0001| HOUSE BILL 587
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0002| 42ND LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION,
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0003| 1996
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0004| INTRODUCED BY
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0005| CISCO MCSORLEY
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0006|
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0007|
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0008|
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0009|
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0010|
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0011| AN ACT
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0012| RELATING TO JUDICIAL REVIEW; PROMOTING UNIFORMITY WITH RESPECT
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0013| TO JUDICIAL REVIEW OF FINAL DECISIONS BY AGENCIES; AMENDING,
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0014| REPEALING AND ENACTING SECTIONS OF THE NMSA 1978.
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0015|
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0016| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0017| Section 1. A new Section 12-8A-1 NMSA 1978 is enacted to
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0018| read:
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0019| "12-8A-1. [NEW MATERIAL] APPEAL OF FINAL DECISIONS BY
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0020| AGENCIES TO DISTRICT COURT--APPLICATION--SCOPE OF REVIEW--REVIEW
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0021| OF DISTRICT COURT DECISIONS.--
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0022| A. The provisions of this section shall apply only
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0023| to judicial review of final decisions by agencies that are
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0024| placed under the authority of this section by specific statutory
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0025| reference or that are not covered by specific statutory
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0001| procedures regarding judicial review of final decisions by
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0002| agencies.
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0003| B. Upon issuing a final decision, an agency shall
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0004| promptly:
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0005| (1) prepare a written decision that includes an
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0006| order granting or denying relief and a statement of the factual
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0007| and legal basis for the order;
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0008| (2) file the written decision with the official
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0009| public records of the agency; and
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0010| (3) serve a document that includes a copy of
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0011| the written decision and the requirements for filing an appeal
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0012| of the final decision on:
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0013| (a) all parties whose rights are adjudged
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0014| by the final decision; and
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0015| (b) every person who has filed a written
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0016| request for notice of the final decision in that particular
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0017| proceeding.
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0018| C. Unless standing is further limited by a specific
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0019| statute, any person aggrieved by a final decision may appeal the
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0020| decision to district court by filing in district court a notice
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0021| of appeal within thirty days of the date of filing of the final
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0022| decision. The appeal may be taken to the district court for the
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0023| county in which the agency maintains its principal office or the
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0024| district court of any county in which a hearing on the matter
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0025| was conducted. When notices of appeal from a final decision are
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0001| filed in more than one district court, all appeals not filed in
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0002| the district court in which the first appeal was properly filed
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0003| shall be dismissed without prejudice. An appellant whose appeal
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0004| was dismissed without prejudice pursuant to the provisions of
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0005| this subsection shall have fifteen days after receiving service
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0006| of 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, reverse
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0010| or remand the final decision if it determines that:
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0011| (1) the agency acted fraudulently, arbitrarily
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0012| 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 seek
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0018| review of the district court decision by filing a petition for
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0019| writ of certiorari with the court of appeals, which may exercise
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0020| its discretion whether to grant review. A party may seek
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0021| further review by filing a petition for writ of certiorari with
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0022| 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 specific
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0006| statutory procedures regarding judicial review of final
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0007| 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 the
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0014| finality of decisions by district courts. "Final decision" does
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0015| not mean a decision by an agency on a rule, as defined in the
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0016| State Rules Act; and
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0017| (3) "hearing on the matter" means a proceeding
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0018| conducted by an agency or its hearing officer for the purpose of
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0019| taking evidence or hearing argument concerning the dispute
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0020| 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 qualified elector whose registration has been refused
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0001| or [by] the county chairman of any major political party who
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0002| alleges that certain persons are qualified electors but have
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0003| been refused registration may bring an appeal regarding the
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0004| refused registration pursuant to the provisions of Section
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0005| 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 AFTER
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0009| FILING OF PETITION TO ACT--CENSUS REQUIRED--ELECTION--RIGHT OF
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0010| 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 been filed with the
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0014| board of county commissioners, the board of county commissioners
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0015| shall, in lieu of complying with the requirements of Section
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0016| 3-1-5 NMSA 1978, within thirty days after the filing of the
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0017| 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 delinquent in the payment of property taxes; and
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0025| (3) if the territory proposed to be
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0001| incorporated is within an existing municipality or within the
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0002| urbanized area of a municipality.
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0003| B. If the board of county commissioners determines
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0004| that the territory proposed to be incorporated is:
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0005| (1) not within the boundary of an existing
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0006| municipality and not within the urbanized area of a
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0007| municipality; or
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0008| (2) that the conditions for incorporation of a
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0009| municipality within the urbanized area of another municipality
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0010| as established in Section 3-2-3 NMSA 1978 have been met,
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0011| the board of county commissioners shall cause a census to be
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0012| taken of the persons residing within the territory proposed to
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0013| be incorporated. The census shall be completed and filed with
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0014| the board of county commissioners within thirty days after the
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0015| board of county commissioners authorizes the taking of the
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0016| census.
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0017| C. Within fifteen days after the date the results of
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0018| the census have been filed with the board of county
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0019| commissioners, the board of county commissioners shall determine
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0020| if the conditions for incorporation of the territory as a
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0021| municipality have been met as required in Sections 3-2-1 through
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0022| 3-2-3 NMSA 1978 and [the board of county commissioners] shall
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0023| have its determination recorded in the minutes of its meeting.
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0024| D. If the board of county commissioners determines
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0025| that the conditions for incorporation have not been met, the
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0001| board of county commissioners shall notify the petitioners of
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0002| its [determinations] determination by publishing in a
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0003| newspaper of general circulation in the territory proposed to be
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0004| incorporated, once, not more than ten days after its
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0005| determination, a notice of its determination that the conditions
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0006| for incorporation have not been met. If there is no newspaper
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0007| of general circulation in the territory proposed to be
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0008| incorporated, notice of the determination shall be posted in
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0009| eight public places within the territory proposed to be
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0010| incorporated.
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0011| E. After the board of county commissioners has
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0012| determined that all of the conditions for incorporation of the
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0013| territory as a municipality have been met, the board of county
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0014| commissioners shall hold an election on the question of
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0015| incorporating the territory as a municipality. Elections for
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0016| the incorporation of [municipalties] municipalities shall
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0017| only be held in odd-numbered years upon the first Tuesday in
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0018| July or in any year upon the first Tuesday in January, unless
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0019| [such] that Tuesday is a holiday, in which case the election
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0020| shall be held on the second Tuesday in July or the second
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0021| Tuesday in January. The county clerk shall notify the secretary
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0022| of finance and administration and the secretary of taxation and
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0023| revenue of the date of [such] the incorporation election
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0024| within ten days after the adoption of the resolution calling the
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0025| election.
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0001| F. The signers of the petition or any municipality
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0002| within whose urbanized area the territory proposed to be
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0003| incorporated is located may appeal any determination of the
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0004| board of county commissioners to the district court pursuant to
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0005| the provisions of Section 12-8A-1 NMSA 1978."
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0006| Section 4. Section 3-2-9 NMSA 1978 (being Laws 1965,
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0007| Chapter 300, Section 14-2-8, as amended) is amended to read:
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0008| "3-2-9. INCORPORATION COMPLETE--JUDICIAL NOTICE--DEFECTS
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0009| IN INCORPORATION--[CONTEST] APPEAL.--
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0010| A. After certified copies of the papers relating to
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0011| the incorporation of a municipality have been filed in the
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0012| offices of the county clerk and the secretary of state and after
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0013| the municipal officers have been elected and qualified, the
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0014| incorporation of the municipality shall be complete and
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0015| effective on the following January 1 if the election was held in
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0016| July or on the following July 1 if the election was held in
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0017| January, and notice of the incorporation shall be taken in all
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0018| judicial proceedings.
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0019| B. An action by a protestant against the
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0020| incorporation of a municipality shall be taken to the district
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0021| 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 of
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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 incorporation,
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formation or organization of a municipality is perpetually
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barred] pursuant to the provisions of Section 12-8A-1 NMSA
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0005| 1978."
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0006| Section 5. Section 3-19-8 NMSA 1978 (being Laws 1965,
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0007| Chapter 300, Section 14-18-8) is amended to read:
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0008| "3-19-8. APPEAL.--[A.] Any person in interest
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0009| [(1)] dissatisfied with any order or
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0010| determination of the planning commission, [and
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(2)] after review of the order or
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0012| determination by the governing body of the municipality, may
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0013| 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 by
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injunction, mandamus or any other extraordinary remedy. In any
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action, the complaint shall be served with the summons. Appeal
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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 governed
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by the rules of civil procedure of the district court.
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D. Except as provided in this section, all processes
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shall be served and the practice and rules of evidence shall be
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the same as in civil action] pursuant to the provisions of
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0002| Section 12-8A-1 NMSA 1978."
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0003| Section 6. Section 3-21-4 NMSA 1978 (being Laws 1977,
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0004| Chapter 80, Section 3) is amended to read:
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0005| "3-21-4. EXTRATERRITORIAL ZONING ORDINANCE--ENFORCEMENT
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0006| AND ADMINISTRATION--APPEALS.--
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0007| A. A zoning ordinance adopted by a joint municipal-county zoning authority shall be an ordinance of the
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0008| municipality and an ordinance of the county joining in the
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0009| 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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0011| procedures of either the municipality or the county. The
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0012| agreement entered into pursuant to Subsection A of Section
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0013| [14-20-2.2 NMSA 1953] 3-21-3 NMSA 1978 may specify whether
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0014| the municipality or the county shall assume primary enforcement
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0015| responsibility.
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0016| B. The extraterritorial zoning commission shall
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0017| administer the zoning ordinance adopted by the joint municipal-county zoning authority in the manner provided in Subsection C
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0018| of Section [14-20-5 NMSA 1953] 3-21-7 NMSA 1978.
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0019| C. Appeals from the decisions of the
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0020| extraterritorial zoning commission shall be taken to the joint
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0021| municipal-county zoning authority in the manner provided in
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0022| Section [14-20-6 NMSA 1953] 3-21-8 NMSA 1978, and appeals
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0023| from the decisions of the joint municipal-county zoning
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0024| authority shall be taken to the district court in the manner
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0025| provided in Section [14-20-7 NMSA 1953] 12-8A-1 NMSA 1978."
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0001| Section 7. Section 3-21-9 NMSA 1978 (being Laws 1965,
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0002| Chapter 300, Section 14-20-7) is amended to read:
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0003| "3-21-9. ZONING--[PETITION FOR COURT REVIEW--TIME LIMIT--CERTIORARI--RESTRAINING ORDER--RETURN--HEARING--REFERENCE--COSTS--PRECEDENCE] APPEAL.--[A.] Any person aggrieved by a
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0004| decision of the zoning authority or any officer, department,
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0005| board or bureau of the zoning authority may [present to the
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district court a petition, duly verified, setting forth that the
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decision is illegal in whole or in part and specifying the
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grounds of the illegality. The petition shall be presented to
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the court within thirty days after the decision is entered in
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the records of the clerk of the zoning authority.
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B. Upon presentation of the petition, the court may
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allow a writ of certiorari directed to the zoning authority to
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review its decision and shall prescribe the time in which a
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return must be made, which shall not be less than ten days and
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may be extended by the court and shall be served upon the
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relator's attorney. The allowance of the writ shall not stay
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proceedings upon the decision appealed from, but the court may,
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on application, on notice and on due cause shown, grant a
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restraining order.
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C. In answering said writ, it shall not be necessary
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to return the original papers acted upon, but it shall be
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sufficient to return certified or sworn copies thereof or of
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such portions thereof as may be called for by such writ. The
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return shall concisely set forth such further facts as may be
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pertinent or material to show the grounds of the decision
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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 matter,
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it may take evidence or appoint a referee to take such evidence
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as it may direct and report the same to the court with his
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findings of fact and conclusions of law which shall constitute a
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part of the proceedings upon which the determination of the
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court shall be made. The court may reverse, affirm or modify
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the decision brought up for review.
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E. Costs shall not be allowed against the respondent
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unless it appears to the court that he acted with gross
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negligence, in bad faith or with malice in making the decision
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appealed from] appeal the decision pursuant to the provisions
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0014| of Section 12-8A-1 NMSA 1978."
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0015| Section 8. Section 3-33-13 NMSA 1978 (being Laws 1965,
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0016| Chapter 300, Section 14-32-6, as amended) is amended to read:
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0017| "3-33-13. IMPROVEMENT DISTRICT--PROVISIONAL ORDER--PROTEST--[ACTION IN] APPEAL TO DISTRICT COURT.--
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0018| A. At the hearing of the governing body on the
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0019| provisional order creating an improvement district, any
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0020| interested person or owner of property to be assessed for the
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0021| improvement may file a written protest or objection questioning
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0022| the:
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0023| (1) propriety and advisability of constructing
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0024| the improvement;
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0025| (2) estimated cost of the improvement;
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0001| (3) manner of paying for the improvement; or
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0002| (4) estimated maximum benefit to each
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0003| individual tract or parcel of land.
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0004| B. The governing body may recess the hearing from
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0005| time to time so that all protestants may be heard.
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0006| C. Within thirty days after the governing body has,
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0007| by adoption of a resolution:
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0008| (1) concluded the hearing;
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0009| (2) determined:
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0010| (a) the advisability of constructing the
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0011| improvement; and
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0012| (b) the type and character of the
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0013| improvement; and
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0014| (3) created the improvement district,
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0015| any person who during the hearing filed a written protest with
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0016| the governing body protesting the construction of the
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0017| 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 resolution
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by the governing body, any action attacking the validity of the
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proceedings and the amount of benefit to be derived from the
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improvement is perpetually barred] appeal the determination of
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0023| the governing body pursuant to the provisions of Section 12-8A-1
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0024| NMSA 1978.
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0025| D. Where no person has filed a written protest
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0001| during the hearing and all owners of property to be assessed,
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0002| upon conclusion of the hearing, submit to the governing body
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0003| written statements in favor of the creation of the improvement
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0004| district for the types and character of improvements indicated
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0005| in the provisional order, such owners shall be deemed to have
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0006| waived their right to bring any action challenging the validity
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0007| of the proceedings or the amount of benefit to be derived from
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0008| the improvements."
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0009| Section 9. Section 3-33-16 NMSA 1978 (being Laws 1965,
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0010| Chapter 300, Section 14-32-9, as amended) is amended to read:
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0011| "3-33-16. IMPROVEMENT DISTRICT--PRELIMINARY HEARING--PROTEST--ACTION OF THE GOVERNING BODY--[ACTION IN] APPEAL TO
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0012| DISTRICT COURT.--
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0013| A. At the preliminary hearing of the governing body
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0014| on the question of creating an improvement district as
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0015| authorized in Section 3-33-14 NMSA 1978, any owner of a tract or
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0016| parcel of land to be assessed may contest:
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0017| (1) the proposed assessment;
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0018| (2) the regularity of the proceedings relating
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0019| to the improvement;
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0020| (3) the benefits of the improvement; or
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0021| (4) any other matter relating to the
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0022| improvement district.
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0023| B. The governing body shall not assess the tract or
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0024| parcel of land an amount greater than the actual benefit to the
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0025| tract or parcel of land by reason of the enhanced value of the
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0001| tract or parcel of land as a result of the improvement as
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0002| ascertained at the hearing. The governing body may allow a fair
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0003| price, based on its [present] current value, as a set-off
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0004| against any assessment against a tract or parcel of land if the
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0005| owner has improved the tract or parcel of land in such a manner
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0006| that the improvement may be made part of the proposed
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0007| improvement.
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0008| C. At the hearing, the governing body may:
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0009| (1) correct any mistake or irregularity in any
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0010| proceeding relating to the improvement;
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0011| (2) correct an assessment made against any
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0012| tract or parcel of land;
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0013| (3) in case of any invalidity, reassess the
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0014| cost of the improvement against a benefiting tract or parcel of
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0015| land; [and] or
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0016| (4) recess the hearing from time to time.
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0017| D. [Within thirty days after the hearing] Any
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0018| owner of a tract or parcel of land assessed, whether he appeared
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0019| at the hearing or not, may commence an [action] appeal in
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0020| district court [seeking an account of any error or invalidity
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of the proceedings relating to the improvement district to set
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aside or correct the assessment or any proceedings relating to
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the improvement district. Thereafter, any owner, his heirs,
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assigns, successors or personal representatives are perpetually
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barred from any action or any defense of error or invalidity in
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the proceedings or assessments. Where no owner of a tract or
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parcel to be assessed has presented a protest during the hearing
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and all owners of the property to be assessed upon conclusion of
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the hearing submit written statements in favor of the creation
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of 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 of
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the proceedings relating to the improvement district or to set
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aside or correct the assessment or any proceedings relating to
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the improvement district] pursuant to the provisions of
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0012| Section 12-8A-1 NMSA 1978."
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0013| Section 10. Section 3-33-22 NMSA 1978 (being Laws 1965,
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0014| Chapter 300, Section 14-32-15, as amended) is amended to read:
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0015| "3-33-22. IMPROVEMENT DISTRICT--FILING OF OBJECTIONS--
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0016| ASSESSMENT HEARING--ACTION OF THE GOVERNING BODY--APPEAL TO
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0017| DISTRICT COURT.--
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0018| A. Not later than three days before the date of the
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0019| hearing on the assessment roll, any owner of a tract or parcel
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0020| of land [which] that is listed on the assessment roll may
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0021| file his specific objections in writing with the municipal
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0022| clerk. Unless presented as required in this section, any
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0023| objection to the regularity, validity and correctness of:
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0024| (1) the proceedings;
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0025| (2) the assessment roll;
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0001| (3) each assessment contained on the assessment
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0002| roll; or
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0003| (4) the amount of the assessment levied against
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0004| each tract or parcel of land,
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0005| is deemed waived.
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0006| B. At the hearing, the governing body shall hear all
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0007| objections that have been filed as provided in this section and
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0008| may recess the hearing from time to time and, by resolution,
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0009| revise, correct, confirm or set aside any assessment and order
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0010| another assessment be made de novo.
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0011| C. The governing body by ordinance shall, by
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0012| reference to such assessment roll as so modified, if modified,
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0013| and as confirmed by such resolution, levy the assessments
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0014| contained in the assessment roll. The assessments may be levied
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0015| in stages if preliminary liens are established pursuant to
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0016| Section 3-33-11 NMSA 1978. The decision, resolution and
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0017| ordinance of the governing body is:
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0018| (1) a final determination of the regularity,
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0019| validity and correctness of:
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0020| (a) the proceedings;
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0021| (b) the assessment roll;
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0022| (c) each assessment contained on the
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0023| assessment roll; and
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0024| (d) the amount of the assessment levied
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0025| against each tract or parcel of land; and
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0001| (2) conclusive upon the owners of the tract or
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0002| parcel of land assessed.
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0003| D. [Within fifteen days after the publication of
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the title and general summary of the ordinance or posting of the
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ordinance] Any owner who has filed an objection as provided in
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0006| this section may commence an [action] appeal in district
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0007| court [to correct or set aside the determination of the
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governing body. After the lapse of fifteen days after the
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publication or posting, all actions that include the defense of
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confiscation or attack the regularity, validity and correctness
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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 assessment
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roll; or
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(4) the amount of the assessment levied against
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each tract or parcel of land,
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are perpetually barred] pursuant to the provisions of Section
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0019| 12-8A-1 NMSA 1978."
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0020| Section 11. Section 3-33-35 NMSA 1978 (being Laws 1965,
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0021| Chapter 300, Section 14-32-30) is amended to read:
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0022| "3-33-35. IMPROVEMENT DISTRICT--NOTICE OF APPEAL--APPEAL
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0023| TO DISTRICT COURT [APPEAL TO SUPREME COURT].--[A.] After an
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0024| owner has filed a written objection with the municipal clerk to
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0025| any reassessment as provided in Section [14-32-15 New Mexico
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Statutes Annotated, 1953 Compilation] 3-33-22 NMSA 1978 and
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0002| the governing body has determined the reassessment, any owner of
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0003| a tract or parcel of land that is reassessed may [within ten
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days after the reassessment roll has been ratified by
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ordinance] file a notice of appeal to the district court.
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0006| [The notice to the municipal clerk shall describe the tract or
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parcel of land being reassessed and shall state the objections
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of the appellant to the reassessment.
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B. Within twenty days after the reassessment roll
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has been ratified by ordinance, the appellant shall file with
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the clerk of the district court copies of the:
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(1) notice of appeal;
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(2) appeal;
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(3) reassessment roll;
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(4) reassessment proceedings, all certified by
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the municipal clerk; and
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(5) a bond to the municipality conditioned to
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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
|
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
|
0024| filed pursuant to the provisions of Section 12-8A-1 NMSA 1978."
|
0025| Section 12. Section 3-35-3 NMSA 1978 (being Laws 1965,
|
0001| Chapter 300, Section 14-34-3) is amended to read:
|
0002| "3-35-3. HEARING ON PROVISIONAL ORDER--PROTEST BY PROPERTY
|
0003| OWNER OR INTERESTED PERSON--[ACTION TO CORRECT OR SET ASIDE
|
DETERMINATION] APPEAL.--At the hearing on a provisional
|
0005| order, any property owner or interested person may file a
|
0006| written protest and may be heard by the governing body on the
|
0007| order. Any person filing a written protest may [within thirty
|
days after the governing body has finally passed on the protest,
|
bring an action in the 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 appeal concerning the governing body's
|
0013| determination on the protest pursuant to the provisions of
|
0014| Section 12-8A-1 NMSA 1978."
|
0015| Section 13. Section 3-39-23 NMSA 1978 (being Laws 1965,
|
0016| Chapter 300, Section 14-40-21) is amended to read:
|
0017| "3-39-23. JUDICIAL REVIEW.--
|
0018| A. Any person aggrieved by any decision of the board
|
0019| of appeals, or any taxpayer, or any officer, department, board
|
0020| or bureau of the political 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
|
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 of
|
0024| Section 12-8A-1 NMSA 1978.
|
0025| [E.] B. Costs shall not be allowed against the
|
0001| board of appeals unless it appears to the court that it acted
|
0002| with gross negligence, in bad faith or with malice in making the
|
0003| decision appealed from."
|
0004| Section 14. Section 3-46-43 NMSA 1978 (being Laws 1965,
|
0005| Chapter 300, Section 14-47-19) is amended to read:
|
0006| "3-46-43. ORDINANCES RELATING TO REPAIR, CLOSING AND
|
0007| DEMOLITION OF DWELLINGS UNFIT FOR HUMAN HABITATION--COMPLAINT--SERVICE OF COMPLAINT--APPEAL.--
|
0008| A. Whenever any municipality finds that there exist
|
0009| dwellings [which] that are unfit for human habitation due to
|
0010| dilapidation, defects increasing the hazards of fire, accidents
|
0011| or other calamities, lack of ventilation, light or sanitary
|
0012| facilities or due to other conditions, including those set forth
|
0013| in Subsection C [hereof] of this section, rendering [such]
|
0014| the dwellings unsafe and [insanitary] unsanitary or
|
0015| dangerous or detrimental to the health, safety or morals or
|
0016| otherwise inimical to the welfare of the residents of [such]
|
0017| the municipality, power is [hereby] conferred upon the
|
0018| municipality to require or cause the repair, closing or
|
0019| demolition or removal of the dwelling in the manner [herein]
|
0020| provided in this section. A "dwelling" means any building or
|
0021| structure or part thereof used and occupied for human habitation
|
0022| or intended to be so used and includes any appurtenances usually
|
0023| enjoyed [therewith] in the dwelling.
|
0024| B. Upon the adoption of an ordinance finding that
|
0025| dwelling conditions of the character described in Subsection A
|
0001| of this section exist, the governing body of the municipality
|
0002| is authorized to adopt ordinances relating to the dwellings
|
0003| within the municipality [which] that are unfit for human
|
0004| habitation. The ordinances shall include the following
|
0005| provisions:
|
0006| (1) a public officer shall be designated or
|
0007| appointed to exercise the powers prescribed by the ordinances;
|
0008| (2) whenever it appears to the public officer,
|
0009| on his own motion, that any dwelling is unfit for human
|
0010| habitation, he shall, if his preliminary investigation discloses
|
0011| a basis for [such] the charges, issue and cause to be served
|
0012| on the owner, every mortgagee of record and all parties in
|
0013| interest in the dwelling, including persons in possession, a
|
0014| complaint stating the charges in that respect. The complaint
|
0015| shall contain a notice that a hearing will be held before the
|
0016| public officer or his designated agent at a place [therein]
|
0017| fixed in the complaint not less than ten days nor more than
|
0018| thirty days after the serving of the complaint; that the owner,
|
0019| mortgagee and parties in interest shall be given the right to
|
0020| file an answer to the complaint and to appear in person or
|
0021| otherwise and give testimony at the place and the time fixed in
|
0022| the complaint; and that the rules of evidence prevailing in
|
0023| courts of law or equity shall not be controlling in hearings
|
0024| before the public officer;
|
0025| (3) if after [such] the notice and hearing
|
0001| the public officer determines that the dwelling under
|
0002| consideration is unfit for human habitation, he shall state in
|
0003| writing his findings of fact in support of [such] that
|
0004| determination and shall issue and cause to be served upon the
|
0005| owner an order in writing [which] that advises the owner of
|
0006| his rights under Subsection E of this section and [which]
|
0007| that:
|
0008| (a) if the repair, alteration or
|
0009| improvement of the dwelling can be made at a reasonable cost in
|
0010| relation to the value of the dwelling, the ordinance of the
|
0011| municipality shall fix a certain percentage of the cost as being
|
0012| reasonable for [such] that purpose, requires the owner,
|
0013| within the time specified in the order, to repair, alter or
|
0014| improve the dwelling to render it fit for human habitation or to
|
0015| vacate and close the dwelling as a human habitation; or
|
0016| (b) if the repair, alteration or
|
0017| improvement of the dwelling cannot be made at a reasonable cost
|
0018| in relation to the value of the dwelling, the ordinance of the
|
0019| municipality shall fix a certain percentage of the cost as being
|
0020| reasonable for the purpose, requires the owner, within the time
|
0021| specified in the order, to remove or demolish the dwelling;
|
0022| (4) if the owner fails to comply with an order
|
0023| to repair, alter or improve or to vacate and close the dwelling,
|
0024| the public officer may cause the dwelling to be repaired,
|
0025| altered or improved or to be vacated and closed;
|
0001| (5) if the owner fails to comply with an order
|
0002| to remove or demolish the dwelling, the public officer may cause
|
0003| the dwelling to be removed or demolished; and
|
0004| (6) the amount of the cost of the repairs,
|
0005| alterations or improvements or vacating and closing or removal
|
0006| or demolition by the public officer shall be a lien against the
|
0007| real property upon which the cost was incurred. If the dwelling
|
0008| is removed or demolished by the public officer, he shall sell
|
0009| the materials of the dwelling and shall credit the proceeds of
|
0010| the sale against the cost of the removal or demolition, and any
|
0011| balance remaining shall be deposited in the district court by
|
0012| the public officer, shall be secured in the manner as may be
|
0013| directed by the court and shall be disbursed by the court to the
|
0014| persons found to be entitled [thereto] to the balance by
|
0015| final order or decree of the court.
|
0016| C. An ordinance adopted by a municipality pursuant
|
0017| to this section shall provide that the public officer may
|
0018| determine a dwelling is unfit for human habitation if he finds
|
0019| that conditions exist in [such] the dwelling [which]
|
0020| that are dangerous or injurious to the health, safety or
|
0021| morals of the occupants of the dwelling, the occupants of
|
0022| neighboring dwellings or other residents of the municipality or
|
0023| [which] that have a blighting influence on properties in the
|
0024| area. The conditions may include the following, without
|
0025| limitations: defects [therein] increasing the hazards of
|
0001| fire, accident or other calamities; lack of adequate
|
0002| ventilation, light or sanitary facilities; dilapidation; dis-
|
0003| repair; structural defects; uncleanliness; overcrowding;
|
0004| inadequate ingress and egress; inadequate drainage; or any
|
0005| violation of health, fire, building or zoning regulations or any
|
0006| other laws or regulations relating to the use of land and the
|
0007| use and occupancy of buildings and improvements. The ordinance
|
0008| may provide additional standards to guide the public officer or
|
0009| his agents or employees in determining the fitness of a dwelling
|
0010| for human habitation.
|
0011| D. Complaints or orders issued by a public officer
|
0012| pursuant to an ordinance adopted under the provisions of the
|
0013| Urban [Renewal] Development Law shall be served upon persons
|
0014| either personally or by registered mail; but if the whereabouts
|
0015| of the persons are unknown and cannot be ascertained by the
|
0016| public officer in the exercise of reasonable diligence and the
|
0017| public officer [shall make] makes an affidavit to that
|
0018| effect, then the serving of the complaint or order upon the
|
0019| persons may be made by publishing the [same] complaint or
|
0020| order once each week for two consecutive weeks in a newspaper
|
0021| printed and published in the municipality or, in the absence of
|
0022| a newspaper, in one printed and published in the county and
|
0023| circulating in the municipality in which the dwellings are
|
0024| located. A copy of the complaint or order shall be posted in a
|
0025| conspicuous place on the premises affected by the complaint or
|
0001| order. A copy of the complaint or order shall also be filed
|
0002| with the clerk of the county in which the dwelling is located,
|
0003| and filing of the complaint or order shall have the same force
|
0004| and effect as other lis pendens notices provided by law.
|
0005| E. Any person affected by an order issued by the
|
0006| 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 provisions of Section
|
0024| 12-8A-1 NMSA 1978.
|
0025| F. An ordinance adopted by the governing body of the
|
0001| municipality may authorize the public officer to exercise
|
0002| [such] powers as may be necessary or convenient to carry out
|
0003| and effectuate the purposes and provisions of the Urban
|
0004| [Renewal] Development Law, including the following powers in
|
0005| addition to others [herein] granted in the Urban Development
|
0006| Law:
|
0007| (1) to investigate the dwelling conditions in
|
0008| the municipality in order to determine which dwellings
|
0009| [therein] are unfit for human habitation;
|
0010| (2) to administer oaths and affirmations,
|
0011| examine witnesses and receive evidence;
|
0012| (3) to enter upon premises for the purpose of
|
0013| making examinations, provided that the entries shall be made in
|
0014| a manner as to cause the least possible inconvenience to the
|
0015| persons in possession, and to obtain an order for this purpose
|
0016| from a court of competent jurisdiction in the event entry is
|
0017| denied or resisted;
|
0018| (4) to appoint and fix the duties of any
|
0019| officers, agents and employees as he deems necessary to carry
|
0020| out the purposes of [such] the ordinances; and
|
0021| (5) to delegate any of his functions and powers
|
0022| under [such] the ordinance to [such] officers, agents and
|
0023| employees [as] he may designate.
|
0024| G. The governing body of any municipality adopting
|
0025| an ordinance under this section shall, as soon as possible
|
0001| thereafter, prepare an estimate of the annual expenses or costs
|
0002| to provide the equipment, personnel and supplies necessary for
|
0003| periodic examinations and investigations of the dwellings in the
|
0004| municipality for the purpose of determining the fitness of the
|
0005| dwellings for human habitation and for the enforcement and
|
0006| administration of its ordinance or ordinances adopted under this
|
0007| section.
|
0008| H. Nothing in this section shall be construed to
|
0009| abrogate or impair the powers of the courts or of any department
|
0010| of any municipality to enforce any provisions of its charter or
|
0011| its ordinances or regulations [nor] or to prevent or punish
|
0012| violations thereof [and]. The powers conferred by this
|
0013| section shall be in addition and supplemental to the powers
|
0014| conferred by any other law.
|
0015| I. Nothing in this section shall be construed to
|
0016| impair or limit in any way the power of the municipality to
|
0017| define and declare nuisances and to cause their removal or
|
0018| abatement by summary proceedings or otherwise."
|
0019| Section 15. Section 3-51-12 NMSA 1978 (being Laws 1971,
|
0020| Chapter 173, Section 7) is amended to read:
|
0021| "3-51-12. FORMATION OF DISTRICT--PROVISIONAL ORDER
|
0022| HEARING--CONDUCT--APPEAL.--
|
0023| A. The owner [or owners] of any property within
|
0024| the proposed district may, not less than two days preceding the
|
0025| hearing, file with the clerk his specific objections in writing.
|
0001| Any objection to the regularity, validity and correctness of the
|
0002| proceedings, including the validity and amount of the
|
0003| preliminary fund assessment, shall be deemed waived unless
|
0004| presented at the time and in the manner [herein] specified in
|
0005| this subsection.
|
0006| B. At the time and place [so] designated for
|
0007| hearing the objections, the governing body of the city shall
|
0008| hear and determine all objections [which] that have been
|
0009| [so] filed, and [said] the governing body shall have the
|
0010| power to adjourn the hearing from time to time and shall have
|
0011| power by resolution, in its discretion, to revise, correct or
|
0012| confirm any proceedings [theretofore] previously taken.
|
0013| C. Within fifteen days after the publication of the
|
0014| ordinance forming the parking district, any person who has filed
|
0015| an objection [or objections], as [hereinbefore] provided in
|
0016| Subsection A of this section, shall have the right to appeal to
|
0017| 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
|
0023| provisions of Section 12-8A-1 NMSA 1978."
|
0024| Section 16. Section 4-45-5 NMSA 1978 (being Laws 1876,
|
0025| Chapter 1, Section 22, as amended) is amended to read:
|
0001| "4-45-5. ACCOUNTS AGAINST COUNTY--APPEAL FROM
|
0002| DISALLOWANCE.--[Sec. 163.] When any claim of any person
|
0003| against a county [shall be] is disapproved in whole or in
|
0004| part by the board of county commissioners, [such] that
|
0005| person may appeal from the decision of [such] the board to
|
0006| 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 provisions of Section
|
0013| 12-8A-1 NMSA 1978."
|
0014| Section 17. Section 4-55A-31 NMSA 1978 (being Laws 1980,
|
0015| Chapter 91, Section 31) is amended to read:
|
0016| "4-55A-31. IMPROVEMENT DISTRICT--[NOTICE OF APPEAL]--
|
0017| APPEAL TO DISTRICT COURT [APPEAL TO SUPREME COURT].--[A.]
|
0018| After an owner has filed a written objection with the county
|
0019| clerk to any reassessment as provided in Section [19 of the
|
County Improvement District Act] 4-55A-18 NMSA 1978 and the
|
0021| board has determined the reassessment, any owner of a tract or
|
0022| 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.
|
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,
|
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
|
0018| pursuant to the provisions of Section 12-8A-1 NMSA 1978."
|
0019| Section 18. Section 7-8-26 NMSA 1978 (being Laws 1989,
|
0020| Chapter 293, Section 27) is amended to read:
|
0021| "7-8-26. APPEAL--ACTION TO ESTABLISH CLAIM.--
|
0022| A. A person aggrieved by a decision of the
|
0023| administrator [or] may file an appeal pursuant to the
|
0024| provisions of Section 12-8A-1 NMSA 1978.
|
0025| B. A person whose claim has not been acted upon
|
0001| within ninety days after its filing may bring an action to
|
0002| establish the claim in the district court of Santa Fe, naming
|
0003| the administrator as a defendant. The action shall be brought
|
0004| [within ninety days after the decision of the administrator
|
or] within one hundred eighty days after the filing of the
|
0006| claim [if he has failed to act on it]. If the aggrieved
|
0007| person establishes the claim in an action against the
|
0008| administrator, the court shall award him costs and reasonable
|
0009| [attorney's] attorneys' fees."
|
0010| Section 19. Section 7-38-28 NMSA 1978 (being Laws 1973,
|
0011| Chapter 258, Section 68, as amended) is amended to read:
|
0012| "7-38-28. APPEALS FROM ORDERS OF THE DIRECTOR OR COUNTY
|
0013| VALUATION PROTESTS BOARDS.--
|
0014| A. A property owner may appeal an order made by the
|
0015| 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:
|
(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
|
0008| appeal pursuant to the provisions of Section 12-8A-1 NMSA 1978.
|
0009| [C.] B. The director shall notify the
|
0010| appropriate county assessor of the decision and order of the
|
0011| district court [of appeals] and shall direct the assessor to
|
0012| take appropriate action to comply with the decision and 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 order issued pursuant to the
|
0018| Public Employee Bargaining Act, including those for appropriate
|
0019| temporary relief and restraining orders. The court shall
|
0020| consider the request for enforcement on the record made before
|
0021| the board or local board. It shall uphold the action of the
|
0022| board or local board and take appropriate action to enforce it
|
0023| unless it concludes that the order is:
|
0024| (1) arbitrary, capricious or an abuse of
|
0025| discretion;
|
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 person or party, including any labor
|
0005| organization affected by a final regulation, order or decision
|
0006| of the board or a local board, may appeal to the district
|
0007| 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]
|
0018| pursuant to the provisions of Section 12-8A-1 NMSA 1978."
|
0019| Section 21. Section 10-9-18 NMSA 1978 (being Laws 1980,
|
0020| Chapter 47, Section 2) is amended to read:
|
0021| "10-9-18. APPEALS BY EMPLOYEES TO THE BOARD.--
|
0022| A. Any employee who is dismissed, demoted or
|
0023| suspended may, within thirty days after the dismissal, demotion
|
0024| or suspension, appeal to the board. The appealing employee and
|
0025| the agency whose action is reviewed have the right to be heard
|
0001| publicly and to present facts pertinent to the appeal.
|
0002| B. Any applicant denied permission to take an
|
0003| examination or who is disqualified may appeal to the board.
|
0004| C. The technical rules of evidence shall not apply
|
0005| to appeals to the board.
|
0006| D. A record shall be made of the hearing which shall
|
0007| be transcribed if there is an appeal to the district court.
|
0008| Costs of [such] the transcripts, including one copy for the
|
0009| board, shall be paid initially by the agency. The cost of
|
0010| [such] the transcripts may be [assesed] assessed by the
|
0011| court to the losing party on appeal.
|
0012| E. The board may designate a hearing officer who may
|
0013| be a member of the board or any qualified state employee to
|
0014| preside over and take evidence at any hearing held pursuant to
|
0015| this section. The hearing officer shall prepare and submit to
|
0016| the board a summary of the evidence taken at the hearing and
|
0017| proposed findings of fact. The board shall render a decision
|
0018| which shall include findings of fact and conclusions of law.
|
0019| F. If the board finds that the action taken by the
|
0020| agency was without just cause, the board may modify the
|
0021| disciplinary action or order the agency to reinstate the
|
0022| appealing employee to his former position or to a position of
|
0023| like status and pay. Every consideration shall be given to
|
0024| placing the appealing employee in the same geographical location
|
0025| in which he was employed prior to the disciplinary action. The
|
0001| board may recommend that the appealing employee be reinstated by
|
0002| an agency other than the one who disciplined the appealing
|
0003| employee. When the board orders an agency to reinstate an
|
0004| appealing employee, [such] the reinstatement shall be
|
0005| effective within thirty days of the board's order. The board
|
0006| may award back pay as of the date of the dismissal, demotion or
|
0007| suspension or as of [such] the later date as the board may
|
0008| specify.
|
0009| G. Any party aggrieved by the decision of the board
|
0010| made pursuant to this section may appeal the decision to the
|
0011| 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 court
|
may be taken to the court of appeals in accordance with the
|
rules of civil procedure] pursuant to the provisions of
|
0001| Section 12-8A-1 NMSA 1978."
|
0002| Section 22. Section 10-11-120 NMSA 1978 (being Laws 1987,
|
0003| Chapter 253, Section 120) is amended to read:
|
0004| "10-11-120. DENIAL OF BENEFIT CLAIM--APPEALS.--
|
0005| A. A benefit claimant shall be notified in writing,
|
0006| within thirty days, of denial of a claim for benefits. The
|
0007| notification shall give the reason for the denial. A claimant
|
0008| may appeal the denial and request a hearing. The appeal shall
|
0009| be in writing filed with the association within ninety days of
|
0010| the denial. The appeal shall contain a statement of the
|
0011| claimant's reason for claiming the denial to be improper. The
|
0012| retirement board shall schedule a hearing of the appeal before
|
0013| the retirement board or, at the discretion of the retirement
|
0014| board, a committee of the retirement board, within sixty days of
|
0015| receipt of the appeal. A final decision on the matter being
|
0016| appealed shall be made by the retirement board.
|
0017| B. Appeals from a final decision of the retirement
|
0018| 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
|
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 to
|
0005| the provisions of Section 12-8A-1 NMSA 1978."
|
0006| Section 23. Section 12-8-16 NMSA 1978 (being Laws 1969,
|
0007| Chapter 252, Section 16) is amended to read:
|
0008| "12-8-16. PETITION FOR JUDICIAL REVIEW.--[A.] Any party
|
0009| who has exhausted all administrative remedies available within
|
0010| the agency and who is adversely affected by a final order or
|
0011| 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
|
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.
|
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 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]
|
0025| may appeal pursuant to the provisions of Section 12-8A-1 NMSA
|
0001| 1978."
|
0002| Section 24. Section 13-1-183 NMSA 1978 (being Laws 1984,
|
0003| Chapter 65, Section 156) is amended to read:
|
0004| "13-1-183. JUDICIAL REVIEW--[LIMITATION--VENUE].--[A.]
|
0005| All actions authorized by the Procurement Code for judicial
|
0006| 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] filed pursuant to the
|
0022| provisions of Section 12-8A-1 NMSA 1978."
|
0023| Section 25. Section 13-4-15 NMSA 1978 (being Laws 1963,
|
0024| Chapter 304, Section 5, as amended) is amended to read:
|
0025| "13-4-15. APPEALS.--
|
0001| A. Any interested person may appeal any
|
0002| determination, finding or action of the director of the labor
|
0003| and industrial division of the labor department made pursuant to
|
0004| the Public Works Minimum Wage Act to the labor and industrial
|
0005| commission sitting as the appeals board by filing notice of the
|
0006| appeal with the director within fifteen days after the
|
0007| determination has been issued or notice of the finding or action
|
0008| has been given as provided in the Public Works Minimum Wage Act.
|
0009| B. The labor and industrial commission, sitting as
|
0010| the appeals board, shall adopt [such] rules and regulations as
|
0011| it deems necessary for the prompt disposition of appeals. A
|
0012| copy of the rules and regulations shall be filed with the
|
0013| librarian of the supreme court law library.
|
0014| C. The appeals board, within ten days after the
|
0015| filing of the appeal, shall set the matter for an oral hearing
|
0016| within thirty days and, following [such] the hearing, shall
|
0017| enter a decision within ten days after the close of the hearing
|
0018| and promptly mail copies of the decision to the parties.
|
0019| D. Decisions of the appeals board may be [reviewed
|
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
|
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 the
|
0025| provisions of Section 12-8A-1 NMSA 1978."
|
0001| Section 26. Section 17-3-34 NMSA 1978 (being Laws 1912,
|
0002| Chapter 85, Section 35, as amended) is amended to read:
|
0003| "17-3-34. REVOCATION OF LICENSE, CERTIFICATE OR PERMIT FOR
|
0004| VIOLATION OF LAW--NOTICE AND HEARING--JUDICIAL REVIEW.--
|
0005| A. If the holder of any license, certificate or
|
0006| permit [shall] persistently, flagrantly or knowingly
|
0007| [violate] violates or [countenance] countenances the
|
0008| violation of any of the provisions of Chapter [53, NMSA 1953]
|
0009| 17 NMSA 1978 or of any regulations referred to in Section
|
0010| [53-2-9 NMSA 1953, such]
|
0011| 17-2-10 NMSA 1978, the license, certificate or permit shall be
|
0012| revoked by the state game commission after reasonable notice
|
0013| given the accused of the alleged violation and an opportunity
|
0014| afforded to appear and show cause against the charges.
|
0015| B. At the hearing, the state game commission shall
|
0016| cause a record of the hearing to be made and shall allow the
|
0017| person charged to examine witnesses testifying at the hearing.
|
0018| Any person whose license, certificate or permit has been revoked
|
0019| by the commission may appeal to the district court [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]
|
0002| pursuant to the provisions of Section 12-8A-1 NMSA 1978."
|
0003| Section 27. Section 19-7-17 NMSA 1978 (being Laws 1963,
|
0004| Chapter 237, Section 4) is amended to read:
|
0005| "19-7-17. APPEAL.--Any person in interest aggrieved by the
|
0006| decision of the commissioner in fixing the value of improvements
|
0007| or in collecting costs may appeal to the 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]
|
0011| pursuant to the provisions of Section 12-8A-1 NMSA 1978."
|
0012| Section 28. Section 19-7-67 NMSA 1978 (being Laws 1912,
|
0013| Chapter 82, Section 72, as amended) is amended to read:
|
0014| "19-7-67. CONTEST--COMMISSIONER--APPEAL TO DISTRICT COURT
|
0015| [PROCEDURE].--[Sec. 73.] Any person aggrieved by any
|
0016| decision of the commissioner may appeal to the district court
|
0017| [of any county wherein any portion of the land 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
|
0004| 1978."
|
0005| Section 29. Section 19-10-23 NMSA 1978 (being Laws 1929,
|
0006| Chapter 125, Section 16, as amended) is amended to read:
|
0007| "19-10-23. APPEAL OF COMMISSIONER'S DECISION.--Any
|
0008| person or corporation aggrieved by any ruling or decision of the
|
0009| commissioner affecting his interest in any lease issued under or
|
0010| affected by the provisions relating to oil and gas leases of
|
0011| 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 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
|
0002| appeal pursuant to the provisions of Section 12-8A-1 NMSA
|
0003| 1978."
|
0004| Section 30. Section 21-24-8 NMSA 1978 (being Laws 1971,
|
0005| Chapter 304, Section 8, as amended) is amended to read:
|
0006| "21-24-8. JUDICIAL REVIEW.--Any final determination of the
|
0007| commission respecting the issuance, denial or revocation of a
|
0008| registration may be appealed to the district court pursuant to
|
0009| the provisions of Section 12-8A-1 NMSA 1978."
|
0010| Section 31. Section 22-10-22 NMSA 1978 (being Laws 1967,
|
0011| Chapter 16, Section 124, as amended) is amended to read:
|
0012| "22-10-22. SUSPENSION AND REVOCATION OF CERTIFICATES--APPEAL.--
|
0013| A. The state board may suspend or revoke a
|
0014| certificate held by a certified school instructor or
|
0015| administrator for incompetency, immorality or for any other good
|
0016| and just cause.
|
0017| B. A certificate may be suspended or revoked only
|
0018| according to the following procedure:
|
0019| (1) the state board serving written notice of
|
0020| the suspension or revocation on the person holding the
|
0021| certificate in accordance with the law for service of process in
|
0022| civil actions. The notice of the suspension or revocation shall
|
0023| state the grounds for the suspension or revocation of the
|
0024| certificate. The notice of the suspension or revocation shall
|
0025| also designate a place, time and date, not less than thirty days
|
0001| from the date of the service of the notice of the suspension or
|
0002| revocation, for a hearing before the state board;
|
0003| (2) the state board or its designated hearing
|
0004| officer conducting a hearing [which] that provides the
|
0005| person holding the certificate, or his attorney, an opportunity
|
0006| to present evidence or arguments on all pertinent issues. A
|
0007| transcript shall be made of the entire hearing conducted by the
|
0008| state board or its designated hearing officer; and
|
0009| (3) the state board rendering a written
|
0010| decision in accordance with the law and based upon evidence
|
0011| presented and admitted at the hearing. The written decision
|
0012| shall include findings of fact and conclusions of law and
|
0013| shall be based upon the findings of fact and the conclusions
|
0014| of law. A written copy of the decision of the state board shall
|
0015| be served upon the person holding the certificate within sixty
|
0016| days from the date of the hearing. Service of the written copy
|
0017| of the decision shall be in accordance with the law for service
|
0018| of process in civil actions or by certified mail to the person's
|
0019| address of record.
|
0020| C. Any person aggrieved by a decision of the state
|
0021| board after a hearing pursuant to this section may appeal the
|
0022| 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;
|
(2) not supported by substantial evidence; or
|
(3) otherwise not in accordance with law]
|
0007| district court pursuant to the provisions of Section 12-8A-1
|
0008| NMSA 1978."
|
0009| Section 32. Section 24-1-5 NMSA 1978 (being Laws 1973,
|
0010| Chapter 359, Section 5, as amended) is amended to read:
|
0011| "24-1-5. LICENSURE OF HEALTH FACILITIES--HEARINGS--APPEALS.--
|
0012| A. No health facility shall be operated without a
|
0013| license issued by the department. If a health facility is found
|
0014| to be operating without a license, in order to protect human
|
0015| health or safety the director may issue a cease-and-desist
|
0016| order. The health facility may request a hearing [which]
|
0017| that shall be held in the manner provided in this section.
|
0018| B. The department is authorized to make [such]
|
0019| inspections and investigations and prescribe [such]
|
0020| regulations as it deems necessary or desirable to promote the
|
0021| health, safety and welfare of persons [utilizing] using
|
0022| health facilities.
|
0023| C. Except as provided in Subsection F of this
|
0024| section, upon receipt of an application for a license to operate
|
0025| a health facility, the department shall promptly inspect the
|
0001| health facility to determine if it is in compliance with all
|
0002| regulations of the department. Applications for hospital
|
0003| licenses shall include evidence that the bylaws or regulations
|
0004| of the hospital apply equally to osteopathic and medical
|
0005| physicians.
|
0006| D. Upon inspection of any health facility, if the
|
0007| department finds any violation of its regulations, [it] the
|
0008| department may deny the application for a license, whether
|
0009| initial or renewal, or it may issue a temporary license. A
|
0010| temporary license shall not be issued for a period exceeding one
|
0011| hundred twenty days, nor shall more than two consecutive
|
0012| temporary licenses be issued.
|
0013| E. A one-year nontransferable license shall be
|
0014| issued to any health facility complying with all regulations of
|
0015| the department. The license shall be renewable for successive
|
0016| one-year periods, upon filing of a renewal application, if the
|
0017| department is satisfied that the health facility is in
|
0018| compliance with all regulations of the department or, if not in
|
0019| compliance with any regulation, has been granted a waiver or
|
0020| variance of that regulation by the department pursuant to
|
0021| procedures, conditions and guidelines adopted by regulation of
|
0022| the department. Licenses shall be posted in a conspicuous place
|
0023| on the licensed premises, except that child-care centers that
|
0024| receive no state or federal funds may apply for and receive from
|
0025| the department a waiver from the requirement that a license be
|
0001| posted or kept on the licensed premises.
|
0002| F. Any health facility that has been inspected and
|
0003| licensed by the department and that has received certification
|
0004| for participation in federal reimbursement programs and that has
|
0005| been fully accredited by the joint commission on accreditation
|
0006| of healthcare organizations or the American osteopathic
|
0007| association shall be granted a license renewal based on [such]
|
0008| that accreditation. Health facilities receiving less than
|
0009| full accreditation by the joint commission on the accreditation
|
0010| of healthcare organizations or by the American osteopathic
|
0011| association may be granted a license renewal based on [such]
|
0012| that accreditation. License renewals shall be issued upon
|
0013| application submitted by the facility upon forms prescribed by
|
0014| the department. This subsection does not limit in any way the
|
0015| department's various duties and responsibilities under other
|
0016| provisions of the Public Health Act or under any other
|
0017| subsection of this section, including any of the department's
|
0018| responsibilities for the health and safety of the public.
|
0019| G. The department may charge a reasonable fee not to
|
0020| exceed three dollars ($3.00) per bed for an in-patient health
|
0021| facility or one hundred dollars ($100) for any other health
|
0022| facility for each license application, whether initial or
|
0023| renewal, of an annual license or [renewal] the second
|
0024| consecutive issuance of a temporary license. Fees collected
|
0025| shall not be refundable. All fees collected pursuant to
|
0001| licensure applications shall be deposited with the state
|
0002| treasurer for credit to the general fund.
|
0003| H. The department may revoke or suspend the license
|
0004| of any health facility or may impose on any health facility
|
0005| after January 1, 1991, any intermediate sanction or civil
|
0006| monetary penalty provided in Section 24-1-5.2 NMSA 1978 after
|
0007| notice and an opportunity for a hearing before a hearing officer
|
0008| designated by the department to hear the matter, upon a
|
0009| determination that the health facility is not in compliance with
|
0010| any regulation of the department. If immediate action is
|
0011| required to protect human health and safety, the director may
|
0012| suspend a license or impose any intermediate sanction pending a
|
0013| hearing, provided [such] the hearing is held within five
|
0014| working days of the suspension or imposition of the sanction,
|
0015| unless waived by the licensee.
|
0016| I. The department shall schedule a hearing pursuant
|
0017| to Subsection H of this section if the department receives a
|
0018| request for a hearing from a licensee:
|
0019| (1) within ten working days after receipt by
|
0020| the licensee of notice of suspension, revocation, imposition of
|
0021| an intermediate sanction or civil monetary penalty or denial of
|
0022| an initial or renewal application;
|
0023| (2) within four working days after receipt by
|
0024| the licensee of an emergency suspension order or emergency
|
0025| intermediate sanction imposition and notice of hearing, if the
|
0001| licensee wishes to waive the early hearing scheduled and request
|
0002| a hearing at a later date; or
|
0003| (3) within five working days after receipt of a
|
0004| cease-and-desist order.
|
0005| The department shall also provide timely notice to the
|
0006| licensee of the date, time and place for the hearing, identity
|
0007| of the hearing officer, subject matter of the hearing and
|
0008| alleged violations.
|
0009| J. Any hearing under this section shall be conducted
|
0010| in accordance with adjudicatory hearing rules and procedures
|
0011| adopted by regulation of the department. The licensee has the
|
0012| right to be represented by counsel, to present all relevant
|
0013| evidence by means of witnesses and books, papers, documents,
|
0014| records, files and other evidence and to examine all opposing
|
0015| witnesses who appear on any matter relevant to the issues. The
|
0016| hearing officer has the power to administer oaths on request of
|
0017| any party and issue subpoenas and subpoenas duces tecum prior to
|
0018| or after the commencement of the hearing to compel discovery and
|
0019| the attendance of witnesses and the production of relevant
|
0020| books, papers, documents, records, files and other evidence.
|
0021| Documents or records pertaining to abuse, neglect or
|
0022| exploitation of a resident, client or patient of a health
|
0023| facility or other documents, records or files in the custody of
|
0024| the human services department or the office of the state long-term care ombudsman at the state agency on aging that are
|
0025| relevant to the alleged violations are discoverable and
|
0001| admissible as evidence in any hearing.
|
0002| 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 department
|
0009| pursuant to the provisions of Section 12-8A-1 NMSA 1978.
|
0010| L. Every complaint about a health facility received
|
0011| by the department pursuant to this section shall be promptly
|
0012| investigated to substantiate the allegation and to take
|
0013| appropriate action if substantiated. The department shall
|
0014| coordinate with the human services department, the office of the
|
0015| state long-term care ombudsman at the state agency on aging and
|
0016| any other appropriate agency to develop a joint protocol
|
0017| establishing responsibilities and procedures to assure prompt
|
0018| investigation of complaints, including prompt and appropriate
|
0019| referrals and necessary action regarding allegations of abuse,
|
0020| neglect or exploitation of residents, clients or patients in a
|
0021| health facility.
|
0022| M. Complaints received by the department pursuant to
|
0023| this section shall not be disclosed publicly in [such] a
|
0024| manner as to identify any individuals or health facilities if
|
0025| upon investigation the complaint is unsubstantiated.
|
0001| N. Notwithstanding any other provision of this
|
0002| section, where there are reasonable grounds to believe that any
|
0003| child is in imminent danger of abuse or neglect while in the
|
0004| care of a child-care facility, whether or not licensed, or upon
|
0005| the receipt of a report pursuant to Section [32-1-15]
|
0006| 32A-4-3 NMSA 1978, the department shall consult with the owner
|
0007| or operator of the child-care facility. Upon a finding of
|
0008| probable cause, the department shall give the owner or operator
|
0009| notice of its intent to suspend operation of the health facility
|
0010| and provide an opportunity for a hearing to be held within three
|
0011| working days, unless waived by the owner or operator. Within
|
0012| seven working days from the day of notice, the director shall
|
0013| make his decision, and, if it is determined that any child is in
|
0014| imminent danger of abuse or neglect in the health facility, the
|
0015| director may suspend operation of the health facility for a
|
0016| period not in excess of fifteen days. Prior to the date of the
|
0017| hearing, the department shall make a reasonable effort to notify
|
0018| the parents of children in the health facility of the notice and
|
0019| opportunity for hearing given to the owner or operator.
|
0020| O. Nothing contained in this section or in the
|
0021| Public Health Act shall authorize either the secretary of health
|
0022| [and environment] or the department to make any inspection or
|
0023| investigation or to prescribe any regulations concerning group
|
0024| homes as defined in Section 9-8-13 NMSA 1978 except [such] as
|
0025| are reasonably necessary or desirable to promote the health and
|
0001| safety of persons utilizing [such] group homes."
|
0002| Section 33. Section 25-1-11 NMSA 1978 (being Laws 1977,
|
0003| Chapter 309, Section 11) is amended to read:
|
0004| "25-1-11. JUDICIAL REVIEW OF BOARD AND [AGENCY]
|
0005| DIVISION ACTIONS.--
|
0006| A. Regulations adopted by the board are subject to
|
0007| judicial review under the provisions of Section [12-12-13 NMSA
|
1953] 74-1-9 NMSA 1978.
|
0009| B. Any person to whom the [agency] division
|
0010| denies a permit or whose permit is suspended or revoked by the
|
0011| [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 it is
|
found to be:
|
(1) arbitrary, capricious or an abuse of
|
discretion; or
|
(2) otherwise not in accordance with law]
|
0018| district court pursuant to the provisions of Section 12-8A-1
|
0019| NMSA 1978."
|
0020| Section 34. Section 25-3-12 NMSA 1978 (being Laws 1969,
|
0021| Chapter 89, Section 7) is amended to read:
|
0022| "25-3-12. CONDEMNATION AND APPEAL.--The inspector at
|
0023| [slaughtering] official establishments [with state meat
|
inspection service] shall condemn all diseased or otherwise
|
0025| unfit carcasses and parts of carcasses, including the viscera.
|
0001| The condemned parts shall be removed from the slaughtering
|
0002| department of the plant in equipment designated for that purpose
|
0003| and shall be destroyed for food purposes under the supervision
|
0004| of the inspector. If any [slaughtering] official estab-
|
0005| lishment wishes to appeal a decision of an inspector as to
|
0006| carcasses or parts of carcasses [which] that have been
|
0007| condemned, the establishment may appeal the decision to the
|
0008| chief [veterinary meat inspector] or any veterinarian he
|
0009| designates. If [such] the establishment is not satisfied
|
0010| and wishes to make a further appeal, it may submit [such] an
|
0011| appeal to the board, whose decision shall be final unless the
|
0012| 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] appeals to the district
|
0015| court pursuant to the provisions of Section 12-8A-1 NMSA 1978."
|
0016| Section 35. Section 25-3-19 NMSA 1978 (being Laws 1969,
|
0017| Chapter 89, Section 14) is amended to read:
|
0018| "25-3-19. SUSPENSION OR REVOCATION OF INSPECTION SERVICE
|
0019| OR ESTABLISHMENT NUMBER--HEARING--APPEAL.--
|
0020| A. Any license issued by the board or any state meat
|
0021| inspection service or establishment numbers may be suspended or
|
0022| revoked by the board for violation or noncompliance with:
|
0023| (1) any provision of the Meat Inspection Act;
|
0024| or
|
0025| (2) any rule or regulation issued pursuant to
|
0001| the Meat Inspection Act.
|
0002| B. State meat inspection service or establishment
|
0003| numbers may be suspended or revoked only after a hearing before
|
0004| the board upon reasonable notice. Notice shall be given the
|
0005| licensee by service of the complaint upon him.
|
0006| C. The decision of the board shall be final in any
|
0007| matter relating to renewal, suspension or revocation of state
|
0008| meat inspection service or establishment numbers unless the
|
0009| 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 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
|
0020| court pursuant to the provisions of Section 12-8A-1 1978."
|
0021| Section 36. Section 25-7B-9 NMSA 1978 (being Laws 1993,
|
0022| Chapter 188, Section 28) is amended to read:
|
0023| "25-7B-9. JUDICIAL REVIEW OF DEPARTMENT ACTIONS.--Any
|
0024| person to whom the department denies a permit or whose permit is
|
0025| suspended or revoked by the department may appeal to the [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
|
0007| court pursuant to the provisions of Section 12-8A-1 NMSA 1978."
|
0008| Section 37. Section 27-3-4 NMSA 1978 (being Laws 1973,
|
0009| Chapter 256, Section 4) is amended to read:
|
0010| "27-3-4. [REVIEW AND] APPEAL.--[A.] Within thirty
|
0011| days after receiving written notice of the decision of the
|
0012| director pursuant to Section [3 of the Public Assistance
|
Appeals Act]
|
0014| 27-3-3 NMSA 1978, an applicant or recipient may file a notice
|
0015| 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 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]
|
0023| district court pursuant to the provisions of Section 12-8A-1
|
0024| NMSA 1978."
|
0025| Section 38. Section 27-5-12.1 NMSA 1978 (being Laws 1979,
|
0001| Chapter 146, Section 3, as amended) is amended to read:
|
0002| "27-5-12.1. APPEAL.--[A.] Any hospital or ambulance
|
0003| service aggrieved by any decision of the board may appeal to the
|
0004| 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
|
0010| provisions of Section 12-8A-1 NMSA 1978."
|
0011| Section 39. Section 28-17-19 NMSA 1978 (being Laws 1989,
|
0012| Chapter 208, Section 19) is amended to read:
|
0013| "28-17-19. INTERFERENCE WITH THE OFFICE AND RETALIATION
|
0014| PROHIBITED--PENALTY--CIVIL--APPEAL.--
|
0015| A. No person shall willfully interfere with the
|
0016| lawful actions of the office, including the request for
|
0017| immediate entry into a long-term care facility.
|
0018| B. No person shall institute discriminatory,
|
0019| disciplinary or retaliatory action against any officer or
|
0020| employee of a long-term care facility or government agency or
|
0021| against any patient, resident or client of a long-term care
|
0022| facility or guardian or family member [thereof] for any
|
0023| communication by him with the office or for any information
|
0024| given or disclosed by him in good faith to aid the office in
|
0025| carrying out its duties and responsibilities.
|
0001| C. Any person [that] who violates Subsection A
|
0002| of this section shall be subject to a civil penalty of up to two
|
0003| thousand five hundred dollars ($2,500) per occurrence. Any
|
0004| person [that] who violates Subsection B of this section
|
0005| shall be subject to a civil penalty of up to five thousand
|
0006| dollars ($5,000) per occurrence. The agency may assess and col-
|
0007| lect the penalty after notice and an opportunity for hearing,
|
0008| before a hearing officer designated by the agency to hear the
|
0009| matter, upon a determination that a person willfully interfered
|
0010| with the office or discriminated, disciplined or retaliated
|
0011| against an individual who communicated or disclosed information
|
0012| to the office in good faith pursuant to Subsections A and B of
|
0013| this section. The hearing officer has the power to administer
|
0014| oaths on request of any party and issue subpoenas and subpoenas
|
0015| duces tecum. However, if the violation is against a person
|
0016| covered by the Personnel Act, the office shall refer the matter
|
0017| to the agency employing the person for disciplinary action.
|
0018| 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 Section
|
0021| 12-8A-1 NMSA 1978."
|
0022| Section 40. Section 29-2-11 NMSA 1978 (being Laws 1941,
|
0023| Chapter 147, Section 11, as amended) is amended to read:
|
0024| "29-2-11. DISCIPLINARY PROCEEDINGS--APPEAL.--No officer
|
0025| of the New Mexico state police holding a permanent commission
|
0001| shall be removed from office, demoted or suspended except for
|
0002| incompetence, neglect of duty, violation of a published rule of
|
0003| conduct, malfeasance in office or conduct unbecoming an officer,
|
0004| except as provided in this section. The secretary may suspend
|
0005| an officer for disciplinary reasons for not more than thirty
|
0006| days in accordance with New Mexico state police regulation.
|
0007| Any officer holding a permanent commission who is suspended by
|
0008| the secretary has the right to have the suspension reviewed by
|
0009| the commission, but without further review or appeal. In the
|
0010| event the officer is to be removed from office, demoted or
|
0011| suspended for a period of more than thirty days, specific
|
0012| written charges shall be filed with the commission. Timely and
|
0013| adequate notice of the charges to the person charged shall be
|
0014| provided and a prompt hearing on the charges shall be held by
|
0015| the commission. The person [so] charged has the right to be
|
0016| represented by counsel of his own choice and at his own expense
|
0017| at the hearings. A complete record of the hearing shall be made
|
0018| and, upon request, a copy of it shall be furnished to the person
|
0019| charged. The person may require that the hearing be public. In
|
0020| the event the commission finds that the person charged shall be
|
0021| removed, demoted or suspended for a period in excess of thirty
|
0022| days, the person may appeal from the decision of the commission
|
0023| 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
|
0006| of Section 12-8A-1 NMSA 1978."
|
0007| Section 41. Section 29-10-8 NMSA 1978 (being Laws 1977,
|
0008| Chapter 339, Section 5) is amended to read:
|
0009| "29-10-8. REVIEW OF ARREST RECORD INFORMATION--APPEAL.--A person who believes that arrest record information concerning
|
0010| him is inaccurate or incomplete [shall] is, upon
|
0011| satisfactory verification of his identity, [be] entitled to
|
0012| review [such] the information and obtain a copy of it for
|
0013| the purpose of challenge or correction. In the event a law
|
0014| enforcement agency refuses to correct challenged information to
|
0015| the satisfaction of the person to whom the inaccurate or
|
0016| incorrect information relates, the person [shall be] is
|
0017| entitled to [petition] appeal to the district court to
|
0018| correct [such] the information, pursuant to the provisions
|
0019| of Section 12-8A-1 NMSA 1978."
|
0020| Section 42. Section 32A-2-4 NMSA 1978 (being Laws 1993,
|
0021| Chapter 77, Section 33) is amended to read:
|
0022| "32A-2-4. DETENTION FACILITIES--STANDARDS--REPORTS--APPEALS.--
|
0023| A. The department shall promulgate updated standards
|
0024| for all detention facilities, including standards for [the]
|
0025| site, design, construction, equipment, care, program, personnel
|
0001| and clinical services. The department shall certify as approved
|
0002| all detention facilities in the state meeting the standards
|
0003| promulgated. The department may establish by rule appropriate
|
0004| procedures for provisional certification and the waiving of any
|
0005| of its standards for facilities in existence at the time of the
|
0006| adoption of the standards, except that it shall not allow waiver
|
0007| of any standard pertaining to adequate health and safety
|
0008| protection of the residents and staff of the facility. No child
|
0009| shall be detained in a detention facility unless it is certified
|
0010| as approved by the department, except as otherwise provided in
|
0011| [this article] Chapter 32A, Article 2 NMSA 1978.
|
0012| B. The department shall inspect all detention
|
0013| facilities in the state at least once each twelve months and
|
0014| shall require those reports it deems necessary from detention
|
0015| facilities in a form and containing the information determined
|
0016| by the department. If as the result of an inspection a
|
0017| certified detention facility is determined as failing to meet
|
0018| the required standards, its certification is subject to
|
0019| revocation or refusal for renewal by the department.
|
0020| C. The department shall promulgate rules
|
0021| establishing procedures that provide for prior notice and public
|
0022| hearings on detention [facilities] facilities' standards
|
0023| adoption and changes. The department shall also promulgate
|
0024| rules establishing procedures for facility certification,
|
0025| renewal of certification, refusal to renew certification and
|
0001| revocation of certification. The procedures adopted on these
|
0002| matters shall provide for adequate prior notice of intended
|
0003| action by the department, opportunity for the aggrieved person
|
0004| to have an administrative hearing and written notification of
|
0005| the administrative decision. Rules promulgated under this
|
0006| subsection shall not be effective unless filed in accordance
|
0007| with the State Rules Act.
|
0008| D. Any person aggrieved by an administrative
|
0009| decision of the department rendered under the provisions of this
|
0010| section may petition for the review of the administrative
|
0011| 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
|
0025| provisions of Section 12-8A-1 NMSA 1978.
|
0001| E. After January 1, 1994, no state or county
|
0002| detention facility shall hold juveniles sentenced by a federal
|
0003| court, unless the facility meets state standards promulgated by
|
0004| the department."
|
0005| Section 43. Section 35-7-2 NMSA 1978 (being Laws 1968,
|
0006| Chapter 62, Section 97) is amended to read:
|
0007| "35-7-2. MAGISTRATE ADMINISTRATION--SUSPENSION OF
|
0008| CERTIFICATE--APPEALS.--
|
0009| A. Whenever the director of the administrative
|
0010| office of the courts determines that a magistrate has violated
|
0011| any law or regulation of the administrative office concerning
|
0012| the administration of the magistrate court, he shall suspend the
|
0013| magistrate's certificate of magistrate qualification and take
|
0014| into custody all books and records of the magistrate.
|
0015| B. Within thirty days after suspension under this
|
0016| section, the magistrate may petition the district court [of
|
Santa Fe county for review of the director's determination upon
|
which the suspension was based. The district court shall
|
require the director to show cause for the suspension order. If
|
the district court finds by a preponderance of evidence that the
|
magistrate committed the violation alleged in the order of
|
suspension or if the magistrate fails to petition the district
|
court within the time allowed by this section, the magistrate's
|
certificate of magistrate qualification is revoked, and the
|
administrative office shall certify the existence of the vacancy
|
to the governor. The certificate of magistrate qualification
|
remains suspended during proceedings in the district court under
|
this section and during any appeal therefrom] for an appeal of
|
0004| the director's determination, pursuant to the provisions of
|
0005| Section 12-8A-1 NMSA 1978.
|
0006| C. This section is cumulative with, and supplemental
|
0007| to, any other provisions of law, civil or criminal, governing
|
0008| the administration of magistrate courts."
|
0009| Section 44. Section 36-1A-9 NMSA 1978 (being Laws 1991,
|
0010| Chapter 175, Section 9) is amended to read:
|
0011| "36-1A-9. APPEALS BY COVERED EMPLOYEES TO THE BOARD--
|
0012| JUDICIAL REVIEW.--
|
0013| A. Any covered employee who is dismissed, demoted or
|
0014| suspended may, within thirty days after the dismissal, demotion
|
0015| or suspension, appeal to the board. The appellant and the
|
0016| agency whose action is reviewed shall have the right to be heard
|
0017| publicly and to present facts pertinent to the appeal.
|
0018| B. Formal rules of evidence shall not apply to
|
0019| appeals to the board.
|
0020| C. A record shall be made of the hearing, which
|
0021| shall be transcribed if there is an appeal to the district
|
0022| court. The cost of transcripts may be assessed by the court to
|
0023| the losing party on appeal.
|
0024| D. Appeals may be heard, at the election of the
|
0025| appellant, either by the board or by a hearing officer selected
|
0001| by the state personnel office. If the appellant does not elect
|
0002| to have his case heard by a state-personnel-office-designated
|
0003| hearing officer as provided in this section, the board may
|
0004| designate a hearing officer who may be a member of the board to
|
0005| preside over and take evidence at any hearing held pursuant to
|
0006| this section. This latter hearing officer shall prepare and
|
0007| submit to the board a summary of the evidence taken at the
|
0008| hearing and proposed findings of fact. The board shall render a
|
0009| final decision on the appeal, which shall include findings of
|
0010| fact and conclusions of law.
|
0011| E. If the appellant chooses to have his case heard
|
0012| by a state-personnel-office-designated hearing officer, the
|
0013| appellant shall elect in writing within twenty days after filing
|
0014| the notice of appeal to have his appeal heard solely by a state-personnel-office-designated hearing officer. In the event of
|
0015| that election, the board shall promptly make that request to the
|
0016| state personnel office and promptly execute any and all
|
0017| documents necessary to implement this election. The state
|
0018| personnel office shall promptly arrange for the hearing officer
|
0019| without charge. This hearing officer shall have all of the
|
0020| rights, duties and responsibilities provided to the board by the
|
0021| District Attorney Personnel and Compensation Act, and that
|
0022| hearing officer's decision shall be binding and of the same
|
0023| force and effect as if the board itself had rendered the final
|
0024| decision.
|
0025| F. If the board or the state-personnel-office-designated hearing officer finds that the action taken was
|
0001| without just cause, the board or the state-personnel-office-designated hearing officer may modify the disciplinary action or
|
0002| order the reinstatement of the appellant to his former position
|
0003| or to a position of like status and pay. When the board or the
|
0004| state-personnel-office-designated hearing officer orders a
|
0005| reinstatement of an appellant, the reinstatement shall be
|
0006| effective within thirty days after the service of a written copy
|
0007| of the decision on the affected party. The board or the state-personnel-office-designated hearing officer may award back pay
|
0008| as of the date of the dismissal, demotion or suspension or as of
|
0009| such later date as the order may specify.
|
0010| G. Any party aggrieved by the decision of the board
|
0011| or the state-personnel-office-designated hearing officer made
|
0012| pursuant to this section may appeal the decision to the district
|
0013| 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
|
0005| Section 12-8A-1 NMSA 1978."
|
0006| Section 45. Section 40-7A-6 NMSA 1978 (being Laws 1981,
|
0007| Chapter 171, Section 6) is amended to read:
|
0008| "40-7A-6. REVOCATION OR SUSPENSION OF LICENSE--NOTICE--REINSTATEMENT--APPEALS.--
|
0009| A. The division may deny, revoke, suspend, place on
|
0010| probation or refuse to renew the license of any child placement
|
0011| agency or foster home for failure to comply with the division's
|
0012| regulations. The holder of the license sought to be denied,
|
0013| revoked, suspended or placed on probation or [which] that is
|
0014| not renewed shall be given notice in writing of the proposed
|
0015| action and the reason therefor and shall, at a date and place to
|
0016| be specified in the notice, be given a hearing before a hearing
|
0017| officer appointed by the secretary with an opportunity to
|
0018| produce testimony in the holder's behalf and to be assisted by
|
0019| counsel. The hearing shall be held no earlier than twenty days
|
0020| after service of notice thereof unless the time limitations are
|
0021| waived. Any person whose license has been denied, revoked,
|
0022| suspended, placed on probation or not renewed may, on
|
0023| application to the division, have the license issued, reinstated
|
0024| or reissued upon proof that the noncompliance with the
|
0025| regulations has ceased.
|
0001| B. A person adversely affected by a decision of the
|
0002| division denying, revoking, suspending, placing on probation or
|
0003| refusing to renew a license may obtain a review [thereof] by
|
0004| [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
|
0016| court pursuant to the provisions of Section 12-8A-1 NMSA 1978.
|
0017| C. When any license is denied, suspended, revoked or
|
0018| not renewed, the care and custody of any child placed under the
|
0019| Child Placement Agency Licensing Act shall be transferred to the
|
0020| certifying child placement agency or the division."
|
0021| Section 46. Section 42-3-14 NMSA 1978 (being Laws 1972,
|
0022| Chapter 41, Section 15, as amended) is amended to read:
|
0023| "42-3-14. ADMINISTRATIVE HEARINGS--COURT REVIEW.--
|
0024| A. Any persons aggrieved by a determination as to
|
0025| eligibility for relocation payments or the amount of payment
|
0001| received under the Relocation Assistance Act shall have the
|
0002| right to a hearing before the displacing agency or before a
|
0003| hearing officer designated by the displacing agency.
|
0004| B. After the hearing, any person aggrieved or
|
0005| affected by a final administrative determination concerning
|
0006| eligibility for relocation payments or the amount of the payment
|
0007| 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]
|
0023| appeal to the district court pursuant to the provisions of
|
0024| Section 12-8A-1 NMSA 1978."
|
0025| Section 47. Section 47-6-15 NMSA 1978 (being Laws 1973,
|
0001| Chapter 348, Section 15, as amended) is amended to read:
|
0002| "47-6-15. APPEALS.--
|
0003| [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.] A. Any party who is or may be adversely
|
0021| affected by a decision of a delegate of the board of county
|
0022| commissioners in approving or disapproving a final plat under
|
0023| summary review shall appeal the delegate's decision to the board
|
0024| of county commissioners within thirty days of the date of the
|
0025| delegate's decision. The board of county commissioners shall
|
0001| hear the appeal and shall render a decision within thirty days
|
0002| of the date the board receives notice of the appeal.
|
0003| Thereafter, the procedure for appealing the decision of the
|
0004| board of county commissioners set out in [Subsections A, B and
|
C] Subsection B of this section shall apply.
|
0006| B. Any party who is or may be adversely affected by
|
0007| a decision of the board of county commissioners in approving or
|
0008| disapproving a preliminary or final plat may appeal to the
|
0009| district court pursuant to the provisions of Section 12-8A-1
|
0010| NMSA 1978."
|
0011| Section 48. Section 50-9-17 NMSA 1978 (being Laws 1972,
|
0012| Chapter 63, Section 16, as amended) is amended to read:
|
0013| "50-9-17. ENFORCEMENT--APPEALS.--
|
0014| A. If as a result of investigation the department
|
0015| has good cause to believe that any employer is violating any
|
0016| provision of the Occupational Health and Safety Act or any
|
0017| regulation of the board, the department shall send prompt notice
|
0018| of the violation by certified mail to the employer believed to
|
0019| be in violation. The citation shall describe with particularity
|
0020| the provision of the Occupational Health and Safety Act or
|
0021| regulation alleged to have been violated. The notice shall also
|
0022| state the time for abatement of the violation. Each citation
|
0023| issued pursuant to this section, or a copy thereof, shall be
|
0024| promptly and prominently posted by the cited employer, as
|
0025| prescribed in regulations issued by the board, at or near the
|
0001| place where the violation occurred. No citation may be issued
|
0002| under this section after the expiration of six months following
|
0003| the occurrence of any violation. The board may issue a
|
0004| regulation prescribing procedures for the use of a notice in
|
0005| lieu of a citation with respect to de minimis violations that
|
0006| have no direct or immediate relationship to safety or health.
|
0007| B. If the department issues a citation [under] as
|
0008| provided in Subsection A of this section, it shall, within a
|
0009| reasonable time after issuance of the citation, notify the
|
0010| employer by certified mail of the penalty, if any, proposed to
|
0011| be assessed and that the employer has fifteen working days
|
0012| within which to notify the department in writing that he wishes
|
0013| to contest the citation or proposed penalty. If within fifteen
|
0014| working days from the receipt of the notice issued by the
|
0015| department the employer fails to notify the department that he
|
0016| intends to contest the citation or proposed penalty and no
|
0017| notice is filed by an employee or employee representative as
|
0018| provided by Subsection D of this section within [such] that
|
0019| time, the citation and the assessment of penalty, if any, as
|
0020| proposed shall be deemed the final order of the commission and
|
0021| not subject to review by any court or agency.
|
0022| C. If the department has reason to believe that an
|
0023| employer has failed to correct a violation for which a citation
|
0024| has been issued within the abatement period permitted, which
|
0025| period shall not begin to run until the entry of a final order
|
0001| by the commission in the case of any review proceedings under
|
0002| this section initiated by the employer in good faith and not
|
0003| solely for delay or avoidance of penalties, the department shall
|
0004| notify the employer by certified mail of [such] the failure
|
0005| to correct and of the penalty proposed to be assessed by reason
|
0006| of [such] the failure and that the employer has fifteen
|
0007| working days within which to notify the department in writing
|
0008| that he wishes to contest the department's notification or the
|
0009| proposed assessment of penalty. If within fifteen working days
|
0010| from the receipt of notification issued by the department the
|
0011| employer fails to notify the department that he intends to
|
0012| contest the notification or proposed assessment of penalty, the
|
0013| notification and assessment as proposed shall be deemed a final
|
0014| order of the commission and not subject to review by any court
|
0015| or department.
|
0016| D. If any employer notifies the department in
|
0017| writing that he intends to contest the citation issued to him
|
0018| [under] pursuant to provisions of Subsection A or
|
0019| notification issued [under] pursuant to provisions of
|
0020| Subsection B or C of this section or if within fifteen working
|
0021| days of the receipt of notice [under] pursuant to the
|
0022| provisions of this section any employee of an employer [so]
|
0023| cited or any [such] employee's representative files a notice
|
0024| with the department alleging that the period of time fixed in
|
0025| the citation for the abatement of the violation is unreasonable,
|
0001| the department shall provide prompt opportunity for informal
|
0002| administrative review. If the matter is not successfully
|
0003| resolved at the informal administrative review, the petitioner
|
0004| may request a hearing before the commission within fifteen days
|
0005| after the administrative review. The commission shall afford an
|
0006| opportunity for a hearing within thirty days after receipt of
|
0007| [such] the petition. The commission shall thereafter issue
|
0008| an order, based on findings of fact, affirming, modifying or
|
0009| vacating the department's citation or the proposed penalty fixed
|
0010| by the department or directing other appropriate relief. E. At any time prior to the expiration of an
|
0011| abatement period, an employer may notify the department in
|
0012| writing that he is unable to take the corrective action required
|
0013| within the period of abatement. The department shall provide
|
0014| prompt opportunity for informal administrative review. If the
|
0015| matter is not successfully resolved at the informal
|
0016| administrative review, the petitioner may request a hearing
|
0017| before the commission after the administrative review. The
|
0018| commission shall afford prompt opportunity for a hearing after
|
0019| receipt of [such] the petition. The only grounds for
|
0020| modifying an abatement period [under] provided by this
|
0021| subsection are a showing by the employer of a good-faith effort
|
0022| to comply with the abatement requirement of a citation and that
|
0023| abatement has not been completed because of factors beyond the
|
0024| employer's control.
|
0025| F. Affected employees or their representatives shall
|
0001| be provided an opportunity to participate as parties at both
|
0002| informal administrative review and commission hearings [under]
|
0003| provided for in this section.
|
0004| G. Any person, including the department, adversely
|
0005| affected by an order of the commission issued [under]
|
0006| pursuant to provisions of this section may obtain a review of
|
0007| 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]
|
0021| district court pursuant to the provisions of Section 12-8A-1
|
0022| NMSA 1978."
|
0023| Section 49. Section 51-1-8 NMSA 1978 (being Laws 1936
|
0024| (S.S.), Chapter 1, Section 6, as amended) is amended to read:
|
0025| "51-1-8. CLAIMS FOR BENEFITS--JUDICIAL REVIEW.--
|
0001| A. Claims for benefits shall be made in accordance
|
0002| with such regulations as the secretary may prescribe. Each
|
0003| employer shall post and maintain printed notices in places
|
0004| readily accessible to employees, concerning their rights to file
|
0005| claims for unemployment benefits upon termination of their
|
0006| employment. [Such] The notices shall be supplied by the
|
0007| division to each employer without cost to him.
|
0008| B. A representative designated by the secretary as a
|
0009| claims examiner shall promptly examine the application and each
|
0010| weekly claim and, on the basis of the facts found, shall
|
0011| determine whether the claimant is unemployed, the week with
|
0012| respect to which benefits shall commence, the weekly benefit
|
0013| amount payable, the maximum duration of benefits, whether the
|
0014| claimant is eligible for benefits pursuant to Section 51-1-5
|
0015| NMSA 1978 and whether the claimant shall be disqualified
|
0016| pursuant to Section 51-1-7 NMSA 1978. With the approval of the
|
0017| secretary, the claims examiner may refer, without determination,
|
0018| claims or any specified issues involved therein that raise
|
0019| complex questions of fact or law to a hearing officer for the
|
0020| division for a fair hearing and decision in accordance with the
|
0021| procedure described in Subsection D of this section. The claims
|
0022| examiner shall promptly notify the claimant and any other
|
0023| interested party of the determination and the reasons therefor.
|
0024| Unless the claimant or any [such] interested party, within
|
0025| fifteen calendar days after the date of notification or mailing
|
0001| of [such] the determination, files an appeal from [such]
|
0002| the determination, [such] the determination shall be the
|
0003| final decision of the division; provided that the claims
|
0004| examiner may reconsider a nonmonetary determination if
|
0005| additional information not previously available is provided or
|
0006| obtained or whenever he finds an error in the application of law
|
0007| has occurred, but no redetermination shall be made more than
|
0008| twenty days from the date of the initial nonmonetary
|
0009| determination. Notice of a nonmonetary redetermination shall be
|
0010| given to all interested parties and shall be subject to appeal
|
0011| in the same manner as the original nonmonetary determination.
|
0012| If an appeal is pending at the time a redetermination is issued,
|
0013| the appeal, unless withdrawn, shall be treated as an appeal from
|
0014| [such] that redetermination.
|
0015| C. In the case of a claim for waiting period credit
|
0016| or benefits, "interested party", for purposes of determinations
|
0017| and adjudication proceedings and notices thereof, means:
|
0018| (1) in the event of an issue concerning a
|
0019| separation from work for reasons other than lack of work, the
|
0020| claimant's most recent employer or most recent employing unit;
|
0021| (2) in the event of an issue concerning a
|
0022| separation from work for lack of work, the employer or employing
|
0023| unit from whom the claimant separated for reasons other than
|
0024| lack of work if he has not worked and earned wages in insured
|
0025| work or bona fide employment other than self-employment in an
|
0001| amount equal to or exceeding five times his weekly benefit
|
0002| amount; or
|
0003| (3) in all other cases involving the allowance
|
0004| or disallowance of a claim, the secretary, the claimant and any
|
0005| employing unit directly involved in the facts at issue.
|
0006| D. Upon appeal by any party, a hearing officer
|
0007| designated by the secretary shall afford the parties reasonable
|
0008| opportunity for a fair hearing to be held de novo, and the
|
0009| hearing officer shall issue findings of fact and a decision
|
0010| which affirms, modifies or reverses the determination of the
|
0011| claims examiner or tax representative on the facts or the law,
|
0012| based upon the evidence introduced at [such] the hearing,
|
0013| including the documents and statements in the claim records of
|
0014| the department. All hearings shall be held in accordance with
|
0015| regulations of the secretary and decisions issued promptly in
|
0016| accordance with time lapse standards promulgated by the
|
0017| secretary of the United States department of labor. The parties
|
0018| shall be duly notified of the decision, together with the
|
0019| reasons therefor, which shall be deemed to be the final decision
|
0020| of the department, unless within fifteen days after the date of
|
0021| notification or mailing of [such] the decision further
|
0022| appeal is initiated pursuant to Subsection H of this section.
|
0023| E. Except with the consent of the parties, no
|
0024| hearing officer or members of the board of review, established
|
0025| in Subsection F of this section, or secretary shall sit in any
|
0001| administrative or adjudicatory proceeding in which:
|
0002| (1) either of the parties is related to him by
|
0003| affinity or consanguinity within the degree of first cousin;
|
0004| (2) he was counsel for either party in that
|
0005| action; or
|
0006| (3) he has an interest [which] that would
|
0007| prejudice his rendering an impartial decision.
|
0008| The secretary, any member of the board of review or appeal
|
0009| tribunal hearing officer shall withdraw from any proceeding in
|
0010| which he cannot accord a fair and impartial hearing. Any party
|
0011| may request a disqualification of any appeal tribunal hearing
|
0012| officer or board of review member by filing an affidavit with
|
0013| the board of review or appeal tribunal promptly upon discovery
|
0014| of the alleged grounds for disqualification, stating with
|
0015| particularity the grounds upon which it is claimed that the
|
0016| person cannot be fair and impartial. The disqualification shall
|
0017| be mandatory if sufficient factual basis is set forth in the
|
0018| affidavit of disqualification. If a member of the board of
|
0019| review is disqualified or withdraws from any proceeding, the
|
0020| remaining members of the board of review may appoint an appeal
|
0021| tribunal hearing officer to sit on the board of review for the
|
0022| proceeding involved.
|
0023| F. There is established within the department for
|
0024| the purpose of providing higher level administrative appeal and
|
0025| review of determinations of a claims examiner or decisions
|
0001| issued by a hearing officer pursuant to Subsection B or D of
|
0002| this section a "board of review" consisting of three members.
|
0003| Two members shall be appointed by the governor with the consent
|
0004| of the senate. The members [so] appointed shall hold office
|
0005| at the pleasure of the governor for terms of four years. One
|
0006| member appointed by the governor shall be a person who, on
|
0007| account of his previous vocation, employment or affiliation, can
|
0008| be classed as a representative of employers, and the other
|
0009| member appointed by the governor shall be a person who, on
|
0010| account of his previous vocation, employment or affiliation, can
|
0011| be classed as a representative of employees. The third member
|
0012| shall be an employee of the department appointed by the
|
0013| secretary who shall serve as chairman of the board. Either
|
0014| member of the board of review appointed by the governor who has
|
0015| missed two consecutive meetings of the board may be removed from
|
0016| the board by the governor. Actions of the board shall be taken
|
0017| by majority vote. If a vacancy on the board in a position
|
0018| appointed by the governor occurs between sessions of the
|
0019| legislature, the position shall be filled by the governor until
|
0020| the next regular legislative session. The board shall meet at
|
0021| the call of the secretary. Members of the board appointed by
|
0022| the governor shall be paid per diem and mileage in accordance
|
0023| with the Per Diem and Mileage Act for necessary travel to attend
|
0024| regularly scheduled meetings of the board of review for the
|
0025| purpose of conducting the board's appellate and review duties.
|
0001| G. The board of review shall hear and review all
|
0002| cases appealed in accordance with Subsection H of this section.
|
0003| The board of review may modify, affirm or reverse the decision
|
0004| of the hearing officer or remand any matter to the claims
|
0005| examiner, tax representative or hearing officer for further
|
0006| proceedings. Each member appointed by the governor shall be
|
0007| compensated at the rate of fifteen dollars ($15.00) for each
|
0008| case reviewed up to a maximum compensation of twelve thousand
|
0009| dollars ($12,000) in any one fiscal year.
|
0010| H. Any party aggrieved by a final decision of a
|
0011| hearing officer may file, in accordance with regulations
|
0012| prescribed by the secretary, an application for appeal and
|
0013| review of [such] the decision with the secretary. The
|
0014| secretary shall review the application and shall, within fifteen
|
0015| days after receipt of the application, either affirm the
|
0016| decision of the hearing officer, remand the matter to the
|
0017| hearing officer for an additional hearing or refer the decision
|
0018| to the board of review for further review and decision on the
|
0019| merits of the appeal. If the secretary affirms the decision of
|
0020| the hearing officer, that decision shall be the final
|
0021| administrative decision of the department and any appeal
|
0022| [therefrom must] shall be taken to the district court in
|
0023| accordance with the provisions of Subsections M and N of this
|
0024| section. If the secretary remands a matter to a hearing officer
|
0025| for an additional hearing, judicial review shall be permitted
|
0001| only after issuance of a final administrative decision. If the
|
0002| secretary refers the decision of the hearing officer to the
|
0003| board of review for further review, the board's decision on the
|
0004| merits of the appeal will be the final administrative decision
|
0005| of the department, which may be appealed to the district court
|
0006| in accordance with the provisions of Subsections M and N of this
|
0007| section. If the secretary takes no action within fifteen days
|
0008| of receipt of the application for appeal and review, the
|
0009| decision will be promptly scheduled for review by the board of
|
0010| review as though it had been referred by the secretary. The
|
0011| secretary may request the board of review to review a decision
|
0012| of a hearing officer that the secretary believes to be
|
0013| inconsistent with the law or with applicable rules of
|
0014| interpretation or that is not supported by the evidence, and the
|
0015| board of review shall grant the request if it is filed within
|
0016| fifteen days of the issuance of the decision of the hearing
|
0017| officer. The secretary may also direct that any pending
|
0018| determination or adjudicatory proceeding be removed to the board
|
0019| of review for a final decision. If the board of review holds a
|
0020| hearing on any matter, the hearing shall be conducted by a
|
0021| quorum of the board of review in accordance with regulations
|
0022| prescribed by the secretary for hearing appeals. The board of
|
0023| review shall promptly notify the interested parties of its
|
0024| findings and decision. A decision of the board of review on any
|
0025| disputed matter reviewed and decided by it shall be based upon
|
0001| the law and the lawful rules of interpretation issued by the
|
0002| secretary, and it shall be the final administrative decision of
|
0003| the department, except in cases of remand. If the board of
|
0004| review remands a matter to a hearing officer, claims examiner or
|
0005| tax representative, judicial review shall be permitted only
|
0006| after issuance of a final administrative decision.
|
0007| I. Notwithstanding any other provision of this
|
0008| section granting any party the right to appeal, benefits shall
|
0009| be paid promptly in accordance with a determination or a
|
0010| decision of a claims examiner, hearing officer, secretary, board
|
0011| of review or a reviewing court, regardless of the pendency of
|
0012| the period to file an appeal or petition for judicial review
|
0013| that is provided with respect thereto in Subsection D or M of
|
0014| this section or the pendency of any [such] filing or petition
|
0015| until [such] determination or decision has been modified or
|
0016| reversed by a subsequent decision. The provisions of this
|
0017| subsection shall apply to all claims for benefits pending on the
|
0018| date of its enactment.
|
0019| J. If a prior determination or decision allowing
|
0020| benefits is affirmed by a decision of the department, including
|
0021| the board of review or a reviewing court, [such] the
|
0022| benefits shall be paid promptly regardless of any further appeal
|
0023| [which] that may thereafter be available to the parties, and
|
0024| no injunction, supersedeas, stay or other writ or process
|
0025| suspending the payment of [such] the benefits shall be
|
0001| issued by the secretary or board of review or any court, and no
|
0002| action to recover [such] the benefits paid to a claimant
|
0003| shall be taken. If a determination or decision allowing
|
0004| benefits is finally modified or reversed, the appropriate
|
0005| contributing employer's account will be relieved of benefit
|
0006| charges in accordance with Subsection B of Section 51-1-11 NMSA
|
0007| 1978.
|
0008| K. The manner in which disputed claims shall be
|
0009| presented, the reports thereon required from the claimant and
|
0010| from employers and the conduct of hearings and appeals shall be
|
0011| in accordance with rules prescribed by the secretary for
|
0012| determining the rights of the parties, whether or not [such]
|
0013| the rules conform to common law or statutory rules of evidence
|
0014| and other technical rules of procedure. A hearing officer or
|
0015| the board of review may refer to the secretary for
|
0016| interpretation any question of controlling legal significance,
|
0017| and the secretary shall issue a declaratory interpretation,
|
0018| which shall be binding upon the decision of the hearing officer
|
0019| and the board of review. A full and complete record shall be
|
0020| kept of all proceedings in connection with a disputed claim.
|
0021| All testimony at any hearing upon a disputed claim shall be
|
0022| recorded, but need not be transcribed unless the disputed claim
|
0023| is appealed to the district court.
|
0024| L. Witnesses subpoenaed pursuant to this section
|
0025| shall be allowed fees at a rate fixed by the secretary.
|
0001| [Such] The fees and all administrative expenses of
|
0002| proceedings involving disputed claims shall be deemed a part of
|
0003| the expense of administering the Unemployment Compensation Law.
|
0004| M. Any determination or decision of a claims
|
0005| examiner or hearing officer or by a representative of the tax
|
0006| section of the department in the absence of an appeal therefrom
|
0007| as provided by this section shall become final fifteen days
|
0008| after the date of notification or mailing thereof, and judicial
|
0009| review thereof shall be permitted only after any party claiming
|
0010| to be aggrieved thereby has exhausted his remedies as provided
|
0011| in Subsection H of this section. The division and any employer
|
0012| or claimant who is affected by the decision shall be joined as a
|
0013| party in any judicial action involving any such decision. All
|
0014| parties shall be served with an endorsed copy of the petition
|
0015| within thirty days from the date of filing and an endorsed copy
|
0016| of the order granting the petition within fifteen days from
|
0017| entry of the order. Service on the department shall be made on
|
0018| the secretary or his designated legal representative either by
|
0019| mail with accompanying certification of service or by personal
|
0020| service. The division may be represented in any such judicial
|
0021| action by an attorney employed by the department or, when
|
0022| requested by the secretary, by the attorney general or any
|
0023| district attorney.
|
0024| N. The final decision of the secretary or board of
|
0025| review upon any disputed matter may be reviewed both upon the
|
0001| law, including the lawful rules of interpretation issued by the
|
0002| secretary, and the facts by the district court of the county
|
0003| wherein the person seeking the review resides upon certiorari,
|
0004| unless it is determined by the district court where the petition
|
0005| is filed that, as a matter of equity and due process, venue
|
0006| should be in a different county. For the purpose of [such]
|
0007| the review, the division shall return on [such] the
|
0008| certiorari the reports and all of the evidence heard by it on
|
0009| any such reports and all the papers and documents in its files
|
0010| affecting the matters and things involved in [such] the
|
0011| certiorari. The district court shall render its judgment after
|
0012| hearing, and either the department or any other party thereto
|
0013| affected may appeal from [such] the judgment to the
|
0014| [supreme court of the state in accordance with the rules
|
governing special statutory proceedings. Such] court of
|
0016| appeals. Certiorari shall not be granted unless the same is
|
0017| applied for within thirty days from the date of the final
|
0018| decision of the secretary or board of review. [Such]
|
0019| Certiorari shall be heard in a summary manner and shall be given
|
0020| precedence over all other civil cases except cases arising under
|
0021| the Workers' Compensation Act of this state. It shall not be
|
0022| necessary in any proceedings before the division to enter
|
0023| exceptions to the rulings and no bond shall be required in
|
0024| obtaining certiorari from the district court as [hereinabove]
|
0025| provided, but [such] certiorari shall be granted as a matter
|
0001| of right to the party applying therefor."
|
0002| Section 50. Section 53-8-91 NMSA 1978 (being Laws 1975,
|
0003| Chapter 217, Section 89, as amended) is amended to read:
|
0004| "53-8-91. APPEAL FROM CORPORATION COMMISSION.--
|
0005| A. If the corporation commission fails to approve
|
0006| any articles of incorporation, amendment, merger, consolidation
|
0007| or dissolution, or any other document required by the Nonprofit
|
0008| Corporation Act to be approved by the corporation commission
|
0009| before the same is filed in its office, the commission shall,
|
0010| within fifteen working days after the delivery thereof, give
|
0011| written notice of its disapproval to the person or corporation,
|
0012| domestic or foreign, delivering the same, specifying the reasons
|
0013| therefor. The person or corporation may appeal the disapproval
|
0014| 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]
|
0021| pursuant to the provisions of Section 12-8A-1 NMSA 1978.
|
0022| B. If the corporation commission revokes a
|
0023| certificate of authority to conduct affairs in New Mexico of any
|
0024| foreign corporation or a certificate of incorporation of a
|
0025| domestic corporation, pursuant to the provisions of the
|
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 of
|
0014| Section 12-8A-1 NMSA 1978."
|
0015| Section 51. 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 after
|
0023| 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
|
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 of
|
0009| Section
|
0010| 12-8A-1 NMSA 1978.
|
0011| B. If the commission revokes the certificate of
|
0012| authority to transact business in this state of any foreign
|
0013| corporation pursuant to the provisions of the Business
|
0014| Corporation Act, the foreign corporation may appeal to the
|
0015| 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
|
0001| provisions of Section 12-8A-1 NMSA 1978."
|
0002| Section 52. Section 53-19-67 NMSA 1978 (being Laws 1993,
|
0003| Chapter 280, Section 67) is amended to read:
|
0004| "53-19-67. APPEAL FROM COMMISSION.--[A.] If the
|
0005| commission fails to approve any articles of organization,
|
0006| articles of amendment, articles of merger or consolidation or
|
0007| articles of dissolution or any other document required or
|
0008| permitted by the Limited Liability Company Act to be approved by
|
0009| the commission before it is filed in its office, it shall,
|
0010| within fifteen working days after the delivery thereof to it,
|
0011| give written notice of its disapproval to the person delivering
|
0012| the same, specifying the reasons therefor. From the
|
0013| 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 53. Section 57-19-36 NMSA 1978 (being Laws 1993,
|
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 or
|
0005| 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 meeting
|
0011| 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 that meet the following
|
0023| minimum requirements:
|
0024| (1) the maximum amount of any administrative
|
0025| penalty shall not exceed one thousand dollars ($1,000) for any
|
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 a
|
0005| 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 penalties
|
0013| pursuant to the provisions of the Petroleum Products Standards
|
0014| Act, the department shall comply with Paragraphs (2) and (3) of
|
0015| 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]
|
0022| pursuant to the provisions of Section 12-8A-1 NMSA 1978."
|
0023| Section 54. Section 58-1-45 NMSA 1978 (being Laws 1963,
|
0024| Chapter 305, Section 34) is amended to read:
|
0025| "58-1-45. COURT REVIEW.--[A.] Any person aggrieved and
|
0001| directly affected by an order of the [commissioner] director
|
0002| 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
|
0022| provisions of Section 12-8A-1 NMSA 1978."
|
0023| Section 55. Section 58-10-13 NMSA 1978 (being Laws 1967,
|
0024| Chapter 61, Section 13) is amended to read:
|
0025| "58-10-13. REFUSAL OF CHARTER APPLICATION--APPEAL.--
|
0001| A. Whenever the supervisor is unable to make the
|
0002| findings required by Section [12 of the Savings and Loan Act]
|
0003| 58-10-12 NMSA 1978, he shall serve upon each party of record
|
0004| and his attorney, if any, a written copy of his decision denying
|
0005| the application by certified mail to the party's address of
|
0006| record. All parties shall be deemed to have been served on the
|
0007| tenth day following the mailing. The decision shall include:
|
0008| (1) findings of fact made by the supervisor;
|
0009| (2) conclusions of law reached by the
|
0010| supervisor; and
|
0011| (3) the decision of the supervisor based upon
|
0012| the findings of fact and conclusions of law.
|
0013| B. Any party aggrieved by the decision of the
|
0014| 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 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
|
0022| 12-8A-1 NMSA 1978."
|
0023| Section 56. Section 58-10-84 NMSA 1978 (being Laws 1967,
|
0024| Chapter 61, Section 81) is amended to read:
|
0025| "58-10-84. WHEN ORDER IS FINAL--APPEAL.--
|
0001| A. If a hearing has been held in regard to an order
|
0002| made [under Sections 78 or 79 the Savings and Loan Act]
|
0003| pursuant to Section 58-10-80 or 58-10-81 NMSA 1978 and the
|
0004| supervisor's order is continued either in its original form or a
|
0005| modified form, the order is final when the supervisor enters
|
0006| his decision in the record of the hearing [his decision]
|
0007| after the hearing. If no hearing is requested on the order, the
|
0008| order is final after the expiration of thirty days from the date
|
0009| the order is entered by the supervisor.
|
0010| B. The supervisor's decision after any hearing under
|
0011| the Savings and Loan Act shall be served on each party of record
|
0012| and shall contain the same elements as required in Section
|
0013| [13 of the Savings and Loan Act] 58-10-13 NMSA 1978. Any
|
0014| party aggrieved by the decision of the supervisor after hearing
|
0015| may appeal to the district court [in the county in which the
|
party resides or in which its principal office is located]
|
0017| pursuant to the provisions of Section 12-8A-1 NMSA 1978."
|
0018| Section 57. Section 58-13A-21 NMSA 1978 (being Laws 1985,
|
0019| Chapter 163, Section 21) is amended to read:
|
0020| "58-13A-21. JUDICIAL REVIEW OF ORDERS.--
|
0021| A. Any person aggrieved by a final order of the
|
0022| 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
|
0007| court pursuant to the provisions of Section 12-8A-1 NMSA 1978.
|
0008| [C.] B. The filing of [a petition for review
|
under] an appeal pursuant to Subsection A of this section
|
0010| does not, unless specifically ordered by the court, operate as a
|
0011| stay of the director's order, and the director may enforce or
|
0012| ask the court to enforce the order pending the outcome of the
|
0013| review proceedings.
|
0014| [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 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.]"
|
0019| Section 58. Section 58-13B-56 NMSA 1978 (being Laws 1986,
|
0020| Chapter 7, Section 56) is amended to read:
|
0021| "58-13B-56. JUDICIAL REVIEW OF ORDERS.--
|
0022| A. Any person aggrieved by a final order of the
|
0023| 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
|
0007| court pursuant to the provisions of Section 12-8A-1 NMSA 1978.
|
0008| [C.] B. The filing of [a petition for review
|
under] an appeal pursuant to Subsection A of this section
|
0010| does not, unless specifically ordered by the court, operate as a
|
0011| stay of the director's order, and the director may enforce or
|
0012| ask the court to enforce the order pending the outcome of the
|
0013| review proceedings.
|
0014| [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 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 by
|
the supreme court.]"
|
0021| Section 59. Section 58-15-25 NMSA 1978 (being Laws 1955,
|
0022| Chapter 128, Section 23, as amended) is amended to read:
|
0023| "58-15-25. REVIEW.--
|
0024| [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 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 proceeding provided
|
or recognized by law and] Any licensee or any person
|
0022| [considering himself] aggrieved by any act or order of the
|
0023| 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.]
|
0002| pursuant to the New Mexico Small Loan Act of 1955 may file an
|
0003| appeal in the district court pursuant to the provisions of
|
0004| Section 12-8A-1 NMSA 1978."
|
0005| Section 60. Section 58-19-4 NMSA 1978 (being Laws 1959,
|
0006| Chapter 204, Section 4, as amended) is amended to read:
|
0007| "58-19-4. SUSPENSION OR REVOCATION OF LICENSES--RENEWAL
|
0008| LICENSE DENIED--APPEALS.--
|
0009| A. Renewal of a license originally granted under the
|
0010| Motor Vehicle Sales Finance Act may be denied or a license may
|
0011| be suspended or revoked by the director on any of the following
|
0012| grounds:
|
0013| (1) material misstatement in application for
|
0014| license;
|
0015| (2) willful failure to comply with any
|
0016| provision of that act relating to retail installment contracts;
|
0017| (3) defrauding any retail buyer to the buyer's
|
0018| detriment while a licensee [hereunder] under that act;
|
0019| (4) fraudulent misrepresentation, circumvention
|
0020| or concealment by the licensee through whatever subterfuge or
|
0021| device of any of the material particulars required to be stated
|
0022| or furnished to the retail buyer under that act; or
|
0023| (5) during the course of examination, the
|
0024| licensee intentionally furnished the examiner or duly authorized
|
0025| representative with false or misleading information so as to
|
0001| prevent discovery of apparent violations of that act.
|
0002| B. If a licensee is a firm, association or
|
0003| corporation, it shall be sufficient cause for the suspension or
|
0004| revocation of a license that any officer, director or trustee of
|
0005| a licensed firm, association or corporation, or any member of a
|
0006| licensed partnership, has [so] acted or failed to act in the
|
0007| conduct of the business under its license as would be cause for
|
0008| suspending or revoking a license to [such] the person as an
|
0009| individual. Each licensee shall be responsible for the acts of
|
0010| any of its employees while acting as its agent, if [such]
|
0011| the licensee after actual knowledge of the acts retained the
|
0012| benefits, proceeds, profits or advantages accruing from the acts
|
0013| or otherwise ratified the acts.
|
0014| C. No license shall be denied, suspended or revoked
|
0015| except after hearing [thereon]. The director shall give the
|
0016| licensee at least ten days' written notice, in the form of an
|
0017| order to show cause, of the time and place of [such] the
|
0018| hearing by certified mail addressed to the principal place of
|
0019| business. The notice shall contain the grounds of complaint
|
0020| against the licensee. Any order suspending or revoking [such]
|
0021| a license shall recite the grounds upon which the [same]
|
0022| order is based. The order shall be entered upon the records
|
0023| of the director and shall not be effective until after thirty
|
0024| days' written notice thereof, given after [such] the entry,
|
0025| forwarded by certified mail to the licensee at [such] his
|
0001| principal place of business. No revocation, suspension or
|
0002| surrender of any license shall impair or affect the obligation
|
0003| of any lawful retail installment contract acquired previously
|
0004| [thereto] by the licensee.
|
0005| [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]
|
0013| D. A person aggrieved by the denial, suspension or
|
0014| revocation of a license may file an appeal to the district court
|
0015| pursuant to the provisions of Section 12-8A-1 NMSA 1978.
|
0016| E. The director shall publish a notice that a
|
0017| license has been revoked or suspended within thirty days after
|
0018| [such] the revocation or suspension in a newspaper of
|
0019| general circulation in the county in which the licensee was
|
0020| doing business."
|
0021| Section 61. Section 58-21-16 NMSA 1978 (being Laws 1983,
|
0022| Chapter 86, Section 16) is amended to read:
|
0023| "58-21-16. REVIEW OF ORDER OF DIRECTOR.--
|
0024| A. Any person aggrieved by a final order of the
|
0025| 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]
|
0017| appeal to the district court pursuant to the provisions of
|
0018| Section 12-8A-1 NMSA 1978.
|
0019| B. The commencement of the proceedings under
|
0020| Subsection A of this section does not, unless specifically
|
0021| ordered by the court, operate as a stay of the director's
|
0022| order."
|
0023| Section 62. Section 58-22-29 NMSA 1978 (being Laws 1983,
|
0024| Chapter 135, Section 29) is amended to read:
|
0025| "58-22-29. REVIEW OF ORDER OF DIRECTOR.--
|
0001| A. Any person aggrieved by a final order of the
|
0002| 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 court
|
0012| pursuant to the provisions of Section 12-8A-1 NMSA 1978.
|
0013| B. The commencement of proceedings under Subsection
|
0014| A of this section does not, unless specifically ordered by the
|
0015| court, operate as a stay of the director's order."
|
0016| Section 63. Section 59A-4-20 NMSA 1978 (being Laws 1984,
|
0017| Chapter 127, Section 67, as amended) is amended to read:
|
0018| "59A-4-20. APPEAL TO COURT.--
|
0019| A. A party may appeal from an order of the
|
0020| superintendent made after an informal hearing or an
|
0021| 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
|
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
|
0025| shall be taken to the district court pursuant to the provisions
|
0001| of Section 12-8A-1 NMSA 1978.
|
0002| [F.] B. This section shall not apply as to
|
0003| matters arising under Chapter 59A, Article 17 NMSA 1978."
|
0004| Section 64. Section 59A-11A-4 NMSA 1978 (being Laws 1989,
|
0005| Chapter 97, Section 4) is amended to read:
|
0006| "59A-11A-4. INSURANCE CONSULTANT LICENSE--SUSPENSION OR
|
0007| REVOCATION--APPEAL--PENALTY.--
|
0008| A. The superintendent may revoke the license of an
|
0009| insurance consultant or suspend it for a period not exceeding
|
0010| the expiration date of the license for any good cause shown as
|
0011| provided in the Insurance Code. The superintendent shall revoke
|
0012| or suspend a license only upon notice and hearing as provided in
|
0013| the Insurance Code.
|
0014| B. Any person aggrieved by the action of the
|
0015| superintendent in revoking, suspending or refusing to grant,
|
0016| renew or reissue a license may appeal that action [as provided
|
in the Insurance Code] to the district court pursuant to the
|
0018| provisions of Section 12-8A-1 NMSA 1978.
|
0019| C. The superintendent may at any time require such
|
0020| information as he deems necessary in respect to the business
|
0021| methods, policies and transactions of a licensee. Any person
|
0022| who fails or refuses to furnish the superintendent in the form
|
0023| he may require any such information within ten days after
|
0024| receiving a written request for it is guilty of a misdemeanor
|
0025| and upon conviction shall be fined not less than fifty dollars
|
0001| ($50.00) [nor] or more than five hundred dollars ($500)."
|
0002| Section 65. Section 59A-17-35 NMSA 1978 (being Laws 1984,
|
0003| Chapter 127, Section 330, as amended) is amended to read:
|
0004| "59A-17-35. APPEALS FROM INSURANCE BOARD.--[A.] Any
|
0005| order made by the insurance board pursuant to Section 59A-17-34
|
0006| NMSA 1978 shall be subject to review by appeal to the district
|
0007| court [of Santa Fe county in the same manner as provided for
|
taking of appeals in other civil actions] pursuant to the
|
0009| provisions of Section 12-8A-1 NMSA 1978. Upon institution of
|
0010| the appeal and for good cause shown upon motion and hearing, the
|
0011| court may, in the following cases, stay operation of the
|
0012| insurance board's order:
|
0013| [(1)] A. where, pursuant to Chapter 59A, Article
|
0014| 17 NMSA 1978, a rate service organization has been refused a
|
0015| license or an insurer has been refused a certificate of
|
0016| authority or had its license or certificate of authority
|
0017| suspended, it may, with leave of court, be allowed to continue
|
0018| to engage in business, subject to the provisions of that
|
0019| article, pending final disposition of its application for
|
0020| review; or
|
0021| [(2)] B. where any order of the insurance board
|
0022| shall provide for, or sustain the superintendent's order for, a
|
0023| change in any rate or rating system [which] that results in
|
0024| an increase or decrease in rates, any insurer affected
|
0025| [thereby] may, with leave of court pending final disposition
|
0001| of the proceedings in the district court, continue to charge
|
0002| rates [which] that existed prior to such order, on condition
|
0003| that the difference in the rates be deposited in a special
|
0004| escrow or trust account with a reputable financial institution
|
0005| by the insurer affected, to be held in trust by [such] the
|
0006| insurer and to be retained by the insurer or paid to the holders
|
0007| of policies issued after the order of the court, as the court
|
0008| may determine.
|
0009| [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.]"
|
0014| Section 66. Section 59A-29-6 NMSA 1978 (being Laws 1985,
|
0015| Chapter 61, Section 6, as amended) is amended to read:
|
0016| "59A-29-6. APPEALS--JUDICIAL REVIEW [DE NOVO].--Any
|
0017| person aggrieved by any action or decision of the administrators
|
0018| of the FAIR plan or the underwriting association or of any
|
0019| insurer as a result of its participation [therein] may appeal
|
0020| to the superintendent [of insurance] within thirty days from
|
0021| the date of the action or the decision. The superintendent [of
|
insurance] shall, after hearing held upon thirty days' written
|
0023| notice, issue an order approving the action or decision or
|
0024| disapproving the action or decision with respect to the matter
|
0025| [which] that is the subject of appeal. All final orders and
|
0001| decisions of the superintendent [of insurance] shall be
|
0002| subject to judicial review [de novo] in the district court
|
0003| pursuant to the provisions of Section 12-8A-1 NMSA 1978."
|
0004| Section 67. Section 59A-30-9 NMSA 1978 (being Laws 1985,
|
0005| Chapter 28, Section 9) is amended to read:
|
0006| "59A-30-9. REVIEW--APPEALS.--[A.] Any person aggrieved
|
0007| by an order of the superintendent promulgating rates under the
|
0008| New Mexico Title Insurance Law shall have the rights to review
|
0009| and appeal provided for in [Section] Sections 59A-17-34
|
0010| [NMSA 1978] and [Section] 59A-17-35 NMSA 1978.
|
0011| [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.]"
|
0015| Section 68. Section 59A-42-12 NMSA 1978 (being Laws 1984,
|
0016| Chapter 127, Section 761) is amended to read:
|
0017| "59A-42-12. APPEALS.--
|
0018| A. Any member insurer may appeal to the
|
0019| superintendent from any action of the board of directors of the
|
0020| association by filing with the superintendent a notice of appeal
|
0021| within thirty [(30)] days after the action appealed from.
|
0022| B. Any final order of the superintendent on appeal
|
0023| is subject to judicial review by an action in the district court
|
0024| [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 12-8A-1 NMSA
|
0004| 1978."
|
0005| Section 69. Section 59A-43-14 NMSA 1978 (being Laws 1984,
|
0006| Chapter 127, Section 780) is amended to read:
|
0007| "59A-43-14. APPEALS.--
|
0008| A. Any claimant whose claim is denied in whole or in
|
0009| part by the association may, pursuant to [this article]
|
0010| Chapter 59A, Article 43 NMSA 1978, request the receivership
|
0011| court to review the decision of the association. Any [such]
|
0012| request for review shall be filed within thirty [(30)] days of
|
0013| [such] the denial. The receivership court shall have juris-
|
0014| diction of all [such] claims and the decision of the court
|
0015| shall be binding on both the claimant and the association.
|
0016| B. Any member insurer may appeal to the
|
0017| superintendent from any action of the board of directors of the
|
0018| association by filing with the superintendent a notice of appeal
|
0019| within thirty [(30)] days after the action appealed from.
|
0020| C. Any final order of the superintendent on appeal
|
0021| is subject to judicial review by an action in the district court
|
0022| [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 12-8A-1 NMSA
|
0002| 1978."
|
0003| Section 70. Section 59A-47-29 NMSA 1978 (being Laws 1984,
|
0004| Chapter 127, Section 879.28) is amended to read:
|
0005| "59A-47-29. SETTLEMENT OF DISPUTES--APPEAL.--The parties
|
0006| to any dispute between a health care plan and any purveyor
|
0007| arising out of a health care expense payments contract may
|
0008| submit the dispute to the superintendent for his final decision
|
0009| [thereon] and [such] his final decision shall then be
|
0010| binding upon the parties to [such] the contract. [except,
|
that any such party, within thirty (30) days following filing of
|
such decision but not thereafter, may file in a court of compe-
|
tent 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 to the contract may seek
|
0016| review of the superintendent's decision by filing an appeal in
|
0017| the district court pursuant to the provisions of Section 12-8A-1
|
0018| NMSA 1978."
|
0019| Section 71. Section 59A-52-22 NMSA 1978 (being Laws 1984,
|
0020| Chapter 127, Section 968) is amended to read:
|
0021| "59A-52-22. JUDICIAL REVIEW OF ORDER.--Any 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] aggrieved by a decision of the state
|
0007| fire board may appeal to the district court pursuant to the
|
0008| provisions of Section 12-8A-1 NMSA 1978."
|
0009| Section 72. Section 60-2B-4 NMSA 1978 (being Laws 1981,
|
0010| Chapter 259, Section 4, as amended) is amended to read:
|
0011| "60-2B-4. LICENSING AUTHORITY--POWERS--DUTIES--HEARINGS--APPEALS.--
|
0012| A. The regulation and licensing department is
|
0013| designated as the "licensing authority" of the Bingo and Raffle
|
0014| Act. The superintendent of regulation and licensing is the
|
0015| executive in charge of enforcement of the terms and provisions
|
0016| of that act and, as the state licensing authority, has the
|
0017| powers and duties as follows:
|
0018| (1) to grant or refuse licenses under the Bingo
|
0019| and Raffle Act. In addition, the licensing authority has the
|
0020| power, on its own motion based on reasonable grounds or on
|
0021| complaint made and after investigation by the special
|
0022| investigations division of the department of public safety
|
0023| [department] and public hearing at which the licensee shall be
|
0024| afforded an opportunity to be heard, to assess administrative
|
0025| fines to the licensee and to suspend or revoke any license
|
0001| issued by the licensing authority for any violation by the
|
0002| licensee or any officer, director, agent, member or employee of
|
0003| the licensee of the provisions of that act or any rule or
|
0004| regulation authorized under that act. Notice of suspension or
|
0005| revocation, as well as notice of the hearing, shall be given by
|
0006| certified mail to the licensee at the address contained in the
|
0007| license. Any license may be temporarily suspended for a period
|
0008| not to exceed thirty days pending any prosecution, investigation
|
0009| or public hearing;
|
0010| (2) to supervise the administration of the
|
0011| Bingo and Raffle Act and to adopt, amend and repeal rules and
|
0012| regulations governing the holding, operating and conducting of
|
0013| games of chance, the rental of premises and the purchase of
|
0014| equipment to the end that games of chance shall be held,
|
0015| operated and conducted only by licensees for the purposes and in
|
0016| conformity with the constitution of New Mexico and the
|
0017| provisions of that act;
|
0018| (3) to hear and determine at public hearings
|
0019| all complaints against any licensee and to administer oaths and
|
0020| issue subpoenas to require the presence of persons and
|
0021| production of papers, books and records necessary to the
|
0022| determination of any hearing [so] held;
|
0023| (4) to keep records of all actions and
|
0024| transactions of the licensing authority;
|
0025| (5) to prepare and transmit annually, in the
|
0001| form and manner prescribed by the licensing authority pursuant
|
0002| to the provisions of law, a report accounting to the governor
|
0003| and the legislature for the efficient discharge of all
|
0004| responsibilities assigned by law or directive to the licensing
|
0005| authority; and
|
0006| (6) to issue publications of the licensing
|
0007| authority intended for circulation in quantity outside the
|
0008| executive branch in accordance with fiscal rules promulgated by
|
0009| the licensing authority.
|
0010| B. Proceedings brought against a licensee for a
|
0011| violation of the Bingo and Raffle Act shall be brought by the
|
0012| licensing authority by serving, in the manner provided in the
|
0013| rules of civil procedure, a complaint upon the licensee and
|
0014| notifying the licensee of the place and date, not less than
|
0015| twenty days after the date of service, at which a hearing shall
|
0016| be held. The complaint shall set forth, in the manner of
|
0017| complaints in civil action, the violations of the Bingo and
|
0018| Raffle Act or the rules and regulations of the licensing
|
0019| authority [which] that the licensing authority alleges the
|
0020| licensee has committed. The licensing authority or the
|
0021| department of public safety [department] may stop the opera-
|
0022| tion of a game of chance pending hearing, in which case the
|
0023| hearing shall be held within ten days after notice.
|
0024| C. The licensing authority shall cause the notice of
|
0025| hearing to be served personally upon an officer of the licensee
|
0001| or the member in charge of the conduct of the game of chance or
|
0002| to be sent by registered or certified mail to the licensee at
|
0003| the address shown in the license.
|
0004| D. When proceedings are brought against a licensee
|
0005| for a violation of the Bingo and Raffle Act, the licensing
|
0006| authority shall hear the matter and make written findings in
|
0007| support of its decision. The licensee shall be informed
|
0008| immediately of the decision and, in the event of a suspension or
|
0009| revocation, the effective date of the suspension or revocation.
|
0010| E. For the first violation by a licensee of the
|
0011| Bingo and Raffle Act, the licensing authority may assess an
|
0012| administrative fine of not to exceed one thousand dollars
|
0013| ($1,000). For a second or subsequent violation by the licensee
|
0014| of that act, the licensing authority may assess an
|
0015| administrative fine of not to exceed two thousand five hundred
|
0016| dollars ($2,500). The amount of the administrative fine shall
|
0017| be determined by the severity and nature of the violation of the
|
0018| Bingo and Raffle Act and by the number of prior violations of
|
0019| that act.
|
0020| F. When a license is ordered suspended or revoked,
|
0021| the licensee shall surrender the license to the licensing
|
0022| authority on or before the effective date of the suspension or
|
0023| revocation. No license is valid beyond the effective date of
|
0024| the suspension or revocation, whether surrendered or not.
|
0025| G. Upon the finding of a violation of the Bingo and
|
0001| Raffle Act or the rules and regulations, or both, that would
|
0002| warrant the suspension or revocation of a license, the licensing
|
0003| authority, in addition to any other penalties [which] that
|
0004| may be imposed, may declare the violator ineligible to conduct a
|
0005| game of chance and to apply for a license under that act for a
|
0006| period not exceeding twelve months. The declaration of
|
0007| ineligibility may be extended to include, in addition to the
|
0008| violator, any of its subsidiary organizations, its parent
|
0009| organization or an organization otherwise affiliated with the
|
0010| violator when in the opinion of the licensing authority the
|
0011| circumstances of the violation warrant that action.
|
0012| H. Upon receipt by a licensee of a complaint signed
|
0013| by the licensing authority and notice of a hearing, the licensee
|
0014| shall answer, in the manner of civil actions, the complaint and
|
0015| inform the licensing authority whether oral argument is desired
|
0016| and whether the licensee desires to produce witnesses.
|
0017| I. At the request of any party and for good cause
|
0018| shown, the licensing authority or the department of public
|
0019| safety [department] shall issue subpoenas for the attendance
|
0020| of witnesses and the production of books, records and other
|
0021| documents, but in no case shall a subpoena be made returnable
|
0022| more than five days after service.
|
0023| J. Whenever oral testimony of witnesses is taken at
|
0024| the hearing, the licensing authority or the department of
|
0025| public safety [department] shall have a certified reporter
|
0001| present to prepare a record of the proceedings. The original
|
0002| transcript shall be filed with the licensing authority. Any
|
0003| party is entitled to secure a copy from the reporter at his own
|
0004| expense.
|
0005| K. Hearings may be convened by the licensing
|
0006| authority from time to time at the request of any party, but
|
0007| only for good cause shown. Hearings shall be held and concluded
|
0008| with reasonable dispatch and without unnecessary delay. The
|
0009| licensing authority shall decide any matter within thirty days
|
0010| of the hearing.
|
0011| L. Upon the determination of any matter heard, the
|
0012| licensing authority shall state its findings. All parties shall
|
0013| be notified by the licensing authority of the action of the
|
0014| licensing authority and shall be furnished a copy of the
|
0015| findings.
|
0016| M. Applicants for a license or the licensee may be
|
0017| represented by counsel.
|
0018| N. Any person appearing before the licensing
|
0019| authority in a representative capacity shall be required to show
|
0020| his authority to act in that capacity.
|
0021| O. No person shall be excused from testifying or
|
0022| producing any book or document in any investigation or hearing
|
0023| when ordered to do so by the licensing authority upon the ground
|
0024| that testimony or documentary evidence required of him may tend
|
0025| to incriminate or subject him to penalty or forfeiture, but no
|
0001| person may be prosecuted, punished or subjected to any penalty
|
0002| or forfeiture on account of any matter or thing concerning which
|
0003| he, under oath, testified or produced documentary evidence,
|
0004| except that he shall not be exempt from prosecution or
|
0005| punishment for any perjury committed by him in his testimony.
|
0006| P. If a person subpoenaed to attend in any
|
0007| investigation or hearing fails to obey the command of the
|
0008| subpoena without reasonable cause or if a person in attendance
|
0009| in any investigation or hearing refuses, without lawful cause,
|
0010| to be examined or to answer a legal or pertinent question or to
|
0011| exhibit any book, account, record or other document when ordered
|
0012| to do so by the representative of the licensing authority
|
0013| holding the hearing or by the department of public safety
|
0014| [department] performing the investigation, the licensing
|
0015| authority or the department of public safety [department]
|
0016| may apply to any judge of the district court, upon proof by
|
0017| affidavit of the facts, for an order returnable in not less than
|
0018| five nor more than ten days directing the person to show cause
|
0019| before the judge why he should not comply with the subpoena or
|
0020| order.
|
0021| Q. Upon return of the order, the judge before whom
|
0022| the matter comes for hearing shall examine the person under
|
0023| oath. If the judge determines after giving the person an
|
0024| opportunity to be heard that he refused without lawful excuse to
|
0025| comply with the subpoena or the order of the licensing authority
|
0001| or the department of public safety [department] holding the
|
0002| investigation, the judge may order the person to comply with the
|
0003| subpoena or order forthwith, and any failure to obey the order
|
0004| of the judge may be punished as a contempt of the district
|
0005| court.
|
0006| R. Every witness is entitled to be paid for
|
0007| attendance or attendance and travel by the party on whose behalf
|
0008| he is subpoenaed, at the rates prescribed by law, before being
|
0009| required to testify.
|
0010| S. The decision of the licensing authority in
|
0011| suspending or revoking any license under the Bingo and Raffle
|
0012| 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
|
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] Any licensee aggrieved by a decision
|
0011| of the licensing board may appeal to the district court pursuant
|
0012| to the provisions of Section 12-8A-1 NMSA 1978.
|
0013| [V.] T. No proceeding to vacate, reverse or
|
0014| modify any final order rendered by the licensing authority shall
|
0015| operate to stay the execution or effect of any final order
|
0016| unless the district court, on application and three days' notice
|
0017| to the licensing authority, allows the stay. In the event a
|
0018| stay is ordered, the petitioner shall be required to execute his
|
0019| bond in a sum the court may prescribe, with sufficient surety to
|
0020| be approved by the judge or clerk of the court, which bond shall
|
0021| be conditioned upon the faithful performance by the petitioner
|
0022| of his obligation as a licensee and upon the prompt payment of
|
0023| all damages arising from or caused by the delay in the taking
|
0024| effect or enforcement of the order complained of and for all
|
0025| costs that may be assessed or required to be paid in connection
|
0001| with the proceedings."
|
0002| Section 73. Section 60-6B-2 NMSA 1978 (being Laws 1981,
|
0003| Chapter 39, Section 38, as amended) is amended to read:
|
0004| "60-6B-2. APPLICATIONS--APPEALS.--
|
0005| A. Before any new license authorized by the Liquor
|
0006| Control Act may be issued by the director, the applicant for the
|
0007| license shall:
|
0008| (1) submit to the director a written
|
0009| application for the license under oath, in the form prescribed
|
0010| by and stating the information required by the director,
|
0011| together with a nonrefundable application fee of one hundred
|
0012| fifty dollars ($150);
|
0013| (2) submit to the director for his approval a
|
0014| description, including floor plans, in a form prescribed by the
|
0015| director, which shows the proposed licensed premises for which
|
0016| the license application is submitted. The area represented by
|
0017| the approved description shall become the licensed premises;
|
0018| (3) if the applicant is a corporation, be
|
0019| required to submit as part of its application the following:
|
0020| (a) a certified copy of its articles of
|
0021| incorporation or, if a foreign corporation, a certified copy of
|
0022| its certificate of authority;
|
0023| (b) the names and addresses of all
|
0024| officers and directors and those stockholders owning ten percent
|
0025| or more of the voting stock of the corporation and the amounts
|
0001| of stock held by each stockholder; provided, however, a
|
0002| corporation may not be licensed if an officer, manager, director
|
0003| or holder of more than ten percent of the stock would not be
|
0004| eligible to hold a license pursuant to the Liquor Control Act,
|
0005| except that the provision of Subsection [B] D of Section 60-6B-1 NMSA 1978 shall not apply if the stock is listed with a
|
0006| national securities exchange;
|
0007| (c) the name of the resident agent of the
|
0008| corporation authorized to accept service of process for all
|
0009| purposes, including orders and notices of the director, which
|
0010| agent shall be approved by the director with respect to his
|
0011| character;
|
0012| (d) a duly executed power of attorney
|
0013| authorizing the agent described in Subparagraph (c) of this
|
0014| paragraph to exercise full authority, control and responsibility
|
0015| for the conduct of all business and transactions of the
|
0016| corporation within the state relative to the sale of alcoholic
|
0017| beverages under authority of the license requested; and
|
0018| (e) [such] additional information
|
0019| regarding the corporation as the director may require to assure
|
0020| full disclosure of the corporation's structure and financial
|
0021| responsibility;
|
0022| (4) if the applicant is a limited partnership,
|
0023| submit as part of its application the following:
|
0024| (a) a certified copy of its certificate
|
0025| of limited partnership;
|
0001| (b) the names and addresses of all
|
0002| general partners and of all limited partners contributing ten
|
0003| percent or more of the total value of contributions made to the
|
0004| limited partnership or entitled to ten percent or more of the
|
0005| profits earned or other income paid by the limited partnership.
|
0006| No limited partnership shall receive a license if any partner
|
0007| designated in this subsection would not be eligible to hold a
|
0008| license issued pursuant to the Liquor Control Act; and
|
0009| (c) [such] additional information
|
0010| regarding the limited partnership as the director may require to
|
0011| assure full disclosure of the limited partnership's structure
|
0012| and financial responsibility; and
|
0013| (5) obtain approval for the issuance from the
|
0014| governing body of the local option district in which the
|
0015| proposed licensed premises are to be located in accordance with
|
0016| the provisions of the Liquor Control Act.
|
0017| B. Every applicant for a new license or for a
|
0018| transfer of ownership of a license, if an individual or general
|
0019| partnership, shall file with the application two complete sets
|
0020| of fingerprints of each individual, taken under the supervision
|
0021| of and certified to by an officer of the New Mexico state
|
0022| police, a county sheriff or a municipal chief of police. If the
|
0023| applicant is a corporation, it shall file two complete sets of
|
0024| fingerprints for each stockholder holding ten percent or more of
|
0025| the outstanding stock, principal officer, director and the agent
|
0001| responsible for the operation of the licensed business. The
|
0002| fingerprints shall be taken and certified to as provided for an
|
0003| individual or partnership. If the applicant is a limited
|
0004| partnership, it shall file two complete sets of fingerprints for
|
0005| each general partner and for each limited partner contributing
|
0006| ten percent or more of the total value of contributions made to
|
0007| the limited partnership or entitled to ten percent or more of
|
0008| the profits earned or other compensation by way of income paid
|
0009| by the limited partnership. The fingerprints shall be taken and
|
0010| certified to as provided for an individual or partnership.
|
0011| C. Upon submission of a sworn affidavit from each
|
0012| person who is required to file fingerprints stating that the
|
0013| person has not been convicted of a felony in any jurisdiction
|
0014| and pending the results of background investigations, a
|
0015| temporary license for ninety days may be issued. The temporary
|
0016| license may be extended by the director for an additional ninety
|
0017| days if the director determines there is not sufficient time to
|
0018| complete the background investigation or obtain reviews of
|
0019| fingerprints from appropriate agencies. A temporary license
|
0020| shall be surrendered immediately upon order of the director.
|
0021| D. An applicant who files a false affidavit shall be
|
0022| denied a license. When the director determines a false
|
0023| affidavit has been filed, he shall refer the matter to the
|
0024| attorney general or district attorney for prosecution of
|
0025| perjury.
|
0001| E. If an applicant is not a resident of New Mexico,
|
0002| fingerprints may be taken under supervision and certification of
|
0003| comparable officers in the state of residence of the applicant.
|
0004| F. Before issuing a license, the department shall
|
0005| hold a public hearing within thirty days after receipt of the
|
0006| application pursuant to Subsection [H] K of this section.
|
0007| G. An application for transfer of ownership shall be
|
0008| filed with the department no later than thirty days after the
|
0009| date a person acquired an ownership interest in a license; shall
|
0010| contain documentation of the actual purchase price paid for the
|
0011| license, and the actual date of sale of the license; and shall
|
0012| be accompanied by a sworn affidavit from the owner of record of
|
0013| the license agreeing to the sale of the license to the applicant
|
0014| as well as attesting to the accuracy of the information required
|
0015| by this section to be filed with the department. No license
|
0016| shall be transferred unless it will be placed into operation in
|
0017| an actual location within one hundred twenty days of issuance of
|
0018| the license, unless for good cause shown the director grants an
|
0019| additional extension not to exceed 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 of
|
0024| new licenses shall be provided by the director. The random
|
0025| selection method shall allow each applicant an equal opportunity
|
0001| to obtain an available license, provided that all dispenser's
|
0002| and retailer's licenses issued in any calendar year shall be
|
0003| issued to residents of the state. For the purposes of random
|
0004| selection, the director shall also set a reasonable deadline by
|
0005| which applications for the available licenses shall be filed.
|
0006| No person shall file more than one application for each
|
0007| 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 random
|
0013| selection for the ten priority positions for each license, a
|
0014| hearing pursuant to Subsection K of this section shall be held
|
0015| to determine the qualifications of the applicant having the
|
0016| highest priority for each available license. If necessary,
|
0017| [such] a hearing shall be held on each selected application by
|
0018| priority until a qualified applicant for each available license
|
0019| is approved. Further random selections for priority positions
|
0020| shall also be held pursuant to this section as necessary.
|
0021| J. All applications submitted for a license shall
|
0022| expire upon the director's final approval of a qualified
|
0023| applicant for that available license.
|
0024| K. The director shall notify the applicant by
|
0025| certified mail of the date, time and place of the hearing. The
|
0001| hearing shall be held in Santa Fe. The director may designate a
|
0002| hearing officer to take evidence at the hearing. The director
|
0003| or the hearing officer shall have the power to administer oaths.
|
0004| L. In determining whether a license shall be issued,
|
0005| the director shall take into consideration all requirements of
|
0006| the Liquor Control Act. In the issuance of a license, the
|
0007| director shall specifically consider the nature and number of
|
0008| prior violations of the Liquor Control Act by the applicant or
|
0009| of any citations issued within the prior five years against a
|
0010| license held by the applicant or in which the applicant had an
|
0011| ownership interest required to be disclosed under the Liquor
|
0012| Control Act. The director shall disapprove the issuance or give
|
0013| preliminary approval of the issuance of the license based upon a
|
0014| review of all documentation submitted and any investigation
|
0015| deemed necessary by the director.
|
0016| M. Before any new license is issued for a location,
|
0017| the director shall cause a notice of the application therefor to
|
0018| be posted conspicuously, on a sign not smaller than thirty
|
0019| inches by forty inches, on the outside of the front wall or
|
0020| front entrance of the immediate premises for which the license
|
0021| is sought or, if no building or improvements exist on the
|
0022| premises, the notice shall be posted at the front entrance of
|
0023| the immediate premises for which the license is sought, on a
|
0024| billboard not smaller than five feet by five feet. The contents
|
0025| of the notice shall be in the form prescribed by the department,
|
0001| and [such] posting shall be over a continuous period of twenty
|
0002| days prior to preliminary approval of the license.
|
0003| N. No license shall be issued until the posting
|
0004| requirements of Subsection M of this section have been met.
|
0005| O. All costs of publication and posting shall be
|
0006| paid by the applicant.
|
0007| P. It is unlawful for any person to remove or deface
|
0008| any notice posted in accordance with this section. Any person
|
0009| convicted of a violation of this subsection shall be punished by
|
0010| a fine of not more than three hundred dollars ($300) or by
|
0011| imprisonment in the county jail for not more than one hundred
|
0012| twenty days or by both.
|
0013| Q. Any person aggrieved by any decision made by the
|
0014| director as to the approval or disapproval of the issuance of a
|
0015| license may appeal to the district court [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] pursuant to the provisions of
|
0019| Section 12-8A-1 NMSA 1978. If the disapproval is based upon
|
0020| local option district disapproval pursuant to Subsection H of
|
0021| Section 60-6B-4 NMSA 1978, the local option district shall be a
|
0022| necessary party to any appeal. The decision of the director
|
0023| shall continue in force, pending a reversal or modification by
|
0024| the district court, unless 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]"
|
0003| Section 74. Section 60-6C-6 NMSA 1978 (being Laws 1981,
|
0004| Chapter 39, Section 102, as amended) is amended to read:
|
0005| "60-6C-6. NO INJUNCTION OR MANDAMUS PERMITTED--APPEAL--[PREFERENCE--NOTICE OF APPEAL].--
|
0006| A. No injunction or writ of mandamus or other legal
|
0007| or equitable process shall issue in any suit, action or
|
0008| proceeding to prevent or enjoin any finding of guilt or order of
|
0009| suspension or revocation or fine made by a liquor control
|
0010| hearing officer under the provisions of Section 60-6C-4 NMSA
|
0011| 1978. Any licensee aggrieved or adversely affected by any order
|
0012| of revocation, suspension or fine shall have the right to appeal
|
0013| 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 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 to the provisions
|
0011| of Section 12-8A-1 NMSA 1978.
|
0012| [C.] B. No appeal shall have the effect of
|
0013| suspending the operation of the order of suspension, revocation
|
0014| or fine, but the liquor control hearing officer may, for good
|
0015| cause shown and upon [such] the terms and conditions as he
|
0016| may find are just, in his discretion suspend the operation of
|
0017| the order of suspension, revocation or fine pending the appeal.
|
0018| The court shall tax costs against the losing party.
|
0019| [D. Appeals from the decision of the court to the
|
supreme court of the state may be made in accordance with the
|
rules of the supreme court.]"
|
0022| Section 75. Section 61-1-17 NMSA 1978 (being Laws 1957,
|
0023| Chapter 247, Section 17, as amended) is amended to read:
|
0024| "61-1-17. PETITION FOR REVIEW--[WAIVER OF RIGHT].--Any
|
0025| person entitled to a hearing [under] provided for in the
|
0001| Uniform Licensing Act, who is aggrieved by an adverse decision
|
0002| of a board issued after hearing, may obtain a review of the
|
0003| 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]
|
0020| pursuant to the provisions of Section 12-8A-1 NMSA 1978."
|
0021| Section 76. Section 61-1-19 NMSA 1978 (being Laws 1957,
|
0022| Chapter 247, Section 19, as amended) is amended to read:
|
0023| "61-1-19. STAY.--At any time before or during the review
|
0024| proceeding pursuant to Section 61-1-17 NMSA 1978, the
|
0025| aggrieved person may apply to the board or file a motion in
|
0001| accordance with the Rules of Civil Procedure for the District
|
0002| Courts in the reviewing court for an order staying the operation
|
0003| of the board decision pending the outcome of the review. The
|
0004| board or court may grant or deny the stay in its discretion. No
|
0005| [such] order granting or denying a stay shall be reviewable."
|
0006| Section 77. Section 61-12A-16 NMSA 1978 (being Laws 1983,
|
0007| Chapter 267, Section 16) is amended to read:
|
0008| "61-12A-16. RIGHT OF REVIEW.--Any person [who deems
|
himself to be] aggrieved by any final decision of the board has
|
0010| the right to obtain a review of the decision in the district
|
0011| court [of Santa Fe county. A review may be obtained by filing
|
an appeal no later than fifteen days subsequent to the entering
|
of the final decision of the board sought to be reviewed]
|
0014| pursuant to the provisions of Section 12-8A-1 NMSA 1978."
|
0015| Section 78. Section 61-14-13 NMSA 1978 (being Laws 1967,
|
0016| Chapter 62, Section 9, as amended) is amended to read:
|
0017| "61-14-13. DENIAL, SUSPENSION OR REVOCATION OF
|
0018| LICENSE.--
|
0019| A. [Upon written complaint by any person and after
|
notice and hearing as prescribed in the Uniform Licensing Act]
|
0021| The board may place a licensee on probation, impose on a
|
0022| licensee an administrative penalty in an amount not to exceed
|
0023| two thousand five hundred dollars ($2,500), reprimand a
|
0024| licensee, deny, suspend for a definite period or revoke [the]
|
0025| a license, certificate or permit of a licensee or take any
|
0001| other reasonable action as established by the board [This
|
applies to any person whose activities are covered by the
|
Veterinary Practice Act for] if the board determines after
|
0004| receiving a complaint and providing notice and a hearing
|
0005| pursuant to the Uniform Licensing Act that a licensee:
|
0006| (1) has committed an act of fraud,
|
0007| misrepresentation or deception in obtaining a license or permit;
|
0008| (2) [adjudication of insanity] has been
|
0009| adjudicated insane or [manifest incapacity] manifestly
|
0010| incapacitated;
|
0011| (3) [use of] has used advertising or
|
0012| solicitation that is false, misleading or is otherwise deemed
|
0013| unprofessional under regulations promulgated by the 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 association
|
0020| with or [employing] employs any person practicing veterinary
|
0021| 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
|
0001| condition in compliance with facility permit regulations
|
0002| promulgated by the board;
|
0003| (9) is guilty of habitual or excessive use of
|
0004| 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 than
|
0009| nonpayment of license or permit fees;
|
0010| (12) is guilty of unprofessional conduct by
|
0011| violation of a regulation promulgated by the board pursuant to
|
0012| provisions of the Veterinary Practice Act;
|
0013| (13) [failure] has failed to perform as a
|
0014| veterinary technician under the direct supervision of a licensed
|
0015| 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
|
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-counter drug in the absence of a valid veterinarian-client-patient relationship;
|
0008| (20) [failure] has failed to report, as
|
0009| required by law, or [making] has made a false report of any
|
0010| contagious or infectious disease; or
|
0011| (21) has engaged in an unfair or deceptive
|
0012| [practices] practice.
|
0013| B. Any person whose license, certificate or permit
|
0014| is suspended or revoked by the board pursuant to provisions of
|
0015| this section may, at the discretion of the board, be relicensed
|
0016| or reinstated by the board at any time without examination upon
|
0017| written application to the board showing cause to justify
|
0018| relicensing or reinstatement."
|
0019| Section 79. Section 61-18A-32 NMSA 1978 (being Laws 1987,
|
0020| Chapter 252, Section 32) is amended to read:
|
0021| "61-18A-32. JUDICIAL REVIEW.--Any person aggrieved by the
|
0022| decision of the director in the enforcement of the Collection
|
0023| Agency Regulatory Act may obtain judicial review [thereof in
|
the manner provided for review of agency decisions by the
|
Administrative Procedures Act] in the district court pursuant
|
0001| to the provisions of Section 12-8A-1 NMSA 1978."
|
0002| Section 80. Section 66-4-3 NMSA 1978 (being Laws 1978,
|
0003| Chapter 35, Section 216) is amended to read:
|
0004| "66-4-3. REFUSAL TO ISSUE LICENSE--CANCELLATION OR
|
0005| SUSPENSION OF LICENSE OR USE OF TEMPORARY PERMITS--HEARING--APPEAL.--
|
0006| A. The division may refuse to issue a license for
|
0007| just cause and may cancel or suspend a license or use of
|
0008| temporary permits for violation of the Motor Vehicle Code. The
|
0009| division shall take the action [herein] authorized in this
|
0010| section only after hearing. Notice of [such] hearing shall
|
0011| be given the party concerned as provided in Section [64-2-11
|
NMSA 1953. Such] 66-2-11 NMSA 1978. The notice shall state
|
0013| the proposed action of the division and the reason for [such]
|
0014| the proposed action.
|
0015| B. The division shall prepare rules and regulations
|
0016| for the conduct of [such] the hearing. At [such] the
|
0017| hearing, the technical rules of evidence [shall] do not
|
0018| apply, and a party [shall have] has the right to be
|
0019| represented by counsel, to call witnesses in his own behalf and
|
0020| to cross-examine the witnesses of other parties.
|
0021| C. The director or his designated agent shall
|
0022| conduct the hearing for the division and shall cause a record of
|
0023| hearing to be made.
|
0024| D. Within ten days after completion of the hearing,
|
0025| the director shall cause to be served upon all parties, in the
|
0001| manner provided in Section [64-2-11 NMSA 1953] 66-2-11 NMSA
|
0002| 1978, his findings and decision. The decision shall be:
|
0003| (1) granting a license or refusing to grant a
|
0004| license;
|
0005| (2) continuing a license, [cancellation of]
|
0006| canceling a license or [suspension of] suspending a
|
0007| license for a time stated; or
|
0008| (3) continuing use of dealer plates and
|
0009| temporary permits, [cancellation of] canceling dealer plates
|
0010| and temporary permits or [suspension of] suspending use of
|
0011| temporary permits for a time stated.
|
0012| [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]
|
0018| E. Any party aggrieved by the director's decision
|
0019| may file an appeal in the district court pursuant to the
|
0020| provisions of Section 12-8A-1 NMSA 1978."
|
0021| Section 81. Section 66-5-36 NMSA 1978 (being Laws 1978,
|
0022| Chapter 35, Section 258) is amended to read:
|
0023| "66-5-36. RIGHT OF APPEAL TO COURT.--Any person denied a
|
0024| license or whose license has been [cancelled] canceled,
|
0025| suspended or revoked by the division, except [where such]
|
0001| when the cancellation or revocation is mandatory under the
|
0002| 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 sus-
|
pension, cancellation or revocation of license under the
|
provisions of this article] Chapter 66, Article 5 NMSA 1978
|
0012| may file an appeal in the district court pursuant to the
|
0013| provisions of Section 12-8A-1 NMSA 1978."
|
0014| Section 82. Section 66-5-204 NMSA 1978 (being Laws 1983,
|
0015| Chapter 318, Section 5) is amended to read:
|
0016| "66-5-204. ADMINISTRATIVE AND COURT REVIEW.--Any owner of
|
0017| a motor vehicle registered in New Mexico who is aggrieved by the
|
0018| decision of the director made under the provisions of the
|
0019| Mandatory Financial Responsibility Act may appeal to the hearing
|
0020| officer of the division for a hearing to be held within twenty
|
0021| days of the receipt by the division of the appeal. Any person
|
0022| who continues aggrieved after the decision made by the hearing
|
0023| officer may appeal that 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] to the district court pursuant to the provisions of
|
0002| Section 12-8A-1 NMSA 1978."
|
0003| Section 83. Section 67-8-19 NMSA 1978 (being Laws 1959,
|
0004| Chapter 310, Section 5) is amended to read:
|
0005| "67-8-19. PROCEDURE--APPEAL.--
|
0006| A. All hearings held [hereunder] pursuant to this
|
0007| section shall be public and upon not less than fifteen [days]
|
0008| days' written notice of the time, place and purpose of
|
0009| [such] the hearing to each utility whose services or
|
0010| facilities may be affected and to each municipality in which any
|
0011| part of the proposed highway improvement is to be located.
|
0012| Hearings may be held before the commission, any member
|
0013| [thereof] or any representative designated by it and at
|
0014| [such] the place as [shall be] is designated in the
|
0015| notice.
|
0016| B. A record of the testimony shall be taken at
|
0017| [such] the hearing and a transcript [thereof] furnished to
|
0018| anyone upon request and payment of the cost [thereof].
|
0019| C. The findings and orders shall be in writing and a
|
0020| copy [thereof] served upon each party [thereto].
|
0021| D. The commission may promulgate rules to govern its
|
0022| proceedings [hereunder] pursuant to this section.
|
0023| E. Any party aggrieved by any order may appeal to
|
0024| 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] pursuant
|
0015| to the provisions of Section 12-8A-1 NMSA 1978."
|
0016| Section 84. Section 67-10-2 NMSA 1978 (being Laws 1891,
|
0017| Chapter 44, Section 2, as amended) is amended to read:
|
0018| "67-10-2. RATES AND TOLLS--APPEALS.--[Sec. 95. That]
|
0019| Such corporation may, after the completion of such wagon road or
|
0020| any part thereof and after the completion of any such bridge or
|
0021| ferry for and by the traveling public, apply by petition in
|
0022| writing to the board of county commissioners of the county [or
|
counties] in or through which [such] the road, bridge or
|
0024| ferry is or has been constructed, for rates, prices and tolls to
|
0025| be charged and collected from the traveling public [so] using
|
0001| and traveling on [such] the toll road, bridge or ferry,
|
0002| which petition shall state such facts in reference to a road,
|
0003| bridge or ferry as will be sufficient to inform the board of
|
0004| county commissioners as to enable the board of county
|
0005| commissioners to fix the rates, tolls and charges, equal and
|
0006| just between the corporation owning the road, bridge or ferry
|
0007| and the traveling public using the same, and the rates, tolls
|
0008| and charges so fixed shall remain the same for two years
|
0009| [and]. At the expiration of each two years, the corporation
|
0010| shall petition as aforesaid for the fixing of the rates, tolls
|
0011| and charges by the board of county commissioners. In case the
|
0012| corporation [shall be] is dissatisfied with the rates, tolls
|
0013| and charges [so] 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 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
|
0008| Section 12-8A-1 NMSA 1978."
|
0009| Section 85. Section 67-13-12 NMSA 1978 (being Laws 1973,
|
0010| Chapter 17, Section 12) is amended to read:
|
0011| "67-13-12. ZONING--PETITION FOR REVIEW [TIME LIMIT]--RESTRAINING ORDER.--
|
0012| A. Any person aggrieved by a decision of the board
|
0013| 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] district court
|
0016| pursuant to the provisions of Section 12-8A-1 NMSA 1978.
|
0017| B. The appeal shall not stay the decision appealed
|
0018| from, but the court may, on application, grant a restraining
|
0019| order."
|
0020| Section 86. Section 69-6-2 NMSA 1978 (being Laws 1933,
|
0021| Chapter 153, Section 308) is amended to read:
|
0022| "69-6-2. RIGHT OF APPEAL.--Every owner, operator or
|
0023| employee of any such mine [shall have] has a right of appeal
|
0024| 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]
|
0003| pursuant to the provisions of Section 12-8A-1 NMSA 1978."
|
0004| Section 87. Section 69-36-16 NMSA 1978 (being Laws 1993,
|
0005| Chapter 315, Section 16) is amended to read:
|
0006| "69-36-16. JUDICIAL REVIEW.--
|
0007| A. Any person who is or may be affected by a
|
0008| regulation of the commission may appeal the action of the
|
0009| commission by filing a notice of appeal with the court of
|
0010| appeals within thirty days from the filing date of the
|
0011| regulation with the state records center. All appeals of
|
0012| regulations shall be taken on the record made at the public
|
0013| hearing on the regulation.
|
0014| B. A party, intervenor or any other person upon a
|
0015| showing of good cause for not appearing at the public hearing on
|
0016| a regulation may appeal a decision of the commission adopting,
|
0017| amending or repealing regulations by filing a written notice of
|
0018| appeal with the court of appeals within forty-five days after
|
0019| entry of the commission's decision. Copies of the notice of
|
0020| appeal shall be served at the time of filing, either personally
|
0021| or by certified mail, upon all parties to the proceeding before
|
0022| the commission.
|
0023| C. Any person who is or may be affected by a final
|
0024| action of the commission other than a regulation may appeal the
|
0025| action of the commission by filing a notice of appeal with the
|
0001| 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
|
discretion;
|
(2) not supported by substantial evidence in
|
the record; or
|
(3) otherwise not in accordance with law]
|
0021| pursuant to the provisions of Section 12-8A-1 NMSA 1978."
|
0022| Section 88. Section 70-2-25 NMSA 1978 (being Laws 1935,
|
0023| Chapter 72, Section 17, as amended) is amended to read:
|
0024| "70-2-25. REHEARINGS--APPEALS.--
|
0025| A. Within twenty days after entry of any order or
|
0001| decision of the commission, any party of record adversely
|
0002| affected [thereby] may file with the commission an application
|
0003| for rehearing in respect of any matter determined by [such]
|
0004| the order or decision, setting forth the respect in which
|
0005| [such] the order or decision is believed to be erroneous.
|
0006| The commission shall grant or refuse [any such] the
|
0007| application in whole or in part within ten days after the
|
0008| [same] application is filed, and failure to act [thereon]
|
0009| on the application within [such] that period shall be
|
0010| deemed a refusal [thereof] and [a] final disposition of
|
0011| [such] that application. In the event the rehearing is
|
0012| granted, the commission may enter [such] a new order or
|
0013| decision after rehearing as may be required under the
|
0014| circumstances.
|
0015| B. Any party of record to [such] the rehearing
|
0016| proceeding dissatisfied with the disposition of the application
|
0017| for rehearing may appeal [therefrom] to the district court
|
0018| [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 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
|
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
|
0019| of Section 12-8A-1 NMSA 1978."
|
0020| Section 89. Section 70-5-16 NMSA 1978 (being Laws 1973,
|
0021| Chapter 362, Section 16, as amended) is amended to read:
|
0022| "70-5-16. APPEAL.--Any licensee whose license is canceled
|
0023| or suspended by order of the commission may appeal the decision
|
0024| 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 appeal
|
0013| with the district court pursuant to the provisions of Section
|
0014| 12-8A-1 NMSA 1978."
|
0015| Section 90. Section 70-5-17 NMSA 1978 (being Laws 1947,
|
0016| Chapter 214, Section 17, as amended) is amended to read:
|
0017| "70-5-17. NO FORMAL NOTICE REQUIRED OF HEARING ON
|
0018| APPLICATION FOR LICENSE--APPEAL.--The same procedure, rights
|
0019| and penalties as specified in the LPG and CNG Act in the cases
|
0020| of revocation or suspension of licenses are available, where
|
0021| applicable, in cases where the bureau refused to grant a
|
0022| license, except that no formal notice of hearing on an
|
0023| application for license need be given an applicant, other than
|
0024| that he is given a reasonable opportunity to appear in support
|
0025| of his application before the bureau renders its order refusing
|
0001| 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 provisions of
|
0004| Section 12-8A-1 NMSA 1978."
|
0005| Section 91. Section 71-5-18 NMSA 1978 (being Laws 1975,
|
0006| Chapter 272, Section 18, as amended) is amended to read:
|
0007| "71-5-18. REHEARINGS--APPEALS.--
|
0008| A. Within twenty days after entry of any order or
|
0009| decision of the division, any party of record adversely affected
|
0010| [thereby] may file with the commission an application for
|
0011| rehearing in respect of any matter determined by [such] the
|
0012| order or decision, setting forth the respect in which [such]
|
0013| the order or decision is believed to be erroneous. The
|
0014| commission shall grant or refuse any such application in whole
|
0015| or in part within ten days after [the same] it is filed, and
|
0016| failure to act [thereon] within [such] the ten-day period
|
0017| shall be deemed a refusal [thereof] of the application and a
|
0018| final disposition of [such] the application. In the event
|
0019| the rehearing is granted, the commission may enter [such] a
|
0020| new order or decision after rehearing as may be required under
|
0021| the circumstances.
|
0022| B. Any party of record to [such] the rehearing
|
0023| proceeding dissatisfied with the disposition of the application
|
0024| for rehearing may appeal [therefrom] to the district court
|
0025| [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 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 the 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 Section 12-8A-1 NMSA
|
0008| 1978.
|
0009| C. The pendency of proceedings to review shall not
|
0010| of itself stay or suspend operation of the order or decision
|
0011| being reviewed, but during the pendency of [such] the
|
0012| proceedings, the district court in its discretion may, upon its
|
0013| own motion or upon proper application of any party [thereto]
|
0014| to the proceedings, stay or suspend in whole or in part
|
0015| operation of the order or decision pending review [thereof] on
|
0016| [such] terms as the court deems just and proper and in
|
0017| accordance with the practice of courts exercising equity
|
0018| jurisdiction; provided that the court, as a condition to any
|
0019| [such] staying or suspension of operation of any order or
|
0020| decision, may require that one or more parties secure, in
|
0021| [such] a form and amount as the court may deem just and
|
0022| proper, one or more other parties against loss or damage due to
|
0023| the staying or suspension of the commission's or division's
|
0024| order or decision in the event that the action of the commission
|
0025| or division [shall be] is affirmed.
|
0001| [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]"
|
0006| Section 92. Section 73-11-29 NMSA 1978 (being Laws 1919,
|
0007| Chapter 20, Section 21, as amended) is amended to read:
|
0008| "73-11-29. APPLICATION FOR WATER--BUDGET MEETING OF
|
0009| DIRECTORS--NOTICE OF MEETING--TAX ASSESSMENTS AND WATER
|
0010| CHARGES--EXEMPTIONS FROM TAX--APPEAL--SUCCESSION TO RIGHTS OF
|
0011| WATER USERS' ASSOCIATION.--
|
0012| A. Every person desiring to receive water during
|
0013| the course of the year, at the time he applies for water, shall
|
0014| furnish the secretary of the board of directors of the [said]
|
0015| irrigation district a statement in writing of the number of
|
0016| acres intended by him to be irrigated and a statement, as near
|
0017| as may be, of the crops planted or intended to be planted.
|
0018| B. The board of directors, on a date to be fixed
|
0019| by a standing order of the board, which shall not be later than
|
0020| July [first] 1 of each year, shall estimate and determine
|
0021| the amount of funds required to meet the obligations and needs
|
0022| of the district for the ensuing year, together with [such]
|
0023| the additional amount as may be necessary to meet any defi-
|
0024| ciency in the payment of expenses or obligations previously
|
0025| incurred by the district and remaining unpaid, for [such]
|
0001| any of the following purposes [as] that may be required by
|
0002| the activities of the district: [to wit
|
Item One] (1) the payment of the interest
|
0004| upon bonds of the district and any [instalment] installment
|
0005| on the principal [thereof] of the bonds;
|
0006| [Item Two] (2) any payment to become due
|
0007| under any contract with the United States, to secure which bonds
|
0008| have not been deposited with the United States, whether for the
|
0009| cost of irrigation or drainage system or for the operation and
|
0010| maintenance [thereof], or both; or if the lands of the
|
0011| district have been divided by the secretary of the interior into
|
0012| units, not necessarily contiguous, for repayment purposes the
|
0013| board shall prepare separate estimates for each such unit;
|
0014| [Item Three] (3) the portion of the expenses
|
0015| of operation and maintenance of the irrigation and drainage
|
0016| systems to be collected by tax assessment and levy, including
|
0017| funds required to meet obligations as provided in Section [5
|
(Section 77-2348) hereof] 73-11-49 NMSA 1978. This portion
|
0019| shall not be less than one-half of that portion required for
|
0020| [such] the operation and maintenance costs for the ensuing
|
0021| year and shall be determined by the board of directors of
|
0022| [said] the district from year to year [and]. The [said]
|
0023| portion of [said] the operation and maintenance expenses
|
0024| [so] collected by tax assessment and levy shall be collected
|
0025| from all lands of the district, whether irrigated or not, except
|
0001| [such] those lands as may be exempted from taxation by the
|
0002| terms of [this act] Chapter 73, Articles 10 and 11 NMSA
|
0003| 1978, and the same, when collected, shall be applied to the
|
0004| cost of operating and maintaining [of] the irrigation and
|
0005| drainage systems. The remainder of [said] the estimated
|
0006| amount shall be paid by the parties actually using [said]
|
0007| the systems and water for irrigation or other purposes in
|
0008| accordance with the terms of their contract for water; or
|
0009| [Item Four] (4) current and miscellaneous
|
0010| expense fund requirements, other than as [above] specified in
|
0011| this section, and necessary to defray the expenses of
|
0012| maintaining the organization of the district and carrying out
|
0013| the purposes of [this act] Chapter 73, Articles 10 and 11
|
0014| NMSA 1978, shall be determined annually at a per acre rate by
|
0015| the board of directors. The amounts to be collected under
|
0016| [Item Four] this paragraph may, at the option of the board
|
0017| of directors of [said] the district, be collected as tolls
|
0018| and charges in the manner provided in Section [28, Chapter 20,
|
of the Laws of 1919]
|
0020| 73-11-28 NMSA 1978.
|
0021| C. Lands [which], that in the opinion of the
|
0022| board of directors, are unfit for cultivation by irrigation on
|
0023| account of seepage, alkali or physical condition and location of
|
0024| the land, or other conditions, or lands to which the existing
|
0025| distributing system or its extensions [thereof] cannot
|
0001| furnish water at such points of delivery as the board may
|
0002| consider reasonable, shall not be taxed for [Item Three; and]
|
0003| Paragraph (3) of Subsection B of this section. Provided, that
|
0004| tax shall not be assessed for [Item Three] Paragraph (3) of
|
0005| Subsection B of this section against land involved in the
|
0006| boundary suit now pending in the United States supreme court
|
0007| between the state of Texas and the state of New Mexico until the
|
0008| final determination of [said] the suit, unless [such]
|
0009| the land is in cultivation and using water for irrigation; and
|
0010| lands shall not be taxed for [Items One and Two] Paragraphs
|
0011| (1) and (2) of Subsection B of this section for the periods and
|
0012| to the extent that, on account of seepage or other conditions,
|
0013| in the opinion of the directors or the secretary of the
|
0014| interior, as may be provided by contract with the United States,
|
0015| or with district bondholders, such lands are not fit for
|
0016| cultivation by irrigation on account of [such] those
|
0017| conditions; but nothing [herein] contained in this section
|
0018| shall be construed to relieve the district from making provision
|
0019| to raise the amount required to make full payment to private
|
0020| creditors or to the United States for the full cost of
|
0021| construction or of operation and maintenance, irrespective of
|
0022| the exemption of any lands from taxation, unless expressly
|
0023| provided by the assent of the bondholders or other private
|
0024| creditors or by agreement with the United States, as the case
|
0025| may be [and]. In determining the amount required for the
|
0001| respective items aforesaid, the board shall take into
|
0002| consideration the gross amount of exemption and credits
|
0003| allowable pursuant to entries made by the board upon the
|
0004| assessor's certified list, as provided in Section [22 (§
|
77-2331) of this act provided] 73-11-31 NMSA 1978. Proper
|
0006| entry shall be made by the district officers of all exemptions
|
0007| made and of credits allowed. The amount required to meet the
|
0008| obligations of the district, except [the] that portion
|
0009| [thereof] collected from tolls and charges, shall be raised by
|
0010| tax assessments, levy and collection, as [hereinafter]
|
0011| provided in Chapter 73, Articles 10 and 11 NMSA 1978, to be
|
0012| extended pro rata per acre over all lands in the [said]
|
0013| district or, in appropriate cases, under [Item Two above]
|
0014| Paragraph (2) of Subsection B of this section, against all
|
0015| land in each respective unit of the district. When the board
|
0016| [shall assemble] meets for the purposes [hereinbefore]
|
0017| prescribed, it shall consider, determine and designate the lands
|
0018| within [said] the district [which] that shall be
|
0019| subjected to [the] those assessments and levies
|
0020| [hereinbefore mentioned].
|
0021| D. Notice of the time, place and purpose of [such]
|
0022| the meeting shall be given by publication in English and
|
0023| Spanish in [some] a newspaper [or newspapers] of general
|
0024| circulation published within the county [wherein] where the
|
0025| headquarters of the district are located and shall inform all
|
0001| the persons interested that, at the time and place specified, an
|
0002| opportunity will be afforded to appear before the board of
|
0003| directors and show cause why any particular tract of land, or
|
0004| any portion [there of] of it, should be exempted from
|
0005| taxation under the provisions of [this act. Such] Chapter 73,
|
0006| Articles 10 and 11 NMSA 1978. The notice shall be published
|
0007| once a week for four [(4)] consecutive weeks, and the last
|
0008| publication shall be not less than three [(3)] days prior to
|
0009| the date fixed for [such] the meeting. Proof of [such]
|
0010| publication shall be furnished by the publisher and shall be
|
0011| filed in the archives of the secretary of the district.
|
0012| E. At [such] the meeting, [said] the board
|
0013| of directors, subject to [such] reasonable regulations as it
|
0014| may prescribe, shall afford to all persons desiring to do so an
|
0015| opportunity to make [such] a showing as they may deem proper
|
0016| as to why any given tract of land or portion [thereof] of it
|
0017| shall be exempted from taxation [as aforesaid]. In each case,
|
0018| the board of directors may [cause to be made such] make an
|
0019| investigation as it may deem proper, after which the board shall
|
0020| determine the question submitted, as right and justice may
|
0021| require, and shall cause its decision to be duly entered upon
|
0022| its minutes and a copy [thereof] of it to be sent by
|
0023| registered mail to all parties who have made claim of exemption
|
0024| of land from taxation [as aforesaid].
|
0025| F. Any person [feeling himself] aggrieved by
|
0001| [such] the decision [as aforesaid] may appeal
|
0002| [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 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 therewith.
|
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] pursuant to the provisions
|
0016| of Section 12-8A-1 NMSA 1978.
|
0017| G. The filing of [said] the appeal in [said]
|
0018| the district court shall not stay the proceedings relating to
|
0019| the collection of [said] the tax [but]. In the event that
|
0020| the appellant has paid [said] the tax before the rendition
|
0021| of final judgment in [said] the suit and judgment is render-
|
0022| ed in [said] the suit in favor of the appellant, the
|
0023| appellant shall have refunded to him such sum of money as shall
|
0024| be determined by the judgment of the court, together with legal
|
0025| interest [thereon] on it and costs of court. [But] If
|
0001| the appellant fails to recover in [said] the suit, the
|
0002| appellant shall pay all costs of court. In case the assets and
|
0003| liabilities of any water users' association are taken over as
|
0004| provided in Section [1 (§ 77-2201) of this act provided]
|
0005| 73-10-1 NMSA 1978, the board of directors shall allow to the
|
0006| owner of lands, on account of which payment [shall have] has
|
0007| been made to [said] the association, all proper and
|
0008| equitable credits to which the [said] owner may be entitled,
|
0009| according to the books and records of [said] the as-
|
0010| sociation, which shall be prima facie evidence of the credits of
|
0011| its various members [and such]. The credits shall be taken
|
0012| into consideration by the board of directors in determining the
|
0013| amount of money required to meet obligations, maintenance,
|
0014| operating and current expenses of the district for the ensuing
|
0015| year, and the board of directors shall certify to the county
|
0016| commissioners the amount of [such] the credits, and levy
|
0017| [hereinafter] as provided for in Chapter 73, Articles 10
|
0018| and 11 NMSA 1978 shall be made accordingly.
|
0019| H. The term "asset" as used [herein] in this
|
0020| section includes any and all grants, rights, powers, privileges
|
0021| and appropriations [heretofore] conferred by [any] law
|
0022| [general or special] and upon any water users' association and
|
0023| upon taking over the assets of any water users' association as
|
0024| [hereinbefore] provided in Chapter 73, Articles 10 and 11
|
0025| NMSA 1978 by any irrigation district. [Said] The district
|
0001| shall succeed to all such grants, rights, powers, privileges and
|
0002| appropriations, and the officers of [said] the irrigation
|
0003| district are authorized and empowered to perform such duties and
|
0004| execute such instruments in regard thereto as [said] the law
|
0005| required of the officers of [said] the water users'
|
0006| association."
|
0007| Section 93. Section 73-12-4 NMSA 1978 (being Laws 1929,
|
0008| Chapter 76, Section 4) is amended to read:
|
0009| "73-12-4. [THE] PETITION HEARING [ON THE PETITION AND
|
ANY]
|
0011| --OBJECTIONS [TO ORGANIZATION: ESTABLISH]--BOUNDARIES
|
0012| [CALLING AN]--ELECTION--[AND PROVIDING FOR] APPEALS.--
|
0013| A. At the hearing before the board of county
|
0014| commissioners provided for in [the preceding] Section 73-12-3
|
0015| NMSA 1978, the [said] board shall proceed to determine
|
0016| whether [said] the petition has been signed by the requisite
|
0017| number of petitioners; whether [or not] the lands in the
|
0018| proposed district are arid or semiarid lands; whether [such]
|
0019| the lands are [suseptible of] susceptible to irrigation
|
0020| and have a fertile soil that will warrant farming [the same]
|
0021| them by irrigation; whether there is a supply of water
|
0022| [which] that can be made efficiently available for
|
0023| irrigation by the use of pumps; whether the proposed plan is
|
0024| practicable; and whether, on the whole, the development said to
|
0025| result from the introduction of power is of such interest and
|
0001| benefit to the whole district as to impress it with the
|
0002| character of public use. For the purpose of determining the
|
0003| public use of the operations of the proposed district and all
|
0004| other of the foregoing questions, the board of county
|
0005| commissioners is [hereby] established as an inferior court and
|
0006| its decisions shall be binding upon all persons interested
|
0007| unless reversed on appeal as [hereinafter] provided in this
|
0008| section, and if modified or affirmed, it shall be so binding.
|
0009| B. If the board of county commissioners hearing the
|
0010| matter [shall determine] determines that the petition has
|
0011| been signed by the requisite number of petitioners as required
|
0012| by [this act] Chapter 73, Article 12 NMSA 1978 and [shall
|
determine] determines that [such] the proposed
|
0014| development is of such interest and benefit to the whole
|
0015| district as to impress with the character of public use, it
|
0016| shall then proceed to hear any [and all] objections,
|
0017| exceptions and protests [which] that have been made in
|
0018| writing to the organization of [such] the district or to the
|
0019| inclusion of any lands within [such] the district or to the
|
0020| exclusion of lands from [such] the district and [such]
|
0021| other objections, exceptions and protests as may be presented in
|
0022| writing to the organization of the district. All persons whose
|
0023| lands have not been included in the proposed district, as
|
0024| defined in the petition, [shall] have the right to appear
|
0025| before [said] the board at [such] the time and place as
|
0001| parties interested in or affected by the organization of the
|
0002| district and [shall] have the right to petition that their
|
0003| lands be included within [such] the district, and, if it
|
0004| [shall appear] appears to the board that the inclusion of
|
0005| such lands may be made without materially increasing the cost of
|
0006| service, the commissioners may by order include such lands
|
0007| within [said] the district.
|
0008| C. If the board [shall make] makes findings
|
0009| approving of the organization of [such] the district, it
|
0010| shall then proceed to define the boundaries of [such] the
|
0011| proposed district from [said] the petition and from [such]
|
0012| applications in writing for the exclusion of lands [therefrom]
|
0013| and the inclusion of lands [therein] from and in the
|
0014| district, as may be made in accordance with the intent of
|
0015| [this Act] Chapter 73, Article 12 NMSA 1978. The board may
|
0016| adjourn [such] the meeting from time to time not exceeding
|
0017| three weeks in all and shall, by final order duly entered upon
|
0018| [their] its records, allow the prayer of [said] the
|
0019| petition and define and establish the boundaries of [such]
|
0020| the proposed district. Provided that [said] the board
|
0021| shall not modify [such] the proposed boundaries described in
|
0022| the petition so as to change the objects of [said] the
|
0023| petition or so as to exempt from the operation of [this Act]
|
0024| Chapter 73, Article 12 NMSA 1978 any land within the
|
0025| boundaries proposed by the petition [suseptable] susceptible
|
0001| to irrigation by the same system or power works applicable to
|
0002| other lands in [such] the proposed district [nor shall
|
any]. No land [which] that will not, in the judgment of
|
0004| the board, be benefited by [such] the proposed system
|
0005| shall be included in [such] the district if [the] its
|
0006| owner [thereof shall make] makes written application at
|
0007| [such] the hearing to withdraw [the same] it.
|
0008| D. Any persons aggrieved by the decision of the
|
0009| board of county commissioners, upon the hearing [hereinbefore]
|
0010| provided for [is hereby] in this section, are given the
|
0011| 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
|
0019| the district court pursuant to the provisions of Section 12-8A-1
|
0020| NMSA 1978.
|
0021| E. When the petition has been allowed and the
|
0022| boundaries established and the name of the proposed district
|
0023| designated, which shall be ____________________ electrical
|
0024| district, the [said] board of county commissioners shall, by
|
0025| further order duly entered upon [their] its records, call an
|
0001| election of the qualified electors of [said] the district to
|
0002| be held for the purpose of determining whether [such] the
|
0003| district shall be organized under the provisions of [this Act]
|
0004| Chapter 73, Article 12 NMSA 1978 and by such order shall
|
0005| submit the names of one or more persons from each of three
|
0006| divisions of [said] the district, as [hereinafter]
|
0007| provided in this section, to be voted for as directors
|
0008| therein, and for the purpose of [said] the election shall
|
0009| [devide said] divide the district into three divisions, as
|
0010| nearly equal in size as may be practicable, to be numbered,
|
0011| respectively, [I, II] 1, 2 and [III] 3 and shall provide
|
0012| that a qualified elector of each of [said] the three
|
0013| divisions shall be elected as a member of the board of directors
|
0014| of [said] the district by the qualified electors of the
|
0015| whole district. Each of [said] the divisions shall
|
0016| constitute an election precinct and the commissioners shall
|
0017| appoint three judges for each of [such] the precincts, one
|
0018| of whom shall act as clerk of [said] the election.
|
0019| [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
|
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.]"
|
0013| Section 94. Section 74-3-9 NMSA 1978 (being Laws 1971,
|
0014| Chapter 284, Section 7, as amended) is amended to read:
|
0015| "74-3-9. LICENSING OF RADIOACTIVE MATERIAL--APPEAL.--
|
0016| A. It is unlawful for any person to possess, use,
|
0017| store, dispose of, manufacture, process, repair or alter any
|
0018| radioactive material unless he holds:
|
0019| (1) a license issued by the nuclear regulatory
|
0020| commission and notification by the licensee to the agency of
|
0021| license identification;
|
0022| (2) a license issued by an agreement state and
|
0023| notification by the licensee to the agency of license
|
0024| identification; or
|
0025| (3) a license issued by the agency.
|
0001| B. The agency shall issue licenses and shall approve
|
0002| requests for reciprocity in accordance with procedures
|
0003| prescribed by regulation of the board. License applications
|
0004| shall be made on forms provided by the agency. The agency shall
|
0005| not issue a license unless the applicant has demonstrated the
|
0006| capability of complying with all applicable regulations of the
|
0007| board.
|
0008| C. The board may, by regulation, exempt from the
|
0009| requirements of licensure specific quantities of any radioactive
|
0010| material determined by the board not to constitute a health or
|
0011| environmental hazard.
|
0012| D. The holding of a license issued by the agency, the
|
0013| nuclear regulatory commission or an agreement state does not
|
0014| relieve the licensee from the responsibility of complying with
|
0015| all applicable regulations of the board.
|
0016| E. Any person who is or may be affected by licensing
|
0017| action of the agency may appeal [for further relief] to the
|
0018| 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]
|
0003| pursuant to the provisions of Section 12-8A-1 NMSA 1978."
|
0004| Section 95. Section 74-4B-14 NMSA 1978 (being Laws 1992,
|
0005| Chapter 5, Section 3) is amended to read:
|
0006| "74-4B-14. CLEANUP OF ORPHAN HAZARDOUS MATERIALS--
|
0007| DEPARTMENT RECOURSE--APPEAL.--The department may assess
|
0008| charges against [persons] a party identified as responsible
|
0009| for orphan hazardous materials for costs the department incurs
|
0010| in cleanup of the orphan hazardous materials and for damage to
|
0011| state property. Amounts received in payment of assessments for
|
0012| cleanup of the orphan hazardous materials shall be deposited in
|
0013| the orphan material recovery fund. Amounts received in payment
|
0014| of assessments for damage to state property shall be used to
|
0015| repair the damage. Any person who is assessed charges pursuant
|
0016| to this section may appeal the assessment to the district court
|
0017| [within thirty days of receipt of notice of the assessment]
|
0018| pursuant to the provisions of Section 12-8A-1 NMSA 1978."
|
0019| Section 96. Section 75-3-11 NMSA 1978 (being Laws 1965,
|
0020| Chapter 235, Section 11) is amended to read:
|
0021| "75-3-11. JUDICIAL REVIEW.--Rulings by the commission on
|
0022| the issuance, refusal or revocation of a license are subject to
|
0023| review [only in the district court for Santa Fe county and the
|
state supreme court] in the district court pursuant to the
|
0025| provisions of Section 12-8A-1 NMSA 1978."
|
0001| Section 97. REPEAL.--Sections 4-45-6, 12-8-17 through
|
0002| 12-8-22, 61-1-18, 61-1-20, 61-1-22, 61-1-23, 61-1-26, 61-12-16,
|
0003| 61-18A-24 and 61-27A-15 NMSA 1978 (being Laws 1876, Chapter 1,
|
0004| Section 23, Laws 1969, Chapter 252, Sections 17 through 22, Laws
|
0005| 1957, Chapter 247, Sections 18, 20, 22, 23 and 26, Laws 1953,
|
0006| Chapter 136, Section 16, Laws 1987, Chapter 252, Section 24 and
|
0007| Laws 1993, Chapter 212, Section 15, as amended) are repealed.
|
0008| Section 98. EFFECTIVE DATE.--The effective date of the
|
0009| provisions of this act is September 1, 1996.
|
0010| State of New Mexico
|
0011| House of Representatives
|
0012|
|
0013| FORTY-SECOND LEGISLATURE
|
0014| SECOND SESSION, 1996
|
0015|
|
0016|
|
0017| February 7, 1996
|
0018|
|
0019|
|
0020| Mr. Speaker:
|
0021|
|
0022| Your JUDICIARY COMMITTEE, to whom has been referred
|
0023|
|
0024| HOUSE BILL 587
|
0025|
|
0001| has had it under consideration and reports same with
|
0002| recommendation that it DO PASS.
|
0003|
|
0004| Respectfully submitted,
|
0005|
|
0006|
|
0007|
|
0008|
|
0009| Cisco McSorley, Chairman
|
0010|
|
0011|
|
0012| Adopted Not Adopted
|
0013| (Chief Clerk) (Chief Clerk)
|
0014|
|
0015| Date
|
0016|
|
0017| The roll call vote was 8 For 0 Against
|
0018| Yes: 8
|
0019| Excused: Baca, Gubbels, King, Luna, Sanchez, R.G.
|
0020| Absent: None
|
0021|
|
0022|
|
0023|
|
0024| H0587JC1
|
0025|
|
0001| FORTY-SECOND LEGISLATURE
|
0002| SECOND SESSION, 1996
|
0003|
|
0004|
|
0005| February 14, 1996
|
0006|
|
0007| Mr. President:
|
0008|
|
0009| Your JUDICIARY COMMITTEE, to whom has been referred
|
0010|
|
0011| HOUSE BILL 587
|
0012|
|
0013| has had it under consideration and reports same with
|
0014| recommendation that it DO PASS.
|
0015|
|
0016| Respectfully submitted,
|
0017|
|
0018|
|
0019|
|
0020| __________________________________
|
0021| Janice D. Paster, Chairman
|
0022|
|
0023|
|
0024|
|
0025| Adopted_______________________ Not Adopted_______________________
|
0001| (Chief Clerk) (Chief Clerk)
|
0002|
|
0003|
|
0004|
|
0005| Date ________________________
|
0006|
|
0007|
|
0008| The roll call vote was 5 For 0 Against
|
0009| Yes: 5
|
0010| No: 0
|
0011| Excused: None
|
0012| Absent: Carraro, Stefanics, Tsosie, Vernon
|
0013|
|
0014|
|
0015| H0587JU1
|
0016|
|