Chapter 3746-7 Hearings

3746-7-01 Requisites for de novo hearings.

(A) If no adjudication hearing was conducted in accordance with sections 119.07 to 119.10 of the Revised Code, the commission shall conduct a de novo hearing on the appeal.

(B) If, in the notice of appeal or answer thereto, an issue is raised as to whether or not an adjudication hearing was held in accordance with paragraph (A) of this rule, and, therefore, what sort of hearing should be held on appeal, the commission shall decide upon this issue before proceeding further. The commission may hold a separate hearing on this issue.

(C) The director, the local board of health, or the state fire marshal, or state emergency response commission shall forward the certified record to the commission in accordance with rule 3746-5-12 of the Administrative Code. By agreement of the parties, the commission may order an indefinite extension for the filing of the certified record so long as such extension will not prejudice any party or unduly delay the proceedings.

(D) At the hearing, the commission shall have before it the certified record, shall hear such evidence as presented by the parties, and may hear closing statements. A record of the hearing shall be taken.

(E) Upon request of any party, the commission may allow oral argument under rule 3746-7-09 of the Administrative Code or permit the parties to file briefs on any issues raised in the hearing.

Effective: 07/26/2010
R.C. 119.032 review dates: 04/28/2010 and 04/28/2015
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 , 3745.06
Prior Effective Dates: 8/13/1973, 4/28/2000, 7/29/2005

3746-7-02 Notice and time of hearing.

Upon the filing of the appeal, the commission shall fix the time and place at which the hearing on the appeal will be held. The commission shall give the appellant and the appellee at least ten days written notice thereof by certified mail. The commission shall hold the hearing within thirty days after the notice of appeal is filed, unless the commission sets a later date.

Effective: 07/26/2010
R.C. 119.032 review dates: 04/28/2010 and 04/28/2015
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 10/23/73, 4/28/00

3746-7-03 Appearances and withdrawals.

(A) Except as prohibited by section 4705.01 of the Revised Code, any party may appear on his own behalf, or may be represented by an attorney at law admitted to practice before the supreme court of Ohio, or by an attorney admitted to practice by the commission pursuant to a motion to appear pro hac vice. In circumstances deemed to be appropriate , the commission may require that a party be represented by an attorney.

(B) Entries of appearance shall be filed with the commission and served upon all other parties to the proceeding.

(C) Any attorney withdrawing as a representative of a party to an appeal before the commission must notify the commission within three days of the withdrawal. A copy of such notice shall be served by the attorney on the party whom he had represented before the commission and on all other parties.

Effective: 07/26/2010
R.C. 119.032 review dates: 04/28/2010 and 04/28/2015
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 8/24/73, 4/28/00, 4/23/02

3746-7-04 Attendance of witnesses and production of documents at hearing.

(A) For the purpose of conducting a de novo hearing, or where the commission has granted a request for the admission of additional evidence, the commission may on its own motion require the attendance of witnesses and the production of written or printed materials.

(B)A party may move the commission for the issuance of a subpoena to require the attendance of witnesses and the production of documents at the de novo hearing. Except in extraordinary circumstances and upon leave of the commission, such a motion shall be made at least seven business days prior to the scheduled hearing date. Subpoenas requested for the attendance of witnesses or production of records at the de novo hearing shall be issued by the commission pursuant to section 3745.05 of the Revised Code.

(C) A witness at any hearing shall testify under oath or affirmation, which any member of the commission may administer. Upon request, a witness shall be permitted to be accompanied, represented, and advised by an attorney, whose participation in the hearing shall be limited to the protection of the rights of the witness.

(D) The refusal of a witness at any a hearing before the commission to answer any question which has been ruled proper shall, in the discretion of the commission, be grounds for:

(1) Striking all testimony given by the witness on related matters; or

(2) Instituting contempt proceedings in the court of common pleas.

(E) The commission may, on its own motion or on the motion of any party, provide for the separation of witnesses during the hearing.

(F) At the discretion of the commission, sworn testimony may be submitted in support of any relevant fact or in lieu of live testimony.

Effective: 07/26/2010
R.C. 119.032 review dates: 04/28/2010 and 04/28/2015
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 8/24/73, 10/23/73, 4/28/00, 7/29/05

3746-7-05 Postponements and continuances.

(A) The commission may postpone or continue any hearing upon its own motion or upon motion of a party. The motion for a postponement must state in detail the reasons why a postponement is necessary. A motion for postponement must be served upon all parties to the proceeding and filed with the commission at least ten days prior to the date of the hearing.

(B) Postponements of hearings will not be allowed except upon a showing of good cause.

(C) A motion for postponement served or filed less than ten days in advance of the hearing shall not be granted unless the moving party demonstrates that an extraordinary situation exists which could not have been anticipated and which would justifygranting a postponement. In any such situation, if time does not permit for the filing of such motion prior to the hearing, it may be made orally at the hearing.

(D) If a motion for a postponement is based upon the unavailability of a witness, the motion shall set forth the substance of the testimony of the absent witness.

(E) Continuances of hearings may be ordered by the commission in situations where a hearing cannot be concluded within the time initially set.

Effective: 07/26/2010
R.C. 119.032 review dates: 04/28/2010 and 04/28/2015
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 8/24/73, 4/28/00, 7/29/05

3746-7-06 Failure to appear for hearing.

(A) Any party who fails to appear for hearing shall be deemed to have submitted his case to the commissionof based on the record before it and such additional evidence and testimony as may be submitted at the hearing.

(B) Upon a showing of good cause, the commission may excuse the failure to appear at a hearing and reschedule the hearing

Effective: 07/26/2010
R.C. 119.032 review dates: 04/28/2010 and 04/28/2015
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 10/23/73, 4/28/00

3746-7-07 Hearing may be waived.

Upon agreement of all parties, a hearing may be waived and the matter submitted to the commission for a decision based on briefs, joint stipulations, affidavits, or such other evidence as the parties may submit.

Effective: 07/26/2010
R.C. 119.032 review dates: 04/28/2010 and 04/28/2015
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 1/2/73, 4/28/00

3746-7-08 Stipulations before the commission.

(A) A stipulation before the commission must have the concurrence of all parties to the appeal.

(B) Stipulations shall be made in writing or, in the discretion of the commission, may be made orally at a hearings.

(C) A stipulation is binding upon the parties and upon the commission and may serve as a basis of any final order of the commission.

(D) The commission cannot alter any part of a stipulation . The commission may, in an order, state its understanding of the meaning and content of the stipulation, which shall be binding upon all the parties and commission if no objection is made within five days of the receipt of said order or as otherwise directed by the commission.

(E) (E) The commission may refuse to accept a stipulation or may request that the parties clarify or explain their stipulations.

Effective: 07/26/2010
R.C. 119.032 review dates: 04/28/2010 and 04/28/2015
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 10/23/73, 4/28/00. 7/29/05

3746-7-09 Oral argument procedure.

(A) The commission may, on its own motionor on a motion of any party, order oral argument.

(B) All the parties shall be advised of the time and place at which oral argument will be heard.

(C) Unless otherwise ordered, each side will be allowed fifteen minutes for argument. A party is not required to use all of the time allowed, and the commission may terminate the argument whenever, in its judgment, further argument is unnecessary.

(D) Any party relying on authority not already provided shall provide the commission and all parties with copies of any such authority in advance of the oral argument.

(E) Pamphlets, charts, maps, exhibits, and other material may be presented to the commission at oral argument. All such material shall be limited to the issues being argued.

Effective: 07/26/2010
R.C. 119.032 review dates: 04/28/2010 and 04/28/2015
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 8/24/73, 4/28/00, 7/29/05