Ala. Admin. Code r. 80-1-22-.48

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

Section 80-1-22-.48 - Proceedings For Adverse Permit Actions

The Department of Agriculture and Industries shall utilize the contested case procedure in this chapter to take any adverse action on any food safety permit.

(a) Such adverse permit actions shall be initiated by notices served on the affected permittee as provided in Rule 420-1-3-.02 except that revocation and suspension actions shall be served only by registered or certified mail, return receipt requested. Such notice shall include the charges and specifications including a description of the grounds for the proposed action and the date, place and time of the meeting at which such proposed adverse action shall be heard. Notices shall be served at least 30 days prior to the date of the hearing.

(b) Permittees shall be provided an opportunity to respond in writing and/or orally. Permittees may be represented by legal counsel and may present evidence in their defense. The staff of the State Department of Agriculture and Industries and the permittee may present and cross-examine witnesses and the hearing officer may examine and cross-examine witnesses.

(c) The burden of proof rests with the staff of the Department of Agriculture and Industries.

(d) Revocation and suspension proceedings shall be recorded by a certified court reporter. All other proceedings may, but shall not necessarily be recorded by a certified court reporter. Such proceedings may, as an alternative, be recorded by tape recorder or other electronic means or by stenographic notes or summaries prepared by the staff, so long as such summaries adequately and accurately reflect the testimony before the hearing officer.

(e) The hearing officer shall, upon completion of such hearing, make findings of fact on all adverse action and shall make recommendations to the Commissioner of Agriculture and Industries which shall consider such recommendations and shall reverse, affirm, or modify the recommendations of the hearing officer.

1. Any permittee aggrieved by an order of the Commissioner of Agriculture and Industries who desires to have the same modified or set aside may, within 15 days after the entry of the order, file an application for rehearing, which shall specify in detail the grounds for the relief sought therein and the authorities in support thereof.

2. 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 Commissioner of Agriculture and Industries 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.

3. Such application for rehearing will lie only if the final order is:

(i) In violation of constitutional or statutory provisions;

(ii) In excess of the statutory authority of the Commissioner of Agriculture and Industries;

(iii) In violation of a rule of the State Board of Agriculture and Industries;

(iv) Made upon unlawful procedure;

(v) Affected by other error of law;

(vi) Clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or

(vii) Unreasonable, arbitrary or capricious or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.

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

5. Within 30 days from the filing of an application, the Commissioner of Agriculture and Industries may in his or her discretion issue an order:

(i) Setting a hearing on the application for a rehearing which shall be heard as soon as practicable; or

(ii) With reference to the application without a hearing; or

(iii) Granting or denying the application.

6. If the Commissioner of Agriculture and Industries 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.

7. In no event shall a party be required to file an application for rehearing as a condition of applying for judicial review.

Author: Reginald L. Sorrells

Ala. Admin. Code r. 80-1-22-.48

New Rule: Filed November 15, 2000; effective December 20, 2000.

Statutory Authority:Code of Ala. 1975, §§ 20-1-1, 20-1-2, 41-22-12, 41-22-17, 41-22-20.