440 R.I. Code R. 440-RICR-10-00-1.15

Current through December 3, 2024

Section 440-RICR-10-00-1.15 - Administrative Hearings

Administrative hearings shall comply with the requirements of R.I. Gen. Laws Chapter 42-35, the enabling acts of the Board, and this Subchapter.

1.15.1Notice of Hearing:

A. A notice of administrative hearing shall comply with R.I. Gen. Laws § 42-35-9(b).

B. Unless otherwise agreed to by the Board and the parties, the Board shall schedule administrative hearings before a hearing officer no sooner than twenty (20) calendar days from the date the parties are notified of the hearing.

C. In accordance with R.I. Gen. Law §5-65-6, a notice of hearing shall be considered delivered when deposited in the United States mail and/or sent registered or certified or post office receipt secured to the last known address of record.

D. For administrative hearings related to the notice of violation, the Hearing Officer is the appropriate forum. For an appeal related to a Final Order of the Hearing Officer, the appropriate forum is the Full Board.

1.15.2Representation

A. Appearances.

1. The Board shall notify each Party that each Party may retain legal counsel admitted in the State of Rhode Island.

2. Individuals and partners of partnerships may appear pro se if they choose. Corporations may be represented by an officer in the corporation, even if not a member of the state bar.

3. If a Party is not representing themselves, the Party must be represented by a member, in good standing, of the Bar of the State of Rhode Island, or by an out of state attorney who has been admitted pro hac vice by the Superior Court or by the appropriate court, unless exempted pursuant to R.I. Gen. Laws § 11-27-11.

4. All attorneys must conform to the standards of ethical conduct required of practitioners before the courts of the State of Rhode Island.

B. Appearances of Present and Former Employees of the Board.

1. No person who is currently an employee or member of the Board may appear before the Board or Department on behalf of any Person, or to represent any Person, or act as an expert witness before the Board or Department, except in the performance of his/her official duties as an employee or member of the Board.

2. No person having been so employed, or as a member of the Board may, within one (1) year after said employment has ceased, appear before the Board or Department on behalf of any other Person, or to represent any Person, or act as an expert witness before the Board or Department.

1.15.3Filing of Pleadings and Other Documents

A. All pleadings and other documents filed in any Contested Case shall, whenever possible, state the file number, if any, the title of the proceeding and the name of the Person on whose behalf the filing is made.

B. Form and Size. All pleadings and other documents filed, except those documents which are kept in a smaller or larger format during the ordinary course of business, are to be submitted on 81/2 by 11 inch paper. At the discretion of the Hearing Officer or Board, filings may be made by telecopier, facsimile, or by electronic mail or any other manner or means approved by the Hearing Officer. If filings are made electronically, the Party shall also file a hard copy of any such electronic filing. All documents must include, if applicable, the Rhode Island Bar number, address, telephone number, facsimile number and email address of each attorney and pro se litigant. All papers shall be filed during Regular Business Hours. The Board or Department's date stamp shall be presumptive of the actual date of filing.

C. Signature. The original copy of each pleading shall be signed and dated by the Party on whose behalf the pleading is made or by the Party's authorized representative. This signature shall constitute a certification that the individual has read the document, knows the contents thereof and to the best of his/her knowledge believes that such statements are true, that it is not interposed for delay and that if the pleading has been signed by an authorized representative, he/she has full power and authority to do so.

D. Construction. All pleadings shall be liberally construed and errors or defects therein which do not mislead or affect the substantial rights of the Parties involved may be disregarded.

1.15.4Service

A. Service Upon Parties and Others. A copy of all pleadings and other documents filed in any proceeding governed by this Part shall be served upon all other Parties.

B. Manner of Service. Unless otherwise ordered or authorized by the Hearing Officer, Board, or Department, service under this Part shall be made upon a Party or upon the Party's attorney, in accordance with R.I. Gen. Laws § 5-65-6.

C. Certificate of Service. There shall accompany and be included in the original of each pleading filed with the Board or Department a certificate of service showing service on all Parties.

D. Date of Certificate to Govern. In addition to the provisions of § 1.12.5 of this Part, the time for response to all pleadings shall commence as of the date of the certificate of service. However, if service is made by mail, then one (1) day shall be added to the prescribed period.

1.15.5Time

A. Computation. Unless otherwise specifically provided by law, computation of any time period referred to in this Part shall begin with the first day following the act which initiates the running of the time period (including Saturday, Sunday and legal holidays). The last day of the time period so computed is to be included unless it is a Saturday, Sunday or legal holiday or any other day on which the Board is closed, in which case the period shall run until the end of Regular Business Hours of the next following business day.

B. Extensions of Time. It shall be within the discretion of the Hearing Officer, for good cause shown, to extend any time limit. All requests for extensions of time shall be made by written motion filed with the Hearing Officer before the expiration of the applicable time period unless waived by the Hearing Officer.

C. Continuances. Except as otherwise provided by law, the Hearing Officer may, at any time, with or without request, continue or adjourn a prehearing conference or a hearing. If a Party requests a continuance, the Hearing Officer may direct the Party to seek the assent of the other Party(ies) prior to deciding whether to grant such request. If the Hearing Officer grants a continuance at the request of a Party(ies), the Hearing Officer may direct the Party(ies) requesting the continuance to immediately notify all other Parties of record and if deemed necessary to prepare an order. If such an order is made, the continuance will only be effective when the notification to all other parties of record has been made.

1.15.6Motions

A. General. Any Party may request that the Hearing Officer enter any order or action not inconsistent with law or this Part. The types of motions made shall be those which are permissible under these Rules and the Rhode Island Superior Court Rules of Civil Procedure ("Super. R. Civ. P.").

B. Presentation/Objections to Motions. Motions may be made in writing at any time before or after the commencement of a prehearing conference or hearing, and/or they may be made orally during a prehearing conference or hearing. Each motion shall set forth and/or state the grounds for the desired order or action and state whether oral argument is requested. Within ten (10) days after a written motion is filed with the Hearing Officer and served on the opposing Party(ies), a Party opposing said motion must file a written objection to the granting of the motion, and shall, if desired, request oral argument. All written motions and objections shall be accompanied by a written memorandum specifying the legal and factual basis for the Party's position.

C. Action on Motion. The Hearing Officer shall, if he/she/it determines oral argument on the motion is warranted, give notice of the time and place for such argument. The Hearing Officer may rule on a motion without argument if the motion involves a matter as to which the presentation of testimony or oral argument would not advance the Hearing Officer's understanding of the issues involved or if disposition without argument would best serve the public interest. The Hearing Officer may act on a motion when all Parties have responded thereto, or the deadline for response has passed, whichever comes first.

1.15.7Discovery

A. General. The Board favors prompt and complete disclosure and exchange of information and encourages informal arrangements among the Parties for this exchange. It is the Board's policy to encourage the timely use of discovery as a means toward effective presentations at hearing and avoidance of the use of cross-examination at hearing for discovery purposes.

B. Procedure. Any Party, by written request served upon all other Parties, may request the other Party to produce for inspection, copying or photocopying document, object or tangible thing which are relevant to the subject matter of the hearing

C. Hearing Delay. No hearing shall be continued to permit the completion of discovery unless due diligence is shown.

D. Discovery Schedule. At the discretion of the Hearing Officer, the discovery schedule shall be set at the prehearing conference. The Hearing Officer may amend such discovery schedule at the request of a party or on his or her own volition.

E. Written Discovery. Written discovery as set forth in the Superior Court Rules of Civil Procedure is allowed but may be limited by the Hearing Officer.

F. Types of Discovery. Any other types of discovery as set forth in the Superior Court Rules of Civil Procedure may be allowed in the discretion of the Hearing Officer.

G. Discovery Disputes. Objections to discovery requests shall be made pursuant to the Superior Court Rules of Civil Procedure. If there is a dispute between the Parties relating to a Party"s failure to respond to discovery, the Party requesting the discovery shall comply with file a Motion to Compel Discovery with the Hearing Officer.

H. A Party is not required to file discovery responses with the Hearing Officer unless otherwise ordered by the Hearing Officer.

1.15.8Subpoenas

Upon application of any Party, subpoenas requiring the attendance and testimony of witnesses and to compel the production and examination of papers, books, accounts, documents, records, certificates and other evidence that may be necessary or proper for the determination and decision of any question before the forum may be issued by the Director upon submission to the Hearing Officer. Except as may be otherwise provided by law, including, without limitation, the provisions of R.I. Gen. Laws § 42-14-11, in cases where a subpoena is not honored, the Director may elect to make application to the State of Rhode Island Superior Court for an order to show cause why the Person who failed to honor the subpoena shall not be held in contempt and for such further relief as may be appropriate. The Hearing Officer may, on its own initiative, or on motion of any of the Parties or witnesses, issue such protective orders, grant such motions to quash and grant other motions as justice or fairness may require.

1.15.9Evidence

A. Rules of Evidence. Irrelevant, immaterial or unduly repetitious evidence shall be excluded in all proceedings wherein evidence is taken. While the rules of evidence as applied in civil cases in the Superior Courts of this state shall be followed to the extent practicable, the Hearing Officer shall not be bound by the 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. Objections to evidentiary offers may be made and shall be noted in the record.

B. Exhibits, Copies. In all cases wherein evidence is taken, exhibits may be introduced in the form of copies or excerpts, if the original is not readily available. Upon request, a Party shall be given an opportunity to compare the copy with the original.

C. Administrative Notice. In all proceedings wherein evidence is taken, notice may be taken of judicially cognizable facts. In addition, notice may be taken of generally recognized technical or scientific facts within the Board or Department's specialized knowledge; but Parties shall be notified either before or during the hearing, or by reference in preliminary reports or otherwise, of the material noticed, including any report or data required by law or regulation to be filed with the Board or Department, and they shall be afforded an opportunity to contest the material so noticed. The Board or Department's experience, technical competence and specialized knowledge may be utilized in the evaluation of the evidence. The burden is on the Party requesting the Board or Department's notice to produce the documents or other matter for the Hearing Officer's review.

D. Board Employees, Agents and Consultants. The Board or Department may employ the use of Board employees, agents, and consultants to assist him/her in the evaluation of any evidence introduced at the hearing. In the Hearing Officer's discretion, these persons may be present at the hearing.

E. Oath. All testimony shall be under oath or by affirmation.

1.15.10Conduct of Hearings

A. General. Hearings shall be as informal as may be reasonable and appropriate under the circumstances. All Parties, witnesses and other Persons at a hearing shall conduct themselves in a manner consistent with the standards of decorum commonly observed in any courtroom. Where such decorum is not observed, the forum may take appropriate action including ejectment or adjournment, if necessary.

B. Duties of Hearing Officer. The Hearing Officer shall conduct the hearing, make all decisions regarding admission or exclusion of evidence or any other procedural matters and either administer oaths to all witnesses or ask the stenographer to do so.

C. Order of Proceedings. Except as otherwise required by law, it shall be the usual practice that the Board or the complainant shall open. Where evidence is peculiarly within the knowledge of one Party, or in cases in which contested cases have been consolidated or where there are multiple Parties, the Hearing Officer may, in its discretion, direct who shall open and shall further designate the order of presentation.

D. Rights of Parties. Parties shall have the right to present evidence, cross-examine witnesses, object, make motions, and present arguments.

E. Record of Proceedings.

1. A complete record of the proceedings shall be recorded on audiotape, or at the discretion of the Hearing Officer, by stenographic record. In the event the Hearing Officer orders a stenographic record, the Hearing Officer shall declare which Party or Parties shall bear the cost thereof. Any Party may on his, her or its own initiative order a stenographic record made of the proceedings. The requesting Party shall incur all costs associated therewith. The Hearing Officer shall be provided, at no cost, with the original of the stenographic record and Board Counsel shall be provided with a copy at no cost. Any Party may request a copy of the audiotape record of the proceedings. The requesting Party shall bear the cost thereof.

2. If a Party chooses to appeal a final Board Decision to Superior Court pursuant to R.I. Gen. Laws Chapter 42-35 and the Superior Court requires a transcript of the hearing, said Party shall be responsible for having the transcript prepared by an independent person or company at his, her or its expense within twenty (20) days of filing the appeal.

F. Public Hearings. Except as required by law, all hearings are to be open to the public. In general, any Person who is not a Party to a proceeding may, in the discretion of the Hearing Officer, be permitted to make oral or submit written statements on any issues relevant to the proceeding.

G. Close of Proceedings. At the conclusion of the evidence, the Hearing Officer may, in its discretion, permit the Parties to argue orally and/or to submit written briefs. The Hearing Officer may direct that proposed findings of fact and conclusions of law be submitted by the Parties. The record in the proceeding shall close after oral argument, the deadline for the filing of the briefs, or upon such date as may be set by the Hearing Officer. No evidence shall be admitted thereafter, unless otherwise ordered by the Hearing Officer. The Hearing Officer may in any case require either Party, with appropriate notice to the other Party, to submit additional evidence in any matter relevant to the hearing.

H. Waiver of Hearing. In any proceeding, if the Parties agree to waive the hearing, the forum may dispose of the matter upon the pleadings and other submittals of the Parties.

I. Dispositions. Unless otherwise precluded by law, disposition may be made of any contested case at any time by stipulation, consent agreement, consent order, default, or dismissal by the forum. A joint request for a stay of the hearing for the purpose of preparing documents relevant to the above shall be forwarded to the forum and may be granted within the sound discretion of the forum.

1.15.11Decisions

All decisions rendered by the Hearing Officer shall be in writing or placed on the record and shall comply with the requirements of R.I. Gen. Laws § 42-35-12.

440 R.I. Code R. 440-RICR-10-00-1.15

Adopted effective 12/17/2019