Ricchio v. Colorado Securities Commissioner.

2022 COA 35. No. 20CA0791.  Administrative Procedure Act—Colorado Securities Act—Cease and Desist Order—Irreconcilable Conflict.

March 24, 2022

The Colorado Securities Commissioner (Commissioner) issued a final order directing Ricchio to immediately cease selling unregistered securities in Colorado and to not otherwise violate the Colorado Securities Act (CSA).

Ricchio argued on appeal that the Commissioner violated his right to due process by issuing the final order before he had an opportunity to submit exceptions to the administrative law judge’s (ALJ) initial decision, arguing that the Administrative Procedure Act (APA) allowed him 30 days to file exceptions. The APA applies to state agency action unless its provisions conflict with a specific provision of an agency’s statute, and it allows exceptions to be filed within 30 days of the ALJ’s initial decision. The Colorado Securities Act has a 10-day deadline for the Commission to provide notice of a final order, which irreconcilably conflicts with the APA’s 30-day exceptions deadline. Because the CSA is more specific, it applies in this case. Here, the Commissioner issued the final order six days after receiving the ALJ’s initial decision and thus complied with the CSA, so there was no due process violation.

Ricchio also argued more generally that the Commissioner violated his due process rights by issuing the final order before he had an opportunity to submit exceptions to the ALJ’s initial decision. However, there was no due process violation because Ricchio had notice and the opportunity to be heard in the administrative proceedings.

Lastly, Ricchio argued that the Commissioner erred by issuing the final order because it was not supported by sufficient evidence establishing that it was necessary in the public interest. However, sufficient record evidence established that the order was appropriate in the public interest.

The order was affirmed.