0001| HOUSE BILL 84
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0002| 43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998
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0003| INTRODUCED BY
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0004| R. DAVID PEDERSON
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0005|
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0006|
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0007|
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0008| FOR THE COURTS, CORRECTIONS AND CRIMINAL JUSTICE COMMITTEE
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0009|
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0010| AN ACT
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0011| RELATING TO JUDICIAL REVIEW; PROMOTING UNIFORMITY WITH RESPECT
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0012| TO JUDICIAL REVIEW OF FINAL DECISIONS BY AGENCIES; AMENDING,
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0013| REPEALING AND ENACTING SECTIONS OF THE NMSA 1978.
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0014|
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0015| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0016| Section 1. A new Section 12-8A-1 NMSA 1978 is enacted to
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0017| read:
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0018| "12-8A-1. [NEW MATERIAL] APPEAL OF FINAL DECISIONS BY
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0019| AGENCIES TO DISTRICT COURT--APPLICATION--SCOPE OF REVIEW--
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0020| REVIEW OF DISTRICT COURT DECISIONS.--
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0021| A. The provisions of this section shall apply only
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0022| to judicial review of final decisions by agencies that are
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0023| placed under the authority of this section by specific
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0024| statutory reference or that are not covered by specific
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0025| statutory procedures regarding judicial review of final
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0001| decisions by agencies.
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0002| B. Upon issuing a final decision, an agency shall
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0003| promptly:
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0004| (1) prepare a written decision that includes
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0005| an order granting or denying relief and a statement of the
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0006| factual and legal basis for the order;
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0007| (2) file the written decision with the
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0008| official public records of the agency; and
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0009| (3) serve a document that includes a copy of
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0010| the written decision and the requirements for filing an appeal
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0011| of the final decision on:
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0012| (a) all parties whose rights are
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0013| adjudged by the final decision; and
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0014| (b) every person who has filed a
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0015| written request for notice of the final decision in that
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0016| particular proceeding.
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0017| C. Unless standing is further limited by a
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0018| specific statute, a person aggrieved by a final decision may
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0019| appeal the decision to district court by filing in district
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0020| court a notice of appeal within thirty days of the date of
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0021| filing of the final decision. The appeal may be taken to the
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0022| district court for the county in which the agency maintains
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0023| its principal office or the district court of any county in
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0024| which a hearing on the matter was conducted. When notices of
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0025| appeal from a final decision are filed in more than one
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0001| district court, all appeals not filed in the district court in
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0002| which the first appeal was properly filed shall be dismissed
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0003| without prejudice. An appellant whose appeal was dismissed
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0004| without prejudice pursuant to the provisions of this
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0005| subsection shall have fifteen days after receiving service of
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0006| the notice of dismissal to file a notice of appeal in the
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0007| district court in which the first appeal was properly filed.
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0008| D. In a proceeding for judicial review of a final
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0009| decision by an agency, the district court may set aside,
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0010| reverse or remand the final decision if it determines that:
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0011| (1) the agency acted fraudulently,
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0012| arbitrarily or capriciously;
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0013| (2) the final decision was not supported by
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0014| substantial evidence; or
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0015| (3) the agency did not act in accordance with
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0016| law.
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0017| E. A party to the appeal to district court may
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0018| seek review of the district court decision by filing a
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0019| petition for writ of certiorari with the court of appeals,
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0020| which may exercise its discretion whether to grant review. A
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0021| party may seek further review by filing a petition for writ of
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0022| certiorari with the supreme court.
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0023| F. The procedures governing appeals and petitions
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0024| for writ of certiorari that may be filed pursuant to the
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0025| provisions of this section shall be set forth in rules adopted
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0001| by the supreme court.
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0002| G. As used in this section:
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0003| (1) "agency" means any state or local public
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0004| body or officer placed under the authority of this section by
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0005| specific statutory reference or that is not covered by
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0006| specific statutory procedures regarding judicial review of
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0007| final decisions by agencies;
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0008| (2) "final decision" means an agency ruling
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0009| that as a practical matter resolves all issues arising from a
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0010| dispute within the jurisdiction of the agency, once all
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0011| administrative remedies available within the agency have been
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0012| exhausted. The determination of whether there is a final
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0013| decision by an agency shall be governed by the law regarding
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0014| the finality of decisions by district courts. "Final
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0015| decision" does not mean a decision by an agency on a rule, as
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0016| defined in the State Rules Act; and
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0017| (3) "hearing on the matter" means a
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0018| proceeding conducted by an agency or its hearing officer for
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0019| the purpose of taking evidence or hearing argument concerning
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0020| the dispute resolved by the final decision."
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0021| Section 2. Section 1-4-21 NMSA 1978 (being Laws 1969,
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0022| Chapter 240, Section 77, as amended) is amended to read:
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0023| "1-4-21. REFUSAL OF REGISTRATION--APPEAL.--[Mandamus
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may be brought in the district court against the county clerk
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by any] A qualified elector whose registration has been
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0001| refused or [by] the county chairman of any major political
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0002| party who alleges that certain persons are qualified electors
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0003| but have been refused registration may bring an appeal
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0004| regarding the refused registration pursuant to the provisions
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0005| of Section 12-8A-1 NMSA 1978."
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0006| Section 3. Section 3-2-5 NMSA 1978 (being Laws 1965,
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0007| Chapter 300, Section 14-2-4, as amended) is amended to read:
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0008| "3-2-5. INCORPORATION--DUTIES OF COUNTY COMMISSIONERS
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0009| AFTER FILING OF PETITION TO ACT--CENSUS REQUIRED--ELECTION--
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0010| RIGHT OF APPEAL TO DISTRICT COURT.--
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0011| A. After the petition for incorporation, together
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0012| with the accompanying map or plat, and the amount of money
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0013| sufficient to pay the cost of a census [have] has been
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0014| filed with the board of county commissioners, the board of
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0015| county commissioners shall, in lieu of complying with the
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0016| requirements of Section 3-1-5 NMSA 1978, within thirty days
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0017| after the filing of the petition, determine:
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0018| (1) from the voter registration list in the
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0019| office of the county clerk if the signers of the petition are
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0020| [registered] qualified electors residing in the territory
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0021| proposed to be incorporated; or
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0022| (2) from the tax [rolls] schedules of the
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0023| county if any of the owners of the real estate who signed the
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0024| petition [is] are delinquent in the payment of property
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0025| taxes; and
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0001| (3) if the territory proposed to be
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0002| incorporated is within an existing municipality or within the
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0003| urbanized area of a municipality.
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0004| B. If the board of county commissioners determines
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0005| that the territory proposed to be incorporated is:
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0006| (1) not within the boundary of an existing
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0007| municipality and not within the urbanized area of a
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0008| municipality; or
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0009| (2) [that the conditions for incorporation
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of a municipality] within the urbanized area of another
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0011| municipality [as established in] and in compliance with
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0012| Section 3-2-3 NMSA 1978 [have been met], the board of county
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0013| commissioners shall cause a census to be taken of the persons
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0014| residing within the territory proposed to be incorporated. The
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0015| census shall be completed and filed with the board of county
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0016| commissioners within thirty days after the board of county
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0017| commissioners authorizes the taking of the census.
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0018| C. Within fifteen days after the date the results
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0019| of the census have been filed with the board of county
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0020| commissioners, the board of county commissioners shall
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0021| determine if the conditions for incorporation of the territory
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0022| as a municipality have been met as required in Sections 3-2-1
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0023| through 3-2-3 NMSA 1978 and [the board of county
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commissioners] shall have its determination recorded in the
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0025| minutes of its meeting.
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0001| D. If the board of county commissioners determines
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0002| that the conditions for incorporation have not been met, the
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0003| board of county commissioners shall notify the petitioners of
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0004| its [determinations] determination by publishing in a
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0005| newspaper of general circulation in the territory proposed to
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0006| be incorporated, once, not more than ten days after its
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0007| determination, a notice of its determination that the
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0008| conditions for incorporation have not been met. If there is
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0009| no newspaper of general circulation in the territory proposed
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0010| to be incorporated, notice of the determination shall be
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0011| posted in eight public places within the territory proposed to
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0012| be incorporated.
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0013| E. After the board of county commissioners has
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0014| determined that all of the conditions for incorporation of the
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0015| territory as a municipality have been met, the board of county
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0016| commissioners shall hold an election on the question of
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0017| incorporating the territory as a municipality. Elections for
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0018| the incorporation of [municipalties] municipalities shall
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0019| only be held in odd-numbered years upon the first Tuesday in
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0020| July or in any year upon the first Tuesday in January, unless
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0021| [such] that Tuesday is a holiday, in which case the
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0022| election shall be held on the second Tuesday in July or the
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0023| second Tuesday in January. The county clerk shall notify the
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0024| secretary of finance and administration and the secretary of
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0025| taxation and revenue of the date of [such] the
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0001| incorporation election within ten days after the adoption of
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0002| the resolution calling the election.
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0003| F. The signers of the petition or [any] a
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0004| municipality within whose urbanized area the territory
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0005| proposed to be incorporated is located may appeal any
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0006| determination of the board of county commissioners to the
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0007| district court pursuant to the provisions of Section 12-8A-1
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0008| NMSA 1978."
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0009| Section 4. Section 3-2-9 NMSA 1978 (being Laws 1965,
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0010| Chapter 300, Section 14-2-8, as amended) is amended to read:
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0011| "3-2-9. INCORPORATION COMPLETE--JUDICIAL NOTICE--DEFECTS
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0012| IN INCORPORATION--[CONTEST] APPEAL.--
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0013| A. After certified copies of the papers relating
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0014| to the incorporation of a municipality have been filed in the
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0015| offices of the county clerk and the secretary of state and
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0016| after the municipal officers have been elected and qualified,
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0017| the incorporation of the municipality shall be complete and
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0018| effective on the following January 1 if the election was held
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0019| in July or on the following July 1 if the election was held in
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0020| January, and notice of the incorporation shall be taken in all
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0021| judicial proceedings.
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0022| B. An action by a protestant against the
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0023| incorporation of a municipality shall be taken to the district
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0024| court [within sixty days after the filing of the certified
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copies of the papers relating to the incorporation of a
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municipality in the offices of the county clerk and secretary
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of state. Any action commenced more than sixty days after the
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filing of the certified copies of the papers relating the
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incorporation of a municipality in the offices of the county
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clerk and secretary of state and questioning the
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incorporation, formation or organization of a municipality is
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perpetually barred] pursuant to the provisions of
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0008| Section 12-8A-1 NMSA 1978."
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0009| Section 5. Section 3-19-8 NMSA 1978 (being Laws 1965,
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0010| Chapter 300, Section 14-18-8) is amended to read:
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0011| "3-19-8. APPEAL.--[A.] Any person in interest [(1)]
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0012| dissatisfied with [any] an order or determination of the
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0013| planning commission, [and (2)] after review of the order or
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0014| determination by the governing body of the municipality, may
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0015| commence an [action] appeal in the district court [to
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vacate and set aside the order or determination on the ground
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that it is unlawful or unreasonable.
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B. The court shall determine the issue from the
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evidence introduced, but the plaintiff has the burden of
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establishing a prima facie case. The court may grant relief
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by injunction, mandamus or any other extraordinary remedy. In
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any action, the complaint shall be served with the summons.
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Appeal may be taken from the judgment as in other civil cases.
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C. The trial shall be de novo and shall be
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governed by the rules of civil procedure of the district
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court.
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D. Except as provided in this section, all
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processes shall be served and the practice and rules of
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evidence shall be the same as in civil action] pursuant to
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0005| the provisions of Section 12-8A-1 NMSA 1978."
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0006| Section 6. Section 3-21-4 NMSA 1978 (being Laws 1977,
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0007| Chapter 80, Section 3) is amended to read:
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0008| "3-21-4. EXTRATERRITORIAL ZONING ORDINANCE--ENFORCEMENT
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0009| AND ADMINISTRATION--APPEALS.--
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0010| A. A zoning ordinance adopted by a joint
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0011| municipal-county zoning authority shall be an ordinance of the
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0012| municipality and an ordinance of the county joining in the
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0013| agreement pursuant to Subsection A of Section [14-20-2.2 NMSA
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1953] 3-21-3 NMSA 1978 and may be enforced by appropriate
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0015| procedures of either the municipality or the county. The
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0016| agreement entered into pursuant to Subsection A of Section
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0017| [14-20-2.2 NMSA 1953] 3-21-3 NMSA 1978 may specify whether
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0018| the municipality or the county shall assume primary
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0019| enforcement responsibility.
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0020| B. The extraterritorial zoning commission shall
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0021| administer the zoning ordinance adopted by the joint
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0022| municipal-county zoning authority in the manner provided in
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0023| Subsection C of Section [14-20-5 NMSA 1953] 3-21-7 NMSA
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0024| 1978.
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0025| C. Appeals from the decisions of the
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0001| extraterritorial zoning commission shall be taken to the joint
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0002| municipal-county zoning authority in the manner provided in
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0003| Section [14-20-6 NMSA 1953] 3-21-8 NMSA 1978, and appeals
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0004| from the decisions of the joint municipal-county zoning
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0005| authority shall be taken to the district court in the manner
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0006| provided in Section [14-20-7 NMSA 1953] 12-8A-1 NMSA
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0007| 1978."
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0008| Section 7. Section 3-21-9 NMSA 1978 (being Laws 1965,
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0009| Chapter 300, Section 14-20-7) is amended to read:
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0010| "3-21-9. ZONING--[PETITION FOR COURT REVIEW--TIME
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LIMIT--CERTIORARI--RESTRAINING ORDER--RETURN--HEARING--
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REFERENCE--COSTS--PRECEDENCE] APPEAL.--[A. Any] A
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0013| person aggrieved by a decision of the zoning authority or any
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0014| officer, department, board or bureau of the zoning authority
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0015| may [present to the district court a petition, duly verified,
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setting forth that the decision is illegal in whole or in part
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and specifying the grounds of the illegality. The petition
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shall be presented to the court within thirty days after the
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decision is entered in the records of the clerk of the zoning
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authority.
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B. Upon presentation of the petition, the court
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may allow a writ of certiorari directed to the zoning
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authority to review its decision and shall prescribe the time
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in which a return must be made, which shall not be less than
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ten days and may be extended by the court and shall be served
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upon the relator's attorney. The allowance of the writ shall
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not stay proceedings upon the decision appealed from, but the
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court may, on application, on notice and on due cause shown,
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grant a restraining order.
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C. In answering said writ, it shall not be
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necessary to return the original papers acted upon, but it
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shall be sufficient to return certified or sworn copies
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thereof or of such portions thereof as may be called for by
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such writ. The return shall concisely set forth such further
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facts as may be pertinent or material to show the grounds of
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the decision appealed from and shall be verified.
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D. If at the hearing it appears to the court that
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testimony is necessary for the proper disposition of the
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matter, it may take evidence or appoint a referee to take such
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evidence as it may direct and report the same to the court
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with his findings of fact and conclusions of law which shall
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constitute a part of the proceedings upon which the
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determination of the court shall be made. The court may
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reverse, affirm or modify the decision brought up for review.
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E. Costs shall not be allowed against the
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respondent unless it appears to the court that he acted with
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gross negligence, in bad faith or with malice in making the
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decision appealed from] appeal the decision pursuant to the
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0024| provisions of Section 12-8A-1 NMSA 1978."
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0025| Section 8. Section 3-33-13 NMSA 1978 (being Laws 1965,
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0001| Chapter 300, Section 14-32-6, as amended) is amended to read:
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0002| "3-33-13. IMPROVEMENT DISTRICT--PROVISIONAL ORDER--
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0003| PROTEST--[ACTION IN] APPEAL TO DISTRICT COURT.--
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0004| A. At the hearing of the governing body on the
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0005| provisional order creating an improvement district, [any]
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0006| an interested person or owner of property to be assessed for
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0007| the improvement may file a written protest or objection
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0008| questioning the:
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0009| (1) propriety and advisability of
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0010| constructing the improvement;
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0011| (2) estimated cost of the improvement;
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0012| (3) manner of paying for the improvement; or
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0013| (4) estimated maximum benefit to each
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0014| individual tract or parcel of land.
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0015| B. The governing body may recess the hearing from
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0016| time to time so that all protestants may be heard.
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0017| C. Within thirty days after the governing body
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0018| has, by adoption of a resolution:
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0019| (1) concluded the hearing;
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0020| (2) determined:
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0021| (a) the advisability of constructing
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0022| the improvement; and
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0023| (b) the type and character of the
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0024| improvement; and
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0025| (3) created the improvement district, [any]
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0001| a person who during the hearing filed a written protest with
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0002| the governing body protesting the construction of the
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0003| improvement may [commence an action in district court to
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correct or set aside the determination of the governing body.
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After the lapse of thirty days after adoption of the
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resolution by the governing body, any action attacking the
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validity of the proceedings and the amount of benefit to be
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derived from the improvement is perpetually barred] appeal
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0009| the determination of the governing body pursuant to the
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0010| provisions of Section 12-8A-1 NMSA 1978.
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0011| D. Where no person has filed a written protest
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0012| during the hearing and all owners of property to be assessed,
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0013| upon conclusion of the hearing, submit to the governing body
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0014| written statements in favor of the creation of the improvement
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0015| district for the types and character of improvements indicated
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0016| in the provisional order, [such] those owners shall be
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0017| deemed to have waived their right to bring any action
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0018| challenging the validity of the proceedings or the amount of
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0019| benefit to be derived from the improvements."
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0020| Section 9. Section 3-33-16 NMSA 1978 (being Laws 1965,
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0021| Chapter 300, Section 14-32-9, as amended) is amended to read:
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0022| "3-33-16. IMPROVEMENT DISTRICT--PRELIMINARY HEARING--
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0023| PROTEST--ACTION OF THE GOVERNING BODY--[ACTION IN] APPEAL
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0024| TO DISTRICT COURT.--
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0025| A. At the preliminary hearing of the governing
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0001| body on the question of creating an improvement district as
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0002| authorized in Section 3-33-14 NMSA 1978, [any] an owner of
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0003| a tract or parcel of land to be assessed may contest:
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0004| (1) the proposed assessment;
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0005| (2) the regularity of the proceedings
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0006| relating to the improvement;
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0007| (3) the benefits of the improvement; or
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0008| (4) any other matter relating to the
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0009| improvement district.
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0010| B. The governing body shall not assess the tract
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0011| or parcel of land an amount greater than the actual benefit to
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0012| the tract or parcel of land by reason of the enhanced value of
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0013| the tract or parcel of land as a result of the improvement as
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0014| ascertained at the hearing. The governing body may allow a
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0015| fair price, based on its [present] current value, as a
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0016| set-off against any assessment against a tract or parcel of
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0017| land if the owner has improved the tract or parcel of land in
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0018| such a manner that the improvement may be made part of the
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0019| proposed improvement.
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0020| C. At the hearing, the governing body may:
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0021| (1) correct [any] a mistake or
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0022| irregularity in any proceeding relating to the improvement;
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0023| (2) correct an assessment made against any
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0024| tract or parcel of land;
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0025| (3) in case of any invalidity, reassess the
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0001| cost of the improvement against a benefiting tract or parcel
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0002| of land; [and] or
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0003| (4) recess the hearing [from time to time].
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0004| D. [Within thirty days after the hearing, any]
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0005| An owner of a tract or parcel of land assessed, whether he
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0006| appeared at the hearing or not, may commence an [action]
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0007| appeal in district court [seeking an account of any error
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or invalidity of the proceedings relating to the improvement
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district to set aside or correct the assessment or any
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proceedings relating to the improvement district. Thereafter,
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any owner, his heirs, assigns, successors or personal
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representatives are perpetually barred from any action or any
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defense of error or invalidity in the proceedings or
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assessments. Where no owner of a tract or parcel to be
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assessed has presented a protest during the hearing and all
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owners of the property to be assessed upon conclusion of the
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hearing submit written statements in favor of the creation of
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the improvement district for the types and character of
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improvements indicated in the petition, such owners shall be
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deemed to have waived their right to bring any action in
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district court seeking an account of any error or invalidity
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of the proceedings relating to the improvement district or to
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set aside or correct the assessment or any proceedings
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relating to the improvement district] pursuant to the
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0025| provisions of Section 12-8A-1 NMSA 1978."
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0001| Section 10. Section 3-33-22 NMSA 1978 (being Laws 1965,
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0002| Chapter 300, Section 14-32-15, as amended) is amended to read:
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0003| "3-33-22. IMPROVEMENT DISTRICT--FILING OF OBJECTIONS--
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0004| ASSESSMENT HEARING--ACTION OF THE GOVERNING BODY--APPEAL TO
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0005| DISTRICT COURT.--
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0006| A. Not later than three days before the date of
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0007| the hearing on the assessment roll, [any] an owner of a
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0008| tract or parcel of land [which] that is listed on the
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0009| assessment roll may file his specific objections in writing
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0010| with the municipal clerk. Unless presented as required in
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0011| this section, [any] an objection to the regularity,
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0012| validity and correctness of:
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0013| (1) the proceedings;
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0014| (2) the assessment roll;
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0015| (3) each assessment contained on the
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0016| assessment roll; or
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0017| (4) the amount of the assessment levied
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0018| against each tract or parcel of land,
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0019| is deemed waived.
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0020| B. At the hearing, the governing body shall hear
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0021| all objections that have been filed as provided in this
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0022| section and may recess the hearing [from time to time] and,
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0023| by resolution, revise, correct, confirm or set aside [any]
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0024| an assessment and order another assessment be made de novo.
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0025| C. The governing body by ordinance shall, by
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0001| reference to [such] the assessment roll as so modified, if
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0002| modified, and as confirmed by [such] the resolution, levy
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0003| the assessments contained in the assessment roll. The
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0004| assessments may be levied in stages if preliminary liens are
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0005| established pursuant to Section 3-33-11 NMSA 1978. The
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0006| decision, resolution and ordinance of the governing body is:
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0007| (1) a final determination of the regularity,
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0008| validity and correctness of:
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0009| (a) the proceedings;
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0010| (b) the assessment roll;
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0011| (c) each assessment contained on the
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0012| assessment roll; and
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0013| (d) the amount of the assessment levied
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0014| against each tract or parcel of land; and
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0015| (2) conclusive upon the owners of the tract
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0016| or parcel of land assessed.
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0017| D. [Within fifteen days after the publication of
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the title and general summary of the ordinance or posting of
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the ordinance, any] An owner who has filed an objection as
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0020| provided in this section may commence an [action] appeal
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0021| in district court [to correct or set aside the determination
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of the governing body. After the lapse of fifteen days after
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the publication or posting, all actions that include the
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defense of confiscation or attack the regularity, validity and
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correctness of:
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(1) the proceedings;
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(2) the assessment roll;
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(3) each assessment contained on the
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assessment roll; or
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(4) the amount of the assessment levied
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against each tract or parcel of land,
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are perpetually barred] pursuant to the provisions of
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0008| Section 12-8A-1 NMSA 1978."
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0009| Section 11. Section 3-33-35 NMSA 1978 (being Laws 1965,
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0010| Chapter 300, Section 14-32-30) is amended to read:
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0011| "3-33-35. IMPROVEMENT DISTRICT--NOTICE OF APPEAL--APPEAL
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0012| TO DISTRICT COURT[--APPEAL TO SUPREME COURT].--[A.] After
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0013| an owner has filed a written objection with the municipal
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0014| clerk to [any] a reassessment as provided in Section [14-
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32-15 New Mexico Statutes Annotated, 1953 Compilation] 3-33-
|
0016| 22 NMSA 1978 and the governing body has determined the
|
0017| reassessment, [any] an owner of a tract or parcel of land
|
0018| that is reassessed may [within ten days after the
|
reassessment roll has been ratified by ordinance] file a
|
0020| notice of appeal to the district court. [The notice to the
|
municipal clerk shall describe the tract or parcel of land
|
being reassessed and shall state the objections of the
|
appellant to the reassessment.
|
B. Within twenty days after the reassessment roll
|
has been ratified by ordinance, the appellant shall file with
|
- 19 -
the clerk of the district court copies of the:
|
(1) notice of appeal;
|
(2) appeal;
|
(3) reassessment roll;
|
(4) reassessment proceedings, all certified
|
by the municipal clerk; and
|
(5) a bond to the municipality conditioned to
|
pay all costs that may be awarded against the appellant in a
|
sum of not less than two hundred dollars ($200) with such
|
security as shall be approved by the district court.
|
C. The case shall:
|
(1) be docketed by the clerk of the district
|
court in the name of the owner taking such appeal against the
|
municipality as "an appeal from reassessments";
|
(2) have preference over all civil cases
|
pending in the district court except proceedings under:
|
(a) the law relating to eminent domain
|
by municipalities; or
|
(b) actions of forcible entry and
|
detainer; and
|
(3) be tried as in the case of equitable
|
causes except that no pleadings are necessary.
|
The judgment of the district court shall be to confirm,
|
modify or annul the reassessment insofar as the reassessment
|
affects the tract or parcel of land of the appellant. If the
|
- 20 -
reassessment is confirmed, the fees of the municipal clerk for
|
copies of the record shall be taxed against the appellant with
|
the other costs.
|
D. On any judgment of the district court, appeal
|
shall be to the supreme court as in other causes. If an
|
appeal is taken to the supreme court, the transcript of the
|
proceedings in the district court shall be filed in the office
|
of the clerk of the supreme court within thirty days after the
|
rendering of the decree being appealed. If the appeal is not
|
filed within the thirty-day period, the appeal shall be
|
forthwith dismissed upon motion. If the appeal is properly
|
prosecuted, the supreme court shall advance the cause on the
|
docket and hear the appeal at the earliest possible
|
opportunity.] The appeal shall be filed pursuant to the
|
0015| provisions of Section 12-8A-1 NMSA 1978."
|
0016| Section 12. Section 3-35-3 NMSA 1978 (being Laws 1965,
|
0017| Chapter 300, Section 14-34-3) is amended to read:
|
0018| "3-35-3. HEARING ON PROVISIONAL ORDER--PROTEST BY
|
0019| PROPERTY OWNER OR INTERESTED PERSON--[ACTION TO CORRECT OR
|
SET ASIDE DETERMINATION] APPEAL.--At the hearing on a
|
0021| provisional order, [any] a property owner or interested
|
0022| person may file a written protest and may be heard by the
|
0023| governing body on the order. [Any] A person filing a
|
0024| written protest may [within thirty days after the governing
|
body has finally passed on the protest, bring an action in the
|
- 21 -
district court to correct or set aside the determination, but
|
thereafter, no actions shall be brought to attack the validity
|
of the proceedings or the amount of benefits] bring an
|
0004| appeal concerning the governing body's determination on the
|
0005| protest pursuant to the provisions of Section 12-8A-1 NMSA
|
0006| 1978."
|
0007| Section 13. Section 3-39-23 NMSA 1978 (being Laws 1965,
|
0008| Chapter 300, Section 14-40-21) is amended to read:
|
0009| "3-39-23. JUDICIAL REVIEW.--
|
0010| A. Any person aggrieved by [any] a decision of
|
0011| the board of appeals, [or] any taxpayer, [or] any officer,
|
0012| any department, any board or any bureau of the political
|
0013| subdivision may [present to the district court a verified
|
petition setting forth that the decision is illegal, in whole
|
or in part, and specifying the grounds of the illegality. Such
|
petition shall be presented to the court within thirty days
|
after the decision is filed in the office of the board.
|
B. Upon presentation of such petition, the court
|
may allow a writ of certiorari directed to the board of appeals
|
to review such decision of the board. The allowance of the
|
writ shall not stay proceedings upon the decision appealed
|
from, but the court may, on application, on notice to the board
|
and on due cause shown, grant a restraining order.
|
C. The board of appeals shall not be required to
|
return the original papers acted upon by it, but it shall be
|
- 22 -
sufficient to return certified or sworn copies thereof or of
|
such portions thereof as may be called for by the writ. The
|
return shall concisely set forth such other facts as may be
|
pertinent and material to show the grounds of the decision
|
appealed from and shall be verified.
|
D. The court shall have exclusive jurisdiction to
|
affirm, modify or set aside the decision brought up for review,
|
in whole or in part, and if need be, to order further
|
proceedings by the board of appeals. The findings of fact by
|
the board, if supported by substantial evidence, shall be
|
accepted by the court as conclusive, and no objection to a
|
decision of the board shall be considered by the court unless
|
such objection shall have been urged before the board or, if it
|
was not so urged, unless there were reasonable grounds for
|
failure to do so] file an appeal pursuant to the provisions
|
0016| of Section 12-8A-1 NMSA 1978.
|
0017| [E.] B. Costs shall not be allowed against the
|
0018| board of appeals unless it appears to the court that it acted
|
0019| with gross negligence, in bad faith or with malice in making
|
0020| the decision appealed from."
|
0021| Section 14. Section 3-46-43 NMSA 1978 (being Laws 1965,
|
0022| Chapter 300, Section 14-47-19) is amended to read:
|
0023| "3-46-43. ORDINANCES RELATING TO REPAIR, CLOSING AND
|
0024| DEMOLITION OF DWELLINGS UNFIT FOR HUMAN HABITATION--COMPLAINT-
|
0025| - SERVICE OF COMPLAINT--APPEAL.--
|
- 23 -
0001| A. Whenever any municipality finds that there exist
|
0002| dwellings [which] that are unfit for human habitation due
|
0003| to dilapidation; defects increasing the hazards of fire,
|
0004| accidents or other calamities; lack of ventilation, light or
|
0005| sanitary facilities or due to other conditions, including those
|
0006| set forth in Subsection C [hereof] of this section,
|
0007| rendering [such] the dwellings unsafe and [insanitary]
|
0008| unsanitary or dangerous or detrimental to the health, safety
|
0009| or morals or otherwise inimical to the welfare of the residents
|
0010| of [such] the municipality, power is [hereby] conferred
|
0011| upon the municipality to require or cause the repair, closing
|
0012| or demolition or removal of the dwelling in the manner
|
0013| [herein] provided in this section. A "dwelling" means any
|
0014| building or structure or part thereof used and occupied for
|
0015| human habitation or intended to be so used and includes any
|
0016| appurtenances usually enjoyed [therewith] in the dwelling.
|
0017| B. Upon the adoption of an ordinance finding that
|
0018| dwelling conditions of the character described in Subsection A
|
0019| of this section exist, the governing body of the municipality
|
0020| is authorized to adopt ordinances relating to the dwellings
|
0021| within the municipality [which] that are unfit for human
|
0022| habitation. The ordinances shall include the following
|
0023| provisions:
|
0024| (1) a public officer shall be designated or
|
0025| appointed to exercise the powers prescribed by the ordinances;
|
- 24 -
0001| (2) whenever it appears to the public officer,
|
0002| on his own motion, that any dwelling is unfit for human
|
0003| habitation, he shall, if his preliminary investigation
|
0004| discloses a basis for [such] the charges, issue and cause
|
0005| to be served on the owner, every mortgagee of record and all
|
0006| parties in interest in the dwelling, including persons in
|
0007| possession, a complaint stating the charges in that respect.
|
0008| The complaint shall contain a notice that a hearing will be
|
0009| held before the public officer or his designated agent at a
|
0010| place [therein] fixed in the complaint not less than ten
|
0011| days nor more than thirty days after the serving of the
|
0012| complaint; that the owner, mortgagee and parties in interest
|
0013| shall be given the right to file an answer to the complaint and
|
0014| to appear in person or otherwise and give testimony at the
|
0015| place and the time fixed in the complaint; and that the rules
|
0016| of evidence prevailing in courts of law or equity shall not be
|
0017| controlling in hearings before the public officer;
|
0018| (3) if after [such] the notice and hearing
|
0019| the public officer determines that the dwelling under
|
0020| consideration is unfit for human habitation, he shall state in
|
0021| writing his findings of fact in support of [such] that
|
0022| determination and shall issue and cause to be served upon the
|
0023| owner an order in writing [which] that advises the owner of
|
0024| his rights under Subsection E of this section and [which]
|
0025| that:
|
- 25 -
0001| (a) if the repair, alteration or
|
0002| improvement of the dwelling can be made at a reasonable cost in
|
0003| relation to the value of the dwelling, the ordinance of the
|
0004| municipality shall fix a certain percentage of the cost as
|
0005| being reasonable for [such] that purpose [requires] and
|
0006| require the owner, within the time specified in the order, to
|
0007| repair, alter or improve the dwelling to render it fit for
|
0008| human habitation or to vacate and close the dwelling as a human
|
0009| habitation; or
|
0010| (b) if the repair, alteration or
|
0011| improvement of the dwelling cannot be made at a reasonable cost
|
0012| in relation to the value of the dwelling, the ordinance of the
|
0013| municipality shall fix a certain percentage of the cost as
|
0014| being reasonable for the purpose, [requires] and require
|
0015| the owner, within the time specified in the order, to remove or
|
0016| demolish the dwelling;
|
0017| (4) if the owner fails to comply with an order
|
0018| to repair, alter or improve or to vacate and close the
|
0019| dwelling, the public officer may cause the dwelling to be
|
0020| repaired, altered or improved or to be vacated and closed;
|
0021| (5) if the owner fails to comply with an order
|
0022| to remove or demolish the dwelling, the public officer may
|
0023| cause the dwelling to be removed or demolished; and
|
0024| (6) the amount of the cost of the repairs,
|
0025| alterations or improvements or the vacating and closing or
|
- 26 -
0001| the removal or demolition by the public officer shall be a
|
0002| lien against the real property upon which the cost was
|
0003| incurred. If the dwelling is removed or demolished by the
|
0004| public officer, he shall sell the materials of the dwelling and
|
0005| shall credit the proceeds of the sale against the cost of the
|
0006| removal or demolition. [and] Any balance remaining shall be
|
0007| deposited in the district court by the public officer and
|
0008| shall be secured in the manner as may be directed by the court
|
0009| and shall be disbursed by the court to the persons found to be
|
0010| entitled [thereto] to the balance by final order or decree
|
0011| of the court.
|
0012| C. An ordinance adopted by a municipality pursuant
|
0013| to this section shall provide that the public officer may
|
0014| determine a dwelling is unfit for human habitation if he finds
|
0015| that conditions exist in [such] the dwelling [which]
|
0016| that are dangerous or injurious to the health, safety or
|
0017| morals of the occupants of the dwelling, the occupants of
|
0018| neighboring dwellings or other residents of the municipality or
|
0019| [which] that have a blighting influence on properties in
|
0020| the area. The conditions may include the following, without
|
0021| limitations: defects [therein] increasing the hazards of
|
0022| fire, accident or other calamities; lack of adequate
|
0023| ventilation, light or sanitary facilities; dilapidation;
|
0024| disrepair; structural defects; uncleanliness; overcrowding;
|
0025| inadequate ingress and egress; inadequate drainage; or any
|
- 27 -
0001| violation of health, fire, building or zoning regulations or
|
0002| any other laws or regulations relating to the use of land and
|
0003| the use and occupancy of buildings and improvements. The
|
0004| ordinance may provide additional standards to guide the public
|
0005| officer or his agents or employees in determining the fitness
|
0006| of a dwelling for human habitation.
|
0007| D. Complaints or orders issued by a public officer
|
0008| pursuant to an ordinance adopted under the provisions of the
|
0009| Urban [Renewal] Development Law shall be served upon
|
0010| persons either personally or by registered mail. [but] If the
|
0011| whereabouts of the persons are unknown and cannot be
|
0012| ascertained by the public officer in the exercise of reasonable
|
0013| diligence and the public officer [shall make] makes an
|
0014| affidavit to that effect, then the serving of the complaint or
|
0015| order upon the persons may be made by publishing the [same]
|
0016| complaint or order once each week for two consecutive weeks
|
0017| in a newspaper printed and published in the municipality or, in
|
0018| the absence of a newspaper, in one printed and published in the
|
0019| county and circulating in the municipality in which the
|
0020| dwellings are located. A copy of the complaint or order shall
|
0021| be posted in a conspicuous place on the premises affected by
|
0022| the complaint or order. A copy of the complaint or order shall
|
0023| also be filed with the clerk of the county in which the
|
0024| dwelling is located. [and] Filing of the complaint or order
|
0025| shall have the same force and effect as other lis pendens
|
- 28 -
0001| notices provided by law.
|
0002| E. Any person affected by an order issued by the
|
0003| public officer may [petition the district court for an
|
injunction restraining the public officer from carrying out the
|
provisions of the order, and the court may, upon the petition,
|
issue a temporary injunction restraining the public officer
|
pending the final disposition of the cause; provided that
|
within sixty days after the posting and service of the order of
|
the public officer, such person shall petition such court.
|
Hearings shall be had by the court on the petitions within
|
twenty days or as soon thereafter as possible and shall be
|
given preference over other matters on the court's calendar.
|
The court shall hear the matter de novo and enter a final
|
judgment in accordance with its findings. The remedies herein
|
provided shall be exclusive remedies, and no person affected
|
by an order of the public officer shall be entitled to recover
|
any damages for action taken pursuant to any order of the
|
public officer or because of compliance by the person with any
|
order of the public officer. Appeals may be taken in the same
|
manner as civil actions] file an appeal pursuant to the
|
0021| provisions of Section 12-8A-1 NMSA 1978.
|
0022| F. An ordinance adopted by the governing body of
|
0023| the municipality may authorize the public officer to exercise
|
0024| [such] powers as may be necessary or convenient to carry out
|
0025| and effectuate the purposes and provisions of the Urban
|
- 29 -
0001| [Renewal] Development Law, including the following powers
|
0002| in addition to others [herein] granted in the Urban
|
0003| Development Law:
|
0004| (1) to investigate the dwelling conditions in
|
0005| the municipality in order to determine which dwellings
|
0006| [therein] are unfit for human habitation;
|
0007| (2) to administer oaths and affirmations,
|
0008| examine witnesses and receive evidence;
|
0009| (3) to enter upon premises for the purpose of
|
0010| making examinations, provided that the entries shall be made in
|
0011| a manner as to cause the least possible inconvenience to the
|
0012| persons in possession, and to obtain an order for this purpose
|
0013| from a court of competent jurisdiction in the event entry is
|
0014| denied or resisted;
|
0015| (4) to appoint and fix the duties of any
|
0016| officers, agents and employees as he deems necessary to carry
|
0017| out the purposes of [such] the ordinances; and
|
0018| (5) to delegate any of his functions and
|
0019| powers under [such] the ordinance to [such] officers,
|
0020| agents and employees [as] he may designate.
|
0021| G. The governing body of [any] a municipality
|
0022| adopting an ordinance under this section shall, as soon as
|
0023| possible thereafter, prepare an estimate of the annual expenses
|
0024| or costs to provide the equipment, personnel and supplies
|
0025| necessary for periodic examinations and investigations of the
|
- 30 -
0001| dwellings in the municipality for the purpose of determining
|
0002| the fitness of the dwellings for human habitation and for the
|
0003| enforcement and administration of its ordinance or ordinances
|
0004| adopted under this section.
|
0005| H. Nothing in this section shall be construed to
|
0006| abrogate or impair the powers of the courts or of [any] a
|
0007| department of [any] a municipality to enforce any
|
0008| provisions of its charter or its ordinances or regulations
|
0009| [nor] or to prevent or punish violations thereof [and].
|
0010| The powers conferred by this section shall be in addition and
|
0011| supplemental to the powers conferred by any other law.
|
0012| I. Nothing in this section shall be construed to
|
0013| impair or limit in any way the power of the municipality to
|
0014| define and declare nuisances and to cause their removal or
|
0015| abatement by summary proceedings or otherwise."
|
0016| Section 15. Section 3-51-12 NMSA 1978 (being Laws 1971,
|
0017| Chapter 173, Section 7) is amended to read:
|
0018| "3-51-12. FORMATION OF DISTRICT--PROVISIONAL ORDER
|
0019| HEARING--CONDUCT--APPEAL.--
|
0020| A. The owner [or owners] of any property within
|
0021| the proposed district may, not less than two days preceding the
|
0022| hearing, file with the clerk his specific objections in
|
0023| writing. Any objection to the regularity, validity and
|
0024| correctness of the proceedings, including the validity and
|
0025| amount of the preliminary fund assessment, shall be deemed
|
- 31 -
0001| waived unless presented at the time and in the manner
|
0002| [herein] specified in this subsection.
|
0003| B. At the time and place [so] designated for
|
0004| hearing the objections, the governing body of the city shall
|
0005| hear and determine all objections [which] that have been
|
0006| [so] filed. [and said] The governing body shall have the
|
0007| power to adjourn the hearing [from time to time] and shall
|
0008| have power by resolution, in its discretion, to revise, correct
|
0009| or confirm any proceedings [theretofore] previously taken.
|
0010| C. Within fifteen days after the publication of the
|
0011| ordinance forming the parking district, [any] a person who
|
0012| has filed an objection [or objections], as [hereinbefore]
|
0013| provided in Subsection A of this section, shall have the
|
0014| right to appeal to the district court [for the county in which
|
the city is located for review of errors in law; but,
|
thereafter, all actions or suits, including the defense of
|
confiscation, attacking the regularity, validity and
|
correctness of the proceeding, including the validity and
|
amount of preliminary fund assessment, shall be perpetually
|
barred] pursuant to the provisions of Section 12-8A-1 NMSA
|
0021| 1978."
|
0022| Section 16. Section 4-45-5 NMSA 1978 (being Laws 1876,
|
0023| Chapter 1, Section 22, as amended) is amended to read:
|
0024| "4-45-5. ACCOUNTS AGAINST COUNTY--APPEAL FROM
|
0025| DISALLOWANCE.--[Sec. 163.] When [any] a claim of [any]
|
- 32 -
0001| a person against a county [shall be] is disapproved in
|
0002| whole or in part by the board of county commissioners,
|
0003| [such] that person may appeal [from] the decision of
|
0004| [such] the board to the district court [for the same
|
county by causing written notice of such appeal to be served on
|
the clerk of such board within thirty days after such decision
|
and executing bond to such county with sufficient security, to
|
be approved by the clerk of said board, conditioned for the
|
faithful prosecution of such appeal and payment of all costs
|
that may be adjudged against such appellant] pursuant to the
|
0011| provisions of Section 12-8A-1 NMSA 1978."
|
0012| Section 17. Section 4-55A-31 NMSA 1978 (being Laws 1980,
|
0013| Chapter 91, Section 31) is amended to read:
|
0014| "4-55A-31. IMPROVEMENT DISTRICT[--NOTICE OF APPEAL]--
|
0015| APPEAL TO DISTRICT COURT[--APPEAL TO SUPREME COURT].--[A.]
|
0016| After an owner has filed a written objection with the county
|
0017| clerk to any reassessment as provided in Section [19 of the
|
County Improvement District Act] 4-55A-18 NMSA 1978 and the
|
0019| board has determined the reassessment, any owner of a tract or
|
0020| parcel of land that is reassessed may [within ten days after
|
the reassessment roll has been ratified by ordinance file a
|
notice of appeal to the district court. The notice to the
|
county clerk shall describe the tract or parcel of land being
|
reassessed and shall state the objections of the appellant to
|
the reassessment.
|
- 33 -
B. Within twenty days after the reassessment roll
|
has been ratified by ordinance, the appellant shall file with
|
the clerk of the district court copies of the:
|
(1) notice of appeal;
|
(2) appeal;
|
(3) reassessment roll;
|
(4) reassessment proceedings, all certified by
|
the county clerk; and
|
(5) a bond to the county conditioned to pay
|
all costs that may be awarded against the appellant in a sum of
|
not less than two hundred dollars ($200), with such security as
|
shall be approved by the district court.
|
C. The case shall:
|
(1) be docketed by the clerk of the district
|
court in the name of the owner taking such appeal against the
|
county as "an equal appeal from reassessments";
|
(2) have preference over all civil cases
|
pending in the district court except proceedings under:
|
(a) the law relating to eminent domain
|
by counties; or
|
(b) actions of forcible entry and
|
detainer; and
|
(3) be tried as in the case of equitable
|
causes, except that no pleadings are necessary.
|
The judgment of the district court shall be to confirm,
|
- 34 -
modify or annul the reassessment insofar as the reassessment
|
affects the tract or parcel of land of the appellant. If the
|
reassessment is confirmed, the fees of the county clerk for
|
copies of the record shall be taxed against the appellant with
|
the other costs.
|
D. On any judgment of the district court, appeal
|
shall be to the supreme court as in other causes. If an appeal
|
is taken to the supreme court, the transcript of the
|
proceedings in the district court shall be filed in the office
|
of the clerk of the supreme court within thirty days after the
|
rendering of the decree being appealed. If the appeal is not
|
filed within the thirty-day period, the appeal shall be
|
forthwith dismissed upon motion. If the appeal is properly
|
prosecuted, the supreme court shall advance the cause on the
|
docket and hear the appeal at the earliest possible
|
opportunity] file a notice of appeal pursuant to the
|
0017| provisions of Section 12-8A-1 NMSA 1978."
|
0018| Section 18. Section 7-8A-16 NMSA 1978 (being Laws 1997,
|
0019| Chapter 25, Section 16) is amended to read:
|
0020| "7-8A-16. APPEAL--ACTION TO ESTABLISH CLAIM.--
|
0021| A. A person aggrieved by a decision of the
|
0022| administrator [or] may file an appeal pursuant to the
|
0023| provisions of Section 12-8A-1 NMSA 1978.
|
0024| B. A person whose claim has not been acted upon
|
0025| within ninety days after its filing may maintain an original
|
- 35 -
0001| action to establish the claim in the district court for the
|
0002| first judicial district, naming the administrator as a
|
0003| defendant.
|
0004| C. If the aggrieved person establishes the claim
|
0005| in an action against the administrator, the court may award the
|
0006| claimant reasonable [attorney's] attorney fees."
|
0007| Section 19. Section 7-38-28 NMSA 1978 (being Laws 1973,
|
0008| Chapter 258, Section 68, as amended) is amended to read:
|
0009| "7-38-28. APPEALS FROM ORDERS OF THE DIRECTOR OR COUNTY
|
0010| VALUATION PROTESTS BOARDS.--
|
0011| A. A property owner may appeal an order made by the
|
0012| director or a county valuation protests board by filing [with
|
the court of appeals a notice of appeal within thirty days, or
|
such other time prescribed by the Rules of Appellate Procedure,
|
SCRA 1986, of the date the order was made. A copy of the
|
notice of appeal shall be mailed to the director. The appeal
|
shall be on the record made at the hearing or upon a
|
stipulation submitted by both the valuation authority and the
|
property owner and shall not be de novo. The procedure for
|
perfecting an appeal under this section to the court of appeals
|
shall be as provided by the Rules of Appellate Procedure, SCRA
|
1986.
|
B. Upon appeal, the court shall set aside a
|
decision and order of the director or a county valuation
|
protests board only if it is found to be:
|
- 36 -
(1) arbitrary, capricious or an abuse of
|
discretion;
|
(2) not supported by substantial evidence in
|
the record taken as a whole; or
|
(3) otherwise not in accordance with law] an
|
0006| appeal pursuant to the provisions of Section 12-8A-1 NMSA
|
0007| 1978.
|
0008| [C.] B. The director shall notify the
|
0009| appropriate county assessor of the decision and order of the
|
0010| district court [of appeals] and shall direct the assessor
|
0011| to take appropriate action to comply with the decision and
|
0012| order."
|
0013| Section 20. Section 10-7D-23 NMSA 1978 (being Laws 1992,
|
0014| Chapter 9, Section 23) is amended to read:
|
0015| "10-7D-23. JUDICIAL ENFORCEMENT--STANDARD OF REVIEW.--
|
0016| A. The board or a local board may request the
|
0017| district court to enforce [any] an order issued pursuant to
|
0018| the Public Employee Bargaining Act, including those for
|
0019| appropriate temporary relief and restraining orders. The court
|
0020| shall consider the request for enforcement on the record made
|
0021| before the board or local board. It shall uphold the action of
|
0022| the board or local board and take appropriate action to enforce
|
0023| it unless it concludes that the order is:
|
0024| (1) arbitrary, capricious or an abuse of
|
0025| discretion;
|
- 37 -
0001| (2) not supported by substantial evidence on
|
0002| the record considered as a whole; or
|
0003| (3) otherwise not in accordance with law.
|
0004| B. [Any] A person or party, including [any]
|
0005| a labor organization affected by a final [regulation]
|
0006| rule, order or decision of the board or a local board, may
|
0007| appeal to the district court for further relief [All such
|
appeals shall be based upon the record made at the board or
|
local board hearing. All such appeals to the district court
|
shall be taken within thirty days of the date of the final
|
regulation, order or decision of the board or local board.
|
Actions taken by the board or local board shall be affirmed
|
unless the court concludes that the action is:
|
(1) arbitrary, capricious or an abuse of
|
discretion;
|
(2) not supported by substantial evidence on
|
the record taken as a whole; or
|
(3) otherwise not in accordance with law]
|
0019| pursuant to the provisions of Section 12-8A-1 NMSA 1978."
|
0020| Section 21. Section 10-9-18 NMSA 1978 (being Laws 1980,
|
0021| Chapter 47, Section 2) is amended to read:
|
0022| "10-9-18. APPEALS BY EMPLOYEES TO THE BOARD.--
|
0023| A. [Any] An employee who is dismissed, demoted
|
0024| or suspended may, within thirty days after the dismissal,
|
0025| demotion or suspension, appeal to the board. The appealing
|
- 38 -
0001| employee and the agency whose action is reviewed have the right
|
0002| to be heard publicly and to present facts pertinent to the
|
0003| appeal.
|
0004| B. [Any] An applicant denied permission to take
|
0005| an examination or who is disqualified may appeal to the board.
|
0006| C. The technical rules of evidence shall not apply
|
0007| to appeals to the board.
|
0008| D. A record shall be made of the hearing which
|
0009| shall be transcribed if there is an appeal to the district
|
0010| court. Costs of [such] the transcripts, including one copy
|
0011| for the board, shall be paid initially by the agency. The cost
|
0012| of [such] the transcripts may be [assesed] assessed by
|
0013| the court to the losing party on appeal.
|
0014| E. The board may designate a hearing officer who
|
0015| may be a member of the board or any qualified state employee to
|
0016| preside over and take evidence at any hearing held pursuant to
|
0017| this section. The hearing officer shall prepare and submit to
|
0018| the board a summary of the evidence taken at the hearing and
|
0019| proposed findings of fact. The board shall render a decision
|
0020| which shall include findings of fact and conclusions of law.
|
0021| F. If the board finds that the action taken by the
|
0022| agency was without just cause, the board may modify the
|
0023| disciplinary action or order the agency to reinstate the
|
0024| appealing employee to his former position or to a position of
|
0025| like status and pay. Every consideration shall be given to
|
- 39 -
0001| placing the appealing employee in the same geographical
|
0002| location in which he was employed prior to the disciplinary
|
0003| action. The board may recommend that the appealing employee be
|
0004| reinstated by an agency other than the one who disciplined the
|
0005| appealing employee. When the board orders an agency to
|
0006| reinstate an appealing employee, [such] the reinstatement
|
0007| shall be effective within thirty days of the board's order.
|
0008| The board may award back pay as of the date of the dismissal,
|
0009| demotion or suspension or as of [such] the later date as
|
0010| the board may specify.
|
0011| G. [Any] A party aggrieved by the decision of
|
0012| the board made pursuant to this section may appeal the decision
|
0013| to the district court [for the district in which he resides,
|
is employed or maintains his principal office or for the
|
district of Santa Fe county. Such appeal shall be initiated by
|
filing a notice of appeal with the clerk of the appropriate
|
district court within thirty days after the service of a
|
written copy of the decision of the board on that party. Upon
|
appeal, the district court shall affirm the decision of the
|
board unless the decision is found to be:
|
(1) arbitrary, capricious or an abuse of
|
discretion;
|
(2) not supported by substantial evidence; or
|
(3) otherwise not in accordance with law.
|
H. An appeal from the decision of the district
|
- 40 -
court may be taken to the court of appeals in accordance with
|
the rules of civil procedure] pursuant to the provisions of
|
0003| Section 12-8A-1 NMSA 1978."
|
0004| Section 22. Section 10-11-120 NMSA 1978 (being Laws
|
0005| 1987, Chapter 253, Section 120, as amended) is amended to read:
|
0006| "10-11-120. DENIAL OF BENEFIT CLAIM--APPEALS.--
|
0007| A. A benefit claimant shall be notified in writing
|
0008| of a denial of a claim for benefits within thirty days of the
|
0009| denial. The notification shall give the reason for the denial.
|
0010| A claimant may appeal the denial and request a hearing. The
|
0011| appeal shall be in writing filed with the association within
|
0012| ninety days of the denial. The appeal shall contain a
|
0013| statement of the claimant's reason for claiming the denial to
|
0014| be improper. The retirement board shall schedule a de novo
|
0015| hearing of the appeal before the retirement board or, at the
|
0016| discretion of the retirement board, a designated hearing
|
0017| officer or committee of the retirement board within sixty days
|
0018| of receipt of the appeal. A final decision on the matter being
|
0019| appealed shall be made by the retirement board.
|
0020| B. Appeals from a final decision of the retirement
|
0021| board [shall be made to the first judicial district court and
|
initiated by filing a notice of appeal with the district court
|
within thirty days after the retirement board has issued its
|
final decision. The review of the district court shall be
|
restricted to the record made before the retirement board, and
|
- 41 -
the district court shall not permit the introduction of new
|
evidence on any of the issues presented before the retirement
|
board. The decision of the retirement board shall be upheld by
|
the district court unless the district court finds the decision
|
of the retirement board to be unlawful, arbitrary or capricious
|
or not supported by substantial evidence on the entire record
|
as submitted by the retirement board] may be filed pursuant
|
0008| to the provisions of Section 12-8A-1 NMSA 1978."
|
0009| Section 23. Section 12-8-16 NMSA 1978 (being Laws 1969,
|
0010| Chapter 252, Section 16) is amended to read:
|
0011| "12-8-16. PETITION FOR JUDICIAL REVIEW.--[A.] Any
|
0012| party who has exhausted all administrative remedies available
|
0013| within the agency and who is adversely affected by a final
|
0014| order or decision in an adjudicatory proceeding [whether the
|
order or decision is affirmative or negative in form, is
|
entitled to certain, speedy, adequate and complete judicial
|
review thereof under the Administrative Procedures Act, but
|
nothing in this section prevents resort to other means of
|
review, redress or relief available because of constitutional
|
provisions or otherwise prescribed by statute. A preliminary
|
procedural or intermediate action or ruling is immediately
|
reviewable if it practically disposes of the merits of the
|
action.
|
B. Any party also has a right to judicial review,
|
including relief deemed appropriate, at any stage of any agency
|
- 42 -
proceeding or other matter before the agency and prior to a
|
final order or decision, or the exhausting of administrative
|
remedies or procedures, upon a showing of serious and
|
irreparable harm, or the lack of an adequate and timely remedy
|
otherwise or upon a showing of other good cause to the
|
satisfaction of the court if the party was required to await a
|
final order or decision or was required to exhaust
|
administrative remedies or procedures.
|
C. Except as the constitution or statutes
|
specifically preclude judicial review or action, any person
|
suffering legal wrong because of any agency action or inaction
|
or adversely affected or aggrieved by the action or inaction,
|
within the meaning of any relevant statute or constitutional
|
provision, is entitled to judicial review thereof and relief.
|
D. All preliminary, procedural or intermediate
|
agency actions or rulings, whether or not directly reviewable,
|
are subject to judicial review upon the review of any final
|
agency action or decision. Except as otherwise expressly
|
required by statute, agency action otherwise final shall be
|
final for the purposes of this section whether or not there has
|
been presented or determined any application for a declaratory
|
order, for any form of reconsideration or for an appeal to
|
superior agency authority, unless the agency has legally
|
required otherwise by rule and has provided that such action
|
meanwhile shall be inoperative.
|
- 43 -
E. The form of proceeding for judicial review shall
|
be any special statutory review proceeding relevant to the
|
subject matter in any court specified by statute or, in the
|
absence or inadequacy thereof, any applicable form of legal
|
action, including actions for declaratory judgments, writs of
|
prohibition or mandatory injunction or habeas corpus or by
|
appeal to the court of appeals.
|
F. In all instances of review by appeal from an
|
agency order or decision under the Administrative Procedures
|
Act, unless otherwise provided by law, proceedings shall be
|
instituted by filing a notice of appeal in the court of appeals
|
within thirty days after the entry of the final agency order or
|
decision.
|
The notice of appeal shall include a concise statement of
|
the facts upon which jurisdiction is based, facts showing that
|
petitioner is aggrieved and the ground or grounds specified in
|
Section 22 of the Administrative Procedures Act upon which
|
petitioner contends he is entitled to relief. The notice shall
|
demand the relief to which petitioner believes he is entitled,
|
which demand may be in the alternative. Copies of the notice
|
shall be served, personally or by certified mail, upon all
|
parties to the agency proceeding no later than ten days after
|
the institution of the proceeding for review. For the purpose
|
of such service, the agency upon request shall certify to the
|
appellant the names and addresses of all parties as disclosed
|
- 44 -
by its records, and service upon parties so certified is
|
sufficient, and proof of service shall be filed in the court of
|
appeals within twenty days after the filing of the petition]
|
0004| may appeal pursuant to the provisions of Section 12-8A-1 NMSA
|
0005| 1978."
|
0006| Section 24. Section 13-1-183 NMSA 1978 (being Laws 1984,
|
0007| Chapter 65, Section 156) is amended to read:
|
0008| "13-1-183. JUDICIAL REVIEW[--LIMITATION--VENUE].--
|
0009| [A.] All actions authorized by the Procurement Code for
|
0010| judicial review of a determination shall be [based upon the
|
records of the central purchasing office and all evidence
|
submitted by the protestant and other interested parties. All
|
actions for judicial review must be filed within thirty days of
|
receipt of notice of the determination as follows:
|
(1) in the first judicial district court in
|
Santa Fe county when the decision to be reviewed is made by a
|
state agency located in Santa Fe county; or
|
(2) in the district court in which a state
|
agency or a local public body is located when the decision to
|
be reviewed is made by a local public body or a state agency
|
not located in Santa Fe county.
|
B. All determinations under the Procurement Code
|
made by a state agency or a local public body shall be
|
sustained unless arbitrary, capricious, contrary to law,
|
clearly erroneous or not based upon substantial evidence]
|
- 45 -
0001| filed pursuant to the provisions of Section 12-8A-1 NMSA
|
0002| 1978."
|
0003| Section 25. Section 13-4-15 NMSA 1978 (being Laws 1963,
|
0004| Chapter 304, Section 5, as amended) is amended to read:
|
0005| "13-4-15. APPEALS.--
|
0006| A. Any interested person may appeal any
|
0007| determination, finding or action of the director of the labor
|
0008| and industrial division of the labor department made pursuant
|
0009| to the Public Works Minimum Wage Act to the labor and
|
0010| industrial commission sitting as the appeals board by filing
|
0011| notice of the appeal with the director within fifteen days
|
0012| after the determination has been issued or notice of the
|
0013| finding or action has been given as provided in the Public
|
0014| Works Minimum Wage Act.
|
0015| B. The labor and industrial commission, sitting as
|
0016| the appeals board, shall adopt [such] rules [and
|
regulations] as it deems necessary for the prompt disposition
|
0018| of appeals. A copy of the rules [and regulations] shall be
|
0019| filed with the librarian of the supreme court law library.
|
0020| C. The appeals board, within ten days after the
|
0021| filing of the appeal, shall set the matter for an oral hearing
|
0022| within thirty days and, following [such] the hearing, shall
|
0023| enter a decision within ten days after the close of the hearing
|
0024| and promptly mail copies of the decision to the parties.
|
0025| D. Decisions of the appeals board may be [reviewed
|
- 46 -
by the district court in Santa Fe county or in the county in
|
which the contract affected is to be performed. Proceedings
|
for review shall be instituted by filing a petition in the
|
court within thirty days after mailing notice of the final
|
decision of the board. Copies of the petition shall be served
|
upon the director of the labor and industrial division of the
|
labor department and all parties of record. The review shall
|
be conducted by the court without a jury and shall be confined
|
to the record of the proceedings before the board. The
|
findings of fact of the board shall be binding upon the
|
district court when supported by substantial evidence. The
|
court may affirm the decision of the board or remand the case
|
for further proceedings. The court may reserve or modify the
|
decision because the administrative findings, inferences,
|
conclusions or decisions are:
|
(1) in violation of constitutional or
|
statutory provisions;
|
(2) in excess of the statutory authority of
|
the board;
|
(3) made upon unlawful procedure;
|
(4) affected by other error of law;
|
(5) clearly erroneous in view of the reliable
|
probative and substantial evidence on the whole record; or
|
(6) arbitrary or capricious or characterized
|
by abusive discretion or clearly unwarranted exercise of
|
- 47 -
discretion.
|
An aggrieved party may obtain a review of any final
|
judgment of the district court made pursuant to the Public
|
Works Minimum Wage Act by appeal to the supreme court, which
|
shall be taken as in other civil cases] appealed pursuant to
|
0006| the provisions of Section 12-8A-1 NMSA 1978."
|
0007| Section 26. Section 17-3-34 NMSA 1978 (being Laws 1912,
|
0008| Chapter 85, Section 35, as amended) is amended to read:
|
0009| "17-3-34. REVOCATION OF LICENSE, CERTIFICATE OR PERMIT
|
0010| FOR VIOLATION OF LAW--NOTICE AND HEARING--JUDICIAL REVIEW.--
|
0011| A. If the holder of any license, certificate or
|
0012| permit [shall] persistently, flagrantly or knowingly
|
0013| [violate] violates or [countenance] countenances the
|
0014| violation of any of the provisions of Chapter [53, NMSA 1953]
|
0015| 17 NMSA 1978 or of any regulations referred to in Section
|
0016| [53-2-9 NMSA 1953]
|
0017| 17-2-10 NMSA 1978, [such] the license, certificate or
|
0018| permit shall be revoked by the state game commission after
|
0019| reasonable notice given the accused of the alleged violation
|
0020| and after the accused is afforded an opportunity [afforded]
|
0021| to appear and show cause against the charges.
|
0022| B. At the hearing, the state game commission shall
|
0023| cause a record of the hearing to be made and shall allow the
|
0024| person charged to examine witnesses testifying at the hearing.
|
0025| Any person whose license, certificate or permit has been
|
- 48 -
0001| revoked by the commission may appeal to the district court
|
0002| [for further relief. Upon appeal, the district court shall
|
set aside the decision only if found to be:
|
(1) arbitrary, capricious or an abuse of
|
discretion;
|
(2) not supported by substantial evidence in
|
the record; or
|
(3) otherwise not in accordance with law]
|
0009| pursuant to the provisions of Section 12-8A-1 NMSA 1978."
|
0010| Section 27. Section 19-7-17 NMSA 1978 (being Laws 1963,
|
0011| Chapter 237, Section 4) is amended to read:
|
0012| "19-7-17. APPEAL.--[Any] A person in interest
|
0013| aggrieved by the decision of the commissioner in fixing the
|
0014| value of improvements or in collecting costs may appeal to the
|
0015| district court [as provided by Sections 7-8-71 through 7-8-73,
|
New Mexico Statutes Annotated, 1953 Compilation. All parties
|
to the appeal shall be entitled to introduce additional
|
evidence as to value] pursuant to the provisions of Section
|
0019| 12-8A-1 NMSA 1978."
|
0020| Section 28. Section 19-7-67 NMSA 1978 (being Laws 1912,
|
0021| Chapter 82, Section 72, as amended) is amended to read:
|
0022| "19-7-67. CONTEST--COMMISSIONER--APPEAL TO DISTRICT
|
0023| COURT[--PROCEDURE].--Sec. 73. [Any] A person aggrieved by
|
0024| [any] a decision of the commissioner may appeal to the
|
0025| district court [of any county wherein any portion of the land
|
- 49 -
as to which any such right, title or interest is in controversy
|
is situated by filing with the commissioner within sixty days
|
after the rendering of any such decision a motion praying such
|
appeal and also a bond, with two or more sufficient sureties,
|
to be approved by the commissioner, conditioned that
|
appellant shall prosecute said appeal with diligence and
|
effect and abide by the decision of said court and pay all
|
costs of such appeal which shall lawfully be adjudged against
|
him. Notice of said motion shall be served upon the adverse
|
party or his attorney at least ten days before the filing
|
thereof] pursuant to the provisions of Section 12-8A-1 NMSA
|
0012| 1978."
|
0013| Section 29. Section 19-10-23 NMSA 1978 (being Laws 1929,
|
0014| Chapter 125, Section 16, as amended) is amended to read:
|
0015| "19-10-23. APPEAL OF COMMISSIONER'S DECISION.--[Any]
|
0016| A person or corporation aggrieved by [any] a ruling or
|
0017| decision of the commissioner affecting his interest in any
|
0018| lease issued under or affected by the provisions relating to
|
0019| oil and gas leases of state lands may [within sixty days after
|
rendering of the order or decision, apply to the district court
|
of the county in which the lands or the greater part of them
|
affected by the order or decision are located for an order
|
directed to the commissioner requiring him to show cause why
|
the order or decision should not be cancelled or set aside.
|
The district court shall have jurisdiction as a court of equity
|
- 50 -
to receive the application, to issue the order and to cancel or
|
set aside the order or decision of the commissioner; provided
|
that not less than twenty days are allowed the commissioner for
|
making return to any order to show cause which may be issued.
|
Any other person interested in the outcome of the controversy
|
may, upon proper showing to the court, be made a party to or be
|
permitted to intervene in the proceeding and have his rights in
|
the subject matter determined. Appeals to and writs of error
|
from the supreme court lie from the decisions of the district
|
court as in other cases] file an appeal pursuant to the
|
0011| provisions of Section 12-8A-1 NMSA 1978."
|
0012| Section 30. Section 21-24-8 NMSA 1978 (being Laws 1971,
|
0013| Chapter 304, Section 8, as amended) is amended to read:
|
0014| "21-24-8. JUDICIAL REVIEW.--Any final determination of
|
0015| the commission respecting the issuance, denial or revocation of
|
0016| a registration may be appealed to the district court pursuant
|
0017| to the provisions of Section 12-8A-1 NMSA 1978."
|
0018| Section 31. Section 22-10-22 NMSA 1978 (being Laws 1967,
|
0019| Chapter 16, Section 124, as amended) is amended to read:
|
0020| "22-10-22. SUSPENSION AND REVOCATION OF CERTIFICATES--
|
0021| APPEAL.--
|
0022| A. The state board may suspend or revoke a
|
0023| certificate held by a certified school instructor or
|
0024| administrator for incompetency, immorality or any other good
|
0025| and just cause.
|
- 51 -
0001| B. A certificate may be suspended or revoked only
|
0002| according to the following procedure:
|
0003| (1) the state board serving written notice of
|
0004| the suspension or revocation on the person holding the
|
0005| certificate in accordance with the law for service of process
|
0006| in civil actions. The notice of the suspension or revocation
|
0007| shall state the grounds for the suspension or revocation of the
|
0008| certificate. The notice of the suspension or revocation shall
|
0009| describe the rights of the person holding the certificate and
|
0010| include instructions for requesting a hearing before the state
|
0011| board. [Such] A hearing shall be requested within thirty
|
0012| days of receipt of the notice of suspension or revocation. If
|
0013| a hearing is requested, the hearing shall be held not more than
|
0014| ninety days from the date of the request for the hearing;
|
0015| (2) the state board or its designated hearing
|
0016| officer conducting a hearing [which] that provides the
|
0017| person holding the certificate, or his attorney, an opportunity
|
0018| to present evidence or arguments on all pertinent issues. A
|
0019| transcript shall be made of the entire hearing conducted by the
|
0020| state board or its designated hearing officer; and
|
0021| (3) the state board rendering a written
|
0022| decision in accordance with the law and based upon evidence
|
0023| presented and admitted at the hearing. The written decision
|
0024| shall include findings of fact and conclusions of law and shall
|
0025| be based upon the findings of fact and the conclusions of law.
|
- 52 -
0001| A written copy of the decision of the state board shall be
|
0002| served upon the person holding the certificate within sixty
|
0003| days from the date of the hearing. Service of the written copy
|
0004| of the decision shall be in accordance with the law for service
|
0005| of process in civil actions or by certified mail to the
|
0006| person's address of record.
|
0007| C. The secretary of the state board, with the
|
0008| approval of the state board or its designated hearing officer,
|
0009| may subpoena witnesses, require their attendance and giving of
|
0010| testimony and require the production of books, papers and
|
0011| records in connection with a hearing held pursuant to the
|
0012| provisions of Subsection B of this section. Also, the state
|
0013| board may apply to the district court for the issuance of
|
0014| subpoenas and subpoenas duces tecum in the name of and on
|
0015| behalf of the state board.
|
0016| D. Any person aggrieved by a decision of the state
|
0017| board, after a hearing pursuant to this section, may appeal the
|
0018| decision to the [court of appeals by filing a notice of appeal
|
with the clerk of the court within thirty days after service of
|
a written copy of the decision of the state board on the
|
person. The cost of transcripts on appeal, including one copy
|
for the use of the state board, shall be borne by the
|
appellant. Upon appeal, the court of appeals shall affirm the
|
decision of the state board unless the decision is found to be:
|
(1) arbitrary, capricious or unreasonable;
|
- 53 -
(2) not supported by substantial evidence; or
|
(3) otherwise not in accordance with law]
|
0003| district court pursuant to the provisions of Sections 12-8A-1
|
0004| NMSA 1978."
|
0005| Section 32. Section 24-1-5 NMSA 1978 (being Laws 1973,
|
0006| Chapter 359, Section 5, as amended) is amended to read:
|
0007| "24-1-5. LICENSURE OF HEALTH FACILITIES--HEARINGS--
|
0008| APPEALS.--
|
0009| A. No health facility shall be operated without a
|
0010| license issued by the department. If a health facility is
|
0011| found to be operating without a license, in order to protect
|
0012| human health or safety, the secretary may issue a cease-and-
|
0013| desist order. The health facility may request a hearing
|
0014| [which] that shall be held in the manner provided in this
|
0015| section. The department may also proceed pursuant to the
|
0016| Health Facility Receivership Act.
|
0017| B. The department is authorized to make inspections
|
0018| and investigations and to prescribe regulations it deems
|
0019| necessary or desirable to promote the health, safety and
|
0020| welfare of persons using health facilities.
|
0021| C. Except as provided in Subsection F of this
|
0022| section, upon receipt of an application for a license to
|
0023| operate a health facility, the department shall promptly
|
0024| inspect the health facility to determine if it is in compliance
|
0025| with all [regulations] rules of the department.
|
- 54 -
0001| Applications for hospital licenses shall include evidence that
|
0002| the bylaws or [regulations] rules of the hospital apply
|
0003| equally to osteopathic and medical physicians. The department
|
0004| shall consolidate the applications and inspections for a
|
0005| hospital that also operates as a hospital-based primary care
|
0006| clinic.
|
0007| D. Upon inspection of any health facility, if the
|
0008| department finds any violation of its [regulations] rules,
|
0009| [it] the department may deny the application for a license,
|
0010| whether initial or renewal, or it may issue a temporary
|
0011| license. A temporary license shall not be issued for a period
|
0012| exceeding one hundred twenty days, nor shall more than two
|
0013| consecutive temporary licenses be issued.
|
0014| E. A one-year nontransferable license shall be
|
0015| issued to any health facility complying with all
|
0016| [regulations] rules of the department. The license shall
|
0017| be renewable for successive one-year periods, upon filing of a
|
0018| renewal application, if the department is satisfied that the
|
0019| health facility is in compliance with all [regulations]
|
0020| rules of the department or, if not in compliance with [any]
|
0021| a [regulation] rule, has been granted a waiver or
|
0022| variance of that [regulation] rule by the department
|
0023| pursuant to procedures, conditions and guidelines adopted by
|
0024| [regulation] rule of the department. Licenses shall be
|
0025| posted in a conspicuous place on the licensed premises, except
|
- 55 -
0001| that child-care centers that receive no state or federal funds
|
0002| may apply for and receive from the department a waiver from the
|
0003| requirement that a license be posted or kept on the licensed
|
0004| premises.
|
0005| F. Any health facility that has been inspected and
|
0006| licensed by the department and that has received certification
|
0007| for participation in federal reimbursement programs and that
|
0008| has been fully accredited by the joint commission on
|
0009| accreditation of health care organizations or the American
|
0010| osteopathic association shall be granted a license renewal
|
0011| based on that accreditation. Health facilities receiving less
|
0012| than full accreditation by the joint commission on the
|
0013| accreditation of health care organizations or by the American
|
0014| osteopathic association may be granted a license renewal based
|
0015| on [such] that accreditation. License renewals shall be
|
0016| issued upon application submitted by the facility upon forms
|
0017| prescribed by the department. This subsection does not limit
|
0018| in any way the department's various duties and responsibilities
|
0019| under other provisions of the Public Health Act or under any
|
0020| other subsection of this section, including any of the
|
0021| department's responsibilities for the health and safety of the
|
0022| public.
|
0023| G. The department may charge a reasonable fee not
|
0024| to exceed three dollars ($3.00) per bed for an in-patient
|
0025| health facility or one hundred dollars ($100) for any other
|
- 56 -
0001| health facility for each license application, whether initial
|
0002| or renewal, of an annual license or the second consecutive
|
0003| issuance of a temporary license. Fees collected shall not be
|
0004| refundable. All fees collected pursuant to licensure
|
0005| applications shall be deposited with the state treasurer for
|
0006| credit to the general fund.
|
0007| H. The department may revoke or suspend the license
|
0008| of [any] a health facility or may impose on [any] a
|
0009| health facility [any] an intermediate sanction and a
|
0010| civil monetary penalty provided in Section 24-1-5.2 NMSA 1978
|
0011| after notice and an opportunity for a hearing before a hearing
|
0012| officer designated by the department to hear the matter and,
|
0013| except for child-care centers and facilities, may proceed
|
0014| pursuant to the Health Facility Receivership Act upon a
|
0015| determination that the health facility is not in compliance
|
0016| with any [regulation] rule of the department. If immediate
|
0017| action is required to protect human health and safety, the
|
0018| secretary may suspend [any] a license or impose [any]
|
0019| an intermediate sanction pending a hearing, provided the
|
0020| hearing is held within five working days of the suspension or
|
0021| imposition of the sanction, unless waived by the licensee, and,
|
0022| except for child-care centers and facilities, may proceed ex
|
0023| parte pursuant to the Health Facility Receivership Act.
|
0024| I. The department shall schedule a hearing pursuant
|
0025| to Subsection H of this section if the department receives a
|
- 57 -
0001| request for a hearing from a licensee:
|
0002| (1) within ten working days after receipt by
|
0003| the licensee of notice of suspension, revocation, imposition of
|
0004| an intermediate sanction or civil monetary penalty or denial of
|
0005| an initial or renewal application;
|
0006| (2) within four working days after receipt by
|
0007| the licensee of an emergency suspension order or emergency
|
0008| intermediate sanction imposition and notice of hearing if the
|
0009| licensee wishes to waive the early hearing scheduled and
|
0010| request a hearing at a later date; or
|
0011| (3) within five working days after receipt of
|
0012| a cease-and-desist order.
|
0013| The department shall also provide timely notice to the
|
0014| licensee of the date, time and place [for] of the hearing,
|
0015| identity of the hearing officer, subject matter of the hearing
|
0016| and alleged violations.
|
0017| J. Any hearing held pursuant to provisions of this
|
0018| section shall be conducted in accordance with adjudicatory
|
0019| hearing rules and procedures adopted by regulation of the
|
0020| department. The licensee has the right to be represented by
|
0021| counsel, to present all relevant evidence by means of witnesses
|
0022| and books, papers, documents, records, files and other evidence
|
0023| and to examine all opposing witnesses who appear on any matter
|
0024| relevant to the issues. The hearing officer has the power to
|
0025| administer oaths on request of any party and issue subpoenas
|
- 58 -
0001| and subpoenas duces tecum prior to or after the commencement of
|
0002| the hearing to compel discovery and the attendance of witnesses
|
0003| and the production of relevant books, papers, documents,
|
0004| records, files and other evidence. Documents or records
|
0005| pertaining to abuse, neglect or exploitation of a resident,
|
0006| client or patient of a health facility or other documents,
|
0007| records or files in the custody of the human services
|
0008| department or the office of the state long-term care ombudsman
|
0009| at the state agency on aging that are relevant to the alleged
|
0010| violations are discoverable and admissible as evidence in any
|
0011| hearing.
|
0012| K. Any party may appeal [to the court of appeals
|
on the record within thirty days after the final decision of
|
the department. The court shall set aside the final decision
|
only if it is found to be arbitrary, capricious or an abuse of
|
discretion; not supported by substantial evidence in the
|
record; outside the authority of the department; or otherwise
|
not in accordance with law] the final decision of the
|
0019| department pursuant to the provisions of Section 12-8A-1 NMSA
|
0020| 1978.
|
0021| L. Every complaint about a health facility received
|
0022| by the department pursuant to this section shall be promptly
|
0023| investigated to substantiate the allegation and to take
|
0024| appropriate action if substantiated. The department shall
|
0025| coordinate with the human services department, the office of
|
- 59 -
0001| the state long-term care ombudsman at the state agency on aging
|
0002| and any other appropriate agency to develop a joint protocol
|
0003| establishing responsibilities and procedures to assure prompt
|
0004| investigation of complaints, including prompt and appropriate
|
0005| referrals and necessary action regarding allegations of abuse,
|
0006| neglect or exploitation of residents, clients or patients in a
|
0007| health facility.
|
0008| M. Complaints received by the department pursuant
|
0009| to this section shall not be disclosed publicly in [such] a
|
0010| manner as to identify any individuals or health facilities if
|
0011| upon investigation the complaint is unsubstantiated.
|
0012| N. Notwithstanding any other provision of this
|
0013| section, where there are reasonable grounds to believe that any
|
0014| child is in imminent danger of abuse or neglect while in the
|
0015| care of a child-care facility, whether or not licensed, or upon
|
0016| the receipt of a report pursuant to Section 32A-4-3 NMSA 1978,
|
0017| the department shall consult with the owner or operator of the
|
0018| child-care facility. Upon a finding of probable cause, the
|
0019| department shall give the owner or operator notice of its
|
0020| intent to suspend operation of the child-care facility and
|
0021| provide an opportunity for a hearing to be held within three
|
0022| working days, unless waived by the owner or operator. Within
|
0023| seven working days from the day of notice, the secretary shall
|
0024| make a decision, and, if it is determined that any child is in
|
0025| imminent danger of abuse or neglect in the child-care facility,
|
- 60 -
0001| the secretary may suspend operation of the child-care facility
|
0002| for a period not in excess of fifteen days. Prior to the date
|
0003| of the hearing, the department shall make a reasonable effort
|
0004| to notify the parents of children in the child-care facility of
|
0005| the notice and opportunity for hearing given to the owner or
|
0006| operator.
|
0007| O. Nothing contained in this section or in the
|
0008| Public Health Act shall authorize either the secretary or the
|
0009| department to make any inspection or investigation or to
|
0010| prescribe any regulations concerning group homes as defined in
|
0011| Section 9-8-13 NMSA 1978 except as are reasonably necessary or
|
0012| desirable to promote the health and safety of persons using
|
0013| group homes."
|
0014| Section 33. Section 25-1-11 NMSA 1978 (being Laws 1977,
|
0015| Chapter 309, Section 11) is amended to read:
|
0016| "25-1-11. JUDICIAL REVIEW OF BOARD AND [AGENCY]
|
0017| DIVISION ACTIONS.--
|
0018| A. [Regulations] Rules adopted by the board are
|
0019| subject to judicial review under the provisions of Section
|
0020| [12-12-13 NMSA 1953] 74-1-9 NMSA 1978.
|
0021| B. Any person to whom the [agency] division
|
0022| denies a permit or whose permit is suspended or revoked by the
|
0023| [agency] division may appeal to the [court of appeals
|
within thirty days of the final agency action. Upon appeal,
|
the court of appeals shall set aside the agency action only if
|
- 61 -
it is found to be:
|
(1) arbitrary, capricious or an abuse of
|
discretion; or
|
(2) otherwise not in accordance with law]
|
0005| district court pursuant to the provisions of Section 12-8A-1
|
0006| NMSA 1978."
|
0007| Section 34. Section 25-3-12 NMSA 1978 (being Laws 1969,
|
0008| Chapter 89, Section 7) is amended to read:
|
0009| "25-3-12. CONDEMNATION AND APPEAL.--The inspector at
|
0010| [slaughtering] official establishments [with state meat
|
inspection service] shall condemn all diseased or otherwise
|
0012| unfit carcasses and parts of carcasses, including the viscera.
|
0013| The condemned parts shall be removed from the slaughtering
|
0014| department of the plant in equipment designated for that
|
0015| purpose and shall be destroyed for food purposes under the
|
0016| supervision of the inspector. If any [slaughtering]
|
0017| official establishment wishes to appeal a decision of an
|
0018| inspector as to carcasses or parts of carcasses [which]
|
0019| that have been condemned, the establishment may appeal the
|
0020| decision to the chief veterinary meat inspector or any
|
0021| veterinarian he designates. If [such] the establishment is
|
0022| not satisfied and wishes to make a further appeal, it may
|
0023| submit [such] an appeal to the board, whose decision shall
|
0024| be final unless the person aggrieved [within ten days after
|
the date of the decision, appeals to the district court of the
|
- 62 -
district in which the licensed premises are located] appeals
|
0002| to the district court pursuant to the provisions of Section 12-
|
0003| 8A-1 NMSA 1978."
|
0004| Section 35. Section 25-3-19 NMSA 1978 (being Laws 1969,
|
0005| Chapter 89, Section 14) is amended to read:
|
0006| "25-3-19. SUSPENSION OR REVOCATION OF INSPECTION SERVICE
|
0007| OR ESTABLISHMENT NUMBER--HEARING--APPEAL.--
|
0008| A. Any license issued by the board or any state
|
0009| meat inspection service or establishment numbers may be
|
0010| suspended or revoked by the board for violation or
|
0011| noncompliance with:
|
0012| (1) any provision of the Meat Inspection Act;
|
0013| or
|
0014| (2) any rule [or regulation] issued pursuant
|
0015| to the Meat Inspection Act.
|
0016| B. State meat inspection service or establishment
|
0017| numbers may be suspended or revoked only after a hearing before
|
0018| the board upon reasonable notice. Notice shall be given the
|
0019| licensee by service of the complaint upon him.
|
0020| C. The decision of the board shall be final in any
|
0021| matter relating to renewal, suspension or revocation of state
|
0022| meat inspection service or establishment numbers unless the
|
0023| person aggrieved [within ten days after the date of the
|
decision, appeals to the district court of the district in
|
which the licensed premises are located. On the appeal, the
|
- 63 -
court shall hear and determine the matter de novo, not more
|
than ten days after the date of filing the appeal. Subsequent
|
to such decision, the person aggrieved may, in compliance with
|
the statutory provisions relating thereto, appeal the decision
|
of the district court to the supreme court of the state, but
|
the suspension or revocation of state meat inspection service
|
or establishment numbers shall remain in full force and effect
|
pending the outcome of the appeal] appeals to the district
|
0009| court pursuant to the provision of Section 12-8A-1 NMSA 1978."
|
0010| Section 36. Section 25-7B-9 NMSA 1978 (being Laws 1993,
|
0011| Chapter 188, Section 28) is amended to read:
|
0012| "25-7B-9. JUDICIAL REVIEW OF DEPARTMENT ACTIONS.--Any
|
0013| person to whom the department denies a permit or whose permit
|
0014| is suspended or revoked by the department may appeal to the
|
0015| [court of appeals within thirty days of the final department
|
action. Upon appeal, the court of appeals shall set aside the
|
department action only if it is found to be:
|
A. arbitrary, capricious or an abuse of discretion;
|
or
|
B. otherwise not in accordance with law] district
|
0021| court pursuant to the provisions of Section 12-8A-1 NMSA
|
0022| 1978."
|
0023| Section 37. Section 27-3-4 NMSA 1978 (being Laws 1973,
|
0024| Chapter 256, Section 4) is amended to read:
|
0025| "27-3-4. [REVIEW AND] APPEAL.--[A.] Within thirty
|
- 64 -
0001| days after receiving written notice of the decision of the
|
0002| director pursuant to Section [3 of the Public Assistance
|
Appeals Act] 27-3-3 NMSA 1978, an applicant or recipient may
|
0004| file a notice of appeal with the [court of appeals, together
|
with a copy of the notice of the decision. The clerk of the
|
court shall transmit a copy of the notice of appeal to the
|
director.
|
B. The filing of a notice of appeal shall not stay
|
the enforcement of the decision of the director, but the
|
department may grant, or the court upon motion and good cause
|
shown may order, a stay.
|
C. Within twenty days after receipt of the notice
|
of appeal, the department shall file with the clerk of the
|
court three copies and furnish to the appellant one copy of the
|
written transcript of the record of the proceedings.
|
D. If before the date set for argument application
|
is made to the court for leave to present additional evidence
|
and the court is satisfied that the additional evidence is
|
material and that there was good reason for not presenting it
|
in the hearing, the court may order the additional evidence
|
taken before the department. If the application to present
|
additional evidence is filed by the department and is approved
|
by the court, the decision of the department which is being
|
appealed shall be stayed. The director may modify his findings
|
and decision by reason of the additional evidence and shall
|
- 65 -
file with the court a transcript of the additional evidence,
|
together with any modified or new findings or decision.
|
E. The review of the court shall be made upon the
|
decision and the record of the proceedings provided for in
|
Section 3 of the Public Assistance Appeals Act.
|
F. The court shall set aside a decision and order
|
of the director only if found to be:
|
(1) arbitrary, capricious or an abuse of
|
discretion;
|
(2) not supported by substantial evidence in
|
the record as a whole; or
|
(3) otherwise not in accordance with law]
|
0013| district court pursuant to the provisions of Section 12-8A-1
|
0014| NMSA 1978."
|
0015| Section 38. Section 27-5-12.1 NMSA 1978 (being Laws
|
0016| 1979, Chapter 146, Section 3, as amended) is amended to read:
|
0017| "27-5-12.1. APPEAL.--[A.] Any hospital or ambulance
|
0018| service aggrieved by any decision of the board may appeal to
|
0019| the district court [for the county in which the board sits.
|
B. The appeal authorized in this section shall be
|
filed within thirty days of the decision of the board from
|
which the appeal is taken.
|
C. The rules of civil procedure shall apply to any
|
appeal filed pursuant to this section] pursuant to the
|
0025| provisions of Section 12-8A-1 NMSA 1978."
|
- 66 -
0001| Section 39. Section 28-17-19 NMSA 1978 (being Laws 1989,
|
0002| Chapter 208, Section 19, as amended) is amended to read:
|
0003| "28-17-19. INTERFERENCE WITH THE OFFICE AND RETALIATION
|
0004| PROHIBITED--PENALTY--CIVIL--APPEAL.--
|
0005| A. No person shall willfully interfere with the
|
0006| lawful actions of the office, including the request for
|
0007| immediate entry into a long-term care facility.
|
0008| B. No person shall institute discriminatory,
|
0009| disciplinary or retaliatory action against any resident,
|
0010| employee or other person for filing a complaint, providing
|
0011| information to or otherwise cooperating with [any] a
|
0012| representative of the office.
|
0013| C. Any person who violates Subsection A of this
|
0014| section shall be subject to a civil penalty of up to five
|
0015| thousand dollars ($5,000) per occurrence. Any person who
|
0016| violates Subsection B of this section shall be subject to a
|
0017| civil penalty of up to ten thousand dollars ($10,000) per
|
0018| occurrence. The agency may assess and collect the penalty
|
0019| after notice and an opportunity for hearing, before a hearing
|
0020| officer designated by the agency to hear the matter, upon a
|
0021| determination that a person willfully interfered with the
|
0022| office or discriminated, disciplined or retaliated against an
|
0023| individual who communicated or disclosed information to the
|
0024| office in good faith pursuant to Subsections A and B of this
|
0025| section. The hearing officer has the power to administer oaths
|
- 67 -
0001| on request of any party and issue subpoenas and subpoenas duces
|
0002| tecum. However, if the violation is against a person covered
|
0003| by the Personnel Act, the office shall refer the matter to the
|
0004| agency employing the person for disciplinary action.
|
0005| D. Any party may appeal to the [court of appeals
|
on the record within thirty days after the final decision of
|
the agency] district court pursuant to the provisions of
|
0008| Section 12-8A-1 NMSA 1978."
|
0009| Section 40. Section 29-2-11 NMSA 1978 (being Laws 1941,
|
0010| Chapter 147, Section 11, as amended) is amended to read:
|
0011| "29-2-11. DISCIPLINARY PROCEEDINGS--APPEAL.--
|
0012| A. No officer of the New Mexico state police
|
0013| holding a permanent commission shall be removed from office,
|
0014| demoted or suspended except for incompetence, neglect of duty,
|
0015| violation of a published rule of conduct, malfeasance in office
|
0016| or conduct unbecoming an officer, except as provided in this
|
0017| section.
|
0018| B. The secretary may suspend an officer for
|
0019| disciplinary reasons for not more than thirty days in
|
0020| accordance with New Mexico state police [regulation] rules.
|
0021| Any officer holding a permanent commission who is suspended by
|
0022| the secretary has the right to have the suspension reviewed by
|
0023| the commission, but without further review or appeal.
|
0024| C. In the event the officer is to be removed from
|
0025| office, demoted or suspended for a period of more than thirty
|
- 68 -
0001| days, specific written charges shall be filed with the
|
0002| commission. Timely and adequate notice of the charges to the
|
0003| person charged shall be provided and a prompt hearing on the
|
0004| charges shall be held by the commission. The person [so]
|
0005| charged has the right to be represented by counsel of his own
|
0006| choice and at his own expense at the hearings. A complete
|
0007| record of the hearing shall be made and, upon request, a copy
|
0008| of it shall be furnished to the person charged. The person may
|
0009| require that the hearing be public.
|
0010| D. In the event the commission finds that the
|
0011| person charged shall be removed, demoted or suspended for a
|
0012| period in excess of thirty days, the person may appeal from the
|
0013| decision of the commission to the district court [of Santa Fe
|
county. The appeal shall be filed within twenty days after the
|
decision of the commission is rendered, and the court shall
|
determine promptly whether there is substantial evidence to
|
support the commission's action and dispose of the appeal
|
accordingly. The determination shall be made on the basis of
|
the record except that, for cause shown, the court shall permit
|
either the secretary or the person charged to introduce new
|
evidence] pursuant to the provisions of Section 12-8A-1 NMSA
|
0022| 1978."
|
0023| Section 41. Section 29-10-8 NMSA 1978 (being Laws 1977,
|
0024| Chapter 339, Section 5) is amended to read:
|
0025| "29-10-8. REVIEW OF ARREST RECORD INFORMATION--
|
- 69 -
0001| APPEAL.--A person who believes that arrest record information
|
0002| concerning him is inaccurate or incomplete [shall] is, upon
|
0003| satisfactory verification of his identity, [be] entitled to
|
0004| review [such] the information and obtain a copy of it for
|
0005| the purpose of challenge or correction. In the event a law
|
0006| enforcement agency refuses to correct challenged information to
|
0007| the satisfaction of the person to whom the inaccurate or
|
0008| incorrect information relates, the person [shall be] is
|
0009| entitled to [petition] appeal to the district court to
|
0010| correct [such] the information pursuant to the provisions
|
0011| of Section 12-8A-1 NMSA 1978."
|
0012| Section 42. Section 32A-2-4 NMSA 1978 (being Laws 1993,
|
0013| Chapter 77, Section 33) is amended to read:
|
0014| "32A-2-4. DETENTION FACILITIES--STANDARDS--REPORTS--
|
0015| APPEALS.--
|
0016| A. The department shall promulgate updated
|
0017| standards for all detention facilities, including standards for
|
0018| [the] site, design, construction, equipment, care, program,
|
0019| personnel and clinical services. The department shall certify
|
0020| as approved all detention facilities in the state meeting the
|
0021| standards promulgated. The department may establish by rule
|
0022| appropriate procedures for provisional certification and the
|
0023| waiving of any of its standards for facilities in existence at
|
0024| the time of the adoption of the standards, except that it shall
|
0025| not allow waiver of any standard pertaining to adequate health
|
- 70 -
0001| and safety protection of the residents and staff of the
|
0002| facility. No child shall be detained in a detention facility
|
0003| unless it is certified as approved by the department, except as
|
0004| otherwise provided in [this article] Chapter 32A, Article 2
|
0005| NMSA 1978.
|
0006| B. The department shall inspect all detention
|
0007| facilities in the state at least once each twelve months and
|
0008| shall require those reports it deems necessary from detention
|
0009| facilities in a form and containing the information determined
|
0010| by the department. If as the result of an inspection a
|
0011| certified detention facility is determined as failing to meet
|
0012| the required standards, its certification is subject to
|
0013| revocation or refusal for renewal by the department.
|
0014| C. The department shall promulgate rules
|
0015| establishing procedures that provide for prior notice and
|
0016| public hearings on detention [facilities] facilities'
|
0017| standards adoption and changes. The department shall also
|
0018| promulgate rules establishing procedures for facility
|
0019| certification, renewal of certification, refusal to renew
|
0020| certification and revocation of certification. The procedures
|
0021| adopted on these matters shall provide for adequate prior
|
0022| notice of intended action by the department, opportunity for
|
0023| the aggrieved person to have an administrative hearing and
|
0024| written notification of the administrative decision. Rules
|
0025| promulgated under this subsection shall not be effective unless
|
- 71 -
0001| filed in accordance with the State Rules Act.
|
0002| D. Any person aggrieved by an administrative
|
0003| decision of the department rendered under the provisions of
|
0004| this section may petition for the review of the administrative
|
0005| decision by [filing a petition requesting judicial review in
|
the district court for the county in which the detention
|
facility involved in the decision is located. The court's
|
review shall be of the written transcript of the administrative
|
hearing and the decision of the department. The court shall
|
uphold the decision of the department unless it finds that
|
decision to be:
|
(1) illegal or unconstitutional;
|
(2) the result of arbitrary or capricious
|
department action; or
|
(3) not supported by substantial evidence;
|
in which cases it shall reverse the department's administrative
|
decision and remand the matter for appropriate action by the
|
department] appealing to the district court pursuant to the
|
0019| provisions of Section 12-8A-1 NMSA 1978.
|
0020| E. After January 1, 1994, no state or county
|
0021| detention facility shall hold juveniles sentenced by a federal
|
0022| court, unless the facility meets state standards promulgated by
|
0023| the department."
|
0024| Section 43. Section 36-1A-9 NMSA 1978 (being Laws 1991,
|
0025| Chapter 175, Section 9) is amended to read:
|
- 72 -
0001| "36-1A-9. APPEALS BY COVERED EMPLOYEES TO THE BOARD--
|
0002| JUDICIAL REVIEW.--
|
0003| A. [Any] A covered employee who is dismissed,
|
0004| demoted or suspended may, within thirty days after the
|
0005| dismissal, demotion or suspension, appeal to the board. The
|
0006| appellant and the agency whose action is reviewed shall have
|
0007| the right to be heard publicly and to present facts pertinent
|
0008| to the appeal.
|
0009| B. Formal rules of evidence shall not apply to
|
0010| appeals to the board.
|
0011| C. A record shall be made of the hearing, which
|
0012| shall be transcribed if there is an appeal to the district
|
0013| court. The cost of transcripts may be assessed by the court to
|
0014| the losing party on appeal.
|
0015| D. Appeals may be heard, at the election of the
|
0016| appellant, either by the board or by a hearing officer selected
|
0017| by the state personnel office. If the appellant does not elect
|
0018| to have his case heard by a state-personnel-office-designated
|
0019| hearing officer as provided in this section, the board may
|
0020| designate a hearing officer who may be a member of the board to
|
0021| preside over and take evidence at any hearing held pursuant to
|
0022| this section. This latter hearing officer shall prepare and
|
0023| submit to the board a summary of the evidence taken at the
|
0024| hearing and proposed findings of fact. The board shall render
|
0025| a final decision on the appeal, which shall include findings of
|
- 73 -
0001| fact and conclusions of law.
|
0002| E. If the appellant chooses to have his case heard
|
0003| by a state-personnel-office-designated hearing officer, the
|
0004| appellant shall elect in writing within twenty days after
|
0005| filing the notice of appeal to have his appeal heard solely by
|
0006| a state-personnel-office-designated hearing officer. In the
|
0007| event of that election, the board shall promptly make that
|
0008| request to the state personnel office and promptly execute any
|
0009| and all documents necessary to implement this election. The
|
0010| state personnel office shall promptly arrange for the hearing
|
0011| officer without charge. This hearing officer shall have all of
|
0012| the rights, duties and responsibilities provided to the board
|
0013| by the District Attorney Personnel and Compensation Act, and
|
0014| that hearing officer's decision shall be binding and of the
|
0015| same force and effect as if the board itself had rendered the
|
0016| final decision.
|
0017| F. If the board or the state-personnel-office-
|
0018| designated hearing officer finds that the action taken was
|
0019| without just cause, the board or the state-personnel-office-
|
0020| designated hearing officer may modify the disciplinary action
|
0021| or order the reinstatement of the appellant to his former
|
0022| position or to a position of like status and pay. When the
|
0023| board or the state-personnel-office-designated hearing officer
|
0024| orders a reinstatement of an appellant, the reinstatement shall
|
0025| be effective within thirty days after the service of a written
|
- 74 -
0001| copy of the decision on the affected party. The board or the
|
0002| state-personnel-office-designated hearing officer may award
|
0003| back pay as of the date of the dismissal, demotion or
|
0004| suspension or as of such later date as the order may specify.
|
0005| G. [Any] A party aggrieved by the decision of
|
0006| the board or the state-personnel-office-designated hearing
|
0007| officer made pursuant to this section may appeal the decision
|
0008| to the district court [in the district in which he resides, is
|
employed or maintains his principal office or to the district
|
court for the district of Santa Fe county. The appeal shall be
|
initiated by filing a notice of appeal with the clerk of the
|
appropriate district court within thirty days after the service
|
on that party of a written copy of the final decision of the
|
board or the state-personnel-office-designated hearing officer.
|
Upon appeal the district court shall affirm the decision of the
|
board or the state-personnel-office-designated hearing officer
|
unless the decision is found to be:
|
(a) arbitrary, capricious or an abuse of
|
discretion;
|
(b) not supported by substantial evidence; or
|
(c) otherwise not in accordance with law.
|
H. An appeal from the decision of the district
|
court may be taken to the court of appeals in accordance with
|
the rules of civil procedure] pursuant to the provisions of
|
0025| Section 12-8A-1 NMSA 1978."
|
- 75 -
0001| Section 44. Section 40-7A-6 NMSA 1978 (being Laws 1981,
|
0002| Chapter 171, Section 6) is amended to read:
|
0003| "40-7A-6. REVOCATION OR SUSPENSION OF LICENSE--NOTICE--
|
0004| REINSTATEMENT--APPEAL.--
|
0005| A. The division may deny, revoke, suspend, place on
|
0006| probation or refuse to renew the license of any child placement
|
0007| agency or foster home for failure to comply with the division's
|
0008| [regulations] rules. The holder of the license sought to
|
0009| be denied, revoked, suspended or placed on probation or
|
0010| [which] that is not renewed shall be given notice in
|
0011| writing of the proposed action and the reason therefor and
|
0012| shall, at a date and place to be specified in the notice, be
|
0013| given a hearing before a hearing officer appointed by the
|
0014| secretary with an opportunity to produce testimony in the
|
0015| holder's behalf and to be assisted by counsel. The hearing
|
0016| shall be held no earlier than twenty days after service of
|
0017| notice thereof unless the time limitations are waived. [Any]
|
0018| A person whose license has been denied, revoked, suspended,
|
0019| placed on probation or not renewed may, on application to the
|
0020| division, have the license issued, reinstated or reissued upon
|
0021| proof that the noncompliance with the [regulations] rules
|
0022| has ceased.
|
0023| B. A person adversely affected by a decision of the
|
0024| division denying, revoking, suspending, placing on probation or
|
0025| refusing to renew a license may obtain a review [thereof] by
|
- 76 -
0001| [filing a petition, duly verified, with the clerk of the
|
district court of the first judicial district within sixty days
|
after entry of the decision. The petition shall set forth
|
specifically the ground for review. A copy of the petition
|
shall be served upon the division by registered mail, return
|
receipt requested. Upon presentation of the petition, the
|
district court may allow a writ of certiorari directed to the
|
division to review its decision and shall prescribe the time in
|
which a return shall be made. Within thirty days after receipt
|
of the petition, the division shall certify and file with the
|
clerk of the court the transcript of the record upon which the
|
decision complained of was entered] appealing to the district
|
0013| court pursuant to the provisions of Section 12-8A-1 NMSA 1978.
|
0014| C. When any license is denied, suspended, revoked
|
0015| or not renewed, the care and custody of any child placed
|
0016| [under] pursuant to the Child Placement Agency Licensing
|
0017| Act shall be transferred to the certifying child placement
|
0018| agency or the division."
|
0019| Section 45. Section 42-3-14 NMSA 1978 (being Laws 1972,
|
0020| Chapter 41, Section 15, as amended) is amended to read:
|
0021| "42-3-14. ADMINISTRATIVE HEARINGS--COURT REVIEW.--
|
0022| A. [Any persons] A person aggrieved by a
|
0023| determination as to eligibility for relocation payments or the
|
0024| amount of payment received under the Relocation Assistance Act
|
0025| shall have the right to a hearing before the displacing agency
|
- 77 -
0001| or before a hearing officer designated by the displacing
|
0002| agency.
|
0003| B. After the hearing, [any] a person aggrieved
|
0004| or affected by a final administrative determination concerning
|
0005| eligibility for relocation payments or the amount of the
|
0006| payment under the Relocation Assistance Act may [have the
|
determination reviewed by the district court in conformance
|
with the rules of civil procedure. All such appeals shall be
|
made:
|
(1) upon the record of the hearing and shall
|
not be de novo; and
|
(2) by filing a notice of appeal in the
|
district court within thirty days of the date of mailing or
|
delivery of the written decision and order of the displacing
|
agency to the person, and if not so taken, the decision and
|
order are conclusive.
|
C. Upon appeal, the court shall set aside a
|
decision and order of the displacing agency only if found to
|
be:
|
(1) arbitrary, capricious or an abuse of
|
discretion;
|
(2) not supported by substantial evidence; or
|
(3) otherwise not in accordance with law]
|
0024| appeal to the district court pursuant to the provisions of
|
0025| Section 12-8A-1 NMSA 1978."
|
- 78 -
0001| Section 46. Section 47-6-15 NMSA 1978 (being Laws 1973,
|
0002| Chapter 348, Section 15, as amended) is amended to read:
|
0003| "47-6-15. APPEALS.--
|
0004| [A. Any party who is or may be adversely affected
|
by a decision of the board of county commissioners in approving
|
or disapproving a preliminary or final plat may appeal to the
|
district court of the county in which the subdivision is
|
located within thirty days of the date of the board's action.
|
B. An appeal is perfected by filing a notice of
|
appeal in the district court. A copy of the notice of appeal
|
shall be served upon the board of county commissioners.
|
C. Upon appeal, the district court shall set aside
|
the action of the board of county commissioners only if it is
|
found to be:
|
(1) arbitrary, capricious or an abuse of
|
discretion;
|
(2) not supported by substantial evidence; or
|
(3) otherwise not in accordance with law.
|
D. Any party to the action in district court may
|
appeal to the court of appeals for further relief.
|
E. Any] A. A party who is or may be adversely
|
0022| affected by a decision of a delegate of the board of county
|
0023| commissioners in approving or disapproving a final plat under
|
0024| summary review shall appeal the delegate's decision to the
|
0025| board of county commissioners within thirty days of the date of
|
- 79 -
0001| the delegate's decision. The board of county commissioners
|
0002| shall hear the appeal and shall render a decision within thirty
|
0003| days of the date the board receives notice of the appeal.
|
0004| Thereafter, the procedure for appealing the decision of the
|
0005| board of county commissioners set out in [Subsections A, B and
|
C] Subsection B of this section shall apply.
|
0007| B. A party who is or may be adversely affected by
|
0008| a decision of the board of country commissions in approving or
|
0009| disapproving a preliminary or final plat may appeal to the
|
0010| district court pursuant to the provisions of Section 12-8A-1
|
0011| NMSA 1978."
|
0012| Section 47. Section 50-9-17 NMSA 1978 (being Laws 1972,
|
0013| Chapter 63, Section 16, as amended) is amended to read:
|
0014| "50-9-17. ENFORCEMENT--APPEALS.--
|
0015| A. If as a result of investigation the department
|
0016| has good cause to believe that any employer is violating any
|
0017| provision of the Occupational Health and Safety Act or any
|
0018| [regulation] rule of the board, the department shall send
|
0019| prompt notice of the violation by certified mail to the
|
0020| employer believed to be in violation. The citation shall
|
0021| describe with particularity the provision of the Occupational
|
0022| Health and Safety Act or [regulation] rule alleged to have
|
0023| been violated. The notice shall also state the time for
|
0024| abatement of the violation. Each citation issued pursuant to
|
0025| this section, or a copy thereof, shall be promptly and
|
- 80 -
0001| prominently posted by the cited employer, as prescribed in
|
0002| [regulations] rules issued by the board, at or near the
|
0003| place where the violation occurred. No citation may be issued
|
0004| under this section after the expiration of six months following
|
0005| the occurrence of any violation. The board may issue a
|
0006| regulation prescribing procedures for the use of a notice in
|
0007| lieu of a citation with respect to de minimis violations that
|
0008| have no direct or immediate relationship to safety or health.
|
0009| B. If the department issues a citation [under]
|
0010| as provided in Subsection A of this section, it shall, within
|
0011| a reasonable time after issuance of the citation, notify the
|
0012| employer by certified mail of the penalty, if any, proposed to
|
0013| be assessed and that the employer has fifteen working days
|
0014| within which to notify the department in writing that he wishes
|
0015| to contest the citation or proposed penalty. If within fifteen
|
0016| working days from the receipt of the notice issued by the
|
0017| department the employer fails to notify the department that he
|
0018| intends to contest the citation or proposed penalty and no
|
0019| notice is filed by an employee or employee representative as
|
0020| provided by Subsection D of this section within [such] that
|
0021| time, the citation and the assessment of penalty, if any, as
|
0022| proposed shall be deemed the final order of the commission and
|
0023| not subject to review by any court or agency.
|
0024| C. If the department has reason to believe that an
|
0025| employer has failed to correct a violation for which a citation
|
- 81 -
0001| has been issued within the abatement period permitted, which
|
0002| period shall not begin to run until the entry of a final order
|
0003| by the commission in the case of any review proceedings under
|
0004| this section initiated by the employer in good faith and not
|
0005| solely for delay or avoidance of penalties, the department
|
0006| shall notify the employer by certified mail of [such] the
|
0007| failure to correct and of the penalty proposed to be assessed
|
0008| by reason of [such] the failure and that the employer has
|
0009| fifteen working days within which to notify the department in
|
0010| writing that he wishes to contest the department's notification
|
0011| or the proposed assessment of penalty. If within fifteen
|
0012| working days from the receipt of notification issued by the
|
0013| department the employer fails to notify the department that he
|
0014| intends to contest the notification or proposed assessment of
|
0015| penalty, the notification and assessment as proposed shall be
|
0016| deemed a final order of the commission and not subject to
|
0017| review by any court or department.
|
0018| D. If any employer notifies the department in
|
0019| writing that he intends to contest the citation issued to him
|
0020| [under] pursuant to provisions of Subsection A or
|
0021| notification issued [under] pursuant to provisions of
|
0022| Subsection B or C of this section or if within fifteen working
|
0023| days of the receipt of notice [under] pursuant to the
|
0024| provisions of this section any employee of an employer [so]
|
0025| cited or any [such] employee's representative files a notice
|
- 82 -
0001| with the department alleging that the period of time fixed in
|
0002| the citation for the abatement of the violation is
|
0003| unreasonable, the department shall provide prompt opportunity
|
0004| for informal administrative review. If the matter is not
|
0005| successfully resolved at the informal administrative review,
|
0006| the petitioner may request a hearing before the commission
|
0007| within fifteen days after the administrative review. The
|
0008| commission shall afford an opportunity for a hearing within
|
0009| thirty days after receipt of [such] the petition. The
|
0010| commission shall thereafter issue an order, based on findings
|
0011| of fact, affirming, modifying or vacating the department's
|
0012| citation or the proposed penalty fixed by the department or
|
0013| directing other appropriate relief. E. At any time
|
0014| prior to the expiration of an abatement period, an employer may
|
0015| notify the department in writing that he is unable to take the
|
0016| corrective action required within the period of abatement. The
|
0017| department shall provide prompt opportunity for informal
|
0018| administrative review. If the matter is not successfully
|
0019| resolved at the informal administrative review, the petitioner
|
0020| may request a hearing before the commission after the
|
0021| administrative review. The commission shall afford prompt
|
0022| opportunity for a hearing after receipt of [such] the
|
0023| petition. The only grounds for modifying an abatement period
|
0024| [under] provided by this subsection are a showing by the
|
0025| employer of a good-faith effort to comply with the abatement
|
- 83 -
0001| requirement of a citation and that abatement has not been
|
0002| completed because of factors beyond the employer's control.
|
0003| F. Affected employees or their representatives
|
0004| shall be provided an opportunity to participate as parties at
|
0005| both informal administrative review and commission hearings
|
0006| [under] provided for in this section.
|
0007| G. Any person, including the department, adversely
|
0008| affected by an order of the commission issued [under]
|
0009| pursuant to provisions of this section may obtain a review of
|
0010| the order in the [court of appeals by filing a notice of
|
appeal in such court within thirty days after issuance of the
|
commission's order. Every person who participated as a party
|
in the proceeding before the commission shall be made a party
|
to the appeal, but the commission shall not be deemed a real
|
party in interest and shall not be so named. The findings of
|
the commission with respect to questions of fact, as supported
|
by substantial evidence, shall be conclusive. Upon appeal, the
|
court may set aside action of the commission only if found to
|
be:
|
(1) arbitrary, capricious or an abuse of
|
discretion;
|
(2) not supported by substantial evidence; or
|
(3) beyond the scope of its legal authority]
|
0024| district court pursuant to the provisions of Section 12-8A-1
|
0025| NMSA 1978."
|
- 84 -
0001| Section 48. Section 53-8-91 NMSA 1978 (being Laws 1975,
|
0002| Chapter 217, Section 89, as amended) is amended to read:
|
0003| "53-8-91. APPEAL FROM CORPORATION COMMISSION.--
|
0004| A. If the corporation commission fails to approve
|
0005| any articles of incorporation, amendment, merger, consolidation
|
0006| or dissolution, or any other document required by the Nonprofit
|
0007| Corporation Act to be approved by the corporation commission
|
0008| before the same is filed in its office, the commission shall,
|
0009| within fifteen working days after the delivery thereof, give
|
0010| written notice of its disapproval to the person or corporation,
|
0011| domestic or foreign, delivering the same, specifying the
|
0012| reasons therefor. The person or corporation may appeal the
|
0013| disapproval to the district court [of the county of Santa Fe
|
by filing with the clerk of the court a petition setting forth
|
a copy of the articles or other document sought to be filed and
|
a copy of the written disapproval thereof by the corporation
|
commission. The matter shall be tried de novo by the district
|
court, and the court shall either sustain the action of the
|
commission or direct it to take such action as the court may
|
deem proper] pursuant to the provisions of Section 12-8A-1
|
0021| NMSA 1978.
|
0022| B. If the corporation commission revokes a
|
0023| certificate of authority to conduct affairs in New Mexico of
|
0024| any foreign corporation or a certificate of incorporation of a
|
0025| domestic corporation, pursuant to the provisions of the
|
- 85 -
0001| Nonprofit Corporation Act, the foreign or domestic corporation
|
0002| may appeal to the district court [of the county of Santa Fe by
|
filing with the clerk of the court a petition setting forth a
|
copy of its certificate of authority or incorporation and a
|
copy of the notice of revocation given by the corporation
|
commission. The matter shall be tried de novo by the district
|
court, and the court shall either sustain the action of the
|
commission or direct it to take such action as the court may
|
deem proper.
|
C. Appeals from all final orders and judgments
|
entered by the district court under this section in review of
|
any ruling or decision of the corporation commission may be
|
taken as in other civil actions] pursuant to the provisions
|
0014| of Section 12-8A-1 NMSA 1978."
|
0015| Section 49. Section 53-18-2 NMSA 1978 (being Laws 1967,
|
0016| Chapter 81, Section 123, as amended) is amended to read:
|
0017| "53-18-2. APPEAL FROM COMMISSION.--
|
0018| A. If the commission fails to approve any articles
|
0019| of incorporation, amendment, merger, consolidation or
|
0020| dissolution or any other document required by the Business
|
0021| Corporation Act to be approved by the commission before it is
|
0022| filed in its office, it shall, within fifteen working days
|
0023| after the delivery thereof to it, give written notice of its
|
0024| disapproval to the person or corporation, domestic or foreign,
|
0025| delivering the same, specifying the reasons therefor. From the
|
- 86 -
0001| disapproval, the person or corporation may appeal to the
|
0002| district court [of Santa Fe county by filing with the clerk of
|
the court a petition setting forth the articles or other
|
document sought to be filed and a copy of the written
|
disapproval thereof by the commission, whereupon the matter
|
shall be tried de novo by the court, and the court shall either
|
sustain the action of the commission or direct it to take
|
action the court may deem proper] pursuant to the provisions
|
0009| of Section 12-8A-1 NMSA 1978.
|
0010| B. If the commission revokes the certificate of
|
0011| authority to transact business in this state of any foreign
|
0012| corporation pursuant to the provisions of the Business
|
0013| Corporation Act, the foreign corporation may appeal to the
|
0014| district court [of Santa Fe county by filing with the clerk of
|
the court a petition setting forth a copy of its certificate of
|
authority to transact business in this state and a copy of the
|
notice of revocation given by the commission, whereupon the
|
matter shall be tried de novo by the court, and the court shall
|
either sustain the action of the commission or direct it to
|
take action the court may deem proper.
|
C. Appeals from all final orders and judgments
|
entered by the district court of Santa Fe county under this
|
section in review of any ruling or decision of the commission
|
may be taken as in other civil actions] pursuant to the
|
0025| provisions of Section 12-8A-1 NMSA 1978."
|
- 87 -
0001| Section 50. Section 53-19-67 NMSA 1978 (being Laws 1993,
|
0002| Chapter 280, Section 67) is amended to read:
|
0003| "53-19-67. APPEAL FROM COMMISSION.--[A.] If the
|
0004| commission fails to approve any articles of organization,
|
0005| articles of amendment, articles of merger or consolidation or
|
0006| articles of dissolution or any other document required or
|
0007| permitted by the Limited Liability Company Act to be approved
|
0008| by the commission before it is filed in its office, it shall,
|
0009| within fifteen working days after the delivery thereof to it,
|
0010| give written notice of its disapproval to the person delivering
|
0011| the same, specifying the reasons therefor. From the
|
0012| disapproval, the person may appeal to the district court [of
|
Santa Fe county by filing with the clerk of the court a
|
petition setting forth the articles or other document sought to
|
be filed and a copy of the written disapproval thereof by the
|
commission, whereupon the matter shall be tried de novo by the
|
court, and the court shall either sustain the action of the
|
commission or direct it to take action the court may deem
|
proper.
|
B. Appeals from all final orders and judgments
|
entered by the district court of Santa Fe county under this
|
section in review of any ruling or decision of the commission
|
may be taken as in other civil actions] pursuant to the
|
0024| provisions of Section 12-8A-1 NMSA 1978."
|
0025| Section 51. Section 57-19-36 NMSA 1978 (being Laws 1993,
|
- 88 -
0001| Chapter 98, Section 12) is amended to read:
|
0002| "57-19-36. PENALTIES--ADMINISTRATIVE PROCEDURES--
|
0003| APPEALS.--
|
0004| A. No person, by himself, by his servant or agent
|
0005| or as the servant or agent of another person shall:
|
0006| (1) violate the provisions of the Petroleum
|
0007| Products Standards Act;
|
0008| (2) violate any regulation adopted pursuant to
|
0009| the Petroleum Products Standards Act; or
|
0010| (3) misrepresent a petroleum product as
|
0011| meeting the standards of the Petroleum Products Standards Act.
|
0012| B. Any person who violates Subsection A of this
|
0013| section [shall be] is guilty of a petty misdemeanor and
|
0014| shall be sentenced in accordance with the provisions of Section
|
0015| 31-19-1 NMSA 1978.
|
0016| C. The board shall establish a system of
|
0017| administrative penalties for violations of the Petroleum
|
0018| Products Standards Act. The administrative penalties may be
|
0019| assessed by the director in lieu of or in addition to other
|
0020| penalties provided by statute. In establishing the system of
|
0021| administrative penalties, the board, after public notice and
|
0022| public hearing, shall adopt [regulations] rules that meet
|
0023| the following minimum requirements:
|
0024| (1) the maximum amount of any administrative
|
0025| penalty shall not exceed one thousand dollars ($1,000) for any
|
- 89 -
0001| one violation of the Petroleum Products Standards Act by any
|
0002| person;
|
0003| (2) violations for which administrative
|
0004| penalties may be assessed shall be clearly defined, along with
|
0005| a scale of administrative penalties relating the amount of the
|
0006| administrative penalty to the severity and frequency of the
|
0007| violation;
|
0008| (3) provisions shall be included for due
|
0009| process, including proper notification of administrative
|
0010| proceedings, right to discovery of charges and evidence and
|
0011| appeal procedures; and
|
0012| (4) prior to assessing administrative
|
0013| penalties pursuant to the provisions of the Petroleum Products
|
0014| Standards Act, the department shall comply with Paragraphs (2)
|
0015| and (3) of this subsection.
|
0016| D. Appeals from decisions of the director regarding
|
0017| the assessment of an administrative penalty shall be to the
|
0018| district court [in the county where the violation is alleged
|
to have occurred. The appeal shall be limited to the record of
|
the administrative proceedings, except that in cases of alleged
|
irregularities not shown in the record, testimony may be
|
taken] pursuant to the provisions of Section 12-8A-1 NMSA
|
0023| 1978."
|
0024| Section 52. Section 58-1-45 NMSA 1978 (being Laws 1963,
|
0025| Chapter 305, Section 34) is amended to read:
|
- 90 -
0001| "58-1-45. COURT REVIEW.--[A.] Any person aggrieved
|
0002| and directly affected by an order of the [commissioner]
|
0003| director may appeal to the district court [in the county in
|
which said person resides or maintains his principal office
|
within thirty days after issuance of the order. The filing of
|
a petition for review shall not stay enforcement of an order,
|
but the court may order a stay upon such terms as it deems
|
proper.
|
B. The court may affirm the order of the
|
commissioner, may direct the commissioner to take action as may
|
be affirmatively required by law or may reverse or modify the
|
order of the commissioner if the court finds the order:
|
(1) was issued pursuant to an unconstitutional
|
statutory provision;
|
(2) was in excess of statutory authority;
|
(3) was issued upon unlawful procedure; or
|
(4) is not supported by substantial evidence
|
in the record.
|
Due weight shall be accorded the experience, technical
|
competence and specialized knowledge of the commissioner as
|
well as the discretionary authority conferred upon him.
|
C. The decision of the district court shall be
|
subject to appeal as in other civil cases] pursuant to the
|
0024| provisions of Section 12-8A-1 NMSA 1978."
|
0025| Section 53. Section 58-10-13 NMSA 1978 (being Laws 1967,
|
- 91 -
0001| Chapter 61, Section 13) is amended to read:
|
0002| "58-10-13. REFUSAL OF CHARTER APPLICATION--APPEAL.--
|
0003| A. Whenever the supervisor is unable to make the
|
0004| findings required by Section [12 of the Savings and Loan Act]
|
0005| 58-10-12 NMSA 1978, he shall serve upon each party of record
|
0006| and his attorney, if any, a written copy of his decision
|
0007| denying the application by certified mail to the party's
|
0008| address of record. All parties shall be deemed to have been
|
0009| served on the tenth day following the mailing. The decision
|
0010| shall include:
|
0011| (1) findings of fact made by the supervisor;
|
0012| (2) conclusions of law reached by the
|
0013| supervisor; and
|
0014| (3) the decision of the supervisor based upon
|
0015| the findings of fact and conclusions of law.
|
0016| B. Any party aggrieved by the decision of the
|
0017| supervisor may appeal the decision to the district court [of
|
the county in which the principal office of the association is
|
located by filing a notice of appeal with the clerk of the
|
court within thirty days after service of the decision of the
|
supervisor. Notice of the appeal shall be served on the
|
supervisor and all parties of record in the manner provided by
|
law for the service of a summons in civil actions. The notice
|
of appeal shall contain a certification that arrangements have
|
been made with the supervisor for preparation at the
|
- 92 -
appellant's expense of a sufficient number of copies of the
|
record of the hearing. The record of the hearing shall
|
include:
|
(1) all pleadings, motions and intermediate
|
rulings;
|
(2) evidence received or considered;
|
(3) a statement of matters officially noticed;
|
(4) questions and offers of proof, objections
|
and rulings thereon;
|
(5) any proposed findings submitted;
|
(6) the decision of the supervisor and any
|
decision, opinion or report by any hearing examiner conducting
|
the hearing; and
|
(7) a transcript of the testimony presented.
|
C. Upon review, the district court shall not
|
consider any errors in the decision of the supervisor which
|
were not raised in the hearing before the supervisor. The
|
review shall be upon the record of the hearing before the
|
supervisor, and no new evidence shall be introduced upon
|
appeal. The decision of the supervisor shall be sustained
|
unless the court finds that the decision was:
|
(1) contrary to law;
|
(2) arbitrary or capricious; or
|
(3) against the clear weight of substantial
|
evidence on the record] pursuant to the provisions of Section
|
- 93 -
0001| 12-8A-1 NMSA 1978."
|
0002| Section 54. Section 58-10-84 NMSA 1978 (being Laws 1967,
|
0003| Chapter 61, Section 81) is amended to read:
|
0004| "58-10-84. WHEN ORDER IS FINAL--APPEAL.--
|
0005| A. If a hearing has been held in regard to an order
|
0006| made [under Sections 78 or 79 the Savings and Loan Act]
|
0007| pursuant to Section 58-10-80 or 58-10-81 NMSA 1978 and the
|
0008| supervisor's order is continued either in its original form or
|
0009| a modified form, the order is final when the supervisor enters
|
0010| his decision in the record of the hearing [his decision]
|
0011| after the hearing. If no hearing is requested on the order,
|
0012| the order is final after the expiration of thirty days from the
|
0013| date the order is entered by the supervisor.
|
0014| B. The supervisor's decision after any hearing
|
0015| under the Savings and Loan Act shall be served on each party of
|
0016| record and shall contain the same elements as required in
|
0017| Section [13 of the Savings and Loan Act] 58-10-13 NMSA
|
0018| 1978. Any party aggrieved by the decision of the supervisor
|
0019| after hearing may appeal to the district court [in the county
|
in which the party resides or in which its principal office is
|
located] pursuant to the provisions of Section 12-8A-1 NMSA
|
0022| 1978."
|
0023| Section 55. Section 58-13A-21 NMSA 1978 (being Laws
|
0024| 1985, Chapter 163, Section 21) is amended to read:
|
0025| "58-13A-21. JUDICIAL REVIEW OF ORDERS.--
|
- 94 -
0001| A. Any person aggrieved by a final order of the
|
0002| director may obtain a review of the order in the [court of
|
appeals by filing in court, within thirty days after the entry
|
of the order, a written petition praying that the order be
|
modified or set aside in whole or in part. A copy of the
|
petition for review shall be served upon the director.
|
B. Upon the filing of a petition for review, except
|
where the taking of additional evidence is ordered by the court
|
pursuant to Subsection E or F of this section, the court shall
|
have exclusive jurisdiction of the matter, and the director may
|
not modify or set aside the order, in whole or part] district
|
0012| court pursuant to the provisions of Section 12-8A-1 NMSA 1978.
|
0013| [C.] B. The filing of [a petition for review
|
under] an appeal pursuant to Subsection A of this section
|
0015| does not, unless specifically ordered by the court, operate as
|
0016| a stay of the director's order, and the director may enforce or
|
0017| ask the court to enforce the order pending the outcome of the
|
0018| review proceedings.
|
0019| [D. Upon receipt of the petition for review, the
|
director shall certify and file in the court a copy of the
|
order and the transcript or record of the evidence upon which
|
it was based. If the order became final by operation of law
|
under Subsection D of Section 20 of the Model State Commodity
|
Code, the director shall certify and file in court the summary
|
order, evidence of its service upon the parties to it and an
|
- 95 -
affidavit certifying that no hearing has been held and the
|
order became final pursuant to Subsection D of Section 20 of
|
the Model State Commodity Code.
|
E. If either the aggrieved party or the director
|
applies to the court for leave to adduce additional evidence
|
and shows to the satisfaction of the court that there were
|
reasonable grounds for failure to adduce the evidence in the
|
hearing before the director or other good cause, the court may
|
order the additional evidence to be taken by the director under
|
such conditions as the court considers proper.
|
F. If new evidence is ordered taken by the court,
|
the director may modify the findings and order by reason of the
|
additional evidence and shall file in the court the additional
|
evidence together with any modified or new findings or order.
|
G. The court shall review the petition based upon
|
the original record before the director as amended under
|
Subsections E and F of this section. The findings of the
|
director as to the facts, if supported by competent, material
|
and substantive evidence, are conclusive. Based upon this
|
review, the court may affirm, modify, enforce or set aside the
|
order, in whole or in part.
|
H. The judgment of the court is subject to review
|
by the supreme court.]"
|
Section 56. Section 58-13B-56 NMSA 1978 (being Laws
|
1986, Chapter 7, Section 56) is amended to read:
|
- 96 -
"58-13B-56. JUDICIAL REVIEW OF ORDERS.--
|
A. Any person aggrieved by a final order of the
|
director may obtain a review of the order in the [court of
|
appeals by filing in court, within thirty days after the entry
|
of the order, a written petition praying that the order be
|
modified or set aside in whole or in part. A copy of the
|
petition for review shall be served upon the director.
|
B. Upon the filing of a petition for review, except
|
where the taking of additional evidence is ordered by the court
|
pursuant to Subsection E or F of this section, the court shall
|
have exclusive jurisdiction of the matter, and the director may
|
not modify or set aside the order, in whole or part] district
|
0013| court pursuant to the provisions of Section 12-8A-1 NMSA 1978.
|
0014| [C.] B. The filing of [a petition for review
|
under] an appeal pursuant to Subsection A of this section
|
0016| does not, unless specifically ordered by the court, operate as
|
0017| a stay of the director's order, and the director may enforce or
|
0018| ask the court to enforce the order pending the outcome of the
|
0019| review proceedings.
|
0020| [D. Upon receipt of the petition for review, the
|
director shall certify and file in the court:
|
(1) a copy of the order; and
|
(2) if the order was issued following a
|
hearing, the transcript or record of the evidence upon which
|
the order was based or, if the order became final by operation
|
- 97 -
of law pursuant to Subsection D of Section 53 of the New Mexico
|
Securities Act of 1986, record of notification to all parties
|
against whom action is taken or contemplated of the entry of
|
the order and an affidavit certifying that no hearing was held
|
because the party requesting a hearing did not appear or the
|
time period for requesting such hearing has expired.
|
E. If either the aggrieved party or the director
|
applies to the court for leave to adduce additional evidence,
|
and shows to the satisfaction of the court that there were
|
reasonable grounds for failure to adduce the evidence at the
|
hearing before the director or other good cause, the court may
|
order the additional evidence to be taken by the director under
|
such conditions as the court considers proper.
|
F. If new evidence is ordered taken by the court,
|
the director may modify the findings and order by reason of the
|
additional evidence and shall file in the court the additional
|
evidence together with any modified or new findings or order.
|
G. The court shall review the petition based upon
|
the original record before the director as amended under
|
Subsections E and F of this section. The findings of the
|
director as to the facts, if supported by competent, material
|
and substantive evidence, are conclusive. Based upon this
|
review, the court may affirm, modify, enforce or set aside the
|
order, in whole or in part.
|
H. The judgment of the court is subject to review
|
- 98 -
by the supreme court.]"
|
0002| Section 57. Section 58-15-25 NMSA 1978 (being Laws 1955,
|
0003| Chapter 128, Section 23, as amended) is amended to read:
|
0004| "58-15-25. REVIEW.--[A. Any interested party to a
|
formal hearing before the director may, within twenty days
|
after written notice of his decision, file an application
|
before the director for a rehearing.
|
B. Within twenty days after notice of the
|
director's decision or of notice that the application for a
|
rehearing is denied, or, if the application is granted, within
|
twenty days after notice of the rendition of a decision on the
|
rehearing, any interested party may apply to the district court
|
of Santa Fe county for a writ of certiorari or review for the
|
purpose of having the lawfulness of the original order inquired
|
into and determined. Such writ shall be made returnable not
|
later than twenty days after the date of the issuance thereof
|
and shall direct the director to certify his record, which
|
shall include all the proceedings and the evidence taken in the
|
case, to the court. No new or additional evidence may be
|
introduced in such court except such as may have been
|
wrongfully excluded by the director, and the cause shall be
|
heard de novo on the law and the facts as disclosed by the
|
record of the director and such additional evidence.
|
C. The director, the attorney general and any
|
party to the hearing or proceeding before the director and any
|
- 99 -
other person the court shall determine to be necessary to a
|
complete adjudication shall have the right to appear in the
|
review proceeding. Upon the hearing, the court shall enter
|
judgment either affirming the director's order or directing
|
what order the director shall issue.
|
D. The provisions of the Code of Civil Procedure
|
relating to writs of certiorari or writ of review shall, so far
|
as applicable and not in conflict with the New Mexico Small
|
Loan Act of 1955, apply to proceedings in the courts under the
|
provisions of the New Mexico Small Loan Act of 1955.
|
E. The writ of injunction shall not be available to
|
any person to suspend or delay the director from conducting
|
hearings relating to the granting or denial of applications for
|
licenses hereunder or revocation or suspension proceedings
|
unless and until the director shall have entered a final order
|
thereon, it being intended that review proceedings
|
hereinabove provided for shall be the exclusive remedy in
|
such matters. No court except the district court of Santa Fe
|
county and the supreme court shall have jurisdiction to review,
|
reverse or annul or to suspend or delay the operation or
|
execution of any order of the director relating to the granting
|
or denial, revocation or suspension of licenses hereunder; but,
|
as regards to any other matter, any person aggrieved by any
|
order or act of the director shall not be limited in his manner
|
or method of proceeding but may proceed by any applicable
|
- 100 -
proceeding provided or recognized by law and] Any licensee or
|
0002| any person [considering himself] aggrieved by any act or
|
0003| order of the director [hereunder other than as above specified
|
may, within thirty days from the entry of the order
|
complained of or within sixty days of the act complained of if
|
there is no order, bring an action in the district court to
|
review such order or act] pursuant to the New Mexico Small
|
0008| Loan Act of 1995 may file and appeal in the district court
|
0009| pursuant to the provisions of Section 12-8A-1 NMSA 1978."
|
0010| Section 58. Section 58-19-4 NMSA 1978 (being Laws 1959,
|
0011| Chapter 204, Section 4, as amended) is amended to read:
|
0012| "58-19-4. SUSPENSION OR REVOCATION OF LICENSES--RENEWAL
|
0013| LICENSE DENIED--APPEALS.--
|
0014| A. Renewal of a license originally granted under
|
0015| the Motor Vehicle Sales Finance Act may be denied or a license
|
0016| may be suspended or revoked by the director on any of the
|
0017| following grounds:
|
0018| (1) material misstatement in application for
|
0019| license;
|
0020| (2) willful failure to comply with any
|
0021| provision of that act relating to retail installment contracts;
|
0022| (3) defrauding any retail buyer to the buyer's
|
0023| detriment while a licensee [hereunder] under that act;
|
0024| (4) fraudulent misrepresentation,
|
0025| circumvention or concealment by the licensee through whatever
|
- 101 -
0001| subterfuge or device of any of the material particulars
|
0002| required to be stated or furnished to the retail buyer under
|
0003| that act; or
|
0004| (5) during the course of examination, the
|
0005| licensee intentionally furnished the examiner or duly
|
0006| authorized representative with false or misleading information
|
0007| so as to prevent discovery of apparent violations of that act.
|
0008| B. If a licensee is a firm, association or
|
0009| corporation, it shall be sufficient cause for the suspension or
|
0010| revocation of a license that any officer, director or trustee
|
0011| of a licensed firm, association or corporation, or any member
|
0012| of a licensed partnership, has [so] acted or failed to act in
|
0013| the conduct of the business under its license as would be cause
|
0014| for suspending or revoking a license to [such] the person
|
0015| as an individual. Each licensee shall be responsible for the
|
0016| acts of any of its employees while acting as its agent, if
|
0017| [such] the licensee after actual knowledge of the acts
|
0018| retained the benefits, proceeds, profits or advantages accruing
|
0019| from the acts or otherwise ratified the acts.
|
0020| C. No license shall be denied, suspended or revoked
|
0021| except after hearing [thereon]. The director shall give the
|
0022| licensee at least ten days' written notice, in the form of an
|
0023| order to show cause, of the time and place of [such] the
|
0024| hearing by certified mail addressed to the principal place of
|
0025| business. The notice shall contain the grounds of complaint
|
- 102 -
0001| against the licensee. Any order suspending or revoking
|
0002| [such] a license shall recite the grounds upon which the
|
0003| [same] order is based. The order shall be entered upon the
|
0004| records of the director and shall not be effective until after
|
0005| thirty days' written notice thereof, given after [such] the
|
0006| entry, forwarded by certified mail to the licensee at [such]
|
0007| his principal place of business. No revocation, suspension
|
0008| or surrender of any license shall impair or affect the
|
0009| obligation of any lawful retail installment contract acquired
|
0010| previously [thereto] by the licensee.
|
0011| [D. Within thirty days after any such denial,
|
suspension or revocation of a license, the person aggrieved may
|
apply for a review thereof by an application to the district
|
court of the county in which the applicant resides in
|
accordance with the practice of the court. The court shall
|
determine, de novo, all questions both of fact and of law
|
touching upon the legality and reasonableness of the
|
determination of the director and shall render such judgment as
|
shall be lawful and just.]
|
0020| D. A person aggrieved by the denial, suspension or
|
0021| revocation of a license may file an appeal to the district
|
0022| court pursuant to the provisions of Section 12-8A-1 NMSA 1978.
|
0023| E. The director shall publish a notice that a
|
0024| license has been revoked or suspended within thirty days after
|
0025| [such] the revocation or suspension in a newspaper of
|
- 103 -
0001| general circulation in the county in which the licensee was
|
0002| doing business."
|
0003| Section 59. Section 58-21-16 NMSA 1978 (being Laws 1983,
|
0004| Chapter 86, Section 16) is amended to read:
|
0005| "58-21-16. REVIEW OF ORDER OF DIRECTOR.--
|
0006| A. Any person aggrieved by a final order of the
|
0007| director may [obtain a review of the order in the district
|
court of the first judicial district of Santa Fe county by
|
filing in court, within thirty days after the entry of the
|
order, a written petition praying that the order be modified or
|
set aside in whole or in part. A copy of the petition shall be
|
served upon the director, and, thereupon, the director shall
|
certify and file in court a copy of the filing and evidence
|
upon which the order was entered. The findings of the director
|
as to the facts, if supported by competent, material and
|
substantial evidence, are conclusive. If either party applies
|
to the court for leave to adduce additional material evidence
|
and shows to the satisfaction of the court that there were
|
reasonable grounds for failure to adduce the evidence in the
|
hearing before the director and to be adduced upon the hearing
|
in such manner and upon such conditions as the court considers
|
proper, the director may modify his findings and order by
|
reason of the additional evidence together with any modified or
|
new findings or order] appeal to the district court pursuant
|
0025| to the provisions of Section 12-8A-1 NMSA 1978.
|
- 104 -
0001| B. The commencement of the proceedings under
|
0002| Subsection A of this section does not, unless specifically
|
0003| ordered by the court, operate as a stay of the director's
|
0004| order."
|
0005| Section 60. Section 58-22-29 NMSA 1978 (being Laws 1983,
|
0006| Chapter 135, Section 29) is amended to read:
|
0007| "58-22-29. REVIEW OF ORDER OF DIRECTOR.--
|
0008| A. Any person aggrieved by a final order of the
|
0009| director may [obtain a review of the order in the district
|
court of the first judicial district of Santa Fe county by
|
filing in court, within thirty days after the entry of the
|
order, a written petition praying that the order be modified or
|
set aside in whole or in part. A copy of the petition shall be
|
forthwith served upon the director, and the director shall
|
certify and file in court a copy of the filing and evidence
|
upon which the order was entered. The findings of the director
|
as to the facts, if supported by competent, material and
|
substantial evidence, are conclusive] appeal to the district
|
0019| court pursuant to the provisions of Section 12-8A-1 NMSA 1978.
|
0020| B. The commencement of proceedings [under]
|
0021| pursuant to Subsection A of this section does not, unless
|
0022| specifically ordered by the court, operate as a stay of the
|
0023| director's order."
|
0024| Section 61. Section 59A-4-20 NMSA 1978 (being Laws 1984,
|
0025| Chapter 127, Section 67, as amended) is amended to read:
|
- 105 -
0001| "59A-4-20. APPEAL TO COURT.--
|
0002| A. A party may appeal from an order of the
|
0003| superintendent made after an informal hearing or an
|
0004| administrative hearing. [and the court shall try the matter de
|
novo; provided that if an administrative hearing was held, the
|
court may, in its discretion, limit its review to that provided
|
in Section 12-8-22 NMSA 1978, in which case Sections 12-8-17
|
through 12-8-22 NMSA 1978 shall apply.
|
B. The appeal shall be taken within sixty days
|
after receipt, by the party appealing, of a copy of the
|
decision from the review of the superintendent's order by the
|
corporation commission or insurance board, if such review is
|
sought. If no such review is sought, the appeal shall be taken
|
within sixty days after receipt of a copy of the
|
superintendent's order by the party appealing.
|
C. The appeal shall be taken to the district court
|
for Santa Fe county in the same manner and under the same rules
|
of pleading, practice and procedure in civil actions as apply
|
to appeals to court from actions of state administrative
|
officers or agencies in general.
|
D. Filing of an appeal pursuant to this section
|
shall not stay the effectiveness of the order on hearing
|
appealed from unless, after notice and opportunity given the
|
parties to be heard and for good cause shown, the court
|
determines that a stay should be granted and would not be
|
- 106 -
detrimental to the interests of any other party or to
|
policyholders, stockholders, creditors or to the public.
|
E. The district court may affirm, reinstate, modify
|
or vacate the order appealed from or remand for rehearing by
|
the superintendent as to designated matters involved in the
|
hearing. The judgment of the district court may be appealed to
|
the court of appeals or to the supreme court of New Mexico.]
|
The appeal shall be taken to the district court pursuant to
|
the provisions of Section 12-8A-1 NMSA 1978.
|
[F.] B. This section shall not apply as to
|
0011| matters arising [under] pursuant to Chapter 59A, Article 17
|
0012| NMSA 1978."
|
0013| Section 62. Section 59A-11A-4 NMSA 1978 (being Laws
|
0014| 1989, Chapter 97, Section 4) is amended to read:
|
0015| "59A-11A-4. INSURANCE CONSULTANT LICENSE--SUSPENSION OR
|
0016| REVOCATION--APPEAL--PENALTY.--
|
0017| A. The superintendent may revoke the license of an
|
0018| insurance consultant or suspend it for a period not exceeding
|
0019| the expiration date of the license for any good cause shown as
|
0020| provided in the Insurance Code. The superintendent shall
|
0021| revoke or suspend a license only upon notice and hearing as
|
0022| provided in the Insurance Code.
|
0023| B. Any person aggrieved by the action of the
|
0024| superintendent in revoking, suspending or refusing to grant,
|
0025| renew or reissue a license may appeal that action [as provided
|
- 107 -
in the Insurance Code] to the district court pursuant to the
|
0002| provisions of Section 12-8A-1 NMSA 1978.
|
0003| C. The superintendent may at any time require such
|
0004| information as he deems necessary in respect to the business
|
0005| methods, policies and transactions of a licensee. Any person
|
0006| who fails or refuses to furnish the superintendent in the form
|
0007| he may require any such information within ten days after
|
0008| receiving a written request for it is guilty of a misdemeanor
|
0009| and upon conviction shall be fined not less than fifty dollars
|
0010| ($50.00) [nor] or more than five hundred dollars ($500)."
|
0011| Section 63. Section 59A-17-35 NMSA 1978 (being Laws
|
0012| 1984, Chapter 127, Section 330, as amended) is amended to read:
|
0013| "59A-17-35. APPEALS FROM INSURANCE BOARD.--[A.] Any
|
0014| order made by the insurance board pursuant to Section 59A-17-34
|
0015| NMSA 1978 shall be subject to review by appeal to the district
|
0016| court [of Santa Fe county in the same manner as provided for
|
taking of appeals in other civil actions] pursuant to the
|
0018| provisions of Section 12-8A-1 NMSA 1978. Upon institution of
|
0019| the appeal and for good cause shown upon motion and hearing,
|
0020| the court may, in the following cases, stay operation of the
|
0021| insurance board's order:
|
0022| [(1)] A. where, pursuant to Chapter 59A,
|
0023| Article 17 NMSA 1978, a rate service organization has been
|
0024| refused a license or an insurer has been refused a certificate
|
0025| of authority or had its license or certificate of authority
|
- 108 -
0001| suspended, it may, with leave of court, be allowed to continue
|
0002| to engage in business, subject to the provisions of that
|
0003| article, pending final disposition of its application for
|
0004| review; or
|
0005| [(2)] B. where any order of the insurance board
|
0006| shall provide for, or sustain the superintendent's order for, a
|
0007| change in any rate or rating system [which] that results in
|
0008| an increase or decrease in rates, any insurer affected
|
0009| [thereby] may, with leave of court pending final disposition
|
0010| of the proceedings in the district court, continue to charge
|
0011| rates [which] that existed prior to such order, on
|
0012| condition that the difference in the rates be deposited in a
|
0013| special escrow or trust account with a reputable financial
|
0014| institution by the insurer affected, to be held in trust by
|
0015| such insurer and to be retained by the insurer or paid to the
|
0016| holders of policies issued after the order of the court, as the
|
0017| court may determine.
|
0018| [B. The court shall sustain the administrative
|
action appealed from unless the court finds such action to have
|
been unlawful or arbitrary or capricious or not based upon
|
substantial evidence and after giving due consideration to the
|
expertise of the superintendent and insurance board.]"
|
0023| Section 64. Section 59A-29-6 NMSA 1978 (being Laws 1985,
|
0024| Chapter 61, Section 6, as amended) is amended to read:
|
0025| "59A-29-6. APPEALS--JUDICIAL REVIEW [DE NOVO].--
|
- 109 -
0001| A. [Any] A person aggrieved by [any] an
|
0002| action or decision of the administrators of the FAIR plan or
|
0003| the underwriting association or of any insurer as a result of
|
0004| its participation [therein] may appeal to the superintendent
|
0005| [of insurance] within thirty days from the date of the action
|
0006| or the decision. The superintendent [of insurance] shall,
|
0007| after hearing held upon thirty days' written notice, issue an
|
0008| order approving the action or decision or disapproving the
|
0009| action or decision with respect to the matter [which] that
|
0010| is the subject of appeal.
|
0011| B. All final orders and decisions of the
|
0012| superintendent [of insurance] shall be subject to judicial
|
0013| review [de novo] in the district court pursuant to the
|
0014| provisions of Section 12-8A-1 NMSA 1978."
|
0015| Section 65. Section 59A-30-9 NMSA 1978 (being Laws 1985,
|
0016| Chapter 28, Section 9) is amended to read:
|
0017| "59A-30-9. REVIEW--APPEALS.--[A. Any] A person
|
0018| aggrieved by an order of the superintendent promulgating rates
|
0019| under the New Mexico Title Insurance Law shall have the rights
|
0020| to review and appeal provided for in [Section] Sections
|
0021| 59A-17-34 [NMSA 1978] and [Section] 59A-17-35 NMSA 1978.
|
0022| [B. Any party may appeal the decision of the
|
district court under Section 59A-17-35 NMSA 1978 to the supreme
|
court in the same manner as provided for the taking of appeals
|
in other civil actions.]"
|
- 110 -
0001| Section 66. Section 59A-42-12 NMSA 1978 (being Laws
|
0002| 1984, Chapter 127, Section 761) is amended to read:
|
0003| "59A-42-12. APPEALS.--
|
0004| A. [Any] A member insurer may appeal to the
|
0005| superintendent from [any] an action of the board of
|
0006| directors of the association by filing with the superintendent
|
0007| a notice of appeal within thirty [(30)] days after the action
|
0008| appealed from.
|
0009| B. [Any] A final order of the superintendent on
|
0010| appeal is subject to judicial review by an action in the
|
0011| district court [of Santa Fe county to set aside the order as
|
being unlawful or not supported by substantial evidence. If an
|
action for judicial review is not filed within thirty (30) days
|
after the superintendent's order on appeal, the order becomes
|
final and conclusive] pursuant to the provisions of
|
0016| Section 12-8A-1 NMSA 1978."
|
0017| Section 67. Section 59A-43-14 NMSA 1978 (being Laws
|
0018| 1984, Chapter 127, Section 780) is amended to read:
|
0019| "59A-43-14. APPEALS.--
|
0020| A. [Any] A claimant whose claim is denied in
|
0021| whole or in part by the association may, pursuant to [this
|
article] Chapter 59A, Article 43 NMSA 1978, request the
|
0023| receivership court to review the decision of the association.
|
0024| [Any such] A request for review shall be filed within
|
0025| thirty [(30)] days of [such] the denial. The
|
- 111 -
0001| receivership court shall have jurisdiction of all [such]
|
0002| claims and the decision of the court shall be binding on both
|
0003| the claimant and the association.
|
0004| B. [Any] A member insurer may appeal to the
|
0005| superintendent from [any] an action of the board of
|
0006| directors of the association by filing with the superintendent
|
0007| a notice of appeal within thirty [(30)] days after the action
|
0008| appealed from.
|
0009| C. [Any] A final order of the superintendent on
|
0010| appeal is subject to judicial review by an action in the
|
0011| district court [of Santa Fe county to set aside the order as
|
being unlawful or not supported by substantial evidence. If an
|
action for judicial review is not filed within thirty (30) days
|
after the superintendent's order on appeal, the order becomes
|
final and conclusive] pursuant to the provisions of Section
|
0016| 12-8A-1 NMSA 1978."
|
0017| Section 68. Section 59A-47-29 NMSA 1978 (being Laws
|
0018| 1984, Chapter 127, Section 879.28) is amended to read:
|
0019| "59A-47-29. SETTLEMENT OF DISPUTES--APPEAL.--The
|
0020| parties to [any] a dispute between a health care plan and
|
0021| [any] a purveyor arising out of a health care expense
|
0022| payments contract may submit the dispute to the superintendent
|
0023| for his final decision [thereon] and [such] his final
|
0024| decision shall then be binding upon the parties to [such]
|
0025| the contract. [except, that any such party, within thirty
|
- 112 -
(30) days following filing of such decision but not thereafter,
|
may file in a court of competent jurisdiction any action or
|
proceeding relating to the subject matter of the dispute which
|
might have been filed in absence of this provision] A party
|
0005| to the contract may seek review of the superintendent's
|
0006| decision by filing an appeal in the district court pursuant to
|
0007| the provisions of Section 12-8A-1 NMSA 1978."
|
0008| Section 69. Section 59A-52-22 NMSA 1978 (being Laws
|
0009| 1984, Chapter 127, Section 968) is amended to read:
|
0010| "59A-52-22. JUDICIAL REVIEW OF ORDER.--[Any] A
|
0011| person [may, within thirty (30) days after the state fire
|
board has filed its decision, appeal to the district court of
|
Santa Fe county for a review of the decision. The appeal shall
|
be taken by filing a petition for review in the district court
|
of Santa Fe county setting forth the grounds of complaint
|
against the decision. All rules of pleading, practice and
|
procedure in force with respect to civil actions shall apply to
|
such actions insofar as they are applicable. The judgment of
|
the district court in any such action may be appealed to the
|
supreme court as in the case of other civil actions]
|
0021| aggrieved by a decision of the state fire board may appeal to
|
0022| the district court pursuant to the provisions of Section 12-8A-
|
0023| 1 NMSA 1978."
|
0024| Section 70. Section 60-2B-4 NMSA 1978 (being Laws 1981,
|
0025| Chapter 259, Section 4, as amended) is amended to read:
|
- 113 -
0001| "60-2B-4. LICENSING AUTHORITY--POWERS--DUTIES--
|
0002| HEARINGS--APPEALS.--
|
0003| A. The regulation and licensing department is
|
0004| designated as the "licensing authority" of the Bingo and Raffle
|
0005| Act. The superintendent of regulation and licensing is the
|
0006| executive in charge of enforcement of the terms and provisions
|
0007| of that act and, as the state licensing authority, has the
|
0008| powers and duties as follows:
|
0009| (1) to grant or refuse licenses under the
|
0010| Bingo and Raffle Act. In addition, the licensing authority has
|
0011| the power, on its own motion based on reasonable grounds or on
|
0012| complaint made and after investigation by the special
|
0013| investigations division of the department of public safety
|
0014| [department] and public hearing at which the licensee shall
|
0015| be afforded an opportunity to be heard, to assess
|
0016| administrative fines to the licensee and to suspend or revoke
|
0017| any license issued by the licensing authority for any violation
|
0018| by the licensee or any officer, director, agent, member or
|
0019| employee of the licensee of the provisions of that act or any
|
0020| rule or regulation authorized under that act. Notice of
|
0021| suspension or revocation, as well as notice of the hearing,
|
0022| shall be given by certified mail to the licensee at the address
|
0023| contained in the license. Any license may be temporarily
|
0024| suspended for a period not to exceed thirty days pending any
|
0025| prosecution, investigation or public hearing;
|
- 114 -
0001| (2) to supervise the administration of the
|
0002| Bingo and Raffle Act and to adopt, amend and repeal rules and
|
0003| regulations governing the holding, operating and conducting of
|
0004| games of chance, the rental of premises and the purchase of
|
0005| equipment to the end that games of chance shall be held,
|
0006| operated and conducted only by licensees for the purposes and
|
0007| in conformity with the constitution of New Mexico and the
|
0008| provisions of that act;
|
0009| (3) to hear and determine at public hearings
|
0010| all complaints against any licensee and to administer oaths and
|
0011| issue subpoenas to require the presence of persons and
|
0012| production of papers, books and records necessary to the
|
0013| determination of any hearing [so] held;
|
0014| (4) to keep records of all actions and
|
0015| transactions of the licensing authority;
|
0016| (5) to prepare and transmit annually, in the
|
0017| form and manner prescribed by the licensing authority pursuant
|
0018| to the provisions of law, a report accounting to the governor
|
0019| and the legislature for the efficient discharge of all
|
0020| responsibilities assigned by law or directive to the licensing
|
0021| authority; and
|
0022| (6) to issue publications of the licensing
|
0023| authority intended for circulation in quantity outside the
|
0024| executive branch in accordance with fiscal rules promulgated by
|
0025| the licensing authority.
|
- 115 -
0001| B. Proceedings brought against a licensee for a
|
0002| violation of the Bingo and Raffle Act shall be brought by the
|
0003| licensing authority by serving, in the manner provided in the
|
0004| rules of civil procedure, a complaint upon the licensee and
|
0005| notifying the licensee of the place and date, not less than
|
0006| twenty days after the date of service, at which a hearing shall
|
0007| be held. The complaint shall set forth, in the manner of
|
0008| complaints in civil action, the violations of the Bingo and
|
0009| Raffle Act or the rules and regulations of the licensing
|
0010| authority [which] that the licensing authority alleges the
|
0011| licensee has committed. The licensing authority or the
|
0012| department of public safety [department] may stop the
|
0013| operation of a game of chance pending hearing, in which case
|
0014| the hearing shall be held within ten days after notice.
|
0015| C. The licensing authority shall cause the notice
|
0016| of hearing to be served personally upon an officer of the
|
0017| licensee or the member in charge of the conduct of the game of
|
0018| chance or to be sent by registered or certified mail to the
|
0019| licensee at the address shown in the license.
|
0020| D. When proceedings are brought against a licensee
|
0021| for a violation of the Bingo and Raffle Act, the licensing
|
0022| authority shall hear the matter and make written findings in
|
0023| support of its decision. The licensee shall be informed
|
0024| immediately of the decision and, in the event of a suspension
|
0025| or revocation, the effective date of the suspension or
|
- 116 -
0001| revocation.
|
0002| E. For the first violation by a licensee of the
|
0003| Bingo and Raffle Act, the licensing authority may assess an
|
0004| administrative fine of not to exceed one thousand dollars
|
0005| ($1,000). For a second or subsequent violation by the licensee
|
0006| of that act, the licensing authority may assess an
|
0007| administrative fine of not to exceed two thousand five hundred
|
0008| dollars ($2,500). The amount of the administrative fine shall
|
0009| be determined by the severity and nature of the violation of
|
0010| the Bingo and Raffle Act and by the number of prior violations
|
0011| of that act.
|
0012| F. When a license is ordered suspended or revoked,
|
0013| the licensee shall surrender the license to the licensing
|
0014| authority on or before the effective date of the suspension or
|
0015| revocation. No license is valid beyond the effective date of
|
0016| the suspension or revocation, whether surrendered or not.
|
0017| G. Upon the finding of a violation of the Bingo and
|
0018| Raffle Act or the rules and regulations, or both, that would
|
0019| warrant the suspension or revocation of a license, the
|
0020| licensing authority, in addition to any other penalties
|
0021| [which] that may be imposed, may declare the violator
|
0022| ineligible to conduct a game of chance and to apply for a
|
0023| license under that act for a period not exceeding twelve
|
0024| months. The declaration of ineligibility may be extended to
|
0025| include, in addition to the violator, any of its subsidiary
|
- 117 -
0001| organizations, its parent organization or an organization
|
0002| otherwise affiliated with the violator when in the opinion of
|
0003| the licensing authority the circumstances of the violation
|
0004| warrant that action.
|
0005| H. Upon receipt by a licensee of a complaint signed
|
0006| by the licensing authority and notice of a hearing, the
|
0007| licensee shall answer, in the manner of civil actions, the
|
0008| complaint and inform the licensing authority whether oral
|
0009| argument is desired and whether the licensee desires to produce
|
0010| witnesses.
|
0011| I. At the request of any party and for good cause
|
0012| shown, the licensing authority or the department of public
|
0013| safety [department] shall issue subpoenas for the attendance
|
0014| of witnesses and the production of books, records and other
|
0015| documents, but in no case shall a subpoena be made returnable
|
0016| more than five days after service.
|
0017| J. Whenever oral testimony of witnesses is taken at
|
0018| the hearing, the licensing authority or the department of
|
0019| public safety [department] shall have a certified reporter
|
0020| present to prepare a record of the proceedings. The original
|
0021| transcript shall be filed with the licensing authority. Any
|
0022| party is entitled to secure a copy from the reporter at his own
|
0023| expense.
|
0024| K. Hearings may be convened by the licensing
|
0025| authority from time to time at the request of any party, but
|
- 118 -
0001| only for good cause shown. Hearings shall be held and
|
0002| concluded with reasonable dispatch and without unnecessary
|
0003| delay. The licensing authority shall decide any matter within
|
0004| thirty days of the hearing.
|
0005| L. Upon the determination of any matter heard, the
|
0006| licensing authority shall state its findings. All parties
|
0007| shall be notified by the licensing authority of the action of
|
0008| the licensing authority and shall be furnished a copy of the
|
0009| findings.
|
0010| M. Applicants for a license or the licensee may be
|
0011| represented by counsel.
|
0012| N. Any person appearing before the licensing
|
0013| authority in a representative capacity shall be required to
|
0014| show his authority to act in that capacity.
|
0015| O. No person shall be excused from testifying or
|
0016| producing any book or document in any investigation or hearing
|
0017| when ordered to do so by the licensing authority upon the
|
0018| ground that testimony or documentary evidence required of him
|
0019| may tend to incriminate or subject him to penalty or
|
0020| forfeiture, but no person may be prosecuted, punished or
|
0021| subjected to any penalty or forfeiture on account of any matter
|
0022| or thing concerning which he, under oath, testified or produced
|
0023| documentary evidence, except that he shall not be exempt from
|
0024| prosecution or punishment for any perjury committed by him in
|
0025| his testimony.
|
- 119 -
0001| P. If a person subpoenaed to attend in any
|
0002| investigation or hearing fails to obey the command of the
|
0003| subpoena without reasonable cause or if a person in attendance
|
0004| in any investigation or hearing refuses, without lawful cause,
|
0005| to be examined or to answer a legal or pertinent question or to
|
0006| exhibit any book, account, record or other document when
|
0007| ordered to do so by the representative of the licensing
|
0008| authority holding the hearing or by the department of public
|
0009| safety [department] performing the investigation, the
|
0010| licensing authority or the department of public safety
|
0011| [department] may apply to any judge of the district court,
|
0012| upon proof by affidavit of the facts, for an order returnable
|
0013| in not less than five nor more than ten days directing the
|
0014| person to show cause before the judge why he should not comply
|
0015| with the subpoena or order.
|
0016| Q. Upon return of the order, the judge before whom
|
0017| the matter comes for hearing shall examine the person under
|
0018| oath. If the judge determines after giving the person an
|
0019| opportunity to be heard that he refused without lawful excuse
|
0020| to comply with the subpoena or the order of the licensing
|
0021| authority or the department of public safety [department]
|
0022| holding the investigation, the judge may order the person to
|
0023| comply with the subpoena or order forthwith, and any failure to
|
0024| obey the order of the judge may be punished as a contempt of
|
0025| the district court.
|
- 120 -
0001| R. Every witness is entitled to be paid for
|
0002| attendance or attendance and travel by the party on whose
|
0003| behalf he is subpoenaed, at the rates prescribed by law, before
|
0004| being required to testify.
|
0005| S. The decision of the licensing authority in
|
0006| suspending or revoking any license under the Bingo and Raffle
|
0007| Act shall be subject to review. [Any licensee aggrieved by a
|
decision, within thirty days after receipt of a copy of the
|
order of the licensing authority, may file a petition in the
|
district court of Santa Fe county. That court has
|
jurisdiction, after notice to the licensing authority, to hear
|
and determine the petition and to affirm, reverse, vacate or
|
modify the order of the licensing authority complained of if,
|
upon consideration of the record, the court is of the opinion
|
that the order was unlawful or unreasonable.
|
T. Upon any petition being filed, a copy shall be
|
served upon the licensing authority by delivery of a copy to
|
the licensing authority. In the petition, the petitioner shall
|
be denominated as respondent. The petition shall set forth the
|
errors complained of.
|
U. Upon service of a petition, the licensing
|
authority, within twenty days or within such further time as
|
the court may grant, shall file an answer to the petition in
|
the office of the clerk of the court. With its answer, the
|
licensing authority shall file a transcript of the records and
|
- 121 -
orders of the licensing authority and a transcript of all
|
papers and of all evidence adduced upon the hearing before the
|
licensing authority in the proceedings complained of. The
|
court shall hear and determine the matter upon the petition,
|
answer and transcripts.] A licensee aggrieved by a decision
|
0006| of the licensing board may appeal to the district court
|
0007| pursuant to the provisions of Section 12-8A-1 NMSA 1978.
|
0008| [V.] T. No proceeding to vacate, reverse or
|
0009| modify any final order rendered by the licensing authority
|
0010| shall operate to stay the execution or effect of any final
|
0011| order unless the district court, on application and three days'
|
0012| notice to the licensing authority, allows the stay. In the
|
0013| event a stay is ordered, the petitioner shall be required to
|
0014| execute his bond in a sum the court may prescribe, with
|
0015| sufficient surety to be approved by the judge or clerk of the
|
0016| court, which bond shall be conditioned upon the faithful
|
0017| performance by the petitioner of his obligation as a licensee
|
0018| and upon the prompt payment of all damages arising from or
|
0019| caused by the delay in the taking effect or enforcement of the
|
0020| order complained of and for all costs that may be assessed or
|
0021| required to be paid in connection with the proceedings."
|
0022| Section 71. Section 60-6B-2 NMSA 1978 (being Laws 1981,
|
0023| Chapter 39, Section 38, as amended) is amended to read:
|
0024| "60-6B-2. APPLICATIONS--APPEALS.--
|
0025| A. Before any new license authorized by the Liquor
|
- 122 -
0001| Control Act may be issued by the director, the applicant for
|
0002| the license shall:
|
0003| (1) submit to the director a written
|
0004| application for the license under oath, in the form prescribed
|
0005| by and stating the information required by the director,
|
0006| together with a nonrefundable application fee of one hundred
|
0007| fifty dollars ($150);
|
0008| (2) submit to the director for his approval a
|
0009| description, including floor plans, in a form prescribed by the
|
0010| director, which shows the proposed licensed premises for which
|
0011| the license application is submitted. The area represented by
|
0012| the approved description shall become the licensed premises;
|
0013| (3) if the applicant is a corporation, be
|
0014| required to submit as part of its application the following:
|
0015| (a) a certified copy of its articles of
|
0016| incorporation or, if a foreign corporation, a certified copy of
|
0017| its certificate of authority;
|
0018| (b) the names and addresses of all
|
0019| officers and directors and those stockholders owning ten
|
0020| percent or more of the voting stock of the corporation and the
|
0021| amounts of stock held by each stockholder; provided, however, a
|
0022| corporation may not be licensed if an officer, manager,
|
0023| director or holder of more than ten percent of the stock would
|
0024| not be eligible to hold a license pursuant to the Liquor
|
0025| Control Act, except that the provision of Subsection [B] D
|
- 123 -
0001| of Section 60-6B-1 NMSA 1978 shall not apply if the stock is
|
0002| listed with a national securities exchange;
|
0003| (c) the name of the resident agent of
|
0004| the corporation authorized to accept service of process for all
|
0005| purposes, including orders and notices of the director, which
|
0006| agent shall be approved by the director with respect to his
|
0007| character;
|
0008| (d) a duly executed power of attorney
|
0009| authorizing the agent described in Subparagraph (c) of this
|
0010| paragraph to exercise full authority, control and
|
0011| responsibility for the conduct of all business and transactions
|
0012| of the corporation within the state relative to the sale of
|
0013| alcoholic beverages under authority of the license requested;
|
0014| and
|
0015| (e) [such] additional information
|
0016| regarding the corporation as the director may require to assure
|
0017| full disclosure of the corporation's structure and financial
|
0018| responsibility;
|
0019| (4) if the applicant is a limited partnership,
|
0020| submit as part of its application the following:
|
0021| (a) a certified copy of its certificate
|
0022| of limited partnership;
|
0023| (b) the names and addresses of all
|
0024| general partners and of all limited partners contributing ten
|
0025| percent or more of the total value of contributions made to the
|
- 124 -
0001| limited partnership or entitled to ten percent or more of the
|
0002| profits earned or other income paid by the limited partnership.
|
0003| No limited partnership shall receive a license if any partner
|
0004| designated in this subsection would not be eligible to hold a
|
0005| license issued pursuant to the Liquor Control Act; and
|
0006| (c) [such] additional information
|
0007| regarding the limited partnership as the director may require
|
0008| to assure full disclosure of the limited partnership's
|
0009| structure and financial responsibility; and
|
0010| (5) obtain approval for the issuance from the
|
0011| governing body of the local option district in which the
|
0012| proposed licensed premises are to be located in accordance with
|
0013| the provisions of the Liquor Control Act.
|
0014| B. Every applicant for a new license or for a
|
0015| transfer of ownership of a license, if an individual or general
|
0016| partnership, shall file with the application two complete sets
|
0017| of fingerprints of each individual, taken under the supervision
|
0018| of and certified to by an officer of the New Mexico state
|
0019| police, a county sheriff or a municipal chief of police. If
|
0020| the applicant is a corporation, it shall file two complete sets
|
0021| of fingerprints for each stockholder holding ten percent or
|
0022| more of the outstanding stock, principal officer, director and
|
0023| the agent responsible for the operation of the licensed
|
0024| business. The fingerprints shall be taken and certified to as
|
0025| provided for an individual or partnership. If the applicant is
|
- 125 -
0001| a limited partnership, it shall file two complete sets of
|
0002| fingerprints for each general partner and for each limited
|
0003| partner contributing ten percent or more of the total value of
|
0004| contributions made to the limited partnership or entitled to
|
0005| ten percent or more of the profits earned or other compensation
|
0006| by way of income paid by the limited partnership. The
|
0007| fingerprints shall be taken and certified to as provided for an
|
0008| individual or partnership.
|
0009| C. Upon submission of a sworn affidavit from each
|
0010| person who is required to file fingerprints stating that the
|
0011| person has not been convicted of a felony in any jurisdiction
|
0012| and pending the results of background investigations, a
|
0013| temporary license for ninety days may be issued. The temporary
|
0014| license may be extended by the director for an additional
|
0015| ninety days if the director determines there is not sufficient
|
0016| time to complete the background investigation or obtain reviews
|
0017| of fingerprints from appropriate agencies. A temporary license
|
0018| shall be surrendered immediately upon order of the director.
|
0019| D. An applicant who files a false affidavit shall
|
0020| be denied a license. When the director determines a false
|
0021| affidavit has been filed, he shall refer the matter to the
|
0022| attorney general or district attorney for prosecution of
|
0023| perjury.
|
0024| E. If an applicant is not a resident of New Mexico,
|
0025| fingerprints may be taken under supervision and certification
|
- 126 -
0001| of comparable officers in the state of residence of the
|
0002| applicant.
|
0003| F. Before issuing a license, the department shall
|
0004| hold a public hearing within thirty days after receipt of the
|
0005| application pursuant to Subsection [H] K of this section.
|
0006| G. An application for transfer of ownership shall
|
0007| be filed with the department no later than thirty days after
|
0008| the date a person acquired an ownership interest in a license;
|
0009| shall contain documentation of the actual purchase price paid
|
0010| for the license, and the actual date of sale of the license;
|
0011| and shall be accompanied by a sworn affidavit from the owner of
|
0012| record of the license agreeing to the sale of the license to
|
0013| the applicant as well as attesting to the accuracy of the
|
0014| information required by this section to be filed with the
|
0015| department. No license shall be transferred unless it will be
|
0016| placed into operation in an actual location within one hundred
|
0017| twenty days of issuance of the license, unless for good cause
|
0018| shown the director grants an additional extension not to exceed
|
0019| one hundred twenty days.
|
0020| H. Whenever it appears to the director that there
|
0021| will be more applications for new licenses than the available
|
0022| number of new licenses during any time period, a random
|
0023| selection method for the qualification, approval and issuance
|
0024| of new licenses shall be provided by the director. The random
|
0025| selection method shall allow each applicant an equal
|
- 127 -
0001| opportunity to obtain an available license, provided that all
|
0002| dispenser's and retailer's licenses issued in any calendar year
|
0003| shall be issued to residents of the state. For the purposes of
|
0004| random selection, the director shall also set a reasonable
|
0005| deadline by which applications for the available licenses shall
|
0006| be filed. No person shall file more than one application for
|
0007| each available license and no more than three applications per
|
0008| calendar year.
|
0009| I. After the deadline set in accordance with
|
0010| Subsection H of this section, no more than ten applications per
|
0011| available license shall be selected at random for priority of
|
0012| qualification and approval. Within thirty days after the
|
0013| random selection for the ten priority positions for each
|
0014| license, a hearing pursuant to Subsection K of this section
|
0015| shall be held to determine the qualifications of the applicant
|
0016| having the highest priority for each available license. If
|
0017| necessary, [such] a hearing shall be held on each selected
|
0018| application by priority until a qualified applicant for each
|
0019| available license is approved. Further random selections for
|
0020| priority positions shall also be held pursuant to this section
|
0021| as necessary.
|
0022| J. All applications submitted for a license shall
|
0023| expire upon the director's final approval of a qualified
|
0024| applicant for that available license.
|
0025| K. The director shall notify the applicant by
|
- 128 -
0001| certified mail of the date, time and place of the hearing. The
|
0002| hearing shall be held in Santa Fe. The director may designate
|
0003| a hearing officer to take evidence at the hearing. The
|
0004| director or the hearing officer shall have the power to
|
0005| administer oaths.
|
0006| L. In determining whether a license shall be
|
0007| issued, the director shall take into consideration all
|
0008| requirements of the Liquor Control Act. In the issuance of a
|
0009| license, the director shall specifically consider the nature
|
0010| and number of prior violations of the Liquor Control Act by the
|
0011| applicant or of any citations issued within the prior five
|
0012| years against a license held by the applicant or in which the
|
0013| applicant had an ownership interest required to be disclosed
|
0014| under the Liquor Control Act. The director shall disapprove
|
0015| the issuance or give preliminary approval of the issuance of
|
0016| the license based upon a review of all documentation submitted
|
0017| and any investigation deemed necessary by the director.
|
0018| M. Before any new license is issued for a location,
|
0019| the director shall cause a notice of the application therefor
|
0020| to be posted conspicuously, on a sign not smaller than thirty
|
0021| inches by forty inches, on the outside of the front wall or
|
0022| front entrance of the immediate premises for which the license
|
0023| is sought or, if no building or improvements exist on the
|
0024| premises, the notice shall be posted at the front entrance of
|
0025| the immediate premises for which the license is sought, on a
|
- 129 -
0001| billboard not smaller than five feet by five feet. The
|
0002| contents of the notice shall be in the form prescribed by the
|
0003| department, and [such] posting shall be over a continuous
|
0004| period of twenty days prior to preliminary approval of the
|
0005| license.
|
0006| N. No license shall be issued until the posting
|
0007| requirements of Subsection M of this section have been met.
|
0008| O. All costs of publication and posting shall be
|
0009| paid by the applicant.
|
0010| P. It is unlawful for any person to remove or
|
0011| deface any notice posted in accordance with this section. Any
|
0012| person convicted of a violation of this subsection shall be
|
0013| punished by a fine of not more than three hundred dollars
|
0014| ($300) or by imprisonment in the county jail for not more than
|
0015| one hundred twenty days or by both.
|
0016| Q. [Any] A person aggrieved by [any] a
|
0017| decision made by the director as to the approval or disapproval
|
0018| of the issuance of a license may appeal to the district court
|
0019| [of jurisdiction by filing a petition in the court within
|
thirty days from the date of the decision of the director, and
|
a hearing on the matter may be held in the district court]
|
0022| pursuant to the provisions of Section 12-8A-1 NMSA 1978. If
|
0023| the disapproval is based upon local option district disapproval
|
0024| pursuant to Subsection H of Section 60-6B-4 NMSA 1978, the
|
0025| local option district shall be a necessary party to any appeal.
|
- 130 -
0001| The decision of the director shall continue in force, pending a
|
0002| reversal or modification by the district court, unless
|
0003| otherwise ordered by the court. [Any appeal from the decision
|
of the district court to the supreme court shall be permitted
|
as in other cases of appeals from the district court to the
|
supreme court.]"
|
0007| Section 72. Section 60-6C-6 NMSA 1978 (being Laws 1981,
|
0008| Chapter 39, Section 102, as amended) is amended to read:
|
0009| "60-6C-6. NO INJUNCTION OR MANDAMUS PERMITTED--APPEAL[-
|
-PREFERENCE--NOTICE OF APPEAL].--
|
0011| A. No injunction or writ of mandamus or other legal
|
0012| or equitable process shall issue in any suit, action or
|
0013| proceeding to prevent or enjoin any finding of guilt or order
|
0014| of suspension or revocation or fine made by a liquor control
|
0015| hearing officer under the provisions of Section 60-6C-4 NMSA
|
0016| 1978. [Any] A licensee aggrieved or adversely affected by
|
0017| [any] an order of revocation, suspension or fine shall have
|
0018| the right to appeal to the district court [of the county in
|
which the licensed premises are located for a judicial review
|
of the order within thirty days of the entry of the order. The
|
appeal shall be taken by filing a petition for review setting
|
forth the grounds of complaint against the order of suspension,
|
revocation or fine. The matter on appeal shall be heard by the
|
court without a jury, and the court shall grant the matter a
|
preference on the docket. The court shall set aside any order
|
- 131 -
of suspension, revocation or fine found to be:
|
(1) arbitrary, capricious, an abuse of
|
discretion or otherwise not in accordance with law;
|
(2) in excess of statutory jurisdiction,
|
authority or limitations or short of statutory right; or
|
(3) unsupported by substantial evidence.
|
B. In making the determinations, the court shall
|
review the entire record or such portions as may be cited by
|
any party. The director shall be given at least ten days'
|
notice before hearing on an appeal may be held. A complete
|
copy of the record of hearing shall be filed in the office of
|
the clerk of the court before the hearing on the appeal, which
|
copy shall be furnished by the department at the request of the
|
licensee or his attorney. The cost of preparation of the
|
hearing record shall be borne by the losing party] pursuant
|
0016| to the provisions of Section 12-8A-1 NMSA 1978.
|
0017| [C.] B. No appeal shall have the effect of
|
0018| suspending the operation of the order of suspension, revocation
|
0019| or fine, but the liquor control hearing officer may, for good
|
0020| cause shown and upon such terms and conditions as he may find
|
0021| are just, in his discretion suspend the operation of the order
|
0022| of suspension, revocation or fine pending the appeal. The
|
0023| court shall tax costs against the losing party.
|
0024| [D. Appeals from the decision of the court to the
|
supreme court of the state may be made in accordance with the
|
- 132 -
rules of the supreme court.]"
|
0002| Section 73. Section 61-1-17 NMSA 1978 (being Laws 1957,
|
0003| Chapter 247, Section 17, as amended) is amended to read:
|
0004| "61-1-17. PETITION FOR REVIEW[--WAIVER OF RIGHT].--
|
0005| [Any] A person entitled to a hearing [under] provided
|
0006| for in the Uniform Licensing Act, who is aggrieved by an
|
0007| adverse decision of a board issued after hearing, may obtain a
|
0008| review of the decision in the district court [of Santa Fe
|
county or in the district court of the county in which the
|
hearing was held or, upon agreement of the parties to the
|
appeal, in any other district court of the state. In order to
|
obtain such review, the person shall, within twenty days after
|
the date of service of the decision as required by Section 61-
|
1-14 NMSA 1978, file with the court a petition for review, a
|
copy of which shall be served on the office of the attorney
|
general and on the board secretary, stating all exceptions
|
taken to the decision and indicating the court in which the
|
appeal is to be heard. The court shall not consider any
|
exceptions not stated in the petition. Failure to file a
|
petition for review in the manner and within the time stated
|
shall operate as a waiver of the right to judicial review and
|
shall result in the decision of the board becoming final,
|
except that for good cause shown, within the time stated, the
|
judge of the district court may issue an order granting one
|
extension of time not to exceed sixty days] pursuant to the
|
- 133 -
0001| provisions of Section 12-8A-1."
|
0002| Section 74. Section 61-1-19 NMSA 1978 (being Laws 1957,
|
0003| Chapter 247, Section 19, as amended) is amended to read:
|
0004| "61-1-19. STAY.--At any time before or during the review
|
0005| proceeding pursuant to Section 61-1-17 NMSA 1978, the
|
0006| aggrieved person may apply to the board or file a motion in
|
0007| accordance with the Rules of Civil Procedure for the District
|
0008| Courts in the reviewing court for an order staying the
|
0009| operation of the board decision pending the outcome of the
|
0010| review. The board or court may grant or deny the stay in its
|
0011| discretion. No [such] order granting or denying a stay shall
|
0012| be reviewable."
|
0013| Section 75. Section 61-14-13 NMSA 1978 (being Laws 1967,
|
0014| Chapter 62, Section 9, as amended) is amended to read:
|
0015| "61-14-13. DENIAL, SUSPENSION OR REVOCATION OF
|
0016| LICENSE.--
|
0017| A. [Upon written complaint by any person and after
|
notice and hearing as prescribed in the Uniform Licensing Act]
|
0019| The board may place a licensee on probation; impose on a
|
0020| licensee an administrative penalty in an amount not to exceed
|
0021| two thousand five hundred dollars ($2,500); reprimand a
|
0022| licensee; deny, suspend for a definite period or revoke
|
0023| [the] a license, certificate or permit of a licensee; or
|
0024| take any other reasonable action as established by the board
|
0025| [This applies to any person whose activities are covered by
|
- 134 -
the Veterinary Practice Act for] if the board determines
|
0002| after receiving a complaint and providing notice and a hearing
|
0003| pursuant to the Uniform Licensing Act that a licensee:
|
0004| (1) has committed an act of fraud,
|
0005| misrepresentation or deception in obtaining a license or
|
0006| permit;
|
0007| (2) [adjudication of insanity] has been
|
0008| adjudicated insane or [manifest incapacity] manifestly
|
0009| incapacitated;
|
0010| (3) [use of] has used advertising or
|
0011| solicitation that is false, misleading or is otherwise deemed
|
0012| unprofessional under [regulations] rules promulgated by the
|
0013| board;
|
0014| (4) [conviction] has been convicted of a
|
0015| felony or other crime involving moral turpitude;
|
0016| (5) is guilty of dishonesty, incompetence,
|
0017| gross negligence or other malpractice in the practice of
|
0018| veterinary medicine;
|
0019| (6) [having] has a professional
|
0020| association with or [employing] employs any person
|
0021| practicing veterinary medicine unlawfully;
|
0022| (7) is guilty of fraud or dishonesty in the
|
0023| application or reporting of any test for disease in animals;
|
0024| (8) [failure] has failed to maintain his
|
0025| professional premises and equipment in a clean and sanitary
|
- 135 -
0001| condition in compliance with facility permit [regulations]
|
0002| rules promulgated by the board;
|
0003| (9) is guilty of habitual or excessive use
|
0004| of intoxicants or drugs;
|
0005| (10) is guilty of cruelty to animals;
|
0006| (11) [revocation of a] has had his license
|
0007| to practice veterinary medicine revoked by another state,
|
0008| territory or district of the United States on grounds other
|
0009| than nonpayment of license or permit fees;
|
0010| (12) is guilty of unprofessional conduct by
|
0011| violation of a [regulation] rule promulgated by the board
|
0012| pursuant to provisions of the Veterinary Practice Act;
|
0013| (13) [failure] has failed to perform as a
|
0014| veterinary technician under the direct supervision of a
|
0015| licensed veterinarian;
|
0016| (14) [failure of] has failed as a licensed
|
0017| veterinarian to reasonably exercise direct supervision with
|
0018| respect to a veterinary technician;
|
0019| (15) is guilty of aiding or abetting the
|
0020| practice of veterinary medicine by a person not licensed,
|
0021| certified or permitted by the board;
|
0022| (16) [using] has used any controlled drug
|
0023| or substance on any animal for the purpose of illegally
|
0024| influencing the outcome of a competitive event;
|
0025| (17) has willfully or negligently
|
- 136 -
0001| [administering] administered a drug or substance that will
|
0002| adulterate meat, milk, poultry, fish or eggs;
|
0003| (18) [failure] has failed to maintain
|
0004| required logs and records;
|
0005| (19) [the use of] has used a prescription
|
0006| or [sale of] has sold any prescription drug or [the
|
prescription of] prescribed extra-label use of any over-the-
|
0008| counter drug in the absence of a valid veterinarian-client-
|
0009| patient relationship;
|
0010| (20) [failure] has failed to report, as
|
0011| required by law, or [making] has made a false report of any
|
0012| contagious or infectious disease; or
|
0013| (21) has engaged in an unfair or deceptive
|
0014| [practices] practice.
|
0015| B. Any person whose license, certificate or permit
|
0016| is suspended or revoked by the board pursuant to provisions of
|
0017| this section may, at the discretion of the board, be relicensed
|
0018| or reinstated by the board at any time without examination upon
|
0019| written application to the board showing cause to justify
|
0020| relicensing or reinstatement."
|
0021| Section 76. Section 61-18A-32 NMSA 1978 (being Laws
|
0022| 1987, Chapter 252, Section 32) is amended to read:
|
0023| "61-18A-32. JUDICIAL REVIEW.--[Any] A person
|
0024| aggrieved by the decision of the director in the enforcement of
|
0025| the Collection Agency Regulatory Act may obtain judicial review
|
- 137 -
0001| [thereof in the manner provided for review of agency decisions
|
by the Administrative Procedures Act] in the district court
|
0003| pursuant to the provisions of Section 12-8A-1 NMSA 1978."
|
0004| Section 77. Section 66-4-3 NMSA 1978 (being Laws 1978,
|
0005| Chapter 35, Section 216) is amended to read:
|
0006| "66-4-3. REFUSAL TO ISSUE LICENSE--CANCELLATION OR
|
0007| SUSPENSION OF LICENSE OR USE OF TEMPORARY PERMITS--HEARING--
|
0008| APPEAL.--
|
0009| A. The division may refuse to issue a license for
|
0010| just cause and may cancel or suspend a license or use of
|
0011| temporary permits for violation of the Motor Vehicle Code. The
|
0012| division shall take the action [herein] authorized in this
|
0013| section only after hearing. Notice of [such] hearing shall
|
0014| be given the party concerned as provided in Section [64-2-11
|
NMSA 1953] 66-2-11 NMSA 1978. [Such] The notice shall
|
0016| state the proposed action of the division and the reason for
|
0017| [such] the proposed action.
|
0018| B. The division shall prepare rules [and
|
regulations] for the conduct of [such] the hearing. At
|
0020| [such] the hearing, the technical rules of evidence
|
0021| [shall] do not apply, and a party [shall have] has
|
0022| the right to be represented by counsel, to call witnesses in
|
0023| his own behalf and to cross-examine the witnesses of other
|
0024| parties.
|
0025| C. The director or his designated agent shall
|
- 138 -
0001| conduct the hearing for the division and shall cause a record
|
0002| of hearing to be made.
|
0003| D. Within ten days after completion of the hearing,
|
0004| the director shall cause to be served upon all parties, in the
|
0005| manner provided in Section [64-2-11 NMSA 1953] 66-2-11 NMSA
|
0006| 1978, his findings and decision. The decision shall be:
|
0007| (1) granting a license or refusing to grant a
|
0008| license;
|
0009| (2) continuing a license, [cancellation of]
|
0010| canceling a license or [suspension of] suspending a
|
0011| license for a time stated; or
|
0012| (3) continuing use of dealer plates and
|
0013| temporary permits, [cancellation of] canceling dealer
|
0014| plates and temporary permits or [suspension of] suspending
|
0015| use of temporary permits for a time stated.
|
0016| [E. Within thirty days after receipt of notice of
|
the decision of the director, any party aggrieved may stay the
|
decision by docketing the cause in the district court. The
|
district court shall hear the cause de novo. Appeals from the
|
decision of the district court may be taken in the same manner
|
as is provided by law for appeals in civil cases.]
|
E. A party aggrieved by the director's decision
|
may file an appeal in the district court pursuant to the
|
provisions of Section 12-8A-1 NMSA 1978."
|
Section 78. Section 66-5-36 NMSA 1978 (being Laws 1978,
|
- 139 -
Chapter 35, Section 258) is amended to read:
|
"66-5-36. RIGHT OF APPEAL TO COURT.--[Any] A person
|
0003| denied a license or whose license has been [cancelled]
|
0004| canceled, suspended or revoked by the division, except
|
0005| [where such] when the cancellation or revocation is
|
0006| mandatory under the provisions of [this article, shall have
|
the right to file a petition within thirty days thereafter for
|
a hearing in the matter in the district court in the county
|
wherein such person shall reside, and such court is vested with
|
jurisdiction and it is its duty to set the matter for hearing
|
upon thirty days' written notice to the director and thereupon
|
to take testimony and examine into the facts of the case and to
|
determine whether the petitioner is entitled to a license or is
|
subject to suspension, cancellation or revocation of license
|
under the provisions of this article] Chapter 66, Article 5
|
0016| NMSA 1978 may file an appeal in the district court pursuant to
|
0017| the provisions of Section 12-8A-1 NMSA 1978."
|
0018| Section 79. Section 66-5-204 NMSA 1978 (being Laws 1983,
|
0019| Chapter 318, Section 5) is amended to read:
|
0020| "66-5-204. ADMINISTRATIVE AND COURT REVIEW.--[Any]
|
0021| An owner of a motor vehicle registered in New Mexico who is
|
0022| aggrieved by the decision of the director made under the
|
0023| provisions of the Mandatory Financial Responsibility Act may
|
0024| appeal to the hearing officer of the division for a hearing to
|
0025| be held within twenty days of the receipt by the division of
|
- 140 -
0001| the appeal. [Any] A person who continues aggrieved after
|
0002| the decision made by the hearing officer may appeal that
|
0003| decision [within twenty days to the district court. The court
|
shall determine whether there is sufficient evidence to uphold
|
the decision of the hearing officer] in the district court
|
0006| pursuant to the provisions of Section 12-8A-1 NMSA 1978."
|
0007| Section 80. Section 67-8-19 NMSA 1978 (being Laws 1959,
|
0008| Chapter 310, Section 5, as amended) is amended to read:
|
0009| "67-8-19. PROCEDURE--APPEAL.--
|
0010| A. All hearings held [hereunder] pursuant to
|
0011| this section shall be public and upon not less than fifteen
|
0012| [days] days' written notice of the time, place and purpose
|
0013| of [such] the hearing to each utility whose services or
|
0014| facilities may be affected and to each municipality in which
|
0015| any part of the proposed highway improvement is to be located.
|
0016| Hearings may be held before the commission, any member
|
0017| [thereof] or any representative designated by it and at
|
0018| [such] the place as [shall be] is designated in the
|
0019| notice.
|
0020| B. A record of the testimony shall be taken at
|
0021| [such] the hearing and a transcript [thereof] furnished
|
0022| to anyone upon request and payment of the cost [thereof].
|
0023| C. The findings and orders shall be in writing and
|
0024| a copy [thereof] served upon each party [thereto].
|
0025| D. The commission may promulgate rules to govern
|
- 141 -
0001| its proceedings [hereunder] pursuant to this section.
|
0002| E. [Any] A party aggrieved by [any] an
|
0003| order may appeal to the district court [of Santa Fe county
|
within thirty days of the entry of the same by filing a
|
petition for review of such order, and upon receiving notice of
|
the same it shall be the duty of the commission or its
|
authorized agent to prepare and transmit a transcript of the
|
record of such hearing including all testimony, findings and
|
orders which shall be the record in said cause. If it be made
|
to appear to the court that the order appealed from is
|
unreasonable or unlawful, the same shall be vacated and
|
annulled and the entire matter remanded to the commission for
|
further proceeding consistent with the decision of the court;
|
provided, however, such appeal shall not operate as a stay of
|
any order of the commission unless the court shall so order.
|
F. Any party aggrieved by the order or decision of
|
the district court may appeal therefrom to the supreme court in
|
accordance with the rules for appeals in civil cases]
|
0019| pursuant to the provisions of Section 12-8A-1 NMSA 1978."
|
0020| Section 81. Section 67-10-2 NMSA 1978 (being Laws 1891,
|
0021| Chapter 44, Section 2, as amended) is amended to read:
|
0022| "67-10-2. RATES AND TOLLS--APPEALS.--[Sec. 95. That
|
such] A corporation may, after the completion of [such]
|
0024| a wagon road or any part thereof and after the completion of
|
0025| [any such] a bridge or ferry for and by the traveling
|
- 142 -
0001| public, apply by petition in writing to the board of county
|
0002| commissioners of the county [or counties] in or through which
|
0003| [such] the road, bridge or ferry is or has been
|
0004| constructed, for rates, prices and tolls to be charged and
|
0005| collected from the traveling public [so] using and traveling
|
0006| on [such] the toll road, bridge or ferry, which petition
|
0007| shall state [such] facts in reference to a road, bridge or
|
0008| ferry as will be sufficient to inform the board of county
|
0009| commissioners as to enable the board of county commissioners
|
0010| to fix the rates, tolls and charges, equal and just between the
|
0011| corporation owning the road, bridge or ferry and the traveling
|
0012| public using the same, and the rates, tolls and charges so
|
0013| fixed shall remain the same for two years [and]. At the
|
0014| expiration of each two years, the corporation shall petition as
|
0015| aforesaid for the fixing of the rates, tolls and charges by the
|
0016| board of county commissioners. In case the corporation [shall
|
be] is dissatisfied with the rates, tolls and charges [so]
|
0018| fixed by the board, it may appeal [within ten days from such
|
decision and determination to the judge of the district court
|
of the county in which the road, bridge or ferry is situated by
|
paying to the county clerk of the county in which the matter is
|
pending one dollar who shall, upon such payment being made, at
|
once transmit all the papers in the case on file in his office
|
to the clerk of the district court to which the appeal is
|
taken, and the corporation shall then present the matter to the
|
- 143 -
district judge who shall at once appoint three disinterested
|
citizens and taxpayers of the county to examine the road,
|
bridge or ferry and report their finding and fixing of rates,
|
tolls and charges in writing and under oath to the said judge,
|
within the time by him to be fixed and, unless it shall appear
|
to the judge that manifest injustice has been done by the
|
persons appointed, he shall approve the report, and the rates
|
so fixed shall remain for the ensuing two years, which
|
commissioners so appointed shall be paid by the corporation so
|
appealing for their services such sum and on such terms as the
|
judge may allow, together with the other costs incurred by such
|
appeal] to the district court pursuant to the provisions of
|
0013| Section 12-8A-1 NMSA 1978."
|
0014| Section 82. Section 67-13-12 NMSA 1978 (being Laws 1973,
|
0015| Chapter 17, Section 12) is amended to read:
|
0016| "67-13-12. ZONING--PETITION FOR REVIEW[--TIME LIMIT]--
|
0017| RESTRAINING ORDER.--
|
0018| A. [Any] A person aggrieved by a decision of
|
0019| the board may appeal to the [court of appeals by filing with
|
the court of appeals a notice of appeal within thirty days
|
after the decision is entered in the records of the board]
|
0022| district court pursuant to the provisions of Section 12-8A-1
|
0023| NMSA 1978.
|
0024| B. The appeal shall not stay the decision appealed
|
0025| from, but the court may, on application, grant a restraining
|
- 144 -
0001| order."
|
0002| Section 83. Section 69-6-2 NMSA 1978 (being Laws 1933,
|
0003| Chapter 153, Section 308) is amended to read:
|
0004| "69-6-2. RIGHT OF APPEAL.--Every owner, operator or
|
0005| employee of [any such] a mine [shall have] has a right
|
0006| of appeal to the district court [in the county wherein such
|
mine is situated and from such district court to the supreme
|
court as to the necessity or reasonableness of the order or
|
requirement of the inspector under any of the provisions of
|
this act] pursuant to the provisions of Section 12-8A-1 NMSA
|
0011| 1978."
|
0012| Section 84. Section 69-36-16 NMSA 1978 (being Laws 1993,
|
0013| Chapter 315, Section 16) is amended to read:
|
0014| "69-36-16. JUDICIAL REVIEW.--
|
0015| A. [Any] A person who is or may be affected by
|
0016| a [regulation] rule of the commission may appeal the action
|
0017| of the commission by filing a notice of appeal with the court
|
0018| of appeals within thirty days from the filing date of the
|
0019| [regulation] rule with the state records center. All
|
0020| appeals of [regulations] rules shall be taken on the record
|
0021| made at the public hearing on the [regulation] rule.
|
0022| B. A party, intervenor or any other person upon a
|
0023| showing of good cause for not appearing at the public hearing
|
0024| on a [regulation] rule may appeal a decision of the
|
0025| commission adopting, amending or repealing [regulations]
|
- 145 -
0001| rule by filing a written notice of appeal with the court of
|
0002| appeals within forty-five days after entry of the commission's
|
0003| decision. Copies of the notice of appeal shall be served at
|
0004| the time of filing, either personally or by certified mail,
|
0005| upon all parties to the proceeding before the commission.
|
0006| C. [Any] A person who is or may be affected by
|
0007| a final action of the commission other than a [regulation]
|
0008| rule may appeal the action of the commission by filing a
|
0009| notice of appeal with the district court [for the first
|
judicial district within thirty days from the date of the
|
commission's action. The appeal shall be taken on the record
|
made before the commission.
|
D. The notice of appeal shall include a concise
|
statement of the facts upon which jurisdiction is based, facts
|
showing that the appellant is aggrieved, the grounds upon which
|
the appellant is appealing and the relief that the appellant is
|
seeking.
|
E. The appellant shall certify in his notice of
|
appeal that a sufficient number of transcripts of the record of
|
the hearing from which the appeal is taken shall have been made
|
by the commission, at his expense, including three copies,
|
which shall remain with the commission.
|
F. Upon appeal, the court shall set aside the
|
regulation, order or other action only if it is found to be:
|
(1) arbitrary, capricious or an abuse of
|
- 146 -
discretion;
|
(2) not supported by substantial evidence in
|
the record; or
|
(3) otherwise not in accordance with law]
|
0005| pursuant to the provisions of Section 12-8A-1 NMSA 1978."
|
0006| Section 85. Section 70-2-25 NMSA 1978 (being Laws 1935,
|
0007| Chapter 72, Section 17, as amended) is amended to read:
|
0008| "70-2-25. REHEARINGS--APPEALS.--
|
0009| A. Within twenty days after entry of [any] an
|
0010| order or decision of the commission, [any] a party of
|
0011| record adversely affected [thereby] may file with the
|
0012| commission an application for rehearing in respect of any
|
0013| matter determined by [such] the order or decision, setting
|
0014| forth the respect in which [such] the order or decision is
|
0015| believed to be erroneous. The commission shall grant or refuse
|
0016| [any such] the application in whole or in part within ten
|
0017| days after the [same] application is filed, and failure to
|
0018| act [thereon] on the application within [such] that
|
0019| period shall be deemed a refusal [thereof] and [a] final
|
0020| disposition of [such] that application. In the event the
|
0021| rehearing is granted, the commission may enter [such] a new
|
0022| order or decision after rehearing as may be required under the
|
0023| circumstances.
|
0024| B. [Any] A party of record to [such] the
|
0025| rehearing proceeding dissatisfied with the disposition of the
|
- 147 -
0001| application for rehearing may appeal [therefrom] to the
|
0002| district court [of the county wherein is located any property
|
of such party affected by the decision by filing a petition for
|
the review of the action of the commission within twenty days
|
after the entry of the order following rehearing or after the
|
refusal or rehearing, as the case may be. Such petition shall
|
state briefly the nature of the proceedings before the
|
commission and shall set forth the order or decision of the
|
commission complained of and the grounds of invalidity thereof
|
upon which the applicant will rely; provided, however, that the
|
questions reviewed on appeal shall be only questions presented
|
to the commission by the application for rehearing. Notice of
|
such appeal shall be served upon the adverse party or parties
|
and the commission in the manner provided for the service of
|
summons in civil proceedings. The trial upon appeal shall be
|
without a jury, and the transcript of proceedings before the
|
commission, including the evidence taken in hearings by the
|
commission, shall be received in evidence by the court in whole
|
or in part upon offer by either party, subject to legal
|
objections to evidence. The commission action complained of
|
shall be prima facie valid and the burden shall be upon the
|
party or parties seeking review to establish the invalidity of
|
such action of the commission. The court shall determine the
|
issues of fact and of law and shall enter its order either
|
affirming or vacating the order of the commission. Appeals may
|
- 148 -
be taken from the judgment or decision of the district court to
|
the supreme court in the same manner as provided for appeals
|
from any other final judgment entered by a district court in
|
this state. The trial of such application for relief from
|
action of the commission and the hearing of any appeal to the
|
supreme court from the action of the district court shall be
|
expedited to the fullest possible extent.
|
C. The pendency of proceedings to review shall not
|
of itself stay or suspend operation of the order or decision
|
being reviewed, but during the pendency of such proceedings,
|
the district court in its discretion may, upon its own motion
|
or upon proper application of any party thereto, stay or
|
suspend, in whole or in part, operation of the order or
|
decision pending review thereof, on such terms as the court
|
deems just and proper and in accordance with the practice of
|
courts exercising equity jurisdiction; provided that the court,
|
as a condition to any such staying or suspension of operation
|
of an order or decision, may require that one or more parties
|
secure, in such form and amount as the court may deem just and
|
proper, one or more other parties against loss or damage due to
|
the staying or suspension of the commission's order or
|
decision, in the event that the action of the commission shall
|
be affirmed.
|
D. The applicable rules of practice and procedure
|
in civil cases for the courts of this state shall govern the
|
- 149 -
proceedings for review and any appeal therefrom to the supreme
|
court of the state to the extent such rules are consistent with
|
provisions of the Oil and Gas Act] pursuant to the provisions
|
0004| of Section 12-8A-1 NMSA 1978."
|
0005| Section 86. Section 70-5-16 NMSA 1978 (being Laws 1973,
|
0006| Chapter 362, Section 16, as amended) is amended to read:
|
0007| "70-5-16. APPEAL.--[Any] A licensee whose license is
|
0008| canceled or suspended by order of the commission may appeal the
|
0009| decision by filing [with the court of appeals a notice of
|
appeal within thirty days after the date the order is made.
|
The appeal must be on the record made at the hearing. The
|
licensee shall certify in his notice of appeal that
|
arrangements have been made with the commission for preparation
|
of a sufficient number of transcripts of the record of the
|
hearing on which the appeal depends to support his appeal to
|
the court, at the expense of the licensee, including two copies
|
which he shall furnish to the commission. Upon appeal, the
|
court of appeals shall set aside the decision and order of the
|
commission only if found to be:
|
A. arbitrary, capricious or an abuse of discretion;
|
B. not supported by substantial evidence in the
|
record; or
|
C. otherwise not in accordance with law] an
|
0024| appeal with the district court pursuant to the provisions of
|
0025| Section 12-8A-1 NMSA 1978."
|
- 150 -
0001| Section 87. Section 70-5-17 NMSA 1978 (being Laws 1947,
|
0002| Chapter 214, Section 17, as amended) is amended to read:
|
0003| "70-5-17. NO FORMAL NOTICE REQUIRED OF HEARING ON
|
0004| APPLICATION FOR LICENSE--APPEAL.--The same procedure, rights
|
0005| and penalties as specified in the LPG and CNG Act in the cases
|
0006| of revocation or suspension of licenses are available, where
|
0007| applicable, in cases where the bureau refused to grant a
|
0008| license, except that no formal notice of hearing on an
|
0009| application for license need be given an applicant, other than
|
0010| that he is given a reasonable opportunity to appear in support
|
0011| of his application before the bureau renders its order refusing
|
0012| him a license. Appeal shall be to the district court [at
|
Santa Fe county in all cases where an application for a license
|
under the LPG and CNG Act is denied] pursuant to the
|
0015| provisions of Section 12-8A-1 NMSA 1978."
|
0016| Section 88. Section 71-5-18 NMSA 1978 (being Laws 1975,
|
0017| Chapter 272, Section 18, as amended) is amended to read:
|
0018| "71-5-18. REHEARINGS--APPEALS.--
|
0019| A. Within twenty days after entry of [any] an
|
0020| order or decision of the division, [any] a party of record
|
0021| adversely affected [thereby] may file with the commission an
|
0022| application for rehearing in respect of any matter determined
|
0023| by [such] the order or decision, setting forth the respect
|
0024| in which [such] the order or decision is believed to be
|
0025| erroneous. The commission shall grant or refuse [any such]
|
- 151 -
0001| the application in whole or in part within ten days after
|
0002| [the same] it is filed, and failure to act [thereon]
|
0003| within [such] the ten-day period shall be deemed a refusal
|
0004| [thereof] of the application and a final disposition of
|
0005| [such] the application. In the event the rehearing is
|
0006| granted, the commission may enter [such] a new order or
|
0007| decision after rehearing as may be required under the
|
0008| circumstances.
|
0009| B. [Any] A party of record to [such] the
|
0010| rehearing proceeding dissatisfied with the disposition of the
|
0011| application for rehearing may appeal [therefrom] to the
|
0012| district court [of the county wherein is located any property
|
of such party affected by the decision by filing a petition for
|
the review of the action of the commission within twenty days
|
after the entry of the order following rehearing or after the
|
refusal of rehearing, as the case may be. Such petition shall
|
state briefly the nature of the proceedings before the
|
commission or division and shall set forth the order or
|
decision of the commission or division complained of and the
|
grounds of invalidity thereof upon which the applicant will
|
rely; provided, however, that the questions reviewed on appeal
|
shall be only questions presented to the commission by the
|
application for rehearing. Notice of such appeal shall be
|
served upon the adverse party or parties and the commission in
|
the manner provided for the service of summons in civil
|
- 152 -
proceedings. The trial upon appeal shall be without a jury,
|
and the transcript of proceedings before the commission or
|
division, including the evidence taken in hearings by the
|
commission or division, shall be received in evidence by the
|
court in whole or in part upon offer by either party, subject
|
to legal objections to evidence. The commission or division
|
action complained of shall be prima facie valid and the burden
|
shall be upon the party or parties seeking review to establish
|
the invalidity of such action of the commission or division.
|
The court shall determine the issues of fact and of law and
|
shall enter its order either affirming or vacating the order of
|
the commission or division. Appeals may be taken from the
|
judgment or decision of the district court to the supreme court
|
in the same manner as provided for appeals from any other final
|
judgment entered by a district court in this state. The trial
|
of such application for relief from action of the commission or
|
division and the hearing of any appeal to the supreme court
|
from the action of the district court shall be expedited to the
|
fullest possible extent] pursuant to the provisions of
|
0020| Section 12-8A-1 NMSA 1978.
|
0021| C. The pendency of proceedings to review shall not
|
0022| of itself stay or suspend operation of the order or decision
|
0023| being reviewed, but during the pendency of [such] the
|
0024| proceedings, the district court in its discretion may, upon its
|
0025| own motion or upon proper application of any party [thereto]
|
- 153 -
0001| to the proceedings, stay or suspend in whole or in part
|
0002| operation of the order or decision pending review [thereof]
|
0003| on [such] terms as the court deems just and proper and in
|
0004| accordance with the practice of courts exercising equity
|
0005| jurisdiction; provided that the court, as a condition to any
|
0006| [such] staying or suspension of operation of any order or
|
0007| decision, may require that one or more parties secure, in
|
0008| [such] a form and amount as the court may deem just and
|
0009| proper, one or more other parties against loss or damage due to
|
0010| the staying or suspension of the commission's or division's
|
0011| order or decision in the event that the action of the
|
0012| commission or division [shall be] is affirmed.
|
0013| [D. The applicable rules of practice and procedure
|
in civil cases for the courts of this state shall govern the
|
proceedings for review and any appeal therefrom to the supreme
|
court of this state to the extent such rules are consistent
|
with provisions of the Geothermal Resources Conservation
|
Act.]"
|
0019| Section 89. Section 73-11-29 NMSA 1978 (being Laws 1919,
|
0020| Chapter 20, Section 21, as amended) is amended to read:
|
0021| "73-11-29. APPLICATION FOR WATER--BUDGET MEETING OF
|
0022| DIRECTORS--NOTICE OF MEETING--TAX ASSESSMENTS AND WATER
|
0023| CHARGES--EXEMPTIONS FROM TAX--APPEAL--SUCCESSION TO RIGHTS OF
|
0024| WATER USERS' ASSOCIATION.--
|
0025| A. Every person desiring to receive water during
|
- 154 -
0001| the course of the year, at the time he applies for water, shall
|
0002| furnish the secretary of the board of directors of the [said]
|
0003| irrigation district a statement in writing of the number of
|
0004| acres intended by him to be irrigated and a statement, as near
|
0005| as may be, of the crops planted or intended to be planted.
|
0006| B. The board of directors, on a date to be fixed
|
0007| by a standing order of the board, which shall not be later than
|
0008| July [first] 1 of each year, shall estimate and determine
|
0009| the amount of funds required to meet the obligations and needs
|
0010| of the district for the ensuing year, together with [such]
|
0011| the additional amount as may be necessary to meet any
|
0012| deficiency in the payment of expenses or obligations previously
|
0013| incurred by the district and remaining unpaid, for [such]
|
0014| any of the following purposes [as] that may be required
|
0015| by the activities of the district [to wit]:
|
0016| [Item One] (1) the payment of the interest
|
0017| upon bonds of the district and any [instalment] installment
|
0018| on the principal [thereof] of the bonds;
|
0019| [Item Two] (2) any payment to become due
|
0020| under any contract with the United States, to secure which
|
0021| bonds have not been deposited with the United States, whether
|
0022| for the cost of irrigation or drainage system or for the
|
0023| operation and maintenance [thereof], or both; or if the lands
|
0024| of the district have been divided by the secretary of the
|
0025| interior into units, not necessarily contiguous, for repayment
|
- 155 -
0001| purposes the board shall prepare separate estimates for each
|
0002| [such] unit;
|
0003| [Item Three] (3) the portion of the
|
0004| expenses of operation and maintenance of the irrigation and
|
0005| drainage systems to be collected by tax assessment and levy,
|
0006| including funds required to meet obligations as provided in
|
0007| Section [5 (Section 77-2348) hereof] 73-11-49 NMSA 1978.
|
0008| This portion shall not be less than one-half of that portion
|
0009| required for [such] the operation and maintenance costs for
|
0010| the ensuing year and shall be determined by the board of
|
0011| directors of [said] the district from year to year [and].
|
0012| The [said] portion of [said] the operation and
|
0013| maintenance expenses [so] collected by tax assessment and
|
0014| levy shall be collected from all lands of the district, whether
|
0015| irrigated or not, except [such] those lands as may be
|
0016| exempted from taxation by the terms of [this act] Chapter
|
0017| 73, Articles 10 and 11 NMSA 1978, and the same, when
|
0018| collected, shall be applied to the cost of operating and
|
0019| maintaining [of] the irrigation and drainage systems. The
|
0020| remainder of [said] the estimated amount shall be paid by
|
0021| the parties actually using [said] the systems and water for
|
0022| irrigation or other purposes in accordance with the terms of
|
0023| their contract for water; or
|
0024| [Item Four] (4) current and miscellaneous
|
0025| expense fund requirements, other than as [above] specified
|
- 156 -
0001| in this section, and necessary to defray the expenses of
|
0002| maintaining the organization of the district and carrying out
|
0003| the purposes of [this act] Chapter 73, Articles 10 and 11
|
0004| NMSA 1978, shall be determined annually at a per acre rate by
|
0005| the board of directors. The amounts to be collected [under
|
Item Four] pursuant to this paragraph may, at the option of
|
0007| the board of directors of [said] the district, be collected
|
0008| as tolls and charges in the manner provided in Section [28,
|
Chapter 20, of the Laws of 1919] 73-11-28 NMSA 1978.
|
0010| C. Lands [which] that, in the opinion of the
|
0011| board of directors, are unfit for cultivation by irrigation on
|
0012| account of seepage, alkali or physical condition and location
|
0013| of the land, or other conditions, or lands to which the
|
0014| existing distributing system or its extensions [thereof]
|
0015| cannot furnish water at such points of delivery as the board
|
0016| may consider reasonable, shall not be taxed for [Item Three;
|
and] Paragraph (3) of Subsection B of this section, provided
|
0018| that tax shall not be assessed for [Item Three] Paragraph
|
0019| (3) of Subsection B of this section against land involved in
|
0020| the boundary suit now pending in the United States supreme
|
0021| court between the state of Texas and the state of New Mexico
|
0022| until the final determination of [said] the suit, unless
|
0023| [such] the land is in cultivation and using water for
|
0024| irrigation; and lands shall not be taxed for [Items One and
|
Two] Paragraphs (1) and (2) of Subsection B of this section
|
- 157 -
0001| for the periods and to the extent that, on account of seepage
|
0002| or other conditions, in the opinion of the directors or the
|
0003| secretary of the interior, as may be provided by contract with
|
0004| the United States, or with district bondholders, such lands are
|
0005| not fit for cultivation by irrigation on account of [such]
|
0006| those conditions; but nothing [herein] contained in this
|
0007| section shall be construed to relieve the district from making
|
0008| provision to raise the amount required to make full payment to
|
0009| private creditors or to the United States for the full cost of
|
0010| construction or of operation and maintenance, irrespective of
|
0011| the exemption of any lands from taxation, unless expressly
|
0012| provided by the assent of the bondholders or other private
|
0013| creditors or by agreement with the United States, as the case
|
0014| may be [and]. In determining the amount required for the
|
0015| respective items aforesaid, the board shall take into
|
0016| consideration the gross amount of exemption and credits
|
0017| allowable pursuant to entries made by the board upon the
|
0018| assessor's certified list, as provided in Section
|
0019| [22 ( 77-2331) of this act provided] 73-11-31 NMSA 1978.
|
0020| Proper entry shall be made by the district officers of all
|
0021| exemptions made and of credits allowed. The amount required to
|
0022| meet the obligations of the district, except [the] that
|
0023| portion [thereof] collected from tolls and charges, shall be
|
0024| raised by tax assessments, levy and collection, as
|
0025| [hereinafter] provided in Chapter 73, Articles 10 and 11
|
- 158 -
0001| NMSA 1978, to be extended pro rata per acre over all lands in
|
0002| the [said] district or, in appropriate cases, under [Item
|
Two above] Paragraph (2) of Subsection B of this section,
|
0004| against all land in each respective unit of the district. When
|
0005| the board [shall assemble] meets for the purposes
|
0006| [hereinbefore] prescribed, it shall consider, determine and
|
0007| designate the lands within [said] the district [which]
|
0008| that shall be subjected to [the] those assessments and
|
0009| levies [hereinbefore mentioned].
|
0010| D. Notice of the time, place and purpose of
|
0011| [such] the meeting shall be given by publication in English
|
0012| and Spanish in [some] a newspaper [or newspapers] of
|
0013| general circulation published within the county [wherein]
|
0014| where the headquarters of the district are located and shall
|
0015| inform all the persons interested that, at the time and place
|
0016| specified, an opportunity will be afforded to appear before the
|
0017| board of directors and show cause why any particular tract of
|
0018| land, or any portion [there of] of it, should be exempted
|
0019| from taxation under the provisions of [this act. Such]
|
0020| Chapter 73, Articles 10 and 11 NMSA 1978. The notice shall
|
0021| be published once a week for four [(4)] consecutive weeks,
|
0022| and the last publication shall be not less than three [(3)]
|
0023| days prior to the date fixed for [such] the meeting. Proof
|
0024| of [such] publication shall be furnished by the publisher and
|
0025| shall be filed in the archives of the secretary of the
|
- 159 -
0001| district.
|
0002| E. At [such] the meeting, [said] the
|
0003| board of directors, subject to [such] reasonable
|
0004| [regulations] rules as it may prescribe, shall afford to
|
0005| all persons desiring to do so an opportunity to make [such]
|
0006| a showing as they may deem proper as to why any given tract
|
0007| of land or portion [thereof] of it shall be exempted from
|
0008| taxation [as aforesaid]. In each case, the board of
|
0009| directors may [cause to be made such] make an
|
0010| investigation as it may deem proper, after which the board
|
0011| shall determine the question submitted, as right and justice
|
0012| may require, and shall cause its decision to be duly entered
|
0013| upon its minutes and a copy [thereof] of it to be sent by
|
0014| registered mail to all parties who have made claim of exemption
|
0015| of land from taxation [as aforesaid].
|
0016| F. [Any] A person [feeling himself]
|
0017| aggrieved by [such] the decision, [as aforesaid] may
|
0018| appeal [therefrom] to the district court [of the county
|
wherein the decision is rendered at any time within thirty (30)
|
days from and after the rendition and mailing as aforesaid of
|
said copy of the decision complained of, by serving upon the
|
secretary of the district written notice of such action and
|
filing a copy thereof, together with the copy of the decision
|
complained of, in the office of the clerk of the court to which
|
the appeal is taken. Upon being served with such notice, the
|
- 160 -
secretary of the district shall forthwith transmit to the clerk
|
of such court a certified transcript of all the papers and
|
records pertaining to the case which may have been filed in
|
connection there with. Upon such appeal, the case shall be
|
tried in such district court, subject to the law, rules and
|
practice governing such court as upon writ of certiorari]
|
0007| pursuant to the provisions of Section 12-8A-1 NMSA 1978.
|
0008| G. The filing of [said] the appeal in
|
0009| [said] the district court shall not stay the proceedings
|
0010| relating to the collection of [said] the tax [but]. In
|
0011| the event that the appellant has paid [said] the tax
|
0012| before the rendition of final judgment in [said] the suit
|
0013| and judgment is rendered in [said] the suit in favor of the
|
0014| appellant, the appellant shall have refunded to him [such]
|
0015| a sum of money as shall be determined by the judgment of the
|
0016| court, together with legal interest [thereon] on it and
|
0017| costs of court. [But] If the appellant fails to recover in
|
0018| [said] the suit, the appellant shall pay all costs of
|
0019| court. In case the assets and liabilities of any water users'
|
0020| association are taken over as provided in Section [1 ( 77-
|
2201) of this act provided] 73-10-1 NMSA 1978, the board of
|
0022| directors shall allow to the owner of lands, on account of
|
0023| which payment [shall have] has been made to [said] the
|
0024| association, all proper and equitable credits to which the
|
0025| [said] owner may be entitled, according to the books and
|
- 161 -
0001| records of [said] the association, which shall be prima
|
0002| facie evidence of the credits of its various members [and
|
such]. The credits shall be taken into consideration by the
|
0004| board of directors in determining the amount of money required
|
0005| to meet obligations, maintenance, operating and current
|
0006| expenses of the district for the ensuing year, and the board of
|
0007| directors shall certify to the county commissioners the amount
|
0008| of [such] the credits, and levy [hereinafter] as
|
0009| provided for in Chapter 73, Articles 10 and 11 NMSA 1978
|
0010| shall be made accordingly.
|
0011| H. The term "asset" as used [herein] in this
|
0012| section includes any and all grants, rights, powers,
|
0013| privileges and appropriations [heretofore] conferred by
|
0014| [any] law [general or special] and upon any water users'
|
0015| association and upon taking over the assets of any water users'
|
0016| association as [hereinbefore] provided in Chapter 73,
|
0017| Articles 10 and 11 NMSA 1978 by any irrigation district.
|
0018| [Said] The district shall succeed to all such grants,
|
0019| rights, powers, privileges and appropriations, and the officers
|
0020| of [said] the irrigation district are authorized and
|
0021| empowered to perform such duties and execute such instruments
|
0022| in regard thereto as [said] the law required of the
|
0023| officers of [said] the water users' association."
|
0024| Section 90. Section 73-12-4 NMSA 1978 (being Laws 1929,
|
0025| Chapter 76, Section 4) is amended to read:
|
- 162 -
0001| "73-12-4. [THE] PETITION HEARING [ON THE PETITION
|
AND ANY]--OBJECTIONS [TO ORGANIZATION: ESTABLISH]--
|
0003| BOUNDARIES [CALLING AN]--ELECTION--[AND PROVIDING FOR]
|
0004| APPEALS.--
|
0005| A. At the hearing before the board of county
|
0006| commissioners provided for in [the preceding] Section 73-12-
|
0007| 3 NMSA 1978, the [said] board shall proceed to determine
|
0008| whether [said] the petition has been signed by the
|
0009| requisite number of petitioners; whether [or not] the lands
|
0010| in the proposed district are arid or semiarid lands; whether
|
0011| [such] the lands are [suseptable] susceptible [of]
|
0012| to irrigation and have a fertile soil that will warrant
|
0013| farming [the same] them by irrigation; whether there is a
|
0014| supply of water [which] that can be made efficiently
|
0015| available for irrigation by the use of pumps; whether the
|
0016| proposed plan is practicable; and whether, on the whole, the
|
0017| development said to result from the introduction of power is of
|
0018| such interest and benefit to the whole district as to impress
|
0019| it with the character of public use. For the purpose of
|
0020| determining the public use of the operations of the proposed
|
0021| district and all other of the foregoing questions, the board of
|
0022| county commissioners is [hereby] established as an inferior
|
0023| court and its decisions shall be binding upon all persons
|
0024| interested unless reversed on appeal as [hereinafter]
|
0025| provided in this section, and if modified or affirmed, it
|
- 163 -
0001| shall be so binding.
|
0002| B. If the board of county commissioners hearing
|
0003| the matter [shall determine] determines that the petition
|
0004| has been signed by the requisite number of petitioners as
|
0005| required by [this act] Chapter 73, Article 12 NMSA 1978 and
|
0006| [shall determine] determines that [such] the proposed
|
0007| development is of such interest and benefit to the whole
|
0008| district as to impress with the character of public use, it
|
0009| shall then proceed to hear any [and all] objections,
|
0010| exceptions and protests [which] that have been made in
|
0011| writing to the organization of [such] the district or to
|
0012| the inclusion of any lands within [such] the district or to
|
0013| the exclusion of lands from [such] the district and
|
0014| [such] other objections, exceptions and protests as may be
|
0015| presented in writing to the organization of the district. All
|
0016| persons whose lands have not been included in the proposed
|
0017| district, as defined in the petition, [shall] have the right
|
0018| to appear before [said] the board at [such] the time
|
0019| and place as parties interested in or affected by the
|
0020| organization of the district and [shall] have the right to
|
0021| petition that their lands be included within [such] the
|
0022| district, and, if it [shall appear] appears to the board
|
0023| that the inclusion of such lands may be made without materially
|
0024| increasing the cost of service, the commissioners may by order
|
0025| include such lands within [said] the district.
|
- 164 -
0001| C. If the board [shall make] makes findings
|
0002| approving of the organization of [such] the district, it
|
0003| shall then proceed to define the boundaries of [such] the
|
0004| proposed district from [said] the petition and from
|
0005| [such] applications in writing for the exclusion of lands
|
0006| [therefrom] and the inclusion of lands [therein] from and
|
0007| in the district, as may be made in accordance with the intent
|
0008| of [this Act] Chapter 73, Article 12 NMSA 1978. The board
|
0009| may adjourn [such] the meeting from time to time not
|
0010| exceeding three weeks in all and shall, by final order duly
|
0011| entered upon [their] its records, allow the prayer of
|
0012| [said] the petition and define and establish the boundaries
|
0013| of [such] the proposed district. Provided that [said]
|
0014| the board shall not modify [such] the proposed boundaries
|
0015| described in the petition so as to change the objects of
|
0016| [said] the petition or so as to exempt from the operation
|
0017| of [this Act] Chapter 73, Article 12 NMSA 1978 any land
|
0018| within the boundaries proposed by the petition [suseptable]
|
0019| susceptible to irrigation by the same system or power works
|
0020| applicable to other lands in [such] the proposed district
|
0021| [nor shall any]. No land [which] that will not, in the
|
0022| judgment of the board, be benefited by [such] the proposed
|
0023| system shall be included in [such] the district if
|
0024| [the] its owner [thereof shall make] makes written
|
0025| application at [such] the hearing to withdraw [the same]
|
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0001| it.
|
0002| D. Any persons aggrieved by the decision of the
|
0003| board of county commissioners, upon the hearing
|
0004| [hereinbefore] provided for [is hereby] in this section,
|
0005| are given the right of appeal [from such decision or any part
|
thereof to the district court in and for the county in which
|
said hearing was held. Said appeal shall be taken and
|
perfected by the service of notice within fifteen days from the
|
time of the decision and not thereafter. Such notice of appeal
|
shall be served upon each of the three members of the committee
|
presenting the petition, herein provided for, to the board of
|
county commissioners] to the district court pursuant to the
|
0013| provisions of Section 12-8A-1 NMSA 1978.
|
0014| E. When the petition has been allowed and the
|
0015| boundaries established and the name of the proposed district
|
0016| designated, which shall be ____________________ electrical
|
0017| district, the [said] board of county commissioners shall, by
|
0018| further order duly entered upon [their] its records, call
|
0019| an election of the qualified electors of [said] the
|
0020| district to be held for the purpose of determining whether
|
0021| [such] the district shall be organized under the provisions
|
0022| of [this Act] Chapter 73, Article 12 NMSA 1978 and by such
|
0023| order shall submit the names of one or more persons from each
|
0024| of three divisions of [said] the district, as
|
0025| [hereinafter] provided in this section, to be voted for as
|
- 166 -
0001| directors therein, and for the purpose of [said] the
|
0002| election shall [devide said] divide the district into three
|
0003| divisions, as nearly equal in size as may be practicable, to be
|
0004| numbered, respectively, [I, II] 1, 2 and [III] 3 and
|
0005| shall provide that a qualified elector of each of [said]
|
0006| the three divisions shall be elected as a member of the board
|
0007| of directors of [said] the district by the qualified
|
0008| electors of the whole district. Each of [said] the
|
0009| divisions shall constitute an election precinct and the
|
0010| commissioners shall appoint three judges for each of [such]
|
0011| the precincts, one of whom shall act as clerk of [said]
|
0012| the election.
|
0013| [Upon appeal having been taken, as in this section
|
provided, the clerk of the court of the county wherein such
|
proceedings have been instituted shall transmit a certified
|
copy of the petition and of all orders and findings made by the
|
board of county commissioners in said cause and of all written
|
objections, exceptions or protests or applications of
|
whatsoever nature filed in such matter with the board of county
|
commissioners to the district court of such county. Such
|
certified copy of such proceedings must be transmitted to said
|
district court within fifteen days from the date which such
|
appeal is taken. The district court shall determine all
|
questions submitted to the said board of county commissioners
|
on their merits, and appeals from the decision of the district
|
- 167 -
court in such matters may be taken to the supreme court of the
|
state in the same manner as appeals are taken to the supreme
|
court from the district courts of the state in civil matters.
|
The findings of fact in the district court shall have the
|
effect as the findings of fact in that court in all civil cases
|
at law.]"
|
Section 91. Section 74-3-9 NMSA 1978 (being Laws 1971,
|
Chapter 284, Section 7, as amended) is amended to read:
|
"74-3-9. LICENSING OF RADIOACTIVE MATERIAL--APPEAL.--
|
A. It is unlawful for any person to possess, use,
|
store, dispose of, manufacture, process, repair or alter any
|
radioactive material unless he holds:
|
(1) a license issued by the nuclear regulatory
|
commission and notification by the licensee to the agency of
|
license identification;
|
(2) a license issued by an agreement state and
|
notification by the licensee to the agency of license
|
identification; or
|
(3) a license issued by the agency.
|
B. The agency shall issue licenses and shall
|
approve requests for reciprocity in accordance with procedures
|
prescribed by [regulation] rule of the board. License
|
0023| applications shall be made on forms provided by the agency.
|
0024| The agency shall not issue a license unless the applicant has
|
0025| demonstrated the capability of complying with all applicable
|
- 168 -
0001| [regulations] rules of the board.
|
0002| C. The board may, by [regulation] rule, exempt
|
0003| from the requirements of licensure specific quantities of any
|
0004| radioactive material determined by the board not to constitute
|
0005| a health or environmental hazard.
|
0006| D. The holding of a license issued by the agency,
|
0007| the nuclear regulatory commission or an agreement state does
|
0008| not relieve the licensee from the responsibility of complying
|
0009| with all applicable [regulations] rules of the board.
|
0010| E. [Any] A person who is or may be affected by
|
0011| licensing action of the agency may appeal [for further
|
relief] to the district court [in which the subject
|
facilities or activities are located. All such appeals shall
|
be upon the agency's administrative records and shall be taken
|
within thirty days from the date the decision is final. Upon
|
appeal, the district court shall set aside the licensing action
|
only if found to be:
|
(1) arbitrary, capricious or an abuse of
|
discretion;
|
(2) not supported by substantial evidence in
|
the record; or
|
(3) otherwise not in accordance with law]
|
0023| pursuant to the provisions of Section 12-8A-1 NMSA 1978."
|
0024| Section 92. Section 74-4B-14 NMSA 1978 (being Laws 1992,
|
0025| Chapter 5, Section 3) is amended to read:
|
- 169 -
0001| "74-4B-14. CLEANUP OF ORPHAN HAZARDOUS MATERIALS--
|
0002| DEPARTMENT RECOURSE.--APPEAL.--The department may assess
|
0003| charges against [persons] a party identified as responsible
|
0004| for orphan hazardous materials, for costs the department incurs
|
0005| in cleanup of the orphan hazardous materials and for damage to
|
0006| state property. Amounts received in payment of assessments for
|
0007| cleanup of the orphan hazardous materials shall be deposited in
|
0008| the orphan material recovery fund. Amounts received in payment
|
0009| of assessments for damage to state property shall be used to
|
0010| repair the damage. [Any] A person who is assessed charges
|
0011| pursuant to this section may appeal the assessment to the
|
0012| district court [within thirty days of receipt of notice of the
|
assessment] pursuant to the provisions of Section 12-8A-1
|
0014| NMSA 1978."
|
0015| Section 93. Section 75-3-11 NMSA 1978 (being Laws 1965,
|
0016| Chapter 235, Section 11) is amended to read:
|
0017| "75-3-11. JUDICIAL REVIEW.--Rulings by the commission on
|
0018| the issuance, refusal or revocation of a license are subject to
|
0019| review [only in the district court for Santa Fe county and the
|
state supreme court] in the district court pursuant to the
|
0021| provisions of Section 12-8A-1 NMSA 1978."
|
0022| Section 94. REPEAL.--Sections 4-45-6, 12-8-17 through
|
0023| 12-8-22, 61-1-18, 61-1-20, 61-1-22, 61-1-23, 61-1-26, 61-18A-24
|
0024| and 61-27A-15 NMSA 1978 (being Laws 1876, Chapter 1, Section
|
0025| 23, Laws 1969, Chapter 252, Sections 17 through 22, Laws 1957,
|
- 170 -
0001| Chapter 247, Sections 18, 20, 22, 23 and 26, Laws 1987, Chapter
|
0002| 252, Section 24 and Laws 1993, Chapter 212, Section 15, as
|
0003| amended) are repealed.
|
0004| Section 95. EFFECTIVE DATE.--The effective date of the
|
0005| provisions of this act is September 1, 1998.
|
0006|
|