Md. Code Regs. 10.26.04.07

Current through Register Vol. 51, No. 12, June 14, 2024

Section 10.26.04.07 - Summary Suspension of a License

A. Under State Government Article, § 10-226(c)(2), Annotated Code of Maryland, the Board may order the summary suspension of a license if it determines that there is a substantial likelihood that a licensee poses a risk of harm to the public health, safety, or welfare.

B. Notice of Intent to Summarily Suspend.

(1) Based on information gathered in an investigation or otherwise provided to the Board, the Board may vote to issue:

(a) A notice of an intent to summarily suspend a license; or

(b) An order of summary suspension.

(2) If the Board votes to issue a notice of an intent to summarily suspend a license or an order of summary suspension, it shall refer the matter to the administrative prosecutor for prosecution.

(3) A notice of intent to summarily suspend a license shall include, but is not limited to:

(a) A proposed order of summary suspension which is unexecuted by the Board and which includes:

(i) The statutory authority on which the action has been taken;

(ii) Allegations of fact which the Board believes demonstrate a substantial likelihood that the licensee poses a risk of harm to the public health, safety, or welfare; and

(iii) Notice to the respondent of the right to request a full hearing on the merits of the summary suspension if the Board executes the proposed order of summary suspension; and

(b) An order or summons to appear before the Board to show cause why the Board should not execute the order of summary suspension and which notifies the respondent of the consequences of failing to appear.

(4) Service.

(a) The Board shall serve a respondent with a notice of intent to summarily suspend a license not later than 5 days before a predeprivation show cause hearing is scheduled before the Board.

(b) Service of the notice of intent to summarily suspend shall be made:

(i) Personally upon the respondent;

(ii) By certified mail to the address the respondent is required to maintain with the Board; or

(iii) By any other reasonable means to effect service.

(c) If the Board is unable to serve the notice of intent to summarily suspend a license upon the respondent as described in §B(4)(a) and (b) of this regulation, the Board may nevertheless proceed in prosecuting the case.

C. Predeprivation Opportunity To Be Heard.

(1) If the Board issues a notice of intent to summarily suspend a license, the Board shall offer the respondent the opportunity to appear before the Board to show cause why the respondent's license should not be suspended before it executes the order of summary suspension.

(2) A Predeprivation Show Cause Hearing before the Board.

(a) The hearing shall be a nonevidentiary hearing to provide the parties with an opportunity for oral argument on the proposed summary suspension.

(b) The Board member presiding over the hearing shall determine all procedural issues and may impose reasonable time limits on each party's oral argument.

(c) The presiding Board member shall make any rulings reasonably necessary to facilitate the effective and efficient operation of the hearing.

(d) The respondent and the administrative prosecutor shall each be limited to 30 minutes in which to present oral argument.

(e) The respondent shall proceed first and may reserve part of the allotted time for rebuttal.

(3) The Board member who presides over the hearing:

(a) May allow either the respondent or the administrative prosecutor to present documents or exhibits which are relevant and material to the proceedings and which are not unduly repetitious when the presiding Board member believes that the documents or exhibits are necessary in order for a fair hearing; and

(b) May not allow testimony by any witness unless agreed to by the parties and approved by the Board in advance of the hearing.

(4) The members of the Board may be recognized by the presiding member to ask questions of either party appearing before the Board.

D. Summary Suspension of a License without Prior Notice or an Opportunity To Be Heard.

(1) In extraordinary circumstances, the Board may, after consultation with Board counsel, order the summary suspension of a license without first issuing a notice of intent to summarily suspend the license or providing a respondent with an opportunity for a predeprivation hearing if:

(a) The Board determines that the public health, safety, or welfare requires the immediate suspension of the license and that prior notice and an opportunity to be heard is not feasible;

(b) The order of summary suspension is served upon the respondent within 24 hours after its execution; and

(c) The respondent is provided with an opportunity for a hearing before the Board within 15 days after the effective date of the summary suspension.

(2) If the respondent requests a hearing under §D(1)(c) of this regulation, the hearing shall be conducted before the Board as provided in §C(2) of this regulation and shall provide the respondent with an opportunity to show cause why the Board should lift the summary suspension and reinstate the license.

E. Burdens of Production and Persuasion.

(1) In a show cause proceeding under §C of this regulation, the respondent may present argument in opposition to the allegations presented in the order for summary suspension or which otherwise demonstrates that the public health, safety, or welfare is not at risk.

(2) The administrative prosecutor bears the burden of demonstrating by a preponderance of the evidence that the public health, safety, or welfare imperatively requires the Board to summarily suspend the respondent's license.

F. Disposition.

(1) If the Board issues a notice of intent to summarily suspend a license before summarily suspending a license, the Board may, after the show cause hearing, vote to:

(a) Order a summary suspension;

(b) Deny the summary suspension;

(c) Enter into an order agreed upon by the parties; or

(d) Enter into any interim order warranted by the circumstances of the case, including one providing for a stay of the summary suspension subject to certain conditions.

(2) If the Board orders a summary suspension before a show cause hearing, it may, at the conclusion of the hearing, vote to:

(a) Affirm its order of summary suspension;

(b) Rescind the order for summary suspension;

(c) Enter into an order agreed upon by the parties; or

(d) Enter into any interim order warranted by the circumstances of the case, including one providing for a stay of the summary suspension subject to certain conditions.

(3) An order for summary suspension or any other order of the Board issued after the initiation of summary suspension proceedings are final orders of the Board and public records under State Government Article, § 10-611, Annotated Code of Maryland.

G. Post-Deprivation Opportunity for an Evidentiary Hearing.

(1) If the Board orders the summary suspension of a license under §C or D of this regulation, the respondent may have an evidentiary hearing before the Board or before an administrative law judge, if the Board delegates the matter to the Office of Administrative Hearings.

(2) The respondent may request an evidentiary hearing within 10 days after the Board issues the order of summary suspension.

(3) Unless otherwise agreed by the parties, a hearing shall be provided within 45 days after respondent's request.

(4) An evidentiary hearing may be consolidated with a hearing on charges issued by the Board which include the facts which form the basis for the summary suspension.

(5) An evidentiary hearing shall be conducted under the contested case provisions of State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

(6) If the Board has delegated the matter to the Office of Administrative Hearings, the administrative law judge shall issue to the Board a recommended decision with:

(a) Proposed or final findings of fact;

(b) Proposed or final conclusions of law;

(c) A proposed disposition; or

(d) Any combination of §G(6)(a)-(c) of this regulation under the Board's delegation of the matter to the Office of Administrative Hearings.

(7) If the hearing is one combined with charges, the administrative law judge's determination as to the merits of the summary suspension shall be based only on those parts of the record that were available to the Board at the time it voted for the summary suspension.

(8) The parties may file exceptions to the recommended decision as provided in State Government Article, § 10-216, Annotated Code of Maryland.

(9) An order issued by the Board after a post-deprivation evidentiary hearing is a final order of the Board and is a public record under State Government Article, § 10-611, Annotated Code of Maryland.

Md. Code Regs. 10.26.04.07