(a) Scope of this section.

1. (1) This section applies in all administrative adjudications conducted by the Arkansas Dietetics Licensing Board.
2. (2) This section describes the process by which the board formulates orders (for example, an order revoking a license to practice or imposing civil penalties).

(c) Appearances.

1. (1)

   1. (A) Any party appearing in any agency proceeding has the right, at his or her own expense, to be represented by counsel.
   2. (B) Alternatively, the respondent may appear on his or her own behalf.
2. (2) Any attorney representing a party to an adjudicatory proceeding must file notice of appearance as soon as possible.
3. (3) Service on counsel of record is the equivalent of service on the party represented.
4. (4) 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.

(g) Initiation and notice of hearing.

1. (1) An administrative adjudication is initiated when the agency issues a notice of hearing.

2. (2)

   1. (A) The notice of hearing will be sent to the respondent by United States Postal Service, return receipt requested, delivery restricted to the named recipient or his or her agent.
   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 agency.
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 board will not enter a dispositive order unless expressly authorized in writing to do so.

(j) Information provided upon request.

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

(k) Continuances.

1. (1)

   1. (A) The board 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:

(i) State the grounds to be considered; and

1. (ii) Be made:

(b) (b) Except in cases of emergencies, no later than five (5) days prior to the date noticed for the hearing.

1. (2) In determining whether to grant a continuance, the board may consider:

   1. (A) Prior continuances;
   2. (B) The interests of all parties;
   3. (C) The likelihood of informal settlements;
   4. (D) The existence of an emergency;
   5. (E) Any objection;
   6. (F) Any applicable time requirement;

   7. (G) The existence of a conflict of the schedules of:

      1. (i) Counsel;
      2. (ii) Parties; or
      3. (iii) Witnesses;
   8. (H) The time limits of the request; and
   9. (I) Other relevant factors.

2. (3) The board may require documentation of any grounds for continuance.

   1. (l) Hearing procedures.

3. (1)

   1. (A) 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.
   2. (B) Provided, however, any presiding officer other than the board 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 prehearing 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 agency, 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 will 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 sworn or affirmed by the presiding officer and be subject to examination and cross-examination as well as questioning by the board.
    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 will 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 agency 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, may receive a continuance sufficient to:

      1. (i) Prepare for the additional issue; and
      2. (ii) Permit amendment of pleadings.

4. (4)

   1. (A) A party seeking admission of an exhibit must provide ten (10) copies of each exhibit at the hearing.
   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 object to specific evidence or may 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) The finder of fact may base its findings of fact upon reasonable inferences derived from other evidence received.

(p) Recording the proceedings.

1. (1) The board will record the testimony heard at a hearing.
2. (2) Upon the filing of a petition for judicial review, the board will provide a verbatim transcript of testimony taken before the agency.

(q) Factors to be considered in imposing sanctions. In addition to any other considerations permitted by the Dietetics Practice Act, Arkansas Code § 17-83-101 et seq., if applicable, the board in imposing any sanction may consider the following:

1. (1) The nature and degree of the misconduct for which the licensee is being sanctioned;
2. (2) The seriousness and circumstances surrounding this misconduct;
3. (3) The loss or damage to clients or others;
4. (4) The assurance that those who seek similar professional services in the future will be protected from the type of misconduct found;
5. (5) The profit to the licensee;
6. (6) The avoidance of repetition;

7. (7) Whether the conduct was:

   1. (A) Deliberate;
   2. (B) Intentional; or
   3. (C) Negligent;
8. (8) The deterrent effect on others;
9. (9) The conduct of the individual during the course of the disciplinary proceeding;
10. (10) The professional’s prior disciplinary record, including warnings; and
11. (11) Matters offered by the professional 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 professional demonstrates that he or she is successfully pursuing in good faith a program of recovery.

(r) Final order.

1. (1)

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

   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:

      1. (i) Conclusions of law; and
      2. (ii) 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.