HAR §13-1-68. Record of contested case hearing

(a) The administrator shall retain an audio, video or stenographic record of all proceedings in a CRVS contested case for a period of not less than two years after the case is concluded. (b) Any party may obtain a certified copy of the audio or video record upon a payment of $10 per copy. (c) Any party to a proceeding conducted under this subchapter may rely upon the audio or video record in producing a transcript of the proceeding or any part thereof. Unless the transcription is 1-49 performed and attested by a stenographer certified by the administrator, a transcript produced from the audio or video record shall be deemed unofficial and shall not be considered as part of the record. A citation of an unofficial transcript in a subsequent proceeding conducted under this chapter shall be admissible, subject to any challenges by other parties and the authentication by the administrator. (d) A hearing officer may grant a motion for stenographic recording of a proceeding conducted under this subchapter, provided that the cost shall be borne by the proposing party or allocated among parties by the hearing officer, and a deposit of $200 for the stenographer’s service shall be tendered to the administrator at the time when the motion is granted. [Eff and comp 2/27/09] (Auth: HRS §199D-1) (Imp: HRS §199D-1) §13-1-69 Final decision making procedure when power delegated. (a) Notwithstanding provisions in subchapter 6, the procedure provided in this section shall apply when the final decision power is delegated to the chairperson or a hearing officer pursuant to section 13-1-58 of this subchapter. (b) After all evidence has been taken, the parties may submit, within the time set by the chairperson or hearing officer, a proposed decision and order which shall include proposed findings of fact and conclusions of law. (c) Within the time established by law, if any, or within a reasonable time after the parties have had an opportunity to file objections, if applicable, to file briefs and to present oral argument as may have been permitted, the chairperson or hearing officer shall render its findings of fact, conclusions of law, and decision and order. (d) Every decision and order adverse to a party to the proceeding, rendered by the chairperson or a hearing officer, shall be in writing or stated in the record, and shall be accompanied by separate findings of fact and conclusions of law. If any party to the 1-50 proceeding has filed proposed findings of fact, a separate ruling on each shall be incorporated in the decision rendered by the chairperson or hearing officer. (e) Decisions and orders shall be served by mailing certified copies thereof to each party at the party’s address of record or by personal delivery of a certified copy. When a party to a contested case has appeared by a representative or by counsel, service upon the representative or counsel shall be deemed to be service upon the party. [Eff and comp 2/27/09] (Auth: HRS §199D-1) (Imp: HRS §199D-1) §13-1-70 Administrative sanctions schedule; factors to be considered. (a) For the purposes of providing guidance in the assessment of administrative sanctions and promoting consistency within the department, there shall be adopted by the board an administrative sanctions schedule. (b) The administrator, divisions, and conservation and resource enforcement officers shall use the administrative sanctions schedule when issuing a notice of civil resource violation. (c) The board or its delegates shall set a sanction for a civil resource violation after consideration of the administrative sanctions schedule and the following factors: (1) Value of the natural or cultural resource that is damaged or the subject of a theft, which may be measured by the market value of the resource damaged or taken and any other factor deemed appropriate by the board or its delegates, such as the loss of the resource to its natural habitat and environment and the cost of restoration or replacement; (2) Damages to the state in its facilities and services, including the present value of any accrued past damages and defined future damages; 1-51 (3) Costs for the state to remedy any damages, restore any resources, repair any facilities, replace any assets, or recover any losses; (4) Costs for the state to enforce against, investigate and monitor the violation and its damages; (5) Fees and costs for the state to prosecute or process the violation in any legal or administrative proceedings, including attorneys’ fees and costs; (6) Level of damages to the public for whom the state holds a public trust of the resource involved; (7) Pecuniary gains that have been realized or may be potentially realized by the respondent from an unauthorized commercial activity; (8) Concurrent civil resource violations when perpetrating the underlying violation; (9) Concurrent violations of any federal laws or state laws other than those administered by the department; (10) Level of the respondent’s culpable intent as compared to the state’s responsibility in proper signage, other actual or constructive notice, enforcement, and promotion of public awareness and education; (11) Repetition and duration of resource violations of the same or similar type in the respondent’s history; (12) Extent of the respondent’s cooperation with authorities and compliance with inquiries, requests, orders, protocols, or warnings that may have been conveyed to the respondent through written or verbal notification from the department; (13) Voluntary actions taken by the respondent to mitigate or avoid any damages or injuries resulting from or threatened by the violation; 1-52 (14) The respondent’s capability and resources in providing any redress and restitution; (15) The respondent’s willingness to voluntarily comply with all the sanctions assessed in the notice of civil resource violation for any specific violation; and (16) Any other factors that may be identified as constructive for the fair assessment of administrative sanctions. [Eff and comp 2/27/09] (Auth: HRS §199D-1) (Imp: HRS §199D-1)