Section 0800-07-01-.05 - CONTESTED CASE HEARING AND PROCEEDINGS(1) After the investigation, if there is substantial evidence that a person violated the Act, the Commissioner shall cause the matter to be docketed for a contested case hearing pursuant to the UAPA, the Rules of the Tennessee Department of State, Chapter 0800-1360-4 -1 and the rules provided herein.(2) Hearing Notice. A Notice of Hearing shall be sent to the person alleged to have violated the Act at least thirty (30) days prior to the date of the hearing. The Notice of Hearing shall designate the Administrative Law Judge ("ALJ") or Commissioner's Designee who shall preside over the hearing, the counsel representing the Commissioner, and shall include a general and brief explanation of the procedures and requirements for the proceedings. The Notice of Hearing shall comply with the requirements of Tennessee Code Annotated § 4-5-307(b).(3) Representation and Interpretative Services. The opposing party is entitled to be represented by counsel or may represent itself. Persons that are corporations or any other state-certified entities (such as a limited liability company) shall be represented at the hearing by counsel. An owner, officer, or board member cannot represent a corporation or any other state-certified entity. [See Supreme Court Rule 9, Section 20.2(e)]. The ALJ or Commissioner's Designee and all departmental personnel shall take reasonable steps to provide access to reasonable interpretive services to assure that people who are not proficient in English can effectively participate at various stages of the proceedings and at the hearing.(4) Subpoenas. Upon request by either party, subpoenas shall be issued by the ALJ or Commissioner's Designee presiding over the hearing for the following: (a) Production of documentary evidence or tangible things;(b) Deposition of witnesses; and(c) Attendance and testimony at the hearing.(5) Any subpoena issued pursuant to paragraph (4) of this rule shall state the name of the Department and the title of the action, and shall command each person to whom it is directed to attend and give testimony or produce documents or other tangible things at the time and place and for the party therein specified.(6) A subpoena shall be served by certified return receipt mail, by delivery service, or by personal service.(7) If a witness refuses to comply with a subpoena, the Commissioner may apply to the circuit or chancery court of the county of such person's residence as specified in Tennessee Code Annotated § 4-5-311(b) for an order to compel compliance. Failure to comply with such order shall be punished as contempt of court as is provided in judicial proceedings.(8) Discovery. Each party has the right to review the agency record and to conduct reasonable discovery. (a) A party may serve upon any other party a written request for the admission of the truth of any relevant matters of fact or the genuineness of any relevant documents described in the request or previously furnished. Each request shall be deemed admitted unless within a period of thirty (30) days after service or within such time as the ALJ or Commissioner's Designee shall allow, the party who received the request provides a sworn statement denying the matters for which an admission was requested. The sworn statement shall set forth in detail the reason(s) why the party denied those matters or the party's objections on the grounds of privilege, relevancy or other proper basis for relief. Any objections shall be accompanied by a request for a hearing on the objections at the earliest practicable time.(b) If a party disobeys an order to respond to discovery, such disobedience may result in a default judgment or forfeiture of the opportunity to present evidence that otherwise would have been admissible.(9) Affidavits. Pursuant to Tennessee Code Annotated § 4-5-313, copies of affidavits shall be furnished to the opposing party or its counsel at least ten (10) days, excluding Saturdays, Sundays, and holidays, prior to the hearing. The notice of filing shall provide that the opposing party or its counsel shall not be entitled to question any of the affiants unless the opposing party or its counsel properly notifies the opposing party or its counsel that cross-examination is desired. The notice shall designate whether the affiant is to be cross-examined at the hearing or by deposition. Unless the notice is properly filed within the time specified, which shall be seven (7) days, excluding Saturdays, Sundays, and holidays, after receipt or service, the right to cross-examination such affiant is waived. If the affidavit is introduced into evidence, it shall be given the same effect as if the affiant had testified orally.(a) Counsel for the Commissioner shall proceed, after duly giving notice of the hearing, by giving notice of filing of affidavits providing the factual basis for the violation of the provisions requiring documentation for employees as a condition of licensure, which shall be introduced as evidence at the hearing.(10) Evidence. Pursuant to Tennessee Code Annotated § 4-5-313, evidence shall be introduced subject to the approval of the ALJ or Commissioner's Designee. The ALJ or Commissioner's Designee shall receive into evidence and give probative effect to evidence admissible in a court. When necessary to ascertain facts not reasonably susceptible to proof under the rules of court, other evidence such as affidavits and authenticated documents properly filed with notice to the opposing party or its counsel may be admitted if it is of a type commonly relied upon by reasonable prudent persons in the conduct of their affairs.(11) Witness and Exhibit List. At least seven (7) days, excluding Saturdays, Sundays, and holidays, prior to the hearing, each party shall be required to disclose the names and addresses of all proposed witnesses and a list of all proposed exhibits, and these shall be filed with the ALJ or Commissioner's Designee and served on the opposing party or its counsel. Copies of all exhibits, which are proposed to be offered, shall be made available to the opposing party or its counsel upon request made no less than five (5) days, excluding Saturdays, Sundays, and holidays, prior to the hearing.(12) Pre-hearing Motions and Briefs. All pre-hearing motions and briefs shall be filed with the ALJ or Commissioner's Designee no later than fifteen (15) calendar days prior to the hearing.(13) Pre-hearing Conference. Either party may request a pre-hearing conference by telephone or in person with the ALJ or Commissioner's Designee. Such request shall be made at least fifteen (15) days, excluding Saturdays, Sundays, and holidays, prior to the hearing. It lies entirely within the discretion of the ALJ or the Commissioner's Designee whether or not to grant such a request.(14) Failure to comply with any lawful order of the ALJ or Commissioner's Designee, necessary to maintain the orderly conduct of the hearing, shall be deemed a failure to participate and thereby be cause for holding the offending party in default.(15) Order of Proceedings. This shall be the order of proceedings for the hearing of contested cases: (a) The ALJ or Commissioner's Designee shall call the hearing to order, give a brief statement of the nature of the proceedings, determine whether counsel represents the person alleged to have violated the Act, and if so, identify counsel, counsel for the commissioner, and any other officials who may be present at the hearing for the record. If the person alleged to have violated the Act admits the violation(s), no further proof may be necessary, other than introduction of evidence pertaining to the proper remedy.(b) Witnesses. Either party shall be entitled to have the ALJ or Commissioner's Designee order all witnesses sequestered from the hearing room except during their testimony. Prior to sequestering the witnesses to the witness waiting room, the ALJ or Commissioner's Designee shall swear in the witnesses and instruct them that they are not to discuss the case or their testimony while the case is proceeding. The parties may have one appropriate individual, who may also be a witness, act as its party representative.(c) The ALJ or Commissioner's Designee may consider any preliminary motions, stipulations, or agreed orders, and may allow opening statements by the parties.(d) The Commissioner calls witnesses and questioning proceeds with direct examination, cross-examination by the person alleged to have violated the Act and any proper redirect and re-cross-examination as the ALJ or Commissioner's Designee deems appropriate. The parties shall be allowed to call appropriate rebuttal and rejoinder witnesses with examination proceeding as previously outlined. The ALJ or Commissioner's Designee shall permit closing arguments unless waived by the parties.(16) Burden of Proof.(a) At the contested case hearing, the Commissioner shall have the burden of proof to show that the person violated the Act by clear and convincing evidence.Tenn. Comp. R. & Regs. 0800-07-01-.05
Original rule filed January 4, 2008; effective May 30, 2008Authority: 2007 Tennessee Public Acts Chapter 529, T.C.A. §§ 4-5-307(b), 4-5-311(b), and 4-5-313.