RULE 5014-3PLEADINGS AND PRACTICE.RULE 5014-3.01 PLEADINGS ALLOWED.Pleadings shall include all forms of petitions, requests, complaints, answers, responses, replies, proposals, notices, applications, briefs, and filings of any nature that are placed before the Commissioner.
RULE 5014-3.02FORM.The form to be followed in the filing of pleadings pursuant to these Rules will vary to the extent necessary to provide for the nature of the legal rights, duties, or privileges involved therein. Except as otherwise provided by law or the Commissioner otherwise determines, the pleadings shall include the following:
(a) A statement setting forth clearly and concisely the authorization or other relief sought, as well as: (1) The exact legal name of each person seeking authorization or relief and the address or principal place of business for each such person, unless the pleading is filed by the Department. If any applicant, petitioner, respondent, or movant is a corporation, limited liability company, partnership, trust, association, or other organized group, it shall also specify the state under which it was created or organized;(2) The name, title, address, and telephone number of the attorney to whom the correspondence or communication in regard to the pleading is to be addressed. Notices, orders, and other papers may be served upon the person so named and such service shall be deemed to be service on the petitioner, respondent, or applicant;(3) A concise and explicit statement of the facts on which the Commissioner is expected to rely in granting the authorization or other relief sought; and(4) An explanation of any unusual circumstances involved in the pleading to which the Commissioner will be expected to direct particular attention, including the existence of emergency conditions or any request for the granting of interlocutory relief by way of an interim order during the pendency of the pleading.(b) Any exhibits, sworn written testimony, data, models, illustrations, or other materials that the applicant, petitioner, respondent, or movant deems necessary or desirable to support the granting of the pleading or that any statute or regulation may require for the lawful determination of the pleading.(c) All documents, whenever practicable, shall be printed, typewritten, or reproduced on one side of the paper only, and double-spaced with a normal margin on all four sides. All pleadings shall be on paper 8 1/2 by 11 inches in size.(d) The venue as "Before the Arkansas Securities Commissioner," the title of the proceedings, the case number assigned, and an appropriate designation of the pleading. RULE 5014-3.03MOTIONS.(a) All requests for relief will be by motion. Motions must be in writing or orally if made on the record during a hearing, unless the Commissioner directs that such motion be reduced to writing.(b) A motion must fully state the relief sought and the grounds relied upon. It may be accompanied by a proposed order. Written memoranda, briefs, affidavits or other relevant materials or documents may be filed in support of or in opposition to a motion.(c) The original written motion will be filed with the Commissioner. There shall be an original and two copies of each pleading and each exhibit.(d) A response to a motion must be filed by a party within ten days of the date of service of a written motion. This time may be extended as permitted by the Commissioner for good cause shown.(e) No oral arguments may be held on written motions except as otherwise directed by the Commissioner.(f) The Commissioner shall not rule on any oral or written motion before each party has had an opportunity to respond. The failure of a party to oppose a motion is deemed consent by that party to the entry of an order granting the relief sought.(g) The Commissioner or his designee as hearing officer may conduct such proceedings and enter such orders as are deemed necessary to address issues raised by the motion. However, a hearing officer, other than the Commissioner, will not enter a dispositive order unless expressly authorized in writing to do so.(h) Upon written request from a Respondent made no less than ten days prior to a scheduled hearing, the following information shall be provided:(1) The names and addresses of persons whom the Staff intends to call as witnesses at any hearing;(2) Any written or recorded statements and the substance of any oral statements made by the license holder, or a copy of the same;(3) Any reports or statements of experts made in connection with the particular case, including results of physical or mental examinations, scientific tests, experiments, or comparisons, or copies of the same;(4) Any books, papers, documents, photographs, or tangible objects which the Staff intends to use in any hearing or which were obtained from or belong to the license holder, or copies of the same;(5) Disclosure shall not be required of research or records, correspondence, reports, or memoranda to the extent that they contain the opinions, theories, or conclusions of the Staff or members of the legal Staff or other state agents of the Staff. Briefs may be filed by a party or interested non-party either before or during the course of a hearing or within such time as the Commissioner designates. Failure to file a brief shall in no way prejudice the rights of any party. The order of filing briefs or reply briefs shall be designated by Commissioner. A party may request an extension of the briefing schedule set by the Commissioner prior to the due date. Late briefs may be considered by the Commissioner at his discretion.
RULE 5014-3.05COMPUTATIONS OF TIME.In computing any period of time prescribed or allowed by the Act or these rules, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday, or a legally declared state holiday. When the period of time prescribed or allowed is less than ten days, intermediate Saturdays, Sundays, and legally declared state holidays shall be excluded in the computation.
RULE 5014-3.06EXTENSIONS OF TIME.(a) Except as otherwise provided by law, the Commissioner may, for good cause shown, extend any time limit prescribed or allowed by the Act, these Rules, or by any notice or order issued in a contested case, hearing, or other proceeding.(b) In determining whether to grant an extension of time, the Commissioner may consider: (1) Prior continuances or extensions of time;(2) The interests of all parties;(3) The likelihood of informal settlements;(4) The existence of an emergency;(6) Any applicable time requirement;(7) The existence of a conflict of the schedules of attorneys, parties, or witnesses;(8) The time limits of the request; and(9) Other relevant factors.(c) Any party may request an extension of time via a motion. The Commissioner may grant an extension of time once notice and opportunity to respond is afforded to all parties. The Commissioner may grant extensions of time on his own motion.(d) Requests for extensions of time, other than motions for continuances, must be made as soon as practicable and, except in cases of emergencies, no later than five days prior to the date noticed for the hearing. The Commissioner may require documentation of any grounds for extensions. RULE 5014-3.07EFFECT OF FILING.The filing with the Commissioner of any pleadings, requests for no action or interpretive opinions, or any other document shall not relieve any person of the obligation to comply with any statute, rule, or order of the Commissioner. Acceptance of such filing by the Commissioner shall not constitute a waiver of any failure to comply with the Act or these Rules. Where appropriate, the Commissioner may require the amendment of any filing.
RULE 5014-3.08 FILING AND SERVICE.(a) Any pleading filed by the Staff or notice of hearing summary order issued by the Commissioner for the purpose of commencing a proceeding shall be served on each respondent by personal service, registered or certified mail, or any express delivery service which provides a written confirmation of delivery.(b) Following the date of commencement of a proceeding, all pleadings may be filed with the Commissioner via United States Mail or hand- delivery.(c) Pleading filed with the Commissioner shall reflect the parties upon whom the pleading was served.(d) A copy of every pleading filed with the Commissioner by a party shall be served upon the attorney of record for every other party and upon any person appearing pro se.(e) Written interrogatories, requests for production, and other discovery requests shall not be filed with the Commissioner, but shall be served by the party making the discovery request upon the attorney of record for every other party and upon any person appearing pro se. RULE 5014-3.09SUBMISSION OF INFORMATION.Any information filed or submitted to the Department in connection with an application or otherwise given voluntarily to the Department may, where competent and relevant, be used in any criminal prosecutions under the Act or other laws of the State of Arkansas or other jurisdiction.
RULE 5014-4HEARING PROCEDURES.RULE 5014-4.01 NOTICE OF HEARINGS.(a) A notice of hearing shall be served upon each party. This may be by hand delivery or United States Mail within a reasonable amount of time prior to the hearing. For purposes of this Rule, service of a notice of hearing by the Commissioner upon any licensee may be by United States Mail to the business address of the licensee.(b) The notice of hearing will include: (1) A statement of the time, place, and nature of the hearing;(2) A statement of the legal authority and jurisdiction under which the hearing is to be held;(3) The name(s) of the respondents; and(4) A short and plain statement of the matters of fact and law asserted.(c) The Commissioner may in his discretion amend the notice of hearing at any stage of a proceeding provided that the parties are provided reasonable notice of the amendment and allowed sufficient time to prepare their case in light of the amendment. RULE 5014-4.02RIGHTS OF WITNESSES.Any person who appears and testifies in a deposition, under oath, or in a contested case may be accompanied, represented, and advised by an attorney. The right to be accompanied, represented, and advised by an attorney means the right of a person testifying to have an attorney present at all times while testifying and to have an attorney:
(a) Advise the person before and after conclusion of the testimony;(b) Question the person briefly at the conclusion of testimony to clarify any of the answers given; and(c) Make summary notes during the testimony solely for the use of the person. RULE 5014-4.03 NOTICE TO INTERESTED PARTIES.If it appears that the determination of the rights of parties in a proceeding will necessarily involve a determination of the substantial interests of persons who are not parties, the Commissioner may enter an order requiring that an absent person be notified of the proceeding and be given an opportunity to be joined as a party of record.
RULE 5014-4.04SUBPOENAS.(a) At the request of any party, the Commissioner shall issue subpoenas for the attendance of witnesses at a hearing. The requesting party shall specify whether the witness is also requested to bring documents and reasonably identify said documents.(b) A subpoena for appearance may be served via certified mail or by personal service by any person specified by law to serve process or by any person who is not a party and who is eighteen years of age or older. Delivering a copy to the person named in the subpoena shall make service. Proof of service may be made by affidavit of the person making service. The party seeking the subpoena shall have the burden of obtaining service of the process and shall be charged with the responsibility of tendering appropriate mileage fees and witness fees pursuant to Rule 45, Arkansas Rules of Civil Procedure. The witness must be served a reasonable time prior to the hearing.(c) Any motion to quash or limit the subpoena shall be filed with the Commissioner and shall state the grounds relied upon. RULE 5014 -4.05 HEARING LOCATION.Unless the Commissioner designates a different location, all hearings shall be held at the offices of the Department.
RULE 5014 -4.06CONSOLIDATION AND SEVERANCE.(a) The Commissioner may, for good cause, upon the Commissioner's own motion or upon motion by a party, consolidate separate matters that involve related questions of law or fact, or identical parties if it appears that consolidation would promote a just, speedy, and inexpensive resolution of the proceedings, and would not unduly prejudice the rights of a party.(b) The Commissioner may, for good cause, upon the Commissioner's own motion or upon motion by a party, sever the proceeding for separate resolution of the matter as to any party or issue. In determining whether to sever the proceeding, the Commissioner shall consider whether any undue prejudice or injustice would result from not severing the proceeding outweighs the interests of judicial economy and expeditiousness in the complete and final resolution of the proceeding. RULE 5014 -4.07 CONDUCT OF HEARING.(a) The Commissioner presides at the hearing and may rule on motions, require briefs, and issue such orders as will ensure the orderly conduct of the proceedings; provided, however, any hearing officer other than the Commissioner shall not enter a dispositive order or proposed decision unless expressly authorized in writing to do so.(b) All objections must be made in a timely manner and stated on the record.(c) Parties have the right to participate or to be represented by an attorney in hearings or prehearing conferences related to their case.(d) Subject to the terms and conditions prescribed by the APA, parties have the right to introduce evidence on issues of material fact, cross-examine witnesses as necessary for a full and true disclosure of the facts, present evidence in rebuttal, engage in oral argument, and, upon request, may submit briefs.(e) The Commissioner is charged with maintaining the decorum of the hearing and may refuse to admit, or may expel, anyone whose conduct is disorderly. RULE 5014-4.08ORDER OF PROCEEDINGS.The Commissioner will conduct the hearing in the following manner:
(a) The Commissioner will give an opening statement, briefly describing the nature of the proceedings.(b) The parties are to be given the opportunity to present opening statements.(c) The parties will be allowed to present their cases in the sequence determined by the presiding officer.(d) Each witness must be sworn or affirmed by the Commissioner, or the court reporter, and be subject to examination and cross-examination as well as questioning by the Commissioner. The Commissioner may limit questioning in a manner consistent with the law.(e) When all parties and witnesses have been heard, parties may be given the opportunity to present final arguments.(f) The Commissioner may, at any time prior to the rendering of a final decision, reopen the hearing upon the motion of the Commissioner or any party for good cause shown. The parties shall be notified of the reopening and the hearing shall be convened not less than ten days after the sending of such notice unless waived by the parties and the Staff. RULE 5014-4.09 FAILURE TO REQUEST OR APPEAR AT A HEARING.(a) When a party fails to request a hearing within the time specified in the cease and desist order or other administrative order, the allegations against the party may be deemed admitted.(b) If a party fails to appear or participate in an administrative adjudication after proper service of notice, the Staff may proceed with the hearing and the Commissioner may render a decision in the absence of the party. The allegations against the party may be deemed admitted. Without further proceedings or notice to the party, the Commissioner shall issue a final decision. The Commissioner may, if deemed necessary, receive evidence from the Staff, as part of the record, concerning the appropriateness of the amount of any civil penalty sought in the request. RULE 5014-4.10APPEARANCE, PRACTICE, AND WITHDRAWAL BEFORE THE COMMISSIONER.(a) Any party appearing in any proceeding has the right, at the party's own expense, to be represented by an attorney. The attorney must be duly admitted to practice law in the State of Arkansas and in good standing with the bar of the State of Arkansas. The Commissioner, at his discretion, may require any attorney who desires to represent a person before the Commissioner to first file with the Commissioner a written declaration that he is currently qualified and is authorized to represent the particular party in whose behalf he acts. Attorneys in good standing from other jurisdictions may request and, for good cause shown, be allowed to appear in a contested case, provided an attorney admitted to practice in Arkansas is present during the entire proceeding, signs all pleadings and other papers filed in the proceeding and agrees to take full responsibility for supervising the conduct of the attorney.(b) Any party may appear on his or her own behalf in a contested case. Other duly authorized individuals include a partner, member, or manager of a partnership or limited liability company may appear and represent the partnership or limited liability company; and a duly authorized officer, director, or employee of any agency, institution, corporation, or authority may appear and represent the agency, institution, corporation, or authority.(c) Any party acting pro se shall so notify the Commissioner in writing. The notice of appearance shall include accurate contact information.(d) Service on the attorney of record is the equivalent of service on the party represented.(e) After a notice of appearance is filed by a party or attorney, copies of all subsequent pleadings shall be provided to the person named in the notice of appearance and the person designated to represent the Staff. RULE 5014-4.11RECORDING THE PROCEEDING AND TRANSCRIPT CORRECTIONS.(a) The responsibility to record the testimony heard at a hearing is borne by the Department. Any party may request a copy of the transcript from the court reporter and such copy shall be made available to any party upon payment of the cost of the transcript.(b) The Commissioner shall have the authority to order the transcript corrected upon a motion to correct, upon stipulation of the parties, or upon the Commissioner's own motion following notice to the parties. The Commissioner may call for the submission of proposed corrections and may order the corrections at appropriate times during the course of the proceedings. Corrections in the official transcript may be made only to make it conform to the evidence presented at the hearing. Transcript corrections may be incorporated into the record at any time during the hearing or after the close of evidence, but not more than thirty days from the date of receipt of the transcript by the Commissioner. RULE 5014-4.12EVIDENCE.(a) The Commissioner shall rule on the admissibility of evidence and may, when appropriate, take official notice of facts and generally recognized technical or scientific facts.(b) Stipulation of facts is encouraged. Parties may stipulate as to relevant matters of fact or the authentication of relevant documents that may be entered as evidence at the commencement of or during the hearing. The Commissioner may make a decision based on stipulated facts.(c) A party seeking admission of an exhibit must provide four copies of each exhibit at the hearing. The Commissioner must provide the opposing parties with an opportunity to examine the exhibit prior to the ruling on its admissibility. All exhibits admitted into evidence must be appropriately marked and be made part of the record.(d) Formal exceptions to rulings on evidence and procedure are unnecessary. It is sufficient that a party, at the time an evidentiary ruling is sought, makes known to the Commissioner the objections to such action and the grounds for such objection. The objection, the ruling on the objection, and the reasons for the ruling will be noted in the record. Failure to object to the admission of evidence or any ruling constitutes a waiver of the objection. The Commissioner may rule on the objection at the time it is made or may reserve the ruling until the written decision.(e) Whenever evidence is ruled inadmissible, the party offering that evidence may submit an offer of proof on the record. The party making the offer of proof for excluded or rejected oral testimony will briefly provide a summarized statement of the testimony. If the excluded evidence consists of a document, record, or written form, a copy of such evidence shall be marked as part of an offer of proof and inserted in the record.(f) Irrelevant, immaterial, and unduly repetitive evidence will be excluded. Any other oral or documentary evidence, not privileged, may be received if it is of a type commonly relied upon by reasonably prudent people in the conduct of their affairs.(g) The Commissioner may base the finding of facts upon reasonable inferences derived from evidence received. During the hearing the finder of fact shall have the authority to employ the Staff's experience, technical competence, and specialized knowledge in evaluating the evidence presented at the hearing for the purpose of making findings of fact and arriving at a decision in any contested case.(h) At any stage of the hearing, the Commissioner may call for further evidence upon any issue and require that such evidence be produced by the relevant party, or may authorize any party to file specific documentary evidence as part of the record, either at the hearing or within a specified time, provided every party shall be afforded a reasonable opportunity to review and rebut or object to such evidence. RULE 5014-4.13ORDERS.(a) All decisions and orders of the Commissioner concluding a proceeding shall be in writing and served on all parties.(1) The order will include a recitation of facts found based on testimony, other evidence presented, and reasonable inferences derived from the evidence pertinent to the issues of the case. It will also state conclusions of law and directives or other disposition entered against or in favor of the respondent.(2) The order will be served personally or by mail on the parties. If respondent is represented by an attorney, service of the order on respondent's attorney shall be deemed service on the respondent.(b) Summary Order. In addition to the procedures set forth in Rule 5014-2.02, Rule 5014-4.01, Rule 5014-4.10, and 5014-4.14(a) the Commissioner may issue a summary order: (1) Whether a person is an applicant, licensee, or other person, to cease and desist from an act or practice or apply directly to a court of competent jurisdiction for such relief as the Commissioner deems appropriate pursuant to Sections 23-39-514(d) and 23-39-514(l) of the Act: (A) If it is in the public interest; and(B) The Commissioner deems it necessary.(2) To postpone the approval of a license for an applicant or suspend the license of a licensee, if the Staff learns that an applicant or licensee has failed to comply with the Act or Rules.(A) If such a summary order is entered, the Commissioner must promptly notify the applicant or licensee (as well as the employer or prospective employer, if applicable). Notification or service shall by United States Mail.(B) The summary order remains in effect pending final determination of a proceeding to deny or revoke the application as a result of a hearing.(C) The date for a hearing on a summary order shall be set no more than fifteen days after receipt of a written request to hold such a hearing; if no hearing is requested, the summary order will remain in effect until modified or vacated by the Commissioner.(D) A summary order entered prior to a hearing can be used to postpone or suspend applications or license. Revocation can occur only after the filing of a pleading and notice of hearing.(c) Amended Orders. All orders may be vacated or modified if conditions change or it is otherwise in the public interest to do so. Such modifications will be evidenced by an Amended Order.(d) Nothing shall prohibit or restrict informal disposition of a pleading or order by stipulation, settlement, consent, or default in lieu of a formal or informal hearing on the matter or in lieu of sanctions imposed. An order shall be entered if administrative proceedings have been instituted or a pleading has been filed. All orders shall be public. RULE 5014-4.14RIGHT TO APPEAL.A person who is aggrieved by the final decision of the Commissioner may seek judicial review of the decision in accordance with the provisions of Section 23-39-515 of the Act.