July 21, 2018

Colorado Court of Appeals: License Suspension Arbitrary and Capricious Due to Lack of Standards

The Colorado Court of Appeals issued its opinion in Farmer v. Colorado Parks & Wildlife Commission on Thursday, August 25, 2016.

Big Game Hunter—Suspension of Wildlife License—Colorado Parks and Wildlife Commission—Agency Standards—Arbitrary and Capricious.

Farmer is a big game hunter and guide. After allowing his Colorado outfitter’s license to lapse, Farmer was charged with six counts of illegal sale of big game wildlife for outfitting mountain lion hunts without the proper license. Farmer pleaded guilty to one count. Pursuant to CRS § 33-6-113(2)(a), his guilty plea triggered an administrative hearing by the Colorado Parks and Wildlife Commission (Commission) to determine whether to suspend Farmer’s wildlife license privileges. After a hearing, Farmer’s hunting license was suspended for 20 years. Farmer initiated this action for review of the Commission’s decision, and the district court affirmed.

On appeal, Farmer contended that he was deprived of due process because neither CRS §§ 33-6-106 and -113 nor any applicable regulations contain sufficient standards to constrain the Commission’s discretion in determining the length of his suspension. CRS § 33-6-113(2)(a) merely provides that, upon conviction for the illegal sale of big game, the Commission may suspend “any or all wildlife license privileges of the person for a minimum of one year to life.” Because neither the statute nor any applicable regulations provide sufficient standards to guide the Commission’s suspension decision, its action in suspending Farmer’s license was arbitrary and capricious.

The district court’s order was reversed and Farmer’s suspension was vacated. Because remanding to the hearing officer would not provide Farmer a complete remedy for the arbitrary and capricious suspension of his license under defective procedures, the Court of Appeals declined to remand for a new hearing.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Mandatory Disqualification Applies When Conviction Was Under Specified Statutory Section

The Colorado Supreme Court issued its opinion in Colorado Motor Vehicle Dealer Board v. Freeman on Monday, June 20, 2016.

Statutory Interpretation—State Agencies—Motor Vehicles.

The Supreme Court considered whether a person who commits third degree assault on an at-risk adult under C.R.S. §§ 18-3-204 and 18-6.5-103(3)(c) is disqualified from obtaining a motor vehicle salesperson’s license under C.R.S. § 12-6-118(7)(a)(I). The Court held that because the felony enhancement provision does not create a separate offense, Freeman was convicted of a “felony in violation of article 3 . . . of title 18,” C.R.S. § 12-6-118(7)(a)(I), and therefore the Colorado Motor Vehicle Dealer Board properly denied his application for a motor vehicle salesperson’s license. The Court of Appeals’ judgment was reversed.

Summary provided courtesy of The Colorado Lawyer.

HB 16-1424: Changing Requirements for Qualified Medication Administration Personnel in State Facilities

On March 30, 2016, Reps. Edward Vigil and Sen. Leroy Garcia introduced HB 16-1424Concerning Qualifications for the Administration of Medications in Facilities, and, in Connection Therewith, Making an Appropriation. The bill was introduced into the House Health, Insurance, & Environment Committee, where it passed unamended and was referred to Appropriations. The bill was amended in the Appropriations Committee, and again on Second Reading. The bill passed Third Reading with no further amendments and was introduced in the Senate, where it was assigned to the Health & Human Services Committee.

Under current law, the Department of Public Health and Environment (DPHE) oversees the administration of medications in prisons, jails, mental health facilities, and other state facilities. This bill amends the definition of “facility” to include all services funded through and regulated by the Department of Health Care Policy and Financing (DHCPF), changing from the Department of Human Services (DHS). Current law requires an unlicensed person who is a qualified manager to successfully complete a test pertaining to the administration of medication every four years. This bill eliminates the 4-year testing cycle and substitutes a requirement to successfully complete a competency evaluation pertaining to the administration of medications.

This bill establishes a medication administration program to be developed and conducted by the DHS, DHCPF, and Department of Corrections. The DHCPF shall: (1) establish the minimum requirements for course content, including competency evaluations, for medication administration, and determine compliance with the requirements for licensed facilities; (2) approve, set the minimum requirements for, and maintain a list of training entities for licensed facilities; and (3) publish and maintain a current list of all persons who have passed a competency evaluation from an approved training entity, as well as setting and collecting a uniform fee for inclusion in the public competency listing.

The bill prohibits an unlicensed person from filling and labeling medication reminder boxes until the person has successfully completed a competency evaluation from an approved training entity or has been approved by an authorized agency.

Lastly, the bill appropriates $30,298 to the DPHE, for use by the heath facilities and emergency medical services division, to implement this bill.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

Colorado Court of Appeals: Breeder of Rodents for Food Needs “Pet Animal” License to Operate Facility

The Colorado Court of Appeals issued its opinion in Salazar v. Kubic on Thursday, October 8, 2015.

Pet Animal Care and Facilities Act—Rats and Mice are Pet Animals.

Kubic, doing business as the Willards Rodent Factory, raises and houses more than 200 mice and rats at her facility. The rodents are sold as feed for snakes and other carnivores. Until March 2013, Kubic had a valid license issued under the Pet Animal Care and Facilities Act (PACFA) to operate a “pet animal facility,” but she let it expire.

In June 2013, the Colorado Commissioner of Agriculture issued a cease and desist order to Kubic because of the lapsed license. She continued to operate, and the trial court granted the Commissioner’s request for a permanent injunction to prevent her from operating without the required PACFA license. The injunction was stayed pending the outcome of this appeal.

Kubic argued that the trial court erred in its interpretation of PACFA’s definitions of “pet animal” and “pet animal facility” to require her to be licensed to operate her facility. Specifically, she argued that her mice and rats are not within the PACFA’s definition of “pet animal.” The Court of Appeals disagreed, holding that the statutory language expressly includes mice and rats. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Governor’s Attestation Regarding Nurse Anesthetists Purely Administrative

The Colorado Supreme Court issued its opinion in Colorado Medical Society v. Hickenlooper on Monday, June 1, 2015.

Executive Powers and Functions—Standing.

To receive Medicare reimbursement, hospitals and other medical service providers must require certified registered nurse anesthetists (CRNAs) who administer anesthesia to do so under physician supervision. However, states may opt out of this requirement if the Governor submits a letter to the relevant federal agencies attesting that the opt-out is in the best interest of the state’s citizens and is consistent with state law. In 2010, Governor Bill Ritter, Jr. sent such an opt-out letter, which attested that Colorado law permits CRNAs to administer anesthesia unsupervised.

Here, the Supreme Court held that the Governor’s attestation to the federal agencies that Colorado law permits CRNAs to administer anesthesia without supervision is not a generally binding interpretation of Colorado law subject to de novo review. Instead, the attestation’s sole effect is to exempt certain Colorado hospitals from the federal physician supervision requirement. This decision, if reviewable at all, is reviewable only for a gross abuse of discretion. Because petitioners do not allege that such a gross abuse occurred in this case, the Court affirmed the court of appeals’ dismissal of petitioners’ claims.

Summary and full case available here, courtesy of The Colorado Lawyer.

SB 14-133: Creating the Private Investigators Licensure Act

On Monday, January 27, 2014, Sen. Linda Newell introduced SB 14-133 – Concerning the Regulation of Private Investigators by the Department of Regulatory Agencies. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under the current “Private Investigators Voluntary Licensure Act” (voluntary act), a private investigator, at his or her option, may apply for a license from the division of professions and occupations (division) in the department of regulatory agencies and, upon satisfaction of the criteria for licensure, the director of the division is to issue a license to the private investigator. Only a person who obtains a license from the division may refer to himself or herself as a licensed private investigator, but no private investigator is required to be licensed by the division.

The bill repeals the voluntary licensure program and creates the “Private Investigators Licensure Act,” which establishes a new mandatory licensure program under which all persons conducting private investigations in this state must obtain a license from the division starting June 1, 2015. The definition of “private investigation”, as it was defined under the voluntary act, is expanded to include investigations pertaining to the following:

  • The location or recovery of lost or stolen property;
  • The affiliation, connection, or relationship of any person, firm, or corporation with any organization, society, or association or with any official, representative, or member of an organization, society, or association;
  • The conduct, honesty, efficiency, loyalty, or activities of employees, persons seeking employment, agents, contractors, or subcontractors; and
  • The identity or apprehension of persons suspected of crimes or misdemeanors.

Under the mandatory licensure program, an applicant may apply for one of two types of licenses as follows:

  • Level I private investigator license, which requires the applicant to be at least 21 years of age, be lawfully present in the United States, and pass a jurisprudence examination to demonstrate his or her knowledge and understanding of laws and rules applicable to the practice; or
  • Level II private investigator license, which requires the applicant to satisfy the requirements applicable to a level I license and have an amount of verifiable, applicable experience as determined by the director.

All private investigator licensees must pass a fingerprint-based background check.

The bill continues the exemptions authorized in the voluntary act and further exempts certain professionals, agencies, and activities from the act, including:

  • Collection and consumer reporting agencies;
  • Certified peace officers;
  • Government-employed investigators;
  • An accountant, certified fraud examiner, or employee or independent contractor of an accountant or fraud examiner who conducts forensic accounting, fraud investigations, or related analysis of financial transactions using information publicly available or supplied to the person;
  • A person serving process in accordance with rules of civil procedure or performing tasks associated with effecting service of process;
  • A licensed attorney, an employee of a licensed attorney, or a person providing paralegal services under contract with a licensed attorney;
  • A person recovering a fugitive; and
  • An agency, and its owner, employee, or independent contractor acting for the agency, that is conducting an investigation of a fire or explosion or an engineer-led investigation for cause analysis and failure analysis.

Licensees are required to post a surety bond in an amount determined by the director by rule. The bill establishes grounds for disciplining licensees, the methods of discipline available to the director, and disciplinary procedure.

The director is authorized to consult with stakeholders to obtain feedback and recommendations concerning the regulation of private investigators and the impacts of new technology on privacy. The director is also granted rule-making authority to implement and administer the act.

The “Private Investigators Licensure Act” and the functions of the director under the act are subject to repeal on Sept. 1, 2020, and prior to the repeal, the department of regulatory agencies is required to conduct a sunset review of the act.

The bill is assigned to the Judiciary Committee; the committee will consider the bill on Wednesday, Feb. 26 at 1:30 p.m.

Governor Hickenlooper Signs Three Firearms Bills

At a press conference on Wednesday, March 20, 2013, Governor Hickenlooper solemnly signed three bills designed to help control gun violence in Colorado. The bills prohibit large-capacity ammunition magazines, require criminal background checks for all transfers of firearms (including private transfers), and allow the CBI to recoup the cost of the background checks. The bills are:

  • HB 13-1224 – Concerning Prohibiting Large-Capacity Ammunition Magazines, by Rep. Rhonda Fields and Sen. Mary Hodge. Effective July 1, 2013, the bill prohibits manufacture or purchase of any magazine capable of accepting more than 15 rounds of ammunition. 
  • HB 13-1228 – Concerning Requiring the Colorado Bureau of Investigation to Recoup the Cost of Performing an Instant Background Check Prior to the Transfer of a Firearm, and, in Connection Therewith, Making and Reducing an Appropriation, by Rep. Lois Court and Sen. Rollie Heath. The bill allows the CBI to assess a charge for performing instant background checks.
  • HB 13-1229 – Concerning Criminal Background Checks Performed Pursuant to the Transfer of a Firearm, and in Connection Therewith, Making an Appropriation, by Reps. Rhonda Fields and Beth McCann and Sen. Morgan Carroll. The bill mandates criminal background checks for all transfers of firearms, including those between private parties.

Governor Hickenlooper issued a statement about the most controversial of the bills, HB 13-1224, noting that he acknowledges the concerns about the bill and stating

In considering the language of HB13-1224, we have consulted with the Office of the Attorney General and we concur with its advice that the large-capacity magazine ban should be construed narrowly to ensure compliance with the requirements of the Second Amendment and the Due Process Clause of the 14th Amendment. We have signed HB13-1224 into law based on the understanding that it will be interpreted and applied narrowly and consistently with these important constitutional provisions.

For a complete list of Governor Hickenlooper’s 2013 legislative decisions, click here.

SB 13-192: Extending the Time Period for Regulatory Agencies to Perform Criminal History Checks Under Exigent Circumstances

On Friday, February 22, 2013, Sen. Rollie Heath introduced SB 13-192 – Concerning the Ability of Government Agencies to Extend the Time Permitted for Action Based on the Results of Fingerprint-Based Criminal History Record Checks. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

In statutes relating to licensing of taxicab drivers and other regulated professions, as well as other statutes, the regulatory agency is given a period of time to issue or deny an operating permit or take other action on the basis of a fingerprint-based criminal history record check through the Colorado bureau of investigation. A recent backlog in processing these record checks has made it difficult for agencies to meet the statutory deadline. The bill allows an agency to extend the statutory time period for action in these situations upon finding that exigent circumstances exist. The bill passed out of the Senate on March 11; it is assigned to the State, Veterans, & Military Affairs Committee in the House.

Since this summary, the State, Veterans, & Military Affairs Committee referred the bill, unamended, to the House Committee of the Whole.

SB 13-180: Continuing the Regulation of the Practice of Occupational Therapy

On Friday, February 15, 2013, Sen. Irene Aguilar introduced SB 13-180 – Concerning the Continuation of the Regulation of the Practice of Occupational Therapy, and, in Connection Therewith, Requiring Occupational Therapists and Occupational Therapy Assistants to Obtain a License from the Department of Regulatory Agencies, Modifying Provisions Governing the Supervision of Occupational Therapy Assistants, Adding Grounds for Disciplining Licensees, Requiring Licensees to Maintain Professional Competency, and Authorizing Licensees to Enter into Agreements to Limit Practice when Suffering from a Physical or Mental Condition. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill implements the recommendations contained in the sunset review and report on the “Occupational Therapy Practice Act” (OTPA) by continuing the OTPA for five years and restoring provisions in the “Colorado Consumer Protection Act” (CCPA) that existed prior to the enactment of the OTPA. The provisions restored in the CCPA establish a deceptive trade practice, and thus trigger CCPA remedies, when a person claims to be an occupational therapist but has not earned the appropriate higher education degree, completed an internship, passed an examination given by a national organization, and obtained certification from a national organization. On March 7, the Health & Human Services Committee amended the bill and sent it to the Appropriations Committee for consideration of the fiscal impact.

SB 13-173: Continuing the Division of Gaming

On Friday, February 8, 2013, Sen. Andy Kerr introduced SB 13-173 – Concerning the Continuation of the Division of Gaming, and, in Connection Therewith, Implementing the Recommendations in the 2012 Sunset Report by the Department of Regulatory Agencies. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill implements the recommendations of the Department of Regulatory Agencies’ review of the division of gaming (division) within the department of revenue by:

  • Continuing the division for nine years, until 2022;
  • Amending certain definitions to make it clear that electronic versions of games and gaming equipment are permitted;
  • Creating a new type of license to be issued to suppliers of equipment used remotely or directly in connection with gaming, including equipment used to monitor, collect, or report gaming transactions data or to calculate adjusted gross proceeds and gaming taxes, and defining terms related to the new type of license;
  • Redefining “vintage slot machine” to exclude slot machines introduced on the market before 1984 but fitted with component parts manufactured in 1984 or thereafter;
  • Requiring the Colorado limited gaming control commission (commission) to promulgate rules concerning the conditions under which the division may authorize a retail gaming license applicant to own or possess slot machines;
  • Permitting the commission to promulgate rules regarding procedures for depositing and accounting for tips or gratuities;
  • Clarifying that the statute concerning possession of slot machines includes retailers among the persons who may legally possess slot machines; and
  • Making conforming amendments.
  • The bill also makes technical changes to portions of the “Colorado Limited Gaming Act,” including:

  • Removing from the considerations the commission is required to take into account in setting the gaming tax on adjusted gross proceeds of gaming the consideration of other “for-profit” forms of gambling in Colorado;
  • Allowing a licensee to offer a new game or technology without the commission’s prior approval if offering the game or technology in compliance with the commission’s rules regarding field trials of new games or technology;
  • Authorizing the commission to promulgate rules concerning the redemption of chips to replace the requirement that a licensee issue a check to a patron redeeming surrendered chips in any amount over $25; and
  • Updating the provision concerning limited gaming events sponsored by charitable organizations to reflect the vote at local elections held in the cities of Central, Black Hawk, and Cripple Creek in November 2008 to expand the hours of operation for limited gaming.
  • The bill is assigned to the Finance Committee.

    SB 13-171: Sunset Review of Licensing of Money Transmitters

    On Friday, February 8, 2013, Sen. Andy Kerr introduced SB 13-171 – Concerning the Continuation of the Licensing of Money Transmitters, and, in Connection Therewith, Continuing the Authority of the Banking Board and the State Bank Commissioner over Money Transmitters. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

    The bill implements the recommendations of the sunset review and report on the licensing of money transmitters by the banking board and the state bank commissioner by:

  • Extending the repeal date of the licensing of money transmitters until Sept. 1, 2024;
  • Specifying that the board may investigate any person believed to be engaging in money transmission without a license;
  • Extending the amount of time money transmitters have to notify the board of any increase in the number of locations at which they conduct business from 10 days to the next regularly scheduled periodic report;
  • Adopting some language from the “Uniform Money Services Act;”
  • Requiring securities that are used in lieu of a surety bond to be rated in one of the highest grades as defined by a nationally recognized organization that rates securities;
  • Requiring money transmitters to notify, and obtain written approval from, the commissioner to exchange securities used in lieu of a surety bond;
  • Requiring applicants to pay for prelicense on-site investigations;
  • Expanding the deadline to post a surety bond and pay the licensing fee from 90 days after approval of the application to 6 months after approval; and
  • Directing the board to hold a hearing after denial of a license application only if the applicant requests it.
  • On March 6, the Business, Labor, & Technology Committee approved the bill and sent if to the full Senate for consideration on 2nd Reading.

    Since this summary, the bill passed the Senate on Second and Third Readings.

    SB 13-156: Continuing the Board of Mortgage Loan Originators and Implementing the Recommendations of the 2012 Sunset Report

    On Monday, February 4, 2013, Sen. Lois Tochtrop introduced SB 13-156 – Concerning Continuation of the Board of Mortgage Loan Originators in the Division of Real Estate, and, in Connection Therewith, Implementing the Recommendations of the 2012 Sunset Report by the Department of Regulatory Agencies. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

    As introduced, the bill implements the recommendations of the sunset review and report on the board of mortgage loan originators (board) by:

    • Extending the repeal date of the board for five years, until Sept. 1, 2018;
    • Requiring the board to deny, refuse to renew, or revoke the licenses of persons who commit specified offenses, bringing Colorado’s statutes in line with federal law;
    • Allowing the board to deny, refuse to renew, or revoke the licenses of, or to discipline, persons who commit specified offenses and receive a deferred judgment;
    • Eliminating a self-contradictory provision from current law; and
    • Clarifying that a mortgage company may act only through individuals who are licensed or in the process of becoming licensed.

    On Feb. 20, the Business, Labor, & Technology Committee amended the bill and sent it to the Appropriations Committee for consideration of the fiscal impact.