Evaluations of OAH Services

The

Jane Dee Hull
Governor

All Response s 4th Quarte r

Unreprese nted Responses 4th Quarter
350

600

300

500

250

Excellent

200

Good

150

Average

100

Poor

50

Excellent

400

Good

300

Average
Poor

200

OAH

Cliff J. Vanell
Director

Vol. 20
July 2001

100

www.azoah.com
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Questions:
1. Attentiveness of ALJ
2. Effectiveness in explaining the hearing process
3. ALJ’s use of clear and neutral language
4. Impartiality
5. Effectiveness in dealing with the issues of the
case

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.

6. Sufficient space

Official Newsletter of the Arizona Office of Administrative Hearings

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HEARING PREPARATION

Director’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 article may be found at OAH’s website
at www.azoah.com along with all previous articles published in the OAH
Newsletter.

Mark Silver, Administrative Law Judge
Most people have either limited or no experience
with courtroom type proceedings. Therefore, the need to be
properly prepared for your hearing is of the utmost importance. If you feel that you have very little idea what is
expected of you at the hearing, then you must take a
proactive course of action to properly prepare for the
hearing.

Scope of the Administrative Hearing
Lewis D. Kowal, Administrative Law Judge

7. Freedom from distractions
8. Questions responded to promptly and

com-

pletely
9. Treated courteously

Office of Administrative Hearings
1400 West Washington, Suite 101
Phoenix, Arizona 85007

At the commencement of an administrative hearing, it is
important to determine whether the parties understand the
scope of the hearing, i.e., what issues will be addressed during
the hearing. It has been my experience that even in an appealable agency action, the party requesting the hearing may not
necessarily understand what is going to be addressed at the
hearing. Or, to put it another way, what issues the Administrative
Law Judge will determine as a result of the hearing.
The Administrative Law Judge, as well as the parties,
can gain insight as to what really needs to be addressed during
the hearing by having a brief discussion at the beginning of the
hearing as to what the parties believe is the scope of the
hearing. Issues that were not mentioned in the Notice of
Hearing may be addressed if the Administrative Law Judge
believes it to be appropriate and the parties agree, with a proper
waiver of the required notice.
When a person appeals an agency action, it is the state
agency that specifies in the Notice of Hearing what issues are
being appealed. Because the agency generates the Notice of
Hearing, the Notice should be read very carefully. If there is any
question as to what facts or issues are going to be addressed

“Scope”
continued page 2
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

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

The single most important advice for the untrained
or inexperienced litigant is to make time to come down to
the Office of Administrative Hearings and observe other
hearings involving the same area of the law as your case,
prior to the date of your hearing. It is further recommended
that you observe hearings before the same judge that has
been assigned to your case, since various judges may
conduct their hearings in slightly different ways. It is
advisable that you call the Office of Administrative Hearings
in order to determine the best available day and time to
observe a hearing. Some hearings are confidential and
generally closed to the public.
Be sure and visit the Office of Administrative
Hearings website at www.azoah.com for information
regarding OAH’s promulgated rules, sample forms,
including subpoenas and motions, as well as read a
biography of your assigned judge.
Although every case and area of law may vary
slightly in the type of preparation required, the following
general guidelines are offered to assure proper preparation for your presentation:

“Preparation”
continued page 2
began in 1961 with California. The current states having adopted the model, with year
of inception are: Arizona (1996), California (1961), Colorado (1976), Florida (1974),
Georgia (1995), Illinois (1997), Iowa (1986), Kansas (1998), Louisiana (1996), Maryland
(1990), Massachusetts (1974), Michigan (1996), Minnesota (1976), Missouri (1965), New
Jersey (1979), North Carolina (1986), North Dakota (1991), Oregon (1999), South
Carolina (1994), South Dakota (1994), Tennessee (1975), Texas (1991), 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.

Agency Response to Recommended Decisions April 1 - June 30, 2001
Age ncy re jects the recomm ende d
Age ncy a mend s recomme nded orde r
decisi on
ALJ de cis ion certifie d as fina l up on
onl y
1.0 5%
age ncy i naction
2.4 0%
1%

2500

Appeals to Superior Court:
The appeal rate was 1.26% defined as appeals taken (24) over
hearings concluded (1897**).
Rehearings:
The rehearing rate was .31%, defined as rehearings scheduled (6)
over hearings concluded (1897**).
Completion Rate:
The completion rate was 147.13%, defined as cases completed
(2569) over new cases filed (1746).
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 44.67 days. The frequency of
continuance, defined as the number of continuances granted
(184) over the total number of cases first scheduled (1734),
expressed as a percent, was 10.61%. The ratio of first settings
(1650) to continued settings on the calendar (159) was 1 to 0.09.
Dispositions:
Hearings conducted: 73.8%; vacated prior to hearing: 25.1%;
hearings withdrawn by agency: 1.1%.
Contrary Recommendations and Agency Response: 69.16% of
recommendations were contrary to the original agency action
where the agency took a position. Agency acceptance of contrary
recommendations was 98.96%.
* 1% of ALJ recommended decisions were certified as final by the OAH due to
agency inaction.
** Cases which were vacated are not included

“Scope”
continued from page 1
during the hearing, a party may wish to
address the Administrative Law Judge by
submission of a written motion to clarify
the scope of the hearing.
If the parties disagree as to the
scope of the hearing, the Administrative
Law Judge may hear oral argument from
the parties and rule on the scope of the
hearing. Once that ruling is made, the
parties will have an understanding as to
the road map to be followed concerning
the nature of the facts and issues to be
presented and addressed during the
hearing.
In a number of administrative
matters that go to hearing, situations
change since the filing of a complaint,
issuance of the Notice of Hearing, and the

Another point of inquiry that, as
an Administrative Law Judge, I like to
make at the beginning of the hearing is to
have an understanding what each party is
seeking as a result of the hearing. In
some cases, the person who requested
the hearing did so because the process
was available without fully understanding
what issues can be addressed or what
relief may be obtained.
For example, in an appeal of a
denial of an application for a professional
license based upon prior felony convictions, a party cannot re-litigate those
convictions. That process, if available,
would have to occur in a different forum.
An Administrative Law Judge cannot
overturn a prior criminal conviction nor
can the judge ignore or overrule a civil
judgment.
An inquiry by the Administrative

page 2

Law Judge at the beginning of an administrative hearing as to the scope of the
hearing provides the parties with a
realistic understanding as to what will be
considered during the hearing as well as
a reasonable expectation as what each
party may accomplish as a result of the
hearing. Getting the parties together to
discuss what they believe the hearing is
about can narrow the issues and facts to
be addressed during the hearing. This
enhances the administrative process by
providing for a more efficient and meaningful hearing.

“Preparation”
continued from page 1
a. Know your case. You have
“lived” with the facts surrounding the
issues of your case and need to be ready
to speak extemporaneously about these
issues. Although you may bring notes or
an outline regarding what you need to say,
most judges will not permit you to read
prepared statements into the record as
sworn testimony.
b. Be organized. If you intend to
submit documents or photographs into
evidence, have the originals or copies of
them ready to be submitted to the judge,
with copies for the opposing side.
Photographs should also be organized to
assure that there are no duplicates or
extraneous pictures submitted to the
judge.
Of particular importance in
Registrar of Contractors’ cases involving
numerous issues of alleged construction
deficiencies, if the Complainant does not
feel that the Agency Corrective Work Order
adequately addressed all of the enumerated items of the complaint, then the
Complainant should prepare a preprinted and numbered list of all of the
items of the complaint. Sufficient copies
of the list should be made for the judge
and opposition to use. Having such a list
will greatly facilitate the orderly and
complete presentation of the issues of the
case.
c. Witnesses. If you need to
have others testify on your behalf, make
sure they are available for the hearing. It
is not helpful to tell the judge that you
could have had a certain individual testify
to relevant issues, but that person is not
at the hearing. It is advisable to seek
subpoenas for witnesses, well in advance
of your hearing date, to assure their
attendance at the hearing.

2183

Age ncy a mend s fi nding s of
facts/con clu sion s of law on ly
1.0 9%

2000

1500
Agenc y ac cepts w ithout modific ation
95.16%

1000

500
25

55

Agency amends
findings of
facts/conclusions of
law only

Agency amends
recommended order
only

24

7

0
Agency accepts
w ithout modification

Agency rejects the ALJ Decision Certified
as Final Upon Agency
recommended
Inaction
decision

Substantive Policy
Statement adopted

Average Time Between Selected Events - Appealable Agency Actions v.
Contested Cases*, April 1 - June 30, 2001

http://www.azoah.com/Rules.htm contains a link to a new substantive policy
statement indicating the limitation of the OAH procedural rules. The full
text is as follows:
Inapplicability of A.A.C. R2-19-107 in computing statutory time limits of
A.R.S. §41-1092 et seq.; Reference Number PS - 2.0
The statutory time limits of the Uniform Administrative Appeals
Procedures, Title 41, Chapter 6, Article 10, A.R.S. §41-1092 et seq., are
governed by A.R.S. §1-243. These include the setting of hearings,
A.R.S. §41-1092.05(A); prior notice of hearing, A.R.S. §41-1092.05(D);
issuance of administrative law judge decisions, A.R.S. §41-1092.08(A);
and subsequent agency action in lieu of certification of the recommended decision as the final administrative decision, A.R.S. §411092.08(D). A.R.S. §1-243(A) provides that “…the time in which an act
is required to be done shall be computed by excluding the first day
and including the last day, unless the last day is a holiday, and then
it is also excluded.” A.R.S. §1-301 enumerates specific State holidays,
which includes Sundays.
In light of A.R.S. §1-243(A), for time computation purposes A.A.C. R219-107 is necessarily limited in scope to the time limits prescribed in
prehearing and hearing procedures and does not impact the
statutory time calculations.

60

56.45

50

43.97

40
Days

Acceptance Rate:
ALJ findings of fact and conclusions of law were accepted in
97.85% of all recommended decisions acted upon by the
agencies.* ALJ decisions, including recommended orders, were
accepted without modification in 95.45% of all recommended
decisions acted upon by the agencies. 68.76% of all agency
modification was of the order only (i.e. penalty assessed).

date of the hearing.
Recently, in a
Registrar of
Contractors case, a
complaint was filed
against a contractor
alleging certain
construction
deficiencies and
overcharging by the
contractor. By the
time the matter
came on for
hearing, the only
issue of concern to
the Complainant
was the overcharging issue. After an
on the record
discussion with the
parties as to the
scope of the
hearing and the
presentation of
some evidence, the
parties settled the
matter. Settlement
was facilitated by
the Respondent
contractor having
learned that the
sole issue to be
addressed was the
alleged overcharge
even though
construction
deficiencies were
originally alleged in
the complaint.

cases

4rd Quarter Statistics At A Glance

30

23.75

20

AAA
6.94

10
0.44

8.23

CC

8.63

2.05

0
Request for Hearing to
Scheduling

Scheduling to First
Hearing Date

Conclusion of Hearing ALJ Decision to Agency
to 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.

1746 Cases Filed April 1, 2001 - June 30, 2001
4th Q

Accountancy
Acupuncture Board
ADA
Administration
Admin. Parking
Agriculture
Ag. Emply. Rel. Bd.
AHCCCS
Alternative Fuel
Appraisal
AZ Commission on the Arts
Attorney General
Arizona Works
Banking
Behavioral Health Ex.
Building/Fire Safety
Charter Schools
Chiropractic
Clean Elections
Community Colleges

5
0
0
2
35
1
0
827
24
1
0
1
0
9
0
66
0
7
0
0

FY 2001

54
1
0
23
345
1
0
4016
31
5
0
1
1
32
4
200
0
11
2
0

4th Q FY 2001

4th Q FY 2001

Cosmetology
Dental
Economic Security
Economic Security-CPS
Education
Environ. Quality
Funeral
Gaming
Health Services
Insurance
Land
Liquor
Lottery
Maricopa Cty. Housing
Medical Examiners
Naturopathic
Nursing
Nursing Care Admin
Osteopathic
Parks

page 3

10
2
0
63
1
40
0
1
64
32
2
22
0
0
3
0
7
1
0
0

23
9
0
208
2
147
0
10
207
119
9
100
3
0
11
0
19
1
0
0

Peace Ofc. Standards
Pest Control
Physical Therapy
Podiatry
Psychologist Examiners
Public Safety - CW
Public Safety - Trans
Public Safety - Adult CC
Pvt. Post. Ed.
Racing
Radiation Regulatory
Registrar of Contr.
Real Estate
Revenue
School - Deaf & Blind
Secretary of State
Technical Registration
Water Qual. App. Bd.
Water Resources
Weights and Measures

2
15
0
0
0
6
0
0
0
4
0
396
29
33
0
0
2
0
2
31

11
32
0
1
3
11
7
3
0
14
0
1566
76
116
1
1
7
0
13
55