(a) Scope of this rule.

1. (1) This section applies in all administrative adjudications conducted by the Labor Standards Section of the Division of Labor.
2. (2) This procedure is developed to provide a process by which the division formulates orders (for example, an order revoking a license to practice, or imposing civil penalties).

(c) Appearances.

1. (1) Any party appearing has the right, at his or her own expense, to be represented by counsel.
2. (2) The respondent may appear on his or her own behalf.
3. (3) Any attorney representing a party to an adjudicatory proceeding must file notice of appearance as soon as possible.
4. (4) Service on counsel of record is the equivalent of service on the party represented.
5. (5) On written motion served on the party represented and all other parties of record, the presiding officer may grant counsel of record leave to withdraw for good cause shown.

(d) Consolidation. If there are separate matters that involve similar issues of law or fact, or identical parties, the matters may be consolidated if it appears that consolidation would:

1. (1) Promote the just, speedy, and inexpensive resolution of the proceedings; and
2. (2) Not unduly prejudice the rights of a party.

(e) Notice to interested parties. If it appears that the determination of the rights of parties in a proceeding will necessarily involve a determination of the substantial interests of persons who are not parties, the presiding officer may enter an order requiring that an absent person be:

1. (1) Notified of the proceeding; and
2. (2) Given an opportunity to be joined as a party of record.

(g) Initiation and notice of hearing.

1. (1) An administrative adjudication is initiated by the issuance by the division of a notice of hearing.

2. (2)

   1. (A) The notice of hearing will be sent to the respondent by United States Postal Service mail, return receipt requested, delivery restricted to the named recipient or his or her agent, as well as by regular United States Postal Service mail.
   2. (B) Notice shall be sufficient when it is so mailed to the respondent’s latest address on file with the agency.
3. (3) Notice will be mailed at least twenty (20) days before the scheduled hearing.

4. (4) The notice will include a:

   1. (A) Statement of the time, place, and nature of the hearing;
   2. (B) Statement of the legal authority and jurisdiction under which the hearing is to be held; and
   3. (C) Short and plain statement of the matters of fact and law asserted.

(h) Motions.

1. (1) All requests for relief will be by motion.
2. (2) Motions must be in writing or made on the record during a hearing.
3. (3) A motion must fully state the action requested and the grounds relied upon.
4. (4) The original written motion will be filed with the division.
5. (5) When time allows, the other parties may, within seven (7) days of the service of the written motion, file a response in opposition.

6. (6)

   1. (A) The presiding officer may conduct such proceedings and enter such orders as are deemed necessary to address issues raised by the motion.
   2. (B) However, a presiding officer, other than the director, will not enter a dispositive order unless expressly authorized in writing to do so.

(j) Discovery.

1. (1) Upon written request, the division will provide the information designated in Arkansas Code § 25-15-208(a)(3).
2. (2) Such requests should be received by the agency at least ten (10) days before the scheduled hearing.

(k) Continuances.

1. (1)

   1. (A) The presiding officer may grant a continuance of hearing for good cause shown.
   2. (B) Requests for continuances will be made in writing.
   3. (C) The request must state the grounds to be considered and be made as soon as practicable and, except in cases of emergencies, no later than five (5) days prior to the date noticed for the hearing.
   4. (D) In determining whether to grant a continuance, the presiding officer may consider:

(i) Prior continuances;

1. (ii) The interests of all parties;

   1. (iii) The likelihood of informal settlements;

      1. (iv) The existence of an emergency;
      2. (v) Any objection;
      3. (vi) Any applicable time requirement;
      4. (vii) The existence of a conflict of the schedules of counsel, parties, or witnesses;
      5. (viii) The time limits of the request; and
      6. (ix) Other relevant factors.

2. (2) The presiding officer may require documentation of any grounds for continuance.

   1. (l) Hearing procedures.
3. (1) The presiding officer presides at the hearing and may rule on motions, require briefs, and issue such orders as will ensure the orderly conduct of the proceedings, provided, however, any presiding officer other than the director shall not enter a dispositive order or proposed decision unless expressly authorized in writing to do so.
4. (2) All objections must be made in a timely manner and stated on the record.
5. (3) Parties have the right to participate or to be represented by counsel in all hearings or pre-hearing conferences related to their case.

6. (4) Subject to terms and conditions prescribed by the Arkansas Administrative Procedure Act, Arkansas Code § 25-15-201 et seq., parties have the right to:

   1. (A) Introduce evidence on issues of material fact;
   2. (B) Cross-examine witnesses as necessary for a full and true disclosure of the facts;
   3. (C) Present evidence in rebuttal; and
   4. (D) Upon request by the division, may submit briefs and engage in oral argument.

7. (5) The presiding officer is charged with maintaining the decorum of the hearing and may refuse to admit, or may expel, anyone whose conduct is disorderly.

   1. (m) Order of proceedings. The presiding officer will conduct the hearing in the following manner:
8. (1) The presiding officer will give an opening statement, briefly describing the nature of the proceedings;
9. (2) The parties are to be given the opportunity to present opening statements;
10. (3) The parties will be allowed to present their cases in the sequence determined by the presiding officer;

11. (4)

    1. (A) Each witness must be:

       1. (i) Sworn or affirmed by the presiding officer, or the court reporter; and
       2. (ii) Subject to examination and cross-examination as well as questioning by the division.
    2. (B) The presiding officer may limit questioning in a manner consistent with the law; and
12. (5) When all parties and witnesses have been heard, parties may be given the opportunity to present final arguments.

(n) Evidence.

1. (1) The presiding officer shall rule on the admissibility of evidence and may, when appropriate, take official notice of facts in accordance with all applicable requirements of law.

2. (2)

   1. (A) Stipulation of facts is encouraged.
   2. (B) The division may make a decision based on stipulated facts.

3. (3)

   1. (A) Evidence in the proceeding must be confined to the issues set forth in the hearing notice, unless the:

      1. (i) Parties waive their right to such notice; or
      2. (ii) Presiding officer determines that good cause justifies expansion of the issues.
   2. (B) If the presiding officer decides to admit evidence outside the scope of the notice, over the objection of a party who did not have actual notice of those issues, that party, upon timely request, will receive a continuance sufficient to prepare for the additional issue and to permit amendment of pleadings.

4. (4)

   1. (A) A party seeking admission of an exhibit must provide three (3) copies of any exhibit in a hearing before the division.
   2. (B) The presiding officer must provide the opposing parties with an opportunity to examine the exhibit prior to the ruling on its admissibility.
   3. (C) All exhibits admitted into evidence must be appropriately marked and be made part of the record.

5. (5)

   1. (A) Any party may:

      1. (i) Object to specific evidence; or
      2. (ii) Request limits on the scope of the examination or cross-examination.
   2. (B) A brief statement of the grounds upon which it is based shall accompany such an objection.
   3. (C) The objection, the ruling on the objection, and the reasons for the ruling will be noted in the record.

   4. (D) The presiding officer may:

      1. (i) Rule on the objection at the time it is made; or
      2. (ii) Reserve the ruling until the written decision.

6. (6)

   1. (A) Whenever evidence is ruled inadmissible, the party offering that evidence may submit an offer of proof on the record.

   2. (B) The party making the offer of proof for excluded oral testimony will:

      1. (i) Briefly summarize the testimony; or
      2. (ii) With permission of the presiding officer, present the testimony.
   3. (C) If the excluded evidence consists of a document or exhibit, it shall be marked as part of an offer of proof and inserted in the record.

7. (7)

   1. (A) Irrelevant, immaterial, and unduly repetitive evidence will be excluded.
   2. (B) Any other oral or documentary evidence, not privileged, may be received if it is of a type commonly relied upon by reasonably prudent men and women in the conduct of their affairs.
8. (8) Reasonable inferences. The finder of fact may base its findings of fact upon reasonable inferences derived from other evidence received.

(p) Subpoenas.

1. (1)

   1. (A) At the request of any party, the director shall issue subpoenas for the attendance of witnesses at the hearing.
   2. (B) The requesting party shall specify whether the witness is also requested to bring documents and reasonably identify said documents.

2. (2)

   1. (A) A subpoena may be served by any person:

      1. (i) Specified by law to serve process; or
      2. (ii) Who is not a party and who is eighteen (18) years of age or older.
   2. (B) Delivering a copy to the person named in the subpoena shall make service.
   3. (C) Proof of service may be made by affidavit of the person making service.
   4. (D) The party seeking the subpoena shall have the burden of obtaining service of the process and shall be charged with the responsibility of tendering appropriate mileage fees and witness fees pursuant to Rule 45 of the Arkansas Rules of Civil Procedure.
   5. (E) The witness must be served at least two (2) days prior to the hearing.
   6. (F) For good cause, the division may authorize the subpoena to be served less than two (2) days before the hearing.

3. (3) Any motion to quash or limit the subpoena shall:

   1. (A) Be filed with the division; and
   2. (B) State the grounds relied upon.

(q) Recording the proceedings.

1. (1) The responsibility to record the testimony heard at a hearing is borne by the division.
2. (2) Upon the filing of a petition for judicial review, the division will provide a transcript of testimony taken before the division.
3. (3) If the division is successful upon appeal, the division may request that the court assess the costs against the opposing party.

(r) Factors to be considered in imposing sanctions or fines. In addition to any other considerations permitted by law, if applicable, the division in imposing any sanction or fine may consider the following:

1. (1) The nature and degree of the misconduct for which the sanction is being sought;
2. (2) The seriousness and circumstances surrounding this misconduct;
3. (3) The loss or damage to clients or others;
4. (4) The assurance of future compliance;
5. (5) The profit to the wrongdoer;
6. (6) The avoidance of repetition;
7. (7) Whether the conduct was deliberate, intentional, or negligent;
8. (8) The deterrent effect on others;
9. (9) The conduct of the individual during the course of the disciplinary proceeding;
10. (10) Any prior enforcement or disciplinary actions or sanctions, including warnings; and
11. (11) Matters offered in mitigation or extenuation, except that a claim of disability or impairment resulting from the use of alcohol or drugs may not be considered unless the individual demonstrates that he or she is successfully pursuing in good faith a program of recovery.

(s) Final order.

1. (1)

   1. (A) The division will serve on the respondent a written order that reflects the action taken by the division.

   2. (B) The order will include:

      1. (i) A recitation of facts found based on testimony and other evidence presented; and
      2. (ii) Reasonable inferences derived from the evidence pertinent to the issues of the case.
   3. (C) It will also state conclusions of law and directives or other disposition entered against or in favor of the respondent.

2. (2)

   1. (A) The order will be served personally or by mail on the respondent.
   2. (B) If counsel represents respondent, service of the order on respondent’s counsel shall be deemed service on the respondent.