La. Admin. Code tit. 46 § VII-1107

Current through Register Vol. 50, No. 11, November 20, 2024

Section VII-1107 - Conduct of Formal Hearing

A. Initiating the Process

1. The board initiates a formal hearing by issuing full notice of the hearing. A formal hearing may be the result of a complaint made by any manner specified in the informal procedures.

2. Once full notice of the formal hearing has been served, no board member or officially designated hearing officer may communicate with any party to a formal hearing or to that party's representative concerning any issue of fact or law involved in that formal hearing.

3. Full Notice. The written notice shall recite specific acts which the licensee is alleged to have committed and shall assert that those acts violate a statute or rule of the board.

a. Notice shall include:

i. a statement of the date, time, place and nature of the hearing;

ii. a statement of the legal authority and jurisdiction under which the hearing is to be held;

iii. a reference to the particular sections of the statutes, rules, or ethical standards involved;

iv. a short and plain statement of the matters asserted which shall be the subject of the hearing;

v. a statement of the rights of the parties.

b. Notice shall be given to all parties 30 days in advance of the proceedings to allow a reasonable opportunity for preparation.

c. The notice shall be delivered by registered or certified mail, return receipt requested. If the licensee can not be found by this or other reasonable methods, the board may hold a hearing in the licensee's absence.

note: It is the licensee's obligation to keep the board informed of his/her whereabouts.

d. The content of the notice limits the scope of the hearing and of the evidence which may be introduced.

e. If the agency or other party is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter, upon application, a more definite and detailed statement shall be furnished.

4. Designation of a Hearing Officer

a. The hearing officer is responsible for ensuring that the hearing is orderly and fair and that it progresses in an expeditious manner. This officer is empowered to prepare written findings of fact and conclusion which shall be recommended to the board.

b. The board shall designate a hearing by affirmative vote of a majority of its members.

c. The hearing officer shall be unbiased and qualified to preside over the case. A designated hearing officer shall withdraw when that officer can not accord a fair and impartial hearing or consideration.

d. Any party may request the disqualification of a hearing officer on the ground of inability to give a fair and impartial hearing by filing an affidavit (which states the specific grounds) within three days of receipt of notice of the designation of the hearing officer. The issue shall be determined promptly by the board.

e. The hearing officer shall not be a current member of the board.

B.

1. Discovery

a. Depositions and interrogatories of witnesses may be taken and shall be admissible in the proceedings.

b. Evidence which was not made available to both parties at least five days in advance may be barred from the introduction.

c. Evidence not within the scope of the notice may be excluded.

d. When the interest of the parties will not be prejudiced substantially, any part of the evidence may be received in written form.

e. Documentary evidence in possession of the board may be received in the form of copies of excerpts, or by incorporation by reference.

f. Official notice may be taken of generally recognized technical or scientific facts. However, parties shall be afforded an opportunity to contest the material so noticed.

2. Subpoenas. The Louisiana Department of Justice Disciplinary Action Manual for Occupational Licensing Boards by William J. Guste Jr., Attorney General. Section 10.2 Subpoena Authority: Boards are empowered by statute to issue subpoenas, and in Louisiana, the statutes allow the board to issue a subpoena when requested in writing by any party in a contested case. Either side in a contested hearing may request that a subpoena be issued. It is generally required that the information called for by a subpoena must be reasonable in terms of amount required and that it must relate to the matter under consideration. A subpoena deuces tecum should be reasonable in scope and should be limited to documentary material that is relevant to the proceeding.

a. The board or its designated hearing officer may sign and issue subpoenas when requested in writing by any party to a contested case.

b. The information called for by a subpoena shall be reasonable and shall relate to the matter under consideration.

c. Investigative subpoenas are issued at the discretion of the hearing officer.

d. If the person fails to comply with a subpoena, the board may apply to the judge of the appropriate district court for an attachment as for a contempt.

3. Motions

a. A request to the board or the hearing officer by a party for a particular action should be made in the form of a motion.

b. A motion may be made before, during or after a hearing.

c. All motions must be made at an appropriate time.

d. Motions made before or after the hearing shall be made in writing. Motions made during the course of the hearing may be made orally.

e. Motions are directed to the hearing officer who shall dispose of them appropriately.

f. A party may not submit written proposed findings of fact.

g. The hearing officer may refer a motion to the board.

C. Formal Hearing Procedures

1. Conduct of a Hearing

a. The members of the board shall be present for hearing.

b. The hearing will be conducted in accordance with the Administrative Procedure Act, R.S. 49:955-966.

i. Opportunity shall be afforded all parties to respond and present evidence on all issues of fact involved and argument on all issues of law and policy involved and conduct such cross-examination as may be required for a full and true disclosure of facts.

ii. Objections to evidentiary offers may be made and shall be noted in the record.

c. The hearing will be open to the public.

d. Order of Proceedings

i. The hearing officer calls the session to order, identifies the case, subject of the case, and cites the authority for holding the hearing.

ii. The hearing officer asks the parties to identify themselves and their counsel.

iii. All testimony shall be given under oath, such oath to be administered by the hearing officer.

iv. Customary order of the proceedings should be followed at the discretion of the hearing officer.

2. Evidence

a. In determining the admissibility of evidence, the hearing officer must follow the rules governing administrative hearings in Louisiana.

b. Constitutional guarantees of due process give the licensee a right to a decision based on the evidence presented at the hearing or officially noted in the record.

D. Final Decision of the Board

1. The board must determine whether the facts in the case support the charges brought against the licensee. It must determine whether the charges are a violation of R.S. 37:341, 37:392 et seq., or other rules and regulations of the board.

2. The board accepts a proposed order from the hearing officer setting forth the findings of facts and conclusions of the hearing. The board may adopt such findings and conclusions in whole or in part. Any board members not present at the hearing must review the record prior to such decision.

3. The decision must be accompanied by a statement of the reasons for the decision and must dispose individually of each issue of fact or law necessary from the hearing officer.

4. The board's decision shall be based on the evidence and the proposed decision from the hearing officer.

5. The vote of the board must be recorded and made part of the decision. A majority vote must be obtained in order for a violation to be judged to have occurred.

6. The board determines the sanctions appropriate and consistent with law. The board may decide to revolve or suspend a license or fine the licensee.

7. The final decision shall be delivered to each party by registered or certified mail, return receipt requested.

8. The final decision shall be delivered within 30 days of the close of the hearing.

9. The final decision shall become effective 11 days after the receipt of notification of all parties, provided that there is no appeal. Publication shall be withheld until that date.

E. Appeal of Board Decision

1. A petition by a party for reconsideration of hearing must be in writing and filed with the board within 10 days after receipt of board's final decision. The petition must set forth the grounds for rehearing which must be one of the following:

a. the board's decision is clearly contrary to the law and the evidence;

b. there is newly discovered evidence, which was not available to the licensee at the time of the hearing and which may be sufficient to reverse the board's action;

c. there is a showing that issues not previously considered ought to be examined in order to dispose of the case properly; or

d. it would be in the public interest to further consider the issues and the evidence.

2. If a petition for reconsideration is denied, a party may proceed to seek judicial review of the decision.

3. Judicial review may be initiated by filing a petition in the appropriate district court within 30 days after mailing or notice of the final decision of the hearing or rehearing.

F. Case Record

1. A complete case record must be maintained for each formal hearing.

2. The record must be retained until the time for any appeal has expired, or until the appeal has concluded.

3. The case record shall be composed of all material officially noted.

G. Notification of Final Actions. Upon completion of the final decision, expiration of the time for any appeal, or conclusion of appeals. the board shall notify all affected parties of its actions.

La. Admin. Code tit. 46, § VII-1107

Adopted by the Department of Labor, Board of Barber Examiners (July 1964), amended and promulgated LR 13:25 (January 1987), repromulgated by the Department of Employment and Training, Board of Barber Examiners, LR 17:356 (April 1991).

AUTHORITY NOTE: Promulgated in accordance with R.S. 37:381.