W. Va. Code R. § 14-3-3 - Hearing Procedure

Current through Register Vol. XXXIX, No. 11, March 18, 2022

3.1. Any 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 §§ 30-1-1 et 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.
3.3. 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 § 30-8-18, 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 hearing.
3.7. The Board may amend the charges set forth in a Complaint and Notice of Hearing as it deems proper.
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.
3.10. 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 affairs.
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 certified mail.
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 testified.
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 remedy.
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 rebuttal.
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 presentation.
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.
3.10.u. All 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 accordingly.

Notes

W. Va. Code R. § 14-3-3

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