These rules and procedures are adopted for the purpose of
providing a general guideline for the conduct of any administrative hearings
for which the Commissioner of the Department of Banking and Consumer Finance,
State of Mississippi ("Commissioner") has been charged by law to conduct
relating to businesses, professions, or licenses within the jurisdiction of the
Mississippi Department of Banking and Consumer Finance (the "Department" or
"DBCF").
1.1; These Rules and
Procedures are intended to supercede and replace only the existing Department
rules at "Docket Number 25" adopted effective January 3, 1997. No other rules
or regulations previously adopted by the Department are affected by these Rules
and Procedures.
1.2; As of the
adoption of these Rules and Procedures, the Department is charged with the
oversight of fourteen (14) separate industries in the State of Mississippi.
Certain industries have an existing statutory or separately adopted regulatory
framework that control hearings for that given industry. There presently exist
separate rules and procedures for all hearings conducted by the State Board of
Banking Review; for hearings involving state-chartered banks; as well as
hearings pursuant to the Mississippi Small Loan Acts, the Motor Vehicle Sales
Finance Laws, and Consumer Loan Broker Laws.
Small Loan Regulatory Law §§
75-67-101, et
seq.
Small Loan Privilege Tax Law §§
75-67-201, et
seq.
Motor Vehicle Sales Finance Law §§
63-19-1,
et seq.
Consumer Loan Broker Act §§
81-19-1,
et seq.
None of the existing statutes, rules or regulatory
procedures are amended by these Rules and Procedures, however, these Rules and
Procedures may supplement existing statutes or rules to provide a mandatory
appeal process following the written denial of a license application or renewal
application.
Absent conflict with statutes or rules, these Hearing
Rules and Procedures may control Hearings in any industries regulated by the
Department, now or any time in the future, unless otherwise expressly provided
in statute or regulation.
1.3 Authority to Promulgate; In addition to
the statutory authority listed above, these Rules and Procedures are adopted
pursuant to various existing sections of the Code of Mississippi (1972)
including, but not limited to the following, as well as any other delineated
licensing, chartering, supervisory or regulatory authority in any industry
expressly vested in the Commissioner, now or in the future.:
* Money Transmitters Act §§
75-15-1, et
seq.
* Insurance Premium Finance Law §§
81-21-1,
et seq.
* Mississippi Pawnshop Act §§
75-67-301,
et seq.
* Mississippi Title Pledge Act §§
75-67-401, et
seq.
* Mississippi Check Cashers Act §§
75-67-501,
et seq.
* Mississippi Debt Management Services Act §§
81-22-1,
et seq.
* Credit Availability Act §§
75-67-601
et seq.
1.4 Severability; If
any provision, section, subsection, sentence, clause or phrase of any of the
Rules and Procedures, or the application of the same to any person or entity or
any set of circumstances, is for any reason challenged or held to be invalid,
null or void, the remaining rules, procedures or regulations or any application
thereof to any person or circumstances shall remain valid.
1.5 Notice of Hearing; A written notice
specifying the violation(s) or offense(s) for which the licensee (or any person
or entity subject to the jurisdiction of the Department) is charged and a
notice of the time and place of the hearing shall be served at least ten (10)
days prior to the hearing date. Such notice may be served by mailing a copy of
the notice, via certified mail postage prepaid, to the last known residential
or business address of the licensee, person or entity. Service via
hand-delivery, electronic communications, or other methods may also be used to
perfect service of the notice upon the party or its representative. Notice to a
representative shall be deemed notice to the party represented.
1.5.1 Waiver; A properly noticed party's
failure to timely respond to Notice shall constitute that party's full and
complete waiver of the party's intent to attend the noticed Hearing or
otherwise defend against the charges. A properly noticed Hearing may thereafter
be conducted by the Commissioner without the party charged being present or
represented.
1.6; Unless
expressly prohibited by statute or regulation, the Commissioner shall have
discretion to control all aspects of the hearing, including any motion practice
or depositions that may be authorized, in order to maintain order, maximize
administrative/agency economy and to set controls for the behavior of all
participants involved in any manner. All hearings shall be conducted by the
Commissioner, who shall not be bound by strict rules of civil procedure or by
the rules of evidence in the conduct of any phase of the hearing
process.
1.7 Hearing Counsel to
Commissioner; The Commissioner may appoint Hearing Counsel in order to provide
legal counsel to the Commissioner on all aspects of the hearing and assist in
conducting any part of the hearing or activities related thereto. Hearing
Counsel shall have experience with conducting hearings that are judicial or
administrative in nature and will assist and solely represent the Commissioner
to ensure an orderly and fair hearing process. Hearing Counsel shall be an
attorney that does not represent any other party interested in the hearing and
may be an attorney from the Mississippi Attorney General's Office. All parties
shall be notified upon appointment of Hearing Counsel.
1.7.1 Authority Hearing Counsel shall have
authority to conduct the hearing process in his/her discretion, and in
consultation with the Commissioner. Hearing Counsel may make recommendations on
any question or issue, but the Commissioner shall have the ultimate discretion
and sole authority in all situations to make the final determination of any
issue.
1.8 Administration
of Oaths; At any hearing or related matter the Commissioner shall administer
oaths as may be necessary for the proper conduct of the hearing. The
Commissioner's authority may be administered by a certified Court
Reporter.
1.9 Extensions of time;
Upon motion by any party or on his/her own initiative, the Commissioner has
sole discretion to order an extension of any deadline that may be established
during the hearing process.
