525 R.I. Code R. 525-RICR-10-00-4.10

Current through November 7, 2024

Section 525-RICR-10-00-4.10 - Hearing

A. The Commission's Hearing Board shall:

1. Hear all unresolved complaints relating to alleged violations of R.I. Gen. Laws Chapter 42-87 relating to the physical inaccessibility of buildings and structures. The Hearing Board will hear all complaint that cannot be resolves by the informal methods of conciliation or are not approved for dismissal; and

2. Consider all recommendations for dismissal from the Commission's Executive Secretary made pursuant to § 4.8(A)(3)(c) of this Part.

B. Hearing Preparation

1. Parties to an Adjudicatory Proceeding before the Hearing Board are encouraged to engage in voluntary discovery as provided in the Rhode Island Superior Court Rules of Civil Procedure. The Rhode Island Superior Court Rules of Civil Procedure shall govern discovery except where they are inconsistent or otherwise inapplicable under this Rules.

2. Requests for discovery may be made any time after the Commission's Executive Secretary has recommended that a case be referred to the Hearing Board for hearing pursuant to § 4.8(A)(3)(b) of this Part above.

3. The Hearing Board, at its discretion, may establish limits on such discovery, including, but not limited to, when discovery shall commence and close.

4. Parties may make such motions as are permissible under these Rules, or pursuant to the Rhode Island Superior Court Rules of Civil Procedure. Motions made prior to the hearing must be made in writing and filed with supporting memoranda. Each motion shall set forth the grounds for the requested action by the Hearing Board. Any party opposing a motion must file an objection within seven (7) days or the objection will be deemed waived. The Hearing Board, at its discretion, may schedule oral argument on any motion.

5. The Hearing Board may determine, at its discretion, that a prehearing conference should be conducted in any individual case. The Hearing Board may select any one of its members, or authorize the Commission staff, to conduct the prehearing conference. The authorized individual may direct the parties to appear at a specified time and place prior to the commencement of the hearing to consider:

a. The simplification or clarification of the issues;

b. The possibility of obtaining stipulations, admissions, agreements on documents, or similar agreements to avoid unnecessary proof at the hearing;

c. The identification of witnesses and documents to be presented at the hearing;

d. Such other matters as may aid in the disposition of the hearing.

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

C. Notice of Hearing

1. The Commission shall issue and cause to be served upon all parties thereto or their attorneys of record, if any, by registered or certified mail, a notice of hearing before the Hearing Board. The notice of hearing will contain a hearing date, which shall not be less than ten (10) business days after the service of such complaint and notice. A hearing shall not be deemed instituted until convened and commenced before the Hearing Board.

2. The written notice of hearing, signed by the Hearing Board Chairperson or Vice Chairperson shall include:

a. A statement of the time, place and nature of the hearing;

b. A statement of the legal authority and jurisdiction under which the hearing is to be held;

c. A reference to the particular sections of the statutes and rules involved;

d. A copy of the complaint filed by the complainant;

e. The results of the Commission's investigation stating the unlawful discriminatory act that allegedly occurred and the date of its occurrence in a manner sufficient to comply with Rhode Island Administrative Procedures Act;

f. The methods to overcoming any physical barriers proposed by the Commission's staff; and

g. The name and telephone number of a contact person from the Commission.

D. Representation during the Hearing

1. Any person may appear before the Hearing Board on his or her own behalf or may be represented by legal counsel.

2. All persons in proceedings before the Hearing Board in a representative capacity shall conform to the standards of ethical conduct required of attorneys before the courts of Rhode Island.

E. Joinder of Parties

1. A person shall, whenever possible, be joined as a party in the complaint when:

a. In his or her absence complete relief cannot be accorded among those already existing parties, or

b. He or she claims an interest relating to the subject of the complaint and is so situated that the disposition of the complaint in his or her absence may:

(1) as a practical matter impair or impede his or her ability to protect that interest or

(2) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his or her claimed interest. If such a person cannot be made a party, the Hearing Board shall decide whether in equity the action should proceed or be dismissed. Any person charged with unlawful discriminatory acts arising out of the same transaction, occurrence or succession or series of transactions or occurrences may be joined as a respondent in the same complaint.

c. The Hearing Board may, in its discretion, join one or more complaints into a single proceeding for adjudicatory hearing.

F. Appearance of Parties

1. The complainant and the respondent shall be parties to the proceeding and may appear at the hearing, examine and cross-examine witnesses, and present evidence and argument on all issues involved.

2. Any person who has or claims an interest in the subject of the hearing and in obtaining or preventing relief against the acts or practices complained of, at the discretion of the Hearing Board, may be permitted to participate in the adjudicatory proceeding. Permission to participate shall be limited to the right to present oral or written arguments and does not make the person a party to the proceeding with any right of appeal.

G. Time of Hearings

A hearing shall be conducted at the time and place set forth in the notice of hearing, except that the time of hearing may be extended by the Hearing Board, for good cause shown, at the request of any party or the Board's Chairperson or Vice Chairperson, to such later date as the Hearing Board may determine.

H. Conduct of Hearing.

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

2. 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 Hearing Board may take appropriate action including adjournment, if necessary.

3. All parties shall have the right to present evidence, cross-examine witnesses, and make objections, motions and oral arguments. Whenever appropriate, the Hearing Board shall permit further examination as it deems necessary.

4. The Chairperson, or other designated member of the Hearing Board, shall preside over the hearing and shall administer the oath or affirmation to all witnesses.

5. All rulings and determinations of the Hearing Board during the conduct of the hearing, including admission or exclusion of evidence and on any other procedural matter, shall be made by the Chairperson, or other designated member of the Hearing Board; provided however, that any member of the Hearing Board may request a majority vote to overrule or sustain any ruling or determination of the presiding member.

6. All members of the Hearing Board may question the witnesses and examine any documents offered into evidence.

7. All hearings shall be public; provided, however, that for good cause, and only as allowed by R.I. Gen. Laws Chapter 42-46 [the Open Meetings Act], the Hearing Board may decide otherwise.

I. Procedure at Hearing

1. The Hearing Board shall follow the rules of evidence as applied in civil cases in the Rhode Island Superior Court to the extent practicable; when necessary to ascertain facts not reasonably susceptible to proof under those rules, evidence not admissible under those rules may be submitted (except where precluded by statute) if it is of a type commonly relied upon by a reasonably prudent person in the conduct of his or her affairs. The Hearing Board may receive documentary evidence in the form of copies or excerpts, if the original is not available. The Hearing Board may also take notice of judicially cognizable facts and generally recognized technical or scientific facts within the Hearing Board's specialized knowledge, as provided by the Administrative Procedures Act.

2. The Hearing Board shall have full authority to control the procedures of the hearing, to admit or exclude testimony or other evidence, to rule upon all objections and take such other actions as are necessary and proper for the conduct of such hearing including but not limited to, administering oaths, taking the testimony of any person under oath, and requiring the production for examination of any books, papers, documents or tangible things relating to any matter under investigation or in question before the Hearing Board. The Hearing Board shall conduct a hearing consistent with these Rules and Regulations.

3. The Hearing Board shall exclude irrelevant, immaterial, or unduly repetitious evidence. 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.

4. Under appropriate circumstances, the Hearing Board may require the parties to submit sworn pre-filed direct testimony of witnesses. The direct testimony will only be accepted as part of the hearing record when the witness is presented before the Hearing Board for cross-examination.

5. During the hearing or following its conclusion, the Hearing Board may require any party, with appropriate notice to the other party, to submit additional evidence on any matter relevant to the adjudicatory hearing.

6. During the hearing or following its conclusion, the Hearing Board may require the parties to present proposed findings of fact for its consideration. In its final decision, the Hearing Board shall include a ruling on each proposed finding of fact.

J. Medical Evidence

1. There shall be a presumption that the individual filing the complaint is a "Person with a Disability".

2. If respondent challenges this presumption, then respondent must so state in writing ten (10) days prior to the scheduled commencement of the hearing. Failure to file the written challenge will be deemed a stipulation that the complainant is a Person with a Disability as defined in these Rules and in R.I. Gen. Laws Chapter 42-87.

3. If a challenge has been filed, then the complainant must present evidence at the hearing to establish that he or she is a Person with a Disability as defined in these Rules and in R.I. Gen. Laws Chapter 42-87.

4. Prior to the complainant offering such testimonial or documentary evidence, the Hearing Board shall close the hearing to the public pursuant to and in accordance with the requirements of R.I. Gen. Laws § 42-46-1 et seq. (the Open Meetings Law). If the complainant waives this requirement, then the evidence will be presented at open hearing and all evidence will become public record.

5. Any personal or medical records, including information relating to medical or psychological facts, offered by the complainant during the closed hearing shall not be deemed public records in accordance with the requirements of R.I. Gen. Laws § 38-2-1 et seq. (the Access to Public Records Act).

6. Notwithstanding the above provisions, testimonial and documentary evidence presented in closed hearing and not public record will be preserved for consideration by the Hearing Board and as part of the administrative record for the purposes of any appeal made pursuant R.I. Gen. Laws Chapter 42-35 (the Administrative Procedures Act).

K. Burdens of Proof

1. Initial Burden of Proof: The complainant shall first present his or her case. The complainant must prove by a preponderance of the evidence that the respondent has discriminated against the complainant in violation of the civil rights of individuals with disabilities caused by the physical inaccessibility of buildings and structures.

2. Staff's Burden of Production: The Commission staff shall next present evidence that an on-site inspection of the portion(s) of the buildings and structures cited in the complaint was conducted and make its recommendation for resolution of the complaint.

3. Challenging Party's Burden of Proof: If either the complainant or the respondent challenges the Commission staffs on-site inspection report and/or its recommended resolution of the complaint, then the challenging party shall have the burden to prove by a preponderance of the evidence that the report and/or the recommendation should not be adopted for one of the following reasons:

a. The Commission staff has incorrectly applied the standards for determining which elements of public accommodations and commercial facilities must be accessible;

b. The building or structure falls within the exception for structural impracticability;

c. An exemption applies;

d. The recommended resolution is not readily achievable;

e. Other factors should be considered by the hearing board in determining the final means to address the complaint.

L. Audio or Audio-Visual Recording/Transcript

1. Testimony and argument at the hearing shall be preserved by audio or audio-visual recording unless a party requests a stenographer under the provisions set forth below. The audio recording of the hearing shall be available at the Commission's office for examination.

2. Any party may request that a stenographer be present at the hearing provided that the party bears the expense of the stenographer, his or her transcription, and any other incidental expenses.

3. There shall be no right to a continuance because of the unavailability of a stenographer.

4. Transcripts of the audio or audio-visual recording shall be provided by a stenographer to any party at the requesting party's own expense.

525 R.I. Code R. 525-RICR-10-00-4.10