N.M. Admin. Code § 20.10.2.19

Current through Register Vol. 36, No. 1, January 14, 2025

Section 20.10.2.19 - APPEAL HEARINGS

A. A permit holder may request an appeal hearing to address concerns about the regulatory authority's denial of an application for permit, suspension or revocation of a permit, or an enforcement action taken by the regulatory authority. A hearing request does not stay the regulatory authority's immediate suspension as specified in Subsection A of 20.10.2.18 NMAC.

B. The permit holder shall submit a written hearing request to the secretary within 10 calendar days from the date of receipt of the denial of an application for permit, permit suspension, permit revocation, or enforcement action.

C. The written request for hearing as specified in Subsection B of this section shall contain the following information:

(1) A statement of the issue of fact for which the hearing is requested;

(2) A statement of defense, mitigation, denial, or explanation concerning each allegation of fact;

(3) A statement indicating whether witnesses will be utilized during the hearing; and

(4) The name and address of the respondent's or requestor's legal counsel, if any.

D. If the regulatory authority receives a hearing request within the required timeframe, the regulatory authority shall issue a notice of hearing. The secretary may designate a person to conduct the hearing and make a final decision or make recommendations for a final decision. The secretary's hearing notice shall indicate who will conduct the hearing and make the final decision.

E. A notice of hearing shall contain the following information:

(1) Time, date and place of the hearing;

(2) Purpose of the hearing;

(3) The rights of the respondent, including the right to be represented by counsel and to present witnesses and evidence on the respondent's behalf as specified in Subsection M of this section; and

(4) The consequences of failing to appear at the hearing.

F. In the appeal hearing, the burden of proof is on the person who requested the hearing.

G. A complete digital recording of a hearing shall be made and maintained as part of the regulatory authority's records.

H. The rules of civil procedure and the rules of evidence shall not apply, but a hearing shall be conducted so that all relevant views, arguments, and testimony are amply and fairly presented.

I. Parties to a hearing may be represented by counsel, examine and cross examine witnesses, and present evidence in support of their position.

J. The regulatory authority shall present at the hearing its evidence, orders, directives, and reports related to the proposed or appealed administrative remedy.

K. Evidence shall be excluded that is irrelevant, immaterial, unduly repetitious, or excludable on constitutional or statutory grounds, or on the basis of evidentiary privilege.

L. Testimony of parties and witnesses shall be made under oath or affirmation administered by a duly authorized official.

M. Written evidence may be received if it will expedite the hearing without substantial prejudice to a party's interests.

N. Documentary evidence may be received in the form of a copy or excerpt.

O. At the end of the hearing, the secretary shall decide and announce if the hearing record will remain open and for how long and for what reason it will be left open. Based upon the evidence presented at the hearing, the secretary shall sustain, modify, or reverse the action of the regulatory authority. The secretary's decision shall be by written order within 15 working days following the close of the hearing record. The decision shall state the reasons therefore and shall be sent by certified mail to the hearing requestor and any other affected person who requests notice. Appeals from the secretary's final decision are by Rule 1-075 NMRA.

P. The regulatory authority may settle a case after a notice of hearing is served by providing a respondent with an opportunity to request a settlement before a hearing commences on the matter and by entering into a consent agreement with the respondent.

Q. Respondents accepting a consent agreement pursuant to Subsection P of this section waive their right to a hearing on the matter.

R. Failure by the permit holder to appear at the hearing shall result in the secretary upholding the regulatory authority's initial decision which led to the permit holder's hearing request.

N.M. Admin. Code § 20.10.2.19

Adopted by New Mexico Register, Volume XXX, Issue 15, August 13, 2019, eff. 8/1/2019, Amended by New Mexico Register, Volume XXXI, Issue 02, January 28, 2020, eff. 1/28/2020