Procedures for Administrative Enforcement Action

(A) Notice of Agency Action. (1) Whenever the regulatory agency determines to suspend with notice, revoke, refuse to issue, or refuse to renew a license, permit, or certification or to assess civil monetary penalties, it shall issue a Notice of Agency Action. The Notice of Agency Action shall be in writing and shall specify: (a) The specific reasons(s) for which the particular Agency Action is to be taken, and the applicable provisions of law; (b) When the particular Agency Action will take effect; and (c) The procedure for requesting a hearing, unless no hearing is required pursuant to M.G.L. c. 30A, § 13 or other applicable state or federal law. (2) The Notice of Agency Action shall be served on the licensee, permit holder, person in charge, or operator using the same procedures specified in 105 CMR 500.206(B) for service of an Order to Cease and Desist. (B) Hearings. (1) The person to whom an Order of Summary Suspension, Order to Cease & Desist, or Notice of Agency Action is directed may request a hearing before the regulatory agency. Such request must be received by the regulatory agency within the time specified in the Order or Notice. (2) The failure to request a hearing within the time specified constitutes a waiver of the right to a hearing. (3) A hearing based on an Order of Summary Suspension or Order to Cease & Desist should be conducted within 96 hours after the regulatory agency receives the request for a hearing, or within such other time period as is specified by applicable statute. If such time period expires on a weekend day or holiday, the hearing may be held on the next business day. The parties may agree to extend such time period. (4) A hearing based on a Notice of Agency Action shall be commenced within a reasonable time after the regulatory agency receives the request for a hearing. (5) Failure to hold a hearing within the time periods specified is procedural and shall not affect the validity of the proceedings or constitute a defense to a violation. The applicant, licensee, or permit holder shall be given the opportunity for an administrative fair hearing to contest whether the proposed action should be taken. Any oral testimony given at a hearing shall be recorded verbatim (tape recording shall suffice). (7) The Notice of Violations/Order to Correct shall constitute prima facie evidence of the conditions listed therein. (8) The Department shall conduct hearings in accordance with M.G.L. c. 30A and all applicable provisions of 801 CMR 1.01: Formal Rules. (8) The hearing officer shall determine whether the Department met its burden of proof by a preponderance of the evidence, based on the relevant facts as they existed at or prior to the time the Department initiated the action. (9) If the hearing officer finds any ground for the action sought by the regulatory agency, the hearing officer shall render a written recommended decision affirming the action of the regulatory agency. (C) Department Enforcement Actions: Final Agency Decision and Judicial Review. In the case of enforcement actions initiated by the Department, the recommended decision of the hearing officer shall be reviewed by the Commissioner. After review and adoption or rejection, the Commissioner's decision shall constitute a final agency decision in an adjudicatory proceeding subject to judicial review pursuant to M.G.L. c. 30A, § 14. (2) Any applicant, licensee, permit holder, or other responsible person who fails to exercise his or her right to a hearing or withdraws the request for a hearing waives his or her right to review by the Commissioner. In such cases, the Department's findings shall become the final agency decision. The failure to request a hearing or the withdrawal of a request for a hearing shall be deemed a failure to exhaust administrative remedies.