Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO:
KRS
367.461,
367.463,
367.465,
367.467,
367.469
NECESSITY, FUNCTION, AND CONFORMITY: This administrative
regulation establishes the procedures for conducting a hearing by the Office of
the Attorney General to revoke a permit to use automated dialing equipment in
the Commonwealth of Kentucky.
Section
1. Hearings related to denials of applications or revocations of
permits shall be governed by the provisions of this administrative
regulation.
Section 2. Denial and
revocation actions shall be heard by:
(1) An
Assistant Attorney General; or
(2)
A hearing examiner employed by the Department of Law as a hearing
officer.
Section 3. An
applicant or permittee shall have the right to:
(1) Be present;
(2) Be heard at the hearing;
(3) Be represented by legal
counsel;
(4) Present
evidence;
(5) Cross-examine
witnesses presented by the attorney prosecuting the matter before the hearing
officer; and
(6) Make both opening
and closing statements.
Section
4. Prehearing Disclosure of Evidence.
(1) A permittee shall have the right to:
(a) Inspect the investigative file relating
to a revocation action;
(b)
Represent himself, or be represented by counsel; and
(c) Inspect tangible evidence in the
possession of the hearing officer or the department.
(2) An appointment for examination of a file
or other evidence shall be made:
(a) Upon
reasonable notice;
(b) During and
for regular office hours; and
(c)
For a time convenient to all parties.
(3) At least ten (10) days prior to the
scheduled hearing date, the permittee shall furnish to the Office of the
Attorney General:
(a) Copies of documents he
intends to introduce; and
(b)
Produce for inspection tangible evidence within his possession or control that
he intends to introduce.
(4) Upon timely written notice, he shall
produce such other information requested by the hearing officer.
(5)
(a) At
least ten (10) days prior to the scheduled hearing date the permittee shall
file with the hearing officer a written response to the specific allegations
contained in the notice of charges.
(b) The hearing officer may for good cause
permit the late filing of a response.
(6)
(a)
After disclosure has been completed each party shall remain under an obligation
to disclose any new or additional items of evidence which may come to its
attention. Such additional disclosure shall take place as soon as
practicable.
(b) Failure to
disclose may result in the exclusion of the new evidence or testimony from the
hearing.
Section
5. Order of Proceeding.
(1) The
hearing officer shall call the meeting to order and shall identify the parties
to the action and the persons present. The hearing officer shall rule upon any
objections or motions. Opening statements shall be made, with the attorney
prosecuting the allegations of the complaint proceeding first. Either side may
waive opening statement.
(2) The
taking of proof shall commence with the calling of witnesses on behalf of the
attorney prosecuting the matter before the hearing officer. Witnesses shall be
examined first by the attorney prosecuting the allegations of the complaint,
then by the permittee or that person's attorney, and finally by the hearing
officer. Rebuttal examination of witnesses shall proceed in the same order.
Documents or other items may be introduced into evidence as
appropriate.
(3) Upon conclusion of
the case for the attorney prosecuting the matter before the hearing officer,
the permittee shall call its witnesses. Witnesses shall be examined first by
the permittee or that person's attorney, then by the attorney prosecuting the
allegations of the complaint, and finally by the hearing officer. Rebuttal
examination of those witnesses shall proceed in the same order. Documents or
other evidence may be introduced as appropriate.
(4) The hearing officer shall be responsible
for enforcing the general rules of conduct and decorum and expediting the
hearing by keeping the testimony and exhibits relevant to the
complaint.
Section 6.
Evidence.
(1) Formal rules of evidence shall
not apply.
(2) A hearing officer
shall exclude evidence that is:
(a)
Irrelevant;
(b)
Immaterial;
(c) Unduly repetitious;
or
(d) Excludable on:
1. Constitutional or statutory grounds;
or
2. The basis of evidentiary
privilege recognized in the courts of the Commonwealth.
(3) Testimony or other evidence
shall be admitted if it is:
(a) Based on
facts; and
(b) Commonly relied upon
by reasonably prudent persons.
(4)
(a)
Evidence shall not be excluded solely because it is hearsay.
(b) Hearsay evidence, including affidavits,
may be admitted for the purpose of supplementing relevant
evidence.
(5) A hearing
officer may admit party or witness testimony taken by deposition if:
(a) A party or witness is unable to attend
through no fault of his own; and
(b) The opposing party has had a full
opportunity to cross-examine the party or witness.
(6) Evidence may be received in written form
if it will:
(a) Expedite the hearing;
and
(b) Not substantially prejudice
the interests of a party.
(7)
(a) A
copy or an excerpt of documentary evidence may be received.
(b) Upon request, a party shall be permitted
to compare the copy or excerpt with the original.
(8) Official notice shall be taken of:
(a) A fact that would be judicially noticed
in the courts of the Commonwealth;
(b) The record of other proceedings before
the Office of the Attorney General;
(c) Technical or scientific matters within
the specialized knowledge of the Office of the Attorney General;
(d) Pursuant to the provisions of KRS Chapter
13A, codes or standards that have been adopted by:
1. An agency of the United States, the
Commonwealth, or another state; or
2. A nationally recognized organization or
association.
(9) Tangible items may be received into
evidence the hearing officer is satisfied that the item is:
(a) What it is represented to be;
and
(b) In substantially the same
condition as it was at the time of the events under consideration.
Section 7.
(1) Upon the conclusion of the hearing, the
hearing officer shall render a decision in writing with copies to all
parties.
(2)
(a) The decision of the hearing officer shall
be reviewed by the Attorney General.
(b) The Attorney General shall:
1. Approve the decision; or
2. Modify the decision; or
3. Remand to the hearing officer for further
action.
STATUTORY AUTHORITY:
KRS
15.180,
367.150(4),
367.469