A. Complaint
1. Any person may file a complaint with the
Board against a person who may be in violation of the statues or rules and
regulations of the State of Arkansas.
2. Complaints shall be submitted in writing
to Vice Chairman who will act as the investigator for the Board. No oral
communication of complaints shall be investigated by the Board.
3. The Board will mail written notice of the
charges to the last known address of the respondent by certified mail, return
receipt requested. The notice must describe each allegation contained in the
complaint.
B. Written
response; failure to file response deemed admission.
1. Within 15 business days after receipt of
the notice of charges, the respondent shall file with the Regulatory Board a
written response to the notice of charges. Upon the request of the respondent,
the Regulatory Board may extend the time to file a response.
2. The response must include:
(a) If the complaint has been resolved, a
statement describing the resolution of the complaint; or
(b) If the complaint has not been resolved:
(1) A statement describing in detail whether
the respondent admits or denies each allegation in the complaint;
(2) A statement of the facts relating to the
allegations in the complaint; and
(3) The defenses to the complaint, if any,
relied upon by the respondent.
3. The response must be signed by the
respondent, his attorney or another authorized representative of the
respondent, and include the name, address and telephone number of the
respondent and his attorney or other authorized representative, if
any.
4. The failure to file a
response in accordance with this section without good cause shall be deemed an
admission by the respondent of all the allegations in the complaint and the
Regulatory Board may resolve the complaint against the respondent.
C. Investigation of Complaint
1. The Vice-Chairman shall maintain a
separate file containing all information in connection with complaints,
investigation, hearings in connection with such charges, and the action of the
Board in each case. At each Board meeting, the Vice-Chairman shall make a
report to the Board as to the status of each complaint until the final
disposition of the complaint.
2.
Upon receipt of complaint of alleged violation, the Vice-Chairman shall
institute a preliminary investigation keeping all information in confidence
from the Board. If warranted by the investigation, the Vice-Chairman shall
inform the Board, and they will in turn duly notify the alleged violator and
schedule a timely hearing for the resolution of the alleged
violation.
D.
Adjudicative Hearings (As inserted and edited from the
Model Rules of
Procedure for Regulatory and Licensing Agencies. Published Pursuant to
Act 1648 of 2001, Mike Beebe, Attorney General, May 17, 2002.)
1. SCOPE
This section applies in all administrative adjudications conducted by
the Arkansas State Board of Registered Interior Designers. This procedure is
developed to provide a process by which the agency formulates orders (for
example, an order revoking a license to practice, or imposing civil penalties).
Any adjudicatory hearings of the Board will be conducted in accordance with the
provisions of the Arkansas Administrative Procedures Act, Arkansas Cod
25-15-201 et
seq.
2. PRESIDING OFFICER
The Chairman of the Arkansas State Board of Registered Interior
Designers shall preside at the hearing or may designate one or more members of
the Board to preside at a hearing.
3. APPEARANCES
(a) Any party appearing in any agency
proceeding has the right, at his or her own expense, to be represented by
counsel.
(b) The respondent may
appear on his or her own behalf.
(c) Any attorney representing a party to an
adjudicatory proceeding must file notice of appearance as soon as
possible.
(d) Service on counsel of
record is the equivalent of service on the party represented.
(e) On written motion served on the party
represented and all other parties of record, the presiding officer may grant
counsel of record leave to withdraw for good cause shown.
4. CONSOLIDATION
If there are separate matters that involve similar issues of law or
fact, or identical parties, the matters may be consolidated if it appears that
consolidation would promote the just, speedy, and inexpensive resolution of the
proceedings, and would not unduly prejudice the rights of a party.
5. NOTICE TO INTERESTED PARTIES
If it appears that the determination of the rights of parties in a
proceeding will necessarily involve a determination of the substantial
interests of persons who are not parties, the presiding officer may enter an
order requiring that an absent person be notified of the proceeding and be
given an opportunity to be joined as a party of record.
6. INITIATION & NOTICE OF HEARING
(a). An administrative adjudication is
initiated by the issuance by the agency of a notice of hearing.
(b). The notice of hearing will be sent to
the respondent by U.S. Mail, return receipt requested, delivery restricted to
the named recipient or his agent. Notice shall be sufficient when it is so
mailed to the respondent's latest address on file with the agency.
(c). Notice will be mailed at least 30
calendar days before the scheduled hearing.
(d). The notice will include:
1. A statement of the time, place, and nature
of the hearing;
2. A statement of
the legal authority and jurisdiction under which the hearing is to be held;
and
3. A short and plain statement
of the matters of fact and law asserted.
7. MOTIONS
(a).All requests for relief will be by
motion. Motions must be in writing or made on the record during a hearing. A
motion must fully state the action requested and the grounds relied upon. The
original written motion will be filed with the agency. When time allows, the
other parties may, within seven (7) days of the service of the written motion,
file a response in opposition. The presiding officer may conduct such
proceedings and enter such orders as are deemed necessary to address issues
raised by the motion. However, a presiding officer, other than the Chairman,
will not enter a dispositive order unless expressly authorized in writing to do
so.
(b). Pre-hearing motions must
be submitted in writing and filed with the Regulatory Board within 10 business
days after the receipt of the exhibit to which the motion applies. A party who
opposes the motion may file a response to the pre-hearing motion not later than
10 business days after the date of service of the motion. Upon a showing of
good cause, the Regulatory Board may allow a party to file a pre-hearing motion
or response within such other times as the Regulatory Board deems
appropriate.
8. ANSWER
A respondent may file an answer.
9. DISCOVERY
(a).Upon written request, the agency will
provide the information designated in A.C.A &
25-15-208(a)(3).
(b). Such requests should be received by the
agency at least 10 days before the scheduled hearing.
10. CONTINUANCES
(a). The Board may grant a continuance of
hearing for good cause shown.
Requests for continuances will be made in writing. The request must
state the grounds to be considered and be made as soon as practicable and,
except in cases of emergencies, no later than five (5) days prior to the date
noticed for the hearing. In determining whether to grant a continuance, the
Board may consider:
(1) Prior
continuances;
(2) The interests of
all parties;
(3) The likelihood of
informal settlements;
(4) The
existence of an emergency;
(5) Any
objection;
(6) Any applicable time
requirement;
(7) The existence of a
conflict of the schedules of counsel, parties, or witnesses;
(8) The time limits of the request;
and
(9) Other relevant
factors.
(b). The Board
may require documentation of any grounds for continuance.
11. HEARING PROCEDURES
(a). The presiding officer presides at the
hearing and may rule on motions, require briefs, and issue such orders as will
ensure the orderly conduct of the proceedings; provided, however, any presiding
officer other than the Chairman of the Arkansas State Board of Registered
Interior Designers shall not enter a dispositive order or proposed decision
unless expressly authorized in writing to do so.
(b). All objections must be made in a timely
manner and stated on the record.
(c). Parties have the right to participate or
to be represented by counsel in all hearings or pre-hearing
conferences related to their case.
(d). Subject to terms and conditions
prescribed by the Administrative Procedure Act, parties have the right to
introduce evidence on issues of material fact, cross-examine witnesses as
necessary for a full an true disclosure of the facts, present evidence in
rebuttal, and, upon request by the agency, may submit briefs and engage in oral
argument.
(e). The presiding
officer is charged with maintaining the decorum of the hearing and may refuse
to admit, or may expel, anyone whose conduct is disorderly.
12. ORDER OF PROCEEDINGS
The presiding officer will conduct the hearing in the following
manner:
(a).The presiding officer will
give an opening statement, briefly describing the nature of the
proceedings.
(b). The parties are
to be given the opportunity to present opening statements.
(c). The parties will be allowed to present
their cases in the sequence determined by the presiding officer.
(d). Each witness must be sworn or affirmed
by the presiding officer, or the court reporter, and be subject to examination
and cross-examination as well as questioning by the Arkansas State Board of
Registered Interior Designers. The presiding officer may limit questioning in a
manner consistent with the law.
(e). When all parties and witnesses have been
heard, parties may be given the opportunity to present final
arguments.
13. EVIDENCE
(a). The presiding officer shall rule on the
admissibility of evidence and may, when appropriate, take official notice of
facts in accordance with all applicable requirements of law.
(b).Stipulation of facts is encouraged. The
agency may make a decision based on stipulated facts.
(c). Evidence in the proceeding must be
confined to the issues set forth in the hearing notice, unless the parties
waive their right to such notice or the presiding officer determines that good
cause justifies expansion of the issues. If the presiding officer decides to
admit evidence outside the scope of the notice, over the objection of a party
who did not have actual notice of those issues, that party, upon timely
request, will receive a continuance sufficient to prepare for the additional
issue and to permit amendment of pleadings.
(d). A party seeking admission of an exhibit
must provide ten (10) copies of each exhibit at the hearing.
(1) One copy for the file;
(2) One copy for each member of the
Regulatory Board;
(3) One copy for
the witness packet; and
(4) One
copy for opposing counsel.
The presiding officer must provide the opposing parties with an
opportunity to examine the exhibit prior to the ruling on its admissibility.
All exhibit s admitted into evidence must be appropriately marked and be made
part of the record.
(e).Any party may object to specific evidence
or may request limits on the scope of the examination or cross-examination. A
brief statement of the grounds upon which it is based shall accompany such an
objection. The objection, the ruling on the objection, and the reasons for the
ruling will be noted in the record. The presiding officer may rule on the
objection at the time it is made or may reserve the ruling until the written
decision.
(f).Whenever evidence is
ruled inadmissible, the party offering that evidence may submit an offer of
proof on the record. The party making the offer of proof for excluded oral
testimony will briefly summarize the testimony or, with permission of the
presiding officer, present the testimony. If the excluded evidence consists of
a document or exhibit, it shall be marked as part of an offer of proof and
inserted in the record.
(g).Irrelevant, immaterial, and unduly
repetitive evidence will be excluded. Any other oral or documentary evidence,
not privileged, may be received if it is of a type commonly relied upon by
reasonably prudent men and women in the conduct of their affairs.
(h). Reasonable inferences. The finder of
fact may base its findings of fact upon reasonable inferences derived from
other evidence received.
14. DEFAULT
If a party fails to appear or participate in an administrative
adjudication after proper service of notice, the agency may proceed with the
hearing and render a decision in the absence of the party.
15. RECORDING THE PROCEEDINGS
The responsibility to record the testimony heard at a hearing is borne
by the agency. Upon the filing of a petition for judicial review, the agency
will provide a verbatim transcript of testimony taken before the agency.
16. FACTORS TO BE CONSIDERED IN
IMPOSING SANCTIONS
In addition to any other considerations permitted by Arkansas Code
17-35-202, the agency in imposing any sanction may consider the
following:
(a). The nature and degree
of the misconduct for which the licensee is being sanctioned.
(b). The seriousness and circumstances
surrounding this misconduct.
(c).
The loss or damage to clients or others.
(d). The assurance that those who seek
similar professional services in the future will be protected from the type of
misconduct found.
(e). The profit
to the licensee.
(f). The avoidance
of repetition.
(g). Whether the
conduct was deliberate, intentional, or negligent.
(h). The deterrent effect on
others.
(i). The conduct of the
individual during the course of the disciplinary proceeding.
(j). The professional's prior disciplinary
record, including warnings.
(k).
Matters offered by the professional in mitigation or extenuation, except that a
claim of disability or impairment resulting from the use of alcohol or drugs
may not be considered unless the professional demonstrates that he or she is
successfully pursuing in good faith a program of recovery.
17. FINAL ORDER
The agency will serve on the respondent a written order that reflects
the action taken by the agency. The order will include a recitation of facts
found based on testimony and other evidence presented and reasonable inferences
derived from the evidence pertinent to the issues of the case. It will also
state conclusions of law and directives or other disposition entered against or
in favor of the respondent. The order will be served personally or by mail on
the respondent. If counsel represents respondent, service of the order on
respondent's counsel shall be deemed service on the respondent.
E. DISCIPLINARY
ACTIONS.
1. The Board has the authority to
discipline interior designers in any of the following methods:
(a). Deny an applicant's
eligibility.
(b). Reprimand or
place a registrant on probation.
(c). Suspend or revoke an interior designer's
Certificate of Registration and seal.
(d). Recommend Class A Misdemeanor charges to
law enforcement.
(e). May impose
alternative sanctions set for in the Administrative Procedures Act
25-15-217(b).
2. Conditions of probation. The Board may
impose the following conditions of probation on a registrant against whom
disciplinary action is imposed:
(a). Require
the registrant to provide information to the Regulatory Board concerning each
project he works on during the term of probation, including, without
limitation:
(1) The name of the person for
whom the project is performed;
(2)
The name of the project, if any;
(3) The location of the project;
(4) The type and scope of work that the
registrant will perform on the project; and
(5) The size of the project;
(b). Require the registrant to be
supervised by a person approved by the Regulatory Board; and
(c). Other conditions that the Regulatory
Board considers necessary.