OAR 836-072-0035: Appealing a Fitness Determination

(1) This rule establishes a contested case hearing process by which an applicant may appeal a completed final fitness determination made under OAR 836-072-0015 that the applicant is fit or not fit for a license described in 836-072-0001 on the basis of information obtained as the result of a LEDS-based criminal history check or criminal records check conducted by or at the request of the Department pursuant to ORS 181.534. (2) An applicant may appeal a fitness determination by submitting a written request for a contested case hearing to the address specified in the notice provided under OAR 836-072-0030. To be timely, a request for hearing must be received by the Department not later than the 10th day after the date of the notice. The Department shall address a request received after the 10th day as provided under 137-003-0528. (3) When a timely request is received by the Department under section (2) of this rule, a contested case hearing shall be conducted by an administrative law judge assigned by the Office of Administrative Hearings, pursuant to the Attorney General's Uniform and Model Rules, “Procedural Rules, Office of Administrative Hearings,” OAR 137-003-0501 to 137-003-0700, as supplemented by this rule. (4) An applicant’s timely hearing request under section (2) of this rule constitutes a discovery request for any records that the applicant may inspect under OAR 836-072-0040(2)(e). The Department or the administrative law judge may protect information made confidential by ORS 181.534(15) or other applicable laws as provided in OAR 137-003-0570(7) or (8). (5) A contested case hearing on a fitness determination under this rule is closed to non-participants. (6) After a hearing, the administrative law judge shall issue a proposed order. Exceptions, if any, are due not later than the 14th day after service of the proposed order. The proposed order must provide an address to which exceptions may be sent. (7) A completed final fitness determination made under OAR 836-072-0015 constitutes a final order without a hearing as provided under OAR 137-003-0672. (8) An applicant may not use the appeals process established by this rule to challenge the accuracy or completeness of information provided by the Oregon Department of State Police, the Federal Bureau of Investigation, or agencies reporting information to the Oregon Department of State Police or the Federal Bureau of Investigation. To challenge the accuracy or completeness of any such information, an applicant may use any process made available by the agency that provided the information. (9) If an applicant successfully challenges the accuracy or completeness of information provided by the Oregon Department of State Police, the Federal Bureau of Investigation, or an agency reporting information to the Oregon Department of State Police or the Federal Bureau of Investigation, the applicant may request that the Department conduct a new criminal records check and re-evaluate the original fitness determination made under OAR 836-072-0015 by submitting a new DCBS Criminal Records Request form. (10) An appeal of a fitness determination under this rule, a challenge of criminal offender information with the agency that provided the information or a request for a new LEDS-based criminal history check or criminal records check and re-evaluation of the original fitness determination under section (9) of this rule does not delay or postpone a licensing decision by the Department unless the authorized designee decides that a delay or postponement should occur.