216 R.I. Code R. 216-RICR-10-05-4.13

Current through November 7, 2024

Section 216-RICR-10-05-4.13 - Contested Hearings

A. Hearings, When and Where Held. Hearings will be held at a designated location.

Any party may, by motion, request that a hearing be held at some place other than that designated, due to disability or infirmity of the party or witness, or where justice and equity would be best served. Upon motion of any party and upon good cause shown, the AHO may in her/his discretion advance or delay a case for hearing.

B. Notice of Hearing. In any contested case, the Department shall give notice of hearing which will apprise interested persons of the opportunity for hearing on the matter in controversy which shall include, at a minimum:

1. The date, time and place of the hearing and/or pre-hearing conference;

2. A statement of the petitioner's right to appear personally, to be represented by counsel or an authorized representative, as permitted by § 4.4 of this Part present at the prehearing conference and/or hearing, and that she/he may respond and present evidence and witnesses and cross examine other witnesses;

3. Sufficient notice of the specific issues involved, the specific sections of statutes and/or rules and regulations involved, the specific violations alleged, and/or the specific reason(s) for denial so that the parties may have a reasonable opportunity to prepare and present evidence and argument regarding the allegations and/or denial. If the information stated in this paragraph cannot be fully stated in advance of the hearing, the information shall be fully stated as soon as practicable. In all cases of a delayed issues statement, or where subsequent amendment of the issues is necessary, sufficient time shall be allowed, at the discretion of the AHO, after full statement or amendment to afford all parties reasonable opportunity to prepare and present evidence and argument respecting the issues;

4. A statement that notwithstanding failure to appear at a scheduled hearing, absent good cause, the AHO will proceed with the hearing and enter an order based upon the evidence presented;

5. The notice of hearing must set forth the requirements for intervention as outlined in § 4.11 of this Part.

C. General. Hearings may be as informal as may be reasonable and appropriate under the circumstances, and except as otherwise provided by law, all hearings shall be open to the public.

D. Decorum. All parties, authorized representatives, witnesses, and other persons present at a hearing shall conduct themselves in a manner consistent with the standards of decorum commonly observed in any statewide Rhode Island court. Where such decorum is not observed, the AHO may take appropriate action which includes ejectment or adjournment, if necessary.

E. Duties of Administrative Hearing Officer. The AHO shall:

1. Conduct the hearing;

2. Make all decisions regarding admission or exclusion of evidence or any other procedural matters;

3. Administer an oath or affirmation to all witnesses or ask the stenographer to do so;

4. Submit a decision and/or order after due consideration of the hearing record, and only the hearing record, and matters noted on the record;

5. Not communicate with any employee involved with the administration of a matter, or with any Board member empowered by law to adjudicate a matter, regarding any decision or order, or any proposed decision or order, excepting on the record with all parties present;

6. Participate in the proceedings to ensure that the hearing proceeds in an orderly and expeditious fashion and to ensure evidence sufficient to determine the facts are on the record;

7. Question any party or witness for the purpose of clarifying her/his statement and or the AHO's understanding or to clarify the record. This subsection is not intended to change the provisions of this Part regarding parties not appearing, without good cause, at a scheduled hearing where evidence may be admitted with some party(ies) not present.

4.13.1Order of Proceedings

A. Opening. Except as otherwise required by law, it shall be the usual practice that in proceedings initiated by an application for a license or permit, the party bearing the burden of proof shall open. The opposing party or parties may make an opening statement immediately after the opening statement by the party bearing the burden of proof.

B. Discretion of AHO. Where evidence is peculiarly within the knowledge of one (1) party, or in cases in which contested hearings have been consolidated, or where there are multiple parties, the AHO may direct who shall open and shall designate the order of presentation.

4.13.2Presentation

A. Rights of Parties. All parties shall have the right to present evidence, cross examine witnesses, make objections, bring motions and make oral arguments. Whenever appropriate, the AHO shall permit further examination as she/he deems necessary.

B. Default. If any party to a proceeding fails to answer a complaint and appear at a hearing, or otherwise fails to defend an action as provided by these Rules, the AHO may hear and receive evidence and enter a judgment, or take other such action, based upon the pleadings and or evidence submitted by the nondefaulting party(ies), as the AHO deems appropriate.

4.13.3Witnesses and Evidence

A. Witnesses

1. All witness testimony shall be under oath or affirmation.

2. A party may conduct cross examination required for a full and true disclosure of the facts.

3. Witnesses may be excluded from the hearing room upon motion of any party.

4. Protective orders may be issued for witnesses for good cause shown.

5. If an interpreter is used to assist a witness giving testimony, the interpreter's understanding is the final word of the witness. The interpreter shall be considered an expert for purposes of translation.

6. If a witness refuses to answer questions under cross-examination, the AHO may strike her/his direct testimony from the record.

B. Rules of Evidence

1. In contested cases, the Rhode Island Rules of Evidence as applied in civil cases in the Superior Courts of this State shall govern. Irrelevant, immaterial or unduly repetitious evidence shall be excluded in all proceedings wherein evidence is taken.

2. While the Rhode Island Rules of Evidence as applied to civil cases in the Superior Courts of this State shall be followed to the extent practicable, the AHO shall not be bound by technical evidentiary Rules. Evidence not otherwise admissible may be admitted, unless precluded by statute, when necessary to ascertain facts not reasonably susceptible of proof under the Rules, if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs. The rules of privilege recognized by law shall apply.

3. Objections to evidentiary offers may be made and shall be noted on the record. Parties objecting to the introduction of evidence shall state the precise grounds of such objection at the time such evidence is offered. When objection is made to the admissibility of evidence, such evidence may be received subject to a later ruling. The AHO may, in her/his discretion, either with or without objection, exclude inadmissible or cumulative evidence.

4. In all cases where evidence is taken, documentary evidence may be received in the form of copies or excerpts, if the original is not readily available. Upon request, parties shall be given an opportunity to compare the copy with the original.

5. When portions only of a document are to be relied upon, the offering party shall prepare the pertinent excerpts, together with a statement indicating the purpose for which such materials will be offered, to the AHO and to the other parties. Only the excerpts, so prepared and submitted, shall be received in the record. However, the whole of the original document shall be made available for examination and for use by all parties to the proceeding, and where appropriate, admitted into evidence.

C. Offer of Proof. An offer of proof made in connection with an objection taken to a ruling of the AHO rejecting or excluding proffered testimony shall consist of a statement and substance of the evidence which the party contends would be adduced by such testimony, if the excluded evidence consists of evidence in documentary or written form, or of reference to documents or records, a copy of such evidence shall be marked for identification and shall constitute the offer of proof.

D. Written Testimony. The AHO may order the parties to file, where practicable, prior to the commencement of any hearing, the testimony of any or all of their respective witnesses and to submit such testimony to the AHO and the opposing party or the opposing counsel by such date as the AHO shall determine. The witness shall testify under oath, and all of such testimony shall be in a question and answer format. Save for good cause shown, said testimony shall be the direct examination of said witness; provided, however, that said witness shall be available at the hearing for cross examination by the opposing party or opposing counsel.

E. Documentary Evidence in Advance. Where practicable, the AHO may require:

1. That all documentary evidence which is to be offered during the taking of evidence be submitted to the AHO and the other Parties to the proceeding sufficiently in advance of such taking of evidence to permit study and preparation or cross examination and rebuttal evidence;

2. That documentary evidence not submitted in advance, as may be required by subdivision above, may not be received in evidence in the absence of a clear showing that the offering party had good cause for their failure to produce the evidence sooner;

3. That the authenticity of all documents submitted in advance in a proceeding in which such submission is required, be deemed admitted unless written objection thereto is filed prior to the hearing, except that a party will be permitted to challenge such authenticity at a later time upon a clear showing of good cause for failure to have filed such written objection.

F. Evidence Included. All evidence, including any records, investigative reports, documents, and stipulations must be offered and made a part of the record. Documentary evidence may be received in evidence in the form of copies or excerpts.

G. Administrative Notice. The AHO may take notice of any fact which may be judicially noticed by the courts of this State, or of general, technical or scientific facts within the AHO's specialized knowledge, only if the parties are notified of the material so noticed and are given an opportunity to contest the facts so noticed. Notice may also be taken of properly adopted Rules and Regulations adopted by the Department and other agencies of this State or Federal Government. The AHO's experience, technical competence and specialized knowledge may be utilized in the evaluation of the evidence. The burden is on the party requesting the AHO's administrative notice to produce the documents or other matter for the AHO's review.

H. Subpoenas. Pursuant to the provisions of R.I. Gen. Laws §§ 21-28-3.25 and 2-111, and/or under any other applicable statute, in all cases of any nature before the Department, the AHO or other official authorized by law, may issue subpoenas requiring the attendance and testimony of witnesses and to compel the production and examination of papers, books, accounts, documents, records, certificates and other legal evidence that may be necessary or proper for the determination and decision of any question before or the discharge of any duty required by law of the said AHO.

1. Signature Required. All subpoenas and subpoena duces tecum shall be signed by the AHO, or other person authorized by law to sign subpoenas, and shall be served as required by law.

2. Motion to Vacate or Modify. Any person to whom a subpoena is directed may, within a five (5) business day period, file in writing a motion that the subpoena be vacated or modified. The AHO may grant such motion in whole or in part, upon a finding that the testimony, or the evidence, whose production is requested, does not relate with reasonable directness to any matter in question, or upon a finding that a subpoena for attendance of a witness or the production of documents or evidence is unreasonable or oppressive, or has not been issued a reasonable period in advance of the time when the evidence is requested or for other good and sufficient cause. The AHO may, sua sponte, or on motion of any of the parties or witnesses, issue such protective orders, grant such motions to quash, and grant such other motions as justice or fairness may require.

3. Contumacy. In cases of contumacy or refusal to obey the command of the subpoena so issued, the AHO or the Department may make application to the Superior Court for an order to show cause why the disobeying Person shall not be held in contempt and for such further relief as may be appropriate.

I. Transcript of Proceedings.

1. Recording and Transcripts. A complete record of the testimony and argument at the hearing shall be either stenographically or electronically recorded. Transcripts of the proceedings shall be supplied to any party at her/his own expense upon request to the stenographer.

2. Correction of Transcript. Corrections in the official transcript may be made only to make it conform to the evidence presented at the hearing. Transcript corrections, agreed to by opposing parties, may be incorporated into the record, if and when approved by the AHO, at any time during the hearing, or after the close of evidence. The AHO may call for the submission of proposed corrections and may make disposition thereof at appropriate times during the course of the proceeding.

J. Close of Proceedings. At the conclusion of the evidence, the AHO may, in her/his discretion, permit the parties to argue orally or to submit written briefs. The AHO may, within her/his discretion, direct that proposed findings of fact and conclusions of law be submitted by the parties. The record of the proceeding shall close after oral argument, or after the deadline for filing of the briefs, or upon such date as may be set by the AHO.

K. Contents of Records. The record shall, at all reasonable times, be available for inspection by the parties. Confidential, proprietary, or trade secret information including information qualifying as a non-public record under R.I. Gen. Laws § 38-2-2(4) shall, upon motion of a party and for good cause shown, be received at a closed hearing and not be released for public scrutiny. Any such evidence received on a confidential basis shall not be subject to disclosure for purposes of R.I. Gen. Laws Chapter 38-2. The AHO may take all steps reasonably necessary to preserve any confidential, proprietary or trade secret information and to keep the same secret and confidential from the general public. The record of every contested case shall include the hearing notice, all pleadings, motions, all rulings, exhibits, evidence considered, statements of matters officially noted, proposed findings of fact and law and exceptions claimed thereto, decision and/or order, proposed decision and /or order, or report of the AHO.

L. Evidence after Completion. No evidence shall be admitted after completion of a hearing or after a case submitted on the record, unless the AHO reopens the hearing or the parties agree to the submission, and all the parties have been notified of said reopening. No Board shall take evidence, comments, recommendations, summaries, opinions, or any information regarding the case, or participate in any ex parte conversations after the close of a hearing, except that proposed decisions/orders from an AHO who conducted the hearing, which the Board may discuss among themselves only.

M. Weight of Evidence. The weight to be attached to any evidence in the record will rest within the sound discretion of the AHO. The matter is closed after the final decision and order is issued.

N. Exceptions. Formal exceptions to rulings on evidence and procedure are unnecessary. It is sufficient that a party, at the time that a ruling is made or sought, makes known his/her objection to such action and his/her grounds therefore, provided that, if a party has no opportunity to object to a ruling at the time it is made, or to request a particular ruling at an appropriate time, such party within three (3) business days of notification of action taken or refused, shall state his/her objection and the grounds therefor.

216 R.I. Code R. 216-RICR-10-05-4.13

Amended effective 1/9/2022