Home Table of Contents

006.28.1-IX. Adjudicative Hearings

AR ADC 006.28.1-IXArkansas Administrative CodeEffective: January 19, 2023

West's Arkansas Administrative Code
Title 006. Department of Finance and Administration
Division 28. Medical Marijuana Commission
Rule 1. Rules and Regulations Governing the Application for, Issuance, and Renewal of Licenses for Medical Marijuana Cultivation Facilities, Dispensaries, and Processors in Arkansas
Effective: January 19, 2023
Ark. Admin. Code 006.28.1-IX
006.28.1-IX. Adjudicative Hearings
Currentness
1. Scope Of This Chapter
This rule applies in all administrative adjudications conducted by the MMC. This rule describes the process by which the agency formulates orders.
2. Presiding Officer
The MMC shall preside at the hearing or may designate one or more members of the MMC or one or more examiners, referees, or hearing officers to preside at a hearing.
3. Appearances
a) Any party appearing in any agency proceeding has the right, at his or her own expense, to be represented by counsel. Alternatively, the respondent may appear on his or her own behalf.
b) Any attorney representing a party to an adjudicatory proceeding must file notice of appearance as soon as possible.
c) Service on counsel of record is the equivalent of service on the party represented.
d) 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.
4. 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 promote the just, speedy, and inexpensive resolution of the proceedings, and would not unduly prejudice the rights of a party.
5. 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 notified of the proceeding and be given an opportunity to be joined as a party of record.
6. Service Of Papers
Unless the presiding officer otherwise orders, every pleading and every other paper filed for the proceeding, except applications for witness subpoenas and the subpoenas, shall be served on each party or the party's representative at the last address of record.
7. Initiation & Notice Of Hearing
a) An administrative adjudication is initiated when the agency issues a notice of hearing.
b) The notice of hearing will be sent to the respondent by U.S. Mail, return receipt requested, delivery restricted to the named recipient or his agent. Notice shall be sufficient when it is so mailed to the respondent's latest address on file with the agency.
c) Notice will be mailed at least twenty days before the scheduled hearing unless otherwise agreed by the parties.
d) The notice will include:
i. Statement of the time, place, and nature of the hearing;
ii. A statement of the legal authority and jurisdiction under which the hearing is to be held; and
iii. A short and plain statement of the matters of fact and law asserted.
8. Motions
All requests for relief will be by motion. Motions must be in writing or made on the record during a hearing. A motion must fully state the action requested and the grounds relied upon. The original written motion will be filed with the agency. When time allows, the other parties may, within seven (7) days of the service of the written motion, file a response in opposition. The presiding officer may conduct such proceedings and enter such orders as are deemed necessary to address issues raised by the motion. However, a presiding officer, other than the MMC, will not enter a dispositive order unless expressly authorized in writing to do so.
9. Answer
A respondent may file an answer to the notice of hearing.
10. Information Provided Upon Request
a) Upon written request, the agency will provide the information designated in Ark. Code Ann. ยง 25-15-208(a)(3).
b) Such requests should be received by the agency at least 10 days before the scheduled hearing.
11. Continuances
a) The hearing officer may grant a continuance of hearing for good cause shown. Requests for continuances will be made in writing. 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. In determining whether to grant a continuance, the hearing officer may consider:
i. Prior continuances;
ii. The interests of all parties;
iii. The likelihood of informal settlements;
iv. The existence of an emergency;
v. Any objection;
vi. Any applicable time requirement;
vii. he existence of a conflict of the schedules of counsel, parties, or witnesses;
viii. The time limits of the request; and Other relevant factors.
b) The hearing officer may require documentation of any grounds for continuance.
12. Hearing Procedures
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; provided, however, any presiding officer other than the MMC shall not enter a dispositive order or proposed decision unless expressly authorized in writing to do so.
b) All objections must be made in a timely manner and stated on the record.
c) Parties have the right to participate or to be represented by counsel in all hearings or pre-hearing conferences related to their case.
d) Subject to terms and conditions prescribed by the Administrative Procedure Act, parties have the right to introduce evidence on issues of material fact, cross-examine witnesses as necessary for a full and true disclosure of the facts, present evidence in rebuttal, and, upon request by the agency, may submit briefs and engage in oral argument.
e) 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.
13. Order Of Proceedings
The presiding officer will conduct the hearing in the following manner:
a) The presiding officer will give an opening statement, briefly describing the nature of the proceedings.
b) The parties will be given the opportunity to present opening statements.
c) The parties will be allowed to present their cases in the sequence determined by the presiding officer.
d) 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 MMC. The presiding officer may limit questioning in a manner consistent with the law.
e) When all parties and witnesses have been heard, parties will be given the opportunity to present final arguments.
14. Evidence
a) 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.
b) Stipulation of facts is encouraged. The agency may make a decision based on stipulated facts.
c) Evidence in the proceeding must be confined to the issues set forth in the hearing notice, unless the parties waive their right to such notice or the presiding officer determines that good cause justifies expansion of the issues. 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 prepare for the additional issue and to permit amendment of pleadings.
d) A party seeking admission of an exhibit must provide thirteen copies of each exhibit at the hearing. The presiding officer must provide the opposing parties with an opportunity to examine the exhibit prior to the ruling on its admissibility. All exhibits admitted into evidence must be appropriately marked and be made part of the record.
e) Any party may object to specific evidence or may request limits on the scope of the examination or cross-examination. A brief statement of the grounds upon which it is based shall accompany such an objection. The objection, the ruling on the objection, and the reasons for the ruling will be noted in the record. The presiding officer may rule on the objection at the time it is made or may reserve the ruling until the written decision.
f) Whenever evidence is ruled inadmissible, the party offering that evidence may submit an offer of proof on the record. The party making the offer of proof for excluded oral testimony will briefly summarize the testimony or, with permission of the presiding officer, present the testimony. 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.
g) Irrelevant, immaterial, and unduly repetitive evidence will be excluded. 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.
The finder of fact may base its findings of fact upon reasonable inferences derived from other evidence received.
15. Default
If a party fails to appear or participate in an administrative adjudication after proper service of notice, the agency may proceed with the hearing and render a decision in the absence of the party.
16. Recording The Proceedings
The agency will record the testimony heard at a hearing. Upon the filing of a petition for judicial review, the agency will provide a verbatim transcript of testimony taken before the agency.
17. Final Order
The agency will serve on the respondent a written order that reflects the action taken by the agency. The order will include a recitation of facts found based on testimony and other evidence presented and reasonable inferences derived from the evidence pertinent to the issues of the case. It will also state conclusions of law and directives or other disposition entered against or in favor of the respondent.
The order will be served personally or by mail on the respondent. If counsel represents respondent, service of the order on respondent's counsel shall be deemed service on the respondent.

Credits

Adopted Jan. 19, 2023.
Current with amendments received through February 15, 2024. Some sections may be more current, see credit for details.
Ark. Admin. Code 006.28.1-IX, AR ADC 006.28.1-IX
End of Document