La. Admin. Code tit. 7 § V-1717

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

Section V-1717 - Adjudication of Violations

A. General. Any licensee subject to these rules and regulations, who violates any provision of the Act, these rules and regulations or Louisiana Egg Grading and Marketing Regulations, may pursuant to the procedure set forth herein below have his license suspended or revoked by the commission.

B. Notice. If the commission has reason to believe that a licensee is guilty of a violation, then unless such is waived in writing, the licensee shall be afforded a hearing after reasonable notice, which notice shall include:

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

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

3. a factual description of the alleged violation or violations, with reference being made to the particular law, rule or regulation allegedly violated;

4. if the specific violation or violations are known at the time of the notice, or if the hearing is to be merely investigative in nature, the notice shall then recite the issues involved.

C. Hearings. Unless waived by the licensee, there shall be a hearing before the commission, presided over by the chairman or such other special chairman as the commission may choose, wherein licensee shall be given the opportunity to respond and to present evidence on all issues of fact involved and argument on all issues of law and policy involved, and to conduct such cross examination that may be required for a full and true disclosure of the facts. The hearing shall be conducted according to the following.

1. Evidence

a. Except as provided hereinafter, evidence shall be admitted at the hearing in accordance with the Rules of Civil Procedure utilized by the civil courts of the state of Louisiana. When a hearing will be expedited and the interests of the parties will not be prejudiced substantially thereby, any part of the evidence may be received in written form.

b. All evidence, including records and documents in the possession of the commission shall be offered and made a part of the record, and all such documentary evidence may be received in the form of copies or excerpts, or by incorporation by reference. In case of incorporation by reference, the material so incorporated shall be available for examination by the parties before receiving same into evidence.

2. Judicial Notice. The commission may take notice of judicially cognizable facts. In addition, notice may be taken of generally recognized technical or scientific facts within the commission's specialized knowledge. The parties shall be notified either before or during the hearing, or by reference in preliminary reports or otherwise, of the material notice, including any staff memoranda or data, and they shall be afforded an opportunity to contest the materials so noticed. The commission's experience, technical competence and specialized knowledge may be utilized in the evaluation of the evidence.

3. Presiding Officer. The presiding officer of the hearing shall be the chairman of the commission, or such other member of the commission as the commission may designate. The presiding officer shall have the power to administer oaths, affirmations, regulate the course of the hearings, set the time and place for continued hearings, fix the time for filing of briefs and other documents, and direct the parties to appear and confer to consider the simplification of the issues.

4. Subpoenas. The presiding officer shall have the power to sign and issue subpoenas in the name of the commission, requiring attendance and giving testimony by witnesses and the production of books, papers and other documentary evidence.

5. Witness Fees. No subpoena shall be issued until the party who wishes to subpoena the witness first deposits with the commission a sum of money sufficient to pay all fees and expenses to which a witness in a civil case is entitled, pursuant to R.S. 13:3661 and R.S. 13:3671. The presiding officer may fix additional compensation for those witnesses giving expert testimony at the hearing or by deposition.

6. Depositions. The commission and any party to a hearing under this Part may take the depositions of witnesses within or without the state in the same manner as provided by law for the taking of depositions in civil actions in courts of record. The depositions so taken shall be admissible in any proceedings affected by this Chapter. The admission of such depositions may be objected to at the time of hearing, and may be received in evidence or excluded from the evidence by the commission or presiding officer, in accordance with the rules of evidence provided herein.

7. Contempt. Whenever any person summoned under this Section neglects or refuses to obey such summons, or to produce books, papers, records, or other data, or to give testimony as required, the commission may apply to the judge of the district court for the district within which the person so summoned resides or is found, for an attachment against him as for a contempt. Said contempt proceedings shall be conducted in accordance with R.S. 49:956(5)(c).

D. Record of the Hearing

1. With reference to any hearing conducted in accordance with this Section, the commission shall compile and maintain a record of the case, which record shall include the following:

a. all pleadings, motions and intermediate rulings;

b. evidence received or considered, or a rÉsumÉ thereof if not transcribed;

c. a statement of matters officially noticed except in matters so obvious that a statement of them would serve no useful purpose;

d. offers of proof, objections and rulings thereon;

e. proposed findings and exceptions;

f. any decision, opinion or report by the presiding officer;

g. the commission, upon the request of any party or person, shall have prepared and furnish to that requesting party or person, a copy of the transcript or any part thereof, upon the payment of costs for same by the person so requesting it.

E. Proceedings When There Is a Lack of a Quorum

1. In the event there is a lack of a quorum of the commission at any hearing, pursuant to this Section, the proceedings shall be conducted in accordance with the rules set forth hereinabove, and shall further be subject to the following:

a. under no circumstances shall a hearing be conducted with less than three commission members being present at the hearing;

b. the commission members actually present at the hearing shall render a decision, and if same is adverse to the licensee, then such decision shall not be made final until a proposed order is served upon the licensee and an opportunity is afforded to the licensee adversely affected to file exceptions and present briefs, and oral argument, to the commission at a subsequent meeting. The proposed order sent to the licensee shall be accompanied by a statement of the reasons therefor, and the disposition of each issue of fact or law necessary to the proposed order prepared by the presiding officer, or by one who has read the record;

c. if the licensee files exceptions to the proposed order or ruling of the commission, then the order shall not be made final until concurred in by at least four members of the commission;

d. the licensee, by written stipulation, may waive the provisions of this Section, and the commission itself may choose not to apply the provisions of this Section, if the licensee fails to contest the proceedings.

F. Decisions and Orders

1. A final decision or order adverse to a licensee shall be in writing or transcribed in the record. The final decision shall include findings of fact, set forth in a concise and explicit statement of the underlying facts, supporting the findings. The decision shall also include conclusions of law.

2. Upon request, a copy of the decision or order shall be delivered or mailed forthwith to the licensee, and to his attorney of record.

3. Any case may be disposed of informally by stipulation, agreed settlement, consent order or default.

G. Rehearings

1. The licensee adversely affected by a ruling or decision of the commission, may apply to the commission for a rehearing within 10 days from the date that the ruling or decision is mailed to the licensee. A rehearing may be granted by the commission for the following reasons:

a. the decision or order is clearly contrary to the law and the evidence;

b. the licensee has discovered, since the hearing, evidence important to the issues which he could not have, with due diligence, obtained before or during the hearing;

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

d. there is other good ground for further consideration of the issues and the evidence in the public interest:

i. the licensee, in applying for a rehearing, shall petition the commission and shall set forth the grounds which justify such action;

ii. nothing in this Section shall prevent a rehearing, reopening or reconsideration of a matter by the commission on the ground of fraud practiced by the prevailing party or the procurement of the order by perjured testimony or fictitious evidence;

iii. on reconsideration, reopening, or rehearing, the matter may be heard by the commission, or it may be referred to any one or more members of the commission for decision;

iv. once a rehearing is granted, the rehearing shall be confined to those grounds upon which the reconsideration, reopening, or rehearing was ordered;

v. if an application for rehearing shall be timely filed, the period within which judicial review, under the applicable statute, must be sought, shall run from the final disposition of such application.

H. Ex Parte Consultations and Recusations

1. In the event there are multiple parties to any proceedings under this Section, no member of the commission nor employee thereof shall communicate directly or indirectly with any licensee or his representative, except upon giving notice to all parties in the proceedings, and allowing them to have the opportunity to participate.

2. No member of the commission shall sit at a hearing as provided for in this Section, if for any reason he cannot accord a fair and impartial consideration of the facts and issues involved. Such a member may recuse himself or be recused on motion by an adverse party after due hearing.

I. Suspension or Revocation

1. If, after due proceedings had as set forth hereinabove, the commission determines that there has been a violation of any provision of the Act, these rules and regulations, or the Louisiana Egg Grading and Marketing Regulations, then the license may be suspended or revoked as follows:

a. for the first offense, suspension for not more than 30 days;

b. for the second offense, suspension for not more than 60 days;

c. for the third offense, revocation of the license for not less than one year.

2. It is understood, however, that for purposes of this Section, that in order to be considered a second or third offense, the said offense must have occurred within 12 months from the previous offense.

J. Reinstatement. Once a license has been revoked as provided in Subsection I hereinabove, the licensee may make application for reinstatement of the revoked license after the expiration of the period for which the license had been revoked. The application for reinstatement shall be on the same form as the application for the initial license as set forth hereinabove, and shall be on a form provided by the commissioner. The reinstatement application shall be accompanied by a reinstatement fee of $10.

K. Judicial Review of Adjudication. Any licensee who is aggrieved by a decision or final order of the commission as set forth hereinabove, may institute a petition for judicial review of same in accordance with R.S. 49:964-965.

La. Admin. Code tit. 7, § V-1717

Adopted by the Department of Agriculture, Egg Commission, November 1972.

AUTHORITY NOTE: Adopted in accordance with R.S. 3:551.7 and R.S. 3:551.3.