19 Del. Admin. Code §§ 1329-12.0

Current through Register Vol. 27, No. 12, June 1, 2024

Section 1329-12.0 - Appeal Hearing

12.1 The Secretary of the Department of Labor may serve as hearing officer in the hearing, or may appoint a designee to serve as hearing officer. The hearing officer will rule upon all motions and questions relating to the administrative hearing.

12.2 The hearing officer is empowered to:

12.2.1 Issue subpoenas for witnesses and other sources of evidence, either on the agency's initiative or at the request of any party;

12.2.2 Administer oaths to witnesses;

12.2.3 Exclude plainly irrelevant, immaterial, insubstantial, cumulative and privileged evidence;

12.2.4 Limit unduly repetitive proof, rebuttal and cross-examination; and

12.2.5 Cause interrogatories to issue and depositions to be taken.

12.3 Status Conference and Discovery

12.3.1 At least two weeks before the scheduled administrative hearing, counsel (or the parties themselves, if pro se) shall participate in a scheduled status conference with the hearing officer.

12.3.2 Status conferences may be in person or by telephone.

12.3.3 The purposes of this conference will be to resolve any outstanding scheduling matters; to simplify factual and legal issues by stipulation; to resolve any discovery disputes or other preliminary or procedural matters; to pre-mark for identification and admission into evidence all stipulated exhibits; and to afford the parties the opportunity to discuss the admissibility or exclusion of any outstanding evidentiary issues.

12.3.4 The hearing officer will permit the parties to argue their positions and may issue a ruling either during the conference or by subsequent written decision.

12.3.5 The status conference may be waived by the written stipulation of the opposing parties. In the absence of such a stipulation, failure to participate in the status conference may result in a finding contrary to the party which fails to participate in the status conference.

12.3.6 Prior to the administrative hearing, or at any time when directed by the hearing officer, the Department of Labor will make available to the employer all documents and records relevant to its decision, unless prohibited by statute or the confidentiality rights of others, or the documents in question are protected by attorney-client or other evidentiary privilege.

12.3.7 Personal identifying information and confidential sources shall be redacted from any such disclosure.

12.3.8 The hearing officer may at any time also direct the employer to make available to the Department any appropriate documents and records requested by the Department, and any evidence the employer intends to introduce during the administrative hearing.

12.3.9 Failure to comply with this directive by the Department may result in dismissal of the alleged violation upon application of the employer to the hearing officer, who shall give the Department the opportunity to respond prior to reaching a decision upon the dismissal.

12.3.10 Failure to comply with this directive by the contractor may result in the dismissal of their appeal, and the hearing officer may then impose the penalties sought in subsection 8.1 of this regulation.

12.4 The hearing officer shall rule on requests for changing the timing, manner, or location of the hearing. Such requests shall be made to the hearing officer within a reasonable time prior to the hearing. The opposing party shall have the right to oppose such a request. In ruling on such a request, the hearing officer shall include consideration of the sufficiency of the grounds for the request, the length of time appropriate for a continuance, and the degree of prejudice, if any, to the party opposing the request.

12.5 At the administrative hearing, any party or their representative shall have the opportunity to produce witnesses and cross-examine adverse witnesses; to express all pertinent facts and circumstances through evidence, oral or written; to advance any arguments without undue interference; and to question or refute any testimony or evidence.

12.6 The burden of proving facts alleged as the basis for its decision shall be on the Department by a preponderance of the evidence. The burden of proof regarding any affirmative defenses shall be on the employer by a preponderance of the evidence.

12.7 The rules of evidence applied in civil cases by the courts of the State of Delaware shall not be strictly followed. The hearing officer may allow evidence not admissible under these rules of evidence where, in the hearing officer's judgment, application of the exclusionary rule would result in unnecessary hardship and the evidence offered is of a kind commonly relied upon by reasonably prudent persons in the conduct of their affairs. Hearsay may be admissible in administrative hearings, but may not constitute the sole basis for the hearing officer's determination upon the factual issue addressed by the hearsay evidence.

12.8 The Secretary shall exercise reasonable discretion in deciding whether to deny, suspend or revoke a certificate of registration.

12.9 The Secretary may not revoke or suspend a certificate of registration for longer than 5 years. The Secretary shall consider the following criteria to determine the length of time that a certificate of registration is denied, revoked or suspended:

12.9.1 The contractor's prior record of violations of any civil or criminal law related to the fitness of the contractor to bid on or engage in construction services or maintenance, including, but not limited to, violations of the Delaware Contractor Registration Act and Delaware's Workplace Fraud Act Delaware's Prevailing Wage Law or other associated Delaware labor laws.

12.9.2 If the contractor should reasonably have known that a subcontractor to a contract did not have a certificate of registration, had a lapsed certificate of registration, or had a certificate of registration revoked or suspended.

12.9.3 The total number of unregistered subcontractors at a work site and the size and scope of the project on which the unregistered subcontractor worked.

12.9.4 If a contractor in contract with an unregistered subcontractor obeyed the Department's directive to remove the unregistered subcontractor from the work site to cure the violation of the Delaware Contractor Registration Act.

12.10 Administrative Dismissal

12.10.1 The hearing officer may in his or her discretion administratively dismiss a complaint for any of the following reasons:

12.10.1.1 Lack of jurisdiction;

12.10.1.2 The determination on its face fails to state a violation of the Delaware Contractor Registration Act.

12.10.2 Except for the reasons provided in subsection 12.10 .1, the hearing officer may not administratively dismiss a complaint without the consent of the Office of Contractor Registration.

12.10.3 Prior to administratively dismissing a complaint, the hearing officer shall notify the Office of Contractor Registration of the reason for the proposed dismissal and shall offer the Office of Contractor Registration the opportunity to respond. If the basis for the dismissal is that the determination letter on its face fails to state a violation of the Delaware Contractor Registration Act, the Office of Contractor Registration shall be given 15 days to draft and produce a revised determination letter which adequately states a violation.

12.11 The hearing officer shall make a final determination as expeditiously as possible following the conclusion of the evidentiary hearing. Absent extenuating circumstances which shall be explained to the parties in writing, the final determination shall be issued within 30 days after the conclusion of the evidentiary hearing. The final determination shall otherwise comply with the requirements of 29 Del.C. Ch. 101, Subch. III

19 Del. Admin. Code §§ 1329-12.0

25 DE Reg. 288 (9/1/2021) (final)