Sec. 14.03.05.14. Administrative Hearing Proceedings

A. General Information.

(1) Scope. This regulation applies only to an administrative law judge adjudication of a request for a contested case hearing filed in accordance with Regulation .12 of this chapter pursuant to State Finance and Procurement Article, §19-109, Annotated Code of Maryland.

(2) Venue. The Commission may designate the venue for the contested case hearing, taking into consideration the convenience of the parties and the location of the evidence.

(3) Burden of Proof. The Commission shall bear the burden of proof by a preponderance of the evidence.

(4) The Office of Administrative Hearings shall conduct a contested case hearing in accordance with its rules of procedure under COMAR 28.02.01.

(5) Time Computation.

(a) Time computations under this regulation shall be in accordance with Article 1, §36, Annotated Code of Maryland.

(b) Except for time periods required by statute, the administrative law judge may enlarge or reduce any time period required under this regulation when necessary to avoid prejudicing the public interest or the rights of the parties.

(c) In computing any time period involved, the date of issuance of an order or decision by an administrative law judge is the date the order or decision is served by the Office of Administrative Hearings.

(d) A document is not filed until received by the Office of Administrative Hearings.

(6) Service and Filing.

(a) Service of a document under this regulation shall be in accordance with COMAR 28.02.01.24.

(b) A copy of all filed documents shall be served on all parties of record.

(c) All filed documents shall clearly state:

(i) The docket number, if any;

(ii) The title of the proceeding; and

(iii) Certificate of service.

(d) A party shall file all documents with the Office of Administrative Hearings.

B. Administrative Law Judge.

(1) Authority. The powers and duties of an administrative law judge shall be in accordance with COMAR 28.02.01.08A and B.

(2) Disqualification. A disqualification of an administrative law judge shall be in accordance with COMAR 28.02.01.08C.

(3) Ex Parte Communications. An ex parte communication shall be defined and prohibited in accordance with State Government Article, §10-219, Annotated Code of Maryland.

C. Parties. Parties to the proceeding shall include:

(1) The Commission that files the charge under Regulation .13B of this chapter seeking appropriate relief for an aggrieved party and the public interest;

(2) A complainant who is the person who files a complaint of commercial discrimination or retaliation issued under Regulation .05 of this chapter;

(3) A respondent who is the person named in the complaint of commercial discrimination or retaliation issued under Regulation .05 of this chapter against whom relief is sought; and

(4) Representation of the parties, which shall be in accordance with COMAR 28.02.01.09.

D. Pleadings and Motions.

(1) Pleadings.

(a) Form. Every pleading, motion, brief, or other document shall contain a caption setting forth the:

(i) Title of the proceeding;

(ii) Case number assigned by the Commission; and

(iii) Designation of the type of document, for example, charge, answer, or motion to dismiss.

(b) Signature.

(i) Every pleading, motion, brief, or other document filed by a party shall be signed by the party, the party's representative, or the attorney representing the party, and shall include the signer's address and telephone number.

(ii) The signature constitutes a certification that the signer has read the document, that to the best of the signer's knowledge, information, and belief there is good ground to support the document, and that it is not interposed for delay.

(2) Motions. All motions to an administrative law judge shall be in accordance with COMAR 28.02.01.16 except as otherwise provided in §G(4) of this regulation.

E. Discovery. Discovery shall be conducted in accordance with COMAR 28.02.01.10.

F. Subpoenas. A subpoena shall be issued in accordance with State Government Article, §20-1010, Annotated Code of Maryland, and COMAR 28.02.01.11.

G. Prehearing Procedures.

(1) Prehearing Conference. A prehearing conference shall be conducted in accordance with COMAR 28.02.01.13.

(2) Notice of Prehearing Conference and Hearing.

(a) The administrative law judge shall set the matter in for a prehearing conference, hearing, or both, on the earliest date practicable.

(b) The administrative law judge shall, by registered or certified mail, forward to the complainant and to the respondent, a statement of the charges and a notice of prehearing conference or hearing, which shall include the following:

(i) The place, date, and hour of the prehearing conference, public hearing, or both;

(ii) A statement advising both the complainant and respondent of their respective rights to appear and be represented in this hearing in person, by their attorneys, or both, and that the case in support of the complaint shall be presented by the Commission's General Counsel;

(iii) A statement advising the respondent of the right to file an answer to the statement of charges; and

(iv) The name of the administrative law judge designated to conduct the prehearing conference or hearing, or a statement that an administrative law judge will be subsequently designated.

(c) The administrative law judge shall forward a copy of the notice of prehearing conference, public hearing, or both, to the General Counsel of the Commission.

(d) The prehearing conference, public hearing, or both, may not occur less than 20 or more than 60 days after the issuance and service of the statement of charges and notice of prehearing conference, public hearing, or both.

(3) Prehearing Memorandum.

(a) Before the commencement of a prehearing conference, the administrative law judge may direct parties to file a prehearing memorandum.

(b) Contents of Memorandum. The memorandum shall state the name of the party or parties presenting the statement and, unless otherwise directed by the administrative law judge, briefly set forth the following:

(i) Issues involved in the proceeding;

(ii) Facts stipulated by the parties and a statement that the parties have made a good faith effort to stipulate to the greatest extent possible;

(iii) Facts in dispute;

(iv) Witnesses and exhibits to be presented at the hearing;

(v) A brief statement of applicable law;

(vi) Conclusions to be drawn;

(vii) Estimated time required for presentation of the party's case; and

(viii) Such other information as may assist in the disposition of the proceeding.

(4) Preliminary Matters-Motions.

(a) All preliminary matters shall be raised by motion filed at either the prehearing conference or not later than 45 days before the public hearing.

(b) The motion shall be in writing, stating briefly the relief applied for, with a memorandum stating the reasons and any law that may support the motion.

(c) The motion and two copies together with a certificate of mailing to all parties shall be filed with the administrative law judge.

(d) An answer to a preliminary motion shall be in writing and include:

(i) A memorandum stating the reasons and any law that may be in support of the answer; and

(ii) Certification that a copy has been mailed to all parties.

(e) The original and two copies of the answer shall be filed with the administrative law judge within 15 days of receipt of the original motion unless otherwise directed by the administrative law judge.

(f) The administrative law judge shall decide all motions without oral argument on the motions, unless the administrative law judge desires oral argument or testimony.

(g) If the administrative law judge requests oral arguments, the administrative law judge shall set the date, place, and time, and notify all parties.

(5) Settlement Conference. If required, a settlement conference shall be conducted in accordance with COMAR 28.02.01.14.

H. Hearing Procedures.

(1) Date. All parties shall cooperate in good faith to have the contested case hearing concluded within 180 days after the issuance of a notice for a contested case hearing.

(2) Place. The Commission may designate the venue for the contested case hearing, taking into consideration the convenience of the parties and the location of the evidence pursuant to State Finance and Procurement Article, §19-109(d)(1)(ii), Annotated Code of Maryland.

(3) Notice of Hearing. The parties shall be notified of the hearing in accordance with §G(2) of this regulation.

(4) Conduct of Hearing. The hearing shall be conducted in accordance with COMAR 28.02.01.17.

(5) Evidence. Evidence shall be admitted in accordance with State Government Article, §10-213, Annotated Code of Maryland, and COMAR 28.02.01.18.

(6) Stipulations. The administrative law judge may accept stipulations in accordance with COMAR 28.02.01.15 upon the showing of mutual consent of all parties.

(7) Affidavits. The administrative law judge may accept affidavits in accordance with COMAR 28.02.01.15 upon showing:

(a) Mutual consent of the parties;

(b) The affiant is unavailable to testify; and

(c) The party seeking to introduce the affidavit has exercised reasonable diligence to locate the affiant.

(8) Failure to Attend Hearing and Default. The failure of a party to attend a hearing and the subsequent default process shall be in accordance with COMAR 28.02.01.20.

(9) Appointment of Interpreter. In situations where an interpreter is required, appointment shall be made in accordance with COMAR 28.02.01.19.

(10) Public Hearings. Proceedings under this regulation shall be open to the public in accordance with COMAR 28.02.01.21.

(11) Transcript of Hearing Record.

(a) The administrative law judge shall cause the testimony taken at the hearing to be transcribed.

(b) The transcript, together with all pleadings, exhibits, and other materials introduced into evidence, shall constitute the record of the case as defined in State Government Article, §10-218, Annotated Code of Maryland.