Title 3 . Commerce, Community, and Economic Development

Chapter 1 . Land Sales

Section 10. Adjudicatory hearings

3 AAC 01.010. Adjudicatory hearings

(a) Setting Hearings. When the department intends to issue or has issued an order directing a person to stop an act or practice considered by the department to be unsafe or unsound, or in violation of or likely to violate an order of the department, the provisions of AS 06, or regulations adopted under AS 06, the department will hold a hearing on the order or proposed order, on the department's own motion or upon timely written request by

(1) a person subject to the order or proposed order; or

(2) a person having a contractual relationship with the person subject to the order and who is directly affected by the order or proposed order, except that a person does not obtain standing to request a hearing solely due to the person's status as a depositor.

(b) Time of Hearing. Upon receipt of a written request for a hearing, the department will, within 30 days, schedule a hearing date on the subject matter of the order or proposed order.

(c) Notice of Hearing. Except for an emergency hearing under AS 06.05.468 (d), notice of hearing will be given not less than 10 days before the hearing date to those parties named in the department's order or proposed order. The notice of hearing will contain

(1) the name of the party who is the subject of the order or proposed order;

(2) the time and place of the hearing;

(3) a statement of matters to be considered;

(4) a statement of the legal authority and jurisdiction under which the hearing is to be held; and

(5) references to the applicable statutes and regulations.

(d) Confidentiality. All hearings on orders under this section will be private unless the department, in its sole discretion, after considering the views of the party afforded the hearing, determines that a public hearing is necessary to protect the public interest.

(e) Witnesses. A party who is subject to the order or proposed order of the department has the right to have subpoenas issued by the department on the party's behalf to a witness.

(f) Right to Counsel. A party named in the order or proposed order has the right to appear in person and by counsel; counsel may be present during the presentation of evidence and will be given a reasonable opportunity to examine and inspect all documentary evidence made a part of the record.

(g) Rules of Evidence. The following rules of evidence apply in hearings held under this section:

(1) oral evidence will be taken only on oath or affirmation;

(2) a party or that party's counsel, but not both, may call and examine witnesses, introduce exhibits, cross-examine opposing witnesses on matter relevant to the issues even though that matter was not covered in the direct examination, impeach a witness regardless of which party first called the witness to testify, and rebut adverse evidence;

(3) a party may be called by another party and examined as if under cross-examination;

(4) the hearing need not be conducted according to technical judicial rules relating to evidence and witnesses; however, relevant evidence will be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of a common law, statutory, or court rule which makes improper the admission of the evidence over objection in a civil action; hearsay evidence may be used to supplement or explain direct evidence but is not sufficient by itself to support a finding unless it would be admissible over objection in a civil action; the rules of privilege are effective to the same extent that they are recognized in a civil action; irrelevant and unduly repetitious evidence will be excluded;

(5) nothing in this section alters the ordinary rules of burden of proof of judicial proceedings in the state.

(h) Transcript of Hearing. The hearing must be recorded. Upon written request by a party and at the party's expense, the department will make a transcript of the hearing.

(i) Contents of Record. The record of the hearing will include the following:

(1) all pleadings, motions, and intermediate rulings considered by the hearing officer;

(2) arguments of parties or their representatives and all evidence received and considered including a statement of matters of which official notice is taken by the hearing officer;

(3) questions or offers of proof, objections, and rulings on them by the hearing officer;

(4) proposed findings of fact and conclusions of law prepared by the parties if requested by the hearing officer; and

(5) the decision and final order of the department.

(j) Final Orders. A final order will be in writing and included in the record. A final order will include findings of fact and conclusions of law. All findings of fact will be based exclusively on the evidence presented at the hearing and on matters officially noticed. Findings of fact will be accompanied by a concise and explicit statement of the underlying facts supporting the findings. A copy of the final order will be delivered or mailed to all parties and to their counsels of record, if any, within 10 days after the termination of the hearing.

(k) Rehearings. The following provisions apply to rehearings held under this section:

(1) the department will, in its discretion, grant a rehearing to an aggrieved party if a written request is made for a rehearing within 10 days after the final order is mailed to the person entitled to receive it. A request for a rehearing must set out one or more of the following grounds:

(A) newly discovered evidence or newly available evidence relevant to the issues;

(B) the need for additional evidence to develop the facts essential to proper decision;

(C) probable error committed in the proceeding, the hearing officer's decision, or the final order which would be grounds for reversal on judicial review of the order; or

(D) need for further consideration of the issues and the evidence in the public interest;

(2) a rehearing will be limited to those grounds upon which the rehearing was requested or granted;

(3) the decision on rehearing will be delivered or mailed to all parties and to their counsels of record, if any, within 10 days of the termination of the rehearing;

(4) nothing in this section prohibits the department from rehearing, reopening, or reconsidering any matter in accordance with other applicable statutory provisions, on the ground of fraud by the prevailing party, or of procurement of the order by perjured testimony or fictitious evidence.

History: Eff. 4/4/79, Register 70; am 1/10/94, Register 129

Authority: AS 06.01.025

AS 06.01.030

AS 06.05.005 (a)

Editor's note: In making 3 AAC 01.010 permanent, the regulations attorney reorganized and renumbered the paragraphs in 3 AAC 01.010(k) to more clearly reflect the steps in the rehearing process.