include irregularity in the proceedings, error in the
admission or rejection of evidence, newly discovered evidence that could not, with reasonable
diligence, have been discovered prior to hearing,
accident or surprise that could not have been
prevented by ordinary prudence, and excessive or
insufficient penalties. Motions for rehearing or
review must be in writing, and should be submitted directly to the agency from which the case
arose.
Upon receipt of a timely motion for rehearing or review, and after the opposing party has
been given an opportunity to respond, the agency
will make a determination to grant or deny the
motion. See A.R.S. § 41-1092.09(D). In some
“Rehearing and Appeal”
(continued page 2)

began in 1945 with California. The current states or cities having adopted the
model, with year of inception are: Arizona (1996); California (1961); Colorado
(1976); Florida (1974); Georgia (1995); Chicago (1997); Iowa (1986); Kansas (1998);
Louisiana (1996); Maine (1992); Maryland (1990); Massachusetts (1974); Michigan
(1996); Minnesota (1976); Missouri (1965); New Jersey (1979); New York City (1979);
North Carolina (1986); North Dakota (1991); Oregon (1999); South Carolina (1994);
South Dakota (1994); Tennessee (1975); Texas (1991); Washington D.C. (1999);
Washington (1981); Wisconsin (1978); and Wyoming (1987).

Mission Statement:
We will contribute to the quality of life in the State of Arizona by fairly and impartially hearing
the contested matters of our fellow citizens arising out of state regulation.

4th Quarter Statistics At A Glance
Acceptance Rate:
ALJ findings of fact and conclusions of law were accepted in
95.23% of all Administrative Law Judge Decisions acted upon
by the agencies.* ALJ Decisions, including orders, were
accepted without modification in 91.08% of all Administrative
Law Judge Decisions acted upon by the agencies. 55.9% of all
agency modification was of the order only (i.e. penalty
assessed).
Appeals to Superior Court:
There were 21 appeals filed in Superior Court.
Rehearings:
The rehearing rate was .81%, defined as rehearings scheduled
(8) over hearings concluded (987).**
Completion Rate:
The completion rate was 92.0%, defined as cases completed
(1907) over new cases filed (2072).
Continuance:
The average length of a first time continuance based on a
sample of cases (first hearing setting and first continuance both
occurred in the 4th quarter) was 38.85 days. The frequency of
continuance, defined as the number of continuances granted
(191) over the total number of cases first scheduled (2080),
expressed as a percent, was 9.2%. The ratio of first settings
(1895) to continued settings on the calendar (206) was 1 to .11
Dispositions:
Hearings conducted: 59.8%; vacated prior to hearing: 38.5%;
hearings withdrawn by the agency: 1.6%.
Contrary Recommendations and Agency Response: 13.4%
of Administrative Law Judge Decisions were contrary to the
original agency action where the agency took a position.
Agency acceptance of contrary Administrative Law Judge
Decisions was 75%.

agency’s decision at the
conclusion of the rehearing/review process, the
party may appeal the
agency’s decision to the
Arizona Superior Court.
See A.R.S. § 411092.08(H). Generally
speaking, a party is not
required to file a motion
for rehearing or review
as a prerequisite to the
filing of an appeal in
Superior Court; nonetheless, a party considering
an appeal of a final
administrative decision
should consult the
statutes and rules specific to the agency from
which the case arose to
determine if the filing of
a motion for rehearing or
review is necessary. In
most instances, a party
may appeal a final
administrative decision
immediately after that
decision is issued.

5.24*1.97% of Administrative Law Judge Decisions were certified as final
by the OAH due to agency inaction or were rendered moot by
settlement.(corrected 08/04/04)
** Cases which were vacated or which settled on the day of hearing are
not included.

“Rehearing and Appeal”
(continued from page 1)

instances (such as is the case with
the Registrar of Contractors), the
agency will request that the Administrative Law Judge who heard the
case submit a recommendation to
grant or deny the motion, or to
modify the decision.
If the agency grants a
motion for rehearing or review, the
agency may itself modify the
decision or it may return the matter
to OAH for further proceedings. If
the agency denies a party’s motion
for rehearing or review, or if the
party remains dissatisfied with the

An appeal of a final
administrative decision,
more specifically referred to as a complaint
for judicial review of an administrative decision, must be filed with the
Arizona Superior Court not later
than thirty-five days after the final
administrative decision is served
on the appealing party (forty days if
the decision is served by mail).
See A.R.S. § 12-904. Appeals of
final administrative decisions are
assigned to the Appeals Department of the Maricopa County
Superior Court, which hears and
decides all administrative appeals
as well as appeals from the limited
jurisdiction courts within Maricopa
County. Maricopa County Superior
Court Judge Michael D. Jones is
the judge currently assigned to the
Appeals Department, and presides

page 2

over all administrative appeals.
Not later than ten days
after a complaint for judicial
review of an administrative
decision is filed with the Superior
Court, the party who filed the
complaint must file a notice of the
action with OAH. See A.R.S. §
12-904(B); see also Arizona
Administrative Code (“A.A.C.”)
R2-19-122 (requiring that copy of
complaint be filed with OAH).
Failure to comply with this requirement may result in the
dismissal of the appeal.
After the notice of the
appeal is filed, OAH prepares the
administrative record for transmission to Superior Court. The
administrative record consists of
(1) the original agency action
from which review is sought, (2)
any motions, memoranda or other
documents submitted by the
parties to the appeal, (3) any
exhibits admitted as evidence at
the administrative hearing, and
(4) the decision by the administrative law judge and any revisions
or modifications to the decision.
See A.R.S. § 12-904(B)(1)-(4).
The administrative record
does not automatically include a
copy of the transcript of the
administrative hearing. Although
all administrative hearings are
recorded (generally in a digital
format), it is the responsibility of
the appealing party, at that party’s
expense, to obtain a copy of the
hearing record and to prepare a
transcript for inclusion in the
administrative record. See A.R.S.
§ 12-904(B)(5); see also A.A.C.
R2-19-122(B). [For more information on downloading digital
“Rehearing and Appeal”
(continued page 4)

Agency Response to Administrative Law Judge Decisions April 1, 2004 - June 30, 2004
Administrative Law Judge
Decision moot
0.12%

Agency rejects the
Administrative Law Judge
Decision
1.48%

800
725

Administrative Law Judge
Decision certified as final upon
agency inaction
1.85%

700
Agency amends order only
4.06%

600

Agency amends findings of
fact/conclusions of law only
3.20%

400

300

Agency accepts without
modification
89.29%

200

100
26

33

12

1

Agency rejects the
Administrative Law
Judge Decision

Administrative Law
Judge Decision moot

15

0
Agency accepts without Agency amends findings Agency amends order
modification
of fact/conclusions of law
only
only

Administrative Law
Judge Decision certified
as final upon agency
inaction

Videostreaming
The OAH is preparing digital streaming files that will
be placed on its website illustrating important points
of effective presentation. These will include how to
prepare for hearing, the introduction of exhibits, the
questioning witnesses and the presentation of opening statements and closing arguments. The files will
be available for online viewing on August 15, 2004.

Average Time Between Selected Events - Appealable Agency Actions v.
Contested Cases*, April 1 - June 30, 2004

60.00
49.84

50.00

53.23

40.00
Days

cases

500

30.00
20.00

14.97
8.91

10.00
0.54

15.58

2.48

0.00
Request for Hearing to
Scheduling

Scheduling to First
Hearing Date

Conclusion of Hearing to ALJ Decision to Agency
ALJ Decision
Action

*Note: Appealable Agency Actions are agency actions taken before an opportunity for a hearing. A
typical example would be the denial of a license. A party is entitled to a hearing before the OAH
before the action becomes final. Contested Cases involve actions yet to be determined by an agency.
An example would be proposed discipline on a professional license with the possibility of suspension or
revocation. Parties are entitled to a hearing before the OAH prior to the agency acting.

2072 Cases Filed April 1, 2004 - June 30, 2004
Accountancy
Acupuncture Board
Administration
Admin. Parking
Agriculture
Ag. Emply. Rel. Bd.
AHCCCS
Alternative Fuel
Appraisal
Arizona Trial Courts
Arizona Retirement Sys
Attorney General
Arizona Works
Athletic Board
Banking
Behavioral Health Ex.
Building/Fire Safety
Charter Schools
Chiropractic
Clean Elections
Community Colleges
Cosmetology

4th Q

FY 2004

2
12
0
0
5
10
29
110
1
1
0
0
1039 3188
0
0
1
8
0
0
2
6
1
3
0
0
0
0
10
61
0
3
15
76
21
4
0
3
0
0
0
0
3
10

AAA
CC

9.98

4th Q

1
Dental
0
Economic Security
52
Economic Security-CPS
1
Education
37
Environ. Quality
179
Fingerprinting
0
Funeral
4
Gaming
Health Services
119
16
Insurance
1
Land
Liquor
10
1
Lottery
Maricopa Cty. Housing
0
4
Medical Board
0
Medical Radiologic
Naturopathic
0
36
Nursing
Nursing Care Admin.
2
0
Occupation Therapy
1
Optometry
Osteopathic
0

page 3

FY 2004

11
1
218
7
167
653
0
12
435
76
7
51
1
0
23
4
0
92
4
0
1
0

4th Q FY 2004

0
0
Parks
2
8
Peace Ofc. Standards
5
24
Pest Control
0
2
Physical Therapy
0
Podiatry
0
0
0
Psychologist Examiners
1
5
Public Safety - CW
3
Public Safety - Trans
15
0
0
Public Safety - Adult CC
0
Pvt. Post. Ed.
26
2
8
Racing
0
0
Radiation Regulatory
417 1714
Registrar of Contr.
22
87
Real Estate
9
Revenue
53
0
1
School - Deaf & Blind
8
32
Secretary of State
1
Technical Registration
3
0
0
Veterinary Board
0
2
Water Qual. App. Bd.
1
42
Water Resources
123
Weights and Measures 28

Evaluations of OAH Services
Note: The four major groups of those who responded are: represented private party; unrepresented private party; counsel for a private party; and counsel for the agency. The evaluations
are filled out immediately after the hearing, and the evaluations are not disclosed to the ALJ
involved. They are used by management to improve the OAH process and do not affect the
decisions issued.
All Responses 4th Quarter

Unrepresented Responses 4th Quarter

Excellent
Good
Average
Poor

150
100
50

Q

ue
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0

Excellent
Good
Average
Poor

ue
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200

450
400
350
300
250
200
150
100
50
0

Q

250

Questions:

5. Effectiveness in dealing with the issues of the case

1. Attentiveness of ALJ

6. Sufficient space

2. Effectiveness in explaining the hearing process

7. Freedom from distractions

3. ALJ’s use of clear and neutral language

8. Questions responded to promptly and completely

4. Impartiality

9. Treated courteously

“Rehearings and Appeals”
(continued from page 3)

audio files from the OAH website, see How to Download a Digital Audio File, THE OAH NEWSLETTER, Vol. 29
(October 2003)]. If the appealing fails to prepare a
transcript, any other party to the appeal may do so by
filing a notice with OAH within ten days after receiving
notice of the complaint and by providing for preparation of the transcript at that party’s own expense. See
A.R.S. § 12-904(B)(5).
Under A.R.S. § 12-910(E), the Superior Court
Appeals Department may affirm, reverse, modify or
vacate and remand the agency decision. A.R.S. § 12910(E) states that the Court shall affirm the agency
action unless the Court concludes “that the action is
not supported by substantial evidence, is contrary to
law, is arbitrary and capricious or is an abuse of
discretion.” The Court may hold an evidentiary hearing in order to make the above determination. See
A.R.S. § 12-910(A). However, the decision to do so is

in the discretion of the Court, and is not a matter of
right. Often, parties will not be permitted to offer
additional evidence, and will instead be limited to
oral argument on the underlying record. Final
decisions, orders, judgments or decrees of the
Appeals Department may be appealed to the
Arizona Supreme Court. A.R.S. § 12-913.
As can be seen from the foregoing, the
rehearing and appeal process is comprised of a
number of steps and is governed by relatively short
deadlines. Parties who are considering filing a
motion for rehearing or a complaint for judicial
review of an administrative decision should fully
acquaint themselves with the applicable statutes
and rules to ensure that their filings are both timely
and in compliance with the requirements of the law.

This publication is available in alternative formats. The OAH is an equal opportunity employer.