3.Notice. A formal administrative hearing may be initiated upon proper notice to a licensee and held at a designated time and place based upon the following grounds:
a.violation—sufficient evidence or a serious complaint of an alleged violation to require a formal hearing shall be directed to legal or special counsel for administrative prosecution to justify a formal hearing;
b.failure to respond—a failure by the licensee to respond to a violations committee informal hearing;
c.irresolvable issues—a violations committee informal hearing failed to resolve all issues and requires further formal action;
d.irreconcilable issues—an interlocutory hearing failed to resolve all pertinent pending issues thus requiring further formal action; or
e.reaffirmation—reaffirmation of an interlocutory decree;
f.requirement—a formal administrative hearing is required.
E.Formal Administrative Hearing Procedures
1.Hearing Officer. The presiding hearing officer may be the board president, a vice-president, or other individual appointed by the president or his successor. The hearing officer shall have the responsibility to conduct a fair and impartial proceeding with the administrative duty as well as the authority to:
a.convene a formal administrative hearing;
b.rule on motions and procedural questions arising during the hearing such as objections or admissibility of evidence or examination of witnesses;
c.issue or direct staff to issue subpoenas;
f.enforce a standard of conduct to insure a fair and orderly hearing; and
g.remove any disruptive person from the hearing.
2.Oaths. The presiding hearing officer, executive director, or other board designee may administer oaths.
3.Jury. The board, comprised of a quorum of members, shall serve as an administrative jury to hear and determine the disposition of the pending matter based on the finding(s) of fact and conclusion(s) of law by receiving evidence and reaching a decision and ordering sanctions by an affirmative majority record vote of board members participating in the decision process.
4.Hearing Clerk. The board's executive director shall serve as the hearing clerk and shall maintain hearing records.
5.Prosecutor. The legal or special counsel shall prosecute the pending matter.
6.Recorder. The board-designated stenographer shall record all testimony dictated and evidence received at the hearing. The utilization of recording equipment may be employed.
a.Docket. Contested matters shall be identified by reference docket number and caption title.
b.Complaint. The complaint may be read, unless waived by the licensee.
a.Opening Statements. An opening statement by legal or special counsel may present a brief position comment with an outline of evidence to be offered. The
licensee or licensee's legal counsel may present an opening defense position statement.
i.Testimony Received. Testimony shall be received under oath administered by the presiding hearing officer, the executive director, or other staff or board member designated by the hearing officer.
ii.Evidence Introduction. All parties shall be afforded an opportunity to present evidence on all issues of fact and argue on all issues of law and respond by direct testimony, followed with cross examination as may be required for a full and true disclosure of the facts. The direct presentation of evidence shall be introduced by the legal or special counsel and shall be followed by the licensee, either in proper person or by legal counsel, by direct cross-examination or rebuttal, or any combination thereof.
iii.Examination. Witnesses may be directly examined and cross-examined. Additionally, witnesses and licensees may be questioned by members of the jury on matters for clarification.
iv.Rule Interpretation. Liberal rules of evidence shall be employed by the presiding hearing officer to provide adequate facts and law necessary for the board to deliberate and decide each case. The board’s formal administrative hearing shall not be bound to strict rules of evidence.
v.Admissibility. Admissibility of evidence and testimony shall be determined by the presiding hearing officer as provided by law.
c.Closing Arguments. Closing arguments may be made by the licensee, either in proper person or by legal counsel, followed by closing arguments from the prosecuting legal or special counsel.
d.Board Decision. The board's decision shall be based on finding(s) of fact and conclusion(s) of law. The board's decision shall be based on a preponderance of the evidence presented at a formal administrative hearing, together with the board’s determination of appropriate sanctions, if any, by an affirmative majority record vote of the board members participating in the decision process. Decisions shall be recorded and made part of the record.
e.Board Order. The board's order shall be rendered at the formal administrative hearing or taken under advisement and rendered within 30 days after the hearing and then served personally or domiciliary at the licensee's last known address by regular, registered, or certified mail, or by diligent attempt thereof.
f.Finality of Board Order. The board's order shall become final and effective 11 days after licensee's receipt of the board's notice of its decision, provided an appeal is not filed.
F.Complaint Dismissal. The board may, in its discretion and based upon insufficiency of evidence, orally dismiss a pending matter, or parts thereof, at a formal administrative hearing.
G.Transcripts. A complete record of all formal administrative hearing proceedings shall be transcribed, maintained, and available upon written request for a minimum of three years after the date the pertinent board order is final. The board may require the advance payment of the appropriate fees to cover the cost of preparation of the requested transcript.
Louisiana Register Vol. 34, No. 10 October 20, 2008