605 KAR 1:130. Procedures.
RELATES TO: KRS 190.058, 190.062
STATUTORY AUTHORITY: KRS 190.020, 190.058, 190.062
NECESSITY, FUNCTION, AND CONFORMITY: An absolute necessity for any administrative board is a written code of practice and procedure. The enabling legislation for the adoption of such procedures by the Motor Vehicle Commission is found in KRS 190.058. This administrative regulation establishes the proper form of procedure and practice before the Motor Vehicle Commission and adopts the general practice procedures found in the Kentucky Rules of Civil Procedure.
Section 1. Hearings shall be conducted by a commission member or person designated by the commission as a hearing officer. Hearings shall be conducted pursuant to the Kentucky Rules of Civil Procedure except as otherwise provided in this administrative regulation. The hearing officer shall conduct the hearing and shall rule on matters of procedure and introduction of evidence. The hearing shall be conducted in the manner as the hearing officer determines will best serve the purpose of attainment of justice and dispatch. Objections may be taken to any ruling of the hearing officer and shall be ruled on by the commission. The reason for any objection shall be stated and made a part of the stenographic record. All testimony shall be transcribed.
Section 2. Appearances. Any licensee may appear and be heard in person, or with or by duly appointed attorney, and may produce under oath evidence relative and material to matters before the commission. Any attorney, in a representative capacity, appearing before the commission may be required to show his authority to act in such capacity.
Section 3. Argument. All oral arguments shall be succinct and concise. The hearing officer may curtail or set time limits for oral arguments.
Section 4. Additional Hearings. The commission may, on its own motion, prior to its determination, require an additional hearing. Notice to all interested parties setting forth the date of such hearing must be given in writing by the Executive Director.
Section 5. Briefs. Briefs may be filed as a matter of right. All briefs shall be concise, summarizing first the evidence presented at the hearing. Copies of briefs must be typewritten or typed and printed and filed in quadruplicate. The time allowed for filing briefs shall be designated by the hearing officer, but in no event shall be less than five (5) days after the hearing. Respondent briefs may be filed by the commission, or filed by any person whose interests are affected. Reply briefs may be filed only when limited strictly to answering the brief of respondent. Briefs containing more than ten (10) pages shall contain on the top fly leaves a subject index with page references.
Section 6. Continuances. Continuances may be granted in the discretion of the hearing officer if good cause for the continuance is shown and if requested at least forty-eight (48) hours in advance of hearing date.
Section 7. Depositions. The hearing officer may order testimony to be taken by deposition at any stage of the hearing. Depositions shall be taken before any person having power to administer oaths, or written by the person taking the deposition or under his direction and shall then be subscribed by the deponent and certified in the usual manner by the person taking the deposition. The provisions of the Civil Rules governing the taking of depositions shall be applicable.
Section 8. Except as otherwise provided in this administrative regulation, the rules of evidence governing civil proceedings in the courts of the Commonwealth of Kentucky shall govern hearings before the commission; provided, however, that the hearing officer may relax such rules in any case where, in his judgment, the ends of justice will be better served by so doing.
(1) Judicial notice. When called to the attention of the hearing officer, "judicial notice" may be taken of any matter situated in the files of the commission, the Revenue Cabinet or the Transportation Cabinet, any action pending which involves the commission or and all other matters of which a court of Kentucky may take judicial notice. A brief statement recognizing the matter shall be made in the transcript by the hearing officer.
(2) Additional evidence. Upon application to the commission, prior to the decision of the commission in the case, the hearing may, in the discretion of the commission, be reopened for the presentation of additional evidence. Application for and additional hearing shall set forth concisely the nature of this additional evidence. The commission may, on its own motion, require an additional hearing.
Section 9. Ex Parte Contacts. No person shall have ex parte contact with any member of the commission regarding any matter pending before the commission for review prior to final decision. In the event an ex parte contact occurs, the name of the person making the contact shall be revealed on the record. In no event shall the information conveyed in an ex parte contact be relied upon or considered in reaching a decision.
Section 10. The Report and Recommended Order. Upon the conclusion of a hearing, the hearing officer shall make a report and recommended order which shall contain his finding of facts and conclusions of law. Copies of the report and recommended order shall be served upon each of the parties to the matter heard.
Section 11. Exceptions and Replies. Any party to a hearing may, within twenty (20) days after the date the finding of facts and conclusions of law and recommended order is filed with the commission, file and serve exceptions. Exceptions shall consist of as many objections to the whole or any part of the finding of facts and conclusions of law as the party filing the exceptions desires to make, with each objection numbered. Each objection shall fully state the nature and grounds for the objection. Parties filing exceptions shall serve a copy upon every other party participating in the hearing and shall certify to the commission that such service has been accomplished. Replies to exceptions shall be filed and served within twenty (20) days after the filing of exceptions, if any party desires to make a reply. The reply shall consist of a separate reply to each objection set out in the exceptions. Any party filing a reply shall serve a copy on every other party participating in the hearing and shall certify to the commission that such service has been accomplished.
Section 12. Final Order. Upon the filing of the exceptions and replies or upon expiration of the time for filing exceptions and replies, the hearing officer shall render the complete record to the commission which shall consider and rule upon the case. The commission may, after a study of the case, refer it back to the hearing officer and request the taking of more proof on any point in issue. The commission may require oral argument of the case. When the commission has rendered its decision in the case, its decision shall be served by mail upon all parties and shall be the final order of the commission. The final order shall contain the date of its rendition, and shall be final for purposes of judicial appeal.
Section 13. Service of Motions, Pleadings. Copies of all motions and pleadings shall be served upon all interested parties, in addition to filing the required copies before the commission. There shall be no demurrers. Motions to dismiss, setting forth the reasons in support of the motion, may be heard by the commission.
Section 14. Reconsideration Hearings. Any party to the proceeding may request in writing a hearing for purposes of reconsideration of a commission decision of any matter formally heard by the commission. The request shall be filed with the Executive Director within fifteen (15) days from the date the notice of the commission's decision is mailed. A reconsideration hearing shall be granted only if the request presents significant, relevant information not previously available for consideration, or demonstrates that there have been significant changes in the factors or circumstances relied upon by the commission in reaching its decision, or demonstrates that the commission has materially failed to follow its adopted procedures in reaching its decision. The commission shall consider requests for reconsideration in a summary manner. If a hearing for reconsideration is granted by the commission, it shall be conducted in accordance with the requirements of this administrative regulation. The reconsideration hearing shall be held within thirty (30) days of the decision to grant the request for reconsideration.
Section 15. Notices. Upon the filing of an appeal from an order or decision, the appellant shall serve a copy on all interested parties. All other hearings except license suspension or revocation hearings shall be held only after notice given at least ten (10) days before the date of the hearing. A notice of a license suspension or revocation hearing by registered mail to the licensee, sent to the business address of the licensee shown on the latest application for a license shall be deemed sufficient notice.
Section 16. Specifications as to Pleadings, Complaints, Briefs, Motions, Etc. Except when permission is granted by the hearing officer, all papers filed under these rules shall be typewritten or printed. All copies shall be clearly legible and double spaced, except for quotations. All motions, complaints, briefs, etc., shall be made on unglazed paper eight and one-half (8 1/2) inches wide and eleven (11) inches long.
Section 17. Subpoenas and Subpoena Duces Tecum. The party desiring a subpoena shall make application at least five (5) days before the hearing date with the Executive Director of the commission. The application shall be in writing, and shall state the name and address of each witness required. If evidence other than oral testimony is required, such as documents or written data, the application shall set forth the specific matter to be produced and sufficient facts to indicate that such matter is reasonably necessary to establish the cause of action or defense of the applicant.
Section 18. Costs of Hearing. If the commission, by issuance of a final order. finds that a violation has been committed by a licensee, or upholds the recommendation of the hearing officer in a matter involving an applicant for a motor vehicle dealer license, the commission may assess to the licensee or the applicant the fee charged to the commission for the transcription of the record and the fee charged by the hearing officer. The fee assessed for the transcription of the record and for the hearing officer shall be the actual costs charged to the commission for that particular hearing, and may be assessed in addition to any fine levied by the commission. (Recodified from 601 KAR 21:130, 7-13-84; Am. 18 Ky.R. 471; eff. 10-1-91; 19 Ky.R. 2313; eff. 5-26-93.)