(Added by Ord. No. 186,955, Eff. 4/26/21.)
(a) A request for an administrative hearing may be filed for the following Department actions:
(1) Issuance of a NOV by the Department.
(2) Denial of an application for a Device permit or permit renewal by the Department.
(b) A request for an administrative hearing shall be filed with the Department within 15 days of the date of mailing of the notice of the Department’s action, unless a later date is provided in the NOV or the notice of denial of an application for a Device permit or permit renewal. Failure to timely request an administrative hearing shall constitute a failure to exhaust administrative remedies. If the Department suspends the Provider’s permit pursuant to Section 71.29.3(d), the suspension shall remain in effect pending the outcome of the administrative hearing.
(c) The Department shall select a hearing officer and schedule an administrative hearing within 45 calendar days from the date the Department received the request for an administrative hearing. The Department shall mail the notice of the hearing to the Provider’s agent for service of process no later than 20 calendar days prior to the date of the hearing. The time for holding a hearing may be extended by mutual agreement between the Department and the Provider.
(d) Pre-Hearing Disclosures. No later than seven calendar days prior to an administrative hearing, the Department and the Provider shall make the following pre-hearing disclosures to the hearing officer, with simultaneous email service upon the other party: (i) a brief statement of the facts and issues relating to the request for an administrative hearing; (ii) a copy of all documentary evidence to be offered at the hearing; and (iii) a list of all witnesses to be presented at the hearing. The hearing officer shall not issue any decision relating to the request before the hearing.
(e) Administrative hearings shall be conducted as follows:
(1) The hearing shall be recorded by an audio device provided by the Department. Any party to the hearing may, at its own expense, cause the hearing to be audio recorded and transcribed by a certified court reporter;
(2) The Department shall have the burden of proof by the preponderance of the evidence;
(3) The hearing officer may accept evidence on which persons would commonly rely in the conduct of their business affairs;
(4) The hearing officer may continue the hearing and request additional relevant information from any party; and
(5) Within 30 days of the conclusion of the hearing, the hearing officer shall issue a written decision that includes a statement of the factual and legal basis of the decision. The hearing officer shall use a de novo standard of review and may uphold or reject, in whole or in part, the Department’s action. The hearing officer may waive or reduce the penalties in a NOV after considering the factors specified listed in the Rules, as authorized in Section 71.29.2.
(f) The hearing officer’s decision shall be sent by mail to the Provider and shall become final within 15 days of the mailing date, unless the Provider files a timely appeal to the Commission.
(g) The Commission shall hold a public hearing on an appeal by the appellant from a hearing officer’s decision within 60 days of the date of filing the appeal to the Commission. The Department shall provide notice of the public hearing no less than 20 days prior to the date of the public hearing. The Commission shall consider de novo the record before the hearing officer and uphold, modify or reject, in whole or in part, the hearing officer’s written decision. The Commission may waive or reduce the penalties in the hearing officer’s decision after considering the factors listed in the Rules, as authorized in Section 71.29.2. The Commission shall not consider evidence outside of the record before the hearing officer. The Commission shall issue a decision within 30 days of the conclusion of the hearing and mail it to the appellant. The Commission’s decision is final.