14 PROPOSED ADMINISTRATIVE RULES  

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    ORR # 2003-034

     

    DEPARTMENT OF CONSUMER AND INDUSTRY SERVICES LIQUOR CONTROL COMMISSION

    HEARING AND APPEAL PRACTICE

     

    Filed with the Secretary of State on

    These rules take effect 7 days after filing with the Secretary of State

     

    (By authority conferred on the liquor control commission by section 215(1) of 1998 PA 58, MCL 436.1215(1), section 230 of 1965 PA 380, MCL 16.330, and section 33 of 1969 PA 306, MCL 24.233)

     

    R 436.1901, R 436.1905, R 436.1907, R 436.1910, R 436.1911, R 436.1913, R 436.1915, R 436.1917, R

    436.1921, R 436.1923, R 436.1925, and R 436.1931 of the Michigan Administrative Code are amended as follows:

     

    R 436.1901     Definitions.

    Rule 1. (1) As used in these rules:

    (a)   “Act” means Act No. 8 of the Public Acts of the Extra Session of 1933, as amended, being §436.1

    1998 PA 58, MCL 436.1101 et seq.

    (b)   "Duly authorized agent" means a person designated by the chairperson pursuant to sections 903(3) and (4) of the act to hear violation cases.

    (2) The terms defined in the act and in the general rules of the commission have the same meaning when used in these rules.

     

    R 436.1905    Violations; violation report; complaint; notice of hearing.

    Rule 5. (1) Alleged violations of the act or commission rules shall be stated on a violation report form and shall be submitted to the licensing and enforcement executive services division of the commission.

    (2)   A complaint specifying the particular section of the act or commission rules allegedly violated by the licensee may be prepared for the licensing and enforcement division at the direction of an assistant attorney general.

    (3)   Each complaint shall be assigned a number which shall be placed on all papers filed in the proceedings.

    (4)   The complaint shall be served by the licensing and enforcement executive services division on the licensee in person or by mail to the licensed address not less than 20 days before the scheduled hearing date. The licensed address shall be the address of the licensed establishment unless the licensee has submitted, in writing, to the commission, a different address for the receipt of mail. The complaint shall advise the licensee of the licensee's right to request a copy of the violation report.

    (5)   Notice of hearing on a complaint which indicates the date scheduled for the hearing shall be served by the licensing and enforcement executive services division on the licensee at the address of the licensee as specified in subrule (4) of this rule not less than 10 days before the date of hearing.

     

     

    (6)   The hearing notice shall advise the licensee of the licensee's right to be represented by an attorney at the hearing.

    (7)  The complaint and notice of hearing on the complaint shall be substantially in accordance with forms prescribed by the commission.

     

    R 436.1907     Waiver of hearing; acknowledgment of violation.

    Rule 7. (1) A licensee who is cited in a complaint for an alleged violation of the act or commission rules may waive the right to a hearing on the complaint and acknowledge the violation or violations specified in the complaint.

    (2)   The waiver and acknowledgment constitute an authorization to the hearing commissioner or duly authorized agent to enter, without a hearing, an order which the hearing commissioner or duly authorized agent deems appropriate.

    (3)   The waiver of the right to hearing and acknowledgment of the violation shall be on the reverse side of the complaint form and as prescribed by the commission. The waiver and acknowledgment form shall provide that the licensee may explain, on a separate sheet of paper, any mitigating circumstances which the licensee believes should be considered in disposing of the violation.

     

    R 436.1910     Violation rehearing.

    Rule 10. (1) After a violation hearing, a licensee who alleges new evidence may request a rehearing before the hearing commissioner or duly authorized agent who issued the original order. A request for a rehearing shall be submitted in writing to the commission in Lansing within 20 days after the date of the mailing of the original order.

    (2)   If a request for a rehearing in a violation matter is granted by the hearing commissioner or duly authorized agent, then the licensee or the licensee's attorney of record shall be notified of the rehearing not less than 10 days prior to before the date of the rehearing.

     

    R 436.1911     Costs.

    Rule 11. Where If the hearing commissioner renders a decision that a violation occurred, then the hearing commissioner or duly authorized agent may assess actual costs of the proceeding against the licensee.

     

    R 436.1913     Personal appearance of licensee.

    Rule 13. (1) At least 1 of the following entities shall personally appear at a violation hearing, as applicable:

    (a)    The individual licensee.

    (b)    A co-licensee.

    (c)    A partner of a partnership licensee.

    (d)    An officer of a corporate licensee.

    (e)    A member or manager of a limited liability company.

    (2)   Subrule (1) of this rule may be waived by the hearing commissioner or duly authorized agent if a formal appearance has been filed by an attorney-at-law in good standing in this state.

     

    R 436.1915     Failure to personally appear at violation hearings.

    Rule 15. (1) If a proper appearance by a licensee is not made at a scheduled violation hearing in accordance with R 436.1913, then the presiding hearing commissioner or duly authorized agent may do any of the following:

    (a)    Grant an adjournment without testimony being taken.

     

     

    (b)    Order testimony taken and then adjourn the proceedings until rescheduled.

    (c)     Order the immediate suspension of the license until a proper appearance is made at a rescheduled hearing.

    (d)    Issue a decision of default.

    (e)    Proceed with the hearing and render a decision.

    (2) If an adjournment is granted after testimony is taken and the licensee, at a rescheduled hearing, desires to cross-examine the commission witnesses who have already testified, then the commission witnesses shall be produced by, and at the expense of, the licensee under the provisions of the commission rules.

     

    R 436.1917     Violation appeal hearings; appeal board.

    Rule 17. (1) A licensee aggrieved by an order of a hearing commissioner or duly authorized agent as a result of a complaint may request a violation appeal hearing which may be granted at the discretion of the appeal board.

    (2)     The violation appeal board consists of the 3 administrative commissioners who shall conduct violation appeal hearings.

    (3)   A request for a violation appeal hearing shall identify the date of the violation hearing, the order which was issued as a result of the violation hearing, and the licensee's reasons for requesting an appeal.

    (4)   The request for a violation appeal hearing shall consist of 4 copies which shall be sent, by certified mail, to the Lansing office of the commission accompanied by a check or money order for $25.00 within 20 days from the date of the mailing of the order from which the appeal is taken.

    (5)   An appeal based on a claim of error shall specify all findings of fact and conclusions of law claimed to be erroneous, with a brief statement of the grounds for claiming error.

    (6)   A request for a violation appeal hearing, which is sent to the commission after 20 days from the date of the mailing of the order from which the appeal is taken, may be granted in the discretion of by the commission if the delay is not due to the culpable negligence of the licensee appellant.

    (7)    An answer to a request for an appeal from a violation may be prepared by an assistant attorney general prior to before the date of the appeal hearing.

     

    R 436.1921    Violation appeal hearings; burden of proceeding.

    Rule 21. (1) Violation appeal hearings which are granted by the appeal board shall be limited to the official record of the original hearing.

    (2) In violation appeal hearings, the licensee has the burden of proceeding with reasons and arguments for revision or reversal of the order of the hearing commissioner or duly authorized agent.

     

    R 436.1923     Violation appeal hearing decision.

    Rule 23. (1) The decision of the appeal board on a violation appeal hearing shall be mailed to the licensee and the licensee's attorney of record within 30 days after the hearing, except upon written order of the commission extending the time period.

    (2)   The decision of the appeal board shall be in writing and shall do 1 of the following:

    (a)    Affirm the order of the hearing commissioner or duly authorized agent.

    (b)    Modify the order of the hearing commissioner or duly authorized agent.

    (c)    Rescind the order of the hearing commissioner or duly authorized agent.

    (d)     Remand the case back to the hearing commissioner or duly authorized agent who issued the original order.

     

    R 436.1925     Hearings on matters other than violations.

     

     

    Rule 25. (1) The commission, on its own motion, may order a hearing on a matter within its jurisdiction.

    (2)    Applications for a license issued under the act or commission rules shall be reviewed by the administrative commissioners. If a license application is denied, then the aggrieved license applicant may request an appeal hearing, and the commission shall grant the hearing. The request shall be made to the Lansing office of the commission within 20 days from the date of the mailing of the decision of denial.

    (3)    The chairman chairperson may designate 1 or more commissioners to hear matters other than a violation of the act or commission rules.

    (4)   In a hearing on matters other than a violation of the act or commission rules, the commission may, in its discretion, determine which party has the burden of proceeding.

     

    R 436.1931    Postponements; continuances.

    Rule 31. (1) Requests for postponements shall be made in writing not less than 2 working days before the violation hearing or appeal hearing date unless waived by the a commissioner or duly authorized agent. The written request may be granted by a commissioner or a duly authorized agent of the commission.

    (2)     Requests for continuance for cause may be granted by the presiding commissioner or duly authorized agent at the hearing or appeal hearing.