N.M. Admin. Code § 20.11.80.15

Current through Register Vol. 35, No. 20, October 22, 2024

Section 20.11.80.15 - HEARING PROCEDURES

A. Evidence:

(1) General: The hearing officer shall admit all evidence, unless the hearing officer determines that the evidence is irrelevant, immaterial, unduly repetitious or otherwise unreliable or of little probative value. Evidence relating to settlement that could be excluded in the courts under Rule 11-408 NMRA is not admissible.

(2) Examination of witnesses: Witnesses shall be examined orally, under oath or affirmation, except as otherwise provided in 20.11.80 NMAC, and may be examined by the hearing officer. In addition to the hearing officer, only parties shall have the right to cross-examine a witness. The hearing officer may limit cross-examination that is unduly repetitious, harassing or beyond the scope of the direct testimony of the witness.

(3) Exhibits: All exhibits in evidence shall be marked with a designation identifying the party by whom the exhibit is offered and shall be numbered serially in the sequence in which the exhibits are expected to be offered. Large charts and diagrams, models and other bulky exhibits are discouraged. Exhibits should be limited to 8 1/2 x 11 inches or be capable of being folded to that size, unless otherwise necessary for adequate presentation of evidence.

(4) Official notice: Official notice may be taken of any matter that may be judicially noticed in the New Mexico courts.

B. Objections and offers of proof:

(1) Objection: An objection concerning the conduct of the hearing may be stated orally or in writing during the hearing. The party raising the objection must supply a short statement of the grounds for the objection. The ruling by the hearing officer regarding an objection and the reasons given by the hearing officer for the ruling shall be part of the record.

(2) Offer of proof: Whenever evidence is excluded from the record, the party offering the evidence may make an offer of proof, which shall be included in the record. The offer of proof for excluded oral testimony shall consist of a brief statement describing the nature of the evidence excluded and what the evidence would have proved. The offer of proof for excluded documents or exhibits shall consist of the insertion in the record of the documents or exhibits excluded. If the director decides the ruling of the hearing officer that excluded the evidence was both erroneous and prejudicial, the hearing may be reopened to allow the taking of the excluded evidence.

C. Burden of persuasion:

(1) Compliance order: The complainant has the burden of going forward with the evidence and proving by a preponderance of the evidence that the facts relied upon to show the violation occurred and that the proposed civil penalty is appropriate. After the complainant has established a prima facie case, the respondent shall have the burden of going forward with adverse evidence or a defense to the allegations.

(2) Preponderance of evidence: Each matter of controversy shall be determined by the hearing officer upon a preponderance of the evidence.

N.M. Admin. Code § 20.11.80.15

20.11.80.15 NMAC - N, 8/15/11