165-001-0025 Orders When No Hearing Requested, Hearing is Cancelled, or Failure to Appear at Hearing (1) When a party has been given an opportunity to request a hearing and fails to request a hearing in writing within the specified time, or having requested a hearing fails to appear at the specified time and place, the agency shall, subject to section (2) of this rule, enter an order by default which supports the agency action. (2) The time provided by statute to request a hearing under ORS 260.995 is calculated from the delivery date indicated on the certified letter's postal confirmation. If the certified letter is refused or left unclaimed at the post office, the time shall be calculated from the date the post office indicates it has given first notice of a certified letter. If the certified card is not returned to the Secretary of State by the United States Postal Service (USPS), the Secretary shall use the date recorded on the official USPS website utilizing the Track and Confirm delivery service. (3) The time provided by statute to request a hearing under ORS 260.232 is 20 calendar days after the service date on the charging document. (4) An order adverse to a party may be issued on default only if the agency record demonstrates a prima facie case justifying the order. The Administrative Law Judge will declare a party to be in default if the party which requested the hearing does not appear within 15 minutes of the time set for the hearing, unless the party gives notice of a reason for the inability to appear at the designated time and requests and receives a continuance. A continuance shall be granted only if the reason for the inability to appear is beyond the reasonable control of the party. (5) The prima facie record upon default may be made at a scheduled hearing on the matter, or, if the notice of intended action states that the order will be issued or become effective upon the failure of the party to timely request a hearing, when the order is issued. (6) The record may consist of oral (transcribed, recorded, or reported) or written evidence or a combination of oral and written evidence. When the record is made at the time the notice or order is issued, the agency file may be designated as the record. In all cases, the record must contain substantial evidence to support the findings of fact. (7) When the Administrative Law Judge has set a specified time and place for a hearing and the party subsequently notifies the agency or the Administrative Law Judge assigned to the case that the party will not appear at such specified time and place, the agency may cancel the hearing and follow the procedure described in subsections (2), (3) and (4) of this rule. (8) The deadline to issue a Final Order by Default if there is no hearing request, the hearing is cancelled or the party fails to appear at the hearing is not later than the 90th day after the deadline to request a hearing. (9) When a party requests a hearing after the time specified by the agency, but before entry of a final order by default, or, if a final order by default is entered, on or before 30 calendar days after entry of the order, the agency may accept the late request only if the cause for failure to timely request the hearing was beyond the reasonable control of the party. In determining whether to accept a late hearing request, the agency may require the request to be supported by an affidavit and may conduct such further inquiry, including holding a hearing, that it deems appropriate. The agency shall enter an order granting or denying the request. (10) When a party requests a hearing after entry of a default order, the party must file the request within a reasonable time. If the request is received more than 30 days after the agency mailed the default order to the party or the party’s attorney (based on the service date of the order), it is presumed that the request is not timely. The request shall state why the party should be relieved of the default order. If the request is allowed by the agency, it shall enter an order granting the request and schedule the hearing in due course. If the request is denied, the agency shall enter an order setting forth its reasons for the denial. (11) The agency shall notify a defaulting party of the entry of a default order by mailing a copy of the order as required by ORS 183.470. (12) Notwithstanding the provisions of this rule relating to late requests for a hearing, no hearing may be held if the timing of the request would cause the agency to miss the statutory deadlines established for the conduct of hearings in ORS 260.232(4), 260.285, or 260.995(6). Statutory/Other Authority: ORS 183.090, ORS 183.470, 246.150, 260.232, 260.995 & 260.285 Statutes/Other Implemented: ORS 183.470, 260.232, 260.995 & 260.285 History: ELECT 7-2020, amend filed 06/11/2020, effective 06/11/2020 ELECT 3-2016, f. & cert. ef. 7-6-16 ELECT 15-2015, f. 12-31-15, cert. ef. 1-1-16 ELECT 1-2012, f. & cert. ef. 1-3-12 ELECT 19-2009, f. & cert. ef. 12-31-09 ELECT 7-2003, f. & cert. ef. 9-3-03 ELECT 15-1994, f. & cert. ef. 7-26-94 ELECT 27-1993, f. & cert. ef. 7-1-93 ELECT 26-1988, f. & cert. ef. 8-1-88 ELECT 15-1988(Temp), f. & cert. ef. 1-27-88