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A Brief Summary of the Nevada Administrative Procedure Act

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aDministrative ProCeDure aCt
BY ALICIA R. ASHCRAFT, ESQ.
a Brief summarY of tHe nevaDa
Administrative law involves the decisions of governmental agencies that are charged with the day-to-day details of governing. Accordingly, administrative law impacts more people than most other practice areas. A practitioner representing a client in a matter before a state agency should begin with a review of the Nevada Administrative Procedure Act (APA), found in Nevada Revised Statutes Title 18, chapter 233B. Unless it is specifically exempted, the APA applies to any agency, bureau, board, commission, department, division, officer or employee of the executive department of the state government authorized to make regulations or to determine contested cases.1 The APA establishes the minimum procedures for promulgating regulations and for adjudicating disputes before agencies.2, 3 The provisions of 233B are intended to be supplementary to specific enabling statutes for the various state agencies. NRS 233B is divided into three primary sections: general provisions (which include definitions), administrative regulations and adjudication of contested cases.
general Provisions and Definitions:
NRS 233B.030 through 233B.0385 provide the definitions for terms used in the chapter. Usually, a practitioner representing a client before an agency will be dealing with a “contested case,” which is defined as a proceeding “in which the legal
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rights, duties or privileges of a party are required by law to be determined by an agency after an opportunity for hearing, or in which an administrative penalty may be imposed.”4 A contested case includes the grant, denial or renewal of a license.5 In other circumstances, a practitioner will represent a client with respect to an agency’s “regulation,” which is a “rule, standard, directive or statement of general applicability that effectuates or interprets law or policy, or describes the organization, procedure or practice requirements of any agency.”6 “Regulation” does not include such things as declaratory rulings, internal memoranda or employee policies and procedures, decisions or findings in contested cases, advisory opinions and emergency actions necessary for public health and safety.7 As a preliminary matter, an administrative law practitioner will want to ensure that NRS 233B applies to the matter involved. For example, NRS 233B does not apply to agencies such as the Nevada System of Higher Education, the State Gaming Control Board or the Division of Welfare and Supportive Services of the Department of Health and Human Services.8 Other agencies may be subject to or exempt from NRS 233B depending upon the types of actions undertaken or decisions made.9 Knowing whether NRS 233B applies to a matter is fundamental because that determination directly affects the process of the matter and the ability and time limits to seek judicial review of the action. A practitioner should also review the enabling statute for a particular agency and the regulations for such agency. Again, NRS 233B is intended to supplement those statutes applicable to specific agencies.10
administrative regulations:
NRS 233B.0395 through 233B.120 provide the procedure for the adoption of agency regulations. Importantly, NRS 233B.040 directs an agency to adopt reasonable regulations for discharge of its functions, and NRS 233B.050 requires an agency to adopt rules of practice for all formal and informal procedures. It also obligates an agency to make available for public inspection all rules of practice, regulations, final orders, decisions and opinions adopted by the agency. No regulation, rule, final order or decision of an agency is valid against any party until it has been made available for public inspection.11 Pursuant to NRS 233B.060, an agency should give at least 30 days’ notice of its intended action before adopting, amending or repealing a regulation. The notice must contain a statement of the need for the regulation, a statement of the
economic effect of the regulation, a statement of the estimated cost of enforcement and the time and place where interested persons may present their views regarding the proposed regulation.12 NRS 233B.061(1) requires an agency to afford all interested persons “reasonable opportunity to submit data, views or arguments upon a proposed regulation, orally or in writing.” Each workshop and public hearing held under NRS 233B.061 is subject to the Open Meeting Law requirements of NRS chapter 241. NRS 233B.0613 provides that an agency may adopt an emergency regulation upon submission of a written statement of such emergency to the governor and the governor’s endorsement. An emergency regulation is effective for 120 days. Otherwise, an agency should not adopt, amend or repeal a permanent regulation until such agency has provided a copy of the proposed regulation to the Legislative Counsel pursuant to NRS 233B.063, and has received back from the Legislative Counsel the approved or revised text of the regulation pursuant to NRS 233B.064. Unless a later date is specified in the regulation, a permanent regulation becomes effective when the Legislative Counsel files it with the Secretary of State.13 The Secretary of State’s file stamp on the regulation creates a presumption that the regulation was adopted in accordance with all requirements to make it effective.14 Central for the practitioner representing a client with respect to administrative regulations are the ability of interested persons to present views and data on proposed regulations in accordance with NRS 233B.061(1) referenced above and the ability of interested persons to petition an agency for the adoption, amendment, or repeal of any regulation in accordance with NRS 233B.100. However, be aware that each agency determines the form and procedure for submission of such petitions.15 Following the adoption of a regulation, a small business “aggrieved” by a regulation may file a petition with an agency objecting to all or part of the regulation.16 Additionally, a person whose legal rights or privileges are impaired by a regulation make seek declaratory relief from the District Court.17
adjudication of Contested Cases:
NRS 233B.121 provides that in a contested case, an agency should afford all parties an opportunity for hearing after reasonable notice in writing. A party may be represented by counsel18 and must be given an opportunity to respond and present
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evidence and argument on all issues involved.19 An informal disposition may be made by stipulation, agreed settlement, consent order or default.20 The record in a contested case must include all evidence received or considered, matters officially noticed, proposed findings and exceptions, any decision by the hearing officer and other matters specified in NRS 233B.121(6). According to NRS 233B.123, each party may call, examine and cross-examine witnesses, and introduce exhibits,21 and irrelevant, immaterial or unduly repetitious evidence must be excluded.22 Unless a contested case is concluded by informal disposition, a final decision must include separately stated findings of fact and conclusions of law.23 Findings of fact must be based upon substantial evidence.24 A party may petition for rehearing or reconsideration within 15 days after service of such final decision.25 Additionally, NRS 233B.130 provides for judicial review of a final decision in a contested case; however, only the decision at the highest agency level is reviewable. Petitions for judicial review must be filed with the District Court within 30 days of the final decision.26 Judicial review is limited to the record of the proceeding,27 unless an application is made for leave to supplement the record with a showing that additional evidence “is material and that there were good reasons for failure to present it in the proceeding.”28 The reviewing court may not substitute its judgment for that of the agency, but rather reviews the decision to determine if a party’s rights have been prejudiced because the decision: 1. violates the Constitution or a statute; 2. exceeds the authority of the agency; 3. was made by unlawful procedure; 4. was affected by error of law; 5. was clearly erroneous based upon the whole record; or 6. was arbitrary or capricious, or was an abuse of discretion.29 Finally, an aggrieved party may also seek review of any final judgment of the District Court by appeal to the Supreme Court, as in other civil cases.30
AliciA R. AShcRAFt is a sole practitioner representing individuals and businesses in regulatory compliance and licensure matters before various state agencies. She is the chair of
the state bar’s Administrative Law Section (2008-present). Ashcraft can be reached at the Law Office of Alicia R. Ashcraft, (702) 631-7555 or at aashcraft@ashcraft-law.com (website www.ashcraft-law.com).
1 NRS 233B 2 NRS 233B.020(1) 3 As an interesting side note, the State of Nevada and the Federal Administrative Procedure Act are historically intertwined. It was Nevada Senator Patrick McCarran who undertook to limit the power of the multitude of agencies created by President Franklin D. Roosevelt and the then-Democratic Congress as part of the New Deal legislative plan by authoring and advocating for the passage of the Administrative Procedure Act of 1946. 4 NRS 233B.032 5 NRS 233B.127(1) 15 NRS 233B.100(1) 25 NRS 233B.130(4) 6 NRS 233B.038(1)(a) 26 NRS 233B.130(2) 16 NRS 233B.105 7 NRS 233B.038(2) 27 NRS 233B.135(1)(b) 17 NRS 233B.110 8 NRS 233B.039 18 NRS 233B.121(3) 28 NRS 233B.131(2) 9 Id. 19 NRS 233B.121(4) 29 NRS 233B.135(3) 10 NRS 233B.020(2) 20 NRS 233B.121(5) 30 NRS 233B.150 11 NRS 233B.050(2) 21 NRS 233B.123(4) 12 NRS 233B.0603(1)(a) 22 NRS 233B.123(1) 13 NRS 233B.070(1) 23 NRS 233B.125 14 NRS 233B.090 24 Id.
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