Ala. Admin. Code r. 630-X-3-.11

Current through Register Vol. 43, No. 02, November 27, 2024

Section 630-X-3-.11 - Hearing: Rules Of Procedure

At the date, time, and place previously set for the hearing, the Board shall convene and if there is a quorum present proceed to hear the charges under the following rules of procedure:

(a) A quorum of the Board must be present at all times during the hearing. The president shall preside or in the president's absence the normal progression to the chair shall be followed. If a member or agent of the Board shall have filed the complaint of charges under consideration at the hearing, then that member or agent of the Board shall not participate in the hearing other than to offer evidence as a witness.

(b) The subpoenaed witnesses shall be called, sworn, and with the exception of the accused person and the complainant shall be excluded from the hearing, except when testifying. If a witness fails to appear, the party subpoenaing the witness may present to the opposing party a written statement of what the witness would testify to if present and, if agreed upon by the other party, the statement shall be admitted in evidence and given the same weight as if the witness had testified in person.

(c) If any subpoenaed witness fails to appear, refuses to be sworn, refuses to be examined, or refuses to produce a book, record, paper or other document as ordered by the Board, such facts shall be certified by the Board to the circuit court or the judge thereof in the county where such witness resides for action by such court or judge as is provided by law. Unless a written statement is submitted and agreed to for any such witness as provided above, upon motion of the party subpoenaing the witness, the hearing shall be continued for appropriate action with reference to such witness by the circuit court or judge of the county wherein such witness resides.

(d) The Board's legal counsel shall first present witnesses and other evidence in support of the charges specified. The accused person or legal counsel thereof shall have the full and free right to cross-examine all witnesses testifying against the accused.

(e) Upon conclusion of all witnesses and other evidence presented by the Board's legal counsel, the accused person or legal counsel thereof shall present witnesses and other evidence in the accused's defense to the charges specified. The Board's legal counsel shall have the full and free right to cross-examine such witnesses.

(f) Upon conclusion of testimony presented by witnesses called for the accused's defense, the Board's legal counsel shall have the opportunity to offer rebuttal witnesses and testimony.

(g) The rules of evidence as applied in non-jury civil cases in the circuit courts of the state shall be followed.

(h) The Board shall have the hearing proceedings recorded either by a mechanical means or by a court reporter. If the accused person desires a transcript of the recorded proceedings, the expense of said transcript shall be borne by the accused person.

(i) Upon completion of all evidence, the Board's legal counsel and the accused person or legal counsel thereof shall have the opportunity of presenting closing arguments to the Board as follows: Board's legal counsel first, accused person or counsel thereof second, and then the Board's legal counsel shall close.

(j) Upon conclusion of all evidence and arguments, the Board shall proceed, in open meeting, to consider the charges and evidence submitted in connection therewith. If a member or agent of the Board shall have filed the complaint of charges under consideration, then said member or agent shall not participate in the consideration of charges specified above. If a majority of the quorum of members of the Board conducting the hearing shall find the charges are untrue, frivolous, or without probable cause as established by evidence, then the Board shall forthwith enter an order dismissing the charges. If, on the other hand, a majority of the quorum of members of the Board conducting the hearing shall find that the charge(s) are of merit and proven to their satisfaction, then the Board shall, within 30 days of the hearing's conclusion, render a final order consistent with Code of Ala. 1975, §§ 41-22-15, 41-22-16, which sections are adopted herein by reference.

(k) In all cases of suspension or revocation of licenses, fines, or of other disciplinary sanctions imposed by the Board as provided for by law, the accused person may appeal only to the circuit court of Montgomery County, Alabama. In all cases of suspension or revocation of licenses, the order specifying such sanction shall contain instructions relating the methods and requirements for the reinstatement of said licenses. Except as may otherwise be provided herein to the contrary, judicial review of the orders and decisions of the Board shall be governed by the provisions of Code of Ala. 1975, § 41-22-20, which section is adopted herein by reference.

(l) Members of the Board of Optometry, any optometrists impaneled by the Board, and any optometrist or other individual making any report or rendering any opinion or supplying any evidence or information or offering any testimony to the Board in connection with a disciplinary investigation or proceeding as authorized in this chapter shall be immune from suit for any conduct with respect to such investigations, actions, hearings, and proceedings.

Author: Dr. Larry Carter

Ala. Admin. Code r. 630-X-3-.11

Filed July 9, 1990. Amended: Filed August 28, 1995; effective October 2, 1995.

Previous rule (same title) filed September 13, 1982. Repealed: Filed July 9, 1990.

Statutory Authority:Code of Ala. 1975, §§ 34-22-8, 41-22-13, 41-22-16, 41-22-20.