2011-02-10_ENFORCEMENT - M1977300

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hearing." (Plf.'s Compl. ¶¶ 67 & 68.) In claim four, Plaintiff requests this Court to enjoin Defendants from taking any further action to enforce the agency's Order. This includes, requiring the Board to vacate the hearing scheduled in November 2010 and to disallow argument from the Defendants "at any future meetings concerning any alleged failure of Cotter to comply with the Final Order." (Plf.'s Compl. ¶ 74.) Defendants argue that claim three should be dismissed because the Administrative Procedure Act ("APA") provides an adequate remedy. Defendants also assert that claim four should be dismissed as moot because Plaintiff wishes to enjoin a hearing that has already occurred. In response, Plaintiff argues that declaratory and injunctive relief may be joined in a complaint for judicial review when the issues raised are outside the scope of judicial review. Nonetheless, Plaintiff admits that ¶¶ 37, 38, 46-49, 51, 68 and 69 of the Complaint are likely within the scope of the judicial review and agrees to the dismissal of claim three. However, Plaintiff conditions this admission and agreement upon Defendants' consent that those paragraphs are not outside the scope of judicial review. With regard to claim four, Plaintiff argues that the wrong alleged falls under the repetition exception of the mootness doctrine. However, Plaintiff admits that the claim is duplicative of the first claim for relief if C.R.S. § 24-4-106 (5) and (8) allow this Court to suspend further action by Defendants and Defendants accede to this Court's authority to stay further agency actions. 1. Standard of Review A C.R.C.P. 12 (b) (5) motion to dismiss tests the competence of a plaintiffs' complaint. Dorman v. Petrol Aspen, 914 P.2d 909, 911 (Colo. 1996). When a court decides whether such a complaint sufficiently states a claim upon which relief may be granted, the court may consider only those allegations made in the complaint and all material allegations must be taken as admitted. Nelson v. Nelson, 31 Colo. App. 63, 65-66, 497 P.2d 1284, 1286, (1972). However, a court is not bound by conclusory allegations, unwarranted inferences, or legal conclusions. Hackford v. Babbit, 14 F.31) 1457, 1465 (10`h Cir. 1994). Motions to dismiss are looked upon with disfavor, and a complaint should not be dismissed unless it appears with certainty that Plaintiff has asserted no claim upon which relief can be granted. Dunlap v. Colo. Springs Cablevision, Inc., 829 P.2d 1286, 1291 (Colo. 1992). II. Application C.R.S. § 24-4-106 (5) allows a court, upon a finding of irreparable injury, to postpone the effective date of an agency action pending judicial review. C.R.S. § 24-4-106 (7) allows a court, upon a finding that an agency action is arbitrary and capricious, to restrain the enforcement of an order. C.R.S. 2