09.12.20.13

.13 Hearings — General.

A. Application.

(1) This regulation supplements the notice and hearing requirements of the Administrative Procedure Act—Contested Cases, State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

(2) In the event of a conflict with COMAR 28.02.01, the provisions set forth in this chapter control the conduct of a hearing conducted under the Act.

B. Discovery. Except as required by State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland, discovery, including a request for production of documents, interrogatories, and depositions, is not allowed.

C. Service.

(1) A party may be served with a document by:

(a) Personal delivery; or

(b) Mail sent to the last known address of the party.

(2) A person serving a document shall certify to the manner and date of service.

D. Notice of Hearing.

(1) The Commissioner shall serve notice of a hearing on all parties at least 10 days before the hearing, and ensure that the notice conforms to State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

(2) When the Commissioner appoints a hearing examiner to hold a hearing under this chapter, the Commissioner or the Commissioner's authorized representative shall provide to the hearing examiner a copy of the notice of hearing, together with the citation and notice of contest or any written request for hearing.

E. Subpoena.

(1) On application of a party, the hearing examiner assigned the case shall immediately issue a subpoena requiring the:

(a) Attendance and testimony of a witness; and

(b) Production of evidence, including relevant books, records, correspondence, or documents in the possession or under control of the person subpoenaed.

(2) An application for subpoena may be made ex parte.

(3) A subpoena shall show on its face the name and address of the party requesting the subpoena.

(4) A hearing examiner shall recommend to the Commissioner that proceedings be initiated to enforce the subpoena, if:

(a) A person fails to comply with a subpoena; and

(b) In the hearing examiner's opinion, the testimony of the witness is material to the proceedings.

F. Parties.

(1) Employee.

(a) An affected employee may elect to participate as a party by filing a written request for party status with the hearing examiner.

(b) A request for party status shall be filed:

(i) Before the hearing begins; or

(ii) For good cause shown, at a later date.

(c) If a hearing examiner denies a request for party status:

(i) An employee may file with the Commissioner a written request for review of the denial; and

(ii) The Commissioner immediately shall review the request.

(2) Employer. If an employee files a notice of contest challenging the reasonableness of the period for abatement of a violation, the employer responsible for abating the violation may elect party status at any time before the hearing begins.

(3) Representatives of Parties.

(a) A party may appear in person or through a representative.

(b) An affected employee represented by an authorized representative may appear only through the representative.

(c) A party may withdraw the appearance of its representative by:

(i) Filing a written notice of withdrawal; and

(ii) Serving a copy of the notice on each party.

(d) A representative of a party shall control all matters affecting the party's interest in the proceeding.

G. Postponement.

(1) Postponement of a hearing generally is not allowed.

(2) Except in the case of an emergency or in unusual circumstances, a request for postponement may not be considered unless it is received in writing by the Commissioner or the hearing examiner at least 3 work days before the date set for the hearing.

(3) A postponement of more than 30 days is not allowed without the approval of the Commissioner.

H. Failure to Appear.

(1) Except as otherwise provided by this section, if a party filing a notice of contest fails to appear at a hearing of which that party has notice, the failure is considered:

(a) A waiver of the hearing; and

(b) Except for a hearing on a motion or other procedural matter, a withdrawal of the notice of contest.

(2) When a failure to appear at a hearing is considered a withdrawal of the notice of contest, the:

(a) Hearing examiner shall promptly serve on all parties notification that the notice of contest is considered to have been withdrawn; and

(b) Party filing the notice of contest has 15 work days from receipt of the notice of withdrawal to request the notice of contest be reinstated.

(3) A request for reinstatement:

(a) Shall be filed in writing with the Commissioner; and

(b) May be granted by the Commissioner only upon a showing of good cause for the failure to appear for hearing.

I. Record of Hearing. A hearing, including a hearing on a motion, shall be recorded word for word.