502 KAR 10:090 - Procedure for denial, suspension, nonrenewal or revocation hearings

RELATES TO: KRS 165A.460

NECESSITY, FUNCTION, AND CONFORMITY: KRS 15A.160 and 332.216 authorize the department to establish administrative regulations necessary to carry out the provisions of KRS Chapter 332. This administrative regulation outlines the administrative adjudication procedures of the department in license denial, suspension, nonrenewal and revocation hearings.

Section 1. Definitions.
(1) "Commissioner" is defined by KRS 332.015(2).
(2) "Contested case" means an adjudicatory proceeding before the department in which the legal rights, duties, or privileges of any person are required by law to be determined after an opportunity for a hearing, without regard to whether the proceeding is instituted by the department, or by some other person.
(3) "Department" is defined by KRS 332.015(1).
(4) "Party" means any person or agency named or admitted as a party to any proceedings conducted pursuant to 502 KAR Chapter 10 and includes only persons who have a real interest in the matter before the commissioner of the department.
(5) "Person" means any individual, sole proprietorship, partnership, corporation, association, or public or private organization of any character.
(6) "Order" means the whole, or any part, of a final disposition of an adjudication..
Section 2. Complaints and Investigations.
(1) Complaints.
(a) A complaint may be made by any person against the holder of a license by the filing of written charges with the commissioner. The written complaint shall contain:
1. The name and address of any person making charges, as well as the name and address of the person or persons against whom charges are being made; and
2. A clear and concise statement of the facts giving rise to the complaint.
(b) Any complaint or charge filed with the department shall be forwarded to the licensee involved and the licensee shall be given thirty (30) days to resolve the problem or make a full satisfactory reply. Any defamatory matter in a formal written complaint shall be excised by the commissioner prior to the complaint being forwarded to the licensee.
(2) Investigations. Upon the receipt of a complaint and following the expiration of the thirty (30) days provided for in subsection (1) of this section, the commissioner may cause an investigation to be made. Upon the completion of any investigation, the person or persons making the investigation shall submit a full written report to the person designated by the commissioner to prosecute the matter in an adjudicatory proceeding.
Section 3. Commencement of Adjudicatory Proceedings. Upon the request of the prosecutor or after the expiration of the thirty (30) day period referred to in Section 2(1) of this administrative regulation if an investigation is not made, the commissioner may begin formal adjudicatory proceedings in accordance with the following procedure:
(1) If it is determined that the facts alleged in the complaint or investigative report may constitute grounds for the suspension, probation, or revocation of a license, a hearing shall be scheduled before the commissioner, or his or her designated hearing officer, on those allegations. If an application for license or renewal of license has been denied, a hearing shall only be scheduled upon receipt by the commissioner of a written request submitted by or on behalf of the person whose application for license was denied or not renewed. Any required hearing shall be held within three (3) months, or as soon as practicable, after the receipt by the commissioner of a written request for a hearing. In any contested case, whether it be instituted by the department or by some other person, all the parties to the proceeding shall be given reasonable notice and an opportunity to be heard.
(2) Notice. The notice provided for shall be issued in the name of the department by the commissioner or designated hearing officer and shall state:
(a) The time, date, place, and nature of the hearing;
(b) The legal authority and jurisdiction under which the hearing is to be held;
(c) The alleged statutory or regulatory violations; and
(d) A short and plain statement of the complaint or charges which are being proffered and the remedy that is being sought. The notice shall be personally served or mailed to the last known address of the party or parties not less than twenty (20) days before the date of the hearing, in accordance with KRS 13B.050.
(3) Appearance and service. In any contested case, the parties to the proceeding shall have the right to:
(a)
1. Appear personally at the hearing, and by counsel;
2. Cross-examine witnesses appearing against them; and
3. Produce witnesses on their behalf.
(b) When a party has appeared by an attorney, or otherwise designated an attorney as his representative, all communications, notices, orders, or other correspondence shall be served on this attorney. Service on the attorney shall be considered as service on the party, and the hearing officer shall be notified of any change in the attorney.
(4) The commissioner or his or her designated hearing officer shall preside over the hearing proceedings. If the commissioner presides, he or she may have assistance of counsel to rule on evidentiary matters.
(5) Authority to administer oaths. In hearings before the commissioner or hearing officer, any oath or affirmation required may be administered by any person authorized to administer oaths by the laws of the Commonwealth of Kentucky.
(6) Presentation of evidence. The evidence against the licensee or other person concerning the pending complaint or charge shall be presented by the designated prosecutor. Additionally, any witness or other evidence may be questioned or introduced by the presiding officer.
Section 4. Conduct of Hearings; Witnesses; Burden of Proof; Evidence. The hearing shall be conducted in accordance with the requirements of KRS 13B.080.
(1) The presiding officer may hear testimony of any person present at the hearing who has information to offer on the subject matter of the hearings. The presiding officer may ask any witness questions as may be required for a full and true disclosure of the facts. The presiding officer shall have only one (1) witness at a time, and other witnesses may be excluded from the hearing room while any one (1) witness is being questioned.
(2) The hearing in a contested case involving a suspension, probation, or revocation of a license shall proceed in the following order, unless the presiding officer, for special reasons otherwise directs:
(a) The party filing the complaint or proffering the charges, or the persons appointed or designated to present the evidence against the licensee, shall briefly state the substance of the charges and the evidence by which he or she expects to sustain them.
(b) The party against whom a complaint has been filed or charges otherwise proffered may briefly state the substance of his or her defense and the evidence which he or she expects to offer in support of it.
(c) The party filing the complaint or otherwise proffering the charges, or the designated prosecutor, shall have the burden of proof in the whole action and produce his or her evidence first. The party against whom a complaint has been filed or charges proffered may then produce his or her evidence. The presiding officer, however, may regulate the order of proof in any proceeding to expedite the hearing and to enable the presiding officer to obtain a clear view of the whole evidence.
(d) The parties shall then be confined to rebuttal evidence, unless the presiding officer, in accordance with KRS 13B.080, permits them to offer additional evidence in chief.
(e) The parties may then submit the matter to the presiding officer for consideration, or present arguments on the issues involved. In the arguments, the party filing the complaint or otherwise proffering the charges, or the designated prosecutor, shall have the conclusion, and the party against whom the complaint was filed or charges otherwise proffered shall have the opening.
(3) In a hearing requested in writing by a person whose application for a license has been denied or not renewed, the burden of proof and order of proceedings delineated in subsection (2) of this section shall be reversed.
(4) In any contested case, the presiding officer shall, as far as practical, adhere to the following rules of evidence:
(a) Any evidence which would be admissible under the statutes of the Commonwealth of Kentucky, and under the rules of evidence followed by circuit courts of the Commonwealth of Kentucky, shall be admitted in hearings before the presiding officer, except that the presiding officer may admit evidence that would be inadmissible in the courts if the evidence is of the type commonly relied upon by a reasonable, prudent person in the conduct of his or her affairs.
(b) Every party shall have the right to present oral or documentary evidence, exhibits, and rebuttal evidence and conduct cross-examination that may be required for a full and true disclosure of the facts. Documentary evidence may be introduced in the form of copies or receipts if the original is not readily available if upon request, the parties or the presiding officer shall be given an opportunity to compare the copy with the original.
(c) If a hearing will be expedited and the interests of the parties will not be substantially prejudiced, all or part of the evidence may be received in written form by affidavit or prepared statement. Prepared statements shall not be read or made a part of the record until the party against whom the statement is offered has been given a reasonable time for review and objection.
(d) Irrelevant, immaterial, or unduly repetitious evidence shall be excluded and the presiding officer shall give effect to the rule of privilege recognized by the laws of the Commonwealth of Kentucky.
(e) The presiding officer may take notice of judicially cognizable facts.
(f) Objections to evidentiary offers may be made and shall be noted in the record.
(5) The parties to any hearing may agree to waive any one (1) or more of the procedural steps that would otherwise precede the reaching of a final decision by the commissioner, but this waiver shall not be binding on the commissioner.
Section 5. Deliberations; Records; Final Order.
(1) Deliberations. During any hearing and after the case has been submitted to the commissioner or hearing officer for decision, deliberations shall be governed by the following principles:
(a) Ex parte investigations. The commissioner, hearing officer, or any other person who shall make findings of fact and conclusions of law in a contested case shall not, once a hearing has commenced, consult with any person or party in connection with any issue of fact or law, except upon notice and opportunity for all parties to participate. The commissioner or hearing officer may have the aid and advice of one (1) or more personal assistants, including the assistance of counsel.
(b) Separation of functions. An officer, employee, or agent of the department who is engaged in the performance of investigative or prosecuting functions in a contested case shall not, in that or a factually related case, participate or advise in the decision except as a witness or counsel in the public hearing.
(c) Examination of evidence. The commissioner or hearing officer shall personally consider the whole record, or portions of the record as may be cited by the parties before a decision is reached.
(d) The presiding officer may recess a hearing for the taking of additional discovery and evidence as required.
(2) Record. The record shall include all pleadings, motions, exhibits, documentary and testimonial evidence received or considered, a statement of matters officially noticed, and questions and offers of proof and rulings. If any party requests a written transcript of the proceedings, the party shall be required to pay for the transcript.
(3) Recommended order. If the commissioner designates a hearing officer as presiding officer of a hearing in a contested case, the hearing officer shall, as soon as practical after the conclusion of the hearing, but at a minimum, no later than thirty (30) days after the hearing, prepare findings of fact, conclusions of law, and a recommended order and provide a copy toon all parties. The parties shall have ten (10) days following entry of the recommended order to file objections and comments with the commissioner. The commissioner shall consider the record and the hearing officer's report consisting of a synopsis of procedural matters, findings of fact, conclusions of law, the recommended order, and any objections or comments filed by the parties before renderingrender a final order.
(4) Final order. The final decision in any case in which a hearing is required or requested shall be in writing and shall be made a part of the official record. It shall include a concise and explicit statement of the findings of fact and conclusions of law, separately stated, and shall be signed by the commissioner. One (1) copy of the order shall be served on each party to the proceeding. Motions to correct clerical errors may be filed within ten (10) days after entry of the final order. Any subsequent modifying order shall be served on all parties.

Notes

502 KAR 10:090
12 Ky.R. 1696; eff. 5-6-86; Certified to be amended; filing deadline 8-26-2021; 48 Ky.R. 1273; 49 Ky.R. 339; eff. 8/16/2022.

STATUTORY AUTHORITY: KRS 15A.160, 332.216

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