Louisiana Administrative Code
Title 46 - PROFESSIONAL AND OCCUPATIONAL STANDARDS
Part VII - Barbers
Chapter 11 - Due Process Procedures for Violations of the Louisiana Barber License Law
Section VII-1107 - Conduct of Formal Hearing
Universal Citation: LA Admin Code VII-1107
Current through Register Vol. 50, No. 9, September 20, 2024
A. Initiating the Process
1. The board initiates
a formal hearing by issuing full notice of the hearing. A formal hearing may be
the result of a complaint made by any manner specified in the informal
procedures.
2. Once full notice of
the formal hearing has been served, no board member or officially designated
hearing officer may communicate with any party to a formal hearing or to that
party's representative concerning any issue of fact or law involved in that
formal hearing.
3. Full Notice. The
written notice shall recite specific acts which the licensee is alleged to have
committed and shall assert that those acts violate a statute or rule of the
board.
a. Notice shall include:
i. a statement of the date, time, place and
nature of the hearing;
ii. a
statement of the legal authority and jurisdiction under which the hearing is to
be held;
iii. a reference to the
particular sections of the statutes, rules, or ethical standards
involved;
iv. a short and plain
statement of the matters asserted which shall be the subject of the
hearing;
v. a statement of the
rights of the parties.
b. Notice shall be given to all parties 30
days in advance of the proceedings to allow a reasonable opportunity for
preparation.
c. The notice shall be
delivered by registered or certified mail, return receipt requested. If the
licensee can not be found by this or other reasonable methods, the board may
hold a hearing in the licensee's absence.
note: It is the licensee's obligation to keep the board informed of his/her whereabouts.
d. The content of the notice limits the scope
of the hearing and of the evidence which may be introduced.
e. If the agency or other party is unable to
state the matters in detail at the time the notice is served, the initial
notice may be limited to a statement of the issues involved. Thereafter, upon
application, a more definite and detailed statement shall be
furnished.
4.
Designation of a Hearing Officer
a. The
hearing officer is responsible for ensuring that the hearing is orderly and
fair and that it progresses in an expeditious manner. This officer is empowered
to prepare written findings of fact and conclusion which shall be recommended
to the board.
b. The board shall
designate a hearing by affirmative vote of a majority of its members.
c. The hearing officer shall be unbiased and
qualified to preside over the case. A designated hearing officer shall withdraw
when that officer can not accord a fair and impartial hearing or
consideration.
d. Any party may
request the disqualification of a hearing officer on the ground of inability to
give a fair and impartial hearing by filing an affidavit (which states the
specific grounds) within three days of receipt of notice of the designation of
the hearing officer. The issue shall be determined promptly by the
board.
e. The hearing officer shall
not be a current member of the board.
B.
1.
Discovery
a. Depositions and interrogatories
of witnesses may be taken and shall be admissible in the proceedings.
b. Evidence which was not made available to
both parties at least five days in advance may be barred from the
introduction.
c. Evidence not
within the scope of the notice may be excluded.
d. When the interest of the parties will not
be prejudiced substantially, any part of the evidence may be received in
written form.
e. Documentary
evidence in possession of the board may be received in the form of copies of
excerpts, or by incorporation by reference.
f. Official notice may be taken of generally
recognized technical or scientific facts. However, parties shall be afforded an
opportunity to contest the material so noticed.
2. Subpoenas. The Louisiana Department of
Justice Disciplinary Action Manual for Occupational Licensing Boards by William
J. Guste Jr., Attorney General. Section 10.2 Subpoena Authority: Boards are
empowered by statute to issue subpoenas, and in Louisiana, the statutes allow
the board to issue a subpoena when requested in writing by any party in a
contested case. Either side in a contested hearing may request that a subpoena
be issued. It is generally required that the information called for by a
subpoena must be reasonable in terms of amount required and that it must relate
to the matter under consideration. A subpoena deuces tecum should be reasonable
in scope and should be limited to documentary material that is relevant to the
proceeding.
a. The board or its designated
hearing officer may sign and issue subpoenas when requested in writing by any
party to a contested case.
b. The
information called for by a subpoena shall be reasonable and shall relate to
the matter under consideration.
c.
Investigative subpoenas are issued at the discretion of the hearing
officer.
d. If the person fails to
comply with a subpoena, the board may apply to the judge of the appropriate
district court for an attachment as for a contempt.
3. Motions
a. A request to the board or the hearing
officer by a party for a particular action should be made in the form of a
motion.
b. A motion may be made
before, during or after a hearing.
c. All motions must be made at an appropriate
time.
d. Motions made before or
after the hearing shall be made in writing. Motions made during the course of
the hearing may be made orally.
e.
Motions are directed to the hearing officer who shall dispose of them
appropriately.
f. A party may not
submit written proposed findings of fact.
g. The hearing officer may refer a motion to
the board.
C. Formal Hearing Procedures
1. Conduct of a
Hearing
a. The members of the board shall be
present for hearing.
b. The hearing
will be conducted in accordance with the Administrative Procedure Act,
R.S.
49:955-966.
i.
Opportunity shall be afforded all parties to respond and present evidence on
all issues of fact involved and argument on all issues of law and policy
involved and conduct such cross-examination as may be required for a full and
true disclosure of facts.
ii.
Objections to evidentiary offers may be made and shall be noted in the
record.
c. The hearing
will be open to the public.
d.
Order of Proceedings
i. The hearing officer
calls the session to order, identifies the case, subject of the case, and cites
the authority for holding the hearing.
ii. The hearing officer asks the parties to
identify themselves and their counsel.
iii. All testimony shall be given under oath,
such oath to be administered by the hearing officer.
iv. Customary order of the proceedings should
be followed at the discretion of the hearing officer.
2. Evidence
a. In determining the admissibility of
evidence, the hearing officer must follow the rules governing administrative
hearings in Louisiana.
b.
Constitutional guarantees of due process give the licensee a right to a
decision based on the evidence presented at the hearing or officially noted in
the record.
D. Final Decision of the Board
1. The board must determine whether the facts
in the case support the charges brought against the licensee. It must determine
whether the charges are a violation of
R.S.
37:341, 37:392 et seq., or other rules and
regulations of the board.
2. The
board accepts a proposed order from the hearing officer setting forth the
findings of facts and conclusions of the hearing. The board may adopt such
findings and conclusions in whole or in part. Any board members not present at
the hearing must review the record prior to such decision.
3. The decision must be accompanied by a
statement of the reasons for the decision and must dispose individually of each
issue of fact or law necessary from the hearing officer.
4. The board's decision shall be based on the
evidence and the proposed decision from the hearing officer.
5. The vote of the board must be recorded and
made part of the decision. A majority vote must be obtained in order for a
violation to be judged to have occurred.
6. The board determines the sanctions
appropriate and consistent with law. The board may decide to revolve or suspend
a license or fine the licensee.
7.
The final decision shall be delivered to each party by registered or certified
mail, return receipt requested.
8.
The final decision shall be delivered within 30 days of the close of the
hearing.
9. The final decision
shall become effective 11 days after the receipt of notification of all
parties, provided that there is no appeal. Publication shall be withheld until
that date.
E. Appeal of Board Decision
1. A petition by a party for
reconsideration of hearing must be in writing and filed with the board within
10 days after receipt of board's final decision. The petition must set forth
the grounds for rehearing which must be one of the following:
a. the board's decision is clearly contrary
to the law and the evidence;
b.
there is newly discovered evidence, which was not available to the licensee at
the time of the hearing and which may be sufficient to reverse the board's
action;
c. there is a showing that
issues not previously considered ought to be examined in order to dispose of
the case properly; or
d. it would
be in the public interest to further consider the issues and the
evidence.
2. If a
petition for reconsideration is denied, a party may proceed to seek judicial
review of the decision.
3. Judicial
review may be initiated by filing a petition in the appropriate district court
within 30 days after mailing or notice of the final decision of the hearing or
rehearing.
F. Case Record
1. A complete case record must be
maintained for each formal hearing.
2. The record must be retained until the time
for any appeal has expired, or until the appeal has concluded.
3. The case record shall be composed of all
material officially noted.
G. Notification of Final Actions. Upon completion of the final decision, expiration of the time for any appeal, or conclusion of appeals. the board shall notify all affected parties of its actions.
AUTHORITY NOTE: Promulgated in accordance with R.S. 37:381.
Disclaimer: These regulations may not be the most recent version. Louisiana may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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