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(continued)
(2) Parties shall arrange a mutually convenient time for the exchanging of the names and addresses of witnesses and the inspecting and copying of relevant things, documents, statements, and other writings identified in subparagraph (B) above, but such date shall not be later than 30 days from the date of receipt of the request made pursuant to subparagraph (b)(1). Unless other arrangements are made, the party requesting the writings shall pay for the copying.
(3) All requests under subparagraph (b) are continuing, and the party receiving the request shall be under a continuing duty to provide the requesting party with the information requested.
(4) Absent a stipulation between the parties, a party claiming that certain writings or things are privileged against disclosure shall, within 15 days of receipt of the request for inspection and copying, serve on the requesting party a written statement setting forth what matters it claims are privileged and the reasons supporting its claims.
(c) Other Discovery.
(1) A party may file a motion requesting that the hearing officer order further discovery. The motion shall specify the proposed method of discovery to be used and shall include affidavits describing in detail the nature of the information and/or documents sought, the proposed time and place of the discovery (if applicable), and the information addressing the findings listed in subparagraphs (A)-(D) below. The hearing officer shall grant the motion upon finding that:
(A) The additional discovery will not unreasonably delay the proceedings;
(B) The information to be obtained from the discovery is most reasonably obtained from the non-moving party, who has refused to provide it voluntarily; or that

(C) The information to be obtained is relevant and has significant probative value on a disputed issue of material fact regarding a matter at issue.
(2) The hearing officer may order the taking of oral depositions only under the following circumstances:
(A) After affirmatively making the findings in subparagraphs (c)(2)(A)-(C), and further finding that the information sought cannot be obtained by alternative methods; or
(B) There is substantial reason to believe that relevant and probative evidence may otherwise not be preserved for presentation by a witness at the hearing.
(3) If the hearing officer grants the motion for the taking of a deposition, the moving party shall serve notice of the deposition on the person to be deposed with copies served on the other parties at least ten days before the date set for the deposition.
(4) Where the witness resides outside of the state and where the hearing officer has ordered the taking of the testimony by deposition, the hearing officer shall obtain an order of the court to that effect by filing a petition in the superior court in Sacramento County. The proceedings for such a hearing shall be in accordance with the provisions of Government Code section 11189.
(d) Third-Party Notice of Request for Disclosure of Information Identified as Confidential and Opportunity to Participate.
(1) A third-party shall be notified whenever a party receives a request for disclosure of information that is in the possession, control, or custody of the party subject to a claim of confidentiality asserted by the third-party, including, but not limited to, claims of confidentiality asserted pursuant to the California Public Records Act (CPRA). This section creates rights and obligations in addition to, and does not affect, existing rights and obligations under the CPRA and applicable federal regulations.
(2) A third-party shall have the opportunity to be heard on all issues involving requests for disclosure of information that is in the possession, control, or custody of the party subject to a claim of confidentiality asserted by the third-party. Within five days of receipt of notice pursuant to subparagraph (d)(1), a third-party may object to disclosure of the subject information and may seek a protective order pursuant to subparagraph (e). Objections to disclosure may be based on all legal grounds, including, but not limited to, lack of relevance to the issues for hearing.
(e) Protective Orders:
(1) Upon motion by a party from whom discovery is sought, a third-party who has made a claim of confidentiality regarding the information to be discovered or by the hearing officer on his or her own motion, the hearing officer may enter a protective order with respect to this material.
(2) Prior to granting a protective order, it must be established by the moving party that the information sought to be protected is entitled to be treated as a trade secret or is otherwise confidential. A party or person seeking a protective order shall have the opportunity to be heard on all issues relevant to preserving the record's confidentiality, including, but not limited to, the following:
(A) The appropriate scope and terms of any governing protective order;
(B) The terms under which the record may be placed in evidence or otherwise used at a hearing; and

(C) The disposition of the record and any copies thereof after all relevant administrative and judicial proceedings have concluded.
(3) A party or person seeking a protective order may be permitted to make all, or part of, the required showing in a closed meeting. The hearing officer shall have discretion to limit attendance at any closed meeting proceeding to the hearing officer and the person or party seeking the protective order.
(4) A protective order, if granted, shall contain terms governing the treatment of the information which are appropriate under the circumstances to prevent disclosure outside the hearing. The protective order may order that the trade secret information not be disclosed or that it be disclosed only to specified persons, or in a specified way. Disclosure may be limited to counsel for the parties who shall not disclose such information to the parties themselves. Disclosure to specified persons shall be conditioned on execution of sworn statements that no disclosure of the information will be made to persons not entitled to receive it under the terms of the protective order.
(5) The protective order shall contain terms governing the treatment of the information which are appropriate under the circumstances to prevent disclosure outside the hearing; the order may require that the material be kept under seal and filed separately from other evidence and exhibits in the hearing.
(6) Any party subject to the terms and conditions of any protective order, desiring to make use of any documents or testimony obtained in a closed meeting, shall file a motion to the hearing officer and set forth justification for the request. The motion shall be granted upon a demonstration of good cause that the information is relevant and has significant probative value on a disputed issue of material fact in issue. In granting the motion, the hearing officer shall enter an order protecting the rights of the affected persons and parties, who have claimed that the information is confidential, by preventing any unnecessary disclosure of the information. The hearing officer may require that the information be presented in a closed meeting, with attendance limited, as necessary and practicable, to specified representatives of the parties and that the material be sealed and filed separately from other evidence and exhibits in the hearing.
(7) The hearing office shall make a record of all closed meetings that are held under this section. The record shall be sealed and made available, upon appropriate order, to the state board or to the court review of the record.
(8) If the hearing officer denies a motion for protective order or grants a protective order only, in part, the order shall not become effective until ten days after the date the order is served. In the interim, a party to the proceeding or third-party holder of the asserted confidential information adversely affected by the order may seek appropriate interlocutory relief in a court of competent jurisdiction.
(f) Proceeding to Compel Discovery.
(1) Any party claiming that its request for discovery pursuant to this section has not been complied with or that the opposing party has failed to comply with a stipulated agreement to provide discovery may serve and file with the hearing officer a motion to compel the party who has refused or failed to produce the requested or stipulated discovery to comply. The motion shall include the following:
(A) Facts showing the party has failed or refused to comply with a discovery request or stipulation;
(B) A description of the information sought to be discovered;
(C) The reasons why the requested information is discoverable;

(D) Evidence that a reasonable and good faith attempt to contact the noncomplying party for an informal resolution of the issue has been made; and
(E) To the extent known by the moving party, the measures for the noncomplying party's refusal to provide the requested information.
(2) The motion shall be filed within 15 days after the date the requested information was to be made available for inspection and copying or the date a deposition was scheduled to take place and served upon the party who has failed or refused to provide discovery.
(3) The hearing on the motion to compel discovery shall be held within 15 days after the motion is filed, or a later time that the hearing officer may on his or her own motion for good cause determine. The party who has refused or failed to provide discovery shall have the right to serve and file a written answer or other response which shall be due at the hearing office and personally served on all parties at least three days prior to the date set for hearing.
(4) Where the matter sought to be discovered is under the custody or control of the party who has refused or failed to provide discovery and that party asserts that the matter is not a discoverable matter under this section, or is privileged against disclosure, the hearing officer may order that the party in custody lodge with the hearing office the matters identified in subdivision (b) of section 915 of the Evidence Code and the hearing officer shall examine the matters in accordance with those provisions.
(5) The hearing officer shall decide the case on the matters examined in a closed meeting, the papers filed by the parties, and such oral argument and additional evidence as the hearing officer may allow.
(6) Unless otherwise stipulated by the parties, the hearing officer shall no later than 15 days after the hearing make its order denying or granting the motion. The order shall be in writing setting forth the matters the moving party is entitled to discover. The hearing office shall serve a copy of the order by mail upon the parties. Where the order grants the motion in whole, or in part, the order shall not become effective until ten days after the date the order is served. Where the order denies relief to the moving party, the order shall be effective on the date it is served.
(7) If after receipt of an order directing compliance with the provisions of these rules regarding discovery, a party fails, without good cause, to comply with the order, the hearing officer may draw adverse inferences against that party and may prevent that party from introducing any evidence that had been requested and not produced during discovery into the administrative 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; Sections 11189 and 11507.6, Government Code; and Section 915(b), Evidence Code.









s 60065.27. Subpoena and Subpoena Duces Tecum.
(a) Subpoenas and subpoenas duces tecum may be issued for attendance at a hearing and for production of documents at any reasonable time and place or at a hearing.
(b) At the request of a party, subpoenas and subpoenas duces tecum shall be issued by the hearing officer assigned to a proceeding, or the general counsel or executive officer of the complainant, or, if represented by an attorney, the attorney of record for a party in accordance with sections 1985-1985.4 of the California Code of Civil Procedure.
(c) The custodian of documents that are the subject of a subpoena duces tecum may satisfy the subpoena by delivery of the documents or a copy of the documents, or by making the documents available for inspection or copying, together with an affidavit in compliance with section 1561 of the Evidence Code.
(d) The process extends to all parts of the state and shall be served in accordance with sections 1987 and 1988 of the California Code of Civil Procedure. A subpoena or subpoena duces tecum may also be delivered by certified mail return receipt requested or by messenger. Service by messenger shall be effected when the witness acknowledges receipt of the subpoena to the sender, by telephone, by mail, or in person, and identifies himself or herself either by reference to date of birth and driver's license number or Department of Motor Vehicles identification number, or the sender may verify receipt of the subpoena by obtaining other identifying information from the recipient. The sender shall make a written notation of the acknowledgment. A subpoena issued and acknowledged pursuant to this section has the same force and effect as a subpoena personally served. Failure to comply with a subpoena issued and acknowledged pursuant to this section may be punished as a contempt and the subpoena may so state. A party requesting a continuance based upon the failure of a witness to appear at the time and place required for the appearance or testimony pursuant to a subpoena, shall prove that the party has complied with this section. The continuance shall only be granted for a period of time that would allow personal service of the subpoena and in no event longer than that allowed by law.
(e) No witness is obliged to attend unless the witness is a resident of the state at the time of service.
(f) Upon timely motion of a party or witness, or upon his or her own motion, after notice to the parties and an opportunity to be heard and upon a showing of good cause, the hearing officer may order the quashing of a subpoena or subpoena duces tecum entirely, may modify it, or may direct compliance with it upon other terms or conditions. In addition, the hearing officer may make any other order as may be appropriate to protect a party or witness from unreasonable or oppressive demands.
(g) The state board may quash a subpoena or a subpoena duces tecum that it has issued on its own motion.
(h)(1) In the case of the production of a party to the record of a proceeding or of a person for whose benefit a proceeding is prosecuted or defended, the service of a subpoena on the witness is not required if written notice requesting the witness to attend, with the time and place of the hearing, is served on the representative of the party or person.
(2) Service of written notice to attend under this section shall be made in the manner and is subject to the conditions provided in section 1987 of the California Code of Civil Procedure for service of written notice to attend in a civil action or proceeding.
(i) A witness other than an employee of the state or a political subdivision thereof appearing pursuant to a subpoena or a subpoena duces tecum, other than a party, shall receive the same mileage, and appearance fees allowed by law; such fees are to be paid by the party at whose request the witness is subpoenaed.


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 11186-11188 and 11450.05-11450.30, Government Code; Section 1561, Evidence Code; and Sections 1985-1985.4, 1987 and 1988, California Code of Civil Procedure.









s 60065.28. Witness Lists and Exhibits.
(a) No later than ten days before the scheduled hearing date, the parties shall submit to the hearing office and serve upon the other parties:
(1) A list of the names, addresses and qualifications of proposed witnesses to be called in making the party's case-in-chief and a brief summary of the testimony to be presented by each witness; and

(2) Each document or other exhibit, the party expects to offer or may offer, if the need arises, into evidence in making the party's case-in-chief.
(b) The hearing officer may prohibit any party from presenting any witness or exhibit that has not been included on that party's witness list or submitted exhibits as required under paragraph (a) 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 60065.29. Motions for Summary Determination of Issues.
(a) Any party may file a motion for summary judgment or summary adjudication of the issues. Such motions shall include supporting legal argument, and where necessary, affidavits showing that there is no genuine issue of material fact for determination regarding the identified issues. A party opposing such a motion shall show by affidavit or other documentation that a genuine issue of material fact as to the issues raised exists. After reviewing the motion and response of the parties, the administrative record, and any arguments of the parties, the hearing officer shall determine whether a genuine issue of material fact as to the issues exists and whether a party is entitled to judgment on the issue(s) as a matter of law.
(b) If, upon considering a motion under subparagraph (c), the hearing officer determines that a party is entitled to summary judgment on the issue(s) as a matter of law, the hearing officer shall issue a written decision or order that sets forth necessary findings of fact and conclusions of law regarding all matters that were at issue. In a complaint proceeding, if the hearing officer decision finds the respondent to be in violation, the hearing officer shall follow the penalty assessment criteria set forth in section 60065.40.
(c) Should it appear from the affidavits of a party opposing the motion that the party cannot, for reasons stated, present by affidavit facts essential to justify the party's opposition, the hearing officer may deny the motion or may grant a continuance to permit affidavits to be obtained or to permit such additional discovery as provided under these procedures.
(d) The hearing officer shall deny a request for summary determination of the issue(s) if he or she finds the administrative record, including any evidence presented by the parties as part of this motion, present a genuine issue of material fact. If the hearing officer denies a request for summary determination, or denies such a request in part, the hearing officer shall promptly issue to each party a written ruling as to the existence of a genuine issue of material fact on the issue(s) and the reasons for the ruling. The matter shall continue to be set for hearing on all issues for which a genuine issue of material fact exists.


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 60065.30. Contempt.
If any person in proceedings before the hearing officer disobeys or resists any lawful order or refuses to respond to a subpoena, subpoena duces tecum, or refuses to take the oath or affirmation as a witness or thereafter refuses to be examined, or is guilty of misconduct during a hearing or in its immediate vicinity as to obstruct the proceedings, the hearing officer may certify the facts to the Superior Court in and for the county where the proceedings are held for contempt proceedings pursuant to Government Code section 11455.20.


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 11455 and 11525, Government Code.









s 60065.31. Sanctions.
(a) Notwithstanding the above, the hearing officer may order a party, a party's representative or both, to pay reasonable expenses, including attorney's fees, incurred by another party as a result of bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.
(1) "Actions or tactics" include, but are not limited to, the making or opposing of motions; the failure to comply with a discovery request or subpoena; or the failure to comply with a lawful order of the hearing officer.
(2) "Frivolous" means:
(A) Totally and completely without merit, or
(B) For the sole purpose of harassing an opposing party.
(b) An order for sanctions may be oral on the record or in writing and shall set forth the factual findings which are the basis for the imposition of sanctions.
(1) In determining reasonable expenses, the party or parties to whom payment is to be made shall, at the hearing officer's discretion, either make a statement on the record under oath or submit a written declaration under penalty of perjury setting forth with specificity the expenses incurred as a result of the other party's conduct.
(2) Within five days of the receipt of the hearing officer's order for the payment of expenses, a party or representative may, on the ground of hardship, request reconsideration from the hearing officer issuing the order. The request for reconsideration shall be filed in writing, and include a declaration under penalty of perjury.
(c) The order or denial of an order to pay expenses under paragraph (b) is subject of procedural review in the same manner as a final decision pursuant to Subarticle 11.


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 11455.30 and 11525, Government Code.









s 60065.32. Failure to Appear.
If after service of a Notice of Hearing, including Notice of Consolidated Hearing or Continuance, a party fails to appear at a hearing either in person or by representative, the hearing officer may take the proceeding off calendar, or may, at the request of a party, or on his or her own motion, issue a default order in a complaint proceeding in accordance with section 60065.38 of this article.


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 60065.33. Conduct of Hearing.
(a) The hearing shall be presided over by a hearing officer who shall conduct a fair and impartial hearing in which each party has a reasonable opportunity to be heard and to present evidence.
(b) The hearing shall be conducted in the English language.
(c) Subject to reasonable limitations that may be imposed by the hearing officer, each party to the proceeding shall have the right to:
(1) Call and examine witnesses;
(2) Introduce exhibits;
(3) Question opposing witnesses on any matter relevant to the issues even though that matter was not covered in the direct examinations;
(4) Impeach any witness regardless of which party first called the witness to testify; and
(5) Call and examine an opposing party as if under cross-examination, even if that party does not testify on his or her own behalf.
(d) Burden of Going Forth.
(1) The complainant shall have the initial burden of presenting evidence in support of issuance of the complaint, the requested penalty, and any other material that is pertinent to the issues to be determined by the hearing officer.
(2) At the conclusion of complainants case-in-chief, the respondent has the burden of presenting any defense to the allegations set forth in the complaint and any response or evidence with respect to the appropriate relief. The respondent has the right to examine, respond to, or rebut the allegations of the complaint and any proffered evidence and material. The respondent may offer any documents, testimony, or other exculpatory evidence which bears on appropriate issues, or may be relevant to the penalty amount.
(3) At the close of respondent's presentation of evidence, the parties respectively have the right to introduce rebuttal evidence that is necessary to resolve disputed issues of material fact, subject to any limits imposed by the hearing officer pursuant to subparagraph (e)(1) below.
(e) The hearing officer may:
(1) Limit the number of witnesses and the scope and extent of any direct examination, cross-examination, or rebuttal testimony, as necessary, to protect the interests of justice and conduct a reasonably expeditious hearing;

(2) Require the authentication of any written exhibit or statement;
(3) Call and examine a party or witness and may, on his or her own motion, admit any relevant and material evidence;
(4) Exclude persons whose conduct impedes the orderly conduct of the hearing;
(5) Restrict attendance because of the physical limitations of the hearing facility; or
(6) Take other action to promote due process or the orderly conduct of the hearing.
(f) The taking of evidence in a hearing shall be controlled by the hearing officer in the manner best suited to ascertain the facts and safeguard the rights of the parties. Prior to taking evidence, the hearing officer shall define the issues and the order in which evidence will be received.
(g) Each matter in controversy shall be decided by the hearing officer upon a preponderance of the evidence.
(h) Hearings shall be recorded electronically. The recording made by the Administrative Hearing Office shall be the official recording of the hearing.
(1) A verbatim transcript of the official recording will not normally be prepared, but may be ordered by the hearing officer if deemed necessary to permit a full and fair review and resolution of the case. If not so ordered by the hearing officer, a party may, at its own expense, request that a verbatim transcript be made. The party making the request shall provide one copy to the hearing officer and one copy to every other party.
(2) The official recording of the hearing and transcript of the recording, together with all written submissions made by the parties, shall become part of the administrative record for 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); and Sections 42410, 43023, 43028 and 43031(a), Health and Safety Code.









s 60065.34. Evidence.
(a) Testimony shall be taken only under oath or affirmation.
(b) The hearing need not be conducted according to technical rules relating to evidence and witnesses. The hearing officer shall admit evidence which is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions, and which is not irrelevant, immaterial, unduly repetitious, or otherwise unreliable or of little probative value. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but upon timely objection shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. The application of these rules shall not affect the substantial rights of the parties as provided in the Evidence Code.
(c) The rules of privilege shall be effective to the extent that they are otherwise required by statute to be recognized at the hearing.
(d) Trade secret and other confidential information may be introduced into evidence. The hearing officer shall preserve the confidentiality of such information, and may make such orders as may be necessary to consider such evidence in a closed meeting, including the use of a supplemental order or decision to address matters which arise out of that portion of the evidence which is confidential.
(e) In reaching a decision, official notice may be taken, either before or after submission of the proceeding for decision, of any generally accepted technical or scientific matter within the state board's area of expertise, and determinations, rulings, orders, findings and decisions, required by law to be made by the hearing officer.
(1) The hearing officer shall take official notice of those matters set forth in section 451 of the Evidence Code.
(2) The hearing officer may take official notice of those matters set forth in section 452 of the Evidence Code.
(3) Each party shall give notice of a request to take official notice and be given reasonable opportunity on request to present information relevant to:
(A) The propriety of taking official notice; and
(B) The effect of the matter to be noticed.


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 451 and 452, Evidence Code.









s 60065.35. Evidence by Affidavit or Declaration.
(a) At any time 20 or more days prior to a hearing or a continued hearing, a party may mail or deliver to the opposing party or parties a copy of any affidavit or declaration which the proponent proposes to introduce in evidence, together with a notice as provided in subdivision (b). Unless an opposing party, within seven days after such mailing or delivery, mails or delivers to the proponent a request to cross-examine the affiant or declarant the opposing party's right to cross-examine such affiant or declarant is waived and the affidavit or declaration, if introduced in evidence, shall be given the same effect as if the affiant or declarant had testified orally. If an opportunity to cross-examine an affiant or declarant is not afforded after request therefore is made as herein provided, the hearing officer may allow the affidavit or declaration to be introduced, but if it is allowed to be introduced, it shall only be given the same effect as other hearsay evidence.
(b) The notice referred to in subdivision (a) shall be a separate document concurrently served with the affidavit or declaration, entitled "Notice of Intent to Use Declaration or Affidavit in Lieu of Oral Testimony." The title shall be in bold print. The content of the notice shall be substantially in the following form:
"The accompanying affidavit or declaration of [insert name of affiant or declarant] will be introduced as evidence at the hearing in [insert title and docket number or petition number of proceeding]. [Insert name] will not be called to testify orally and you will not be entitled to question the affiant or declarant unless you notify [insert name of the proponent, representative, agent or attorney] at [insert address] that you wish to cross-examine the affiant or declarant. To be effective, your request must be mailed or delivered to [insert name of proponent, representative, agent or attorney] on or before [insert a date 7 days after the date of mailing or delivery of the affidavit to the opposing party]."


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 60065.36. Exclusion of Witnesses.
Upon motion of a party, the hearing officer may exclude from the hearing room any witnesses not at the time under examination; but the parties or their representatives to the proceeding shall not be excluded.


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 60065.37. Oral Argument and Briefs.
(a) Prior to the close of the hearing, the hearing officer may, on his or her own motion, or upon motion of a party, grant and determine the length of oral argument.
(b) Motions to submit written closing argument shall be made prior to the close of the hearing and shall be granted at the discretion of the hearing officer upon a determination that written argument will be productive and will not unreasonably delay the disposition of the proceeding. The hearing officer shall determine the appropriate page lengths of all post hearing briefs at the time he or she determines that the filing of closing arguments is appropriate. A party shall file a written closing brief within 15 working days from the date of the hearing. Opposing parties may file a reply brief within 10 working days from service of the argument. The hearing officer may extend or reduce the above filing dates for submission of written argument for good cause.


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 60065.38. Default Order.
(a) Upon motion, the hearing officer may find a party to be in default upon failure, without good cause to file a timely response to the complaint as required under section 60065.18; to appear at a scheduled conference or hearing; or to comply with an order of the hearing officer.
(b) For purposes of a pending complaint action,

(1) A default by respondent shall constitute an admission of all facts alleged in the complaint and a waiver of respondent's right to a hearing of the factual allegations.
(2) A default by complainant shall constitute a waiver of complainant's right to proceed on the merits of the action, and shall result in the dismissal of the complaint with prejudice.
(c) No finding of default shall be made against the respondent unless the complainant presents sufficient evidence to establish a prima facie showing that the state board and the hearing officer had jurisdiction over the matters at issue and that the complaint was properly served.
(d) Within 10 days, the complainant shall present written evidence, supported by affidavits or declarations explaining the proposed penalty set forth in the complaint.
(e) Any proceeding may be reinstated by the hearing officer upon a showing of good cause that contains sufficient facts to show or establish a reasonable basis for the failure to appear at the hearing. The request for reinstatement shall be made by the defaulting party within 10 days of service of the default order.


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 60065.39. Order or Decision of the Hearing Officer after a Complaint Hearing; Rehearing.
(a) Unless otherwise ordered, all complaint proceedings shall be submitted at the close of the hearing unless otherwise extended by the hearing officer or provided in these rules. Within a reasonable period of time after the proceeding is submitted, the hearing officer shall make findings upon all facts relevant to the issues for hearing, and file an order or decision with the reasons or grounds upon which the order or decision was made.
(b) The order or decision shall be in writing, signed and dated by the hearing officer deciding the proceeding.
(c) The order or decision may, based on the findings of fact, affirm, modify or vacate the alleged violations set forth in the complaint or the proposed penalty, or direct other relief as applicable.
(d) A copy of the order or decision shall be served on each party or representative together with a statement informing the parties of their right to petition the executive officer, for reconsideration of the order or decision pursuant to section 60065.41 of these rules.
(e)(1) Within five days of the filing of any order or decision, the hearing officer may, at the request of any party or on his or her own motion, on the basis of mistake of law or fact, issue a modified order or decision correcting a mistake or error with respect to any matters determined or covered by the previously issued order or decision. If necessary, the hearing officer may schedule further proceedings to address the issue(s).

(2) If a request has been filed under this subparagraph, the request shall be deemed denied if the hearing officer has taken no action to address the request within 15 days of filing of the request.
(3) The hearing office shall serve a copy of any modified order or decision on each party that had previously been served with the original order or decision. The modified order or decision shall supersede the previously served order or decision, and the date of service of the modified order or decision shall be the effective date of the decision and order for purposes of sections 60065.41 and 60065.44.
(f) The hearing officer shall certify the administrative record and shall make available copies of the administrative record and any issued orders or decisions to the executive officer.


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 60065.40. Penalty Assessment Criteria.
(a) In determining penalties for complaints issued under Health and Safety Code section 42410, the hearing officer shall consider all relevant circumstances, including, but not limited to:
(1) The extent of harm caused by the violation;

(2) The nature and persistence of the violation;
(3) The length of time over which the violation occurs;
(4) The frequency of past violations;
(5) The record of maintenance;
(6) The unproven or innovative nature of the control equipment;
(7) Any action taken by the respondent, including the nature, extent, and time of response of the cleanup and construction undertaken, to mitigate the violation;
(8) The financial burden to the respondent; and
(9) The penalties or range of penalties set forth in the underlying rules or regulations that have been violated.
(b) In determining penalties for complaints issued under Health and Safety Code sections 43023 and 43028, the hearing officer shall consider all relevant circumstances, including, but not limited to:
(1) The extent of harm caused by the violation to public health and safety and to the environment;
(2) The nature and persistence of the violation, including the magnitude of the excess emissions;
(3) The compliance history of the respondent, including the frequency of past violations;
(4) The preventive efforts taken by respondent, including the record of maintenance and any program to ensure compliance;
(5) The innovative nature and the magnitude of the effort required to comply, and the accuracy, reproducibility, and repeatability of the available test methods;
(6) The efforts to attain, or provide for, compliance;
(7) The cooperation of the respondent during the course of the investigation and any action taken by the defendant, including the nature, extent, and time of response of any action taken to mitigate the violation;
(8) For the person who owns a single retail service station, the size of the business; and
(9) The penalties or range of penalties set forth in the underlying rules or regulations that have been violated.


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 42403, 42410, 43023, 43028 and 43031(a), Health and Safety Code.









s 60065.41. Reconsideration by Executive Officer.
(a) A party aggrieved by an order or decision of a hearing officer in a complaint proceeding pursuant to section 60065.39 of these rules may, within 20 days of service of such order or decision, request that the executive officer reconsider the hearing officer decision with respect to any matters covered by the order or decision. The request for reconsideration shall be filed with the executive officer and shall be served on all parties and the hearing office. The request shall be deemed filed the date it is delivered or mailed to the executive officer.
(b) Within 20 days of issuance of an order or decision by a hearing officer in a complaint proceeding pursuant to section 60065.39 of these rules, the executive officer may, on his or her own motion, decide to order reconsideration of the order or decision of the hearing officer. The executive officer shall notify the parties and the hearing office of this decision.


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 60065.42. Requirements in Filing Request for Reconsideration; Comments Opposing Request.
(a) A request for reconsideration of a hearing officer order or decision shall be signed by the party or its representative and verified under oath. The request shall be based upon one or more of the following grounds:
(1) The hearing officer acted without or in excess of its powers;

(2) The order or decision was procured by fraud;
(3) The order or decision is not supported by the evidence or the findings of fact;
(4) The requesting party has discovered new material evidence that could not, with reasonable diligence, have been discovered and produced at the hearing; or
(5) The hearing officer has misapplied applicable law.
(b) Any request for reconsideration shall specifically detail the grounds upon which the requesting party considers the order or decision to be unjust or unlawful and every issue to be considered on reconsideration. The requesting party shall be deemed to have fully waived all objections, irregularities, and illegalities concerning the proceeding upon which reconsideration is sought other than those specifically set forth in the request for reconsideration. The request for reconsideration will be denied if it contains no more than allegations of the statutory or constitutional grounds for reconsideration, unsupported by specific references to the record and principles of law involved.
(c) When a request for reconsideration or answer thereto has been timely filed, the filing of supplemental papers or answers may be granted at the discretion of the executive officer. Parties requesting a copy of the hearing record shall bear the cost of reproduction.
(d) The request for reconsideration may include a request that the order or decision of the hearing officer be stayed pending resolution of the request for reconsideration. As stated in section 60065.48, the order or decision shall be automatically stayed for 30 days from the date of filing of the request for reconsideration.
(e) Within ten days of being served with notice of a request for reconsideration, a party opposed to the request may file an opposition to the request with the executive officer. The opposition shall be signed and verified under oath by the party or its representative and shall not exceed 6 pages.


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 60065.43. Final Order or Decision; Effective Date.
(a) If no request for reconsideration of a hearing officer's order or decision is filed within 20 days of the service of an order or decision, and no reconsideration has been ordered by the executive officer on his or her own motion the order or decision of the hearing officer shall become final. The effective date of the final order or decision shall be 30 days from the date of service of the hearing officer order or decision on the parties.
(b) If a request for reconsideration has been filed but has been summarily denied because the executive officer has not taken any action on the request within 20 days after receipt of the request, the underlying hearing officer order or decision shall become final. The effective date of the order or decision becoming final shall be the date that the order summarily denying the request for reconsideration was served on the parties.
(c) If a request for reconsideration has not been summarily denied, the order or decision of the executive officer that addresses and fully disposes of the request for reconsideration is the final order or decision. The effective date of the order or decision shall be the date that the decision was served on the 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); and Sections 42410, 43023, 43028 and 43031(a), Health and Safety Code.









s 60065.44. Judicial Review.
(a) A party adversely affected by a final decision of the hearing officer or the executive officer on reconsideration, may seek judicial review by filing a petition for a writ of mandate in accordance with section 1094.5 of the California Code of Civil Procedure. The right to petition shall not be affected by the failure to seek reconsideration before the agency. Such petition shall be filed within 30 days after the order or decision becomes final.
(b) The state board may seek to enforce a final order or decision in superior court in accordance with applicable law.


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 1094.5, California Code of Civil Procedure.









s 60065.45. Judicial Review.


Note: Authority cited: Sections 39600, 39601, 43028 and 43031(a), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); Sections 43028 and 43031(a), Health and Safety Code; and Section 1094.5, California Code of Civil Procedure.










s 60075.1. Applicability.
These rules shall govern hearings to review citations issued by the state board pursuant to Health and Safety Code sections 42410, 43023,43028, 43031(a) and 44011.6.


Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028, 43031(a) and 44011.6(m), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); and Sections 39674, 42401, 42402, 42402.1, 42402.2, 42402.3, 43008.6, 42410, 43012, 43016, 43021, 43023, 43026, 43027, 43028, 43029, 43030, 43031(a), 43154, 43201, 43211, 43212 and 44011.6, Health and Safety Code.









s 60075.2. Definitions.
(a) The definitions applicable to these rules include those set out in the Health and Safety Code (commencing with section 39010).
(b) The following definitions also apply:

(1) "Administrative record" means all documents and records timely filed with the hearing office, pursuant to section 60075.3 and the time deadlines of these rules, including pleadings, petitions, motions, and legal arguments in support thereof; all documents or records admitted into evidence or administratively noticed by the hearing officer; all official recordings or written transcripts of hearings conducted; and all orders or decisions issued by the hearing officer, executive officer, or the state board regarding the citation at issue; administrative record does not include any prohibited communications as defined in section 60075.14, and any settlement discussions or offers of settlement.
(2) "Citation" means an administrative action alleging one or more Class I violations as determined by the state board pursuant to section 60075.11.
(3) "Citee" means any person named in a citation as committing a Class I violation; in citations issued pursuant to Health and Safety Code section 44011.6 and title 13, CCR, section 2180, et seq., the citee is the vehicle owner as defined in section 2180.1(a)(21).
(4) "Citing Party" means the state board, acting through any of its employees that have been authorized by the state board or its executive officers, to investigate, issue, and prosecute a citation under this article.

(5) "Class I violation" means the type of violation for which issuance of a citation under this article is appropriate; it includes:
(A) All violations arising under Health and Safety Code sections 44011.6, et seq.; and
(B) Those violations that are less complex, less serious in nature as determined by one or more relevant factors listed in section 60075.11, and that the state board elects to address as "Class I violations." (continued)