Current through Register Vol. XLI, No. 50, December 13, 2024
Section 28-1-10 - Notices of Hearing; Service of Notices of Hearing; Cease and Desist Order Hearings; Disciplinary Hearings; Contested Case Hearings; Appeals10.1. The Board shall hold a hearing during its regularly scheduled meeting, or during a special or an emergency meeting, on all cease and desist orders issued by the Board, shall vote on whether to affirm or rescind the cease and desist order, and shall vote on the amount of the penalty to be imposed, if any. 10.1.1. The Board shall issue a written notice of hearing to each person who has been issued a cease and desist order at least 10 days prior to the date of the hearing.10.1.2. The Board shall cause the notice of hearing to be served by certified mail, by email, delivery receipt requested, or by personal service.10.1.2.a. When the notice of hearing is mailed by certified mail, verification of delivery to the employer through the United States Postal Service website constitutes proper notice.10.1.2.b. When the notice of hearing is transmitted to the employer by email, documentation of the email's delivery receipt constitutes proper notice.10.1.2.c. When the notice of hearing is by personal delivery to the employer, an affidavit of service completed by the individual making the delivery constitutes proper notice. The affidavit of service shall be signed by the individual making the delivery, shall identify by name the person to whom the notice was given, and shall state the time and place where notice was given.10.1.3. Upon receipt of a notice of hearing, a person may request a continuance in writing prior to the scheduled time and date of the hearing and must state the reason for the requested continuance. The Board may grant the continuance for good cause shown and shall provide the person with a written or verbal decision regarding the requested continuance.10.1.4. A person who has been issued a cease and desist order has a right to attend the hearing in person, to be represented by an attorney at law licensed to practice in West Virginia, or to submit a written response to the Board for its consideration.10.1.5. Provided that the person to whom a cease and desist order has been issued receives proper notice of the hearing, the person's failure to attend the hearing does not preclude the Board from taking action on the cease and desist order.10.1.6. After a hearing on a cease and desist order, the Board may issue an advisory letter or may assess a monetary penalty.10.1.7. In considering whether to assess a monetary penalty and the amount of the penalty, the Board may consider whether a person has been previously issued a cease and desist order, whether the cease and desist order was issued based on a complaint from a consumer, or any other facts and circumstances that the Board considers relevant.10.1.8. The Board shall issue a written order setting forth its decision on the cease and desist order.10.1.9. Within 30 days of receipt of the Board's order, a person adversely affected by the order may file an appeal to the Circuit Court of Kanawha County or in the circuit court of the county in which the person resides or does business.10.2. When a licensee is alleged to have engaged in conduct that is a ground for discipline as set forth in W. Va. Code § 30-42-15(g), the Board shall hold a disciplinary hearing during its regularly scheduled meeting, or during a special or an emergency meeting. 10.2.1. The Board shall issue a written notice of hearing to a licensee who is alleged to have engaged in one or more of the Act's grounds for discipline at least 10 days prior to the date of the hearing.10.2.2. The Board shall cause the notice of hearing to be served on the licensee by certified mail, by email, delivery receipt requested, or by personal service.10.2.3. Upon receipt of a notice of hearing, a person may request a continuance and the Board may grant the continuance for good cause shown.10.2.4. A licensee has a right to attend the hearing in person, to be represented by an attorney at law licensed to practice in West Virginia, or to submit a written response to the Board for its consideration and may offer testimony and submit relevant factual information.10.2.5. Provided that the licensee receives proper notice of the hearing, the licensee's failure to attend the hearing does not preclude the Board from taking action against the licensee.10.2.6. The Board shall consider the facts and circumstances of the licensee's conduct and any other information that the Board considers relevant, including the licensee's previous history, if any, with the Board.10.2.7. If the Board finds that the licensee has engaged in the prohibited conduct, the Board shall vote on the disciplinary action to be imposed on the licensee.10.2.8. The Board shall issue a written order to the licensee, setting forth its decision on the disciplinary action to be imposed.10.3. Within 60 days of receipt of the Board's disciplinary order, a licensee may submit a written appeal to the Board, stating the reasons or grounds for contesting the Board's order.10.3.1. The Board may conduct the appeal hearing or may appoint a hearing examiner to conduct the appeal hearing.10.3.2. The Board or hearing examiner shall conduct the hearing pursuant to the provisions of W. Va. Code § 29A-5-1et seq.10.3.3. The Board or hearing examiner shall provide a written notice of hearing to the licensee, setting forth the date, time, and place of the hearing.10.3.4. The Board shall cause the notice of hearing to be served on the licensee by certified mail, by email, delivery receipt requested, or by personal service.10.3.5. The hearing shall take place within 30 days of receipt of the licensee's appeal unless the time frame is waived by agreement of the parties.10.3.6. The Board shall be responsible for the preparation of an official record of the hearing, which shall include all testimony and exhibits. 10.3.6.a. The Board may engage a court reporter to make a record of the hearing.10.3.6.b. Upon request to the Board by any party involved in the hearing, a copy of the transcript and exhibits will be furnished to the requesting party at the requesting party's expense.10.3.7. The Board and the licensee may be represented by an attorney at law licensed to practice in West Virginia and may offer testimony and exhibits.10.3.8. The Board shall issue a final order to the licensee concerning the appeal.10.3.9. Any person adversely affected by an order of the Board may appeal the order to the Intermediate Court of Appeals in accordance with W. Va. Code §§ 29A-5-4 and 51-11-1et seq.