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65. Cotter has been adversely affected and aggrieved by the actions of the Board, by <br />i-Sdallce o: th;, Dccuaibei 20 10 Grdcr. <br />66. The Board abused its discretion and exceeded its legal authority when it <br />concluded that its authorizing statute and regulations conferred upon it the authority to issue <br />cease and desist orders and to assess civil penalties for a failure to comply with its previous <br />order. The applicable authorizing statute and regulations do not give the Board such authority. <br />67. The Board further abused its discretion by refusing to allow Cotter to make a full <br />offer of proof at the November 17-18, 2010 hearing as to the impossibility of Cotter complying <br />with the August 31, 2010 deadline for compliance with Corrective Order No. 2 in the August <br />2010 Order. To the contrary, the September 2010 Notice stated that Cotter would have the <br />opportunity to present evidence in its own defense. Cotter's impossibility evidence was essential <br />to its defense and became even more crucial after a Division witness testified that Cotter needed <br />to complete Corrective Action No. 2 by August 31, 2010 to comply with the August 2010 Order. <br />68. The Board further abused its discretion and legal authority when it determined <br />that it could impose civil penalties for lack of compliance with the August 2010 Order during the <br />time period when the August 2010 Order was on appeal. <br />69. The Board further abused its discretion when it promulgated a vague and <br />ambiguous "cease and desist" Order which fails to actually state what Cotter must "cease and <br />desist" doing. <br />70. Because the Board has abused its discretion and exceeded its legal authority <br />through the above actions and others in issuing its December 2010 Order, the Board's December <br />2010 Order should be held unlawful and set aside pursuant to C.R.S. § 24-4-106(7). Further, this <br />Court should restrain the enforcement of such order pursuant to C.R.S. § 24-4-106(7). <br />SECOND CLAIM FOR RELIEF <br />(Stay of December 2010 Order Pursuant to C.R.S. § 24-4-106(5)) <br />(Against Board) <br />71. Cotter incorporates by reference all preceding paragraphs of this Complaint. <br />72. C.R.S. § 24-4-106(5) provides "Upon a finding that irreparable harm would <br />otherwise result ... the reviewing court, upon application therefor and regardless of whether <br />such an application previously has been made to or denied by any agency, and upon such terms <br />and upon such security, if any, as the court shall find necessary and order, shall issue all <br />necessary and appropriate process to postpone the effective date of the agency action or to <br />preserve the rights of the parties pending conclusion of the review proceedings." <br />73. Irreparable harm will occur should the Board or Division attempt to take certain <br />actions based on the December 2010 Order. Thus, Cotter will make an application for a stay <br />when the Board or Division initiate or indicate that either will take such action. <br />12