West Virginia Code of State Rules › Agency 14 - Optometry › Title 14 - LEGISLATIVE RULE WEST VIRGINIA BOARD OF OPTOMETRY › Series 14-03 - Contested Case Hearing Procedure › Section 14-3-3 - Hearing Procedure

Current through Register Vol. XLI, No. 28, July 12, 2024
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.