New Mexico Administrative Code
Title 16 - OCCUPATIONAL AND PROFESSIONAL LICENSING
Chapter 44 - LANDSCAPE ARCHITECTS
Part 9 - COMPLAINTS
Section 16.44.9.9 - ADJUDICATORY PROCEEDINGS
Universal Citation: 16 NM Admin Code 16.44.9.9
Current through Register Vol. 35, No. 18, September 24, 2024
A. General provisions and pre-hearing and preliminary matters.
(1) All hearings shall be conducted either by
the board or, at the election of the board, by a hearing officer.
(2) If the board appoints a hearing officer,
the hearing officer shall have authority to decide pre-hearing matters, preside
over the hearing, and direct post-hearing matters in accordance with the
requirements of the case in a manner that ensures an efficient and orderly
hearing and expedites the final resolution of the case. Except as otherwise
limited in this part, the hearing officer shall have the authority to rule on
all non-dispositive motions. If the board does not appoint a hearing officer or
if the hearing officer is unavailable or unable to proceed, the board chair or
other board member designated by the board shall have the authority to decide
pre-hearing or preliminary matters on behalf of the board. This authority shall
be in accordance with the requirements of the case in a manner that ensures an
efficient and orderly hearing and expedites the final resolution of the case,
including, without limitation:
(a) unopposed
or stipulated motions to change venue;
(b) motions for continuance of a hearing
date; a motion to vacate the hearing must contain a statement that the licensee
or applicant waives his or her right to a hearing held not more than 60 days
from the date of service of the notice of hearing;
(c) the granting of one notice of peremptory
excusal to each party if the notice is timely and if the peremptory excusal
does not result in a loss of a quorum of the board; and
(d) motions regarding discovery.
(3) The original of any papers and
pleadings shall be filed with the board. Copies shall be sent to the hearing
officer and attorneys or parties of record.
(4) The hearing officer or designated board
member shall issue appropriate orders to control the course of the
proceedings.
(5) Consistent with
provisions of the Uniform Licensing Act and to the extent practicable, the
rules of civil procedure for the district courts shall apply unless the hearing
officer or designated board member orders otherwise.
(6) A request for an order shall be a made by
motion filed with the board. Except for motions made during the course of the
hearing, a motion shall be in writing. A motion shall state with particularity
the grounds for the motion and shall set forth the relief and order
sought.
(7) A motion shall be
accompanied by a memorandum brief in support of the motion. The brief shall
state with particularity the grounds for the motion and shall contain citation
to authorities, statutes, and references to the pleadings on file. If matters
outside of the pleadings are considered, a copy of the referenced material
shall be attached to the brief.
(8)
The hearing officer or the designated board member may order the filing of
briefs or other documents and may set oral argument on any matter.
(9) No more than two continuances of the
hearing date will be granted without the approval of the board for good cause
shown.
(10) All dispositive motions
shall be decided by the board.
(11)
No proposed settlement, consent agreement, voluntary surrender of a license in
lieu of prosecution, or other proposal for the resolution of a pending
disciplinary case shall be effective unless approved by the board and executed
by the board and the licensee or applicant. The board or hearing officer may
seek information from the administrative prosecutor and the licensee or
applicant concerning circumstances of the case relevant to a consideration of
the proposed settlement or clarification of the proposed terms and conditions.
No board member is presumed to be biased and shall not be excused based solely
on the reason that the member considered a proposed settlement, consent
agreement, or other proposal for the resolution of a pending disciplinary case.
The board may submit a counterproposal for the settlement or resolution of the
case.
(12) Any proposed settlement,
consent agreement, voluntary surrender of a license in lieu of prosecution, or
other proposal for the resolution of a pending disciplinary case shall contain
at least the following:
(a) an admission of
all jurisdictional facts; an acknowledgment of the rights contained in the
Uniform Licensing Act and an express waiver of those rights and of all rights
to hearing and judicial review or any other opportunity to contest the validity
of the board order in any other proceeding or forum;
(b) a provision that the proposal resolves
only the violations alleged in the specific notice of contemplated action and a
statement that the board reserves the right to initiate other proceedings for
any other violations of the act or board regulations;
(c) a description of the facts underlying
each alleged violation;
(d) if
appropriate, a list of the acts or practices from which the licensee or
applicant will refrain in the future;
(e) a statement of the type, terms, and
conditions of the proposed disciplinary action of the board;
(f) a statement that the licensee will be
responsible for all costs of disciplinary proceedings or a statement setting
forth the reason why the licensee should be excused from paying costs; the
affidavit of the board administrator concerning the costs incurred to date
shall accompany the proposal;
(g) a
statement that the decision and order of the board shall be a public record and
shall be reported as required by law; and
(h) other provisions necessary to ensure the
complete and final resolution of the proceedings.
(13) A proposal to settle a matter shall not
stay the proceedings or vacate the hearing date unless otherwise ordered by the
hearing officer or presiding officer upon the filing of a timely
motion.
B. Duties of the board administrator. The board administrator shall:
(1) after consultation with the board or
hearing officer, issue a notice of hearing stating the date, time, and place of
the hearing;
(2) execute on behalf
of the hearing officer or board notices, scheduling orders, subpoenas, and
subpoenas duces tecum, and other routine procedural documents that facilitate
the efficient conduct of adjudicatory proceedings;
(3) maintain the official record of all
papers and pleadings filed with the board in any matter;
(4) prepare an affidavit as to costs of any
disciplinary proceeding at the conclusion of any hearing or upon request by a
party submitting a proposed settlement, consent agreement, or voluntary
surrender of a license in lieu of prosecution;
(5) prepare, certify, and file with the
district court the record of the case on appeal or review;
(6) unless the board orders otherwise, have
the authority to sign the decision of the board to grant or refuse a request to
reopen the case.
C. Conduct of hearings.
(1) The hearing officer,
or presiding officer if the case is heard by the board, shall ensure the fair,
efficient, and orderly conduct of the hearing in accordance with the Uniform
Licensing Act.
(2) Unless the board
orders otherwise, a board member hearing officer, the board chair, or presiding
officer shall have the authority to sign the written decision of the
board.
(3) The board administrator
shall serve the decision of the board on the licensee or applicant in
accordance with law.
(4) A motion
for an order staying the operation of a board decision shall be decided by the
board.
Disclaimer: These regulations may not be the most recent version. New Mexico 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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