Current through Register Vol. XXXIX, No. 11, March 18, 2022
applicant denied a license or permit or any licensee or permit holder who has
had their license or permit suspended by the Board who believes such denial was
in violation of W. Va. Code §§
seq. and/or 30-8-1 et seq. shall be entitled to a hearing on the action denying
or suspending such license or permit.
3.2. Any person who desires a hearing for the
reason described in subsection 3.1 of this section must present a written
demand for such to the Board.
When the Chair of the Board or his or her authorized designee is presented with
such a demand for a hearing, he or she shall schedule a hearing within
forty-five (45) days of receipt by him or her of such written demand, unless
postponed to a later date by mutual agreement.
3.4. Charges may be instituted against any
licensee or permittee by the Board when probable cause exists for believing
that the licensee or permittee may have engaged in conduct, practices or acts
in such condition that his or her license or permit should be suspended,
revoked or otherwise disciplined for one or more of the grounds set forth in W.
Va. Code §
et seq. or the Board's legislative rules. Charges may be based upon information
received by way of a verified written complaint filed with the Board and
further information gathered by the Board in the process of investigating such
complaint. Charges may also be based upon information received solely through
investigative activities undertaken by the Board.
3.5. Charges instituted against a licensee or
permittee as described in subsection 3.4 of this section shall be set forth in
a Complaint and Notice of Hearing issued in the name of the Board as the agency
of the state regulating the practice of optometry. Such Complaint and Notice of
Hearing shall designate the Board as the "Complainant", and shall designate the
licensee or permittee involved in the proceeding as the "Respondent"; shall set
out the substance of each offense charged with sufficient particularity to
reasonably apprize the Respondent of the nature, time and place of the conduct
or condition complained of therein; and shall state the date, time and place
for the hearing.
3.6. Upon receipt
of a demand for a hearing described in subsections 3.1 and 3.2 of this section,
the chair or his or her designee shall provide the demanding party, with a
Complaint and Notice of Hearing issued in the name of the Board. Such Complaint
and Notice of Hearing shall designate the demanding party as the "Complainant"
and shall designate the Board as the "Respondent"; shall set out the substance
of each and every reason that the Board has denied the demanding party a
license or permit with sufficient particularity to reasonably apprize the
demanding party of the nature, time and place of the conduct or condition at
issue therein; and shall state the date, time and place for the
3.7. The Board may amend
the charges set forth in a Complaint and Notice of Hearing as it deems
3.8. A Complaint and Notice
of Hearing shall be served upon the demanding or charged party at least thirty
(30) days prior to the date of hearing.
3.9. Upon written motion received by the
Board no later than twenty (20) days prior to the date of hearing, a more
definite statement of the matters charged or the reasons stated for denial of
licensure shall be provided to the demanding or charged party or his or her
counsel, at least fifteen (15) days prior to the hearing date.
Hearings shall be conducted as follows:
3.10.a. Any party to a hearing shall have the
right to be represented by an attorney-at-law, duly qualified to practice law
in the state of West Virginia.
3.10.b. The Board shall be represented by the
West Virginia Attorney General's Office.
3.10.c. Irrelevant, immaterial, or unduly
repetitious evidence shall be excluded from the hearing. Furthermore, the rules
of evidence as applied in civil cases in the circuit courts of this state shall
be followed. However, when necessary to ascertain facts not reasonably
susceptible of proof under those rules, evidence not admissible thereunder may
be admitted, except where precluded by statute, if it is of a type commonly
relied upon by reasonably prudent persons in the conduct of their
3.10.d. The rules of
privilege recognized by the law of this state shall be followed.
3.10.e. Objections to evidentiary offers
shall be noted in the record. Any party to the hearing may vouch the record as
to any excluded testimony or other evidence.
3.10.f. Any party to a hearing may appear
with witnesses to testify on his or her behalf; may be heard in person, by
counsel or both; may present such other evidence in support of his or her
position as deemed appropriate by the Board or hearing examiner and, when
appropriate, may cross-examine witnesses called by the Board in support of the
charges or in defense of its decision to deny licensure or a permit.
3.10.g. The hearing shall be held at such
time and place as is designated by the Board, but no hearing shall be conducted
unless and until at least thirty (30) days written notice thereof has been
served upon the charged or demanding party and/or his or her attorney in
person; or if he or she cannot be found, by delivering such notice at his or
her usual place of abode, and giving information of its purport, to his wife or
her husband, or to any other person found there who is a member of his or her
family and above the age of sixteen (16) years; or if neither his wife or her
husband nor any such person can be found there, and he or she cannot be found,
by leaving such notice posted at the front door of such place of abode; or if
he or she does not reside in this state, such notice may be served by the
publication thereof once a week for three successive weeks in a newspaper
published in this state; or such notice may be served by registered or
3.10.h. The hearing
shall be open to the general public.
3.10.i. Members of the Board and its
officers, agents and employees shall be competent to testify at the hearing as
to material and relevant matters: Provided, That no member of the Board who
testifies at such hearing shall thereafter participate in the deliberations or
decisions of the Board with respect to the case in which he
3.10.j. The hearing
shall be conducted by a quorum of the Board or, if the Board so chooses, a
hearing examiner chosen by the Board.
3.10.k. A record of the hearing, including
the complaint(s), if applicable, the notice of hearing, all pleadings, motions,
rulings, stipulations, exhibits, documentary evidence, evidentiary depositions
and the stenographic report of the hearing, shall be made and a transcript
thereof maintained in the Board's files. Upon request, a copy of the transcript
shall be furnished to any party at his or her expense.
3.10.l. Documentary evidence may be received
in the form of copies or excerpts or by incorporation by reference.
3.10.m. Where a hearing is held upon the
instance of the Board after charges have been brought against a licensee
pursuant to subsection 3.4 and 3.5 of this section, the Board shall have the
burden of proof and shall present its evidence and/or testimony in support of
the charges first.
3.10.n. Where a
hearing is held upon demand under the provisions of subsections 3.1, 3.2, 3.3,
and 3.6 of this action, the demanding party shall have the burden of proof and
shall therefore be required to present his or her evidence first. The Board may
require the person demanding the hearing to give security for the costs thereof
and if the demanding party does not substantially prevail, such facts may be
assessed against them and may be collected in a civil action or by other proper
3.10.o. Following the
conclusion of the Board's presentation of evidence in accordance with
subsection 3.10.m of this section the respondent or charged party shall have
the right to submit his or her evidence in defense.
3.10.p. Following the conclusion of the
demanding party's presentation of evidence in accordance with subsection 3.10.n
of this section, the Board shall have the right to offer its evidence in
3.10.q. The Board may
call witnesses to testify in support of its decision to deny licensure, to deny
a permit or in support of the charges instituted against a licensee or
permittee; may present such other evidence to support its position; and may
cross-examine witnesses called by the demanding party or charged party in
support of his or her position.
3.10.r. All parties shall have the right to
offer opening and closing arguments, not to exceed ten (10) minutes for each
3.10.s. Hearings held
by the Board or hearing examiner as a result of
charges instituted against a licensee or permittee may be continued or
adjourned to a later date or different place by the Board or its designee by
appropriate notice to all parties.
3.10.t. Motions for a continuance of a
hearing may be granted upon a showing of good cause. Motions for continuance
must be in writing and received in the office of the Board no later than seven
(7) days before the hearing date. In determining whether good cause exists,
consideration will be given to the ability of the party requesting the
continuance to proceed effectively without a continuance. A motion for a
continuance filed less than seven (7) days from the hearing date may be denied
unless the reason for the motion could not have been ascertained earlier.
Motions for continuance filed prior to the date of hearing shall be ruled on by
the chair or executive director of the Board. All other motions for continuance
shall be ruled on by the Board member(s), the member presiding over the hearing
or hearing examiner.
motions related to a case set for hearing before the Board, except motions for
continuance and those made during the hearing, shall be in writing an shall be
received in the office of the Board at least ten (10) days before the hearing.
Pre-hearing motions shall be heard at a pre-hearing conference or at the
hearing prior to the commencement of testimony. The Board member(s) presiding
at the hearing or the hearing examiner shall hear the motions and the response
from the non-moving party and shall rule on such motions