Ala. Admin. Code r. 538-X-3-.18

Current through Register Vol. 42, No. 11, August 30, 2024

Section 538-X-3-.18 - Denial Of Application; Request For Hearing From Application Denial

(a) In accordance with § 20-2A-56(e), Code of Ala. 1975, (as amended), any Applicant who has been denied a license by the Commission may seek an investigative hearing before the Commission to seek reconsideration of said denial. Request for hearing must be filed electronically on or before 4 p.m., CDT, 14 days from the date of the denial. The party seeking the investigative hearing shall serve a copy of such request to all other applicants for such license offering and shall certify the same to the Commission. Such service may be accomplished by email or USPS First-Class Mail to the authorized contact person as identified on such applicants' application.

(b) The investigative hearing shall be conducted as a contested case under the Alabama Administrative Procedure Act. If the Commission director is licensed to practice law in this state, he or she shall act and serve as hearing officer when designated by the commission. If the director does not serve as the hearing officer, the Commission may designate the assistant director, if licensed to practice law in this state, or another licensed attorney to sit, act, and serve as the hearing officer for purposes of the investigative hearing.

(c) Upon timely application filed within ten (10) days of the request for investigative hearing, any other applicant with a submitted application for the same license offering shall be permitted to intervene upon filing a notice of intervention, which shall be served on the applicant and any other parties of record to the investigative hearing. Other parties asserting a right to intervene under § 41-22-14, Code of Ala. 1975, may also file a motion to intervene within such ten (10) day period for consideration by the hearing officer.

(d) In those license categories where the number of licenses that may be issued by the Commission are limited by statute or rule, the hearing officer may consolidate pending investigative hearing requests for purposes of the hearing.

(e) The Commission shall secure a licensed court reporter, who shall maintain an index of all exhibits identified or offered at the hearing. All parties to the investigative hearing shall be responsible for the cost of any transcripts produced by the court reporter for such party. The hearing officer shall coordinate with the court reporter and Secretary of the Commission to maintain for the Commission an indexed copy of all other filings of record, rulings, and orders from the date of assignment of the case to the hearing officer through the issuance of a final order. The hearing officer shall be responsible for ensuring that all such indexed records are provided to the Commission, with a copy of the indexes (but not underlying documents) simultaneously provided to all parties. Where practicable, the hearing officer and court reporter should provide such indexes and documents to the Commission in PDF form.

(f) All records related to the application and the prior orders issued by the Commission shall be part of the record of the investigative appeal, subject to the provisions of Paragraph (g) below. The Commission's decision in regard to the investigative appeal shall be based on the whole record before the Commission.

(g) The hearing officer may issue a prehearing order requiring parties, a reasonable time before the investigative hearing, to file lists of expected witnesses, together with a general summary of each witness' testimony, copies of documents to be offered as evidence at the hearing and if specifically requested, copies of any documents referred to in the application not otherwise available to the public. The hearing officer shall give due consideration to the protection of trade secrets and other confidential or proprietary information as provided under statute and the Commission's rules and may issue protective orders related thereto.

(h) The hearing officer may also require the direct or redirect examination of a witness through pre-filed testimony in lieu of oral examination. Such pre-filed testimony shall be in written question and answer form and shall be filed at least ten (10) calendar days prior to the hearing, unless directed otherwise by the hearing officer. At the hearing, such pre-filed testimony may, upon motion, be incorporated into the record as if the questions had been asked of the witness and the answers had been given orally, provided such testimony has been properly identified and authenticated under oath by the witness for whom it is presented and further provided that such witness is made available for cross-examination. In such cases, witnesses may also summarize their testimony orally. Pre-filed testimony may be stricken by the hearing officer on the same grounds applicable to testimony presented through oral examination. The hearing officer may take other measures to streamline the hearing process, including, but not limited to, reasonable limitations on the number of witnesses, time of presentation, and restrictions on the presentation of testimony that is purely cumulative in nature.

(i) The record of the investigative hearing will be made available to all Commissioners participating in the decision. If deemed necessary or helpful by the Commission, acting through the Chair, may instruct the hearing officer to issue a proposed order consistent with § 41-22-15, Code of Ala. 1975. Any such proposed order shall be distributed to all parties who will have ten (10) days to file exceptions or briefs relating to the proposed order. The Commission will schedule the investigative appeal for deliberation and vote at a meeting following the completion of the transcript and the deadline for all filings.

(j) The decision of the Commission on such hearing is considered a final action, triggering the right of appeal as provided in § 20-2A-57(f), Code of Ala. 1975, (as amended). Despite the Commission's announcement of the award of licenses, due to the pendency of hearings or appeals on some or all licenses in a particular offering, some or all licenses may not issue, in the discretion of the Commission, but may be stayed until the time for appeal has lapsed or all appeals from the Commission's decision have resolved, whichever is later. Any deadlines or obligations imposed on licensees based on licensure under these Rules or the Act shall not begin to run until such time as licenses are issued.

(k) This rule, as amended, shall be effective for all investigative hearing requests filed on or after its effective date. The procedures set forth in this rule, as amended, are intended to provide greater detail regarding the investigative hearing process and shall not be construed as a limiting the existing hearing procedures available to the Commission, or the rights of any party, under the Alabama Administrative Procedure Act. If any provision of this Rule, as amended, or the application of such provision or amendment to any person or circumstance is invalidated by a Court, the remainder of this Rule, as amended, and the application of the provisions of such to any person or circumstance shall not be affected thereby.

Ala. Admin. Code r. 538-X-3-.18

Adopted by Alabama Administrative Monthly Volume XL, Issue No. 11, August 31, 2022, eff. 10/15/2022.

Amended by Alabama Administrative Monthly Volume XLII, Issue No. 03, December 29, 2023, eff. 2/12/2024.

Author: William H. Webster; Mark D. Wilkerson

Statutory Authority:Code of Ala. 1975, §§ 20-2A-22, as amended.