Current through Vol. 42, No. 1, September 16, 2024
(a) The Department may hold hearings for
formal review on any matter within the Department's jurisdiction. Hearings for
formal review may be instituted and conducted where expressly required by law
and where deemed necessary to the proper execution and discharge of any of the
powers or duties conferred or imposed upon the Department by law. Hearings may
be instituted by application, petition, complaint (herein generally and
collectively referred to as "application") or similar request of an aggrieved
person or by the Department on its own initiative.
(b) All hearings for formal review held under
the authority of 45 O.S., Section 721 et seq., shall be in compliance with 75
O.S., Section 301 et seq., as amended, and with this Chapter.
(c) Hearings for formal review shall be
conducted by an authorized Hearing Examiner who shall be designated by the
Director. Hearing Examiners are authorized to issue subpoenas, administer
oaths, to supervise, direct, preside over and conduct the hearing proceedings;
to make and enter interlocutory rulings; to make and enter rulings on any other
motions or objections arising during the course of the hearings; and, generally
to do all things necessary and incidental to conducting and completing the
hearing.
(d) Hearings for formal
review may be held at the main offices of the Department in Oklahoma City, or
at such other locations as may be designated by law, rule or
regulation.
(e) All testimony and
evidence given at hearings for formal review shall be electronically recorded
in duplicate. Upon receipt of notice of appeal to the District Court pursuant
to the Administrative Procedures Act or upon other proper request of a party of
record, the Department shall transcribe the testimony verbatim. The cost of
transcribing the hearings and furnishing a certified copy of the record to the
District Court shall be borne by the appellant, petitioner or requesting party.
When a completed hearing record has been transcribed and certified, a copy of
the transcript may be obtained, upon written request, from the Department.
There will be a transcription fee, as determined by the Department, payable by
the requesting party. [75 O.S., Sections 309, 320].
(f) When deemed necessary and proper for the
purposes of a hearing for formal review, pre-hearing discovery by a party may
be allowed as provided under the Administrative Procedures Act and this
Chapter. Depending upon the nature of the hearing, pre-hearing discovery may be
made at any time subsequent to the filing (and acceptance for filing) of an
application or petition, or otherwise, at any time subsequent to the
institution of proceedings on the application. Requests for pre-hearing
discovery must be timely made and the Hearing Examiner may impose reasonable
and necessary limitations on the period of time within which discovery requests
may be presented and entertained.
(1) In any
hearing proceeding, the Hearing Examiner may direct, on the Examiner's own
motion , or at the request of a party, that the parties appear for a
pre-hearing conference. Parties of record shall be notified of such conferences
in advance. A pre-hearing conference may be held to facilitate simplification
of issues presented, admissions and stipulations, the identification of
documents and witnesses proposed to be offered, discovery and production of
relevant documents and other information, to consolidate parties and issues,
and any other matters as may aid in the conduction of the hearing.
(2) The Hearing Examiner, on the Examiner's
own motion or at the request of a party, may, in the name of the Department,
issue subpoenas for witnesses and/or the production of books, records, papers
or other information or objects. Subpoenas may be personally served by any
authorized Department member or by certified mail, return receipt requested.
Subpoenas must be served no less than three (3) days prior to the date of the
hearing. [75 O.S., Section 315].
(g) The Hearing Examiner shall open the
hearing for formal review at the time and place set forth in the notice.
(1) After opening the hearing for formal
review, the Hearing Examiner shall determine whether notice of the hearing was
properly given as required by law. Should it be determined that the required
notice was not given or is materially, substantially or prejudicially defective
in form or content, the Hearing Examiner shall adjourn the hearing, set a new
hearing date and a new and proper notice thereof shall be given. In addition to
the required notice, all parties of record shall be given written notice of the
new hearing date.
(2) After opening
the hearing for formal review, the Hearing Examiner shall request that all
parties enter their appearances for the record and whether they are appearing
in support of or in opposition to the application. Parties may appear
personally, by authorized representative and/or by legal counsel, provided,
attorneys appearing as legal counsel for and on behalf of a party must be duly
licensed to practice law in the State of Oklahoma or must complete the oath [5
O.S. Section 17.1 and Article II, Section 5 of the Rules of the Oklahoma Bar
Association] set forth in Appendix A of this Chapter. The applicant or
protestant must appear at the hearings, either personally, by representative or
by legal counsel. The failure of any party to appear shall be deemed to
constitute a default and abandonment of interest by the party failing to appear
and shall preclude the party from being heard further unless good cause for
such failure to appear is shown five (5) days from the date of the
hearing.
(3) After all parties have
entered their appearances, the Hearing Examiner shall proceed to entertain
presentation of evidence and testimony. The testimony of a witness shall be
taken only upon sworn oath or affirmation. Witnesses shall be sworn
individually. Each party shall have the right to call and examine witnesses, to
introduce exhibits, to cross-examine opposing witnesses, to object to the
introduction of evidence, to impeach witnesses, and to rebut evidence
presented. [75 O.S., Section 310]
(4) As provided under the Administrative
Procedures Act, the strict and formal rules of evidence and pleading such as
are applied and prevail in a court of law need not be observed in Department
hearings for formal review. All evidence and testimony offered must be relevant
and material to the matter subject of the application and hearing. Evidence and
testimony which is clearly irrelevant, immaterial, incompetent or unduly
repetitious or cumulative may be excluded or limited. Evidence may be received
by stipulation and agreement of all interested parties. Documentary evidence
may be received in the form of copies or excerpts if the original is not
readily available and , upon request, a party may be given the opportunity to
compare the copy with the original. Copies of proposed exhibits shall be
supplied to adverse parties and one original copy submitted to the Hearing
Examiner. Each exhibit offered shall be tendered for identification. Each
exhibit entered into evidence shall become a part of the administrative record.
No exhibit shall be accepted after the conclusion of the hearing.
(5) Files and records of the Department which
pertain to the subject of the hearing, and books, reports, and other papers or
writings which have been prepared and published by any governmental or public
agency, may at the discretion of the Hearing Examiner, be officially noticed
and received into evidence as exhibits and incorporated by reference. The
original or a copy in the possession of the Department shall be made available
for inspection and copying by any party. Each such matter shall be
appropriately identified and designated by number in the record as an exhibit.
Certification of such files and records may be waived when it appears there is
not valid reason to doubt the authenticity of the document presented. Official
notice may also be taken of judicially cognizable facts and of generally
recognized technical or scientific facts within the Department's specialized
knowledge. [75 O.S., Section 310]
(6) The Hearing Examiner may, at the
Examiner's discretion, continue or adjourn a hearing to another date. Hearing
continuances may be granted at the request of any party for good cause or by
agreement of all parties or may be ordered on motion of the Hearing Examiner.
Continuances or adjournments for further hearing shall be to date, time and
place certain announced in open session of the hearing. Where granted or
ordered prior to the scheduled hearing date, the party at whose request the
continuance was granted or ordered shall notify all other interested parties of
record of the date, time, and place set by the Hearing Examiner for further
hearing. At the conclusion of a hearing, the Hearing Examiner may, at the
Examiner's discretion for good cause shown and without prejudice to any party,
leave the hearing record open to allow presentation and rebuttal of additional
material or information necessary to a full, fair and complete submission and
disposition of the matter subject of the hearing.
(7) Upon conclusion of a hearing for formal
review, the Hearing Examiner may request that all parties file proposed Finding
of Facts and Conclusions of Law for review and consideration by the Hearing
Examiner. The Hearing Examiner may request all parties to submit legal briefs.
[75 O.S. Section 312 ]
(8) After
all parties have had an opportunity to be heard and present evidence, and after
expiration of any additional time allowed, the hearing shall be deemed
completed and the hearing record shall be deemed closed.
(9) As expeditiously as possible after
completion of the hearing for formal review, the Hearing Examiner shall review,
consider and evaluate all matters presented and relevant to the hearing issues,
and, based thereon, the Hearing Examiner shall prepare a proposed final Order
containing necessary Findings of Facts and Conculsions of law Law. The
Examiner's proposed Order shall be presented to the Director of the Department
for review, consideration and action. All parties of record shall be furnished
a copy of the Examiner's proposed Order, at least 15 days in advance of the
final Order of the Director, and may file Exceptions thereto. [75 O.S., Section
311]
(10) At such time as the
Examiner's proposed Order is to be considered and acted upon by the Director,
no new testimony or evidence may be presented or entertained. Upon request,
oral arguments and supporting briefs on the Examiner's proposed Findings of
Fact, Conclusions of Law , and Order may be presented, but a reasonable time
limit for argument shall be fixed. Oral argument shall be recorded and shall
become a part of the record. All parties of record shall be furnished a copy of
the final Findings of Facts, Conclusions of Law, and Order of the Director of
the Department. [75 O.S., Section 312]
(11) As allowed by and subject to compliance
with the requirements imposed under the Administrative Procedures Act, any
party may request rehearing, reopening or reconsideration of any final
Department action, decision or Order. The Department may, on its own motion,
order rehearing, reopening or reconsideration of any Department action,
decision or order. Appeals from any final Department action, decision or
ruling, may be taken as allowed and provided by and subject to the requirements
of the Administrative Procedures Act. Subject to the provisions of the
Administrative Procedures Act and unless otherwise directed or ordered by the
Department, no Department action, decision or Order shall be stayed pending
rehearing, reopening, reconsideration or appeal. [75 O.S., Sections 317,
319]
Amended at 21 Ok Reg
2973, eff 7-26-04; Amended at 29 Ok Reg 1778, eff
8-12-12
