R497-100-7. Procedures for Informal Proceedings

  In compliance with Section 63G-4-203, the procedure for the informal adjudicative proceedings is as follows:

  (1) (a) The respondent to a notice of agency action or request for agency action may, but is not required to, file an answer or responsive pleading to the allegations contained in the notice of agency action or the request for agency action within 10 business days following receipt of the notice of agency action or request for agency action.

  (b) A party may be represented by an attorney or a non-attorney. Attorneys will not be appointed by the office or the agency.

  (c) A hearing shall be provided to any party entitled to request a hearing in accordance with Section 63G-4-203.

  (d) In the hearing, the party named in the notice of agency action or in the request for agency action shall be permitted to testify, present evidence and comment on the issues.

  (e) Hearings will be held only after a timely notice has been mailed to all parties.

  (f) Discovery is prohibited, but the office may issue subpoenas or other orders to compel production of necessary evidence. The office may require that parties exchange documents prior to the hearing in order to expedite the process. All parties to the proceedings will be responsible for the appearance of witnesses.

  (g) All parties shall have access to information contained in the agency's files and to all materials and information gathered in any investigation, to the extent permitted by law.

  (h) Intervention is prohibited, except that intervention is allowed where a federal statute or rule requires that a state permit intervention.

  (i) Within a reasonable time after the close of the hearing, or after the party's failure to request a hearing within the time prescribed by the agency's rules, the presiding officer shall issue a signed order in writing that conforms to Section 63G-4-203(1)(i).

  (j) All hearings shall be open to all parties.

  (k) The presiding officer's order shall be based on the facts appearing in the agency's files and on the facts presented in evidence at the hearings.

  (l) A copy of the presiding officer's order shall be promptly mailed to each of the parties.

  (2) All hearings shall be recorded at the office's expense. A transcript of the record may be prepared pursuant to Section 63G-4-203(2)(b).

  (3) Unless the agency's statute or rules specify otherwise, when an informal adjudicative proceeding is commenced by the agency and is to be heard by the office, the agency shall have the burden of proving, by a preponderance of the evidence, that it did not abuse its discretion. This can be demonstrated by showing that the agency's decision was not arbitrary and capricious.