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(8) "Ex Parte Communication" means an oral or written communication not on the public record for which reasonable prior notice to all parties should have been given.
(9) "Hearing Office" refers to the administrative hearings office established by the state board to conduct administrative hearings to implement the provisions of these rules or to the Office of Administrative Hearings established pursuant to Government Code section 11370.2. The administrative hearing office of the state board shall include at least one administrative law judge who shall act as a hearing officer.
(10) "Hearing Officer" is either an administrative law judge appointed by the state board to conduct hearings under these procedures pursuant to Health and Safety Code section 43028, or an administrative law judge within the Department of General Services, State Office of Administrative Hearings (OAH) who shall be appointed to conduct hearings pursuant to Health and Safety Code sections 42410 and 43023. Only appointed administrative law judges shall act as hearing officers.
(11) "Intervenor" means a person who is allowed to voluntarily enter into the proceedings with leave of the hearing officer.
(12) "Party" includes the complainant, respondent, and an intervenor to the extent permitted by the hearing officer pursuant to section 60065.22.
(13) "Proceeding" means any hearing, determination or other activity before the hearing officer involving the parties to a complaint.
(14) "Respondent" means any person against whom a complaint has been filed under this article.
(15) "Response/Request for Hearing" means a document, responsive to the complaint and signed by the respondent, in which respondent requests a hearing before an administrative law judge and admits or denies the allegations of the complaint or asserts affirmative defenses to the action.
(16) "Settlement Agreement" means a written agreement executed by the complainant, respondent, and, to the extent permitted by the hearing officer pursuant to section 60065.22(b)(4), an intervenor, that respectively settles the allegations of violation set forth in the complaint. Settlement agreements of a complaint should include:
(A) Stipulations by the parties establishing subject matter jurisdiction;
(B) An admission by respondent that it has committed the violations as alleged in the complaint or a statement by respondent that it neither admits nor denies such violation(s); and
(C) The terms and conditions of the settlement.
Note: Authority cited: Sections 39010, 39600, 39601, 42410, 43023, 43028 and 43031(a), et seq., Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); Sections 39010, 39514, 42410, 43023, 43028 and 43031(a), Health and Safety Code.
s 60065.3. Right to Representation.
(a) A party may appear in person or through a representative, who is not required to be an attorney at law. The right to representation is at the party's own expense. Following notification that a party is represented by a person other than him or herself, all further communications regarding the proceedings shall be directed to that representative.
(b) A representative of a party shall be deemed to control all matters respecting the interest of such party in the proceeding. Persons who appear as representatives shall not engage in unethical conduct or intentionally fail to observe the procedures set forth in these rules and the proper instructions or orders of the hearing officer.
(c) A representative may withdraw an appearance by filing a written notice of withdrawal with the hearing office and by serving a copy on all parties.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028 and 43031(a), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); Sections 42410, 43023, 43028 and 43031(a), Health and Safety Code; and Sections 2180, et seq., title 13, California Code of Regulations.
s 60065.4. Time Limits; Computation of Time.
(a) All actions required pursuant to these rules shall be completed within the times specified in this article, unless extended by the hearing officer upon a showing of good cause, after consideration of prejudice to other parties. Requests for extensions of time for the filing of any pleading, letter, document, or other writing or completing any other required action must be received in advance of the date on which the filing or action is due and should contain sufficient facts to establish a reasonable basis for the relief requested.
(b) In computing the time within which a right may be exercised or an act is to be performed, the day of the event from which the designated period runs shall not be included and the last day shall be included. If the last day falls on a Saturday, Sunday, or a state holiday, time shall be extended to the next working day.
(c) In computing time, the term "day" means calendar day, unless otherwise provided.
(d) Unless otherwise indicated by proof of service, the mailing date shall be presumed to be the postmark date appearing on the envelope if first-class postage was prepaid and the envelope was properly addressed.
(e) Where service of any pleading, petition, letter, document, or other writing is by mail, overnight delivery, or facsimile transmission (fax), pursuant to section 60065.5(c), and if within a given number of days after such service, a right may be exercised, or an act is to be performed, the time within which such right may be exercised or act performed shall be extended as provided in section 60065.5(c).
(f) Papers delivered to or received by the hearing office during regular business hours (8 a.m. to 5 p.m.) will be filed on that date. Papers delivered or received at times other than regular business hours will be filed on the next regular business day.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028 and 43031(a), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); and Sections 42410, 43023, 43028 and 43031(a), Health and Safety Code.
s 60065.5. Service, Notice and Posting.
(a) Except as otherwise provided in this article, the original of every pleading, petition, letter, document, or other writing served in a proceeding under these rules shall be filed with the hearing office.
(b) The complaint and all accompanying information shall be served on the respondent personally or by registered mail.
(c) Except as provided in (b) above and unless otherwise required, service of any documents in the proceedings may be made by personal delivery; by United States first-class or interoffice mail, by overnight delivery, or by fax.
(1) Service is complete at the time of personal delivery.
(2) In the case of first-class mail, the documents to be served must be deposited in a post office, mailbox or mail chute, or other like facility regularly maintained by the United States Postal Service, in a sealed envelope, properly addressed to the person on whom it is to be served at the address as last given by that person on any document filed in the present cause of action and served on the party making service or otherwise at the place of residence of the person to be served. The service is complete at the time of the deposit, but any period of notice and any right or duty to do any act or to make any response within any period or date prescribed after service of the document shall be extended five days if the place of address is within the State of California, ten days if the place of address is outside the State of California but within the United States, and fifteen days if the place of address is outside the United States.
(3) If served by overnight delivery, or interoffice mail, the document must be deposited in a box or other facility regularly maintained for interoffice mail or by the express service carrier, or delivered to an authorized courier or driver authorized by the express service carrier to receive documents, in an envelope or package designated by the express service carrier with delivery fees paid or provided for, addressed to the person on whom it is to be served, at the address as last given by the person on any document filed in the present cause of action and served on the party making service or otherwise at that place of residence of the person to be served. The service is complete at the time of the deposit, but any period of notice and any right or duty to do any act or to make any response within any period or date prescribed after service of the document shall be extended two days.
(4) If served by fax, the document must be transmitted to a fax machine maintained by the person on whom it is served at the fax machine telephone number as last given by that person on any document which he or she has filed in the present cause of action and served on the party making the service. The service is complete at the time of the transmission, but any period of notice and any right or duty to do any act or to make any response within any period or date prescribed after service of the document shall be extended two days.
(d) Each document filed shall be accompanied by a proof of service on each party or its representative of record on the date of service. The proof of service shall state whether such service was made personally, first-class mail, overnight delivery, or fax.
(1) Where service is made by personal delivery, the declaration shall show the date and place of delivery and the name of the person to whom the documents were handed. Where the person making the service is unable to obtain the name of the person to whom the documents were handed, the person making the service may substitute a physical description for the name.
(2) Where service is made by first-class mail or overnight delivery, the declaration shall show the date and place of deposit in the mail, the name and address of the person served as shown on the mailing envelope and that the envelope was sealed and deposited in the mail with the postage fully prepaid.
(3) Where service is made by fax, the declaration shall show the method of service on each party, the date sent, and the fax number to which the document was sent.
(e) The proof of service declaration shall be signed by the person making it and contain the following statement above the signature: "I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and this declaration was executed at (City, State) on (Date)." The name of the declarant shall be typed and signed below this.
(f) Proof of service made in accordance with Code of Civil Procedure section 1013a complies with this regulation.
(g) Service and notice to a party who has appeared through a representative shall be made upon such representative.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028 and 43031(a), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); Sections 42410, 43023, 43028 and 43031(a), Health and Safety Code; Sections 11182 and 11184, Government Code; and Sections 1013 and 1013a.
s 60065.6. Motions.
(a) Any motion or request for action by the hearing officer relating to any proceeding pending before him or her filed by any party, except those made orally on the record at the hearing, shall be in writing and shall be directed to the hearing officer, with written notice and proof of service to all parties. The caption of each motion shall contain the title and docket number of the proceeding and a clear and plain statement of the relief sought, together with the grounds therefore.
(b) Except as otherwise provided by statute or these regulations, or as ordered by the hearing officer, a motion shall be made and filed at least 15 days before the date set for the motion to be heard or the commencement of the hearing on the merits. Any response to the motion shall be filed and served no later than five days before the motion is scheduled to be heard or as ordered by the hearing officer.
(c) The hearing office shall set the time and place for the hearing of the motion. The hearing shall occur as soon as practicable.
(d) Except as otherwise provided by statute or these regulations, the hearing officer may decide a motion filed pursuant to this section without oral argument. Any party may request oral argument at the time of the filing of the motion or the response. If the hearing officer orders oral argument, the party requesting oral argument, or any party directed to do so by the hearing officer, shall serve written notice on all parties of the date, time and place of the oral argument. The hearing officer may direct that oral argument be made by telephone conference call. The hearing officer may order that the proceedings be recorded.
(e) The hearing officer shall issue a written order deciding any motion, unless the motion is made during the course of the hearing on the merits while on the record. The hearing officer may request that the prevailing party prepare a proposed order.
(f) A request for a prehearing conference or a settlement conference under sections 60065.27 and 60065.28 does not constitute a motion within the meaning of this section.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028 and 43031(a), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); and Sections 42410, 43023, 43028 and 43031(a), Health and Safety Code.
s 60065.7. Form of Pleadings.
(a) Except as otherwise expressly provided in this article or by the hearing officer, there are no specific requirements as to the form of documents filed in a proceeding under these rules.
(b) The original of any pleading, letter, document, or other writing (other than an exhibit) shall be signed by the filing party or its representative. The signature constitutes a representation by the signer that it has read the document, that to the best of its knowledge, information and belief, the statements made therein are true, and that it has not filed the document for the purpose of delay.
(c) The initial document filed by any person shall indicate his or her status (as a party or representative of the party) and shall contain his or her name, address and telephone number. Any changes in this information shall be communicated promptly to the hearing office and all parties to the proceeding. A party who fails to furnish such information and any changes to it shall be deemed to have waived his or her right to notice and service under these rules.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028 and 43031(a), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); and Sections 42410, 43023, 43028 and 43031(a), Health and Safety Code.
s 60065.8. Limitations on Written Legal Arguments or Statements
(a) Any written legal argument or statement submitted to the hearing officer by a participant in an action under this part shall be double spaced and typed in a font size 12 point or larger. Except as otherwise provided by this part, further limited by the hearing officer, or otherwise authorized by the hearing officer for good cause shown, no written legal argument, exclusive of any supporting documentation, may exceed:
(1) Fifteen pages, for arguments in support of or opposition to motions; and
(2) Five pages, for reply arguments.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028 and 43031(a), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); and Sections 42410, 43023, 43028 and 43031(a), Health and Safety Code.
s 60065.9. Records of the State Board.
Except where public disclosure of information or exhibits is restricted by law, records of the state board are public records and are available to the public pursuant to section 91000, et seq., title 17, California Code of Regulations.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028 and 43031(a), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); Sections 42410, 43023, 43028 and 43031(a), Health and Safety Code; Sections 6250, et seq., Government Code; and Sections 91000, et seq., title 17, California Code of Regulations.
s 60065.10. Interpreters and Other Forms of Accommodation.
(a) In proceedings where a party, a party's representative, or a party's expected witness requires an interpreter for any language, including sign language, that party shall be responsible for notifying the hearing office as soon as the requirement is known, but no later than ten days prior to the first day of hearing. The hearing officer may allow later notification for good cause. The hearing office shall be responsible for securing the interpreter, and for providing reasonable accommodation.
(b) The cost of interpreter services shall be paid by the state board if the hearing officer so directs. In determining who should pay the cost of the interpreter, the hearing officer shall base the decision on equitable considerations, including the ability of the party in need of the interpreter to pay the cost.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028 and 43031(a), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); Sections 42410, 43023, 43028 and 43031(a), Health and Safety Code; Sections 11435.25, 11435.30 and 11435.55, Government Code; and Section 751, Evidence Code.
s 60065.11. Authority of Hearing Officers.
In any matter subject to hearing pursuant to these rules, the hearing officer shall have the authority to do any act and take all measures necessary for the maintenance of order and for the efficient, fair and impartial adjudication of issues arising in proceedings governed by these rules, including, but not limited to, authority to hold prehearing conferences; conduct hearings to determine all issues of fact and law presented; to rule upon motions, requests and offers of proof, dispose of procedural requests, and issue all necessary orders; administer oaths and affirmations and take affidavits or declarations; to issue subpoenas and subpoenas duces tecum for the attendance of a person and production of testimony, books, documents, or other things; to compel the attendance of a person residing anywhere in the state; to rule on objections, privileges, defenses, and the receipt of relevant and material evidence; to call and examine a party or witness and introduce into the hearing record documentary or other evidence; to request a party at any time to state the respective position or supporting theory concerning any fact or issues in the proceeding; to certify official acts; to extend the submittal date of any proceeding; to hear and determine all issues of fact and law presented and to issue such interlocutory and final orders, findings, and decisions as may be necessary for the full adjudication of the matter.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028 and 43031(a), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); Sections 42410, 43023, 43028 and 43031(a), Health and Safety Code; and Sections 11181-11182 and 11425.30, Government Code.
s 60065.12. Disqualification.
(a) The hearing officer shall disqualify himself or herself and withdraw from any case in which he or she cannot accord a fair and impartial hearing.
(b) A hearing officer may not hear any case in which he or she has previously served as an investigator, prosecutor, or advocate.
(c) Any party may request the disqualification of a hearing officer or the executive officer, on a request for reconsideration, by filing an affidavit or declaration under penalty of perjury. A request against the hearing officer must be made no later than five days prior to the commencement of a prehearing conference or first day of hearing on the merits, whichever is earlier. A request for disqualification of the executive officer must be included in the request for reconsideration. The affidavit or declaration must state with particularity the grounds upon which it is claimed that a fair and impartial hearing cannot be accorded. The issue shall be respectively determined by either the hearing officer or the executive officer against whom the request for disqualification has been filed.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028 and 43031(a), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); Sections 42410, 43023, 43028 and 43031(a), Health and Safety Code; and Sections 11425.40 and 11512, Government Code.
s 60065.13. Prohibited Communications.
(a) Except as otherwise provided in this section, while the proceeding is pending, the hearing officer shall not participate in any communications with any party, representative of a party, or any person who has a direct or indirect interest in the outcome of the proceeding about the subject matter or merits of the case at issue, without notice and opportunity of all parties, to participate in communication except a party that has been determined to be in default pursuant to section 60065.38.
(b) No pleading, letter, document, or other writing shall be filed in a proceeding under these rules by a party unless service of a copy thereof together with any exhibit or attachment is made on all other parties to a proceeding. Service shall be in a manner as prescribed in section 60065.5.
(c) For the purpose of this section, a proceeding is pending from the time that the complaint is filed.
(d) Communications prohibited under paragraph (a) do not include communications concerning matters of procedure or practice, including requests for continuances that are not in controversy. It also does not prohibit communications between a party and the hearing officer when the opposing party has had a default entered pursuant to section 60065.38.
(e) A communication between a hearing officer and an employee of the state board that would otherwise be prohibited by this section is permissible if:
(1) The employee is another hearing officer or other employee of the hearing office whose job duties include aiding the hearing officer in carrying out the hearing officer's adjudicative responsibilities. Upon request, the hearing office will provide a list of employees of the hearing office to the parties.
(2) The employee of the state board has not served as an investigator, prosecutor, or advocate in the proceeding or its preadjudicative stage, or in any factually related proceedings, and the purpose of the communication is to assist and advise the hearing officer in determining whether a document is a confidential business record (i.e., trade secrets). In obtaining such assistance and advice, the hearing officer shall give notice to the parties of the person consulted and shall provide the parties with as detailed a summary as possible of the substance of the advice received, while protecting the confidentiality of the business records at issue, and a reasonable opportunity to respond.
(3) The prohibitions of paragraph (a) that apply to the hearing officer shall also apply to all employees covered by subparagraphs (1) and (2) above.
(4) Communications permitted under subparagraphs (1) and (2) above shall not furnish, augment, diminish, or modify the evidence in the record.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028 and 43031(a), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); Sections 42410, 43023, 43028 and 43031(a), Health and Safety Code; and Sections 11430.70-11430.80, Government Code.
s 60065.14. Disclosure of Communication.
(a) If, while the proceeding is pending, but before serving as hearing officer, the hearing officer receives a communication of a type that would be in violation of this subarticle if received while serving as hearing officer, he or she shall, promptly after starting to serve, disclose the content of the communication on the record and give all parties an opportunity to address it as provided below.
(b) If a hearing officer receives a communication in violation of this article, the hearing officer shall make all of the following a part of the record in the proceeding:
(1) If the communication is written, the writing and any written response of the hearing officer to the communication; and
(2) If the communication is oral, a memorandum stating the substance of the communication, any response made by the hearing officer, and the identity of each person from whom the hearing officer received the communication.
(c) The hearing officer shall notify all parties that a communication described in this section has been made a part of the record.
(d) If a party requests an opportunity to address the communication within ten days after receipt of notice of the communication:
(1) The party shall be allowed to comment on the communication.
(2) The hearing officer has discretion to allow the party to present evidence concerning the subject of the communication, including discretion to reopen a hearing that hearing having been concluded.
(e) Receipt of ex parte communications may be cause for disqualification of the hearing officer.
Note: Authority cited: Sections 39600 and 39601, 42410, 43023, 43028 and 43031(a), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); Sections 42410, 43023, 43028 and 43031(a), Health and Safety Code; and Sections 11340.1-11340.5, Government Code.
s 60065.15. Applicability to Executive Officer.
(a) The provision of Subarticle 3 governing ex parte communications to the hearing officer also governs ex parte communications with the executive officer on matters that may come before him or her pursuant to Subarticle 9. Irrespective of the prohibitions of section 60065.13(a), the executive officer may consult with state board personnel who are not involved as an investigator, prosecutor, or advocate in the proceedings or preadjudicative proceedings of the matter before the executive officer, or in a factually related case, and whose job duties include assisting the executive officer in his or her adjudicative responsibilities.
(b) Except as otherwise provided in these procedures, while a proceeding is pending, the hearing officer shall have no communication, direct or indirect, with the members of the state board regarding the merits of any issue in the proceeding.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028 and 43031(a), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); Sections 42410, 43023, 43028 and 43031(a). Health and Safety Code; and Sections 11430.70-11430.80 Government Code.
s 60065.16. Violations Subject to a Complaint; Issuance.
(a) A complaint may be issued for violations:
(1) Arising under part 5, chapters 1 though 4 and chapter 6 of division 26 of the Health and Safety Code, or violations of any rule, regulation, permit, variance, or orders of the state board adopted or issued pursuant to authority granted under those Health and Safety Code provisions;
(2) Of regulations adopted and orders issued by the state board pursuant to authority granted under parts 1 through 4 of division 26 of the Health and Safety Code.
(b) Complaints issued pursuant to Health and Safety Code 43028 shall not seek penalties that exceed $25,000 per violation for each day of violation or total penalties in excess of $300,000.
(c) Complaints issued pursuant to Health and Safety Code sections 42410 and 43023 shall not seek penalties in excess of the lesser of the maximum amount allowed by statute for a violation or $10,000 per violation for any day in which the violation occurs, with a total penalty assessment not to exceed $100,000. In determining the amount allowed by statute, the ARB shall use the method of calculation set forth in the underlying statute (e.g., HSC s43016 states that penalties shall be assessed on a per vehicle basis and shall not exceed $500 per vehicle.)
(d) The state board shall not issue a complaint for any violation if:
(1) The state board shares concurrent enforcement jurisdiction with a district and the district has commenced an enforcement action for that violation;
(2) The state board has determined the violation to be a Class I violation as defined in title 17, California Code of Regulations, sections 60075.2(b)(5) and 60075.11.
(e) A complaint shall include:
(1) The names of each respondent alleged to have committed a violation(s) covered under this article;
(2) A statement of the facts, in ordinary and concise language, that specifically identifies the statutes and/or rules alleged to have been violated and the acts or omissions of the respondents that constitute the alleged violation(s). The statement shall be specific enough to afford the named respondents notice and information in which to prepare a defense;
(3) A proposed penalty that complainant seeks for the alleged violations committed;
(4) Reference to these procedures, notice that a copy of the procedures is available from the ARB hearing office (the address and phone number of which shall be set forth), and notice that Chapter 5 (commencing with section 11500) of the Government Code is not applicable to these proceedings;
(5) Written notice to the respondent that, within 30 days from the date of service, it may respond to the allegations of the complaint by filing a response/request for hearing that the matter be heard by an administrative law judge. The notice shall also inform the respondent of the consequences of failing to respond by the applicable deadline;
(6) Written notice to the respondent that it has under the hearing procedures the right to counsel; and, if necessary, the right to an interpreter; or
(7) The address of the office issuing the complaint; the address to which payment of the proposed penalty may be sent; and the address of the hearing office to whom a response/request for hearing may be submitted.
(f) A complaint shall be filed with the appropriate hearing office and served on the named respondent(s) by either personal or other form of service consistent with Code of Civil Procedure sections 415 through 417 or by certified mail, restricted delivery.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028 and 43031(a), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); Sections 39674, 42401, 42402, 42402.1, 42402.2, 42402.3, 42403, 42410, 43008.6, 43012, 43016, 43021, 43023, 43026, 43027, 43028, 43029, 43030, 43031(a), 43154, 43201, 43211 and 43212, Health and Safety Code; and Sections 60075.1, et seq., title 13, California Code of Regulations.
s 60065.17. Withdrawal of or Amendment to the Complaint.
(a) The complainant may without prejudice withdrawal or amend the complaint once as a matter of right at any time before respondent has filed its response.
(b) After the response has been filed, the complainant may move to withdraw or amend the complaint. A motion to amend the complaint must include the proposed amendment. The hearing officer may grant the motion upon finding that good cause exists and that the amendment is in the interest of justice.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028 and 43031(a), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); and Sections 42410, 43023, 43028 and 43031(a), Health and Safety Code.
s 60065.18. Response/Request for Hearing.
(a) Within 30 days after service of the complaint, the respondent or its representative may file a response/request for hearing to the complaint with the hearing office designated in the complaint. In addition to requesting a hearing before an administrative law judge, the respondent may:
(1) Object to the complaint on the ground that it does not state acts or omissions upon which the agency may proceed;
(2) Object to the form of the complaint on the ground that it is so indefinite or uncertain that the respondent cannot identify the transaction or prepare a defense;
(3) Admit or deny the complaint, in whole or in part, specifying each allegation of fact or conclusion of law as to liability which is in dispute;
(4) Present new matters by way of affirmative defenses; or
(5) Oppose or agree to pay the penalty amount proposed in the complaint.
(b) The time period for response may be extended:
(1) By stipulation of the parties for 30 additional days to allow the parties to conduct informal settlement negotiations; or
(2) At the discretion of the hearing officer, for a period of up to 60 days, if the respondent can show good cause and if the complainant is not prejudiced by such a delay.
(c) Each uncontested allegation in the complaint shall be deemed admitted by the respondent.
(d) If the respondent fails to respond to the complaint in the time periods provided in this section, the matter shall be considered a default, pursuant to section 60065.41 and the respondent shall be considered to have waived his or her right to appear in the matter covered by the complaint.
(e) If a complaint is amended prior to the time respondent's response was due under subparagraph (a), respondent shall have 15 additional days from the date of service of the amended complaint to file the response.
(f) The respondent may move to amend its response to the complaint. Such motion must include language of the proposed amendment. The hearing officer may grant the motion upon finding that good cause exists and that the amendment is in the interest of justice.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028 and 43031(a), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); and Sections 42410, 43023, 43028 and 43031(a), Health and Safety Code.
s 60065.19. Issues for Hearing.
The issues for hearing shall be limited to those raised in the complaint or amended complaint and the response or amended response. If the complaint alleges a repeat violation and the validity of the earlier violation(s) was not contested because of the respondent's failure to file a response/request for hearing, the validity of the earlier violations(s) shall not be at issue.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028 and 43031(a), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); and Sections 42410, 43023, 43028 and 43031(a), Health and Safety Code.
s 60065.20. Cease and Desist Orders; Stays Pending Hearing.
If the ARB enforcement staff has issued a cease and desist order against the respondent for alleged violations set forth in the complaint, the respondent may request a stay pending hearing from the hearing officer. The hearing officer may grant a stay pending issuance of a hearing officer decision under section 60065.39, unless the hearing officer finds that the adverse effects of a stay on the public health, safety and welfare outweigh the harm to those persons directly affected by the lack of a stay. The hearing officer may conduct a hearing or request such submissions by the parties as necessary to obtain information to make a determination on this issue.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028 and 43031(a), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); and Sections 42410, 43023, 43028 and 43031(a), Health and Safety Code.
s 60065.21. Scheduling of Hearings.
(a) Upon filing of a complaint issued pursuant to authority granted under Health and Safety Code sections 42410 and 43023, with OAH, the matter shall be assigned to a hearing officer.
(b) Upon filing of a complaint issued pursuant to Health and Safety Code section 43028, the hearing office of the state board shall assign a hearing officer of the state board to hear the matter, unless staffing and other resources of the hearing office would prevent timely consideration of the matter. If the resources of the state board's administrative hearing office prevent assignment, the administrative hearing office shall refer the matter to the OAH for assignment.
(c) The hearing office in which a complaint is filed shall as expeditiously as possible, but no later than 30 days after a response/request for hearing to the complaint has been filed or 45 days from the date that the complaint was issued if no response/request for hearing has been filed, schedule the matter for hearing. Except as provided in paragraph (f), below, a hearing shall be scheduled for no later than 180 days from the date of issuance of the complaint, unless the hearing officer determines, for good cause, that a later hearing date is necessary and in the interest of justice.
(d) The hearing office shall deliver or mail a notice of hearing to all parties at least 30 days prior to the hearing. The notice shall be in the form specified in section 11509 of the Government Code, and shall also provide notice of the availability of interpreters pursuant to section 60065.10 of these rules.
(e) The hearing officer shall grant such delays or continuances as may be necessary or desirable in the interest of fairly resolving the case.
(1) The hearing officer may, on his or her own motion or upon request of any party accompanied by a showing of good cause, continue a hearing to another time or place.
(2) A party shall apply to the hearing officer for a continuance not less than five days prior to the scheduled hearing.
(3) When a continuance is ordered during a hearing, the hearing officer shall give written notice of the time and place of the continued hearing.
(f) The hearing office shall set the place of hearing at a location as near as practicable to the place where the respondent resides or maintains a place of business in California. If the respondent does not reside or maintain a place of business in California, the hearing shall be in Sacramento. The hearing office may establish hearing locations anywhere in the state; at a minimum one hearing location shall be established in Sacramento and one in the Los Angeles area.
(g) Upon the motion of any party and a showing of good cause, or upon the motion of the hearing officer, and in the absence of an objection from any party, the hearing officer may exercise discretion to conduct all or part of a hearing by telephone.
(1) In granting such a motion, the hearing officer must be assured that each participant in the hearing has an opportunity to participate in and to hear the entire proceeding while it is taking place and to observe all exhibits fully.
(2) The hearing officer may direct the party who has requested the alternative method to make the necessary arrangements and be responsible for any associated costs.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028 and 43031(a), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); Sections 42410, 43023, 43028 and 43031(a), Health and Safety Code; and Sections 11509 and 11440.30, Government Code.
s 60065.22. Motion to Intervene.
(a) A person may file a motion to intervene, and the hearing officer may grant such a motion if all of the following conditions are satisfied:
(1) The motion is in writing, with copies served on all parties named in the complaint.
(2) The motion is made as early as practicable prior to the prehearing conference, if one is held, or the first day of the hearing on the merits of the complaint.
(3) The motion states facts demonstrating that the requesting intervenor's legal rights, duties, privileges, or immunities will be substantially affected by the proceeding or that it qualifies as an intervenor under a statute or regulation.
(4) The hearing officer determines that the interests of justice and the orderly and prompt conduct of the proceeding will not be impaired by allowing the intervention.
(b) If motion is granted, the hearing officer may impose conditions on the intervenor's participation in the proceeding, either at the time that intervention is granted or at a later time. Conditions may include:
(1) Limiting the intervenor's participation to designated issues in which the intervenor has a particular interest demonstrated by the motion.
(2) Limiting or excluding the use of discovery, cross-examination, and other procedures involving the intervenor so as to promote the orderly and prompt conduct of the proceeding.
(3) Requiring two or more intervenors to combine their presentations of evidence and argument, cross-examination, discovery, and other participation in the proceeding.
(4) Limiting or excluding the intervenors's participation in settlement negotiations.
(c) The hearing officer shall issue an order granting or denying the motion for intervention as soon as practicable in advance of the hearing, briefly stating the reasons for the order and specifying any conditions that he or she has determined as appropriate. The hearing officer may modify the order at any time, stating the reasons for the modification. The hearing officer shall promptly give notice of any order granting, denying, or modifying intervention to the applicant and to all parties.
(d) Whether the interests of justice and the orderly and prompt conduct of the proceedings will be impaired by allowing intervention is a determination to be made at the sole discretion of the hearing officer, based upon his or her knowledge and judgment. The determination is not subject to administrative or judicial review.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028 and 43031(a), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); Sections 42410, 43023, 43028 and 43031(a), Health and Safety Code; and Section 11440.50, Government Code.
s 60065.23. Consolidation, Separation of Proceedings.
(a) Upon the motion of a party or upon the hearing officer's own motion, the hearing officer may consolidate for hearing and decision:
(1) Any number of proceedings involving the same respondent or petitioner; and
(2) Any number of proceedings involving common issues of law or fact where consolidation would expedite and simplify consideration of the issues and would not adversely affect the rights of the parties.
(b) Upon the motion of a party or upon the hearing officer's own motion, the hearing officer may, in furtherance of convenience or to avoid prejudice or when separate hearings will be conducive to expedition and economy, order a separate hearing of any issue, including an issue raised in the notice of defense, or of any number of issues.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028 and 43031(a), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); and Sections 42410, 43023, 43028 and 43031(a), Health and Safety Code.
s 60065.24. Prehearing Conference.
(a) In any action in which the respondent timely responds pursuant to section 60065.18, the hearing officer may require a prehearing conference upon his or her own order or the request of any party. A request for a prehearing conference shall be in writing, addressed to the hearing officer and served on all parties.
(b) A prehearing conference shall be held no later than 30 days after an order of the hearing officer or a request by a party, but no later than 90 days from the date of respondent's filing of the response to a complaint.
(c) The hearing officer may conduct the conference in person or by telephone.
(d) At least ten business days before a scheduled conference, each party shall file with the hearing office and serve on all other parties a prehearing conference statement which shall contain the following information:
(1) Identification of all operative pleadings by title and date signed;
(2) The party's current estimate of time necessary to try the case;
(3) The name of each witness the party may call at hearing along with a brief statement of the content of the witness's expected testimony;
(4) The identity of any witness whose testimony will be presented by affidavit pursuant to section 60065.29, if known;
(5) The name and address of each expert witness the party intends to call at hearing along with a brief statement of the opinion the expert is expected to give. The party shall also attach a copy of a current resume for each expert witness;
(6) Whether there is need for an interpreter or special accommodation at the hearing;
(7) A list of the documentary exhibits the party intends to present at hearing and a description of any physical or demonstrative evidence; and
(8) A concise statement of any legal issues which may affect the presentation of evidence or the disposition of the case.
(9) If the matter is a complaint proceeding, the complainant shall specify the proposed penalty and state the basis for that penalty. The respondent shall provide all factual information it considers relevant to the assessment of a penalty.
(e) At the prehearing conference the hearing officer may:
(1) Establish a time and place for further proceedings in the action, but no hearing on the merits of the action shall take place sooner than 30 days following the date of the prehearing conference;
(2) Attempt to simplify issues and help the parties to stipulate to facts not in dispute;
(3) Explore the necessity or desirability of amendments to the pleadings; and
(4) Discuss any other appropriate subject.
(f) After the prehearing conference, the hearing officer shall issue a prehearing order which incorporates the matters determined at the conference. This order may be issued orally if an accurate record can be made. Agreement on the simplification of issues, amendments, stipulations, or other matters may be entered on the record or may be made the subject of a written order by the hearing officer. If no matters were determined or dates set at the prehearing conference, a prehearing order is not required. The hearing officer may, to aid the efficient administration of justice, modify the prehearing order as necessary.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028 and 43031(a), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); and Sections 42410, 43023, 43028 and 43031(a), Health and Safety Code.
s 60065.25. Settlement Agreements and Consent Orders.
(a) At any time before a final decision of the hearing officer, the complainant and the respondent may settle an action, in whole or in part.
(b) The parties may request the assistance of the hearing office in their attempts to settle the matters at issue. Upon receiving such a request, the hearing office may assign a settlement hearing officer, who is not the same hearing officer that has been assigned, to hear the merits of the case, unless the parties specifically request in writing the assignment of the latter hearing officer. For cases assigned to OAH, OAH may assign administrative law judges from the state board to assist in settlement discussions.
(c) The parties shall memorialize any agreement in writing.
(d) In a complaint proceeding, the hearing officer assigned to hear the merits of the case, shall thereafter enter a consent order in accordance with the terms of the settlement agreement. Such consent order is not subject to further review by the agency or a court.
(e) If the filing of the consent order pursuant to paragraph (d) of this section does not wholly conclude the action, the hearing officer assigned to hear the merits of the case shall promptly inform the parties of the schedule of the remaining proceedings.
(f) Unless the parties have otherwise consented to use the hearing officer assigned to hear the merits of the case in settlement discussions, settlement discussions or offers of compromise regarding unresolved issues shall not be discussed with that hearing officer. Settlement discussions or offers of compromise shall also not be made part of the record of the proceedings.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028 and 43031(a), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); Sections 42410, 43023, 43028 and 43031(a), Health and Safety Code; and Section 11415.60, Government Code.
s 60065.26. Discovery.
(a) The provisions of this section provide the exclusive right to, and method of, discovery as to any proceeding governed by these hearing procedures. However, nothing in this section prohibits the parties from voluntarily stipulating to provide discovery deemed appropriate. This section does not authorize the inspection or copying of, any writing, or thing which is privileged from disclosure by law or protected as part of an attorney's work product.
(b) The names and addresses of witnesses; inspection and copying of documents and things.
(1) Unless otherwise stipulated to by the parties, within 45 days of issuance of a complaint or amended complaint, a party may request:
(A) The names and addresses of witnesses to the extent known to the other party, including, but not limited to, those intended to be called to testify at the hearing; and
(B) The opportunity to inspect and make a copy of any thing, document, statement or other writings relevant to the issues for hearing that are in the possession, custody or control of the other party and would be admissible in evidence. This includes the following information from inspection or investigative reports prepared by, or on behalf of, any party that pertain to the subject matter of the proceeding: (i) the names and addresses of witnesses or of persons (other than confidential informants) having personal knowledge of the issues involved in the proceeding, (ii)matters perceived by the investigator in the course of his or her investigation (as opposed to his or her analysis or conclusions), and (iii) statements related to the issues of the proceedings which are otherwise admissible. For purposes of this section, "any thing, document, statement or other writings relevant to the issues for hearing that are in the possession, custody, or control of the other party" would include those items within the possession, custody, or control of a third-party who obtained or used such items while acting as a representative, contractor, or agent of the "other party." (continued)