Code of Maryland Regulations
Title 09 - MARYLAND DEPARTMENT OF LABOR
Subtitle 12 - DIVISION OF LABOR AND INDUSTRY
Chapter 09.12.91 - Railroad Safety and Health
09.12.91.02 - Rules of Procedure for Hearing
09.12.91.02. Rules of Procedure for Hearing
A. The requirements of this regulation are in addition to the requirements of the Administrative Procedure Act, Contested Cases, § 10-201 et seq. of the State Government Article, Annotated Code of Maryland.
B. Notice of Hearing.
(1) The presiding officer shall serve notice of the hearing on all parties at least 15 days before the hearing.
(2) Notice served under § B(1) of this regulation shall:
(a) State the time, place, and nature of the hearing;
(b) State the authority of the agency to hold the hearing;
(c) Cite the specific section of each statute and regulation, including a procedural regulation, that is pertinent; and
(d) State concisely and simply:
(i) The facts that are asserted, or
(ii) If the facts cannot be stated in detail when the notice is given, the issues that are involved.
C. Manner of Service.
(1) The requirements of this section are in addition to the requirements of COMAR 09.01.02.04B.
(2) Notice of hearing required by § B of this regulation shall be sent to all parties other than the agency by:
(a) Certified mail with a return receipt requested; or
(b) Personal delivery, provided the person serving the document certifies to the manner and date of service.
(3) Unless otherwise required by law or by applicable regulations, service of any document upon any party may be made by:
(a) Personal delivery, provided the person serving the document certifies to the manner and date of service; or
(b) Mailing a copy of the document to the last known address of the party.
D. Hearing Officer.
(1) The requirements of this section are in addition to the requirements of COMAR 09.01.03 Hearing Officer Regulations.
(2) A hearing officer shall have all powers necessary to conduct a fair, full and impartial hearing, including but not limited to the power to:
(a) Administer oaths and affirmations;
(b) Rule upon offers of proof and receive relevant evidence;
(c) Regulate the course of the hearing and the conduct of the parties and their counsel;
(d) Rule upon procedural requests;
(e) Examine any witness;
(f) Issue subpoenas; and
(g) Take any other appropriate action authorized by applicable statutes or regulations.
E. Issuance of Subpoena or Summons.
(1) The requirements of this section are in addition to the requirements of COMAR 09.01.02.03B.
(2) On application of any party, received by the agency not less than 7 business days before a scheduled hearing date, the presiding officer shall immediately issue a subpoena or summons requiring the attendance and testimony of a witness and the production of any evidence, including relevant books, records, correspondence, or documents in the possession or under the control of the person subpoenaed or summoned.
(3) An application for a subpoena or summons may be made by one party only.
(4) A subpoena or summons shall show on its face the name and address of the party requesting the subpoena or summons.
(5) If a person fails to comply with a subpoena or summons, the Commissioner shall initiate proceedings to enforce the subpoena or summons in the appropriate court if, in the Commissioner's judgment, the:
(a) Testimony of the witness failing to appear is material to the proceedings; or
(b) Production of the evidence by the person failing to comply is material to the proceedings.
(a) The requirements of § F(1) of this regulation are in addition to the requirements of COMAR 09.01.02.02B.
(b) A postponement for more than 30 days may not be granted without the approval of the presiding officer.
(2) Hearings shall be recorded verbatim.
(3) Hearing Procedure.
(a) The presiding officer shall:
(i) Call the title of the case;
(ii) Explain briefly the purpose and nature of the hearing;
(iii) Recite any charges, complaints, or other matters involved; and
(iv) Administer the oath to all persons who are summoned or intend to testify.
(b) Counsel or any party may be heard on any preliminary objection, exception, or motion, and any stipulation entered into by the parties shall be received.
(c) The following exhibits shall be introduced:
(i) If the presiding officer is a hearing officer, a copy of the letter designating the hearing officer to preside at the hearing;
(ii) A copy of the petition, complaint, or other matter involved in the hearing; and
(iii) A copy of the notice of hearing sent to persons entitled to receive notice.
(d) Order of Testimony. In all hearings on:
(i) Citations, the presenter of evidence shall proceed first and shall present the evidence on which the citation was based.
(ii) Employee complaints, the presenter of evidence shall proceed first and shall present evidence obtained as a result of the agency investigation of the complaint.
(iii) Applications for variance, counsel for the railroad company requesting the variance shall proceed first and present evidence demonstrating either that the variance is necessary to prevent undue operational or economic hardship, or that existing conditions prevent practical compliance and the reasonable safety of the public and employees of the railroad company can be assured. The presenter of evidence shall then present information obtained as a result of the agency's investigation of the variance request.
(e) Subject to applicable statutes and rules governing the practice of law, each party or counsel representing a party may:
(i) Call witnesses;
(ii) Offer evidence, including rebuttal evidence;
(iii) Cross-examine any witness that another party or the agency calls; and
(iv) Present summation and argument.
(f) Written Memorandum.
(i) Upon request of any party or counsel representing a party, before the close of the hearing, the presiding officer may permit a party or counsel to file a written memorandum, which may include proposed findings of fact and conclusions of law.
(ii) The presiding officer may require a written memorandum.
(iii) The presiding officer may fix a reasonable time for filing a memorandum.
G. Determination of Hearing Officer.
(1) Within a reasonable time after a hearing officer has heard all evidence and considered any written memorandum, the hearing officer shall issue a written determination which includes:
(a) Proposed findings of fact based on the evidence in the record;
(b) Proposed conclusions of law setting forth the application of the law to the factual findings; and
(c) A proposed order making disposition of the case.
(2) The hearing officer shall promptly serve a copy of the determination on each party.
(3) Unless a review is requested under Labor and Employment Article, § 5.5 -118, Annotated Code of Maryland, within 15 working days from the date of the determination, the decision of the hearing officer becomes the final order of the Commissioner.(Regulations .02 adopted effective January 28, 1985 (12:2 Md. R. 137))