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(continued)
(6) "Consent Order" means an order entered by the hearing officer in accordance with the settlement agreement of the parties.
(7) "Days" means calendar days.
(8) "Default" means the failure of any party to take the steps necessary and required by these regulations to further the hearing towards resolution, resulting in a finding by the hearing officer of forfeiture of the cause of action against that party.
(9) "Discovery" means the limited right to exchange documents and taking of depositions, as provided in Subarticle 7.
(10) "Executive Officer" is the executive officer of the state board.
(11) "Hearing Office" is the office established by the state board to conduct administrative hearings pursuant to Health and Safety Code sections 44011.6(m) and 43028, or the Department of General Services, Office of Administrative Hearings ( "OAH"), established pursuant to Government Code section 11370.2.
(12) "Hearing Officer" is an administrative law judge appointed by the state board to conduct hearings pursuant to sections 44011.6 and 43028 of the Health and Safety Code and these rules, or an administrative law judge within OAH, who shall be appointed to conduct hearings pursuant to Health and Safety Code sections 42410 and 43023 and these rules.
(13) "Party" includes the citing party and citee.
(14) "Penalty" means an administrative penalty assessed against a citee for one or more violations of the Act.
(15) "Proceeding" means any hearing, determination or other activity before the hearing officer that involves the parties to a citation or consideration of the citation.
(16) "Settlement Agreement" means a written agreement executed by citing party and citee that respectively settles the allegations at issue in the citation. The settlement agreement shall include, but not be limited to, the following: (1) stipulations by the parties establishing subject matter; (2) an admission by citee that it committed the violations as alleged in the citation or a statement by citee that it neither admits nor denies that it committed such violations; and (3) the terms and conditions of the settlement.
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 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code.
s 60075.3. Time Limits; Computation of Time.
(a) All actions required pursuant to these rules shall be completed within the times specified in these rules, unless extended by the hearing officer upon a showing of good cause, and after consideration of prejudice to other parties. Requests for extensions of time for the filing of any pleading, letter, document, or other writing must be received in advance of the date on which the above is due to be filed 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 performed, the day of the event from which the designated right or act begins shall be excluded 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.
(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, letter, document, or other writing is by mail, overnight delivery, or by facsimile transmission (fax), pursuant to section 60075.4(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 60075.4(c). Such extensions shall not apply to extend the time for requesting a hearing pursuant to section 60075.17 of these rules.
(f) Papers received by the hearing office during regular business hours (8 a.m. to 5 p.m.) will be filed on that day. Papers 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, 43031(a) and 44011.6(m), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); and Sections 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code.
s 60075.4. Service, Notice and Posting.
(a) Except as otherwise provided, the original of every pleading, letter, document, or other writing served in a proceeding under these rules shall be filed with the hearing office.
(b) If a hearing is assigned to OAH, a copy of every pleading, letter, document or other writing served in a proceeding under these rules shall also be filed with the state board.
(c) Unless otherwise required, service of any documents in the proceedings may be made by personal delivery; by United States first-class or interoffice mail, overnight delivery, or 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, 10 days if the place of address is outside the State of California, but within the United States, and 15 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) The proof of service shall be made by declaration by a person over the age of 18 years and shall state whether such service was made personally, by mail, overnight delivery, or by 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) Service and notice to a party who has appeared through a representative shall be made upon such representative.
(f) 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 or legibly printed and signed below this statement.
(g) Proof of service made in accordance with the Code of Civil Procedure section 1013a complies with this regulation.
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); Sections 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code; and Sections 11182 and 11184, Government Code; and Sections 1013 and 1013a, Code of Civil Procedure.
s 60075.5. Form of Pleadings.
(a) Except as provided in this section, or by order of 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, 43031(a) and 44011.6(m), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); and Sections 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code.
s 60075.6. Limitations on Written Legal Arguments or Statements.
Any written legal argument or statement submitted to the hearing officer by a participant in an action under this part shall be legibly printed or 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) 12 pages, for arguments in support of or opposition to motions; and
(2) Three pages, for reply arguments.
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 42410, 43023, 43028 and 43031(1), Health and Safety Code.
s 60075.7. 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, 43031(a) and 44011.6(m), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); Sections 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code; Section 6250, et seq., Government Code; and Sections 91000, et seq., Title 17, California Code of Regulations.
s 60075.8. 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 provisions of 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, 43031(a) and 44011.6(m), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); and Sections 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code.
s 60075.9. 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, or any other form of reasonable accommodation that party shall be responsible for notifying the hearing office as soon as the requirement is known, but no later than 10 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, 43031(a) and 44011.6(m) Health and Safety Code. Reference: Mathews v. Eldridge, 424 U.S. 319 (1976); Sections 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code; Sections 11435.25, 11435.30 and 11435.55, Government Code; and Section 751, Evidence Code.
s 60075.10. Motions.
(a) Any motion, including any 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 or other electronic means. These proceedings shall 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.
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 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code.
s 60075.11. Determination of Class I Violations.
(a) A Class I violation includes: those violations that the state board has determined, based upon its enforcement discretion, to be of a nature that is clear cut, and less complex and serious, in terms of size, scope, and harm to the public and environment. Class I violations may cover:
(1) All violations arising pursuant to Health and Safety Code sections 44011.6 et seq.
(2) Violations arising under Part 5, chapters 1 to 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 by the state board pursuant to the authority granted by those provisions of the Health and Safety Code.
(3) Violations 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) In determining whether violations are Class I violations under section (a)(2) and (a)(3), and the penalty levels of a citation, the state board shall consider the civil penalty amounts prescribed by statute and all relevant circumstances surrounding the violation, the penalty criteria set forth in section 60075.39, supra, and the following;
(1) The discernability of the violation;
(2) The potential risk of injury to the public and environmental harm from such a violation;
(3) Whether the violation is a single violation or has occurred in tandem with other violations;
(4) The frequency and duration of the violation;
(5) The time, effort, and expense required to correct the violation;
(6) The cooperation of the citee in detecting and correcting the violation;
(7) The compliance history of the citee;
(8) Other factors as appropriate.
(c) The maximum civil penalty that may be proposed for each Class I violation, described in subparagraph (a)(2) and (a)(3) above, may not exceed the lesser of the maximum allowed by statue for a violation or $5,000 per day for each day that a violation occurs. In addition, the maximum cumulative penalty that may be proposed in any single citation may not exceed $15,000. See section 60075.39. In determining the amount allowed by statute, the ARB shall use the method of calculation set forth in the underlying statue (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 citation for a Class I violation covered by section (a)(3) for any violation if the state board shares concurrent enforcement jurisdiction with a district and the district has commenced an enforcement action for that violation.
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 60075.12. Issuance and Service of Citations.
(a) The citing party may issue a citation to any person for Class I violations as defined in section 60075.11.
(b) A "Citation" shall include the following information:
(1) The names of the alleged citees;
(2) The code section, rule or regulation that has allegedly been violated;
(3) A concise, but reasonably specific statement of the facts that support issuance of each alleged violation;
(4) A proposed penalty for the alleged violations that is to be assessed against the citee as authorized by applicable law;
(5) Reference to these procedures, notice that the procedures are 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;
(6) Written notice to citee that he or she:
(A) May respond to the allegations of the citation and request a hearing. It shall also inform the citee of the consequences of failing to respond by the applicable deadline;
(B) Has the right to represent him or herself or to retain a representative, who is not required to be an attorney, at one's own expense; and
(C) If necessary, has the right to an interpreter.
(7) The address of the office issuing the citation; the address to which payment of the proposed penalty may be sent; and the address where a request for a hearing may be filed if a citee so elects.
(8) A citation shall be served on the named citee 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, 43031(a) and 44011.6(m), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); and Sections 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code.
s 60075.13. Authority of Hearing Officers; Disqualification.
(a) 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 and settlement 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.
(b) The hearing officer or the executive officer, on a request for reconsideration, shall disqualify himself or herself and withdraw from any case in which he or she cannot accord a fair and impartial hearing. A hearing officer may not hear any case in which he or she has previously served as an investigator, prosecutor, or advocate. Any party may request disqualification by filing an affidavit or declaration under penalty of perjury. A request for disqualification of the hearing officer must be made no later than five days prior to the commencement to the first day of hearing on the merits of the case. 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, 43031(a) and 44011.6(m), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); Sections 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code; and Sections 11181 and 11182, Government Code.
s 60075.14. 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 60075.38.
(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 60075.4.
(c) For the purpose of this section, a proceeding is pending from the time that the petition for review of an executive officer decision 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 60075.38.
(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 60075.15. 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, 39601, 42410, 43023, 43028, 43031(a) and 44011.6(m), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); Sections 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code; and Sections 11340.1-11340.5, Government Code.
s 60075.16. Applicability to Executive Officer.
(a) The provision of Subarticle 4 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 11. Irrespective of the prohibitions of section 60075.13(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 executive officer on a matter that is under consideration.
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); Sections 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code; and Sections 11430.70-11430.80 Government Code.
s 60075.17. Filing a Request for Hearing.
(a) Upon receiving a citation, the citee may:
(1) Initiate proceedings under these rules by filing a written request for hearing to contest a citation issued by the state board; or
(2) Pay the penalty demanded in the citation.
(b) A citee shall file a request for hearing to contest a citation with the executive officer.
(c) For citations arising under section 44011.6 of the Health and Safety Code, the request for hearing shall be filed within 45 days of the citee's receipt of the citation by personal delivery or certified mail.
(d) For all other citations issued by the state board, the request for hearing shall be filed within 30 days of the citee's receipt of the citation by personal delivery or certified mail.
(e) The executive officer may extend the applicable filing period set forth in subparagraphs (b) and (c) for good cause.
(f) If the citee fails to notify the executive officer of his or her intent to contest the citation within the applicable period set forth in subparagraphs (b) and (c), and if the citation penalty amount has not been paid in full, the citation becomes a final order not subject to review by any court or agency.
(g) The request for hearing shall be deemed filed on the date the notice indicating a desire to contest the issued citation is delivered or mailed to or, if the date of delivery or mailing is not known, received by the hearing office. No particular format is necessary to institute the proceeding; however, the request shall include all of the information specified in section 60075.18 of these rules.
(h) If the communication initiating the proceeding does not include the information required pursuant to section 60075.18, the executive officer shall immediately acknowledge receipt of the communication indicating the desire to request a hearing and shall notify the citee of the deficiencies in the submission which must be corrected before the request for hearing may be filed and docketed. The citee shall have 10 days from the date of mailing of the notice of deficiencies to submit a complete request for hearing; if the deficiencies are not corrected in the time provided the citation becomes final.
(i) Upon timely receipt of a complete request for hearing, the executive officer shall notify the citee or its representative that a request for hearing has been deemed complete and shall assign the case and forward copies of all relevant documents, including copies of the citation and request for hearing to:
(1) The Administrative Hearing Office of the state board if the citation has been issued pursuant to authority granted under Health and Safety Code sections 43028 and 44011.6.
(2) OAH if the citation has been issued pursuant to authority granted under Health and Safety Code sections 42410 and 43023.
(j) Upon a showing of good cause, the executive officer or the hearing officer assigned to the case may allow the citee to amend the request for hearing after the deadline for filing has passed.
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 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code.
s 60075.18. Form of Request for Hearing.
(a) The request for hearing shall be signed by the citee or its designated representative and contain at least the following information: a reference to the citation being contested, including citation number and date of issuance; date of citee's receipt of the citation by personal delivery or certified mail; correct business address; a statement of the circumstances or arguments which are the basis of the request for hearing; identification of the facts the citee intends to place at issue; if applicable, the name and address of the designated representative; and identification of any other issues relating to the citation to be resolved in the proceeding.
(b) A separate request for hearing shall be filed for each citation contested.
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 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code.
s 60075.19. Issues for Hearing.
(a) The issues for hearing shall be limited to those raised by the citation and the docketed request for hearing.
(b) If a citation is classified as a repeat violation, the validity of the earlier citation established by failure to request a hearing or the entry of a final disposition by the state board shall not be in issue. However, if the citation imposes a penalty pursuant to section 2185(a)(3), the staff of the state board shall be required to demonstrate the existence of the prior citation or citations.
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 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code.
s 60075.20. Stays Pending Filing a Request for Hearing.
(a) The requirements to immediately correct deficiencies specified in a citation issued under section 44011.6(b) of the Health and Safety Code and to pay a civil penalty within 45 days of receipt of a citation (title 13, California Code of Regulations, section 2185) shall be stayed on timely receipt of a request for hearing until a final decision or order has been issued pursuant to section 60075.44 of these rules.
(b) For all other citations of noncompliance, if a cease and desist order has been issued, the hearing officer shall issue a stay pending issuance of a final decision, 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, 43031(a) and 44011.6(m), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); and Sections 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code.
s 60075.21. Response by Citing Party.
Within 20 days from the date that the executive officer deems a request for hearing to be filed under section 60075.17(h) and assigns the case to the appropriate hearing office, the citing party may file a response to the issues raised by citee in its request for hearing. The citing party shall file the response with the hearing office assigned to hear the case and shall serve a copy of the response on the citee or its representative.
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 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code.
s 60075.22. Withdrawal of Request for Hearing.
(a) The request for hearing may be withdrawn by the citee by written request at any time before a decision is issued or by oral motion on the hearing record. The hearing officer shall grant such withdrawal by order or decision served on the parties.
(b) If at the time that the withdrawal request is granted, the time period for filing a request for hearing has passed, the citation shall be deemed a final order not subject to review by the state board or any court.
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 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code.
s 60075.23. Withdrawal of Citation.
(a) At anytime before the hearing officer issues a decision on the merits of the citation, the citing party may withdraw the citation by written notice at any time or by oral motion on the hearing record.
(b) If a notice of withdrawal is issued prior to the hearing, the citing party shall serve a copy of the notice of withdrawal on each party and on any authorized representatives.
(c) The notice of withdrawal or motion to withdraw a citation shall be accepted by the hearing officer and is a final order. A citation that has been withdrawn may not be reinstituted.
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 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code.
s 60075.24. Settlement Agreements and Consent Orders.
(a) At any time before a final decision of the hearing officer, the citing party and the citee 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 hearing officers from the state board to assist in settlement discussions.
(c) The parties shall memorialize any agreement in writing.
(d) 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 or the settlement in the petition for review proceeding 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, 43031(a) and 44011.6(m), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); Sections 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code; and Section 11415.60, Government Code.
s 60075.25. 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 as to liability 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 as to liability as a matter of law, the hearing officer shall issue a written order or decision that sets forth necessary findings of fact and conclusions of law regarding all matters that were at issue. If the decision finds liability, the hearing officer shall follow the penalty assessment criteria set forth in section 60075.39.
(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 grant a continuance to permit affidavits to be obtained, or to permit discovery as provided under these procedures.
(d) The hearing officer shall deny a request for summary determination of liability 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 as to liability 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, 43031(a) and 44011.6(m), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); and Sections 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code.
s 60075.26. Discovery.
(a) Exclusivity of Discovery Provisions.
The provisions of this section provide the exclusive right to, and method of, discovery as to any proceeding governed by this chapter.
(b) Document Exchange.
(1) After initiation of a proceeding, a party, upon written request made to another party is entitled, prior to the hearing, to inspect and make a copy of any document, thing, statement or other writing relevant to the issues for hearing which is in the control of the other party and which is relevant and would be admissible in evidence, including, but not limited to, any statements of parties or witnesses relating to the subject matter of the proceeding, all writings or things which the party then proposes to offer in evidence, and any inspection or investigative reports prepared by or on behalf of any party.
(3) The parties shall exchange the requested information at a time mutually agreed to by the parties, or if no agreement has been reached, no later than 30 days after a request has been made. Documents shall be served upon the requesting party pursuant to section 60075.4(b).
(4) Unless other arrangements are made, the party making the request shall pay the reasonable costs of copying the requested materials.
(5) A party claiming that certain writings or things are privileged against disclosure shall serve on the requesting party a written statement setting forth what matters are claimed to be privileged and the reasons therefore.
(c) Identity of Witnesses and Exhibits
(1) No later than 10 days before the scheduled hearing date, the parties shall submit to the hearing office and serve upon the other parties:
(A) A list of the names, addresses and qualifications of proposed witnesses and a brief summary of the testimony to be presented by each witness; and
(B) Each document or other exhibit, the party expects to offer or may offer, if the need arises, into evidence.
(2) 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 in submitted exhibits as required under paragraph (c)(1) of this section.
(d) Depositions.
(1) Unless otherwise stipulated to by the parties, depositions shall be limited to the following:
(A) A party may petition the hearing office to request that it be allowed to take the testimony of a material witness who is either unable to attend or cannot be compelled to attend a hearing on the merits may be obtained by deposition in the manner prescribed by law for depositions in civil actions;
(B) The petition shall set forth the nature of the pending proceeding; the name and address of the witness whose testimony is desired; a showing of the materiality of the testimony; a showing that the witness will be unable or cannot be compelled to attend; and shall request an order requiring the witness to appear and testify before an officer named in the petition for that purpose;
(C) The petitioner shall serve notice of the deposition and a copy of the petition on the other parties at least 10 days before the date set for the deposition.
(2) 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 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.
(e) Protective Orders:
(1) Upon motion by a party or by the person from whom discovery is sought, 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 meeting closed to the public. The hearing officer shall have discretion to limit attendance at any closed meeting to the hearing officer and the person or party seeking the protective order.
(4) If granted, 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. (continued)