Ala. Admin. Code r. 746-X-4-.05

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

Section 746-X-4-.05 - Formal Hearings

(1) Conduct of Hearing.

(a) Hearing Officer. The Presiding Officer shall appoint a person to act as an impartial hearing officer at any disciplinary hearing. A hearing officer may be an attorney licensed to practice law in the State of Alabama, or may be any person with experience and qualifications necessary to carry out the duties if the hearing officer. Such hearing officer shall preside at the hearing and shall rule on all questions of evidence and procedure, notwithstanding any other provisions of these rules to the contrary. The hearing officer shall be compensated at a rate to be prescribed by the Board for services actually performed pursuant to a contractual agreement entered into between the Board and the hearing officer. Subject to the restrictions concerning participation in prosecution and conflict of interest, a hearing officer may be an employee of the Board.

1. The general duties of the hearing officer shall be to guide and direct the course of contested cases before the Board, to advise the Board on matters of law and evidence pertaining to those contested cases and to assist the Board in the preparation of orders and decrees resulting from hearings on contested cases. Specifically, the hearing officer shall be empowered to:

(i) Rule upon any motions contesting or challenging the legal sufficiency of a complaint, order to show cause, or other document which is the basis of a contested case, subject to the limitation set forth in paragraph (e) below.

(ii) Rule on all pre-hearing motions by all parties to a contested case except that the hearing officer may not grant a continuance or postponement of a hearing in a contested case without the consent of the Presiding Officer of the Board.

(iii) Order the attendance of parties and/or attorneys at hearings and conferences on matters related to the contested case.

(iv) Establish on behalf of the Board submission dates, deadlines, and time tables, which shall be binding on the parties in all matters related to the orderly conduct of the contested case.

(v) Enter orders on behalf of the Board when the Board is not in session on legal matters related to a pending contested case, except that the hearing officer is not authorized to dismiss a complaint. The hearing officer may order the complainant to file a more definite statement or to amend his complaint to provide additional information. Dismissal of a complaint will only be upon the order of the Board.

(vi) Administer oaths and to certify the authenticity of documents when required in the discharge of his duties as hearing officer in a contested case.

(vii) Direct that evidence relevant to the general character and reputation of the applicant be submitted in writing by affidavit or to place a reasonable limitations upon the number of witnesses permitted to testify as to the character and reputation of the applicant.

(viii) Render advice to the Presiding Officer of the Board on the conduct of all aspects of hearings on contested cases.

2. Except as limited above, the hearing officer is authorized to rule on all legal matters including motions addressed to the sufficiency of the complaint, objections to the evidence, motions to dismiss for lack of evidence, and any other matters requiring legal opinion. The ruling of the hearing officer shall be deemed to be the official ruling of the Board unless that ruling is challenged by a member of the Board, in which case the Board shall consider the challenge to the ruling of the hearing officer outside the presence of the parties and may affirm, modifying or overrule the decision of the hearing officer.

3. When directed by the Board, the hearing officer shall prepare a recommended final order. The Board may accept, reject or modify the hearing officers final recommended order. The final order shall be executed and authenticated in the manner prescribed by the Board.

4. When directed by the Board, the hearing officer shall notify all parties to the hearing of the final order of the Board.

5. The person appointed by the Board to act as a hearing officer in the contested case shall not have participated in the investigation or prosecution of the licensee in the matters pertaining to the contested case. The hearing officer shall not have a manifest conflict of interest with any party in a contested case.

(i) Plea. The respondent shall plea either "guilty" or "not guilty" to the charges set forth in the complaint.

(ii) Opening Statement. Each side shall be permitted to make a short opening statement.

(iii) The state shall present its evidence, followed by the respondent, followed by rebuttal by the state.

Each witness called may be examined in the following manner:

(I) Direct examination

(II) Cross examination

(III) Examination by the Board

(IV) Re-direct examination

(V) Re-cross examination

(VI) Re-examination by the Board

(iv) Closing Argument. Each side shall be permitted to make a short closing statement summarizing the evidence presented and urging the application of relevant law to the evidence presented.

(v) Order. The Board shall issue an Order, which shall include findings of fact, official notice taken and conclusions of law, separately state. The licensee shall be delivered a copy of the Order by certified mail, return receipt requested, and a copy shall be mailed first class to the attorney of record.

(2) Plea of Guilty and Waiver of Hearing. Upon the terms acceptable to the Board, the Board attorney may offer a Respondent the opportunity of a settlement of the charges of the complaint which such settlement may include the entering by the Respondent of a plea of guilty to some or all of the charges of a complaint, thereby waiving any hearing on the charges of the complaint. Upon the Board's acceptance of a Respondent's guilty plea to one or more charges of a complaint, the Board may enter an order within a reasonable time thereafter revoking or suspending the Respondent's license, and/or fining the Respondent in accordance with Rules 746-X-4-.06.

(3) Evidence. Evidence shall be admitted in accordance with the Alabama Administrative Procedures Act found at Section 41-22-13 of the Code of Ala. 1975. The probable cause note and any attachments thereto shall be admitted into evidence as a portion of the complaint without further authentication.

(4) Emergencies. The Board may in any emergency situation when danger to the public health, safety, and welfare requires, suspend a license without hearing or with an abbreviated hearing as provided for in Section 41-22-19(d) of the Code of Ala. 1975.

(5) Other. The hearing shall otherwise be conducted in compliance with the provision of the Alabama Administrative Procedures Act.

Ala. Admin. Code r. 746-X-4-.05

New Rule: Filed August 8, 2003; effective September 12, 2003. Amended: Filed December 17, 2004; effective January 21, 2005. Amended: Filed December 16, 2005; effective January 20, 2006.

Authors: Joseph C. Elliott, Glenn Crumpton

Statutory Authority:Code of Ala. 1975, § 34-25A-1 -14.