Continuances

The hearing examiner shall not grant a continuance except for good cause shown. A motion to continue a hearing shall be made at least 10 calendar days before the hearing date. [12/31/98; 15.1.14.16 NMAC - Rn, 15 NMAC 1.14.16, 5/31/00; A, 5/14/04] 15.1.14.17 DEFAULT; PROCEDURE FOR RECOMMENDATION OF DEFAULT: A. Failure of the respondent either to file an answer to the complaint or to appear at the hearing on the merits personally or by telephone, without having obtained a continuance, shall constitute an admission on all matters and facts contained in the complaint filed with respect to the respondent and shall be deemed a waiver of the right to an evidentiary hearing on the matter. B. If the respondent fails to file an answer to the complaint, the petitioner shall file a motion requesting the hearing examiner to recommend to the board that default judgment be entered against respondent. (1) The respondent shall file a response to the motion and shall request a hearing on the motion to recommend default judgment within 10 calendar days of the date the motion is served. Failure of the respondent to file a response and to request a hearing shall constitute consent to the granting of the motion. (2) If the respondent timely files a response to the motion, the hearing examiner shall hear the matter. The hearing examiner may deny the motion and allow the respondent additional time to answer the complaint if an accident, illness or other good cause prevented the respondent from timely answering the complaint. C. If a party fails to appear at a hearing on the merits personally or by telephone the hearing examiner may hear the evidence of witnesses who appear, and make a recommendation to the board based upon such evidence. Upon recommendation of the hearing examiner the board may proceed to consider the matter and dispose of it on the basis of the record before it. D. If an accident, illness, or other good cause prevents the respondent from requesting a continuance or appearing at the hearing, the respondent may, within 15 days of the date of the hearing, apply to the board to reopen the proceeding. Upon finding sufficient cause, the board shall immediately fix a time and place for the hearing and give the respondent notice as required under this rule. [12/31/98; 15.1.14.17 NMAC - Rn & A, 15 NMAC 1.14.17, 5/31/00; A, 5/14/04] 15.1.14.18 RECOMMENDED ACTION; FINAL DECISION: A. At the request of the hearing examiner or upon motion by either party granted by the hearing examiner, and before the hearing examiner recommends action by the board, the parties may submit briefs including findings of fact and conclusions of law for consideration by the hearing examiner. The hearing examiner has the discretion to request briefs or grant a motion to submit briefs on any point of law deemed appropriate by the hearing examiner. Briefs submitted shall include supporting reasons for any findings or legal conclusions and citations to the record and to relevant law. Should the hearing examiner request briefs or grant a party’s motion to submit briefs, the hearing shall be continued until the hearing examiner has given the briefs sufficient consideration and brings the hearing to a close. The hearing, however, shall be completed no later than forty five (45) days from the date of continuance. B. The hearing examiner shall prepare a written decision containing his or her recommendation of action to be taken by the board. The hearing examiner’s recommendation may include any combination, of the following: (1) revocation of the license or approval; (2) suspension of the license or approval; (3) limitation or conditioning of the license or approval; and 15.1.14 NMAC 5 (4) imposition of a fine not to exceed twenty five thousand dollars ($25,000) for the first violation and fifty thousand dollars ($50,000) for each subsequent violation. C. Notice of the hearing examiner’s recommended action shall be served on the parties within thirty (30) days of the conclusion of the hearing on the matter. Service shall be made by registered or certified mail. D. The board shall accept, reject or modify the hearing examiner’s recommendation by majority vote. The final decision or order shall be issued in writing and shall include a statement of findings and conclusions and the reasons therefore, on all material issues of fact, law or discretion involved, together with the specific action taken, including limiting, conditioning, suspending, or revoking any license or imposing a fine, or any combination thereof. The board shall not impose any sanction or order except within the board’s jurisdiction or as authorized by law. E. The board may dismiss an administrative complaint without recommendation of the hearing examiner upon its own motion. F. The final decision or order shall be public and shall become a part of the record.