Chapter 20-14 PROCEDURAL RULES
Rules
20-14-.01 through
20-14-.42 govern procedure in
"contested cases" as that term is defined in the Georgia Administrative
Procedure Act (O.C.G.A. 50-13-2(2)) and which are conducted before the
Board.
| (1) |
The Board shall
keep a book known as a docket, which shall be arranged by a sequential
numbering system for each case or other matter and shall show for each case or
matter, as permitted by law, all proceedings, actions and filings. |
| (2) |
The Board shall keep a docket index by
both docket number and alphabetical list of the names of the Respondents in all
proceedings. |
The Office of the Board shall be open from 8:00 a.m. to 5:00
p.m. each weekday except Saturdays, Sundays and legal
holidays.
All communications, including correspondence, motions, and
pleadings, shall be filed with the Board. Copies shall be furnished to all
parties of record, including the attorney representing the State. An original
and one duplicate of all correspondence, motions, and pleadings shall be filed
with the Board and shall comply in all respects with Rule
20-14-.23.
All communications, correspondence, motions and pleadings in
any proceedings shall be deemed to be filed or received on the date on which
they are actually received by the Board.
Computation of any period of time referred to in these rules
shall begin with the first day following that on which the act which initiates
such period of time occurs. When the last day of the period so computed is a
day on which the Office of the Board is closed, the period shall run until the
end of the following business day. When such period of time, with the
intervening Saturdays, Sundays and legal holidays counted, is seven (7) days or
less, the said Saturdays, Sundays and legal holidays shall be excluded from the
computation; or otherwise such days shall be included in the
computation.
It shall be within the discretion of the presiding officer to
extend, for good cause shown, any time limit prescribed or allowed by these
rules. All requests for an extension should be made by a motion in accordance
with Rule 20-14-.15 and shall indicate
therein whether all parties concur. The presiding officer shall notify all
parties of its action upon the motion. Extension shall be granted only when the
presiding officer is satisfied that good cause has been shown and not
otherwise.
Every notice, pleading, petition, motion or other document
filed by a party, represented by an attorney other than the Board, shall be
signed by at least one attorney of record in his or her individual name, and
his or her address and telephone number shall be stated. A party who is not
represented by an attorney shall sign his or her pleading and state his or her
address and telephone number. Except when otherwise specifically provided by
rule or statute, pleadings need not be verified or accompanied by affidavit.
The signature of an attorney constitutes a certificate by him or her that he or
she has read the pleading, and that it is not interposed for
delay.
No individual not employed by the Board shall communicate ex
parte with the presiding officer, any member of the Board or any employee of
the Board involved in the decisional process with respect to the merits of a
contested case. If any ex-parte communication is directed to any individual in
violation of these rules, the presiding officer and all other parties shall be
immediately informed of the substance of the communication and the
circumstances of its receipt; provided, that a request for information with
respect to the status of a proceeding shall not be prohibited by this
section.
| (1) |
Form of Petition. Each petition for
promulgation, amendment or repeal of Board rules made pursuant to the Georgia
Administrative Procedure Act shall be filed with the Board. The petition shall
be in writing and shall state:
| (a) |
The name
and address of the petitioner; |
| (b) |
The full text of the rule requested to be amended or repealed, or the full text
of the rule desired to be promulgated; |
| (c) |
A statement of the reason such rule
should be amended, repealed, or promulgated including a statement of all
pertinent existing facts which relate to petitioner's interest in the matter;
and |
| (d) |
Citations of legal
authority, if any, which authorize, support, or require the action requested by
petition. The petition shall be verified under oath by, or in proper behalf of,
the petitioner. |
|
| (2) |
Proceeding on Petition. Upon receipt of the petition, the Board shall decide
upon the action to be taken. Within thirty days after receipt of the petition,
the Board either shall deny the petition in writing (stating its reasons for
the denial) or shall initiate rule-making or rule-changing proceedings in
accordance with Section 4 of the Georgia Administrative Procedure
Act. |
| (1) |
The hearing in
a contested case shall be commenced by the Board's filing of a notice of
hearing directed to the respondent, or respondents. |
| (2) |
Every pleading or other paper submitted
for filing in a contested case, to the extent possible, shall contain the
following:
| (a) |
A title which indicates the
nature of the proceeding and the parties involved therein; |
| (b) |
The name of the Board; |
| (c) |
A short and plain statement of the nature
of the pleading (e.g., Answer, Motion for Continuance, etc.); |
| (d) |
In addition, the notice of hearing shall,
to the extent possible, contain the following:
| 1. |
A short and plain statement of the matters
asserted or the issues involved; |
| 2. |
A clear and concise statement of the laws involved; |
| 3. |
A notice of the rights of the individual
to whom the notice of hearing is directed; |
| 4. |
A statement that an answer to the matters
asserted is required; and |
| 5. |
Any
other information required by law or deemed appropriate by the Board. |
|
|
The party to whom a notice of hearing is directed must file
with the Board an answer within fourteen (14) days after service of the notice
of hearing. All allegations contained in the notice of hearing which are not
specifically admitted are deemed denied.
A reply to the answer shall not be permitted, and any new
matters asserted in the answer shall be deemed denied.
Any party, including the Board, may amend any pleading or
notice without leave of the Board until the eighth day prior to the date set
for the hearing on the matter. Thereafter a party may amend his or her
pleadings only by leave of the presiding officer, and leave shall be freely
given when justice so requires. If an amendment is made to a notice of hearing,
the answer to said amended notice shall be filed within seven (7) days after
service of the amended notice, unless otherwise ordered by the presiding
officer.
| (1) |
An
application to the Board for an order to take any action or to enter any order
shall be made by motion which, unless made during the hearing, shall be made in
writing, shall state specifically the grounds therefor, and shall set forth the
action or order sought. A copy of all written motions shall be served upon the
parties in accordance with Rules
20-14-.20 through
20-14-.23. |
| (2) |
A motion for a continuance or an
extension of time shall be ruled upon by the presiding officer forthwith. All
other motions shall be ruled upon by the presiding officer at the outset of the
hearing, after an opportunity for argument by the parties; provided, however,
that when the presiding officer is a duly appointed hearing officer, the
presiding officer may establish a hearing schedule and dispose of motions at
his or her discretion. The presiding officer may request briefs in support of
or in opposition to any motion. |
A motion for more definite statement shall be filed and ruled
upon pursuant to Rule
20-14-.15.
Proceedings before the Board shall be conducted as
expeditiously as possible, with due regard to the rights of the parties. In
contested cases before the Board, upon issuance of a notice of hearing, the
procedures set forth in this Chapter shall enable the parties to obtain
relevant information needed for preparation of the case, to the extent that
such disclosure is authorized by law.
| (1) |
The parties shall within a reasonable
time prior to the commencement of the hearing but at least ten (10) days prior
to the hearing, exchange lists of the names, addresses, and phone numbers of
witnesses, including experts, whom each party expects to call or may call on
its behalf. |
| (2) |
The parties shall
also, within a reasonable period of time prior to the hearing, exchange copies
of documents, and designate documents already in the possession of the other
party which are intended to be introduced as evidence at the hearing. The
parties shall similarly, upon request, make available to each other for
inspection, copying, testing or sampling any tangible item intended to be
introduced as evidence. |
| (3) |
Respondent shall be furnished, within a reasonable time prior to the
commencement of the hearing but at least ten (10) days prior to the hearing,
any written statements or other record memorializing oral statements made by
the Respondent during the course of the investigation. |
| (4) |
The parties shall be required to confer
either in person or by telephone, in reasonable advance of a scheduled hearing
date but at least seven (7) days prior to the hearing, in a good-faith attempt
to reach an agreement as to the admissibility of any documents or tangible
items intended to be offered in evidence for either side. The parties may
stipulate as to any matter of fact and such stipulation will satisfy a party's
burden of proving the fact alleged. The parties shall be encouraged to reach
pre-hearing stipulations which could facilitate adjudication of the case. The
hearing officer, upon his or her own motion or upon the request of either
party, may schedule a pre-hearing conference to hear and rule on motions or
other preliminary matters, or otherwise facilitate adjudication of the
case. |
Except as may be expressly authorized by these rules or by
statute, no other forms of prehearing discovery shall be authorized or
permitted including, but not limited to the following: interrogatories;
requests for production of documents and things; requests for physical or
mental examination; and requests for admission.
Service of the notice of hearing, initial decision and final
order shall be by personal delivery or certified mail to the licensee or
applicant, in addition to counsel of record. All other notices, pleadings,
orders, motions, and other documents shall be served by first class mail,
email, fax, or personal delivery.
A copy of the answer and all other pleadings, notices, motions,
briefs, memoranda, and other documents filed by any party with the Board shall
be served upon all other parties to the proceeding, including counsel for the
Board, by first-class mail, email, fax, or personal delivery.
Service upon a party's attorney shall be deemed service upon
the party, except as provided in Rule 20-14-20.
A pleading subsequent to the Notice of Hearing shall not be
entitled to filing unless accompanied by an Acknowledgement of Service required
hereunder or a certificate that the service required hereunder has been made.
In addition, a pleading shall not be entitled to filing unless it is stamped or
otherwise marked in the upper left-hand corner on the first page of the
document as "original," and a duplicate copy is simultaneously submitted which
is stamped or otherwise marked as "duplicate" in the upper left hand corner on
the first page.
The presiding officer may upon motion, at any time during the
course of the proceeding, permit such substitution of parties as justice may
require.
Any individual desiring to intervene pursuant to Section 14 of
the Georgia Administrative Procedure Act (O.C.G.A. 50-13-14) shall file a
motion in accordance with Rule
20-14-.23, which motion shall
state therein the specific grounds for seeking intervention. The Board and any
other parties shall have fourteen (14) days from the date of service to file a
response to such request.
In all hearings the testimony of witnesses shall be taken
orally before the Board or hearing officer, unless otherwise provided by these
rules.
When a motion is based on facts not appearing of record, the
presiding officer may hear the matter on affidavits presented by the respective
parties, but the presiding officer may direct that the matter be heard wholly
or partly on oral testimony.
Formal exceptions to rulings on evidence are unnecessary. It is
sufficient that a party, at the time that a ruling of the presiding officer is
made or sought, makes known to the presiding officer the action which he or she
desires taken or his or her objections to such action and his or her grounds
therefor.
| (1) |
In contested
cases, subpoenas shall be issued without discrimination between public and
private parties. At any time after issuance of the Notice of Hearing, and prior
to the scheduled date for the hearing, the parties may request the issuance of
subpoenas by filing a written request with the Board, in accordance with Rule
20-14-.04, with appropriate
service on the opposing party or counsel. Subpoena requests shall state the
name and complete address of the individual to whom it is directed. |
| (2) |
Subpoenas issued pursuant to a request in
accordance with Rule
20-14-.29(1) shall not be issued in blank. Every subpoena issued by the Board shall state
the name of the Board and the title of the action, and shall command each
individual to whom it is directed to attend and give testimony at the hearing
at a time and place therein specified, or to produce documents for examination
at the hearing, or both. If such a subpoena is directed to any member,
investigator, employee, or other agent or representative of the Board,
including experts retained by the Board for purposes of the particular case,
production of documentary evidence from the Board or investigative file of the
applicant or licensee and the taking of testimony at the hearing from such
individual or individuals shall be governed by applicable provisions in the
practice act regulating the business or profession, and by O.C.G.A.
43-3-20(b). |
| (1) |
At any time during the course of the
proceeding, the presiding officer may, in his or her discretion, permit the
testimony of a witness to be taken by deposition. Application to take testimony
by deposition shall be made in writing and shall be filed with the Board and
served upon all parties to the proceedings, including counsel for the
Board. |
| (2) |
The application shall
state the name and address of the witness; the subject matter concerning which
the witness is expected to testify; the date, time and place of the proposed
deposition; and the reason why the witness cannot appear and testify before the
Board. The presiding officer may, in his or her discretion, allow the
application where the circumstances are such that the witness to be deposed
cannot appear before the Board without substantial hardship to the deponent or
to the parties to the case or that testimony by any other method will unduly
delay expeditious completion of the proceedings. An application for the taking
of testimony by deposition shall not be allowed if the deposition would result
in any undue burden to another party or any undue delay of the proceedings. If
the application is allowed, the presiding officer should give notice of the
taking of the testimony by deposition to all parties. |
| (1) |
Examination
and cross-examination of the witness shall proceed as would be permitted at the
hearing and under those rules of evidence applicable to proceedings conducted
pursuant to the Georgia Administrative Procedure Act. The officer before whom
the deposition is to be taken shall put the witness on oath and shall
personally record the testimony of the witness. The testimony shall be taken
steno graphically and shall be transcribed. All objections made at the time of
examination to the qualifications of the officer taking the deposition, or to
the manner of taking it, or to the evidence presented, or to the conduct of any
party, and any other objections to the proceedings, shall be noted by the
officer upon the deposition. Evidence objected to shall be taken subject to the
objection. |
| (2) |
All errors and
irregularities in the notice of taking testimony by deposition shall be deemed
waived unless written objection thereto is served upon the Board prior to the
deposition. Objections to taking testimony by depositions because of
disqualification of the officer before whom it is to be taken shall be deemed
waived unless made before the deposition begins or as soon thereafter as the
disqualification becomes known or could be discovered with reasonable
diligence. |
| (3) |
Objections to the
competency of a witness are not waived by failure to make them before or during
the deposition, unless the ground of the objection is one which might have been
obviated or removed if presented at that time. Errors and irregularities
occurring at the taking of the testimony in the manner of taking the
deposition, in the form that the questions are answered, in the oath of
affirmation, or in the conduct of the parties, and errors of any kind which
might be obviated, removed or cured if properly presented, shall be deemed
waived unless reasonable objection thereto is made at the deposition. |
| (4) |
Errors and irregularities in the manner
in which the testimony is transcribed or the deposition is prepared, certified,
sealed, endorsed, transmitted, filed, or otherwise dealt with by the officer
taking the testimony are waived unless a motion to suppress the deposition or
some part thereof is made with reasonable promptness after such defect is, or
with due diligence might have been, ascertained. |
| (5) |
The deposition shall be sealed and filed
with the Board. |
Application to take testimony by interrogatory shall be made
and allowed in the same manner as prescribed in Rule
20-14-.30.
The Board shall notify all parties of the date, time and place
of the hearing.
| (1) |
Presiding
Officer. The hearing shall be conducted by the presiding officer, who shall be
a duly appointed hearing officer, the chairperson of the Board, or a member of
the Board appointed by the Board or the chairperson of the Board to conduct the
hearing. |
| (2) |
Duties of the
Presiding Officer. The presiding officer shall have the authority to do the
following: to administer oaths and affirmations; rule upon offers of proofs;
regulate the course of the hearing; set the time and place for continued
hearings; fix the time for filing briefs and memoranda; dispose of motions; and
reprimand or exclude from the hearing any individual for any indecorous or
improper conduct committed in the presence of the presiding officer. |
| (3) |
Sworn Testimony. All testimony given at
the hearing shall be under oath administered by the presiding officer or any
individual designated by him or her. |
| (4) |
Order of Presentation. The State, or in a
proper case a moving or complaining party, shall present its evidence or
testimony first. Where there is more than one moving or complaining party, the
order of presentation shall be at the discretion of the presiding officer.
After all of the evidence and testimony of the State, or the moving or
complaining party, has been received, all other parties shall be allowed to
present their evidence or testimony. All parties, other than the party
introducing the testimony, shall be allowed to cross-examine any witness
immediately after his or her testimony has been received. The State, or the
moving or complaining party, shall be allowed to present rebuttal testimony or
evidence if it so desires. |
The Board or the Chairperson of the Board may appoint a hearing
officer to act as the presiding officer in the proceeding.
The presiding officer upon his or her own motion, or upon
motion by a party or other individual joined in the proceeding, may order
proceedings involving a common question of law or fact to be consolidated for
hearing on any or all of the matters at issue in such
proceedings.
Briefs may be filed by a party or any interested individual
either before or during the course of the hearing, or within such time
thereafter as the presiding officer shall designate. Failure to file a brief
shall in no way prejudice the rights of any party.
| (1) |
Upon request, the presiding officer may,
for good cause shown, allow the parties to file evidentiary documents of any
kind, or exhibits, at a time subsequent to the completion of the hearing, such
time to be determined by the presiding officer. If a request for such
subsequent filing is granted, the requesting party shall, on or before the date
set for filing, send copies of all documents or exhibits which are the subject
of the request to all other parties. |
| (2) |
Prior to the admission into evidence of
any documents or exhibits filed subsequent to the hearing, the opposing party
shall have ten (10) days from the date of service of copies of such proposed
documents or exhibits to file any objections to the admission of such
evidence. |
A party may, at any time prior to the rendering of a final
decision by the Board, move that the hearing be reopened for the purpose of
receiving new evidence. Such motions shall be filed in accordance with the
provisions of Rule
20-14-.15 and shall be granted
only for good cause shown. The Board shall notify all parties of its action
upon the motion. Notwithstanding the above, the Board may at any time prior to
the rendering of a decision, reopen the hearing on its own
motion.
| (1) |
Either
the Respondent or the Board may seek review of the initial decision of the
hearing officer pursuant to O.C.G.A. 50-13-17(a). If the Respondent files a
timely motion for review of the initial decision of the hearing officer, the
Respondent may include therein a statement of the reasons for seeking review
and alleged errors made by the hearing officer in the initial decision. If the
Board files a timely order for review of the initial decision on its own
motion, it may include in its order the issues to be considered by the Board at
the review hearing. |
| (2) |
Upon the
filing of a timely motion by Respondent seeking review of the initial decision
of the hearing officer, or upon the filing of a timely order for review of an
initial decision by the Board on its own motion, notice of the date and time
for the review shall be served on Respondent or counsel for Respondent and
counsel for the Board. |
| (3) |
The
Board may appoint a hearing officer for review, other than the hearing officer
who entered the initial decision, who shall preside over the review proceedings
and control the conduct of the review hearing. In acting as presiding officer,
the hearing officer for review shall rule on all procedural and evidentiary
questions that arise during the course of the review. At the direction of the
Board, the hearing officer for review shall draft the final decision for the
Board. |
| (4) |
On review, the Board
shall have all the powers it would have in making the initial decision, and in
its discretion shall have the power to take additional testimony or remand the
case to the original hearing officer for such purpose, as provided in the
Administrative Procedure Act, O.C.G.A. 50-13-17 and in accordance with this
Rule. The Respondent or Respondent's counsel and counsel for the Board shall
docket any motion, including motions to present additional evidence, at least
fourteen (14) days before the date set for the review hearing. Responses to any
such motions shall be docketed at least seven (7) days before the date set for
the review hearing. |
| (5) |
Motions to
present additional evidence or to remand the case to the original hearing
officer for such purpose shall be granted only if the additional evidence is
material and there was good cause for failing to present such evidence before
the original hearing officer. The hearing officer for review who acts as
presiding officer over the review proceedings shall enter an order as to the
legal sufficiency of all motions, including motions for the presentation of
additional evidence, prior to the review hearing. |
| (6) |
Oral argument up to 30 minutes per side
is permitted in the review hearing. Additional time for argument must be
requested in writing and docketed at least fourteen (14) days before the date
set for the review hearing. |
| (7) |
Once the review hearing is concluded, the Board shall deliberate as to the
final decision. Neither the hearing officer for review nor the parties nor
their counsel shall be present during or participate in the deliberations or
voting on the final decision. Provided, however, that during the course of the
deliberations the Board may seek or obtain legal advice of its counsel or make
an inquiry on the record concerning either procedure or the merits of the case
in the presence of all parties.
| (a) |
At the
conclusion of the deliberations, the decision of the Board shall be announced
in open session, unless the sanction imposed by the decision is made
confidential by statute, in which case it shall be announced in camera to the
Respondent and counsel for the parties. The Board may take the matter under
advisement and continue the deliberations until a date certain if deemed
necessary due to the Board's agenda or the complexity of the issues. |
|
Any party may file a motion for rehearing of a final decision
of the Board within ten (10) days after the date of actual service of such
final decision on the Respondent or Respondent's counsel. Such motion shall be
in accordance with Rule
20-14-.15 and, in addition, shall
include a statement of all matters alleged to have been erroneously decided
and, if applicable, a statement as to any newly discovered matters or
circumstances that have arisen subsequent to the final decision. The filing of
said motion shall not operate as a stay of the final decision of the Board
unless so ordered by the Board.
All appeals shall be filed in accordance with the Georgia
Administrative Procedure Act and O.C.G.A. 43-1-19(f) or O.C.G.A.
43-1-20.1(c).
