N.M. Admin. Code § 6.68.2.15

Current through Register Vol. 35, No. 21, November 5, 2024

Section 6.68.2.15 - HEARING

A. Purpose: The purpose of the hearing shall be to determine whether sufficient grounds exist for the denial of an initial license application or continuing licensure application by the PED. The burden of proof shall be upon the PED to establish by a preponderance of the evidence that sufficient grounds exist.

B. Venue of hearing: The hearing shall be conducted in the county where the PED maintains its office. In any case, however, the applicant and the PED may agree that the hearing is to be held in some other county.

C. Conduct of hearings

(1) The order of presentation of evidence shall be as follows: The PED shall present evidence in an attempt to establish that sufficient grounds exist for the denial of the applicant's initial or continuing licensure. Thereafter, the applicant may present evidence in defense. The hearing officer may allow rebuttal evidence and closing arguments.

(2) The rules of civil procedure and the rules of evidence shall not apply to the hearing, except as specifically provided in this rule, but it shall be conducted so that both complaints and defenses are amply and fairly presented. To this end, the hearing officer shall permit each party to call and examine witnesses, cross-examine witnesses and introduce exhibits. Documentary evidence may be received in the form of copies or excerpts. Evidence will be admitted without regard to technical rules of evidence, but the hearing officer may exclude any evidence, which is not relevant to the issues and may require reasonable substantiation of statements or records where accuracy or truth is in reasonable doubt. Any evidence may be admitted that is of a kind commonly relied on by reasonably prudent people in the conduct of serious affairs. The hearing officer may in their discretion exclude incompetent, irrelevant, immaterial, or unduly repetitious evidence. Rules of privilege shall be applicable to the same extent as in proceedings before the courts of this state. Parties or their attorneys may make timely objections to the introduction of any evidence they view as inadmissible under this paragraph.

(3) A complete record shall be made of all evidence received during the course of the hearing. The record shall be preserved by any stenographic method in use in the district courts of this state, or in the discretion of the PED, by tape recording. The PED shall observe any standards pertaining to tape recordings established for the district courts. In any event, the PED shall have one (1) copy of the transcript or tape recording of the hearing for the secretary's review in rendering a final decision. Where judicial review is sought, the costs of required transcripts or tape recordings shall be paid by the party seeking review.

(4) All witnesses shall swear or affirm that their testimony will be truthful. A person authorized to administer oaths shall swear each witness. The hearing officer may determine the capacity of a witness to testify and may consider capacity in determining the weight of the evidence. The hearing officer may refuse to admit testimony from a proposed witness who is found lacking capacity.

(5) The hearing officer may require post-hearing briefs to be submitted by the parties. Such briefs shall not exceed 20 pages in length, double-spaced, exclusive of attachments, and shall be on paper eight and one-half by eleven inches in length.

D. If an applicant fails to appear at a hearing and no continuance has been granted, the hearing officer may hear the evidence of such witnesses as may have appeared and proceed to consider and dispose of the case on the basis of the evidence before the hearing officer in the manner required under this rule. Where an applicant fails to appear for a hearing or fails to request a hearing due to sickness, accident or other good cause, such licensee may apply to the hearing officer where he failed to appear, or to the PED where he failed to request a hearing, to reopen the proceeding, and upon finding such cause sufficient, the hearing officer or the PED, as the case may be, shall schedule a hearing and give the applicant notice of such as required by this rule. The hearing officer may require evidence to prove licensee's good cause in such cases.

E. Continuing jurisdiction

(1) Despite the expiration of an applicant's licensure, the PED shall continue to have jurisdiction to hear a case under this rule where the individual whose licensure expired was served a notice of contemplated action prior to the expiration of the licensure.

(2) The service of such notice upon an applicant shall act to stay the expiration of licensure where that individual's licensure was scheduled to expire and would expire during a proceeding to deny continuing licensure under this rule but for the stay of the expiration.

(3) Where the secretary issues a final order in which the applicant's licensure is not outright denied, then the individual shall be permitted to renew their licensure as though it expired on the original expiration date as long as the applicant satisfies all other licensure requirements for the level and type of license sought.

N.M. Admin. Code § 6.68.2.15

6.68.2.15 NMAC - Rp, 6 NMAC 4.2.4.4.14, 11-30-05; A, 01-29-10