La. Admin. Code tit. 46 § XXXV-1711

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

Section XXXV-1711 - Conduct of Formal Hearings

A. Initiating the Process

1. The board initiates a formal hearing by issuing full written 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 written notice of the 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 Louisiana Statute or other ordinances or rules 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; and

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 cannot be found by this or other reasonable methods, the board may hold a hearing in the licensee's absence through a contradictory proceeding with a curator appointed to represent the absentee licensee.

NOTE: It is the licensee's obligation to keep the board informed of his 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 Hearing Officer

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

b. The board shall designate a hearing officer by affirmative vote of a simple 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 cannot afford a fair, just and impartial hearing or consideration.

d. Any party may request the disqualification of a hearing officer on the grounds of inability to give fair, just 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 by the board.

e. The hearing officer shall not be a present or former member of the board.

B. Discovery

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

2. Evidence which was not made available to both parties at least 10 days in advance may be barred from introduction.

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

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

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

6. Official notice may be taken of recognized technical or scientific facts. However, parties shall be offered an opportunity to contest any material so noticed.

C. 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 the amount required and that it must relate to the matter under consideration. A subpoena duces tecum should be reasonable in scope and should be limited to documentary material that is relevant to the proceeding.

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

2. The information called for by subpoena shall be responsive and shall relate to the matter under consideration.

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

4. If the person fails to comply with a subpoena, the board may apply to the judge of the appropriate district court for a contempt attachment or other appropriate order.

D. Motions

1. 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.

2. A motion may be made at any time after proceedings have been filed and before its commencement, during the hearing, or after the hearing.

3. All motion must be made at an appropriate time.

4. Motions made before or after the hearing shall be made in writing. Motions made during the course of the hearing may be written or oral.

5. Motions are directed to the hearing officer who shall appropriately and lawfully dispose of them.

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

7. The hearing officer may refer a motion to the board for determination.

La. Admin. Code tit. 46, § XXXV-1711

Promulgated by the Department of Health and Hospitals, Board of Electrolysis Examiners, LR 17:778 (August 1991), repromulgated LR 19:1144 (September 1993).

AUTHORITY NOTE: Promulgated in accordance with R.S.37:3051.