Okla. Admin. Code § 595:35-1-9

Current through Vol. 42, No. 3, October 15, 2024

Section 595:35-1-9 - Hearings

(a) Any person assessed an administrative penalty pursuant to 47 O.S. §§ 230.6, 230.9, may:

(1) Remit payment in full of the assessed administrative penalty specified on the Notice of Claim, or

(2) Contact Troop S to inquire about the availability of a settlement, or

(3) Admit the finding of violation and request a hearing to challenge only the amount of the administrative penalty, or

(4) Request a hearing to challenge the finding of violation and the assessment of penalty.

(b) If the Respondent remits payment in full of the assessed administrative penalty specified on the Notice of Claim, such payment shall constitute full satisfaction of the administrative penalty, and the Department shall close the case with prejudice to the Respondent. The payment in full shall constitute a binding waiver and forfeiture of a right to hearing. If Respondent remits payment in full after having requested a hearing, the Department shall cancel any scheduled hearing and notify Respondent that the hearing has been canceled and the case has been closed.

(c) The Department has authority, in its sole discretion, to compromise, negotiate a settlement, or agree to a payment plan for any Notice of Claim.

(d) Pursuant to 47 O.S. § 2-116, the giving of notice by mail is complete upon the expiration of ten (10) days after deposit of said notice in the United States mail in an envelope with first class postage prepaid, addressed to such person at the address as shown by the records of the Department. If a Respondent elects to request a hearing, the request for hearing must be addressed to the Troop S Administrative Hearing Officer, and must be received within twenty-five (25) days of the date the Notice of Claim was mailed, which shall include the ten (10) days specified by 47 O.S. § 2-116. A hearing request may be submitted online, by mail at the address reflected on the Troop S website, or via hand delivery at the address reflected on the Troop S website. See https://www.ok.gov/ohpcmve/.

(e) The request for hearing must be submitted through the online form or in writing and must:

(1) state

(A) the name, address, phone number and email address of the Respondent.

(B) if the Respondent will be represented by an attorney, the name, address, phone number and email address of the attorney.

(C) the commercial vehicle examination report number, and

(D) the DOT Number;

(2) state whether the Respondent

(A) intends to challenge the finding of violation and the assessment of penalty, or

(B) admits the finding of violation and intends only to challenge the amount of the administrative penalty assessed.

(f) All hearings shall be conducted by a designated hearing officer (which may include the Commissioner) in compliance with 75 O.S. §§ 310, 315. Each party shall be afforded the opportunity to respond and present evidence and argument on all issues involved. Either party may make application for a continuance of the hearing. The granting or denial of such a continuance is within the reasonable discretion of the hearing officer.

(g) If a hearing is timely requested, such hearing shall be scheduled, in the discretion of the hearing officer, either at the Department for in-person hearing or for telephonic hearing. Where a telephonic hearing is designated, the procedure specifically applicable to telephonic hearings will be provided to the Respondent and the Respondent's attorney, if designated, along with a notice of hearing confirming that the hearing has been scheduled.

(1) Within fifteen (15) days, which shall include the ten (10) days specified by 47 O.S. § 2-116, after receiving notice that the hearing is being held telephonically, the Respondent must provide to the Department:

(A) the name, mailing address, and phone number of the Respondent's attorney, if the Respondent is being represented by an attorney,

(B) the name, mailing address(es), and telephone number(s) of any witness(es) who the Respondent desires to have present, and

(C) the telephone number at which the Respondent will be available.

(2) If the Respondent, the investigating officer, or a witness wishes to present exhibits or documentary evidence during the hearing, the exhibits or evidence must be received by the Department, at least ten (10) days prior to the hearing, and must be submitted in accordance with the instructions provided by Troop S in the notice of hearing.

(3) At or near the time scheduled for the hearing, the hearing officer will call all parties to the hearing at the telephone number(s) provided. If the telephone line for any of the parties is busy or a party fails to answer, the hearing officer will call again approximately three (3) minutes later.

(A) All parties will be sworn in prior to testimony.

(B) If the rule of sequestration is invoked pursuant to 12 O.S. § 2615, the appropriate witness will be disconnected from the conference call by the hearing officer and reconnected prior to testimony.

(4) When the Respondent or the designated attorney fails to provide a telephone number or to answer the telephone number provided to the Department, or the line is busy after the hearing officer has attempted a second call after the three (3) minutes as provided in paragraph (3) of this subsection, the hearing officer will not call again and an order of default will be entered. It is the responsibility of the Respondent to keep the line(s) open to receive the call from the hearing officer.

(5) Should a necessary witness adverse to the Respondent, such as an officer, fail to provide a telephone number or to answer, or if the line is busy, after the procedure provided in (3) of this subsection has been followed, the case will be set aside.

(h) The hearing officer shall render a proposed order, in compliance with 75 O.S. § 311, based upon the law and the evidence presented. The proposed order shall include findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. The proposed order shall be served on the parties either personally or by certified mail, return receipt requested.

(1) Within twenty (20) days of the date the proposed order was served on the parties, which shall include the ten (10) days specified by 47 O.S. § 2-116, any party may object to the proposed order by submitting written exceptions and briefs to the Commissioner. The objecting party may also include a request to present oral argument to the Commissioner. Any such objections shall be submitted through the address reflected on the Troop S website and addressed to the Troop S Administrative Hearing Officer. The Commissioner will render a decision on the proposed order in accordance with 75 O.S. §§ 311, 312.

(2) If no party objects, the proposed order shall become the final agency order twenty (20) days after it was served on the parties.

(i) If the hearing was conducted by the Commissioner, the Commissioner shall issue a final agency order, which shall include findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. See 75 O.S. § 312(A). Parties shall be notified of any final agency order either personally or by certified mail, return receipt requested, or as otherwise specified in 75 O.S. § 312(B).

(j) If the Respondent fails to appear at the scheduled hearing without good cause, the hearing officer shall record the nonappearance and enter a final order reflecting the effective date of twenty-five (25) days after the date the Notice of Claim was mailed.

(k) If the Department representative fails to appear without good cause, the hearing officer shall record the nonappearance and enter a final order dismissing the administrative penalty action, with prejudice. The parties shall be notified the Notice of Claim has been dismissed with prejudice. Such a dismissal affects only those violations listed in the Notice of Claim and does not affect the same or other violations occurring at another time.

(l) A party aggrieved by the final agency order may file an application requesting a rehearing, reopening, or reconsideration of the case. Grounds for rehearing, reopening, or reconsideration shall be limited to those recognized by 75 O.S. § 317.

(1) Such an application must:

(A) be in writing, submitted through the address reflected on the Troop S website, and addressed to the Troop S Administrative Hearing Officer,

(B) be received by the Department within twenty (20) days of the date the agency order becomes final, which includes the ten (10) days specified by 47 O.S. § 2-116,

(C) state all grounds for the application and include all arguments and information pertinent to the grounds for application, and

(D) comply with the provisions of 75 O.S. § 317.

(2) The Commissioner will issue an order on the application. If the Commissioner grants rehearing, reconsideration or review, the order of the agency shall set forth the grounds which justify such action. If rehearing, reconsideration or review is granted, the matter may be heard by the Commissioner, or the Commissioner may refer the matter to a hearing officer. The hearing shall be confined to those grounds upon which the reconsideration, reopening or rehearing was ordered.

(m) A party aggrieved by the final agency order may also seek judicial review to the extent permitted by, and according to the provisions of, 75 O.S. § 318.

(n) Where timely written exceptions to the proposed order or request for a rehearing, reopening, or reconsideration of the case are received, the administrative penalty will be stayed until a final order has been entered.

(o) The administrative penalty assessed shall be due immediately upon the agency order becoming final pursuant to subsections (h) or (i). If, within twenty-five (25) days of the date the Notice of Claim becomes due and owing, which includes the ten (10) days specified by 47 O.S. § 2-116, the concerned party does not comply with the terms of the order by paying any administrative penalty assessed, the Department may seek to recover the penalty through any mechanism authorized by 47 O.S. § 230.9(G).

(p) The administrative penalty is not a substitute for compliance and is not intended to preclude injunctive relief or other non-duplicative remedies, particularly if the Commissioner has determined an order requiring compliance is necessary under the circumstances. Monetary penalties are not fees allowing the concerned party to continue to operate in violation of the Act or of any rules adopted to carry out the Act.

Okla. Admin. Code § 595:35-1-9

Amended at 9 Ok Reg 2581, eff 6-26-92; Amended at 10 Ok Reg 3211, eff 6-25-93; Amended at 16 Ok Reg 3171, eff 7-12-99; Amended at 17 Ok Reg 3044, eff 7-15-00; Amended at 29 Ok Reg 1394, eff 7-1-12; Amended at 30 Ok Reg 2036, eff 7-25-13

Amended by Oklahoma Register, Volume 34, Issue 24, September 1, 2017, eff. 9/11/2017

Amended by Oklahoma Register, Volume 39, Issue 24, September 1, 2022, eff. 9/11/2022