Administrative Hearing Procedures

PURPOSE: This rule prescribes procedures to be followed where enforcement and other contested case hearings are held before the director. (1) Prehearing Motions. The director may consider any motions to dismiss, motions to vacate, motions for summary determination, or any other motions prior to commencement of the hearing on the merits. (2) Presentation of Opening Statements. The division within the department shall make the first opening statement. Other parties may make an opening statement immediately following the division’s statement or may do so prior to commencing their presentation of evidence. (3) Presentation of Evidence. The order in which the evidence will be presented is as follows: (A) The division within the department shall present its evidence first. The burden of proof in a hearing on the merits in matters relating to an order of the director, or the failure of the director to act, shall be on the agency. The burden of proof for affirmative defenses shall be upon the party claiming the affirmative defense; (B) Other parties shall then present their evidence; and (C) Each party has the right to rebut the evidence presented. (4) Closing Arguments. All parties may make closing arguments. The party with the burden of proof shall have the opportunity for rebuttal argument. (5) Default. Failure of a party to answer a verified petition, appear on the date set for hearing or failure to proceed as ordered by the director shall constitute a default. The director shall enter those findings, conclusions, opinions, recommendations or orders as are appropriate under the pleadings and evidence as the director shall receive into the record. (6) Rules of Evidence. (A) The director shall receive evidence which is admissible under the law of the rules of evidence of Missouri pertaining to civil actions or under the Administrative Procedure Act, Chapter 536, RSMo. In addition, the director may receive materially relevant evidence which would be relied upon by a reasonably prudent person in the conduct of serious affairs if it is reasonably necessary to resolution of the issue for which it is offered; provided that the rules relating to privileged communications and privileged topics shall be observed. (B) The director shall exclude immaterial, irrelevant and repetitious evidence. (C) When the admissibility of disputed evidence depends upon an arguable interpretation of substantive law, the director shall admit the evidence. (D) A party may conduct examinations or cross-examinations without adherence to formal rules of evidence, provided the examination or cross-examination can be shown to be necessary and pertinent to a full and fair disclosure of the subject matters of the hearing. (E) Official notice may be taken of all facts of which judicial notice may be taken and of other facts, of a technical nature, within the specialized knowledge and experience of the director. (7) Findings, Conclusions, Opinions and under the Insurance Laws (A) The director’s findings, conclusions, opinions and final orders shall be in writing and shall include findings of fact and conclusions of law or opinions separately stated when possible. Findings of fact shall be based exclusively on the evidence presented at the hearing or known to all parties, including matters officially noticed. Findings of fact, if set forth in statutory language, shall be accompanied by a statement of the underlying supporting facts. If a party submits proposed findings of fact which may control the decision or order, the decision or order shall include a ruling upon each proposed finding. Each conclusion of law shall be supported by authority or reasoned opinion. A decision or order shall not be except upon consideration of the record as a whole or such portion as may be supported by competent and substantial material evidence on the whole record. (B) A copy of the order immediately shall be delivered personally or mailed, postage prepaid, certified or registered, to each party and to his/her attorney of record. (C) The director, as part of the final order, may order any other relief authorized by law, including requiring any party to the proceeding to pay part or all of the costs of the hearing, including, but not limited to, witness fees, court reporter fees, director fees and the cost of the transcript. (D) The director may request that attorneys representing parties submit proposed orders at the close of the hearing. (8) Rehearings. (A) Except as otherwise provided by law and for good cause shown, the director may order, in the director’s discretion, a rehearing in a contested case on petition of an interested party. (B) Where the record of testimony made at the hearing is found by the director to be inadequate for purposes of judicial review, the director may order a reopening of the hearing. (C) A rehearing shall be noticed and conducted in the same manner as an original hearing. The evidence received at the rehearing shall be included in the record for director’s reconsideration and for judicial review. (D) Except as expressly permitted by law, no rehearing may be held in a contested case after order by the director unconditionally disposing of all issues. AUTHORITY: sections 354.120 and 374.045, RSMo 2000 and sections 374.705, 376.1528, and 385.218, RSMo Supp. 2007.* This rule was previously filed as 4 CSR 190-19.010. Original rule filed Aug. 5, 1974, effective Aug. 15, 1974. Amended: Filed Jan. 14, 1981, effective July 20, 1981. Amended: Filed March 16, 1988, effective June 27, 1988. Amended: Filed Aug. 30, 1996, effective March 30, 1997. Amended: Filed Sept. 5, 2007, effective May 30, 2008. *Original authority: 354.120, RSMo 1973, amended 1983, 1993, 1995; 374.045; RSMo 1967, amended 1993, 1995; 374.705, RSMo 1983, amended 1993, 2004; 376.1528, RSMo 2007; and 385.218, RSMo 2007.