250 R.I. Code R. 250-RICR-10-00-1.16

Current through November 7, 2024

Section 250-RICR-10-00-1.16 - Hearings

A. Submission without a hearing. Any party may elect to waive a hearing and to submit its case upon the record. Submission of a case upon the record, without a hearing, does not relieve the parties from the necessity of providing the facts supporting their burdens, allegations or defenses.

B. Hearings, when and where held. Hearings will be held at the location designated by the AHO. Any party may, by motion, request that a hearing be held at some place other than that designated, due to disability or infirmity of any 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 his/her discretion schedule a case for hearing.

C. Notice of hearings. The notice of hearing must include the date, time and place of the hearing and prehearing conference and a statement of the petitioner's right to have counsel present. The notice shall provide sufficient notice of the issues involved so that the parties may have a reasonable opportunity to prepare and present evidence and argument. The notice of hearing must set forth the requirements for intervention as outlined in § 1.12 of this Part.

D. The notice of hearing shall set forth the burden of proof. In an enforcement hearing, the burden of proof shall be set forth in accordance with § 1.12(C) of this Part of the Rules and Regulations for the Assessment of Administrative Penalties. In a hearing regarding the denial of a permit or variance application by the Department, the burden of proof shall be on the applicant.

E. If the issues cannot be fully stated in advance of the hearing, they shall be fully stated as soon as practicable. In all cases of delayed 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.

F. Conduct of Hearing

1. General. Hearings shall be as formal as may be reasonable and appropriate under the circumstances.

2. 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 court. Where such decorum is not observed, the AHO may take appropriate action including adjournment, if necessary.

3. Duties of hearing officer. The AHO shall conduct the hearing, make all decisions regarding admission or exclusion of evidence or any other procedural matters, and administer an oath or affirmation to all witnesses.

G. 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. In hearings resulting from Notices of Violations the Division conducting the investigation or issuing the notice shall open.

H. Rights of parties. All parties shall have the right to present evidence, cross- examine witnesses, make objections, bring motions and make oral arguments.

I. Witnesses and Evidence

1. Oath. A witness' testimony shall be under oath or affirmation.

2. Rules of evidence. Pursuant to R.I. Gen. Laws § 42-35-10, the Rules of Evidence shall apply to evidence introduced during public participation to the same extent the rules apply to evidence admitted by other parties. Testimony and Papers submitted by members of the public which do not comport with the evidentiary requirements of R.I. Gen Laws § 42-35-10 may be accepted as public comment, shall not be accepted as evidence, and if made part of the administration record shall be marked as public comment. Rule 408 of the Rhode Island Rules of Evidence shall govern all communications including communications occurring prior to a Notice of Intent to Enforce or a Notice of Violation being issued.

3. Offer of proof. An offer of proof may be made in connection with an objection in response to a ruling of the AHO rejecting or excluding proffered testimony. The offer of proof shall consist of a statement and substance of the evidence which the party contends would be adduced by such testimony, and 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.

4. Written testimony. The AHO may order the parties to file, 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.

J. Documentary evidence included. Documentary evidence may be received in evidence in the form of copies or excerpts.

K. Administrative notice. Per R.I. Gen Laws § 42-35-10(4), the AHO may take notice of any judicially cognizable facts which may be judicially noticed by the courts of this State, or of generally recognized technical or scientific facts within the Agency'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 agencies of this State or Federal agencies.

L. Subpoenas. In all cases of every nature before the AAD, the clerk and/or AHOs may issue, and the AHOs may vacate, and modify 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. All subpoenas and subpoenas duces tecum shall be signed by an AHO or the clerk and shall be served as subpoenas are served in civil cases in the Superior Court.

2. Motion to vacate or modify. Any person to whom a subpoena is directed may, within a five (5) 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 the attendance of a witness or the production of 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.

3. Costs. Witnesses subpoenaed under these Rules shall be entitled to the same fees for attendance and travel as are provided for witnesses in civil cases in the Superior Court.

4. Contumacy. In cases of contumacy or refusal to obey the command of the subpoena so issued, the Superior Court shall have jurisdiction in accordance with R.I. Gen. Laws § 42-17.7-8.

M. Recording and transcripts. Testimony and argument at the hearing shall be recorded electronically or stenographically. Transcripts of the proceedings shall be supplied to any party at his/her own expense upon request to the stenographer. The AHO, within his or her discretion and in order to ensure an accurate record, is authorized to require the appellant to record the hearing stenographically in application matters and the Division in enforcement matters and a certified copy of the transcript shall be provided to the clerk of the AAD.

N. 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.

O. Contents of records. The record shall, at all reasonable times, be available for inspection by the parties.

P. Evidence after completion. No evidence shall be admitted after completion of a hearing or after a case submitted on the record, unless otherwise ordered by the AHO.

Q. Weight of evidence. The weight to be attached to any evidence in the record will rest within the sound discretion of the AHO in accordance with the Rules of Evidence. The AHO may in any case require either party, with appropriate notice to the other party, to submit additional evidence on any matter relevant to the administrative hearing.

R. 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 or her objection to such action and his or her grounds therefore.

250 R.I. Code R. 250-RICR-10-00-1.16