Ala. Admin. Code r. 335-2-1-.14

Current through Register Vol. 43, No. 1, October 31, 2024

Section 335-2-1-.14 - Hearing Procedure

(1) A hearing to contest an administrative action of the Department shall be commenced in Montgomery, Alabama within a reasonable time, not to exceed forty-five days after the making and filing of a proper request in accordance with Rule 335-2-1-.04.

(2) Upon motion of any of the parties, the Commission or Hearing Officer may delay the commencement of the hearing if all parties agree to waive the forty-five day period for commencement of the hearing set forth in subsection (1) above.

(3) The testimony of all parties and witnesses shall be made under oath administered by the Commission or Hearing Officer.

(4) All testimony or comments given in any hearing before the Commission or Hearing Officer shall be electronically or stenographically recorded. Parties wishing to obtain a copy of the transcript may make arrangements with the court reporter to receive a copy at their expense or may purchase a copy from the Department.

(5) The parties shall not be bound by the strict rules of evidence prevailing in the courts. The Commission or Hearing Officer shall admit all evidence that is not irrelevant, immaterial, unduly repetitious, confidential, privileged or otherwise unreliable or of little probative value, except that offers of compromise are not admissible. The Commission or Hearing Officer shall preserve the confidentiality of trade-secrets and other commercial or financial information. The Commission or Hearing Officer may make such orders as may be necessary to consider such evidence in camera to address questions of law, fact, or discretion which arise out of that portion of the evidence which includes secrets, confidences, or privileged information.

(6) Each party shall be entitled to respond and present evidence and argument on all material issues properly before the Commission. The burden of going forward with the evidence shall be on the party requesting the hearing. The hearing shall be conducted as a de novo proceeding.

(7) Each party shall be entitled to present opening statements and closing arguments, oral or written, or both.

(8) Witnesses shall be examined orally, under oath or affirmation, except as otherwise provided in these rules or by the Commission or Hearing Officer. Parties shall have the right to cross-examine a witness who appears at the hearing provided that such cross-examination is not unduly repetitious.

(9) The Commission or Hearing Officer may admit and insert into the record as evidence, in lieu or oral testimony, statements of fact or opinion prepared by a witness, provided such statements are served on all parties not later than five (5) days before the hearing. The admissibility of the evidence contained in the statement shall be subject to the same rules as if the testimony were produced under oral examination. Before any such statement is read or admitted into evidence, the witness shall deliver a copy of the statement to the Commission or Hearing Officer, the reporter, and opposing counsel. The witness presenting the statement shall swear to or affirm the statement and shall be subject to appropriate oral cross-examination upon the contents thereof.

(10) The Commission or Hearing Officer may admit into evidence depositions of witnesses who are not subject to the subpoena power of the Commission or who are unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity or call to military duty.

(11) Where practicable, an original and seven copies of each exhibit shall be filed with the Commission or Hearing Officer for the record and a copy shall be furnished to each party. Each party shall be responsible for submitting the required number of copies of each exhibit that party offers into evidence, except that the Department shall provide the required number of copies of any exhibit that is taken from the Department's files. A true copy of any exhibit may be substituted for the original. Any party who wishes may arrange for the court reporter to make the requisite number of copies of each exhibit; however, the requesting party shall pay the court reporter for all such copies.

(12) Official notice may be taken of any matter judicially noticed in the courts of Alabama and of any scientific or technical facts within the specialized knowledge of the agency. Opposing parties shall be given adequate opportunity to show that such facts are erroneously noticed.

(13) Any objection concerning the conduct of the hearing may be stated orally or in writing during the hearing. The party raising the objection shall supply a short statement of its grounds. The ruling by the Commission or Hearing Officer on any objection and the reasons given for it shall be part of the record. An exception to each objection shall be automatic and is not waived by further participation in the hearing.

(14) Whenever evidence is excluded from the record, the party offering the evidence may make an offer of proof, which shall be included in the record. The offer of proof for excluded oral testimony shall consist of a brief statement describing the nature of the evidence excluded. The offer of proof for excluded documents or exhibits shall consist of the insertion in the record of the documents or exhibits excluded.

(15) At any time after the commencement of a hearing to contest an administrative action of the Department, the Commission or Hearing Officer may on its own initiative, or on the motion of any party, adjourn the hearing to a later time and/or different place. If any party raises an issue at hearing which was not included in the pre-hearing order, the Hearing Officer shall allow the issue to be raised only upon a finding that it is based upon newly discovered evidence that was not known and could not have been know at the time of the pre-hearing order. If the issue is allowed, the Hearing Officer shall, upon request of the other party, delay the hearing for a period of at least five working days, if he determines that the party will be prejudiced if no continuance is granted.

(16) Within ten (10) days after the parties are notified of the availability of the transcript, or within such longer time as may be fixed by the Commission or Hearing Officer, any party may submit for consideration of the Commission or Hearing Officer proposed findings of fact, conclusions of law, and a proposed order, together with briefs in support thereof. The Commission or Hearing Officer shall set a time by which reply briefs must be submitted and may set a page limit for said briefs. All submissions shall be in writing, shall be served upon all parties, and shall contain adequate references to the record and authorities relied upon.

(17) A hearing to contest an administrative action of the Department is concluded on the date when all evidence, other submissions, testimony, comments, briefs, opening statements, and closing arguments have been received or heard by the Commission or its designated Hearing Officer and all motions have been ruled upon.

Authors: David A. Ludder, Olivia H. Jenkins

Ala. Admin. Code r. 335-2-1-.14

Effective July 1, 1983. Amended: October 10, 1984. Amended: Filed September 27, 1994; effective November 1, 1994.

Statutory Authority:Code of Ala. 1975, §§ 22-22A-5, 22-22A-6, 22-22A-7, 22-22A-8.