Current through Register Vol. 46, No. 39, September 25, 2024
(a) Any licensee
dissatisfied with any action, taken by the commission regarding the Business
Enterprise Program, may request a hearing to be held pursuant to this Part. The
hearing must be requested within 60 days of the action taken by the commission.
The request must specify the action taken with which the licensee is
dissatisfied, and identify any notice the licensee may have received from the
commission.
(b) Notice of hearing.
(1) For a hearing held to review an action by
the commission, the notice must specify the date, time and place of the
hearing, the manner in which the hearing will be conducted, and the action
taken by the commission that is challenged.
(2) The notice of hearing sent pursuant to
this paragraph must be delivered in person or by mail at least 14 days before
the date of the hearing. The notice must be sent:
(i) to the blind licensee at the licensee's
last known address in his or her preferred format; and
(ii) to the commission.
(3) The notice of hearing sent pursuant to
paragraph (1) of this subdivision also must inform the blind licensee:
(i) of his or her right upon written notice
to the commission to examine the record and any documents to be offered into
evidence prior to the hearing;
(ii)
of his or her opportunity to present evidence and arguments on issues of fact
and law at the hearing;
(iii) of
his or her right to be represented by an attorney or other representative of
his or her choice;
(iv) of his or
her right to cross-examine witnesses and to examine any document or item
offered into evidence;
(v) that all
witnesses will be sworn;
(vi) that
the hearing will be recorded verbatim; and
(vii) of the action(s) challenged and
issue(s) to be decided at the hearing.
(c) Who may be present at a hearing;
authorization of representative.
(1) The
blind licensee, his or her representative or representatives, counsel or other
representatives of the commission, witnesses for both parties and any person
who may be called by the hearing officer may be present at the hearing,
together with such other persons as may be admitted by the hearing officer in
his or her discretion. Upon his or her own motion, or upon the motion of either
party, where the same will assist in the orderly and fair conduct of the
hearing, the hearing officer may exclude from the hearing during the testimony
of a witness, potential witnesses and those who have testified
previously.
(2) An individual,
other than an attorney, representing the licensee must have an appropriate
written authorization for representation signed by the licensee.
(d) Hearing officer. The hearing
will be conducted by an individual who is employed by the Office of Children
and Family Services for that purpose and who has not been involved in any way
with the subject matter of the hearing. The hearing officer will have all the
powers conferred by law and regulation to administer oaths, issue subpoenas,
require the production of records and the attendance of witnesses, rule upon
requests for adjournment, rule upon objections to the introduction of evidence,
and to otherwise regulate the hearing, preserve requirements of due process and
effectuate the purposes and provisions of applicable law.
(e) A party to a hearing may make a request
to a hearing officer that the hearing officer remove him or herself from
presiding at the hearing.
(1) The grounds for
removing a hearing officer are that the hearing officer has:
(i) previously dealt in any way with the
substance of the matter which is the subject of the hearing except in the
capacity of hearing officer;
(ii)
an interest in the matter, financial or otherwise, direct or indirect, which
will impair the independent judgment of the hearing officer; or
(iii) displayed bias or partiality to any
party to the hearing.
(2) The hearing officer may independently
determine to remove him or herself from presiding at a hearing on the grounds
set forth in paragraph (1) of this subdivision.
(3) The request for removal made by a party
must:
(i) be made in good faith;
(ii) be made at the hearing in writing or
orally on the record; and
(iii)
describe in detail the ground(s) for requesting that the hearing officer be
removed.
(4) Upon
receipt of a request for removal, the hearing officer must determine on the
record whether to remove him or herself from the hearing.
(5) If the hearing officer determines not to
remove him or herself from presiding at the hearing, the hearing officer must
advise the party requesting removal that the hearing will continue but the
request for removal will automatically be reviewed by the commissioner's
general counsel or the general counsel's designee.
(6) The determination of the hearing officer
not to remove him or herself will be reviewed by the general counsel or the
general counsel's designee. Such review will include review of written
documents submitted by the parties and the transcript of the hearing.
(7) The general counsel or the general
counsel's designee must issue a written determination of whether the hearing
officer should be removed from presiding at the hearing within 15 business days
of the close of the hearing.
(8)
The written determination of the general counsel or the general counsel's
designee will be made part of the record.
(f) Conduct of hearing; rights of parties.
(1) The hearing officer will preside and will
make all procedural rulings. He or she will make an opening statement
describing the nature of the proceeding, the issues and the manner in which the
hearing will be conducted.
(2) The
rules of evidence as applied in a court of law will not apply, except that
privileges recognized by law will be given effect. The hearing officer may
exclude testimony or other evidence, which is irrelevant or unduly
repetitious.
(3) All testimony will
be given under oath or affirmation.
(4) The licensee may be represented by an
attorney or other representative of his or her choice, have witnesses give
testimony and otherwise present relevant and material evidence on the
licensee's behalf, cross-examine witnesses and examine any document or item
offered into evidence. The commission will reimburse the licensee for the
reasonable cost of his or her transportation to the hearing. All other
expenses, including but not limited to attorney's fees, transportation expenses
for the attorney, representative or witnesses, and all lodging and incidental
expenses are the sole responsibility of the licensee.
(5) The burden of proof at a hearing
regarding the denial or revocation of a license, or the placement of a licensee
on probation is on the commission to prove that a licensee has failed to adhere
to any of the requirements of this Part. The burden of proof for any
affirmative defenses is on the licensee.
(g) The hearing will be recorded verbatim by
either the Office of Children and Family Services or a private contractor.
Where the hearing is recorded by other than a private contractor as a result of
a request made by any party to a hearing, the Office of Children and Family
Services will prepare the record, together with any transcript of the
proceedings, and will furnish a copy of the record and transcript, or any part
thereof, to any party as requested. The Office of Children and Family Services
is authorized to charge not more than its costs for the preparation of the
transcript. Where a private contractor records the hearing, the party
requesting a transcript must make all arrangements for obtaining the transcript
directly with the private contractor.
(h) The hearing may be adjourned or its
location changed by the hearing officer on his or her own motion or at the
request of either party only for good cause including, but not limited, to the
unavailability of a party or witness, serious illness of a party or witness,
settlement negotiations or other circumstances requiring an
adjournment.
(i) The record.
(1) The record will include:
(i) the notice of hearing and any
intermediate rulings;
(ii) the
transcript or recording of the hearing;
(iii) exhibits received into
evidence;
(iv) matters officially
noticed;
(v) questions and offers
of proof, objections thereto and rulings thereon;
(vi) proposed findings and exceptions, if
any; and
(vii) any report rendered
by the hearing officer.
(2) After the hearing has been concluded, the
hearing officer will submit a report containing findings of fact, conclusions
of law and a recommended decision. Findings of fact will be based exclusively
on the record of the hearing.
(j) Examination of the record after a
hearing. Upon reasonable notice, the record of the hearing may be examined by
any party to the hearing at the offices of the Office of Children and Family
Services during regular business hours.
(k) Decision after a hearing.
(1) The hearing decision will be made and
issued by the commissioner or by a member of his or her staff designated by him
or her to consider and make such decisions and must be based exclusively on the
record of the hearing. The decision will be in writing and will describe the
issues, recite the relevant facts and pertinent provisions of law and
applicable regulations, make appropriate findings, determine the issues, state
reasons for the determinations and, when appropriate, direct specific action by
the commission and/or the licensee.
(2) A copy of such decision will be mailed to
the licensee and to the licensee's attorney or other designated hearing
representative.
