29-250 DEPARTMENT OF SECRETARY OF STATE

1. BUREAU OF MOTOR VEHICLES

Chapter 14: RULES FOR THE MAINE MOTOR VEHICLE FRANCHISE BOARD

SUMMARY: These rules establish procedures for the conduct of adjudicatory proceedings before the Maine Motor Vehicle Franchise Board. They should be read in conjunction with the statutory provisions of the Maine Motor Vehicle Franchise law 10 M.R.S.A. Chapter 204.

APPLICABILITY; These rules govern all practice before the Maine Motor Vehicle Franchise Board(“Board”), subject to and in accordance with the Board’s enabling statute, 10 M.R.S.A. § 1187 to 1190-A and the provisions of the Maine Administrative Procedure Act, 5 M.R.S.A. §§ 8001-11008. These rules shall apply to any person or entity defined by 10 MRSA Ch.204, §§ 1171 et seq. and any intervenor who is involved in a proceeding before the Maine Motor Vehicle Franchise Board. These rules guide the Board in carrying out its duties prescribed in 10 M.R.S.A. Chapter 204.

Rules of the Maine Motor Vehicle Franchise Board

1. TABLE OF CONTENTS

   Section Page

   §1. Purpose 2

§2. Motor Vehicle Franchise Board 2

1. §3. Commencement of Proceeding, Service, Intervention and Form of Submissions 3

   §4. Prehearing Procedure 7

   §5. Adjudicatory Proceedings 10

§6. Hearings and Evidence 12

§7. Decisions, Penalties and Fees 16

§1. Purpose

1. Purpose. The purpose of these rules is to establish the operating procedures through which the Maine Motor Vehicle Franchise Board (Board) will enforce the provisions of 10 MRSA Ch.204, §§ 1171 et seq. These rules shall be construed to secure just, speedy and efficient determination of all matters pending before the Board. Procedures not specifically addressed by these rules shall be governed by the Maine Rules of Civil Procedure.

1. 2. The rules of the Maine Motor Vehicle Franchise Board govern all actions pending on or filed with the Board after their effective date.
   1. A. Amendments to these rules will govern those proceedings pending on or begun after their effective date, except as the Chair determines that the application of one or more of the amendments in a particular proceeding pending when the amendment took effect would not be feasible or would work injustice, in which event the Chair need not abide by those amendments.
      1. B. 10 M.R.S.A. §§ 1187-A requires the Board to impose an initial assessment upon each motor vehicle dealer and each motor vehicle manufacturer. In order to carry out its statutory mandate pursuant to this section of the law, the Board is required to determine annually whether to increase that assessment. It will notify each motor vehicle dealer and manufacturer of any change in the annual assessment.
   2. 3. Definitions. Terms used in these rules are defined below or are as defined in Tit. 10 M.R.S.A. Chapter 204.
      1. A. Board Chair means the Chairman of the Maine Motor Vehicle Franchise Board as set forth in 10 § 1187.

B. Complaint means any complaint for relief filed pursuant to 10 MRSA §§ 1171 et seq.

1. C. Party means the person commencing an adjudicatory proceeding, all respondents, and all intervenors in the proceeding.

1. Respondent means a person or entity against whom an adjudicatory proceeding is initiated under 10 MRSA §§ 1171 et seq.

§ 2. Maine Motor Vehicle Franchise Board

1. The Office of the Maine Motor Vehicle Franchise Board is located at 101 Hospital Street, 29 State House Station, Augusta, ME. 04333-0029.

2. Representation.

1. A. Pro se representation. Only an individual may appear on the individual's own behalf.

B. Attorneys. A party may be represented by an attorney authorized to practice law in Maine. At the discretion of the Chair, an attorney who is not a member of the Maine bar, but is a member in good standing of the bar of another state or the District of Columbia, may represent a party if a member of the Maine bar moves that the out-of-state attorney be so permitted, and if both the member of the Maine bar and the out-of-state attorney agree to be actively associated during the proceeding. The member of the Maine bar so associated shall further agree to accept service of all papers, to sign all papers filed with the Board and to attend any conference or hearing as ordered by the Chair. The Chair may at any time for good cause revoke such permission without hearing.

1. C. Notice of appearance. An attorney who appears in a representative capacity shall enter an appearance by filing a written notice of appearance setting forth the attorney's name, business address, and telephone number, and the name and address of the party represented.
   1. D. If an attorney withdraws, the attorney shall notify the board in writing; thereafter correspondence will be forwarded directly to the party.

3. Standard and Burden of Proof.

1. Proof shall be by a preponderance of the evidence and the burden of proof shall be on the complaining party unless otherwise set forth in Tit.10 §§ 1171 et seq.

§ 3. Commencement of Proceeding, Service, Intervention and Form of Submissions

1. Commencement of Proceeding.

1. A. A proceeding under these Rules is started by filing a Complaint for relief under Tit. 10 MRSA §§ 1187 et seq. A complaint may be amended as a matter of right only within five days of the date of filing. A Complaint shall provide the reason a hearing is requested, the specific section of the Law under which relief is being sought, the facts which form the grounds for the complaint, and the outcome sought.
   1. B. The Chair shall review the complaint to determine whether any information is inadequate or missing and shall return it to the party with an explanation of the deficiencies and notice that the party may make corrections and resubmit the complaint within five days of receipt.
      1. C. Any complaint shall be accompanied by a filing fee of $1,500.00 and confirmation of service upon the defendant.
      2. D. The filing of any papers required or permitted to be filed under this rule is complete when the Board receives the paper by mail, in-hand delivery, or any other means specified by the Chair.
      3. E. Non-compliance. If a party fails to comply with this section, the Chair may refuse to accept or consider the filing.
      4. F. Nothing in this rule shall operate to limit the Board's right to require additional information from the petitioner or any other party.
      5. G. The Board shall schedule a hearing to occur within 120 days of the date the complaint is received by the Board.
      6. H. The respondent(s) must file and serve an answer within fifteen days of receipt of the complaint, as filed or amended under paragraph B. The answer must respond fully to all allegations and plead any and all available affirmative defenses and the factual and legal basis therefore. The answer must present the respondent’s position on the issues raised by the complaint. All defenses or defense issues not presented in the answer are waived. The Chair may allow an answer to be amended for good cause shown based on information obtained during discovery that was otherwise unavailable to the respondent.

2. Service and Filing of Pleadings and Other Communications.

1. A. Service of the complaint and answer shall be by certified mail, return receipt requested or independent delivery service that provides confirmation of receipt.
   1. B. Subject to the provisions of M.R. Civ. P. 26(f), all papers after the complaint required to be served upon a party shall be filed with the Board either before service or within a reasonable time thereafter. Such filing by a party shall constitute a representation by the party, subject to the obligations of M.R. Civ. P. 11, that a copy of the paper has been or will be served upon each of the other parties as required by the Maine Rules of Civil Procedure. No further proof of service is required unless an adverse party raises a question of notice.
      1. C. Where a party is represented by an attorney, service of papers shall be made upon the attorney and if a party is not represented by counsel, service shall be to the person who signed the papers on behalf of the party.
      2. D. Acknowledgement of service. For any paper filed under this rule, the filing party shall file the original with the Board along with a statement that copies have been served on every other party or designated representative and specifying for each:

(1) The name and address of the party or attorney and

(2) The date and manner of service.

3. Intervention.

1. A. Timing. Persons who seek to intervene in a proceeding must do so by motion which must be filed and served on all parties no later than fifteen days after the filing of the answer with the Board, unless the Chair orders otherwise for good cause shown.
   1. B. The motion must include the name, address and telephone number of the person seeking to intervene, the manner in which the movant is affected by or interested in the proceeding, and the movant’s position on the issues raised by the complaint or answer.
      1. C. The motion must include a short and plain statement of the nature and extent of the participation sought and a statement of the nature of the evidence or argument that the movant intends to submit.
      2. D. The Chair shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties and may limit the scope of an intervener’s participation in the proceeding in any reasonable manner in order to avoid delay, duplication of evidence, or to otherwise protect the rights of the original parties and preserve Board resources.

4. Number of Copies of Filings and Other Documents.

1. Parties shall provide an original and seven copies of every Pleading, transcript and all other filings or papers sent to the Board.
   1. 5. Form of Papers and Submissions.

A. All papers and submissions filed in connection with adjudicatory proceedings shall be in the form of a pleading in a civil matter in the courts of Maine. They shall contain the names of the parties, a descriptive name of the filing, and the MVFB Case Number, when available.

1. B. Form. All papers and submissions filed in connection with adjudicatory proceedings, excluding exhibits, shall be typed or otherwise printed on one side of the page of 8.5 x 11 inch paper. The typed matter must be double spaced in at least 12-point type, except that footnotes and indented quotations may be single spaced and in 11-point type, and margins should be at least one inch on all sides. All pages shall be numbered.
   1. C. Signatures. Every paper filed by a party represented by an attorney shall be signed by hand by at least one attorney of record in the attorney's individual name, whose address and telephone number shall be stated. A party who is not represented by an attorney shall sign the paper and state the party's address and telephone number.

6. Motions.

A. All prehearing motions shall be in the form set forth above.

1. B. Content. All motions must state concisely the question to be determined and the factual and legal grounds for the desired order or action and be accompanied by an attached or incorporated memorandum of law, any supporting documentation and a draft order.
   1. C. Timing. No motion may be filed fewer than five days before the hearing without a showing of good cause and the prior approval of the Chair. The filing or pendency of a motion does not alter or extend any time limit except that a motion to dismiss must be filed within twenty days of the filing of the answer and a motion for summary judgment must be filed within ten days of the close of discovery.
      1. D. Opposition. Any opposition to any motion except a motion to dismiss or a motion for summary judgment must be filed within seven days after receipt of the motion. Any opposition to a motion to dismiss or a motion for summary judgment must be filed within fifteen days after receipt of the motion. A party failing to file such opposition shall be deemed to have waived all objections to the motion.
      2. E. Length. No brief or motion or opposition to a motion to dismiss or motion for summary judgment shall exceed twenty pages without a showing of good cause and the approval of the Chair. No brief or motion or opposition thereto for any other motion shall exceed ten pages without a showing of good cause and approval of the Chair.
      3. F. Briefs and oral argument. The Chair may in his/her discretion order that additional briefs be filed on any issue and may allow oral argument on any motions

G. The Chair shall rule on all motions in writing.

7. Time.

1. A. General rule. In computing any period of time that is either prescribed or allowed by this rule, or is ordered by the Chair, the day of the act or event after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday, State holiday, or any other day on which the Board’s office is closed, in which event the period runs until the end of the next business day.
   1. B. Modification. When by this rule or by order of the Chair an act is required or allowed to be done at or within a specified time, the Chair for good cause shown may order the period shortened or extended, except as precluded by statute. The Chair may order the period enlarged if such a request is made before the expiration of the period originally prescribed or as extended by a previous order; upon motion made after the expiration of the specified period the Chair may permit the act to be done where the failure to act within the specified time was the result of excusable neglect.

8. Shortening Time Limits or Staying Further Processing.

1. The Chair may order accelerated action on a claim without regard to the time limits otherwise provided in these rules, or may order a stay of further processing of a claim on such terms as are appropriate.

9. Additional Time After Service by Mail.

1. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, three days shall be added to the prescribed period.

§ 4. Prehearing Procedure

1. 1. Prehearing Conference. The Chair shall schedule a conference no later than forty five days from the filing of the Complaint.
   1. A. At least five days before the conference each party shall serve the Board and all other parties with a pretrial memorandum. The memorandum shall, to the greatest extent possible:

(1) identify all issues of fact and law to be raised at the hearing;

(2) list requested admissions or stipulations to facts or documents;

1. (3) specify the time requested for presentation of the party’s direct case and cross examination of witnesses;
   1. (4) identify all experts and the scope of their testimony;

(5) list requests to use pre-filed direct testimony;

(6) list requests for official notice;

1. (7) list all outstanding discovery items that the party has requested and discovery to which the party has not responded; and

(8) list proposed exhibits.

B. At the conference the Chair shall, with the participation of the Parties’ representatives,

(1) formulate or simplify the issues of law and fact;

(2) obtain admissions or stipulations to facts and documents;

(3) decide time limits for each party‘s examination of witnesses;

(4) decide requests for official notice;

(5) address discovery disputes and motions;

(6) determine the admissibility of evidence;

(7) address any requests to use prefiled direct testimony;

(8) decide the order of presentation;

(9) arrange for exchange of proposed exhibits, testimony, and evidence;

(10) limit the number of witnesses and extent of witness examinations;

(11) determine scheduling and procedures for the hearing;

(12) rule on pending motions;

(13) schedule the hearing; and

1. (14) discuss other matters which may expedite the orderly conduct and settlement or adjudication of the proceeding.
   1. C. The parties shall be prepared to engage in a good faith effort to obtain resolution and shall arrive with the person authorized to act on settlement proposals. For good cause shown, the Chair may allow the person authorized to act on settlement proposals to participate by telephone.
      1. D. The Chair shall have the discretion to appoint a mediator to facilitate settlement at the pre-hearing conference, or appoint a mediator to convene a settlement conference after the pre-hearing conference. If mediation does not resolve the dispute, the parties shall split the cost of the mediator, subject to a final award of costs by the Board pursuant to § 1188 of the Act and § 7 of these Rules.
      2. E. Any settlement of a proceeding through mediation, stipulation, or any other agreement of the parties is subject to the Board’s approval.
      3. F. The Chair shall conduct a final prehearing conference ten days before the hearing. Each party shall file a trial brief five days before this conference, consisting of a brief statement of not more than five pages explaining the party’s case, the standard of proof, and the applicable law. It may include proposed findings of fact and conclusions of law. The parties shall review the issues raised at the pre-hearing conference as set forth in subsection 1(A) of this section and exchange pre-marked exhibits and witness lists. Exhibits or witnesses not then listed may be excluded at hearing. The Chair may require the parties to participate in other conferences which may be conducted by telephone, video, or other electronic means.
      4. G. The Chair may designate all or part of the record of prior Board hearings as evidence to be considered in a particular hearing.
      5. H. Upon notice to the participants, all or part of the pre-hearing conferences may be recorded.
      6. I. The Chair may direct the parties to draft a Conference Report setting out the issues resolved at the conference and the issues which remain to be decided at hearing, or the Chair may do so himself. This conference Report shall be made part of the record and will control the course of the proceedings unless modified by the Chair.

2. Discovery.

1. A. Except as set forth below or ordered by the Chair, the Maine Rules of Civil Procedure govern discovery before the Board.
   1. B. The parties are required to exchange the following information within 30 days of the filing of the complaint:
      1. (1) The name, address, telephone number, facsimile number and electronic address of the person upon whom service shall be made;
         1. (2) The name of the person who is knowledgeable on the issues and primarily responsible for responding to discovery;
         2. (3) Copies of all correspondence and communications of all types between the plaintiff and defendant relevant to the issues for the three years prior to the filing of the complaint;
         3. (4) Copies of the franchise agreement in effect including all addenda thereto, and the sales and service agreements in effect including all addenda thereto relevant to the issues in the proceeding;
         4. (5) Copies of all relevant manufacturer’s service bulletins, recall notices or information, materials relevant to incentive programs, allocation standards, advertising standards or rules and customer survey information.
   2. 3. Pursuant to the Maine Rules of Civil Procedure, All parties shall have the right to take depositions, serve interrogatories and serve requests for production of documents and requests for admissions upon any party, subject to the following terms and procedures.
      1. A. Interrogatories and Requests for Production of Documents Pursuant to Rules 33 and 34 must be exchanged within twenty days of service of the answer.
      2. B. Objections to interrogatories, requests for production of documents or requests for admissions shall be filed with the Board no later than seven working days after receipt, unless some other period is prescribed by order of the Chair.
      3. C. Interrogatories, requests for production and requests for admissions shall be answered within fifteen days after receipt or such other period as may be ordered by the Chair, except as to any part of a request to which specific and timely objection is made. In cases where timely objection has been made and the objection is subsequently overruled, the requested information, document or admission shall be provided within seven days of the denial.

4. Confidential or Proprietary Information.

A party may seek protection for information contained in any pleading, document, exhibit, testimony or any other information provided to the Board that is proprietary or confidential under Maine law. The party seeking such protection for confidential or proprietary information must file a motion for protective order pursuant to Rules 26 (c) and 45(d)2 setting forth the information sought to be protected and the basis under Maine law for the protection. The Board and all parties shall treat all information that is the subject of a motion for protection as confidential and proprietary until the Chair issues a ruling denying the motion for protection. The Chair shall rule upon the motion based on the applicable principles of Maine law. If the Chair grants the motion, the ruling shall specify the requirements for protection, which may include confidentiality agreements.

5. Sanctions.

1. A. Failure of a party to comply with an order of the Chair issued pursuant to this Chapter shall be grounds for dismissal of the complaint, entry of a default judgment, or dismissal of an intervenor from the proceeding. The dismissal or default is with prejudice unless otherwise stated in the order of dismissal or default, and is final unless the Board finds that the failure to comply was the result of excusable neglect.
   1. B. Any motion to compel discovery shall be decided without hearing unless the Chair, following a conference, determines there are genuine issues of fact which require review.

§ 5 Adjudicatory Proceedings

1. The board shall notify the parties of the date, time, location and scope of the hearing.

1. 2. In addition to other duties and powers contained in these rules, the Chair has the power to administer oaths and to require by subpoena the attendance and testimony of witnesses, the presentation of books, records and other evidence relevant or pertinent to the issues presented to the Board for determination.

3. Subpoenas.

1. A. The Chair or his designee may issue subpoenas at the request of any party to require the attendance and testimony of witnesses and the production of any evidence relating to any issue of fact in the proceeding.

B. The Board may prescribe the form of subpoena, but it shall adhere, insofar as practicable, to the form used in civil cases before the Maine courts. Witnesses shall be subpoenaed only within the territorial limits and in the same manner as witnesses in civil cases before the Maine courts, unless another territory or manner is provided by law. Witnesses subpoenaed shall be paid the same fees for attendance and travel as set out in the Maine Rules of Civil Procedure. Such fees, as well as the costs of serving the subpoena, shall be paid by the party requesting the subpoena.

1. C. It is the responsibility of the requesting party to serve the subpoena on the named individual. When a witness is subpoenaed, the witness fee and transportation allowance established by 16 M.R.S.A. §251 must then be provided. If a party subpoenas a witness and then decides not to call that witness, the requesting party must give notice of its intent not to call that witness to the other parties to the proceeding and to the Board or the Chair at least forty-eight hours before the witness was scheduled to appear. A subpoena for documents will ordinarily require the production of the documents at the prehearing conference.
   1. D. Any witness subpoenaed to testify or produce documents may move the Chair to quash or modify a subpoena issued by the Board. The grounds to quash or modify a subpoena shall be those set out in Rule 45 of the Maine Rules of Civil Procedure. The Chair may grant the petition in whole or in part upon a finding that the testimony or the evidence whose production is required does not relate reasonably directly to any matter in question, or based upon a finding that the movant did not have a reasonable time to comply with the subpoena or that the subpoena was otherwise unreasonable or oppressive.
      1. E. Pursuant to Tit. 10 § 1188(6), any person served with a subpoena who fails to obey the subpoena without adequate excuse, may be found in contempt. The standards for finding contempt shall be those set out in the Maine Rules of Civil Procedure.

4. Misconduct at a Hearing is subject to the sanctions set forth in the Maine Rules of Civil Procedure and Maine Law.

5. Board Member Withdrawal.

1. A. Upon the filing in good faith by a party of a timely charge of bias or of personal or financial interest, direct or indirect, of a presiding officer or Board member in the proceeding requesting that that person disqualify himself, that person shall determine the matter as a part of the record.
   1. B. If a Board Member withdraws or it becomes impracticable for him or her to continue to participate in the hearing, the remaining Board members shall continue with the hearing if they constitute a quorum.
   2. 6. The Chair and four members of the Board and shall constitute a Quorum. A quorum may take any Board action authorized by the law by a vote of a majority of the members present.
   3. 7. In accordance with Maine Law and Rules of Court, the parties may not communicate directly or indirectly with the Chair or any member of the Board, in connection with any issue of fact, law or procedure, except upon notice and opportunity for all parties to participate.

8. Record

1. A. Generally. In proceedings subject to this chapter, the Board shall make a record consisting of:

(1) The complaint, answer, pleadings, motions, and rulings and orders thereon;

(2) Evidence received or considered;

(3) A statement of facts officially noticed;

(4) Offers of proof objections and rulings thereon; and

(5) The decision of the Board.

1. B. Hearings recorded. The Board shall record all hearings in a form susceptible to transcription. The Board may, in its discretion, record the hearing stenographically. The Board shall transcribe the recording when necessary for the prosecution of an appeal. At the request of either the plaintiff or defendant, the record shall be taken by a court reporter. The expense of the court reporter, shall be paid by the requesting party, subject to a final award of costs by the Board.
   1. C. Record, copies. The Board shall make a copy of the record, including recordings made pursuant to subsection 2, available at its principal place of operation for inspection by any person during normal business hours, and shall make copies of the record, copies of recordings or transcriptions of recordings available to any person at actual cost. Notwithstanding the provisions of this subsection, the Board shall withhold, obliterate or otherwise prevent the dissemination of any portions of the record that are made confidential by state or federal statute, but shall do so in the least restrictive manner feasible. After the hearing, confidential information shall be sealed within the record and may not be further disclosed except upon order of the Chair.
      1. D. Decision on the record. All material, including records, reports and documents in the possession of the Board, of which it desires to avail itself as evidence in making a decision, shall be offered and made a part of the record and no other factual information or evidence shall be considered in rendering a decision.
      2. E. Documentary evidence. Documentary evidence may be incorporated in the record by reference when the materials so incorporated are made available for examination by the parties before being received in evidence.

§ 6. Hearings and Evidence

1. Hearings.

1. A. Presentation. Unless otherwise ordered by the Chair, the party filing the complaint shall present its case first, followed by the respondent(s), followed by any intervenors.
   1. B. Openings and closings. Opening and closing statements may be made at the Chair’s discretion.
      1. C. Stipulations. With the approval of the Chair, the parties may stipulate to facts at issue, on the record either orally or in writing, and shall be bound thereby.

2. Evidence. The Board shall accept evidence as follows:

1. A. Evidence that is relevant and material to the subject matter of the hearing and is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible.
   1. B. Irrelevant, immaterial or unduly repetitious evidence shall be excluded by the Chair.
      1. C. Expert evidence must be within the expertise of the witness and requires the laying of an adequate foundation.
      2. D. The Board may use its experience, technical competence and specialized knowledge in evaluating the evidence submitted.
      3. E. The Board may designate all or part of the record of prior hearings before the Board as evidence to be considered in a particular hearing.
      4. F. Cost conclusions. No conclusory statements regarding costs will be considered unless supported by actual cost data based on actual operations of manufacturers and/or dealers as appropriate. Projections or estimates of costs may be presented, but in cases of such projections or estimates the actual costs or other data upon which such projections or estimates are based must be provided.
      5. G. If the Chair has granted a motion for protection of confidential information, then during the introduction of such information or testimony on such information, the proceeding will be open only to the Board, parties, parties’ representatives, counsel of record, and the witness testifying regarding the information and access to the information is limited to these persons. After the hearing, the confidential information is sealed within the record and may not be further disclosed except upon order of the Board.

H. Rules of Privilege. The Board shall observe the rules of privilege recognized by law.

1. I. Amendments to Conform. Upon objection at hearing that evidence presented is not within the issues set out in the pleadings, the Chair shall freely allow the pleadings to be amended when it will aid in the presentation of the merits of the action and the objecting party fails to satisfy the Board that the admission of the evidence would prejudice it in maintaining its action or defense upon the merits. The Board may grant a continuance to enable the objecting party to meet that evidence. Upon the request of a party at the conclusion of the hearing, the complaint or response may be specifically amended to conform to the evidence.
   1. J. All documents, materials and objects offered in evidence as exhibits shall be numbered or otherwise identified. Documentary evidence may be received in the form of copies or excerpts if the original is not readily available. The Chair may require, after reasonable prior oral or written notice, that any person offering any documentary or photographic evidence provide the Board with a specified number of copies of such documents or photographs, unless such documents or photographs are determined to be of such form, size or character as not to be reasonably susceptible of reproduction.

3. Testimony.

1. A. Prefiled testimony shall be in writing and in a question and answer format as if the witness were testifying at the hearing. It shall be double spaced and shall include the number of each line in the lefthand margin, except as otherwise permitted by the Chair. If the testimony is more than three pages long, it shall include a Table of Contents identifying each issue which was the subject of testimony. It must be served on the Board and all parties at least ten days before the hearing, or such other time as the Chair designates. The witnesses whose testimony was prefiled must be physically present at the hearing for cross-examination.
   1. B. Testimony by written or videotape deposition: A party may move to present testimony by written or videotape deposition in accordance with the Maine Rules of Civil Procedure.

4. Witnesses.

1. A. With the exception of testimony presented by written or videotape deposition, any witness presenting testimony must be physically present at the hearing. Live testimony from a remote location is prohibited.
   1. B. All witnesses shall be sworn by oath or affirmation. Interpreters shall be administered an oath or affirmation to translate truthfully and accurately, to the best of their ability, all questions asked and answers given. Once a witness has taken an oath or made an affirmation at any hearing it shall not be necessary for him/her to be sworn again for later testimony on the same day and in the same case. The record of the proceeding shall indicate that a person was recalled to testify and reminded that s/he was still under oath or affirmation.
      1. (1) After a witness is sworn, the parties may conduct direct and cross examination, re-direct and re-cross examination. Further examination by the parties is permissible only if the Chair so directs. If the witness submitted pre-filed testimony, further direct testimony is subject to approval by the chair,
         1. (2) Any Board Member may examine witness at any time during the testimony of that witness.
         2. (3) The parties may present rebuttal witnesses and conduct surrebuttal as the Chair so directs in the exercise of his/her discretion.
         3. (4) Limitations. The Chair may limit the number of witnesses and/or the extent of witness testimony.

5. Sequestration.

1. A. Upon request by a party, or on its own initiative, the Chair may exclude witnesses other than parties from the hearing room when those witnesses are not testifying.
   1. B. A party that is not a natural person may designate an individual as its representative to remain in the hearing room.
      1. C. The witnesses, parties, their counsel, and any person under their direction shall not disclose to any sequestered witness the substance of the testimony, exhibits, or other evidence introduced during the witness' absence.

6. Objections.

1. A. Objections shall be timely made during the course of the hearing and the basis of each objection shall be stated briefly on the record. The Chair may rule on the objection at the time it is made or may reserve a ruling until later as appropriate.
   1. B. Preserving Objections. Objections to rulings admitting or excluding evidence and other rulings or orders of the Chair shall be made and preserved, and may be appealed in accordance with applicable statutes. Exceptions to rulings or orders of the Chair shall not be made. It is sufficient that a party, at the time the ruling or order of the Chair is made or sought, makes known to the Chair the action which the party desires the Chair to take or the party’s objection to the action of the Chair and the grounds therefore.

7. Offers of Proof.

1. An offer of proof may be made in connection with an objection to a ruling of the Chair excluding or rejecting any testimony or question on cross examination. Such offer of proof shall consist of a statement of the substance of the proffered evidence or what is expected to be shown by the answer of the witness.

8. Close of Evidence.

1. Once a party has rested its case, it may introduce no further evidence without the Chair’s consent.

9. Conduct at Hearings.

A. All persons appearing at a hearing before the Board shall conform to the conduct expected in the Superior Court of the State of Maine.

1. B. Contemptuous, disorderly, or improper conduct by any person appearing at a hearing shall be grounds for the Chair to exclude or expel that person from the hearing or to take other appropriate action.

10. Adjudication on documentary record.

1. The Chair may not hold a hearing, or a part thereof, if all parties waive their right to the hearing and agree to submit to adjudication based on the documentary record.

11. Official Notice.

1. The Board may, at any time, take official notice of relevant laws, official regulations and transcripts of other Board hearings, judicially recognizable facts, general recognized facts of common knowledge to the general public and physical, technical or scientific facts within its specialized knowledge. The Board shall make a record of those facts of which it took official notice.

§ 7. Decisions, Penalties and Fees

1. Decision.

1. A. Only matters appearing on the record in the form of testimony, documentary or other properly submitted evidence, and judicially noticed material may form the basis for the Board’s decision. All decisions shall be reached on the basis of a preponderance of the evidence. The decision of the Board is final as to all factual and legal issues presented.
   1. B. Every decision made at the conclusion of a hearing subject to this chapter shall be in writing and shall include findings of fact sufficient to apprise the parties and any interested member of the public of the basis for the decision.
      1. C. A copy of the decision shall be delivered or promptly mailed to each party to the proceeding or his representative of record. Written notice of the party's right to review of the decision or for a hearing before the Superior Court, and of the action required and the time within which such action must be taken in order to exercise the right of review, shall be given to each party with the decision.
      2. D. The Board shall maintain a record of the vote of each Board member with respect to the decision. For the purpose of rendering a decision, five members of the board, including the Chair, shall constitute a quorum.

E. The Chair will vote only as necessary to break an impasse.

1. F. A party aggrieved by a final Board order may immediately appeal that decision to the Superior Court pursuant to the Maine Administrative Procedure Act and the Maine Rules of Civil Procedure.

2. Penalties and Fees.

The Board shall levy civil penalties as prescribed by Maine Law including Tit. 10 M.R.S.A. §§ 1171and 1188, if the board determines after a proceeding conducted in accordance with 10 M.R.S.A. §§ 1171 et seq. and these Rules, that a manufacturer or distributor is violating or has violated any provision of the law. The Board shall levy a civil penalty of not less than $1,000, nor more than $10,000 for each violation. The Board shall determine the amount based upon:

1. A. The seriousness of the violation, including the nature, circumstances, extent and gravity of the prohibited acts and the harm or potential harm to the safety of the public;
   1. B. The economic damage to the public caused by the violation;

C. Any previous violations;

D. The amount necessary to deter future violations;

E. Efforts made to correct the violation; and

F. Any other matters that justice may require.

3. Costs and Attorney and Authorized Agent Fees.

1. The Board may award costs and attorney’s fees under the Act. A party seeking them shall file a Motion for Payment of costs with supporting documentation and the attorney's or authorized agent's statement of fees. The Party from whom payment is sought shall file any opposition to the motion within ten days of receipt. The Chair shall consider the Motion and statement along with any opposition to the granting of the motion and prepare a recommended decision for review by the Board. The Board’s decision shall be mailed to the parties by regular mail. In determining whether to approve fees and costs, the Board will consider, among other factors, the hourly rate, the number of hours expended, the complexity of the issues and the experience of the attorney requesting the fees.

4. Appeal of Sanction Imposed by Board.

1. Any decision or order of the board shall remain in full force and effect pending the outcome of the appeal or expiration of the decision or order imposed unless otherwise ordered by the Court.

STATUTORY AUTHORITY: 10 M.R.S.A. § 1187 (6)

EFFECTIVE DATE:

January 23, 2005 – filing 2005-36

NON-SUBSTANTIVE CORRECTIONS:

March 16, 2005

APAO WORD VERSION CONVERSION (IF NEEDED) AND ACCESSIBILITY CHECK: July 19, 2025

APAO ACCESSIBILITY CHECK (Word):

April 6, 2026