(2) Except as provided in subsection (3) of this section, a contested case notice served in accordance with subsection (1) of this section that complies with ORS 183.415 but for service by regular or electronic mail becomes a final order against a party and is not subject to ORS 183.470 (2), upon the earlier of the following:
(a) If the party fails to request a hearing, the day after the date prescribed in the notice as the deadline for requesting a hearing.
(b) The date the authority or the Office of Administrative Hearings mails an order dismissing a hearing request because:
(A) The party withdraws the request for hearing; or
(B) Neither the party nor the party’s representative appears on the date and at the time set for hearing.
(3) The authority shall prescribe by rule a period of not less than 60 days after a notice becomes a final order under subsection (2) of this section within which a party may request a hearing under this subsection. If a party requests a hearing within the period prescribed under this subsection, the authority shall do one of the following:
(a) If the authority finds that the party did not receive the written notice and did not have actual knowledge of the notice, refer the request for hearing to the Office of Administrative Hearings for a contested case proceeding on the merits of the authority’s intended action described in the notice.
(b) Refer the request for hearing to the Office of Administrative Hearings for a contested case proceeding to determine whether the party received the written notice or had actual knowledge of the notice. The authority must show that the party had actual knowledge of the notice or that the authority mailed the notice to the party’s correct address or sent an electronic notice to the party’s correct electronic mail address.
(4) If a party informs the authority that the party did not receive a notice served by regular or electronic mail in accordance with subsection (1) of this section, the authority shall advise the party of the right to request a hearing under subsection (3) of this section. [2011 c.720 §50]
Note: 413.038 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 413 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.