Or. Admin. Code § 462-001-0008

Current through Register Vol. 63, No. 11, November 1, 2024

Section 462-001-0008 - Hearing Request and Answers; Consequences of Failure to Answer

(1) A Request for Hearing and Answer shall be made in writing to the Executive Director of the commission and mailed to P.O. Box 366 Gresham, OR 97030 or faxed to (971) 673-0213; or email to orc.info@orc.oregon.gov by the party or the party's attorney. To be considered timely, a request for a hearing and answer must:

(a) Be in writing; and

(b) Be received by the commission within the number of calendar days from the date the Notice was mailed/served by the commission, as set forth in the commission's statutes and where appropriate, in the Administrative Procedures Act, for each class of hearing:

(A) If pursuant to ORS 462.090(1), (2) and (5) the commission notice provides for right to a hearing before a proposed revocation, or provides for right to a hearing before a proposed suspension, or provides for right to a hearing before assessment of a proposed civil penalty - the Request for Hearing and Answer must be received by the commission within 21 days of the service of the commission notice per ORS 183.415(2);

(B) If the commission notice provides for right to a hearing before a proposed refusal to issue or to renew a license per ORS 462.075 or ORS 462.090(1) or (2) - the Request for Hearing and Answer must be received by the commission within 60 days of service of the commission notice per ORS 183.435;

(C) If the commission notice is sent in the form of an order of suspension that does not provide for right to a hearing before the suspension goes into effect (an emergency suspension other than a reciprocal emergency suspension permitted in subsection v. below or an ADW emergency suspension permitted in subsection vi. below) - the Request for Hearing and Answer must be received by the Commission within 90 days of service of the commission notice per ORS 183.430(2);

(D) If any person is excluded/ejected from a race course on an emergency basis then the person has 10 days from the date of the exclusion/ejection to submit a Request for Hearing and Answer to the commission per ORS 462.080;

(E) If a licensee's license is suspended by another state, the commission may issue an order emergency suspending the licensee's license and the licensee may, within ten days of the mailing of the commission's suspension order, request an immediate (within 30 days) hearing;

(F) If an ADW has placed moneys belonging to members of the public at risk, then notwithstanding ORS 183.430(1) the commission may, per ORS 462.735(1), issue an order emergency suspending or refusing to renew the ADW licensee's license - the Request for Hearing and Answer must be received by the commission within 60 days of the service of the commission notice refusing to renew or within 90 days of service of the commission order of emergency suspension;

(G) If an ADW has intentionally violated federal or Oregon law or commission rules then, notwithstanding ORS 183.430(1), the commission may per ORS 462.735(2), after providing at least 14- days-notice of its intent to act, issue an order emergency suspending or refusing to renew the ADW licensee's license - the Request for Hearing and Answer must be received by the commission within 60 days of service of the commission notice refusing to renew or within 90 days of service of the commission order of emergency suspension.

(2) A Request for Hearing and Answer shall be deemed untimely if it is received by the commission after the close of business (5:00 p.m.) on the last calendar day of the above set forth appropriate notice period calculated from the date the Notice was mailed to the respondent by the commission, and shall be deemded a default by the party. Unless the commission determines that Respondent had good cause for the late filing of Respondent's Request for Hearing and Answer the commission may issue a final order by default. Good Cause is defined in OAR 137-003-0003 (1) (a) and is implemented through OAR 137-003-0528.

(3) The Answer shall include the following:

(a) An admission or denial of each factual matter alleged in the Notice;

(b) A short and plain statement explaining each admission or denial of a factual matter alleged in the Notice;

(c) A short and plain statement of any new facts being alleged; and

(d) A short and plain statement identifying each relevant legal theory the party wishes to assert in their defense.

(4) Factual matters alleged in the Notice and not denied in the Answer shall be presumed admitted.

(5) Failure to raise a particular factual defense or legal theory in the Answer will be considered a waiver of such factual defense or legal theory (affirmative defenses). Evidence shall not, therefore, be taken on any affirmative defense not raised in the Notice and the Answer. A new matter not alleged in the Answer as an affirmative defense, but later raised, for example, in a Motion For Summary Determination or at Hearing, shall be presumed denied by the Commission.

(6) The party or party's attorney may amend a Response and Answer. An Amended Response and Answer must be submitted in writing and must be received by the commission not less than 21 days prior to the Hearing.

(7) A request for extension of time in which to file an answer to the Notice shall be submitted in writing and must be received by the commission within ten (10) calendar days from the date the Notice was served.

Or. Admin. Code § 462-001-0008

RC 2-2008, f. & cert. ef. 9-30-08; RC 20-2023, amend filed 07/21/2023, effective 7/21/2023

Statutory/Other Authority: ORS 462

Statutes/Other Implemented: ORS 183.413