Current through Register Vol. 35, No. 18, September 24, 2024
A. Purpose: The
purpose of the hearing shall be to determine whether sufficient grounds exist
for the denial of an initial license application or continuing licensure
application by the PED. The burden of proof shall be upon the PED to establish
by a preponderance of the evidence that sufficient grounds exist.
B. Venue of hearing: The hearing shall be
conducted in the county where the PED maintains its office. In any case,
however, the applicant and the PED may agree that the hearing is to be held in
some other county.
C. Conduct of
hearings
(1) The order of presentation of
evidence shall be as follows: The PED shall present evidence in an attempt to
establish that sufficient grounds exist for the denial of the applicant's
initial or continuing licensure. Thereafter, the applicant may present evidence
in defense. The hearing officer may allow rebuttal evidence and closing
arguments.
(2) The rules of civil
procedure and the rules of evidence shall not apply to the hearing, except as
specifically provided in this rule, but it shall be conducted so that both
complaints and defenses are amply and fairly presented. To this end, the
hearing officer shall permit each party to call and examine witnesses,
cross-examine witnesses and introduce exhibits. Documentary evidence may be
received in the form of copies or excerpts. Evidence will be admitted without
regard to technical rules of evidence, but the hearing officer may exclude any
evidence, which is not relevant to the issues and may require reasonable
substantiation of statements or records where accuracy or truth is in
reasonable doubt. Any evidence may be admitted that is of a kind commonly
relied on by reasonably prudent people in the conduct of serious affairs. The
hearing officer may in their discretion exclude incompetent, irrelevant,
immaterial, or unduly repetitious evidence. Rules of privilege shall be
applicable to the same extent as in proceedings before the courts of this
state. Parties or their attorneys may make timely objections to the
introduction of any evidence they view as inadmissible under this
paragraph.
(3) A complete record
shall be made of all evidence received during the course of the hearing. The
record shall be preserved by any stenographic method in use in the district
courts of this state, or in the discretion of the PED, by tape recording. The
PED shall observe any standards pertaining to tape recordings established for
the district courts. In any event, the PED shall have one (1) copy of the
transcript or tape recording of the hearing for the secretary's review in
rendering a final decision. Where judicial review is sought, the costs of
required transcripts or tape recordings shall be paid by the party seeking
review.
(4) All witnesses shall
swear or affirm that their testimony will be truthful. A person authorized to
administer oaths shall swear each witness. The hearing officer may determine
the capacity of a witness to testify and may consider capacity in determining
the weight of the evidence. The hearing officer may refuse to admit testimony
from a proposed witness who is found lacking capacity.
(5) The hearing officer may require
post-hearing briefs to be submitted by the parties. Such briefs shall not
exceed 20 pages in length, double-spaced, exclusive of attachments, and shall
be on paper eight and one-half by eleven inches in length.
D. If an applicant fails to appear at a
hearing and no continuance has been granted, the hearing officer may hear the
evidence of such witnesses as may have appeared and proceed to consider and
dispose of the case on the basis of the evidence before the hearing officer in
the manner required under this rule. Where an applicant fails to appear for a
hearing or fails to request a hearing due to sickness, accident or other good
cause, such licensee may apply to the hearing officer where he failed to
appear, or to the PED where he failed to request a hearing, to reopen the
proceeding, and upon finding such cause sufficient, the hearing officer or the
PED, as the case may be, shall schedule a hearing and give the applicant notice
of such as required by this rule. The hearing officer may require evidence to
prove licensee's good cause in such cases.
E. Continuing jurisdiction
(1) Despite the expiration of an applicant's
licensure, the PED shall continue to have jurisdiction to hear a case under
this rule where the individual whose licensure expired was served a notice of
contemplated action prior to the expiration of the licensure.
(2) The service of such notice upon an
applicant shall act to stay the expiration of licensure where that individual's
licensure was scheduled to expire and would expire during a proceeding to deny
continuing licensure under this rule but for the stay of the
expiration.
(3) Where the secretary
issues a final order in which the applicant's licensure is not outright denied,
then the individual shall be permitted to renew their licensure as though it
expired on the original expiration date as long as the applicant satisfies all
other licensure requirements for the level and type of license
sought.
