Current through Register Vol. XLI, No. 50, December 13, 2024
Section 26-2A-3 - Hearing Procedure3.1. Any applicant for reasons other than non-compliance with the application completion requirements set by W. Va. Code and the Rules of the Board who is denied a license, permit, registration or certificate or any licensee, permittee, registrant or certificate holder who has had their license, permit, registration or certificate suspended by the Board who believes such denial or suspension was in violation of W. Va. Code §§ 30-1-1 et seq. and/or 30-10-1 et seq. shall be entitled to a hearing on the action denying or suspending such license, permit, registration or certificate.3.2. Any person who desires a hearing for the reason described in subsection 3.1 of this section must present a written demand for such to the Board.3.3. When the chair of the Board or his or her authorized designee is presented with such a demand for a hearing, he or she shall schedule a hearing within 45 days of receipt by him or her of such written demand, unless postponed to a later date by mutual agreement.3.4. Charges may be instituted against any licensee, permittee, registrant or certificate holder by the Board when probable cause exists for believing that the licensee, permittee, registrant or certificate holder may have engaged in conduct, practices or acts in such condition that his or her license, permit, registration or certificate should be suspended, revoked or otherwise disciplined for one or more of the grounds set forth in W. Va. Code § 30-10-19 et seq. or the Board's legislative rules. Charges may be based upon information received by way of a verified written complaint filed with the Board and further information gathered by the Board in the process of investigating such complaint. Charges may also be based upon information received solely through investigative activities undertaken by the Board.3.5. Charges instituted against a licensee, permittee, registrant or certificate holder as described in subsection 3.4 of this section shall be set forth in a Complaint and Notice of Hearing issued in the name of the Board as the agency of the state regulating the profession. Such Complaint and Notice of Hearing shall designate the Board as the "Complainant", and shall designate the licensee, permittee, registrant or certificate holder involved in the proceeding as the "Respondent"; shall set out the substance of each offense charged with sufficient particularity to reasonably apprise the Respondent of the nature, time and place of the conduct or condition complained of therein; and shall state the date, time and place for the hearing.3.6. Upon receipt of a demand for a hearing described in subsections 3.1 and 3.2 of this section, the chair or his or her designee shall provide the demanding party with a Complaint and Notice of Hearing issued in the name of the Board. Such Complaint and Notice of Hearing shall designate the demanding party as the "Complainant" and shall designate the Board as the "Respondent"; shall set out the substance of each and every reason that the Board has denied the demanding party a license, permit, registration or certificate with sufficient particularity to reasonably apprise the demanding party of the nature, time and place of the conduct or condition at issue therein or the deficiencies for completion of the application which caused the denial; and shall state the date, time and place for the hearing, if the reason for the hearing is unrelated to application requirements as specified by law.3.7. The Board may amend the charges set forth in a Complaint and Notice of Hearing as it deems proper.3.8. A Complaint and Notice of Hearing shall be served upon the demanding or charged party at least 30 days prior to the date of hearing.3.9. Upon written motion received by the Board no later than 20 days prior to the date of hearing, a more definite statement of the matters charged or the reasons stated for denial of the license, permit, registration or certificate shall be provided to the demanding or charged party or his or her counsel, at least 15 days prior to the hearing date. 3.10. Hearings shall be conducted as follows: 3.10.1. Any party to a hearing shall have the right to be represented by an attorney-at-law, duly qualified to practice law in the state of West Virginia.3.10.2. The Board shall be represented by the West Virginia Attorney General's Office.3.10.3. Irrelevant, immaterial, or unduly repetitious evidence shall be excluded from the hearing. Furthermore, the rules of evidence as applied in civil cases in the circuit courts of this state shall be followed. However, when necessary to ascertain facts not reasonably susceptible of proof under those rules, evidence not admissible there under may be admitted, except where precluded by statute, if it is of a type, as determined by presiding member of the hearing committee that is commonly relied upon by reasonably prudent persons in the conduct of their affairs.3.10.4. The rules of privilege recognized by the law of this state shall be followed.3.10.5. Objections to evidentiary offers shall be noted in the record. Any party to the hearing may vouch the record as to any excluded testimony or other evidence.3.10.6. Any party to a hearing may appear with witnesses to testify on his or her behalf; may be heard in person, by counsel or both; may present such other evidence in support of his or her position as deemed appropriate by the Board and, when appropriate, may cross-examine witnesses called by the Board in support of the charges or in defense of its decision to deny licensure.3.10.7. The hearing shall be held at such time and place as is designated by the Board, but no hearing shall be conducted unless and until at least 30 days written notice thereof has been served upon the charged or demanding party and/or his or her attorney in person; or if he or she cannot be found, by delivering such notice at his or her usual place of abode, and giving written information of its purport, to his wife or her husband, or to any other person found there who is identified or identifies them self as a member of his or her family and above the age of 16 years; or if neither his wife or her husband nor any such person can be found there, and he or she cannot be found, by leaving such notice posted at the front door of such place of abode; or if he or she does not reside in this state, such notice may be served by the publication thereof once a week for three successive weeks in a newspaper published in this state; or such notice may by served by registered or certified mail.3.10.8. The hearing shall be open to the general public.3.10.9. Members of the Board and its officers, agents and employees shall be competent to testify at the hearing as to material and relevant matters: Provided, that no member of the Board who testifies at such hearing shall thereafter participate in the deliberations or decisions of the Board with respect to the case in which he testified.3.10.10. A record of the hearing, including the complaint(s), if applicable, the notice of hearing, all pleadings, motions, rulings, stipulations, exhibits, documentary evidence, evidentiary depositions and the stenographic report of the hearing, shall be made and a transcript thereof maintained in the Board's files. Upon request, a copy of the transcript shall be furnished to any party at his or her expense.3.10.11. Documentary evidence may be received in the form of copies or excerpts or by incorporation by reference.3.10.12. Where a hearing is held upon the instance of the Board after charges have been brought against a licensee, permittee, registrant or certificate holder pursuant to subsection 3.4 and 3.5 of this section, the Board shall have the burden of proof and shall present its evidence and/or testimony in support of the charges first.3.10.13. Where a hearing is held upon demand under the provisions of subsections 3.1, 3.2, 3.3, and 3.6 of this action, the demanding party shall have the burden of proof and shall therefore be required to present his or her evidence first. The Board may require the person demanding the hearing to give security for the costs thereof.3.10.14. Following the conclusion of the Board's presentation of evidence in accordance with subsection 3.10.13 of this section the Respondent or charged party shall have the right to submit his or her evidence in defense.3.10.15. Following the conclusion of the demanding party's presentation of evidence in accordance with subsection 3.10.14 of this section, the Board shall have the right to offer its evidence in rebuttal.3.10.16. The Board may call witnesses to testify in support of its decision to deny a license, permit, registration or certificate or in support of the charges instituted against a licensee, permittee, registrant or certificate holder; may present such other evidence to support its position; and, may cross-examine witnesses called by the demanding party or charged party in support of his or her position.3.10.17. All parties shall have the right to offer opening and closing arguments, not to exceed 10 minutes for each presentation.3.10.18. Hearings held by the Board as a result of charges instituted against a licensee, permittee, registrant or certificate holder may be continued or adjourned to a later date or different place by the Board or its designee by appropriate notice to all parties.3.10.19. Motions for a continuance of a hearing may be granted upon a showing of good cause. Motions for continuance must be in writing and received in the office of the Board no later than 7 days before the hearing date. In determining whether good cause exists, consideration will be given by the Board to the ability of the party requesting the continuance to proceed effectively without a continuance. A motion for a continuance filed less than 7 days from the hearing date shall be denied unless the Board finds that the reason for the motion could not have been ascertained earlier. Motions for continuance filed prior to the date of the hearing shall be ruled on by the chair or executive director of the Board. All other motions after motions for continuance shall be ruled on by the Board member(s) who serve on the hearing committee or the member presiding over the hearing.3.10.20. All motions related to a case set for hearing before the Board, except motions for continuance as set forth in 3.10.20 of this rule and those made during the hearing, shall be in writing and shall be received in the office of the Board at least 10 days before the hearing. Prehearing motions shall be heard at a prehearing conference or at the hearing prior to the commencement of testimony. The Board member(s) presiding at the hearing shall hear the motions and the response from the non-moving party and shall rule on such motions accordingly.