N.Y. Comp. Codes R. & Regs. tit. 18 § 729.22

Current through Register Vol. 46, No. 45, November 2, 2024

Section 729.22 - Hearings

(a) Any licensee dissatisfied with any action, taken by the commission regarding the Business Enterprise Program, may request a hearing to be held pursuant to this Part. The hearing must be requested within 60 days of the action taken by the commission. The request must specify the action taken with which the licensee is dissatisfied, and identify any notice the licensee may have received from the commission.

(b) Notice of hearing.

(1) For a hearing held to review an action by the commission, the notice must specify the date, time and place of the hearing, the manner in which the hearing will be conducted, and the action taken by the commission that is challenged.

(2) The notice of hearing sent pursuant to this paragraph must be delivered in person or by mail at least 14 days before the date of the hearing. The notice must be sent:

(i) to the blind licensee at the licensee's last known address in his or her preferred format; and

(ii) to the commission.

(3) The notice of hearing sent pursuant to paragraph (1) of this subdivision also must inform the blind licensee:

(i) of his or her right upon written notice to the commission to examine the record and any documents to be offered into evidence prior to the hearing;

(ii) of his or her opportunity to present evidence and arguments on issues of fact and law at the hearing;

(iii) of his or her right to be represented by an attorney or other representative of his or her choice;

(iv) of his or her right to cross-examine witnesses and to examine any document or item offered into evidence;

(v) that all witnesses will be sworn;

(vi) that the hearing will be recorded verbatim; and

(vii) of the action(s) challenged and issue(s) to be decided at the hearing.

(c) Who may be present at a hearing; authorization of representative.

(1) The blind licensee, his or her representative or representatives, counsel or other representatives of the commission, witnesses for both parties and any person who may be called by the hearing officer may be present at the hearing, together with such other persons as may be admitted by the hearing officer in his or her discretion. Upon his or her own motion, or upon the motion of either party, where the same will assist in the orderly and fair conduct of the hearing, the hearing officer may exclude from the hearing during the testimony of a witness, potential witnesses and those who have testified previously.

(2) An individual, other than an attorney, representing the licensee must have an appropriate written authorization for representation signed by the licensee.

(d) Hearing officer. The hearing will be conducted by an individual who is employed by the Office of Children and Family Services for that purpose and who has not been involved in any way with the subject matter of the hearing. The hearing officer will have all the powers conferred by law and regulation to administer oaths, issue subpoenas, require the production of records and the attendance of witnesses, rule upon requests for adjournment, rule upon objections to the introduction of evidence, and to otherwise regulate the hearing, preserve requirements of due process and effectuate the purposes and provisions of applicable law.

(e) A party to a hearing may make a request to a hearing officer that the hearing officer remove him or herself from presiding at the hearing.

(1) The grounds for removing a hearing officer are that the hearing officer has:

(i) previously dealt in any way with the substance of the matter which is the subject of the hearing except in the capacity of hearing officer;

(ii) an interest in the matter, financial or otherwise, direct or indirect, which will impair the independent judgment of the hearing officer; or

(iii) displayed bias or partiality to any party to the hearing.

(2) The hearing officer may independently determine to remove him or herself from presiding at a hearing on the grounds set forth in paragraph (1) of this subdivision.

(3) The request for removal made by a party must:

(i) be made in good faith;

(ii) be made at the hearing in writing or orally on the record; and

(iii) describe in detail the ground(s) for requesting that the hearing officer be removed.

(4) Upon receipt of a request for removal, the hearing officer must determine on the record whether to remove him or herself from the hearing.

(5) If the hearing officer determines not to remove him or herself from presiding at the hearing, the hearing officer must advise the party requesting removal that the hearing will continue but the request for removal will automatically be reviewed by the commissioner's general counsel or the general counsel's designee.

(6) The determination of the hearing officer not to remove him or herself will be reviewed by the general counsel or the general counsel's designee. Such review will include review of written documents submitted by the parties and the transcript of the hearing.

(7) The general counsel or the general counsel's designee must issue a written determination of whether the hearing officer should be removed from presiding at the hearing within 15 business days of the close of the hearing.

(8) The written determination of the general counsel or the general counsel's designee will be made part of the record.

(f) Conduct of hearing; rights of parties.

(1) The hearing officer will preside and will make all procedural rulings. He or she will make an opening statement describing the nature of the proceeding, the issues and the manner in which the hearing will be conducted.

(2) The rules of evidence as applied in a court of law will not apply, except that privileges recognized by law will be given effect. The hearing officer may exclude testimony or other evidence, which is irrelevant or unduly repetitious.

(3) All testimony will be given under oath or affirmation.

(4) The licensee may be represented by an attorney or other representative of his or her choice, have witnesses give testimony and otherwise present relevant and material evidence on the licensee's behalf, cross-examine witnesses and examine any document or item offered into evidence. The commission will reimburse the licensee for the reasonable cost of his or her transportation to the hearing. All other expenses, including but not limited to attorney's fees, transportation expenses for the attorney, representative or witnesses, and all lodging and incidental expenses are the sole responsibility of the licensee.

(5) The burden of proof at a hearing regarding the denial or revocation of a license, or the placement of a licensee on probation is on the commission to prove that a licensee has failed to adhere to any of the requirements of this Part. The burden of proof for any affirmative defenses is on the licensee.

(g) The hearing will be recorded verbatim by either the Office of Children and Family Services or a private contractor. Where the hearing is recorded by other than a private contractor as a result of a request made by any party to a hearing, the Office of Children and Family Services will prepare the record, together with any transcript of the proceedings, and will furnish a copy of the record and transcript, or any part thereof, to any party as requested. The Office of Children and Family Services is authorized to charge not more than its costs for the preparation of the transcript. Where a private contractor records the hearing, the party requesting a transcript must make all arrangements for obtaining the transcript directly with the private contractor.

(h) The hearing may be adjourned or its location changed by the hearing officer on his or her own motion or at the request of either party only for good cause including, but not limited, to the unavailability of a party or witness, serious illness of a party or witness, settlement negotiations or other circumstances requiring an adjournment.

(i) The record.

(1) The record will include:

(i) the notice of hearing and any intermediate rulings;

(ii) the transcript or recording of the hearing;

(iii) exhibits received into evidence;

(iv) matters officially noticed;

(v) questions and offers of proof, objections thereto and rulings thereon;

(vi) proposed findings and exceptions, if any; and

(vii) any report rendered by the hearing officer.

(2) After the hearing has been concluded, the hearing officer will submit a report containing findings of fact, conclusions of law and a recommended decision. Findings of fact will be based exclusively on the record of the hearing.

(j) Examination of the record after a hearing. Upon reasonable notice, the record of the hearing may be examined by any party to the hearing at the offices of the Office of Children and Family Services during regular business hours.

(k) Decision after a hearing.

(1) The hearing decision will be made and issued by the commissioner or by a member of his or her staff designated by him or her to consider and make such decisions and must be based exclusively on the record of the hearing. The decision will be in writing and will describe the issues, recite the relevant facts and pertinent provisions of law and applicable regulations, make appropriate findings, determine the issues, state reasons for the determinations and, when appropriate, direct specific action by the commission and/or the licensee.

(2) A copy of such decision will be mailed to the licensee and to the licensee's attorney or other designated hearing representative.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 729.22