Arizona Laws 41-1092.12. Private right of action; recovery of costs and fees; definitions
A. If an agency takes an action against a party that is arbitrary, capricious or not in accordance with law, the action is an appealable agency action if all of the following apply:
Terms Used In Arizona Laws 41-1092.12
- Action: includes any matter or proceeding in a court, civil or criminal. See Arizona Laws 1-215
- Administrative law judge: means an individual or an agency head, board or commission that sits as an administrative law judge, that conducts administrative hearings in a contested case or an appealable agency action and that makes decisions regarding the contested case or appealable agency action. See Arizona Laws 41-1092
- Agency: means any board, commission, department, officer or other administrative unit of this state, including the agency head and one or more members of the agency head or agency employees or other persons directly or indirectly purporting to act on behalf or under the authority of the agency head, whether created under the Constitution of Arizona or by enactment of the legislature. See Arizona Laws 41-1001
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Appealable agency action: means an action that determines the legal rights, duties or privileges of a party, including the administrative completeness of an application other than an application submitted to the department of water resources pursuant to title 45, and that is not a contested case. See Arizona Laws 41-1092
- Appropriation: The provision of funds, through an annual appropriations act or a permanent law, for federal agencies to make payments out of the Treasury for specified purposes. The formal federal spending process consists of two sequential steps: authorization
- Corporation: A legal entity owned by the holders of shares of stock that have been issued, and that can own, receive, and transfer property, and carry on business in its own name.
- Director: means the director of the office of administrative hearings. See Arizona Laws 41-1092
- Fiscal year: The fiscal year is the accounting period for the government. For the federal government, this begins on October 1 and ends on September 30. The fiscal year is designated by the calendar year in which it ends; for example, fiscal year 2006 begins on October 1, 2005 and ends on September 30, 2006.
- Office: means the office of administrative hearings. See Arizona Laws 41-1092
- Partnership: A voluntary contract between two or more persons to pool some or all of their assets into a business, with the agreement that there will be a proportional sharing of profits and losses.
- Party: means each person or agency named or admitted as a party or properly seeking and entitled as of right to be admitted as a party. See Arizona Laws 41-1001
- Property: includes both real and personal property. See Arizona Laws 1-215
- Writing: includes printing. See Arizona Laws 1-215
1. Within ten days after receiving notification of the action that is arbitrary, capricious or not in accordance with law, the party notifies the director of the agency in writing of the party’s intent to file a claim pursuant to this section. This notice shall include a description of the action the party claims to be arbitrary, capricious or not in accordance with law and reasons why the action is arbitrary, capricious or not in accordance with law.
2. The agency continues the action that is arbitrary, capricious or not in accordance with law more than ten days after the agency receives the notice.
3. The action is not excluded from the definition of appealable agency action as defined in section 41-1092.
B. This section only applies if an administrative remedy or an administrative or a judicial appeal of final agency action is not otherwise provided by law.
C. If the party prevails, the agency shall pay reasonable costs and fees to the party from any monies appropriated to the agency and available for that purpose or from other operating monies of the agency. If the agency fails or refuses to pay the award within fifteen days after the demand, and if no further review or appeal of the award is pending, the prevailing party may file a claim with the department of administration. The department of administration shall pay the claim within thirty days in the same manner as an uninsured property loss under chapter 3.1, article 1 of this title, except that the agency is responsible for the total amount awarded and shall pay it from its operating monies. If the agency had appropriated monies available for paying the award at the time it failed or refused to pay, the legislature shall reduce the agency’s operating appropriation for the following fiscal year by the amount of the award and shall appropriate that amount to the department of administration as reimbursement for the loss.
D. If the administrative law judge determines that the appealable agency action is frivolous, the administrative law judge may require the party to pay reasonable costs and fees to the agency in responding to the appeal filed before the office of administrative hearings.
E. Notwithstanding any other law, a licensee may forgo an administrative appeal and seek judicial review of an agency’s grant, denial, modification or revocation of a permit issued pursuant to title 49.
F. For the purposes of this section:
1. "Action against the party" means any of the following that results in the expenditure of costs and fees:
(a) A decision.
(b) An inspection.
(c) An investigation.
(d) The entry of private property.
(e) A notice of violation.
2. "Agency" means the department of environmental quality established pursuant to Title 49, Chapter 1, Article 1.
3. "Costs and fees" means reasonable attorney and professional fees.
4. "Notice of violation" means a written notice issued after an inspection or investigation pursuant to section 41-1009 that documents and communicates an alleged deficiency meeting one or more of the criteria listed in section 41-1009, subsection E.
5. "Party" means an individual, partnership, corporation, association and public or private organization at whom the action was directed and who has expended costs and fees as a result of the action against the party.