Weitzel, v. Utah Department of Commerce

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Weitzel, v. Utah Department of Commerce, Case No. 20000516-CA, Filed February 1, 2001 IN THE UTAH COURT OF APPEALS


Robert Allan Weitzel,


Utah Department of Commerce,

(Not For Official Publication)

Case No. 20000516-CA

February 1, 2001 2001 UT App 31 -----

Original Proceeding in this Court

Peter Stirba, John Warren May, and Darien Alcorn, Salt Lake City, for Petitioner
Mark L. Shurtleff and Elizabeth A. Bowman, Salt Lake City, for Respondent


Before Judges Bench, Davis, and Thorne.


Petitioner Robert A. Weitzel seeks judicial review of a Department of Commerce order reversing an order of dismissal and remanding the case to the Division of Occupational and Professional Licensing for further proceedings. This case is before the court on a sua sponte motion for summary dismissal.

We have jurisdiction to review "final orders and decrees resulting from formal adjudicative proceedings of State agencies" under Utah Code Ann. § 78-2a-3(2)(a) (1996). Judicial review of final agency actions is governed by the Utah Administrative Procedures Act. See Utah Code Ann. § 63-46b-1 (1997). Utah Code Ann. § 63-46b-14(1) (1997) states that "[a] party aggrieved may obtain judicial review of final agency actions except in actions where judicial review is expressly prohibited by statute." Utah Code Ann. § 63-46b-14(3)(a) (1997) states a party seeking judicial review "shall file a petition for judicial review of final agency action within 30 days after the date that the order constituting the final agency action is issued . . . ."

This court considered what constitutes final agency action in Barney v. Division of Occupational & Professional Licensing, 828 P.2d 542, 543-44 (Utah Ct. App. 1992) (per curiam) and in Sloan v. Board of Review, 781 P.2d 462 (Utah Ct. App. 1989) (per curiam). The petitioner in Barney sought review of the denial of a motion to dismiss. Similarly, the petitioner in Sloan sought review of an agency order remanding a case to an administrative law judge for further proceedings. In each case, this court held that the order was not final agency action for purposes of judicial review and dismissed the petition. See Sloan, 781 P.2d at 464; Barney, 828 P.2d at 544. In Barker v. Public Serv. Comm'n, 970 P.2d 702 (Utah 1998), the Utah Supreme Court concluded that an order that is "preliminary, preparatory, procedural, or intermediate" is not a final order, citing Sloan and Barney, with approval, as cases involving non-final agency orders. Id. at 706. The Department's order in this case denies a motion to dismiss and remands the case for further agency proceedings. As such, it is not distinguishable from the orders in Sloan and Barney.

Weitzel contends the constitutionality of Utah Administrative Code R156-1-502(1) will not be decided in the further agency proceedings and therefore argues that he should not be required to exhaust his administrative remedies. However, the basis for the sua sponte motion is jurisdictional. "It is a court's first duty to determine if it has jurisdiction," and "[i]f the court concludes it does not have jurisdiction, 'it retains only the authority to dismiss the action.'" Barney, 828 P.2d at 544 (quoting Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989)).

The petition for review is dismissed, without prejudice to a timely petition for review filed after entry of an order constituting final agency action.

Russell W. Bench, Judge

James Z. Davis, Judge

William A. Thorne, Jr., Judge