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CONSTRUCTION CONTRACTORS BOARD

 

DIVISION 9

CONTESTED CASE HEARINGS AND APPEAL COMMITTEE

Contested Case Hearings, Claims

812-009-0010

Application of Rules

Subject to OAR 812-004-0590, complaints filed before July 1, 2011, arising under ORS 701.139-701.180 are governed by:

(1) OAR 812-009-0020–812-009-0220 and 137-003-0501–137-003-0700, with respect to contested cases;

(2) OAR 812-009-0400, 812-009-0430, and 812-009-0435, with respect to exceptions; and

(3) OAR 812-009-0440, with respect to meetings of the board’s Appeal Committee.

Stat. Auth.: ORS 670.310, 701.145, 701.235 & 1999 OL Ch. 849, Sec. 8
Stats. Implemented: ORS 183.413 to 183.470 & 701.145
Hist.: CCB 1-2000(Temp), f. 1-20-00, cert. ef. 1-24-00 thru 7-22-00; CCB 4-2000, f. & cert. ef. 5-2-00; CCB 6-2002 f. 6-10-02 cert. ef. 7-1-02; CCB 15-2006, f. 12-12-06, cert. ef. 1-1-07; CCB 7-2011(Temp), f. & cert. ef. 7-8-11 thru 1-4-12; CCB 11-2011, f. 9-29-11, cert. ef. 10-1-11; CCB 8-2012, f. 10-26-12, cert. ef. 11-1-12

812-009-0020

Amendment to Statement of Damages

(1) If the agency refers a complaint to the Office of Administrative Hearings for a hearing on the amount the respondent owes the complainant, the complainant may amend the amount the complainant alleges the respondent owes the complainant by filing an amended statement of damages. An amended statement of damages must be delivered to the administrative law judge or Office of Administrative Hearings as required by OAR 137-003-0520 and 812-009-0085. An amended statement 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 before the scheduled date of a hearing on the matter.

(2) An amended statement of damages filed under section (1) of this rule must be on a form provided by the agency or on a form that substantially duplicates the form provided by the agency. The amended statement of damages must state the amount alleged to be owed by the respondent, limited to items of complaint in the Breach of Contract Complaint and complaint items added up to and through the initial on-site meeting. The amended statement of damages must be signed by the complainant.

(3) An amended statement of damages making a significant change in the amount the complainant alleges that the respondent owes the complainant 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 670.310, 701.235 & 1999 Or. Laws, ch. 849, sect. 8
Stats. Implemented: ORS 183.413, 183.415 & 701.145
Hist.: CCB 8-1998, f. 10-29-98, cert. ef. 11-1-98; CCB 1-2000(Temp), f. 1-20-00, cert. ef. 1-24-00 thru 7-22-00; CCB 3-2000(Temp), f. 3-10-00, cert. ef. 3-10-00 thru 7-22-00; CCB 4-2000, f. & cert. ef. 5-2-00; CCB 10-2002, f. & cert. ef. 11-20-02; CCB 7-2003, f. & cert. ef. 8-8-03; CCB 15-2006, f. 12-12-06, cert. ef. 1-1-07; CCB 9-2008, f. 6-11-08, cert. ef. 7-1-08

812-009-0050

Providing Required Information to Parties

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

Stat. Auth.: ORS 670.310, 701.235 & 1999 Or. Laws, ch. 849, sec. 8
Stats. Implemented: ORS 183.413, 183.415, 701.133 & 701.145
Hist.: CCB 3-2000(Temp), f. 3-10-00, cert. ef. 3-10-00 thru 7-22-00; CCB 4-2000, f. & cert. ef. 5-2-00, CCB 7-2003, f. & cert. ef. 8-8-03; CCB 15-2006, f. 12-12-06, cert. ef. 1-1-07; CCB 9-2008, f. 6-11-08, cert. ef. 7-1-08

812-009-0060

Hearing Postponement

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

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

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

(3) The party provides evidence of good cause why it cannot attend the scheduled hearing.

Stat. Auth.: ORS 670.310, 701.235 & OL 1999, Ch. 849, Sec. 8
Stats. Implemented: ORS 183.413 - 183.470 & 701.145
Hist.: 1BB 5, f. 6-15-76, ef. 7-1-76; 1BB 1-1978, f. & ef. 5-23-78; 1BB 3-1978, f. & ef. 12-4-78; 1BB 2-1979, f. & ef. 12-19-79; 1BB 1-1980, f. & ef. 2-29-80; 1BB 6-1980, f. & ef. 11-4-80; 1BB 1-1983, f. & ef. 3-1-83; CCB 8-1998, f. 10-29-98, cert. ef. 11-1-98, Renumbered from 812-001-0005; CCB 1-2000(Temp), f. 1-20-00, cert. ef. 1-24-00 thru 7-22-00; CCB 3-2000(Temp), f. 3-10-00, cert. ef. 3-10-00 thru 7-22-00; CCB 4-2000, f. & cert. ef. 5-2-00; CCB 5-2012, f. 4-25-12, cert. ef. 5-1-12

812-009-0070

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 an administrative law judge suspends or cancels a hearing under this rule, the administrative law judge must refer the complaint to the agency with a memorandum recommending that processing of the complaint be suspended under ORS 701.145 and OAR 812-004-0520 and stating the basis of the recommendation. A copy of this memorandum must be served on the parties.

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

(a) Suspend processing the complaint; or

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

Stat. Auth.: ORS 670.310 & 701.235
Stats. Implemented: ORS 701.133 & 701.145
Hist.: CCB 1-2000(Temp), f. 1-20-00, cert. ef. 1-24-00 thru 7-22-00; CCB 4-2000, f. & cert. ef. 5-2-00; CCB 2-2001, f. & cert. ef. 4-6-01; CCB 2-2003, f. & cert. ef. 3-4-03; CCB 7-2003, f. & cert. ef. 8-8-03; CCB 15-2006, f. 12-12-06, cert. ef. 1-1-07; CCB 9-2008, f. 6-11-08, cert. ef. 7-1-08

812-009-0085

Filing of Documents

Unless otherwise provided in these rules, the agency waives the right to receive copies of documents filed in a proceeding conducted by an administrative law judge, under OAR 137-003-0520.

Stat. Auth.: ORS 670.310, 701.235 & OL 1999, Ch. 849, Sec. 8
Stats. Implemented: ORS 183.413 - 183.470 & 701.145
Hist.: CCB 1-2000(Temp), f. 1-20-00, cert. ef. 1-24-00 thru 7-22-00; CCB 4-2000, f. & cert. ef. 5-2-00; CCB 5-2012, f. 4-25-12, cert. ef. 5-1-12

812-009-0090

Discovery and Subpoenas

(1) The agency delegates to the administrative law judge assigned to hear a complaint the authority to:

(a) Order and control discovery under OAR 137-003-0566, 137-003-0567, 137-003-0568 and 137-003-0569, related to the hearing on the complaint, except an administrative law judge may not authorize a party to take a deposition of agency staff or board members.

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

(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, 701.235 & OL 1999, Ch. 849, Sec. 8
Stats. Implemented: ORS 183.425, 183.440, 183.445, 183.450, 701.145, 701.149
Hist.: CCB 1-2000(Temp), f. 1-20-00, cert. ef. 1-24-00 thru 7-22-00; CCB 3-2000(Temp), f. 3-10-00, cert. ef. 3-10-00 thru 7-22-00; CCB 4-2000, f. & cert. ef. 5-2-00; CCB 7-2003, f. & cert. ef. 8-8-03; CCB 15-2006, f. 12-12-06, cert. ef. 1-1-07; CCB 9-2008, f. 6-11-08, cert. ef. 7-1-08; CCB 5-2012, f. 4-25-12, cert. ef. 5-1-12

812-009-0100

Burden of Proof and Failure to Meet Burden

The complainant must submit sufficient credible evidence into the record to support an award of damages under OAR 812-004-0535. If the complainant does not carry this burden of proof, the administrative law judge must dismiss the complaint.

Stat. Auth.: ORS 670.310 & 701.235
Stats. Implemented: ORS 183 & 701
Hist.: CCB 8-1998, f. 10-29-98, cert. ef. 11-1-98; CCB 3-2000(Temp), f. 3-10-00, cert. ef. 3-10-00 thru 7-22-00; CCB 4-2000, f. & cert. ef. 5-2-00; CCB 7-2000, f. 6-29-00, cert. ef. 7-1-00; CCB 2-2001, f. & cert. ef. 4-6-01; CCB 2-2003, f. & cert. ef. 3-4-03; CCB 7-2003, f. & cert. ef. 8-8-03; CCB 2-2004, f. 2-27-04, cert. ef. 3-1-04; CCB 15-2006, f. 12-12-06, cert. ef. 1-1-07

812-009-0120

Determination of Validity of Complaint

In determining the validity of the complaint, the administrative law judge must determine:

(1) Whether the complaint arose out of a transaction within the scope of ORS Chapter 701;

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

(3) Whether the record of the complaint supports an award of damages under OAR 812-004-0535.

Stat. Auth.: ORS 670.310 & 701.235
Stats. Implemented: ORS 183 & 701
Hist.: CCB 8-1998, f. 10-29-98, cert. ef. 11-1-98; CCB 3-2000(Temp), f. 3-10-00, cert. ef. 3-10-00 thru 7-22-00; CCB 4-2000, f. & cert. ef. 5-2-00; CCB 7-2000, f. 6-29-00, cert. ef. 7-1-00; CCB 8-2001, f. 12-12-01, cert. ef. 1-1-02; CCB 2-2003, f. & cert. ef. 3-4-03; CCB 7-2003, f. & cert. ef. 8-8-03; CCB 2-2004, f. 2-27-04, cert. ef. 3-1-04; CCB 15-2006, f. 12-12-06, cert. ef. 1-1-07

812-009-0140

Failure to Appear

(1) “Order” as used in this rule means a proposed and final order an administrative law judge is authorized to issue under OAR 812-009-0160 or a final order an administrative law judge is authorized to issue under 812-009-0200.

(2) If the administrative law judge notified the parties to a complaint of the time and place of a hearing on the complaint and a party did not appear at the hearing, the administrative law judge may enter an order by default under OAR 137-003-0670(1)(c) that is adverse to a party only upon a prima facie case made on the record as required by 137-003-0670(3).

(3) If a complainant does not appear at a hearing, an administrative law judge may dismiss a complaint under section (2) of this rule if the administrative law judge finds that the record does not contain sufficient evidence to support the complaint.

Stat. Auth.: ORS 670.310, 701.235 & 1999 Or. Laws, ch. 849, sect. 8
Stats. Implemented: ORS 183.415, 183.417, 183.450, 183.460, 183.464, 183.470, 701.145 & 701.149
Hist.: CCB 8-1998, f. 10-29-98, cert. ef. 11-1-98; CCB 1-2000(Temp), f. 1-20-00, cert. ef. 1-24-00 thru 7-22-00; CCB 3-2000(Temp), f. 3-10-00, cert. ef. 3-10-00 thru 7-22-00; CCB 4-2000, f. & cert. ef. 5-2-00; CCB 8-2000(Temp), f. 7-21-00, cert. ef. 7-21-00 thru 1-15-01; CCB 2-2001, f. & cert. ef. 4-6-01; CCB 6-2001, f. & cert. ef. 9-27-01; CCB 5-2002, f. 5-28-02, cert. ef. 6-1-02; CCB 7-2003, f. & cert. ef. 8-8-03; CCB 15-2006, f. 12-12-06, cert. ef. 1-1-07; CCB 7-2007, f. 12-13-07, cert. ef. 1-1-08; CCB 9-2008, f. 6-11-08, cert. ef. 7-1-08

812-009-0160

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 an administrative law judge is authorized to issue under section (6) of this rule or a final order an administrative law judge is authorized to issue under OAR 812-009-0200.

(2) Subject to sections (7) and (8) of this rule, if a complaint is referred for a hearing to determine the amount, if any, that a respondent owes a complainant, the administrative law judge may not issue an order in an amount greater than the total amount the complainant alleges the respondent owes the complainant in:

(a) The most recent statement of damages or amended statement of damages filed under OAR 812-004-0540, 812-004-0550 or 812-009-0020; or

(b) The Breach of Contract Complaint filed under OAR 812-004-0340, if no statement of damages was filed.

(3) If a complaint is referred for a hearing to determine whether any portion of a judgment is within the agency’s jurisdiction, 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 complainant or dismiss the complaint.

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

(6) Except as provided in section (8) of this rule and OAR 812-009-0200, an administrative law judge must issue a proposed and final order under 137-003-0645(4) that must automatically become a final order 21 days after the date of issue without further notice unless:

(a) A party files timely exceptions under OAR 812-009-0400;

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

(c) The administrative law judge withdraws and corrects the order under OAR 137-003-0655(1);

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

(e) 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) of this rule is based on a statement of damages or Breach of Contract Complaint that includes an itemization of complaint items and the total of those items is different from the total damages the complainant alleges is due from the respondent, the limitation on damages must be based on the larger of the two totals.

(8) If a limitation of damages under section (2) of this rule is based on a statement of damages or Breach of Contract Complaint that does not include a request for an award of the complaint processing fee allowed as damages under OAR 812-004-0250, the limitation on damages allowed under section (2) of this rule shall be increased by the amount of the complaint processing fee paid by the complainant under 812-004-0110 and 812-004-0400.

(9) If a complaint is referred for a hearing solely to determine if the Board has jurisdiction over the complaint and the administrative law judge finds that the Board has jurisdiction over the complaint, the administrative law judge must issue an intermediate order that the Board resume processing the complaint. The Board may accept the order to resume processing or issue a proposed and final order under OAR 137-003-0060 to dismiss the complaint for lack of jurisdiction.

Stat. Auth.: ORS 670.310 & 701.235
Stats. Implemented: ORS 183.415. 183.450, 183.460, 183.464, 183.470, 701.145 & 701.146
Hist.: CCB 8-1998, f. 10-29-98, cert. ef. 11-1-98; CCB 1-2000(Temp), f. 1-20-00, cert. ef. 1-24-00 thru 7-22-00; CCB 3-2000(Temp), f. 3-10-00, cert. ef. 3-10-00 thru 7-22-00; CCB 4-2000, f. & cert. ef. 5-2-00; CCB 8-2000(Temp), f. 7-21-00, cert. ef. 7-21-00 thru 1-15-01; CCB 9-2000, f. & cert. ef. 8-24-00; CCB 5-2002, f. 5-28-02, cert. ef. 6-1-02; CCB 10-2002, f. & cert. ef. 11-20-02; CCB 7-2003, f. & cert. ef. 8-8-03; CCB 8-2004, f. & cert. ef. 10-1-04; CCB 7-2005, f. 12-7-05, cert. ef. 1-1-06; CCB 15-2006, f. 12-12-06, cert. ef. 1-1-07; CCB 4-2007, f. 6-28-07, cert. ef. 7-1-07; CCB 9-2008, f. 6-11-08, cert. ef. 7-1-08

812-009-0185

Amended Proposed Order or Final Order after Hearing

In accordance with OAR 137-003-0655(7), the agency exempts from the 90-day requirement for an amended proposed order or final order all cases in which written exceptions are filed with the board. In these cases, 90 days normally is an insufficient time in which to issue an amended proposed order or final order.

Stat. Auth.: ORS 183.341, 670.310, 701.235 & 701.992
Stats. Implemented: ORS 183 & 701
Hist.: CCB 5-2012, f. 4-25-12, cert. ef. 5-1-12

812-009-0200

Final Order Without a Proposed Order

(1) Notwithstanding OAR 812-009-0160(6), an administrative law judge must issue a final order under OAR 137-003-0665 in a contested case without issuing a proposed order if:

(a) The total amount alleged to be due to any complainant in a hearing does not exceed $2,500;

(b) The parties voluntarily agree to a settlement of a complaint in accordance with ORS 183.417(11), except as provided in section (2) of this rule; or

(c) The hearing was requested by the respondent after the parties voluntarily agreed to a settlement of a complaint and the following conditions exist:

(A) The settlement’s essential terms are limited to the respondent’s agreement to pay money to the complainant in exchange for the complainant’s release of the complaint; and

(B) The amount of the final order does not exceed the amount the respondent agreed to pay under the settlement agreement.

(2) If the parties voluntarily agree to a settlement of a complaint in accordance with ORS 183.417(11) and the settlement agreement includes an agreement for future performance, the administrative law judge must issue an intermediate order containing any necessary findings of fact and return the complaint to the agency for further processing and issuance of the final order.

Stat. Auth.: ORS 670.310, 701.145, 701.235 & 1999 OL, Ch. 849, Sec. 8
Stats. Implemented: ORS 183.415, 183.417, 183.450, 183.460, 183.464, 183.470 & 701.145
Hist.: CCB 8-1998, f. 10-29-98, cert. ef. 11-1-98; CCB 1-2000(Temp), f. 1-20-00, cert. ef. 1-24-00 thru 7-22-00; CCB 3-2000(Temp), f. 3-10-00, cert. ef. 3-10-00 thru 7-22-00; CCB 4-2000, f. & cert. ef. 5-2-00; CCB 7-2002, f. 6-26-02 cert. ef. 7-1-02; CCB 7-2003, f. & cert. ef. 8-8-03; CCB 15-2006, f. 12-12-06, cert. ef. 1-1-07; CCB 9-2008, f. 6-11-08, cert. ef. 7-1-08

812-009-0220

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 complaint issued by an administrative law judge under this division must be filed with the agency.

Stat. Auth.: ORS 670.310, 701.235 & OL 1999, Ch. 849, Sec. 8
Stats. Implemented: ORS 183.482, 701.133 & 701.145
Hist.: CCB 1-2000(Temp), f. 1-20-00, cert. ef. 1-24-00 thru 7-22-00; CCB 3-2000(Temp), f. 3-10-00, cert. ef. 3-10-00 thru 7-22-00; CCB 4-2000, f. & cert. ef. 5-2-00; CCB 7-2003, f. & cert. ef. 8-8-03; CCB 15-2006, f. 12-12-06, cert. ef. 1-1-07; CCB 9-2008, f. 6-11-08, cert. ef. 7-1-08

Contested Case Hearings, Enforcement

812-009-0300

Hearing Notice and Limitation on Final Civil Penalty Order

A notice of hearing shall contain the duration of any suspension and the amount of any 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, except as follows. If the proposed sanction is not the maximum potential sanction, the agency may, in the notice, state the maximum potential sanction for each violation and impose up to the maximum potential sanction, without amending the notice.

Stat. Auth.: ORS 183.310, 670.310, 701.235 & 701.992
Stats. Implemented: ORS 183 & 701
Hist.: CCB 8-1998, f. 10-29-98, cert. ef. 11-1-98; CCB 3-2000(Temp), f. 3-10-00, cert. ef. 3-10-00 thru 7-22-00; CCB 4-2000, f. & cert. ef. 5-2-00; CCB 7-2003, f. & cert. ef. 8-8-03; CCB 5-2012, f. 4-25-12, cert. ef. 5-1-12

812-009-0320

Entry of Agency Evidence

Contested case enforcement hearings may be held before an administrative law judge. 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 670.310 & 701.235
Stats. Implemented: ORS 701.133 & 701.145
Hist.: CCB 8-1998, f. 10-29-98, cert. ef. 11-1-98; CCB 3-2000(Temp), f. 3-10-00, cert. ef. 3-10-00 thru 7-22-00; CCB 4-2000, f. & cert. ef. 5-2-00; CCB 7-2003, f. & cert. ef. 8-8-03; CCB 7-2005, f. 12-7-05, cert. ef. 1-1-06; CCB 9-2008, f. 6-11-08, cert. ef. 7-1-08

812-009-0340

Agency Representation by Officer or Employee

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 refusals to issue, reissue or renew, or suspensions, which will be lifted upon correction of a deficiency, payment of a penalty or payment of a construction debt, based upon:

(A) ORS 701.098(4)(a)(A) (no bond);

(B) ORS 701.098(4)(a)(B) (no insurance);

(C) ORS 701.098(4)(a)(F) (unpaid construction debt);

(D) ORS 701.102 (unpaid construction debt);

(E) ORS 701.106, where the violation is based on a final order issued by:

(i) Department of Consumer and Business Services, Building Codes Division;

(ii) Department of Consumer and Business Services, Workers’ Compensation Division;

(iii) Department of Consumer and Business Services, Oregon-OSHA,

(iv) Employment Department;

(v) Department of Revenue; or

(vi) Landscape Contractors Board.

(F) Failure to pay an outstanding obligation, as required by OAR 812-005-0280(2);

(G) Failure to obtain or maintain an increased bond, as required by ORS 701.068(5) or (6).

(H) Failure to provide information as required under ORS 701.046 and OAR 812-003-0260.

(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.

Stat. Auth.: ORS 183.310 - 183.550, 670.310 & 701.235
Stats. Implemented: ORS 183.450
Hist.: BB 3-1987, f. 12-30-87, cert. ef. 1-1-88; CCB 5-1993, f. 12-7-93, cert. ef. 12-8-93; CCB 1-1994, f. 6-23-94, cert. ef. 7-1-94; Renumbered from 812-001-0006, CCB 8-1998, f. 10-29-98, cert. ef. 11-1-98; CCB 7-2000, f. 6-29-00, cert. ef. 7-1-00; CCB 9-2008, f. 6-11-08, cert. ef. 7-1-08; CCB 4-2010(Temp), f. & cert. ef. 2-3-10 thru 8-1-10; CCB 7-2010, f. & cert. ef. 4-28-10; CCB 6-2014, f. 6-26-14, cert. ef. 7-1-14

812-009-0350

Amended Proposed Order or Final Order after Hearing

In accordance with OAR 137-003-0655(7), the agency exempts from the 90-day requirement for an amended proposed order or final order all cases in which written exceptions are filed with the board. In these cases, 90 days normally is an insufficient time in which to issue an amended proposed order or final order.

Stat. Auth.: ORS 183.341, 670.310, 701.235 & 701.992
Stats. Implemented: ORS 183 & 701
Hist.: CCB 5-2012, f. 4-25-12, cert. ef. 5-1-12

Exceptions; Appeal Committee

812-009-0400

Exceptions to Agency Orders, Dispute Resolution Complaints

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

(2)(a) To be considered, the first exceptions must be received by the agency within 21 days from the date of mailing the proposed order.

(b) If one party files timely exceptions, the opposing party may also file exceptions if those exceptions are received by the agency within 14 days from 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 812-009-0160.

(b) If exceptions are timely received, the matter will be set for consideration by the Board’s Appeal Committee at a regular meeting of the committee.

(4) The exceptions must substantially conform to the requirements of OAR 812-009-0430.

(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 before the case is referred to the Committee for scheduling 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 audio recording of the hearing with the fee required under OAR 812-001-0160.

(b) After receipt, exceptions containing a notice of an intention to reply on oral testimony under subsection (6)(a) of this rule, the agency must send a copy of the audio recording of the hearing to the party that did not file the exceptions without 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. The party must deliver the transcript to the agency within 21 days from the date the agency mails the audio recording of the hearing to the party.

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

(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 within 21 days from 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 section (7) of this rule to the party that filed the exceptions.

(8) The Appeal Committee may refuse to consider evidence of oral testimony submitted by a party if the party does not comply with the requirements of sections (6) and (7) of this rule.

(9) The complainant and respondent may appear before the members of the Committee to argue for or against the proposed order.

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

Stat. Auth.: ORS 670.310 & 701.235
Stats. Implemented: ORS 183.460 & 701.260
Hist.: CCB 8-1998, f. 10-29-98, cert. ef. 11-1-98; CCB 3-2000(Temp), f. 3-10-00, cert. ef. 3-10-00 thru 7-22-00; CCB 4-2000, f. & cert. ef. 5-2-00; CCB 7-2000, f. 6-29-00, cert. ef. 7-1-00; CCB 2-2001, f. & cert. ef. 4-6-01; CCB 2-2003, f. & cert. ef. 3-4-03; CCB 7-2003, f. & cert. ef. 8-8-03; CCB 9-2004, f. & cert. ef. 12-10-04; CCB 7-2005, f. 12-7-05, cert. ef. 1-1-06; CCB 15-2006, f. 12-12-06, cert. ef. 1-1-07; CCB 7-2008, f. 4-28-08, cert. ef. 5-1-08

812-009-0420

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) If exceptions are timely received, the matter will be set for consideration by the Appeal Committee at its next meeting for which agenda space is available.

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

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

(B) A request for a copy of the audio recording of the hearing with the fee required under OAR 812-001-0160.

(b) The respondent must prepare a typed transcript of the portions of the hearing testimony that the respondent contends support the exceptions. The respondent must deliver the transcript to the agency within 21 days from the date the agency mails the copy of the audio recording of the hearing to the respondent.

(4) The Appeal Committee may refuse to consider evidence of oral testimony submitted by respondent if the respondent does not comply with the requirements of section (3) of this rule.

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

Stat. Auth.: ORS 183.310, 670.310 & 701.235
Stats. Implemented: ORS 183.460 & 701.260
Hist.: CCB 8-1998, f. 10-29-98, cert. ef. 11-1-98; CCB 7-2005, f. 12-7-05, cert. ef. 1-1-06; CCB 7-2008, f. 4-28-08, cert. ef. 5-1-08

812-009-0430

Form of Exceptions to Agency Order in a Complaint

(1) Exceptions to an agency order filed by a party to a complaint under OAR 812-009-0400 or a respondent under 812-009-0420 must conform to the following requirements:

(a) Exceptions must 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 complaint, the first page must show the file number, the names of the parties to the complaint and the party submitting the exceptions at the top of the page. If the exceptions are filed in an enforcement action, the first page must show the name of the respondent at the top of the page.

(c) Each page of the exceptions must 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 must 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 finding of fact is not supported by the evidence in the record.

(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 must 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 must be included in the exceptions.

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

(2) If the agency provides forms to a party that comply with the requirements of section (1) of this rule, the agency may require that the party use the forms provided or forms that substantially match the forms provided if the party submits exceptions.

(3) The Appeal Committee may refuse to consider exceptions that do not substantially meet the requirements of sections (1) and (2) of this rule.

Stat. Auth.: ORS 670.310 & 701.235
Stats. Implemented: ORS 183, 701.145 & 701.260
Hist.: CCB 2-2001, f. & cert. ef. 4-6-01; CCB 7-2003, f. & cert. ef. 8-8-03; CCB 7-2005, f. 12-7-05, cert. ef. 1-1-06; CCB 15-2006, f. 12-12-06, cert. ef. 1-1-07; CCB 9-2008, f. 6-11-08, cert. ef. 7-1-08; CCB 12-2010, f. 6-24-10, cert. ef. 7-1-10

812-009-0435

Rescheduling of Exceptions Before the Appeal Committee

If a party requests in writing to reschedule the case scheduled before the Appeal Committee, the request may be granted if:

(1) The request is promptly made after the party receives the notice of the scheduling of the matter before the Appeal Committee or is promptly made after emergency or unforeseen circumstances arise;

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

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

Stat. Auth.: ORS 670.310 & 701.235
Stats. Implemented: ORS 183.413 - 183.470 & 701.260
Hist.: CCB 7-2008, f. 4-28-08, cert. ef. 5-1-08

812-009-0440

Appeal Committee Meeting

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

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

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

(4) The Committee may affirm the proposed order and findings of fact, modify either or both, or send the case back to the Office of Administrative Hearings for a new hearing or to the agency for further processing. Unless the case is sent back to a new hearing, the agency will issue a final order after the Committee meeting.

(5) Final orders are subject to judicial review as set forth in ORS chapter 183.

Stat. Auth.: ORS 670.310 & ORS 701.235
Stats. Implemented: ORS 183.460 & ORS 701.260
Hist.: CCB 8-1998, f. 10-29-98, cert. ef. 11-1-98; CCB 1-1999, f. 3-29-99, cert. ef. 4-1-99; CCB 7-2000, f. 6-29-00, cert. ef. 7-1-00; CCB 2-2003, f. & cert. ef. 3-4-03; CCB 7-2003, f. & cert. ef. 8-8-03

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