137-003-0670 Default in Cases Involving a Notice of Proposed Action that Does Not Become Final Without a Hearing or Default (1) This rule applies when the agency issues a notice of proposed action that does not become final in the absence of a request for hearing. The agency or, if authorized, the administrative law judge may issue a final order by default: (a) When the agency gave a party an opportunity to request a hearing and the party failed to request a hearing within the time allowed to make the request; (b) When the party that requested a hearing withdraws the request; (c) Except as provided in section (2) of this rule, when the agency or administrative law judge notified the party of the time and place of the hearing and the party fails to appear at the hearing; or (d) When the agency or administrative law judge notified the party of the time and place of the hearing in a matter in which only one party is before the agency and that party subsequently notifies the agency or administrative law judge that the party will not appear at the hearing, unless the agency or administrative law judge agreed to reschedule the hearing. (2) If the party failed to appear at the hearing and, before issuing a final order by default, the agency or administrative law judge finds that the party had good cause for not appearing, the agency or administrative law judge may not issue a final order by default under section (1)(c) of this rule. In this case, the administrative law judge shall schedule a new hearing. If the reasons for the party’s failure to appear are in dispute, the administrative law judge shall schedule a hearing on the reasons for the party’s failure to appear. (3)(a) An agency or administrative law judge may issue an order adverse to a party upon default under section (1) of this rule only upon a prima facie case made on the record. The agency or administrative law judge must find that the record contains evidence that persuades the agency or administrative law judge of the existence of facts necessary to support the order. (b) Except as provided in subsection (c) of this section, if the agency designated the agency file in a matter as the record when a contested case notice for the matter was issued in accordance with OAR 137-003-0505 and no further testimony or evidence is necessary to establish a prima facie case, the agency file, including all materials submitted by a party, shall constitute the record. No hearing shall be conducted. The agency or, if authorized, the administrative law judge shall issue a final order by default under section (1) of this rule in accordance with 137-003-0665. (c) If the agency determines that testimony or evidence is necessary to establish a prima facie case or if more than one party is before the agency and one party appears at the hearing, the administrative law judge shall conduct a hearing and, unless authorized to issue a final order without first issuing a proposed order, the administrative law judge shall issue a proposed order in accordance with OAR 137-003-0645. The agency or, if authorized, the administrative law judge shall issue a final order by default in accordance with 137-003-0665. (4) The agency or administrative law judge shall notify a defaulting party of the entry of a final order by default by delivering or mailing a copy of the order. (5) If a final order by default is entered because a party did not request a hearing within the time specified by the agency, the party may make a late hearing request as provided in OAR 137-003-0528. Statutory/Other Authority: ORS 183.341 Statutes/Other Implemented: ORS 183.341, 183.417(4), 183.450, 183.470 & 183.630 History: DOJ 1-2012, f. 1-11-12, cert. ef. 1-31-12 DOJ 9-2007, f. 10-15-07 cert. ef. 1-1-08 DOJ 11-2005, f. 10-31-05, cert. ef. 1-1-06 DOJ 19-2003, f. 12-12-03, cert. ef. 1-1-04 DOJ 9-2001, f. & cert. ef. 10-3-01 DOJ 10-1999, f. 12-23-99, cert. ef. 1-1-00