2019-11-15_ENFORCEMENT - M1996076

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tender of exhibits, and for guidance in deciding issues raised in hearings before the body. Weiss at 199. Here, it would appear that the basis for the proposed sanction---striking of all Fontanari pleadings is a purported violation of Rule 11 of the Colorado Rules of Civil Procedure regarding the signing of pleadings. The test for the striking of pleadings is a two-part test: First, is a sanction appropriate; second,was the other party, here, DRMS,prejudiced by the sanctionable action. If a sanction is appropriate, the entire range of possible sanctions must be considered. A court or administrative agency must consider"the complete range of sanctions and weigh the sanctions in light of the full record in the case". See,Nagy v. District Court, 762 P.2d 672 (Colo.1988). Here, Fontanari asserts, first, fundamental statutory rights (right to counsel of his choosing)under the APA, and, second, rights to Reconsideration and For Declaratory Judgment (and related stays)provided for directly in the Construction Materials Rules. Striking such pleadings would be an outrageous result, and utterly disproportionate to any alleged misconduct of counsel in the preface to the pleadings. The pleadings themselves are in no instance evidence either"flagrant" action or a"rebellious disregard for authority", or"gross negligence." Second,the State has made no attempt at all to demonstrate how it was prejudiced by the alleged misconduct. At the hearing, the State put on a full evidentiary case, a 61-page power- point, several experts or alleged experts, and a nearly 350-page set of submittals to the Board. Fontanari does not seek to strike the State's evidence,but only to exercise his fundamental right to present the defense case through counsel of his choosing, as to which DRMS could present rebuttal evidence. Fontanri reserves the right to re-call the DRMS witnesses for cross examination. Where is the prejudice? If there was any outrageous act here, it was the lack of 5