SB 1598: MUNICIPAL AND COUNTY GOVERNMENT

REGULATORY BILL OF RIGHTS

INTRODUCTION

• SB 1598 adds a new set of statutes dealing with Municipal Regulations (ARS 9-831 through 9-840) and County Regulations (ARS 11-1601 through 11-1610).

• All of the statutes are in effect, except ARS 9-833 (11-1613), Inspections, which is effective on July 1, 2012.

• ALL existing licenses must comply with these statutes by December 31, 2012. Any new license must comply at inception.

OVERVIEW

• Activities affected by new statutes

• 9-831 Important Definitions

• 9-832 Regulatory Bill of Rights

• 9-833 Inspections

• 9-834 Prohibited Acts

• 9-835 Licensing Time Frames

• 9-836 Licensing Application Process

• 9-837 Directory of Documents

• 9-838 Complaint & City Council Review

• 9-839 Clarification of Interpretation

• 9-840 Exempt Activities

WHICH ACTIVITIES OR PROGRAMS ARE AFFECTED?Every License, Permit, Approval, or Authorization by the City

Yes No Activity or Program 

☐ ☐Issuance or denial of an aeronautical business permit required to conduct a commercial aviation business at the City Airport

☐ ☐ Issuance or denial of a pawnbroker permit

☐ ☐ Alarm user’s permit

☐ ☐ Rejection of a purchasing bid as non-responsive 

☐ ☐ Adult care home use permits 

☐ ☐ Issuance or denial of a massage establishment license 

☐ ☐ Denial or rejection of a petition for referendum 

☐ ☐ Commercial hauler permit 

☐ ☐ Open burning permit 

☐ ☐ Building permits/site plan review 

☐ ☐ Inspection of Premises, re: public nuisance 

☐ ☐ Special events permit 

☐ ☐ Beer or wine at a city park (“alcoholic beverage permit”)

☐ ☐ Rezoning approval/denial 

☐ ☐ Wireless telecommunication use permit 

☐ ☐ Approval/denial of a variance application by Board of Adjustment 

☐ ☐ Approval/denial of sign permit 

Yes No Activity or Program 

☐ ☐ Approval/denial of Preliminary Development Plans for sign packages

☐ ☐ Encroachment permits 

☐ ☐ Inspection and approval/acceptance of off-site construction 

☐ ☐ Building permits 

☐ ☐ Tele-track wagering facility site 

☐ ☐ City Liquor license 

☐ ☐ Transaction Privilege Tax license 

☐ ☐ City Business license 

Yes No Activity or Program 

WHICH ACTIVITIES OR PROGRAMS ARE AFFECTED?EVERY License, Permit, Approval, or Authorization by the City

KEY DEFINITIONS(ARS 9-831)

• License: Includes the whole or part of any City permit, certificate, approval, registration, charter or similar form of permission required by law.

• Licensing: Includes City’s processes respecting the grant, denial, renewal, revocation, suspension, annulment, withdrawal or amendment of a License.

• Person: means an individual, partnership, corporation, association, governmental subdivision or unit of a governmental subdivision or a public or private organization of any character.

« Substantive Policy Statement »

• A written expression that is advisory and informs the general public of the City’s current approach to, or opinion of, the requirements of the ordinances or codes, including, where appropriate, City’s current practice, procedure or method of action based on that approach or opinion.– Every administrative policy in every City department

relating to requirements of an applicant, the basis for any exceptions or any internal code interpretation or policy.

• Does not include internal procedural documents that only affect the internal procedures of the City and do not impose additional requirements or penalties on regulated parties or confidential information.

REGULATORY BILL OF RIGHTSTo “ensure fair and open regulation,” a person has the following rights:

1. To reimbursement of fees & expenses if the prevailing party on the merits in a court proceeding (per ARS 12-348).

2. To receive information and proper notice regarding all inspections (per ARS 9-833).

3. To have licensing decisions only based on conditions or requirements that are specifically authorized (per ARS 9-834).

4. To expect the City to avoid duplication of other laws that do not enhance regulatory clarity and avoid dual permitting to the maximum extent practicable unless specifically authorized (per ARS 9-834).

5. Have a license application approved/denied within a predetermined time period (per ARS 9-835).

6. To written/electronic notice of denial of a license application that:

a) Justifies the denial with references to the specific statute, ordinance, code, or authorized substantive policy statements on which the denial is based (per ARS 9-835); and

b) Explains the applicant’s right to appeal the denial (per ARS 9-835).

7. To receive information regarding the license application process at the time the person obtains an application for a license (per ARS 9-836).

REGULATORY BILL OF RIGHTSTo “ensure fair and open regulation,” a person has the following rights:

8. To inspect all ordinance, codes, and substantive policy statements, including a directory of documents, at the office of the City or on the City’s website (per ARS 9-837).

• Right to file a complaint to the City Council concerning an ordinance, code, or substantive policy statement that fails to comply with this section (per ARS 9-838).

• Right to request clarification of any interpretation or application of a statute, ordinance, code or authorized substantive policy statement affecting the procurement of a license (per ARS 9-839).

REGULATORY BILL OF RIGHTSTo “ensure fair and open regulation,” a person has the following rights:

INSPECTIONS(ARS 9-833)

Effective July 1, 2012

INSPECTIONS(ARS 9-833)

Effective July 1, 2012

• At Site. Inspector who conducts inspection shall:– Present photo id.– State purpose of and legal authority for conducting the inspection.

– Disclose inspection fees.

– Except for a food or swimming pool inspection, give opportunity for regulated person’s authorized on-site rep to accompany inspector.

– Provide notice of the right to have: (a) copies of original documents taken; (b) split or duplicate any samples taken; (c) copies of any analysis performed on samples.

– Inform each person whose conversation with the City inspector during the inspection is tape recorded that the conversation is being tape recorded.

– Inform each person interviewed during inspection that person’s statements may be included in the inspection report.

• Written Information. On or 2 working days before inspection, inspector shall provide the following in writing or electronically:– The rights described above

– Name & phone number of the City contact person available to answer questions regarding the inspection.

– The due process rights relating to an appeal of a final decision of the City based on the results of the inspection, including the name and phone number of a person to contact within the City

• Inspector shall obtain signature of the regulated person/on-site rep indicating that he/she has read the writing and is notified of his/her rights.– City shall maintain a copy of this signature with the inspection report.

– Unless the regulated person, at the time of inspection, is informed how the report can be located electronically, City shall leave a copy of the report.

– If the regulated person/on-site rep is not at the site or refuses to sign the writing, the Inspector shall note that fact on the writing.

• Inspection Report– City shall give copy of, or provide electronic access to, the

inspection report to regulated person/rep either:• At time of inspection

• Within 30 working days after inspection (notwithstanding any other state law)

• As otherwise required by federal law

– The Report shall contain any deficiencies identified during an inspection. Unless otherwise provided by law, City may provide an opportunity to correct the deficiencies unless the City determines that the deficiencies are:

• Committed intentionally;

• Not correctable within a reasonable period of time as determined by the City;

• Evidence a pattern of noncompliance; or

• A risk to any person, the public health, safety or welfare or the environment.

• Correcting Deficiencies

– If City allows an opportunity to correct deficiencies, the regulated person shall notify the City when the deficiencies have been corrected.

– Within 30 days of receipt of notice, the City shall determine if the person is in substantial compliance and notify the person whether or not the person is in substantial compliance. If the person fails to correct the deficiencies or the City determines the deficiencies have not been corrected within a reasonable period of time, the City may take any enforcement action authorized by law for the deficiencies.

– City decisions related to allowing correction of deficiencies and as to substantial compliance are not appealable.

• Miscellaneous– Each month, City shall provide written/electronic update on

status of City action resulting from an inspection. Update is not required when no action taken or where action is completed.

– ARS 9-833 does not authorize an inspection or action not otherwise authorized by law.

– ARS 9-833 applies only to inspection required for issuance of a license or to determine compliance with licensure requirements. It does not apply to:

• Criminal investigations

• Reasonable suspicion to believe the regulated person may be or has been engaged in criminal activity

• Inspections by county board of health or local health department per 36-603

• Penalties for Municipal Noncompliance– If Inspector gathers evidence in violation of ARS 9-833, the

violation is not a basis to exclude evidence in a civil or administrative proceeding if the penalty sought in the proceeding is denial, suspension or revocation of a license or a civil penalty of more than $1,000.

– Failure of City employee to comply with ARS 9-833:• Constitutes cause for disciplinary action or dismissal pursuant to

City personnel policy

• Shall be considered by the judge or ALJ as grounds for reducing of any fine or penalty

– City may adopt rules or ordinances to implement ARS 9-833

– ARS 9-833• Not to be used to exclude evidence in a criminal proceeding

• Does not apply to an inspection requested by regulated person

PROHIBITED ACTS(ARS 9-834)

• A licensing decision shall not be based, in whole or in part, on a licensing requirement or condition that is not specifically authorized by statute, rule, ordinance or code. A general grant of authority normally does not constitute a basis for imposing a licensing requirement or condition.

• Unless specifically authorized, the City shall avoid duplication of other laws that do not enhance regulatory clarity and shall avoid dual permitting to the maximum extent practicable.

• ARS 9-834 does not prohibit flexibility to issue licenses or adopt ordinances or codes.

LICENSING TIME FRAMES(ARS 9-835)

• For a NEW ordinance requiring a license, City shall have in place an overall time frame during which the City will either grant or deny the license. The overall time frame for each type of license shall state separately the administrative completeness review time frame and the substantive review time frame.

• For licenses required to be issued under EXISTING ordinances, City shall have in place on or before December 31, 2012, an overall time frame for granting or denying each type of license. The overall time frame for each type of license shall state separately the administrative completeness review time frame and the substantive review time frame. The City shall prioritize establishment of time frames for licenses that have greatest impact on the public.

• Time frame factors. In establishing time frames, City shall consider:– The complexity of the licensing subject matter.– The resources of the City.– The economic impact of delay on the regulated community.– The impact of the licensing decision on public health and safety.– The possible use of volunteers with expertise in the subject

matter area.– The possible increased use of general licenses for similar types

of licensed businesses or facilities.– The possible increased cooperation between the City and the

regulated community.– Increased municipal flexibility in structuring the licensing process

and personnel including:• Adult businesses and other licenses that are related to first

amendment

• Master planned communities

• Suspension of the substantive and overall time frames for the purposes including public hearings or state or federal licenses.

• Administrative completeness review process.– Issue notice of administrative completeness or deficiencies to

applicant within the administrative completeness review time frame.

– If application is not administratively complete, City shall include a comprehensive list of the specific deficiencies in the notice.

• The review and the overall time frame are suspended from the date the notice is issued until the date City receives the missing information from the applicant.

• City may issue an additional notice of completeness or deficiency based on the applicant’s submission of the missing information.

– If notice is not issued within the administrative completeness review time frame, the application is deemed administratively complete. If a notice of deficiencies is timely issued, the application shall not be complete until all requested information has been received by the City.

• Substantive review process– During the substantive review time frame, City may make one

(1) comprehensive written/electronic request for additional information.

– City and the applicant may mutually agree in writing or electronically to allow the City to submit supplemental requests for additional information.

– If City issues the comprehensive request or a supplemental request by mutual agreement for additional information, the substantive review time frame and the overall time frame are suspended from the date the request is issued until the date that City receives the additional information from the applicant.

– By mutual agreement, City and an applicant may extend the substantive review time frame and the overall time frame. An extension of these time frames may not exceed 25% of the overall time frame.

• Grant/Denial. Unless City and applicant agree to a time extension, City shall issue notice granting or denying the license. If City denies the license, City shall include in the notice at least the following:– Justification for the denial w/references to the law or policy on which

the denial is based.

– An explanation of the applicant’s right to appeal the denial.

• Refund. If City does not issue the notice within the overall time frame or the agreed upon time extension, City shall refund all fees charged for reviewing the application and shall excuse payment of any fees not yet paid. – Applicant shall not be required to submit an application for a refund.

– Refund shall be made within 30 working days after expiration of the time frame.

– City shall continue to process the application. – City shall make the refund from the fund in which the fees were

originally deposited.

• ARS 9-835 does not apply to licenses issued within 7 working days after receipt of the initial application or to a permit that expire within 21 working days after issuance.

LICENSING APPLICATION PROCESS(ARS 9-836)

• City shall provide the following information at the time the applicant obtains an application for a license:– A list of all of the steps the applicant is required to take in order

to obtain the license.– The applicable licensing time frames.– The name and phone number of a City contact person who can

answer questions or provide assistance throughout the application process.

– The website address and any other information, if applicable, to allow the regulated person to use electronic communication with the City.

– Notice that an applicant may receive a clarification from the City of its interpretation or application of a statute, ordinance, code or authorized substantive policy statement, as provided for in ARS 9-839.

DIRECTORY OF DOCUMENTS(ARS 9-837)

City shall publish, or prominently place on a City website, at least annually, a directory summarizing the subject matter of all currently applicable ordinances, codes and substantive policy statements. The City shall keep copies of this directory and all substantive policy statements at one location. The directory, ordinance, codes, substantive policy statements and any materials incorporated by reference in the documents shall be open to public inspection at the office of the City or the City website.

COMPLAINT & CITY COUNCIL REVIEW(ARS 9-838)

The City Council may receive complaints concerning ordinances, codes, substantive policy statements or City practices alleged to violate the new statutes; may review the item alleged to be a violation; and may hold hearings regarding the allegations. The City Council may recommend actions to alleviate the aspects of the ordinance, code, substantive policy statement or City practice alleged to violate the new statutes.

CLARIFICATION OF INTERPRETATION(ARS 9-839)

• A person may request that City clarify its interpretation or application of a statute, ordinance, code or authorized substantive policy statement affecting procurement of a license by providing City with a written request that states:

– The name and address of the person requesting the clarification

– The statute, ordinance, code or authorized substantive policy statement (or part of thereof) that requires clarification

– Any facts relevant to the requested ruling

– The person’s proposed interpretation

– Whether, to the person’s best knowledge, the issues or related issues are being considered by City in connection with an existing license or license application.

• On receipt of the request, City may meet with the person to discuss the request and shall respond within 30 calendar days with a written explanation of its interpretation or application. City shall provide the requestor with an opportunity to meet and discuss City’s written explanation.

• City may modify the written explanation upon written notice to the requestor if required by a change in the law that was applicable at the time the clarification/interpretation was issued, including changes caused by legislation, administrative rules formally adopted by the City Council, or a court decision.

EXEMPT ACTIVITIES(ARS 9-840)

• The new statutes affect ALL of the City’s regulatory activities, however,

• They do not apply to an ordinance, code, regulation or “substantive policy statement” that relates only to:

– Internal management and does not “directly and substantially” affect procedural or substantive rights or duties of any segment of the public.

– Physical servicing, maintenance or care of City owned or operated facilities or property.

– A City contract.