Ala. Admin. Code r. 730-X-4-.04

Current through Register Vol. 43, No. 1, October 31, 2024

Section 730-X-4-.04 - Conduct Of Hearings In Contested Cases

(1)

(a) The president of the Board, or in his absence, the vice president of the Board, or in his absence, the secretary-treasurer of the Board, shall preside during hearings but may rely upon the assistance and advice of a hearing officer. A quorum of the Board necessary to decide contested cases is set at five (5) members of the Board.

(b) In all instances in which a complaint has been filed with the Board, one member of the Board shall be appointed the investigating officer. This Board member shall assist in the investigation, and if necessary, the prosecution, of the case, and shall not vote at the hearing.

(2) If a party fails to appear in a contested case proceeding after proper service of notice, the presiding officer may, if no adjournment is granted, proceed with the hearing and make a decision in the absence of the party.

(3) Opportunity shall be afforded all parties to respond and present evidence and argument on all material issues involved and to be represented by counsel at their own expense.

(4) Unless precluded by statute, informal dispositions may be made of any contested case by stipulation, agreed settlement, consent order or default or by another method agreed upon by the parties in writing.

(5) Parties and witnesses may be subpoenaed and compelled to attend the hearing and shall testify under oath and may be sworn by any member of the Board. The expense of the subpoenas, including mileage and per diem as specified by law, shall be borne by the party requesting the subpoena. The Board or hearing officer may prescribe reasonable time limitations for the filing of requests for witnesses and documents and may further require the payment of the expenses per such subpoena in advance.

(6) Contested Hearings shall be open to the public, unless private hearings are otherwise authorized by law. The proceedings shall be recorded either by mechanized means or by qualified shorthand reports. The proceedings or any part thereof shall be transcribed at the request of any party with the expense of the transcription charged to the requesting party. The recording or stenographic notes of the proceedings or the transcription thereof shall be filed with and maintained by the Board for at least five years from the date of decision, and shall be made available for inspection by the public except in those cases where private hearings are authorized by law, or where the proceedings shall be ordered sealed by order of court, or are required to be sealed by statute.

(7) Evidence.

(a) The rules of evidence as applied in non-jury civil cases in the circuit courts of this state shall be followed insofar as possible. Whenever any evidence is excluded as inadmissible, all such evidence existing in written form shall remain a part of the record as an offer of proof. The party seeking the admission of oral testimony may make an offer of proof by means of a brief statement on the record describing the testimony excluded. All rulings on the admissibility of evidence shall be final and shall appear in the record. Subject to these requirements, when a hearing will be expedited and the interests of the parties will not be prejudiced substantially, any part of the evidence may be required to be submitted in verified form; provided, the adversary party shall not be denied the right of cross- examination of the witness.

(b) Documentary evidence otherwise admissible may be received in the form of copies or excerpts, or by incorporation by reference to material already on file with the Board. Upon request, parties shall be given an opportunity to compare the copy with the original.

(c) A party may conduct cross-examination required for a full and true disclosure of the facts, except as may otherwise be limited by law.

(d) Official notice may be taken of all facts of which judicial notice may be taken and of other scientific and technical facts within the specialized knowledge of the Board. Parties shall be afforded an opportunity to contest such facts before the decision is announced unless the Board determines as part of the record or decision that fairness to the parties does not require an opportunity to contest such facts.

(e) The experience, technical competence, and specialized knowledge of the Board may be utilized in the evaluation of the evidence.

(8) Record. The record in a contested case shall include:

(a) All pleadings, motions and intermediate rulings.

(b) All evidence received or considered and all other submission; provided, in the event that evidence in any proceeding may contain proprietary and confidential information, steps shall be taken to prevent public disclosure of that information.

(c) A statement of all matters officially noticed.

(d) All questions and offers of proof, objections and rulings thereon.

(e) All proposed findings and exceptions.

(f) Any decision, opinion or report by the hearing officer at the hearing.

(g) All staff memoranda or data submitted to the hearing officer or members of the Board in connection with their consideration of the case unless such memoranda or data is protected as confidential or privileged; provided, if such memoranda or data contains information of a proprietary and confidential nature, it shall be protected by the Board from public disclosure.

(h) The recording or stenographic notes of the proceedings or the transcription thereof if requested by a party or the Board.

(9) Proposed Orders; Final Decisions; Examinations of Evidence. In a contested case, a majority of the Board who are to render the final order must be in accord for the decision of the Board to be a final decision. If any official of the Board who is to participate in the final decision has not heard the case or read the record, and his vote would affect the final decision, the final decision shall not be made until a proposed order is prepared and an opportunity is afforded to each party adversely affected by the proposed order to file exceptions and present briefs and oral argument to the official not having heard the case or read the record. The proposed order shall contain a statement of the reasons therefor and of each issue of fact or law necessary to the proposed decision prepared by the person who conducted the hearing or one who read the record. The proposed order shall become the final decision of the Board without further proceedings unless there are exceptions filed to the Board within the time provided by rule. The parties by written stipulation may waive compliance with this section.

(10) Final Decisions and Orders.

(a) The final order in a proceeding which affects substantial interest shall be in writing and made a part of the record and include findings of fact and conclusions of law separately stated, and it shall be rendered within thirty days:

1. After the hearing is concluded, if conducted by the Board;

2. After a recommended order, or findings and conclusions are submitted to the Board and mailed to all parties, if the hearing is conducted by a hearing officer; or

3. After the Board has received the written and oral material it has authorized to be submitted, if there has been no hearing. The 30 day period may be waived or extended with the consent of all parties.

(b) Findings of fact, if set forth in a manner which is no more than mere tracking of the statutory language, shall be accompanied by a concise and explicit statement of the underlying facts of record which support the findings. If a party submitted proposed findings of fact or filed any written application or other request in connection with the proceeding, the order shall include a ruling upon each proposed finding and a brief statement of the grounds for denying the application or request.

(c) If the Board finds that an immediate danger to the public health, safety, or welfare requires an immediate final order, it shall recite with particularity the facts underlying such findings in the final order, which shall be appealable or enjoinable from the date rendered.

(d) Parties shall be notified either personally or by certified mail, return receipt requested, of any order; and, unless waived, a copy of the final order shall be so delivered or mailed to each party or to his attorney of record.

(11) Application for Rehearing.

(a) Any party to a contested case who deems himself aggrieved by a final order or Board Action and who desires to have the same modified, set aside, or reconsidered may within fifteen days after entry of said order or Board action file an application for rehearing which shall specify in detail the grounds for the relief sought therein and authorities in support thereof.

(b) The filing of such an application for rehearing shall not extend, modify, suspend or delay the effective date of the order, and said order shall take effect on the date fixed by the agency and shall continue in effect unless and until said application shall be granted or until said order shall be superseded, modified, or set aside in a manner provided by law.

(c) Such application for rehearing will lie only if the final order is:

1. in violation of constitutional or statutory provisions;

2. in excess of the statutory authority of the Board;

3. in violation of an agency rule;

4. made upon unlawful procedure;

5. affected by other error of law;

6. clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

7. unreasonable, arbitrary or capricious or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.

(d) Copies of such application for rehearing shall be served on all parties of record, who may file replies thereto.

(e) Within 30 days from the filing of an application the Board may in its discretion enter an order:

1. setting a hearing on the application for a rehearing which shall be heard as soon as practicable; or

2. with reference to the application without a hearing; or

3. grant or deny the application.

(f) If the Board enters no order whatsoever regarding the application within the 30 day period, the application shall be deemed to have been denied as of the expiration of the 30 day period.

Author:

Ala. Admin. Code r. 730-X-4-.04

Filed February 1, 1985. Amended: Filed October 22, 1993; effective November 26, 1993.

Statutory Authority:Code of Ala. 1975, §§ 41-22-1, etseq.