Alabama Administrative Code › Title 80 - ALABAMA DEPARTMENT OF AGRICULTURE AND INDUSTRIES › AGRICULTURAL CHEMISTRY › Chapter 80-1-22 - FOODS, DRUGS AND COSMETICS › Section 80-1-22-.48 - Proceedings For Adverse Permit Actions

Current through Register Vol. 42, No. 9, June 28, 2024
The Department of Agriculture and Industries shall utilize
				  the contested case procedure in this chapter to take any adverse action on any
				  food safety permit.
(a) Such adverse
				permit actions shall be initiated by notices served on the affected permittee
				as provided in Rule
				420-1-3-.02 except that revocation and suspension actions shall be served only by
				registered or certified mail, return receipt requested. Such notice shall
				include the charges and specifications including a description of the grounds
				for the proposed action and the date, place and time of the meeting at which
				such proposed adverse action shall be heard. Notices shall be served at least
				30 days prior to the date of the hearing.
(b) Permittees shall be provided an
				opportunity to respond in writing and/or orally. Permittees may be represented
				by legal counsel and may present evidence in their defense. The staff of the
				State Department of Agriculture and Industries and the permittee may present
				and cross-examine witnesses and the hearing officer may examine and
				cross-examine witnesses.
(c) The
				burden of proof rests with the staff of the Department of Agriculture and
				Industries.
(d) Revocation and
				suspension proceedings shall be recorded by a certified court reporter. All
				other proceedings may, but shall not necessarily be recorded by a certified
				court reporter. Such proceedings may, as an alternative, be recorded by tape
				recorder or other electronic means or by stenographic notes or summaries
				prepared by the staff, so long as such summaries adequately and accurately
				reflect the testimony before the hearing officer.
(e) The hearing officer shall, upon
				completion of such hearing, make findings of fact on all adverse action and
				shall make recommendations to the Commissioner of Agriculture and Industries
				which shall consider such recommendations and shall reverse, affirm, or modify
				the recommendations of the hearing officer.
1. Any permittee aggrieved by an order of the
				Commissioner of Agriculture and Industries who desires to have the same
				modified or set aside may, within 15 days after the entry of the order, file an
				application for rehearing, which shall specify in detail the grounds for the
				relief sought therein and the authorities in support thereof.
2. The filing of such an application for
				rehearing shall not extend, modify, suspend or delay the effective date of the
				order, and said order shall take effect on the date fixed by the Commissioner
				of Agriculture and Industries and shall continue in effect unless and until
				said application shall be granted or until said order shall be superseded,
				modified, or set aside in a manner provided by law.
3. Such application for rehearing will lie
				only if the final order is:
(i) In violation
				of constitutional or statutory provisions;
(ii) In excess of the statutory authority of
				the Commissioner of Agriculture and Industries;
(iii) In violation of a rule of the State
				Board of Agriculture and Industries;
(iv) Made upon unlawful procedure;
(v) Affected by other error of law;
(vi) Clearly erroneous in view of the
				reliable, probative and substantial evidence on the whole record; or
(vii) Unreasonable, arbitrary or capricious
				or characterized by an abuse of discretion or a clearly unwarranted exercise of
				discretion.
4. Copies of
				such application for rehearing shall be served on all parties of record, who
				may file replies thereto.
5. Within
				30 days from the filing of an application, the Commissioner of Agriculture and
				Industries may in his or her discretion issue an order:
(i) Setting a hearing on the application for
				a rehearing which shall be heard as soon as practicable; or
(ii) With reference to the application
				without a hearing; or
(iii)
				Granting or denying the application.
6. If the Commissioner of Agriculture and
				Industries enters no order whatsoever regarding the application within the
				30-day period, the application shall be deemed to have been denied as of the
				expiration of the 30-day period.
7.
				In no event shall a party be required to file an application for rehearing as a
				condition of applying for judicial review.
Author:
Reginald L. Sorrells