A proceeding to
suspend or revoke a permit shall begin with a show cause order issued by the
secretary to the permittee. The show cause order shall set forth the following:
(1) a list of the unwarranted or willful
violations that contribute to a pattern of violations;
(2) a copy of each order or notice containing
one or more of the violations listed;
(3) the basis for determining the existence
of a pattern of violations; and
(4) the recommendation that the permit be
suspended or revoked and the length and terms of the recommended suspension.
(b) Answer. The
permittee shall have 30 days after receipt of the order within which to file an
Contents of answer.
The permittee's answer to a show cause order shall set forth the following:
the reasons, in detail, why a pattern of
violations does not exist or has not existed, including each reason for
contesting the following:
(A) the fact of any
violation alleged by the department;
(B) the willfulness of any violation; or
(C) whether or not any violation
was caused by the unwarranted failure of the permittee.
(2) each mitigating factor the permittee
believes exists in determining the terms of the revocation or the length and
terms of the suspension;
other alleged relevant facts; and
(4) whether or not a hearing on the show
cause order is desired.
(d) Burden of proof in suspension or
revocation proceedings. In proceedings to suspend or revoke a permit, the
department shall have the burden of going forward to establish a prima facie
case for suspension or revocation of the permit. The permittee shall have the
ultimate burden of persuasion that the permit should not be suspended or
Procedure. Except as
provided for in this regulation, the procedure set forth in K.A.R. 47-4-14a
shall be followed.
the presiding officer.
(1) After determining
that a pattern of violations exists or has existed, the presiding officer shall
order the permit either suspended or revoked. It shall not be required that the
presiding officer find that all the violations listed in the show cause order
occurred in order to establish a pattern. However, the presiding officer shall
find that sufficient violations occurred in order to establish a pattern.
(2) The minimum suspension period
imposed shall be three working days, except when the presiding officer finds
that this would result in manifest injustice and would not further the purposes
of the act. The presiding officer may impose preconditions to lifting the
The decision of
the presiding officer shall be issued within 20 days of the following:
(A) after the closing date of the hearing
(B) after receipt of
the answer, if no hearing is requested by any party and the presiding officer
determines that no hearing is necessary.
(4) At any stage of a suspension or
revocation proceeding, the parties may enter into a settlement, subject to the
approval of the presiding officer.
Summary judgment. When the permittee
fails to appear at a hearing, these conditions apply:
(1) the permittee shall be deemed to have
waived his right to a hearing;
the presiding officer may make these assumptions for purposes of the
(A) each violation listed in the
(B) each violation
was willfully or negligently caused by the permittee; and
(C) a pattern of violations exists.
(3) the presiding
officer shall either conduct an ex-parte hearing or require the department to
furnish proposed findings of fact and conclusions of law in order to issue an
(1) Any party may appeal the initial
order by filing a notice of appeal with the secretary within 15 days after
receipt of the order.
as provided for in this regulation, this appeal shall follow the procedure in
(a)(d)(14). The secretary shall act immediately to issue an
expedited briefing schedule. The decision of the secretary shall be issued
within 60 days after the date the record is closed by the secretary or, the
date the answer is filed.
further appeal from the secretary's final order shall be taken pursuant to the
Kansas judicial review act,