Certified Final Objection No. 16 of the

Joint Legislative Committee on Administrative Rules

The rules specify what must be contained in a notice of hearing for suspension of a license to market or sell certain fireworks. They require notice of "the necessity, if any, to produce documents or records at the hearing," and "information relative to the party's right to have the complainant present at the hearing," respectively. These provisions appear to imply that the Commissioner can order the production of documents or records, or compel the attendance of the complainant at the hearing through subpoena power. However, it does not appear to the Committee that the Commissioner has such authority over persons not working for the Department.

2. Saf-C 2602.03(h)

The Committee objected that rule Saf-C 2602.03(h) violates Committee Rules 403.01(d), 403.02(c) and 402.02 as it is contrary to the public interest by not being clear and understandable and capable of uniform application and contrary to legislative intent by allowing requirements to be set orally rather than through the process mandated by RSA 541-A:3.

The rule provides that the notice of hearing for a license suspension must also contain a statement of "the consequences of failing to appear at a hearing." However, the rules never specify what those consequences may be.

3. Saf-C 2602.04

The Committee objected that rule Saf-C 2602.04 violates Committee Rule 402.02 as it is contrary to legislative intent by conflicting with RSA 541-A:15, II relative to requiring notice and opportunity for a hearing.

The rule provides that "a license shall be suspended or revoked" for any of the reasons listed in paragraphs (a) to (g). As drafted, the rule implies that such action will be taken without a hearing. However, RSA 541-A:15, II prohibits the revocation or suspension of licenses without first providing notice and an opportunity for a hearing.

4. Saf-C 2602.04

The Committee objected that rule Saf-C 2602.04 violates Committee Rules 403.01(d), 403.02(c) and 402.02 as it is contrary to the public interest by not being clear and understandable and capable of uniform application, and contrary to legislative intent by allowing requirements to be set orally rather than through the process mandated by RSA 541-A:3.

The rule does not distinguish between "suspension" and "revocation and appears to use the terms interchangeably. The Committee determined that a suspension" is a temporary interruption in the exercise of a right or privilege, but a "revocation" is a complete annulment of a power or authority conferred.

5. Saf-C 2602.04(c)

The Committee objected that rule Saf-C 2602.04(c) violates Committee Rule 401.01(c) as it is beyond the authority of the Department.

The rule provides that a license can be suspended or revoked if the Department receives "evidence the licensee is under indictment" for any of the crimes listed in the rule. The mere accusation that a person has committed a crime is not evidence that the accusation is true. The Committee concluded that a suspension or revocation of a license cannot be based upon the fact that the licensee has been only indicted. However, the rule appears to treat the accusation as sufficient justification to revoke or suspend the license.

6. Saf-C 2602.05

The Committee objected that rule Saf-C 2602.05 violates Committee Rules 403.01(d), 403.02(c), and 402.02 as it is contrary to the public interest by not being clear and understandable and capable of uniform application and contrary to legislative intent by allowing requirements to be set orally rather than through the process mandated by RSA 541-A:3.

The rule provides that "the maximum period of suspension or revocation shall be five years." As with Saf-C 2602.04, the rule fails to distinguish between a "suspension" and a "revocation." Additionally, the rule fails to specify the criteria to be applied in determining the appropriate period of time in an action against a licensee.

7. Saf-C 2603.06(b)(1)

The Committee determined that rule Saf-C 2603.06(b)(1) violates Committee Rules 403.01(d), 403.02(c) and 402.02 as it is contrary to the public interest by not being clear and understandable and capable of uniform application, and contrary to legislative intent by allowing requirements to be set orally rather than through the process mandated by RSA 541-A:3 and by conflicting with RSA 541-A:15, III, relative to summary suspensions of licenses.

The rule provides that if a licensee may be "jeopardizing health, safety, or welfare, that constitutes a violation of Saf-C 2603.04" the license may be suspended or revoked immediately for "a period of up to 5 years." The first problem is that the rule fails to distinguish between a "suspension" and a "revocation," as discussed in item 4, above. The second problem is that a license may only be summarily suspended for the time period specified in RSA 541-A:15, III. This rule provides that the period of "revocation" can be for as long as 5 years pursuant to the original order of notice.

8. Saf-C 2603.05 and Saf-C 2603.06(b)(1)

The Committee objected that rules Saf-C 2603.05 and Saf-C 2603.06(b)(1) violate Committee Rule 402.02 as they are contrary to legislative intent by conflicting with RSA 160-A:7, I.

The rule provides for suspensions or revocations for a period up to 5 years. However, the Committee concluded that to suspend or revoke licenses for up to five years conflicts with RSA 160-A:7, I, because licenses issued pursuant to that statute are valid only for one year.