§91-11  Examination of evidence by agency.  Whenever in a contested case the officials of the agency who are to render the final decision have not heard and examined all of the evidence, the decision, if adverse to a party to the proceeding other than the agency itself, shall not be made until a proposal for decision containing a statement of reasons and including determination of each issue of fact or law necessary to the proposed decision has been served upon the parties, and an opportunity has been afforded to each party adversely affected to file exceptions and present argument to the officials who are to render the decision, who shall personally consider the whole record or such portions thereof as may be cited by the parties. [L 1961, c 103, §11; Supp, §6C-11; HRS §91-11]

Case Notes

  Deviation from requirement that proposed decision be presented where the officials rendering the decision have not heard and examined all the evidence is not permissible.  52 H. 221, 473 P.2d 573.

  Procedural requirements of section may be waived pursuant to §91-9(d).  54 H. 10, 501 P.2d 358.

  Requirement that officials who are to render the decision personally consider the whole record or portions thereof cited by the parties is satisfied where the officials considered exceptions to the proposed decision and heard arguments thereon.  54 H. 10, 501 P.2d 358.

  Submission of proposed decision is required whether a single official or a majority of the officials have not heard the evidence.  54 H. 134, 504 P.2d 1214.

  "Final decision" construed.  57 H. 535, 560 P.2d 1292.

  Person filing timely exceptions is entitled to opportunity to present written and oral arguments, and to have exceptions considered on merits based on record.  65 H. 257, 650 P.2d 574.

  Under circumstances, board was not required to issue proposed decision.  65 H. 404, 652 P.2d 1143.

  Transcript of hearing conducted by hearing officer not required for hearing on exceptions held pursuant to this section.  65 H. 411, 652 P.2d 632.

  Where record reflected that the commissioner heard and examined all the evidence, and appellants pointed to no new evidence that the commissioner overlooked, the commissioner did not violate this section by amending hearing officer's recommended order, powers granted commissioner under Hawaii administrative rule §16-201-46, by failing to provide appellants yet another opportunity to repeat their previous arguments.  112 H. 90, 144 P.3d 1.

  As it is possible to give effect to §281-59 and this section insofar as a public hearing on a license application must be regarded as a contested case subject to the requirements of chapter 91, this section does not conflict with §281-59.  118 H. 320, 189 P.3d 432.

  Public hearings on liquor license applications held by the liquor commission are contested case hearings such that this section requires any commissioner who is not present at any stage of the public hearing to become familiar with the record before voting on a liquor license application, unless the application is automatically rejected pursuant to §281-59(a).   118 H. 320, 189 P.3d 432.

  The liquor commission's failure to comply with this section, requiring that all commissioners personally consider the entire record before voting on a liquor license application, was not a "failure to act" such as would trigger the automatic approval provision of §91-13.5 where the liquor commission voted, albeit ineffectively, within the fifteen day period prescribed by §281-59.  118 H. 320, 189 P.3d 432.

  Where a public hearing pertaining to the issuance of a liquor license was statutorily required under §§281-52 and 281-57, and petitioner's legal rights, duties, and privileges were determined based on the public hearing regarding the decision to grant or deny a liquor license to petitioner, the public hearing was a "contested case" hearing governed by chapter 91; thus, (1) petitioner was entitled to judicial review under §91-14, (2) this section applied to proceedings on petitioner's application for liquor license, and (3) the liquor commission did not comply with this section.  118 H. 320, 189 P.3d 432.

  Phrase "officials of the agency who are to render the final decision" refers to all members of the agency.  2 H. App. 672, 638 P.2d 1386.

  Board met minimum requirements of section by receiving briefs and hearing oral arguments.  5 H. App. 59, 678 P.2d 576.

  Question not preserved for appeal when party failed to object to denial of claim in agency's proposed order.  5 H. App. 533, 704 P.2d 917.