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.
(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.
"Order" means the whole, or any part, of a final disposition of an
Complaints and Investigations.
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
clear and concise statement of the facts giving rise to the
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
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
(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.
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
(b) The legal authority
and jurisdiction under which the hearing is to be held;
(c) The alleged statutory or regulatory
(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.
Appearance and service. In any
contested case, the parties to the proceeding shall have the right to:
Appear personally at the hearing, and by counsel;
2. Cross-examine witnesses appearing against
3. Produce witnesses on
(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
(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
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
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:
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
(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.
any contested case, the presiding officer shall, as far as practical, adhere to
the following rules of evidence:
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
(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
(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.
Deliberations; Records; Final
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
(d) The presiding officer
may recess a hearing for the taking of additional discovery and evidence as
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
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
(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.