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The Oregon Administrative Rules contain OARs filed through March 15, 2014
 
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LANDSCAPE CONTRACTORS BOARD

 

DIVISION 9

CONTESTED CASE HEARINGS AND APPEAL COMMITTEE

808-009-0010

Application of Rules

Contested case hearings on claims arising under ORS 671.690–671.710 shall be governed by OAR 808-009-0020 through 808-009-0220 and 137-003-0501 through 137-003-0700.

Stat. Auth.: ORS 670.310 & ORS 671.670
Stats. Implemented: ORS 183.415 & ORS 671.703
Hist.: LCB 2-2000(Tenp), f. 5-31-00, cert. ef. 5-31-00 thru 11-26-00; LCB 3-2000, f. & cert. ef. 7-26-00

808-009-0020

Amendment to Declaration of Damages

(1) If the agency refers a claim to the Office of Administrative Hearings for a hearing on the amount that the respondent owes the claimant, the claimant may amend the amount the claimant alleges the respondent owes the claimant by filing an amended declaration of damages form. An amended declaration of damages must be delivered to the administrative law judge or Office of Administrative Hearings as required by OAR 137-003-0520 and 808-009-0085. An amended declaration of damages filed under this section must be received by the administrative law judge or the Office of Administrative Hearings no later than 14 days prior to the scheduled date of a hearing on the matter.

(2) An amended declaration of damages filed under section (1) of this rule must be on a form provided by the agency or on a form that substantially conforms to the form provided by the agency. The amended declaration of damage must state the amount alleged to be owed by the respondent, limited to items of complaint in the Statement of Claim. The amended declaration of damages must be signed by the claimant.

(3) An amended declaration of damages making a significant change in the amount the claimant alleges that the respondent owes the claimant may be good cause to postpone the scheduled hearing under OAR 137-003-0525 if the time left before the hearing is insufficient to prepare for a hearing on the amended amount.

Stat. Auth.: ORS 183, 670.310 & 671.670
Stats. Implemented: ORS 183.415 & 671
Hist.: LC 3, f. & ef. 2-7-77; LC 1-1981, f. & ef. 10-8-81; LC 1-1984, f. & ef. 7-17-84; Renumbered from 808-010-0045; LCB 1-1988, f. 1-26-88, cert. ef. 2-1-88; LCB 3-1991(Temp), f. & cert. ef. 12-3-91; LCB 1-1992, f.; LSCB 2-1995, f. 8-8-95, cert. ef. 8-15-95; LCB 1-2000, f. & cert. ef. 2-1-00; Renumbered from 808-004-0030; LCB 2-2000(Tenp), f. 5-31-00, cert. ef. 5-31-00 thru 11-26-00; LCB 2-2003, f. 1-31-03, cert. ef. 2-1-03; LCB 6-2003, f. & cert. ef. 10-1-03; LCB 1-2004, f. 1-27-04, cert. ef. 2-1-04

808-009-0050

Providing Required Information to Parties

The agency delegates to the Office of Administrative Hearings or the law judge assigned to hear a claim the responsibility to provide the information required to be given to each party under ORS 183.413(2) and 137-003-0510(1).

Stat. Auth.: ORS 670.310 & ORS 671.670
Stats. Implemented: ORS 183.415 & ORS 671.703
Hist.: LCB 2-2000(Tenp), f. 5-31-00, cert. ef. 5-31-00 thru 11-26-00; LCB 3-2000, f. & cert. ef. 7-26-00; LCB 6-2003, f. & cert. ef. 10-1-03

808-009-0060

Hearing Postponement

If a party requests postponement of a hearing, the request may be granted:

(1) The request is promptly made after the party receives the notice of hearing or is promptly made after emergency or unforeseen circumstances arise; and

(2) The party establishes circumstances that prevent attendance by the party at the scheduled hearing; and

(3) The circumstances preventing attendance at the hearing are beyond the reasonable control of the requesting party.

Stat. Auth.: ORS 183.415, ORS 670.310 & ORS 671.670
Stats. Implemented: ORS 183 & ORS 671
Hist.: LCB 1-2000, f. & cert. ef. 2-1-00; LCB 2-2000(Tenp), f. 5-31-00, cert. ef. 5-31-00 thru 11-26-00; LCB 3-2000, f. & cert. ef. 7-26-00

808-009-0070

Suspending Processing

(1) An administrative law judge may suspend or cancel a hearing at any time if the administrative law judge finds that the nature or complexity of the issues is such that a court is a more appropriate forum for adjudication. If a administrative law judge suspends or cancels a hearing under this rule, the administrative law judge shall refer the claim to the agency with a memorandum recommending that processing of the claim be suspended under ORS 671.703 and OAR 808-004-0520 and stating the basis of the recommendation. A copy of this memorandum shall be served on the parties.

(2) If a claim is referred to the agency under section (1) of this rule, the agency may:

(a) Suspend processing the claim; or

(b) Refer the claim back to the administrative law judge with instructions to resume the hearing.

Stat. Auth.: ORS 670.310 & ORS 671.670
Stats. Implemented: ORS 183.415 & ORS 671.703
Hist.: LCB 2-2000(Tenp), f. 5-31-00, cert. ef. 5-31-00 thru 11-26-00; LCB 3-2000, f. & cert. ef. 7-26-00; LCB 3-2000, f. & cert. ef. 7-26-00; LCB 6-2003, f. & cert. ef. 10-1-03

808-009-0080

Administrative Law Judge

A contested case hearing may be held before an administrative law judge of the agency.

Stat. Auth.: ORS 183, ORS 670.310 & ORS 671.670
Stats. Implemented: ORS 183 & ORS 671
Hist.: LC 3, f. & ef. 2-7-77; LC 1-1981, f. & ef. 10-8-81; LC 1-1984, f. & ef. 7-17-84; Renumbered from 808-010-0045; LCB 1-1988, f. 1-26-88, cert. ef. 2-1-88; LCB 3-1991(Temp), f. & cert. ef. 12-3-91; LCB 1-1992, f.; LSCB 2-1995, f. 8-8-95, cert. ef. 8-15-95; LCB 1-2000, f. & cert. ef. 2-1-00; Renumbered from 808-004-0030; LCB 3-2000, f. & cert. ef. 7-26-00

808-009-0085

Filing of Documents

Unless otherwise provided in these rules, the agency waives the right to receive copies of documents served under OAR 137-003-0520(2).

Stat. Auth.: ORS 670.310 & ORS 671.670
Stats. Implemented: ORS 183.415 & ORS 671.703
Hist.: LCB 2-2000(Tenp), f. 5-31-00, cert. ef. 5-31-00 thru 11-26-00; LCB 3-2000, f. & cert. ef. 7-26-00

808-009-0090

Authorized Representation of a Party

A party or limited party participating in a claim contestedcase hearing before the agency may be represented by an authorized representative, as provided in OAR 137-003-0555.

Stat. Auth.: ORS 183, ORS 670.310 & ORS 671.670
Stats. Implemented: ORS 183.455
Hist.: LCB 1-1988, f. 1-26-88, cert. ef. 2-1-88; LCB 4-1988, f. 11-23-88, cert. ef. 12-1-88; LCB 1-1990(Temp), f. & cert. ef. 3-28-90; LCB 2-1990, f. 7-27-90, cert. ef. 8-1-90; LCB 1-2000, f. & cert. ef. 2-1-00; Renumbered from 808-001-0035; LCB 2-2000(Tenp), f. 5-31-00, cert. ef. 5-31-00 thru 11-26-00; LCB 3-2000, f. & cert. ef. 7-26-00

808-009-0095

Discovery and Subpoenas

(1) The agency delegates to the hearing officer assigned to hear a claim the authority to:

(a) Order and control discovery under OAR 137-003-0570 related to the hearing on the claim, except an hearing officer may not authorize a party to take a deposition that must be paid for by the agency.

(b) Issue subpoenas under OAR 137-003-0585 that are related to the hearing on the claim.

(2) The agency waives receipt of notice that a party seeks to take the testimony of a witness by deposition under OAR 137-003-0570.

Stat. Auth.: ORS 670.310 & ORS 671.670
Stats. Implemented: ORS 183.415 & ORS 671.703
Hist.: LCB 2-2000(Tenp), f. 5-31-00, cert. ef. 5-31-00 thru 11-26-00; LCB 3-2000, f. & cert. ef. 7-26-00

808-009-0100

Burden of Proof and Failure to Meet Burden

(1) A claimant must submit sufficient credible evidence into the record to prove that:

(a) The claimant suffered damages;

(b) Respondent caused those damages by performing negligent or improper work or a breach of contract in performing work subject to ORS 671.510 to 671.710; and

(c) The monetary value of those damages is substantiated on the record.

(2) If the claimant fails to carry the burden of proof described in section (1) of this rule, the administrative law judge shall dismiss the claim.

Stat. Auth.: ORS 183, 670.310 & 671.670
Stats. Implemented: ORS 183 & 671.703
Hist.: LC 3, f. & ef. 2-7-77; LC 1-1981, f. & ef. 10-8-81; LC 1-1984, f. & ef. 7-17-84; Renumbered from 808-010-0045; LCB 1-1988, f. 1-26-88, cert. ef. 2-1-88; LCB 3-1991(Temp), f. & cert. ef. 12-3-91; LCB 1-1992, f.; LSCB 2-1995, f. 8-8-95, cert. ef. 8-15-95; LCB 1-2000, f. & cert. ef. 2-1-00; Renumbered from 808-004-0030; LCB 2-2000(Temp), f. 5-31-00, cert. ef. 5-31-00 thru 11-26-00; Administrative correction 6-21-01; LCB 3-2000, f. & cert. ef. 7-26-00; LCB 6-2003, f. & cert. ef. 10-1-03; LCB 1-2005, f. & cert. ef. 2-15-05

808-009-0120

Determination of Validity of Claim

In determining the validity of the claim, the administrative law judge shall determine:

(1) Whether the claim arose out of a transaction within the scope of ORS 671.510 to 671.710;

(2) Whether the agency has jurisdiction over the matters at issue;

(3) Whether:

(a) Claimant suffered damages;

(b) Respondent caused those damages by performing negligent or improper work or a breach of contract in performing work subject to ORS 671.510 to 671.710; and

(c) The monetary value of those damages is substantiated on the record.

Stat. Auth.: ORS 183, ORS 670.310 & ORS 671.670
Stats. Implemented: ORS 183 & ORS 671.703
Hist.: LC 3, f. & ef. 2-7-77; LC 1-1981, f. & ef. 10-8-81; LC 1-1984, f. & ef. 7-17-84; Renumbered from 808-010-0045; LCB 1-1988, f. 1-26-88, cert. ef. 2-1-88; LCB 3-1991(Temp), f. & cert. ef. 12-3-91; LCB 1-1992, f.; LSCB 2-1995, f. 8-8-95, cert. ef. 8-15-95; LCB 1-2000, f. & cert. ef. 2-1-00; Renumbered from 808-004-0030; LCB 2-2000(Tenp), f. 5-31-00, cert. ef. 5-31-00 thru 11-26-00; LCB 3-2000, f. & cert. ef. 7-26-00; LCB 4-2002, f. & cert. ef. 12-4-02; LCB 6-2003, f. & cert. ef. 10-1-03

808-009-0140

Failure to Appear

(1) "Order" as used in this rule means a proposed and final order a law judge is authorized to issue under OAR 808-009-00160.

(2) If the administrative law judge notified the parties to a claim of the time and place of a hearing on the claim, and a party failed to appear at the hearing, the administrative law judge may enter an order by default under OAR 137-003-0670(1)(c) that :

(a) Is adverse to a party only upon a prima facie case made on the record as required by OAR 137-003-0670(3); or

(b) Dismisses the claim based on a lack of evidence in the record supporting claimant's claim, but only if:

(A) The agency did not designate the agency file as the record for purposes of an order by default in the contested case notice issued under OAR 808-004-0560; and

(B) The claimant failed to appear at the hearing.

Authorized for use by Attorney General order dated December 13, 2002. (Section (1) based on former OAR 808-004-0030(13) (1999); section (2) based on former OAR 808-004-0030(14) (1999))

Stat. Auth.: ORS 183, 670, 670.310 & 671
Stats. Implemented: ORS 183, 670 & 671
Hist.: LC 3, f. & ef. 2-7-77; LC 1-1981, f. & ef. 10-8-81; LC 1-1984, f. & ef. 7-17-84; Renumbered from 808-010-0045; LCB 1-1988, f. 1-26-88, cert. ef. 2-1-88; LCB 3-1991(Temp), f. & cert. ef. 12-3-91; LCB 1-1992, f.; LSCB 2-1995, f. 8-8-95, cert. ef. 8-15-95; LCB 1-2000, f. & cert. ef. 2-1-00; Renumbered from 808-004-0030; LCB 2-2000(Tenp), f. 5-31-00, cert. ef. 5-31-00 thru 11-26-00; LCB 3-2000, f. & cert. ef. 7-26-00; LCB 6-2002, f. & cert. ef. 12-18-02; LCB 6-2003, f. & cert. ef. 10-1-03

808-009-0160

Order Based on Hearing, Limitation on Order

(1) "Order" as used in sections (2) to (5) of this rule means a proposed and final order a administrative law judge is authorized to issue under section (6) of this rule.

(2) If a claim is referred for a hearing to determine the amount, if any, that a respondent owes a claimant, the administrative law judge may not issue an order in an amount greater than the total amount claimant alleges respondent owes claimant in:

(a) The most recent declaration of damages or amended declaration of damages filed under OAR 808-004-0540, 808-004-0550 or 808-009-0020; or

(b) The Statement of Claim filed under OAR 808-004-0340, if no declaration of damages was filed.

(3) If a claim is referred for a hearing to determine whether any portion of a judgment is within the jurisdiction of the agency, the administrative law judge may not issue an order requiring payment of an amount greater than the amount of the judgment.

(4) An order issued by an administrative law judge may direct specific performance on the part of the respondent, order the respondent to pay monetary damages to the claimant or dismiss the claim.

(5) An administrative law judge shall consider any amounts due to the respondent from the claimant under the terms of the contract and reduce the amount of an order by that amount.

(6) Except as provided in OAR 808-009-0200, an administrative law judge shall issue a proposed and final order under OAR 137-003-0645(4) that shall automatically become a final order 21 days after the date of issue without further notice unless;

(a) A party files timely exceptions under OAR 808-009-0400;

(b) The agency requests that the administrative law judge hold a further hearing or revise or amend the proposed order under OAR 137-003-0655(1);

(c) The agency issues an amended proposed order under OAR 137-003-0655(3); or

(d) The agency notifies the parties and the administrative law judge that the agency will issue the final order.

(7) If a limitation on damages under section (2) is based on a declaration of damages or Statement of claim that includes an itemization of claim items and the total of those items is different from the total damages claimant alleges is due from the respondent, the limitation on damages shall be based on the larger of the two totals.

Stat. Auth.: ORS 670.310 & ORS 671.670
Stats. Implemented: ORS 183.415, ORS 671.703
Hist.: LC 3, f. & ef. 2-7-77; LC 1-1981, f. & ef. 10-8-81; LC 1-1984, f. & ef. 7-17-84; Renumbered from 808-010-0045; LCB 1-1988, f. 1-26-88, cert. ef. 2-1-88; LCB 3-1991(Temp), f. & cert. ef. 12-3-91; LCB 1-1992, f.; LSCB 2-1995, f. 8-8-95, cert. ef. 8-15-95; LCB 1-2000, f. & cert. ef. 2-1-00; Renumbered from 808-004-0030; LCB 2-2000(Tenp), f. 5-31-00, cert. ef. 5-31-00 thru 11-26-00; LCB 3-2000, f. & cert. ef. 7-26-00; LCB 4-2002, f. & cert. ef. 12-4-02; LCB 2-2003, f. 1-31-03, cert. ef. 2-1-03; LCB 5-2003, f. & cert. ef. 8-1-03; LCB 6-2003, f. & cert. ef. 10-1-03

808-009-0180

Recording of Hearing

The record of agency hearings will include a tape recording of the proceeding. The agency may dispose of tape recordings of agency hearings when ninety days have passed after issuance of a final order in the matter. However, if a petition for judicial review is timely filed, the agency may not dispose of tape recordings of agency hearings until the Court of Appeals has completed its judicial review.

Stat. Auth.: ORS 183, ORS 670.310 & ORS 671.670
Stats. Implemented: ORS 183
Hist.: LC 3, f. & ef. 2-7-77; LC 1-1981, f. & ef. 10-8-81; LC 1-1984, f. & ef. 7-17-84; Renumbered from 808-010-0045; LCB 1-1988, f. 1-26-88, cert. ef. 2-1-88; LCB 3-1991(Temp), f. & cert. ef. 12-3-91; LCB 1-1992, f.; LSCB 2-1995, f. 8-8-95, cert. ef. 8-15-95; LCB 1-2000, f. & cert. ef. 2-1-00; Renumbered from 808-004-0030; Suspended by LCB 2-2000(Tenp), f. 5-31-00, cert. ef. 5-31-00 thru 11-26-00

808-009-0200

Final Order without a Proposed Order

If the parties voluntarily agree to a settlement of a claim in accordance with ORS 183.415(5) and the settlement agreement includes an agreement for future performance, the administrative law judge shall issue an intermediate order containing any necessary findings of fact and return the claim to the agency for further processing and issuance of the final order.

Stat. Auth.: ORS 670.310, & ORS 671.670
Stats. Implemented: ORS 183 & ORS 671
Hist.: LCB 2-2003, f. 1-31-03, cert. ef. 2-1-03; LCB 6-2003, f. & cert. ef. 10-1-03

808-009-0220

Petition for Reconsideration or Rehearing; Request for Stay

A petition for reconsideration or rehearing under OAR 137-003-0675 or a request for a stay under OAR 137-003-0690 of a final order on a claim issued by an administrative law judge under this division must be filed with the agency.

Stat. Auth.: ORS 670.310 & ORS 671.670
Stats. Implemented: ORS 183.415 & ORS 671.703
Hist.: LCB 2-2000(Tenp), f. 5-31-00, cert. ef. 5-31-00 thru 11-26-00; LCB 3-2000, f. & cert. ef. 7-26-00; LCB 4-2002, f. & cert. ef. 12-4-02; LCB 6-2003, f. & cert. ef. 10-1-03

Contested Case Hearings, Enforcement

808-009-0300

Hearing Notice and Limitation on Final Civil Penalty Order

A notice of hearing shall contain the amount of the civil penalty sought by the agency. The administrative law judge shall not issue a final civil penalty order in an amount greater than that shown in the notice of hearing.

Stat. Auth.: ORS 183, ORS 670.310 & ORS 671.670
Stats. Implemented: ORS 183.415
Hist.: LCB 1-1988, f. 1-26-88, cert. ef. 2-1-88; LCB 2-1990, f. 7-27-90, cert. ef. 8-1-90; LSCB 2-1995, f. 8-8-95, cert. ef. 8-15-95; LCB 1-2000, f. & cert. ef. 2-1-00, Renumbered from 808-005-0010

808-009-0320

Administrative Law Judge; Entry of Agency Evidence

Contested case enforcement hearings may be held before an administrative law judge of the agency. The agency's evidence may be entered into the record by the administrative law judge or by another representative of the agency.

Stat. Auth.: ORS 183, ORS 670.310 & ORS 671.670
Stats. Implemented: ORS 183.415
Hist.: LCB 1-1988, f. 1-26-88, cert. ef. 2-1-88; LCB 2-1990, f. 7-27-90, cert. ef. 8-1-90; LSCB 2-1995, f. 8-8-95, cert. ef. 8-15-95; LCB 1-2000, f. & cert. ef. 2-1-00, Renumbered from 808-005-0010

808-009-0335

Authorized Representation of a Party

A party or limited party participating in an enforcement contested case hearing before the agency may be represented by an authorized representative, as provided in OAR 137-003-0008.

Stat. Auth.: ORS 183, ORS 670.310 & ORS 671.670
Stats. Implemented: ORS 183.455
Hist.: LCB 1-1988, f. 1-26-88, cert. ef. 2-1-88; LCB 4-1988, f. 11-23-88, cert. ef. 12-1-88; LCB 1-1990(Temp), f. & cert. ef. 3-28-90; LCB 2-1990, f. 7-27-90, cert. ef. 8-1-90; LCB 1-2000, f. & cert. ef. 2-1-00; Renumbered from 808-001-0035

808-009-0340

Agency Representation by Officer or Employee

(1) Subject to the approval of the Attorney General as provided in ORS 183.452, agency officers and employees may appear, but not make legal argument, on behalf of the agency in the following types of hearings conducted by the agency:

(a) Hearings involving the possible imposition of civil penalties for violations of statutes or regulations;

(b) Hearings involving refusal to issue, refusal to renew or suspension, where the license would be issued or renewed or the suspension lifted upon correction of the deficiency or payment of the penalty;

(c) Hearings involving a refusal to issue, refusal to renew or suspension of a license for failure to pay a civil penalty, failure to pay a claim or for violations of employer status regulations, including ORS Chapters 656, 657 and 316, where the license would be issued or renewed or the suspension lifted upon correction of the deficiency or payment of the penalty;

(d) Hearings involving the placement of a licensee on probation and for hearings involving suspension, revoking or refusal to renew for failing to fulfill the terms of the probation per ORS 671.614;

(e) Hearings involving suspensions without prior hearing as stated in ORS 671.610(2), where the suspension would be lifted upon correction of the deficiency or payment of the penalty; and

(f) In other compliance hearings as approved in writing by the Attorney General on an individual case basis.

(2) The agency representative may not make legal argument on behalf of the agency.

(a) “Legal argument” includes argument on:

(A) The jurisdiction of the agency to hear the contested case;

(B) The constitutionality of a statute or rule or the application of a constitutional requirement to an agency; and

(C) The application of court precedent to the facts of the particular contested case proceeding.

(b) “Legal argument” does not include presentation of motions, evidence, examination and cross-examination of witnesses or presentation of factual argument or arguments on:

(A) The application of the statutes or rules to the facts in the contested case;

(B) Comparison of prior actions of the agency in handling similar situations;

(C) The literal meaning of the statute or rules directly applicable to the issues in the contested case;

(D) The admissibility of evidence;

(E) The correctness of procedures being followed in the contested case hearing.

(3) When an agency officer or employee represents the agency in a hearing, the presiding officer shall advise the representative of the manner in which objections may be made and matters preserved for appeal. This advice is of a procedural nature and does not change applicable law on waiver on the duty to make timely objection. Where an objection may involve legal argument, the presiding officer shall provide reasonable opportunity for the agency officer or employee to consult legal counsel and permit the legal counsel to file written legal argument within a reasonable time after conclusion of the hearing.

Stat. Auth.: ORS 183, 670.310 & 671.670
Stats. Implemented: ORS 183.452
Hist.: LCB 1-1988, f. 1-26-88, cert. ef. 2-1-88; LCB 4-1988, f. 11-23-88, cert. ef. 12-1-88; LCB 1-1990(Temp), f. & cert. ef. 3-28-90; LCB 2-1990, f. 7-27-90, cert. ef. 8-1-90; LCB 1-2000, f. & cert. ef. 2-1-00; Renumbered from 808-001-0035; LCB 7-2008(Temp), f. & cert. ef. 8-8-08 thru 9-30-08; Administrative correction 10-21-08; LCB 11-2008, f. & cert. ef. 11-6-08

 

Exceptions

808-009-0400

Exceptions to Agency Orders, Claims

(1) After a contested case claim hearing, claimant or licensee may file written exceptions if they believe that the administrative law judge has made a procedural error or that the proposed order is not supported by evidence received at the hearing.

(2) To be considered:

(a) The first exceptions must be received by the agency within 21 days of the date of mailing the proposed order.

(b) If one party files timely exceptions, exceptions by the opposing party, if that party chooses to file them, must be received by the agency within 14 days after the date the agency mails a copy of the first exceptions to the opposing party.

(3)(a) If written exceptions are not timely received, the order will become final under OAR 808-009-0160.

(b) If exceptions are timely received, the matter will be set for consideration by the Board at a regularly scheduled Board meeting for which agenda space is available.

(4) The exceptions must substantially conform to the requirements set forth in OAR 808-009-0430.

(5) Copies of exceptions filed will be mailed to the other side who may respond to the exceptions. Response and any written argument for or against the proposed order will be accepted up to 15 days prior to the Board meeting date if the original exceptions were timely received.

(6)(a) If a party filing exceptions intends to rely on oral testimony given at the hearing, the party must include in the exceptions:

(A) A notice of the intention to rely on oral testimony, and

(B) A request for a copy of the recording of the hearing with the fee required under OAR 808-001-0020.

(b) After the agency receives a party's exceptions containing a notice of an intention to rely on oral testimony under subsection (a) of this section, the agency must send a copy of the recording of the hearing to the other party to the claim at no charge unless that party also filed exceptions that included a notice of intention to rely on oral testimony.

(c) The party that filed the notice of intention to rely on oral testimony must prepare a typed transcript of the portions of the hearing testimony that the party contends support the exceptions filed. The party must deliver the transcript to the agency 21 days after the date of mailing of the recording of the hearing by the agency to the party.

(d) The agency must mail a copy of the transcript to the other party to the claim.

(7)(a) The party opposing the exceptions may prepare a typed transcript of the portions of the hearing testimony that the party contends support opposition to the exceptions. The opposing party must deliver the transcript to the agency 21 days after the date the agency mailed the transcript under subsection (6)(d) of this rule.

(b) The agency must mail a copy of the transcript prepared under this section to the party that filed the exceptions.

(8) The Board may refuse to consider evidence of oral testimony submitted by a party if the party fails to comply with the requirements of sections (6) and (7) of this rule.

(9) Claimant and respondent may appear before the members of the Board to argue for or against the proposed order.

(10) The agency may waive or extend the time limitations in sections (5) through (7) of this rule on its own motion or on a showing of good cause by the person requesting the waiver.

Stat. Auth.: ORS 183, 670.310 & 671.670
Stats. Implemented: ORS 183.413 - 183.470
Hist.: LCB 1-1988, f. 1-26-88, cert. & ef. 2-1-88; LCB 2-1990, f. 7-27-90, cert. ef. 8-1-90; LCB 1-2000, f. & cert. ef. 2-1-00, Renumbered from 808-001-0025; LCB 4-2002, f. & cert. ef. 12-4-02; LCB 2-2003, f. 1-31-03, cert. ef. 2-1-03; LCB 6-2003, f. & cert. ef. 10-1-03; LCCB 3-2007, f. & cert. ef. 8-1-07

808-009-0420

Exceptions to Agency Orders, Enforcement

(1) After a contested case enforcement hearing, the respondent may file written exceptions if the respondent does not believe the proposed order is supported by the evidence received at the hearing. To be considered, exceptions must be received by the agency within 21 days of the date of mailing of the proposed order. If written exceptions are not timely received, the agency may issue a final order as proposed.

(2) Exceptions must substantially conform to the requirements of OAR 808-009-0430.

(3) If exceptions are timely received, the matter will be set for consideration by the Board at a regular meeting of the Board. Written argument in opposition to the proposed order will be accepted up to 15 days before the Board meeting date if the original exceptions were timely received. The Board may waive the 15-day requirement.

(4) The respondent may appear before the Board to argue against the proposed order, if the agency receives written notice of intent to do so before the Board meeting date. Oral argument will be permitted only if the original exceptions were timely received.

Stat. Auth.: ORS 183, ORS 670.310 & ORS 671.670
Stats. Implemented: ORS 183.413 - ORS 183.470
Hist.: LCB 1-1988, f. 1-26-88, cert. ef. 2-1-88; LCB 2-1990, f. 7-27-90, cert. ef. 8-1-90; LSCB 2-1995, f. 8-8-95, cert. ef. 8-15-95; LCB 1-2000, f. & cert. ef. 2-1-00, Renumbered from 808-005-0010; LCB 4-2002, f. & cert. ef. 12-4-02; LCB 2-2003, f. 1-31-03, cert. ef. 2-1-03

808-009-0430

Form of Exceptions to Agency Order

(1) Exceptions to an agency order filed by a party to a claim under OAR 808-009-0400 or a respondent under 808-009-0420 shall conform to the following requirements:

(a) Exceptions shall be typed or legibly printed on 8-1/2 by 11" sheets of paper.

(b) The first page of the exceptions must be titled "Exceptions to Proposed Order." If the exceptions are filed in a claim, the first page shall show the claim number, the names of the parties to the claim and the party submitting the exceptions at the top of the page. If the exceptions are filed in an enforcement action, the first page shall show the name of the respondent at the top of the page.

(c) Each page of the exceptions shall be numbered at the bottom of the page.

(d) For each finding of fact in the proposed order that the party alleges is not supported by the evidence in the record the following information shall be included in the exceptions:

(A) The pages on which the finding of fact appear and the number, if any of the finding of fact;

(B) The text of the finding of fact; and

(C) An explanation or argument supporting the party's contention that the evidence in the record does not support the finding of fact.

(e) For each conclusion in the proposed order that the party alleges is based on an erroneous interpretation or application of a statute or administrative rule or is contrary to an appellate court decision the following information must be included in the exceptions:

(A) The pages on which the conclusion and the opinion that supports it appear;

(B) The text of the conclusion; and

(C) An explanation or argument supporting the party's contention that the conclusion is based on an erroneous interpretation or application of a statute or administrative rule or is contrary to an appellate court decision.

(f) For each procedural error committed by the administrative law judge that the party contends directly affected the decision in the proposed order in a manner prejudicial to the party the following information shall be included in the exceptions:

(A) A description of the procedural error; and

(B) An explanation or argument supporting the party's contention that the procedural error affected the decision and was prejudicial to the party filing the exceptions.

(g) If the party intends to rely on oral testimony at the hearing, a notification that the party intends to rely on oral testimony shall be included in the exceptions.

(h) The party submitting the exceptions shall sign and date the exceptions.

(2) The Board may refuse to consider exceptions that do not substantially meet the requirements of section (1) of this rule.

Stat. Auth.: ORS 670.310, ORS 671.670, ORS 671.703
Stats. Implemented: ORS 183 & ORS 671.703
Hist.: LCB 4-2002, f. & cert. ef. 12-4-02; LCB 6-2003, f. & cert. ef. 10-1-03

808-009-0440

Meeting of Board to Consider Appeals

(1) Claimant and respondent may appear before the members of the Board to argue for or against the proposed order.

(2) The Board may limit the time allowed for oral argument by a party before the Board to ten minutes.

(3) At the Board meeting, the Board will consider documentary evidence received at the hearing and exceptions and written or oral argument for or against the proposed order, but the Board will not consider new or additional evidence.

(4) After hearing oral argument, the Board may conduct its deliberations privately, under authority of ORS 192.690(1). If the Board conducts its deliberations privately, it will return to public meeting for any motions and voting.

(5) The Board may affirm the findings and proposed order, modify either or both, or send the case back to a new hearing to receive additional evidence. Unless the case is sent back to a new hearing, the agency shall issue a final order after the Board meeting.

(6) Final orders are subject to judicial review as provided under ORS chapter 183.

Stat. Auth.: ORS 183, ORS 670.310 & ORS 671.670
Stats. Implemented: ORS 183.413 - ORS 183.470
Hist.: LCB 1-1988, f. 1-26-88, cert. ef. 2-1-88; LCB 2-1990, f. 7-27-90, cert. ef. 8-1-90; LCB 1-2000, f. & cert. ef. 2-1-00; Renumbered from 808-004-0050; LCB 4-2002, f. & cert. ef. 12-4-02

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