Current through Register Vol. XLI, No. 24, June 14, 2024
Section 6-4-3 - Public Hearing Procedures3.1. Definitions. 3.1.1. Charged Party. For the purposes of this rule, the term Acharged party@ means an individual who holds a license or holds a certificate of registration issued by the Board and who has been charged by the Board as described in these rules.3.1.2. Demanding Party. For the purpose of this rule, the term Ademanding party@ means an individual who has been denied a license or a certificate of registration by the Board and who, as a result, demands that a hearing be held before the Board on the issue of denial, suspension, or revocation.3.2. Hearing Procedures. 3.2.1. Any person denied a license or certificate of registration, or had a license or certificate of registration suspended or revoked by the Board who believes the denial, suspension or revocation was a violation of W. Va. Code ''30-1-1 et seq and/or 30-6-1 et seq. is entitled to a hearing on the action denying the license.3.2.2. Any person who desires a hearing for the reason described in subsection 3.2.1. of this section must present a written demand for a hearing to the Board.3.2.3. When the president of the Board or his or her authorized designee is presented with a demand for a hearing, he or she shall schedule a hearing within forty-five (45) days of receipt by him or her of the written demand, unless a hearing is postponed to a later date by mutual agreement.3.2.4. Charges may be instituted against any licensee or registrant, by the Board when reasonable cause exists for believing that the licensee or registrant, may have engaged in conduct or be in such condition that the license should be suspended, revoked or otherwise disciplined for one or more of the grounds set forth in W. Va. Code '30-6-1 et seq. or this rule. Charges may be based upon information received by a verified written complaint filed with the Board and further information gathered by the Board in the process of investigating the complaint. Charges may also be based upon information received solely through investigative activities undertaken by the Board.3.2.5. Charges instituted against a licensee or registrant as described in subsection 3.2.4 of this section shall be set forth in a complaint and notice of hearing issued in the name of the Board as the agency of the State regulating the practice of embalming, cremation, funeral directing and selling of funeral goods. The complaint and notice of hearing shall designate the Board as the Acomplainant@, and shall designate the licensee, or registrant involved in the proceeding as the Arespondent@; shall set out the substance of each offense charged with sufficient particularity to reasonably apprise the respondent of the nature, time and place of the conduct or condition complained of; shall state the date, time and place for the hearing; and, shall contain a statement of intention by the Board to appoint a hearing examiner.3.2.6. Upon receipt of a demand for a hearing described in subsection 3.2.1 and 3.2.2. of this section, the president or his or her designee shall provide the demanding party with a complaint and notice of hearing issued in the name of the Board as the agency of the state regulating the practice of embalming, cremation, funeral directing and selling of funeral goods. The complaint and notice of hearing shall designate the demanding party as the Acomplainant@ and shall designate the Board as the Arespondent@; shall set out the substance of each and every reason that the Board has denied the demanding party a license with sufficient particularity to reasonably apprise the demanding party of the nature, time and place of the conduct or condition at issue; shall state the date, time and place for the hearing; and, shall contain a statement of intention by the Board to appoint a hearing examiner.3.2.7. The Board may amend the charges set forth in a complaint and notice of hearing as it considers proper.3.2.8. A complaint and notice of hearing shall be served upon the demanding or charged party at least thirty (30) days prior to the date of the hearing.3.2.9. Upon written motion received by the Board no later than thirty (30) days prior to the date of the hearing, a more definite statement of the matters charged or the reasons stated for denial, suspension or revocation of licensure shall be provided to the demanding or charged party or his or her counsel, at least fifteen (15) days prior to the hearing date.3.2.10. Hearings shall be conducted as follows: a. Any party to a hearing has the right to be represented by an attorney-at-law, duly qualified to practice law in the State of West Virginia.b. The Board shall be represented by the West Virginia Attorney General=s Office at no additional compensation.c. Irrelevant, immaterial, or unduly repetitious evidence shall be excluded from the hearing. Furthermore, the rules of evidence as applied in civil cases in the circuit courts of this State shall be followed. However, when necessary to ascertain facts not reasonably susceptible of proof under those rules, evidence not admissible thereunder may be admitted, except where precluded by statute, if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs.d. The rules of privilege recognized by the law of this State shall be followed.e. Objections to evidentiary offers shall be noted in the record. Any party to the hearing may vouch the record as to any excluded testimony or other evidence.f. Any party to a hearing may appear with witnesses to testify on his or her behalf; may be heard in person, by counsel or both; may present such other evidence in support of his or her position as considered appropriate by the Board or its designated hearing examiner; and, when appropriate, may cross-examine witnesses called by the Board in support of the charges or in defense of its decision to deny licensure.g. The hearing shall be held at such time and place as is designated by the Board, but no hearing shall be conducted unless and until at least thirty (30) days written notice thereof has been served upon the charged or demanding party and/or his or her attorney in person; or if he or she cannot be found, by delivering the notice at his or her ususal place of abode, and giving information of its purport, to the party=s spouse, or to any other person found there who is a member of his or her family and above the age of sixteen (16) years; or if neither the spouse nor any such person can be found there, and he or she cannot be found, by leaving the notice posted at the front door of such place of abode; or if he or she does not reside in this State, the notice may be served by the publication thereof once a week for three (3) successive weeks in a newspaper published in this State; or the notice may be served by registered or certified mail to the licensee=s last known address as filed with the Board.h. The hearing shall be open to the general public.i. Members of the Board and its officers, agents and employees shall be competent to testify at the hearing as to material and relevant matters: Provided, that no member of the Board who testifies at the hearing shall thereafter participate in the deliberations or decisions of the Board with respect to the case in which he or she testified.j. The hearing may be conducted by one or more Board members or by a hearing examiner appointed by the Board.k. A record of the hearing, including the complaint(s), if applicable, the notice of hearing, all pleading, motions, rulings, stipulations, exhibits, documentary evidence, evidentiary depositions and the stenographic report of the hearing shall be made and a transcript thereof maintained in the Board=s files. Upon request, a copy of the transcript shall be furnished to any party at his or her expense.l. Documentary evidence may be received in the form of copies or excerpts or by incorporation by reference.m. Where a hearing is held upon the instance if the Board after charges have been brought against a licensee or registrant pursuant to subsections 3.2.4. and 3.2.5. of this section, the Board has the burden of proof and shall present its evidence and/or testimony in support of the charges first.n. Where a hearing is held upon demand under the provision of subsections 3.2.1., 3.2.2., 3.2.3., and 3.2.5. of this section, the demanding party has the burden of proof and is therefore be required to present his or her evidence first.o. Following the conclusion of the demanding party=s presentation of evidence in accordance with subsection 3.2.10.(m) of this section, the Respondent or charged party has the right to submit his or her evidence in defense.p. Following the conclusion of the demanding party=s presentation of evidence in accordance with subsection 3.2.10.(n) of this section, the Board has the right to submit its evidence in defense.q. The Board may call witnesses to testify in support of its decision to deny licensure or in support of the charges instituted against a licensee; may present other evidence to support its position; and, may cross-examine witnesses called by the demanding party or charged party in support of his or her position.r. All parties have the right to offer opening and closing arguments, not to exceed ten (10) minutes for each presentation.s. Hearings held by the Board as a result of charges instituted against a licensee or registrant may be continued or adjourned to a later date or a different place by the Board or its designee by appropriate notice to all parties.t. Motion for a continuance of a hearing may be granted upon a showing of good cause. Motions for continuance must be in writing and received in the office of the Board no later than seven (7) days prior to the hearing date. In determining whether good cause exists, the Board will consider the ability of the party requesting the continuance to proceed effectively without a continuance. The Board shall deny a motion for a continuance filed less than seven (7) days from the date of hearing unless the reason for the motion could not have been ascertained earlier. Motions for continuance filed prior to the date of hearing may be ruled on by the Executive Director or Assistant Executive Director of the Board or designated hearing examiner. All other motions for continuance shall be ruled on by the Board member(s) or the hearing examiner presiding over the hearing.u. All motions related to a case set for hearing before the Board, except motions for continuance and those made during the hearing, shall be in writing and shall be received in the office of the Board at least ten (10) days before the hearing. Prehearing motions shall be heard at a prehearing conference or at the hearing prior to the commencement of testimony. The Board member(s) or the hearing examiner presiding at the hearing shall hear the motions and the response from the non-moving party and shall rule on the motions accordingly.3.3. Transcript of Testimony and Evidence. 3.3.1. All testimony, evidence, arguments and ruling on the admissibility of testimony and evidence shall be recorded by stenographic notes and characters or by mechanical means.3.3.2. All recorded materials shall be transcribed. The Board has the responsibility to make arrangement for the transcription of the recorded testimony and evidence.3.3.3. Upon the motion of the Board or any party assigning error or omission in any part of any transcript, the Board or its appointed hearing examiner shall settle all differences arising as to whether the transcript truly discloses what occurred and shall revise the transcript as appropriate so as to make it conform to the truth.3.3.4. A transcript of the hearing shall be provided to all members of the Board for review.3.4. Submission of Proposed Findings of Fact and Conclusions of Law. Any party may submit proposed findings of fact and conclusions of law at a time and manner designated by the Board or its duly appointed hearing examiner.3.5. Hearing Examiner.3.5.1. The Board may appoint a hearing examiner who may subpoena witnesses and documents, administer oaths and affirmations, examine witnesses under oath, rule on evidentiary matters, hold conferences for the settlement or simplification of issues by consent of the parties, cause to be prepared a record of the hearing so that the Board is able to discharge its functions and otherwise conduct hearings as provided herein.3.5.2. Hearing examiners appointed by the Board are not authorized or empowered to grant, suspend, revoke or otherwise discipline any licensee or registrant.3.5.3. The hearing examiner shall prepare recommended findings of fact and conclusions of the law for submission to the Board. The Board may adopt, modify or reject the findings of fact and conclusions of law.3.6. Conferences; Informal Disposition of Cases. 3.6.1. At any time prior to the hearing or thereafter, the Board, its designee or its duly appointed hearing examiner may hold conferences for the following purposes: a. To dispose of procedural requests, prehearing motions or similar matters;b. To simplify or settle issues by consent of the parties; or c. To provide for the informal disposition of cases by stipulation or agreement.3.6.2. The Board or its appointed hearing examiner may cause the conferences to be held on its own motion or by the request of a party.3.6.3. The Board may also initiate or consider stipulation or agreement proposals with regard to the informal disposition of cases and may enter into the stipulations and/or agreements without conference.3.7. Dispositions. Evidentiary depositions may be taken and read or otherwise included into evidence as in civil actions in the circuit courts of this State.3.8. Subpoenas. 3.8.1. Subpoenas to compel the attendance of witnesses and subpoenas duces tecum to compel the production of documents may be issued by the Board, its executive director, assistant executive director, and by the hearing examiner appointed by the Board. The subpoenas shall be issued pursuant to W. Va. Code '29A-5-1(b).3.8.2. Written requests by a party for the issuance of subpoenas or subpoenas duces tecum as provided in subsection 3.8.1. of this section must be received by the Board no later than ten (10) days before a scheduled hearing. Any party requesting the issuance of subpoenas or subpoenas duces tecum shall see that they are properly served in accordance with W. Va. Code '29A-5-1(b).3.9. Orders. 3.9.1. Any final order entered by the Board following a hearing conducted pursuant to these rules shall be made pursuant to the provisions of W. Va. Code ''29-5-3 and 30-1-8(d). The orders shall be entered within forty-five (45) days following the submission of all documents and materials necessary for the proper disposition of the case, including transcripts, and shall contain findings of fact and conclusions of law.3.9.2. The findings of fact and conclusions of law must be approved by a majority of the Board either by a poll or vote at a regular meeting, before a final order is entered. A copy of the final order approved by a majority of the Board shall be served upon the demanding or charged party and/or his attorney of record, if any, within five (5) days after entry by the Board by personal service or by registered or certified mail.3.10. Appeals. An appeal from any final order entered in accordance with these rules shall comply with the provisions of W. Va. Code '29A-5-4.