06-096 C.M.R. ch. 2, § 26 - Modification of License or Order Prescribing Corrective Action

A. Authority. At the request of the Commissioner and after written notice and opportunity for a hearing, the Board may modify in whole or in part any license, or may issue an order prescribing necessary corrective action, whenever the Board finds that any of the criteria set forth in section 27 of this rule has been met. The Board may modify a license or order corrective action as authorized by 38 M.R.S. § 341-D(3) and this section at any time, including during the pendency of a judicial appeal of a final decision regarding the license.

B. Filing of Petition with the Commissioner. Any person may petition the Commissioner to recommend that the Board initiate proceedings to modify a license or prescribe corrective action on a license. The petition must state which of the criteria listed in section 27 of this rule is being invoked and must specifically describe the factual basis for the petition. The petitioner must serve a copy of the petition on the licensee at the time the petition is filed with the Commissioner. The petition, once filed, may not be supplemented. The licensee's response to the petition must be filed within 30 days of the filing of the petition with the Commissioner unless the Commissioner, upon a request by the licensee and for good cause shown, extends that deadline. No later than 21 days following receipt of the licensee's response to a petition to modify a license or prescribe corrective action on a license, the Commissioner will dismiss the petition or recommend to the Board that it initiate proceedings to modify a license or prescribe corrective action.

C. Content of Written Recommendation. The Commissioner's recommendation to the Board must state which of the criteria listed in section 27 of this rule is being invoked and the factual basis for the Commissioner's recommendation to initiate proceedings to modify a license or prescribe corrective action. The Commissioner will provide the licensee with a copy of the written recommendation.

D. Board Consideration of Recommendation. The Board will consider the Commissioner's recommendation at a regular Board meeting. After hearing from the Commissioner and the licensee, the Board will decide whether to initiate proceedings to modify a license or prescribe corrective action. If the Board decides to initiate proceedings, the licensee must be provided with written notice and opportunity for a hearing. The written notice must state which of the criteria listed in section 27 of this rule is being invoked and the factual basis for the Board's decision to initiate proceedings.

E. Hearing. The licensee may request a hearing within 15 days of the Board's written notice of opportunity for a hearing. If the licensee requests a hearing, it will be scheduled as expeditiously as possible. The procedure for hearings is governed by 5 M.R.S. §8001, et seq. and Department rules pertaining to hearings in revocation, suspension, or modification proceedings. If the Commissioner's recommendation to initiate proceedings was the result of a petition, the petitioner is deemed to be a party to the hearing and need not petition to intervene.

F. Board's Decision. Based on the administrative record, including evidence from the licensing proceeding and evidence developed during any hearing, the Board may decide that no action is warranted or may make findings of fact and modify in whole or in part any license, or issue an order prescribing necessary corrective action.

G. Decision Discretionary. A decision by the Commissioner to dismiss a petition is within the Commissioner's sole discretion and is not subject to Board or judicial review. A decision by the Board not to initiate proceedings or to take no action at the conclusion of the proceedings, is within the Board's sole discretion and is not subject to judicial review.

Notes

06-096 C.M.R. ch. 2, § 26