Alabama Administrative Code Chapter 364-X-17 — Administrative Hearings: Decisions: Related Rights:

364 Alabama Board of Licensure for Professional Geologists

Ala. Admin. Code r. 364-X-17-.01 Procedures

(1) Plea. The Respondent shall plead either "guilty" or "not guilty" to the charges set forth in the complaint.

(2) Opening Statement. Each side will have the opportunity to make an opening statement.

(3) Evidence. The State will present its evidence, followed by the Respondent. The State will follow with a rebuttal. Each witness called may be examined in the following order:

(a) Direct examination.

(b) Cross examination.

(c) Examination by the Board.

(d) Re-direct examination.

(e) Re-cross examination.

(f) Re-examination by the Board.

(4) Closing argument. Each side will have the opportunity to make a short closing argument. These arguments will summarize the evidence presented and urge the application of pertinent law to the evidence presented.

(5) Proposed Decision. See also Rule 364-X-17-.06. The Board may request either or both sides to prepare within seven (7) days for the Board's consideration a proposed decision of the Board, which shall include findings of fact, official notice and conclusions of law. Any underlying facts of record in support of the findings will be disclosed.

(6) Decision. The Board shall issue a decision. Its decision is the prerequisite "final agency decision" for the right to judicial review. See also Rule 364-X-17-.05.

History

• Author: Thornton L. Neathery
• Authority: Code of Ala. 1975, §34-41-20.
• New Rule: Filed May 10, 1996; effective June 14, 1996.

Ala. Admin. Code r. 364-X-17-.02 Failure To Appear

(1) If a party fails to appear in a contested case after proper service of notice, the Board, if no adjournment is granted, may proceed with the hearing and make its decision in the absence of the party.

(2) Continuances, adjournments and like dispositions will be granted in compelling circumstances. Usually only one such postponement will be allowed.

(3) Petition for reopening a case will not be granted except when the petitioner can show, in writing, that the reasons for his or her failure to appear were justifiable and unavoidable and that fairness requires reopening the case. Such petitions, however, will have no effect of the running of the 30 day period for seeking judicial review, which starts the day of final judgment by the Board.

(4) The decision of the Board will be in writing and a copy will be sent via registered or certified mail to the petitioner and made a part of the record of the hearing.

History

• Author: Thornton L. Neathery
• Authority: Code of Ala. 1975, §34-41-20.
• New Rule: Filed May 10, 1996; effective June 14, 1996. Amended: Filed March 5, 2002; effective April 9, 2002.

Ala. Admin. Code r. 364-X-17-.03 Simplification Of Issues

Except as prohibited by statute, the parties to a contested case, specifically including the Board, may agree in advance to simplify the hearing by: decreasing the number of the issues to be contested at the hearing; accepting the validity of certain proposed evidence; accepting the findings in some other case with relevance to the case at hand; or agreeing to such other matters as may expedite the hearing .

History

• Author: Thornton L. Neathery
• Authority: Code of Ala. 1975, §§34-41-17, 34-41-20.
• New Rule: Filed May 10, 1996; effective June 14, 1996.

Ala. Admin. Code r. 364-X-17-.04 Subpoenas

(1) Subpoenas requiring the attendance of witnesses, or those to produce documents, evidence, or things, will be issued by the Board or its designee within four business days of the receipt of a request from a party to the case for such subpoena, except as stated in this Rule.

(2) Subpoenas shall be served as the officer issuing the subpoena shall direct, as may be appropriate to the circumstances of the case. Subpoenas may be directed to be served by either of the following methods:

(a) by an employee of the Board; or

(b) by the sheriff of the county in which the person subpoenaed resides, when the party requesting such subpoena prepays the sheriff's service fee.

(3) Subpoenas shall be issued in duplicate, with a "Return of Service" form attached to each copy. The person serving the subpoena shall fill out the "Return of Service" form for each copy and promptly return one copy of the subpoena, with the attached "Return of Service" forms completed, to the Board.

(4) The Board or its designee will have the discretion to refuse to issue a requested subpoena if, clearly, on its face, the request is objectionable or unreasonable.

(5) Except as otherwise stated in a particular subpoena, any person receiving a subpoena from the Board may object thereto by filing a written objection to the subpoena with the Board by mailing same to the Board office. Such objection must be filed within five (5) days of receipt of the subpoena or two days prior to the date on which the subpoena is returnable or testimony to be taken, whichever shall be sooner.

(6) Such objection will include a concise, but complete statement of the reasons why the subpoena should be revoked or modified. These reasons may include lack of relevance of the evidence sought, or any other reason sufficient in law for holding the subpoena invalid, such as that the evidence is privileged, that appearance or production would be so disruptive as to be unreasonable in light of the significance of the evidence sought, or other undue hardships.

(7) Any such objection to a subpoena must be served on the party who requested the subpoena simultaneously with the filing of the objection with the Board.

(8) The party who requested the subpoena, in such time as may be granted by the Board or its designee, may file a written response to the objection. The written response shall be served by the requesting party on the objecting witness simultaneously with filing the response with the Board.

(9) After receipt of the objection and response thereto, if any, the Board or its designee shall issue a notice to the party who requested the subpoena and the party who is challenging it, and may notify all other parties, of an open hearing, to be scheduled as soon as practicable, at which time evidence and testimony may be presented, limited to the narrow questions raised by the objection and response, if any.

(10) Promptly after the close of such hearing, the Board or its designee will rule on the challenge and issue a written decision. A copy of the decision will be issued to all parties and made a part of the record.

(11) Subpoenas shall contain the following:

(a) the caption of the case;

(b) the name and address of the person subpoenaed;

(c) the date, hour and location of the hearing in which a witness is commanded to appear;

(d) a particularized description of the books, papers, records, maps, charts or objects the witness is directed to bring with him or her to the hearing, if any;

(e) the identity of the party on whose application the subpoena has been issued, and the date of issue;

(f) the manuscript signature of the Board chairman or his designee; and

(g) a "Return of Service" form, fully executed, which shows; the name and capacity of the person serving the subpoena; the date on which the subpoena was delivered to the person directed to make service; the date on which service was made; the person on whom service was made; the location and manner in which service was made; and the manuscript signature of the person making service.

History

• Author: Thornton L. Neathery
• Authority: Code of Ala. 1975, §34-41-20.
• New Rule: Filed May 10, 1996; effective June 14, 1996.

Ala. Admin. Code r. 364-X-17-.05 Final Decisions In Administrative Hearings

Within thirty (30) days of the date of the final hearing, the Board will issue the final, written decision in all contested cases. This decision will include findings of fact, official notice taken, and conclusions of law. Any underlying facts of record in support of the findings will be disclosed.

History

• Author: Thornton L. Neathery
• Authority: Code of Ala. 1975, §34-41-20.
• New Rule: Filed May 10, 1996; effective June 14, 1996.

Ala. Admin. Code r. 364-X-17-.06 Proposal For Decisions

(1) When the official or a majority of the officials of the Board who are to make a final decision have not heard a contested case, the decision shall not be made until a proposal for decision is served on the parties, and an opportunity is given to each party to file exceptions and proposed findings of fact and to present oral and written arguments to the officials who are to make the decision.

(2) When a "Proposal for Decision" is rendered by a Hearing Officer, any party may file written exception thereto and submit his own proposed findings of fact and conclusions of law.

(3) Any exceptions to the procedures during the hearing, the handling of the hearing by the Hearing Officer, rulings on evidence, or any other matters, must be written and refer specifically to pages of record or otherwise precisely identify the occurrence being excepted to. Such exceptions must be filed with the Board within five (5) days of the receipt of the Hearing Officer's proposal for decision. The container of such written exceptions should bear the notation: RE: EXCEPTIONS TO THE PROCEEDINGS IN THE CASE OF (name of case).

(4) The Board will direct whatever corrective action it may deem advisable in light of the exceptions, if any. Any decision made will be a part of the record and copy there given to all parties.

(5) Any party may present further oral arguments to the Board upon request. Such request must be made in writing to the Board not later than three (3) days after receipt of the Hearing Officer's "Proposal for Decision."

(6) Upon receipt of request for further oral argument, notice will be issued promptly by registered or certified mail to all parties designating time and place for such oral argument.

(7) The parties, by written stipulation or at the meeting, may waive compliance with this section.

History

• Author: Thornton L. Neathery
• Authority: Code of Ala. 1975, §34-41-20.
• New Rule: Filed May 10, 1996; effective June 14, 1996.