Chapter 4759-8 Severability

4759-8-01 Representatives; appearances communications; applicability.

(A) As used in Chapter 4759-8 of the Administrative Code, "respondent" shall be defined as the person who is requesting or has requested a hearing as provided in Chapter 119. of the Revised Code.

(B) The respondent may represent himself or may be represented by an attorney admitted to the practice of law in Ohio. If the respondent does represent himself, he shall be deemed the representative of record for purposes of Chapter 4759-8 of the Administrative Code.

(C) The respondent is not required to personally appear at any hearing provided he has not been subpoenaed and has authorized his representative to represent him in all facets of a hearing before the board.

(D) The respondent or his representative may present his position, arguments, or contentions in writing rather than personally appearing at any hearing provided the respondent has not been subpoenaed.

(E) The representative of record for the respondent shall enter his appearance in writing.

(F) The representative of record from the office of the attorney general shall enter his appearance in writing.

(G) One who has entered an appearance as representative remains the representative of record unless and until a written withdrawal is filed with the board.

(H) Except as otherwise provided under Chapter 119. of the Revised Code, communications from the board or its attorney hearing examiner shall be sent to the representative of record.

(I) The members of the board shall base their decisions on any matter subject to hearing only on the evidence of record. No information acquired by a member of the board in any way other than by review of the evidence of record shall be considered by such member in that member's decision on a matter subject to hearing. The receipt of information about a matter subject to hearing outside the evidence of record shall not disqualify the member from participating in the decision on that matter unless the member excuses himself or herself from participation in the decision on the ground that he or she cannot restrict his or her decision on the matter only to the evidence of record.

(J) Except as otherwise provided under this chapter or by statute, no attorney hearing examiner or member of the board shall initiate or consider ex parte communications concerning a pending or impending adjudicatory proceeding. Nothing contained herein, however, shall preclude the attorney hearing examiner from nonsubstantive ex parte communications on procedural matters and matters affecting the efficient conduct of adjudicatory hearings.

(K) The attorney hearing examiner and members of the board shall disclose on the record the source and substance of any ex parte or attempted ex parte communications. That disclosure shall be made at the earliest possible opportunity, but at least prior to deliberation on a pending or impending adjudicatory proceeding.

(L) Except as otherwise provided under this chapter or by statute, a rule promulgated under this chapter shall apply only to those administrative proceedings for which the notice of opportunity for hearing was mailed to respondent, or his representative, on or after the effective date of the particular rule.

R.C. 119.032 review dates: 12/20/2012 and 12/20/2017
Promulgated Under: 119.03
Statutory Authority: 4759.05(A)
Rule Amplifies: 119, 4759.09 , 4759.07(A)(1)
Prior Effective Dates: 3/15/03

4759-8-02 Filing request for hearing.

(A) In order to request a hearing under Chapter 119. of the Revised Code, a respondent or his representative must, in accordance with rule 4759-8-01 of the Administrative Code, file in writing a statement requesting such adjudication hearing within thirty days of the date of mailing of the board's notice of opportunity for hearing. The date of mailing shall be the date appearing on the certified mail receipt.

(B) A respondent or his representative properly filing a request for an adjudication hearing shall be entitled to such adjudication hearing within fifteen days but not sooner than seven days after such request has been filed unless both representatives agree otherwise or a continuance is granted pursuant to section 119.09 of the Revised Code and rule 4759-8-07 of the Administrative Code.

R.C. 119.032 review dates: 12/20/2012 and 12/20/2017
Promulgated Under: 119.03
Statutory Authority: 4759.05(A)
Rule Amplifies: 119, 4759.09 , 4759.07(A)(1)
Prior Effective Dates: 3/15/03

4759-8-03 Notice of hearings.

Notice specifying the date, time and place set for hearing shall be mailed by certified mail to the representatives as identified in rule 4759-8-01 of the Administrative Code.

R.C. 119.032 review dates: 12/20/2012 and 12/20/2017
Promulgated Under: 119.03
Statutory Authority: 4759.05(A)
Rule Amplifies: 119, 4759.09 , 4759.07(A)(1)
Prior Effective Dates: 3/15/03

4759-8-04 Authority and duties of attorney hearing examiners.

(A) Adjudication hearings may be conducted before the board or an attorney hearing examiner pursuant to sections 4759.07 and 4759.09 of the Revised Code. All attorney hearing examiners shall perform their duties in accordance with a current contract with the board.

(B) All hearings shall be open to the public, but the hearing examiner or presiding board member conducting a hearing may close the hearing to the extent necessary to protect compelling interests and rights or to comply with statutory requirements. In the event the hearing is closed, the hearing examiner or presiding board member shall state the reasons therefore in the public record.

(C) Hearings shall be conducted in such a manner as to prevent unnecessary delay, maintain order, and ensure the development of a clear and adequate record.

(D) The authority of the attorney hearing examiner or presiding board member shall include, but not be limited to, authority to:

(1) Administer oaths and affirmations;

(2) Order issuance of subpoenas and subpoenas duces tecum to require the attendance of witnesses at hearings and depositions and to require the production of evidence for hearings and depositions;

(3) Examine witnesses and direct witnesses to testify;

(4) Make rulings on the admissibility of evidence;

(5) Make rulings on procedural motions, whether such motions are oral or written;

(6) Hold prehearing and status conferences pursuant to rules 4759-8-17 and 4759-8-18 of the Administrative Code;

(7) Request briefs before, during or following the hearing, as well as suggested findings, orders, and conclusions of law within such time limits as the attorney hearing examiner or presiding board member may determine;

(8) Prepare entries, findings, orders, or reports and recommendations pursuant to rule 4749-8-15 of the Administrative Code;

(9) Request preparation of entries, findings, or orders;

(10) Make rulings on requests to broadcast, record, televise or photograph the hearing;

(11) Take such other actions as may be necessary to accomplish the purposes of paragraph (C) of this rule;

(12) Determine the order in which any hearing shall proceed.

(E) The authority of the attorney hearing examiner or presiding board member shall not include authority to:

(1) Grant motions for dismissal of charges;

(2) Modify, compromise, or settle charges or allegations.

(F) The attorney hearing examiner or presiding board member shall have such other powers, duties, and authority as are granted by statutes or rules.

(G) If the hearing is held before an attorney hearing examiner, all rulings on evidence and motions and on any other procedural matters shall be subject to review by the board upon presentation of the proposed findings of facts and conclusions of law. When such rulings warrant, the matter may be remanded to the attorney hearing examiner.

R.C. 119.032 review dates: 12/20/2012 and 12/20/2017
Promulgated Under: 119.03
Statutory Authority: 4759.05(A)
Rule Amplifies: 119, 4759.09 , 4759.07(A)(1)
Prior Effective Dates: 03/15/03

4759-8-05 Consolidation.

Upon motion by any representative of record, the attorney hearing examiner or presiding board member may consolidate two or more hearings into a single hearing.

R.C. 119.032 review dates: 12/20/2012 and 12/20/2017
Promulgated Under: 119.03
Statutory Authority: 4759.05(A)
Rule Amplifies: 119, 4759.09 , 4759.07(A)(1)
Prior Effective Dates: 03/15/03

4759-8-06 Intervention.

Petitions to intervene shall not be permitted.

R.C. 119.032 review dates: 12/20/2012 and 12/20/2017
Promulgated Under: 119.03
Statutory Authority: 4759.05(A)
Rule Amplifies: 119, 4759.09 , 4759.07(A)(1)
Prior Effective Dates: 03/15/03

4759-8-07 Continuance of hearing.

(A) The board or the board through its attorney hearing examiner, may continue a hearing upon its own motion in order to more efficiently and effectively conduct its business unless the circumstances establish that a continuance would not serve the interest of justice.

(B) The attorney hearing examiner or presiding board member may continue a hearing upon the motion of a representative of record.

(C) Hearings shall not be continued upon motion by a representative unless a showing of reasonable cause and proper diligence is presented. Before granting any continuance, consideration shall be given to harm to the public which may result from delay in proceedings. In no event will a motion for a continuance by a representative, requested less than five days prior to the scheduled date of the hearing, be granted unless it is demonstrated that an extraordinary situation exists which could not have been anticipated and which would justify the granting of a continuance.

(D) No continuance of an adjudicatory hearing under section 4759.09 of the Revised Code shall be granted without the written agreement of the respondent or his representative and the board.

(E) If a continuance is granted, the attorney hearing examiner or presiding board member shall immediately establish a new hearing date, unless circumstances prohibit.

(F) Hearings shall not be continued due to the unavailability of a subpoenaed witness without approval of the attorney hearing examiner or presiding board member. The hearing record may be held open to accept a deposition in lieu of oral testimony of a subpoenaed witness. The procedures set forth in rule 4759-8-19 of the Administrative Code shall apply to any deposition taken pursuant to this rule.

(G) No adjudication hearing shall be continued for more than ninety days for the purpose of exchanging witness or document lists to the extent provided in rule 4759-8-16 of the Administrative Code unless the board or attorney hearing examiner finds in writing that such exchange was diligently pursued but was not completed due to the unusual circumstances of the case.

R.C. 119.032 review dates: 12/20/2012 and 12/20/2017
Promulgated Under: 119.03
Statutory Authority: 4759.05(A)
Rule Amplifies: 119, 4759.09 , 4759.07(A)(1)
Prior Effective Dates: 03/15/03

4759-8-08 Motions.

(A) Except as otherwise provided under Chapter 4759-8 of the Administrative Code or Chapter 119. of the Revised Code, all motions, unless made upon the record at the hearing, shall be made in writing. A written motion shall state with particularity the relief or order sought, shall be accompanied by a memorandum setting forth the grounds therefor, and shall be filed in compliance with rule 4759-8-09 of the Administrative Code. A proposed entry may accompany any motion. All motions except those filed subsequent to the close of the hearing shall be made no later than fourteen days before the date of hearing unless express exception is granted by the attorney hearing examiner, the presiding board member, or by this chapter.

(B) All motions, together with supporting documentation, if any, shall be served as provided in rule 4759-8-10 of the Administrative Code.

(C) Within ten days after service of a written prehearing motion, or such other time as is fixed by the attorney hearing examiner or presiding board member, a response to that motion may be filed. A movant may reply to a response only with the permission of the attorney hearing examiner or presiding board member.

(D) Before ruling upon a written motion, all memoranda and supporting documents filed shall be considered. A written ruling shall be entered and copies shall be issued to the representatives as identified under rule 4759-8-01 of the Administrative Code. The ruling on all oral motions made at hearing shall be included in the record except where the board or the attorney hearing examiner elects to take the motion under advisement and issue a written ruling at a later time. The attorney hearing examiner or presiding board member shall include in each written ruling on a motion a short statement of the reasons therefor.

(E) Except as otherwise provided in this chapter or Chapter 119. of the Revised Code, rulings on all motions filed subsequent to the issuance of the report and recommendation shall be rendered by the board or, if the board is not in session, by the presiding board member acting on its behalf.

R.C. 119.032 review dates: 12/20/2012 and 12/20/2017
Promulgated Under: 119.03
Statutory Authority: 4759.05(A)
Rule Amplifies: 119, 4759.09 , 4759.07(A)(1)
Prior Effective Dates: 03/15/03

4759-8-09 Filing.

(A) A document is "filed" when it is received and time stamped in the offices of the board. The burden of ensuring proper filing of the document(s) is borne by the party filing the document(s).

(B) An original of any document required to be filed by Chapter 4731-13 of the Administrative Code shall be filed with the board not more than three days after service.

(C) All filings shall be addressed to the board to the attention of its executive secretary/executive director and shall contain the name, address, and telephone number of the person submitting the motion or brief and shall be appropriately captioned to indicate the name of the respondent.

R.C. 119.032 review dates: 12/20/2012 and 12/20/2017
Promulgated Under: 119.03
Statutory Authority: 4759.05(A)
Rule Amplifies: 119, 4759.09 , 4759.07(A)(1)
Prior Effective Dates: 3/15/03, 3/21/08

4759-8-10 Service on parties.

(A) Any document required by Chapter 4759-8 of the Administrative Code to be served by a representative of record may be served either personally, or by mail. Service shall be made upon the representative as identified in rule 4759-8-01 of the Administrative Code. Service is complete on the post mark date or on personal service of the document.

(B) All motions and briefs shall contain the name, address, and telephone number of the person submitting the motion or brief and shall be appropriately captioned to indicate the name of the respondent.

(C) A motion shall be considered by the board or its attorney hearing examiner only if a certificate of service appears on it. Any signed statement is an acceptable certificate of service so long as it contains all of the following information:

(1) Date of service;

(2) Method by which service was made;

(3) Address where service was made; and

(4) Name of the person or authority who was served.

R.C. 119.032 review dates: 12/20/2012 and 12/20/2017
Promulgated Under: 119.03
Statutory Authority: 4759.05(A)
Rule Amplifies: 119, 4759.09 , 4759.07(A)(1)
Prior Effective Dates: 03/15/03

4759-8-11 Computation and extension of time.

(A) The date of occurrence of the event causing time to run is not counted in the computation of any time limit under Chapter 4759-8 of the Administrative Code. The last day of the period is included in the computation of the time limit. If the last day of a period is not a regular business day, the time period runs through the end of the next regularly scheduled business day.

(B) The board or its attorney hearing examiner may extend the time for filing or responding to motions and briefs.

(1) Requests for extension of time shall be made in writing and filed as provided in rule 4759-8-09 of the Administrative Code prior to the expiration of any applicable time limit.

(2) Requests for extension of time shall be addressed to the attention of the board's executive secretary/executive director and shall be served as provided in rule 4759-8-10 of the Administrative Code.

R.C. 119.032 review dates: 12/20/2012 and 12/20/2017
Promulgated Under: 119.03
Statutory Authority: 4759.05(A)
Rule Amplifies: 119, 4759.09 , 4759.07(A)(1)
Prior Effective Dates: 3/15/03, 3/21/08

4759-8-12 Transcripts.

(A) Duplicate transcripts of the stenographic record taken of hearings may be obtained directly from the court reporter at the requestor's expense prior to receipt of the original transcript by the board.

(B) Upon request made to the board's executive secretary/executive director, a copy of original transcripts may be reviewed at the board offices. Additional copies may be prepared at the requestor's expense.

(C) Original transcripts shall not be removed from the board offices.

R.C. 119.032 review dates: 12/20/2012 and 12/20/2017
Promulgated Under: 119.03
Statutory Authority: 4759.05(A)
Rule Amplifies: 119, 4759.09 , 4759.07(A)(1)
Prior Effective Dates: 3/15/03, 3/21/08

4759-8-13 Subpoenas for purposes of hearing.

(A) Upon written request of either party, the board shall issue subpoenas for purposes of hearing to compel the attendance and testimony of witnesses and production of books, records and papers. Each subpoena shall indicate on whose behalf the witness is required to testify. Copies of such subpoenas shall be issued to the representatives as identified in rule 4759-8-01 of the Administrative Code.

(B) For purposes of a hearing conducted under Chapter 119. of the Revised Code, subpoena requests shall specify the name and address of the individual to be served and the date, time, and location at which they are to appear. With respect to the production of books, records and papers, such request may specify a date of compliance not more than seven days prior to hearing.

(C) Except upon leave of the board or its attorney hearing examiner or presiding board member, subpoena requests are to be filed with the board as provided in rule 4759-8-09 of the Administrative Code at least fourteen days in advance of the requested date of compliance in order to allow sufficient time for preparation and service of the subpoenas.

(D) In the event that the number of subpoenas requested appears to be unreasonable, the board or its attorney hearing examiner may require a showing of necessity therefore, and, in the absence of such showing, may limit the number of subpoenas, Absent such a limitation, subpoenas shall be issued within five business days of request. Failure to issue subpoenas within this time may constitute sufficient grounds for the granting of a continuance.

(E) After the hearing has commenced, the board or its attorney hearing examiner or presiding board member may order the issuance of subpoenas for purposes of hearing to compel the attendance and testimony of witnesses and production of books, records and papers. Copies of such subpoenas shall be issued to the representatives as identified in rule 4759-8-01 of the Administrative Code.

(F) Upon motion and for good cause, the board or its attorney hearing examiner or presiding board member may order any subpoena be quashed. Motions to quash shall be made in the manner provided in rules 4759-8-08 and 4759-8-09 of the Administrative Code, except that motions to quash shall be filed at least five days prior to the date of compliance. The non-moving party may file a response no later than four days after service of the motion to quash or at least one day prior to the date of compliance whichever is earlier. Unless a motion to quash has been granted, a witness shall attend the hearing to which he was subpoenaed. The board shall make a reasonable attempt to contact any witness whose subpoena has been quashed.

(G) Witnesses may not be subpoenaed to prehearing conferences.

R.C. 119.032 review dates: 12/20/2012 and 12/20/2017
Promulgated Under: 119.03
Statutory Authority: 4759.05(A)
Rule Amplifies: 119, 4759.09 , 4759.07(A)(1)
Prior Effective Dates: 3/15/03

4759-8-14 Mileage reimbursements and witness fees.

(A) Mileage shall be paid in the same manner as that allowed in the court of common pleas in criminal cases in the county of hearing.

(B) The respondent may not subpoena himself.

(C) Mileage and witness fees shall not be paid to anyone who fails to register at the hearing for which he was subpoenaed.

R.C. 119.032 review dates: 12/20/2012 and 12/20/2017
Promulgated Under: 119.03
Statutory Authority: 4759.05(A)
Rule Amplifies: 119, 4759.09 , 4759.07(A)(1)
Prior Effective Dates: 3/15/03

4759-8-15 Reports and recommendations.

(A) Within thirty days following the close of an adjudication hearing conducted by an attorney hearing examiner pursuant to Chapter 119. of the Revised Code, the attorney hearing examiner shall submit a written report setting forth proposed findings of fact and conclusions of law and a recommendation of the action to be taken by the board. The hearing shall not be considered closed until such time as the record is complete, as determined by the attorney hearing examiner.

(B) A copy of such written report shall be issued to the representatives of record as identified in rule 4759-8-01 of the Administrative Code. The copy issued to the respondent's representative of record shall be accompanied by notice of the date the report and recommendation is to be considered by the board.

(C) The respondent's representative of record may, within ten days of his receipt of the attorney hearing examiner's report and recommendation, file written objections to the report and recommendation. Only those objections filed in a timely manner shall be considered by the board before approving, modifying, or disapproving the attorney hearing examiner's recommendation.

(D) Upon written request, the board may grant extensions of the time within which to file objections. In the event that the board is not in session, the chairman of the board may grant such extensions.

(E) The board shall consider the attorney hearing examiner's report and recommendation and any objections thereto at its next regularly scheduled meeting after the time for filing objections has passed. At that time, the board may order additional testimony to be taken or permit the introduction of further documentary evidence, or act upon the report and recommendation. For purposes of taking such additional testimony or documentary evidence, the board may remand to the attorney hearing examiner.

(F) Any motion to reopen the hearing record for purposes of introducing newly discovered material evidence which, with reasonable diligence could not have been discovered and produced at the hearing shall be made in the manner provided in rules 4759-8-08 and 4759-8-09 of the Administrative Code. Such motion to reopen shall be filed not later than ten days prior to the scheduled consideration by the board of the attorney hearing examiner's report and recommendation and any objections thereto. If such motion is filed prior to the issuance of the attorney hearing examiner's report and recommendation, the attorney hearing examiner shall rule on the motion. If such motion is filed subsequent to the issuance of the attorney hearing examiner's report and recommendation, the board shall rule upon the motion.

(G) Without leave of the board, the respondent or any representative of record shall not be permitted to address the board at the time of consideration of the attorney hearing examiner's report and recommendation. Any request for such leave shall be filed by motion no less than five days prior to the date the report and recommendation is to be considered by the board and shall be served upon the representative of record.

(H) If a request to address the board is granted, the opposing representative may also address the board.

R.C. 119.032 review dates: 12/20/2012 and 12/20/2017
Promulgated Under: 119.03
Statutory Authority: 4759.05(A)
Rule Amplifies: 119, 4759.09 , 4759.07(A)(1)
Prior Effective Dates: 3/15/03

4759-8-16 Exchange of documents and witness lists.

(A) Any representative of record may serve upon the opposing representative of record a written request for a list of both the witnesses and the documents intended to be introduced at hearing. All lists requested under this rule shall be exchanged no later than seven days prior to the commencement of the administrative hearing.

(B) Failure without good cause to comply with paragraph (A) of this rule may result in exclusion from the hearing of such testimony or documents, upon motion of the representative to whom disclosure is refused.

R.C. 119.032 review dates: 12/20/2012 and 12/20/2017
Promulgated Under: 119.03
Statutory Authority: 4759.05(A)
Rule Amplifies: 119, 4759.09 , 4759.07(A)(1)
Prior Effective Dates: 03/15/07

4759-8-17 Pre-hearing conference.

(A) At any time prior to hearing, the attorney hearing examiner or presiding board member may direct participation by the representatives of record in a prehearing conference. Such conference may be initiated by the attorney hearing examiner, by the board, or upon motion of either representative.

(B) Prehearing conferences may be held for the following purposes:

(1) Identification of issues;

(2) Obtaining stipulations and admissions;

(3) Agreements limiting the number of witnesses;

(4) Discussion of documents, exhibits, and witness lists;

(5) Estimating the time necessary for hearing;

(6) Discussion of any othe matters tending to expedite the proceedings.

(C) All representatives of record shall attend the prehearing conference fully prepared to discuss the items enumerated in paragraph (B) of this rule.

(D) Procedural orders may be issued by the attorney hearing examiner or presiding board member based upon information obtained at a prehearing conference.

R.C. 119.032 review dates: 12/20/2012 and 12/20/2017
Promulgated Under: 119.03
Statutory Authority: 4759.05(A)
Rule Amplifies: 119, 4759.09 , 4759.07(A)(1)
Prior Effective Dates: 03/15/03

4759-8-18 Requirements for pre-hearing exchange of information.

The hearing examiner or presiding board member shall, upon written motion of any representative of a party, issue an order setting forth a schedule by which the parties shall exchange hearing exhibits, identify lay and expert witnesses and exchange written reports from expert witnesses. Any written report by an expert required to be exchanged shall set forth the opinions to which the expert will testify and the bases for such opinions. The failure of a party to produce a written report from an expert under the terms of the order shall result in the exclusion of that expert's testimony at hearing. The failure of a party to produce an exhibit under the terms of the order shall result in the exclusion of that exhibit from evidence. The failure of a party to identify a lay or expert witness under the terms of the order may result in the exclusion of that witness' testimony at hearing.

R.C. 119.032 review dates: 12/20/2012 and 12/20/2017
Promulgated Under: 119.03
Statutory Authority: 4759.05(A)
Rule Amplifies: 119, 4759.09 , 4759.07(A)(1)
Prior Effective Dates: 03/15/03

4759-8-19 Status conference.

With or without written motion from the representative of any party, the attorney hearing examiner or presiding board member may convene a status conference with representatives of the parties to address any matter related to preparation for hearing or the conduct of a hearing. The hearing examiner may issue such orders related to preparation for hearing and the conduct of the hearing which in the judgment of the hearing examiner facilitate the just and efficient disposition of the subject of the hearing.

R.C. 119.032 review dates: 12/20/2012 and 12/20/2017
Promulgated Under: 119.03
Statutory Authority: 4759.05(A)
Rule Amplifies: 119, 4759.09 , 4759.07(A)(1)
Prior Effective Dates: 3/15/03

4759-8-20 Depositions and transcripts of prior testimony.

(A) Upon written motion of any representative of record, and upon service of that motion to all other representatives, the attorney hearing examiner may order that the testimony of a prospective witness be taken by deposition under such conditions and terms as specified in the order and that any designated books, papers, documents or tangible objects, not privileged, be produced at the same time and place if it appears probable that:

(1) The prospective witness will be unavailable to attend or will be prevented from attending a hearing; and

(2) The testimony of the prospective witness is material; and

(3) The testimony of the prospective witness is necessary in order to prevent a failure of justice.

In the case of an expert witness, a showing of the unavailability of the expert shall not be necessary for consideration of the motion of a representative to take a deposition.

(B) The representatives shall agree to the time and place for taking the deposition in lieu of live testimony. Depositions shall be conducted in the same county in which the hearing is conducted unless otherwise agreed to by the representatives. If the representatives are unable to agree, the attorney hearing examiner or presiding board member shall set the time or fix the place of deposition. At a deposition taken pursuant to this rule, representatives shall have the right, as at hearing, to fully examine witnesses. The attorney hearing examiner has the discretion to be present at the deposition in lieu of testimony at hearing.

(C) A deposition taken under this rule shall be filed with the board not later than one day prior to hearing, and may be offered into evidence at hearing by either representative in lieu of the prospective witness' personal appearance. The cost of preparing a transcript of any testimony taken by deposition in lieu of live testimony which is offered as evidence at the hearing shall be borne by the board. In the event of appeal, such costs shall be made a part of the cost of the hearing record. The expense of any video deposition shall be borne by the requestor.

R.C. 119.032 review dates: 12/20/2012 and 12/20/2017
Promulgated Under: 119.03
Statutory Authority: 4759.05(A)
Rule Amplifies: 119, 4759.09 , 4759.07(A)(1)
Prior Effective Dates: 03/15/03

4759-8-21 Prior action by the board.

The attorney hearing examiner or presiding board member shall admit evidence of any prior disciplinary action entered by the Ohio board of dietetics against the respondent.

R.C. 119.032 review dates: 12/20/2012 and 12/20/2017
Promulgated Under: 119.03
Statutory Authority: 4759.05(A) (1)
Rule Amplifies: 119, 4759.09 , 4759.07(A)(1)
Prior Effective Dates: 03/15/03, 03/21/08

4759-8-22 Stipulation of facts.

Representatives of record may, by stipulation, agree on any or all facts involved in proceedings before the attorney hearing examiner or presiding board member. Thereafter the attorney hearing examiner or presiding board member may require development of any fact deemed necessary for just adjudication.

R.C. 119.032 review dates: 12/20/2012 and 12/20/2017
Promulgated Under: 119.03
Statutory Authority: 4759.05(A)
Rule Amplifies: 119, 4759.09 , 4759.07(A)(1)
Prior Effective Dates: 03/15/03

4759-8-23 Witnesses.

(A) All witnesses shall testify under oath or affirmation.

(B) A witness may be accompanied and advised by legal counsel. Participation by counsel for a witness other than the respondent is limited to protection of that witness' rights, and that legal counsel may neither examine nor cross-examine any witnesses.

(C) Should a witness refuse to answer a question ruled proper at a hearing or disobey a subpoena, the board may institute contempt proceedings pursuant to section 119.09 of the Revised Code.

(D) The presiding attorney hearing examiner or any board member, because of his duties, shall not be a competent witness nor subject to deposition in any adjudication proceeding. Unless the testimony of a board member or an attorney hearing examiner is material to the factual allegations set forth in the notice of opportunity for hearing, board members and attorney hearing examiners shall not be competent witnesses nor subject to deposition in any adjudication proceeding. Evidence from other persons relating to the mental processes of the presiding attorney hearing examiner or board members shall not be admissible.

(E) Any representative of record may move for a separation of witnesses. Expert witnesses shall not be separated.

(F) Each representative of record shall inform the attorney hearing examiner or presiding board member prior to the commencement of a hearing of the identity of each potential witness for his cause present in the hearing room. Failure to so identify potential witnesses at this time may be grounds for their later disqualification as witnesses.

(G) No witnesses shall be permitted to testify as to the nature, extent, or propriety of disciplinary action to be taken by the board. A witness may, in the discretion of the attorney hearing examiner or presiding board member, testify as to an ultimate issue of fact.

R.C. 119.032 review dates: 12/20/2012 and 12/20/2017
Promulgated Under: 119.03
Statutory Authority: 4759.05(A)
Rule Amplifies: 119, 4759.09 , 4759.07(A)(1)
Prior Effective Dates: 03/15/03

4759-8-24 Conviction of a crime.

A certified copy of a plea of guilty to, or a judicial finding of guilt of any crime in a court of competent jurisdiction is conclusive proof of the commission of all of the elements of that crime.

R.C. 119.032 review dates: 12/20/2012 and 12/20/2017
Promulgated Under: 119.03
Statutory Authority: 4759.05(A)
Rule Amplifies: 119, 4759.09 , 4759.07(A)(1)
Prior Effective Dates: 03/15/03

4759-8-25 Rules of evidence.

(A) The "Ohio Rules of Evidence" may be taken into consideration by the board or its attorney hearing examiner in determining the admissibility of evidence, but shall not be controlling.

(B) The attorney hearing examiner or presiding board member may permit the use of electronic or photographic means for the presentation of evidence.

R.C. 119.032 review dates: 12/20/2012 and 12/20/2017
Promulgated Under: 119.03
Statutory Authority: 4759.05(A)
Rule Amplifies: 119, 4759.09 , 4759.07(A)(1)
Prior Effective Dates: 03/15/03

4759-8-26 Broadcasting and photographing administrative hearings.

If the attorney hearing examiner or presiding board member determines that broadcasting, televising, recording or taking of photographs in the hearing room would not distract participants or impair the dignity of the proceedings or otherwise materially interfere with the achievement of a fair administrative hearing, the broadcasting, televising, recording or taking of photographs during hearing proceedings open to the public may be permitted under the following conditions and upon request:

(A) Requests for permission for the broadcasting, televising, recording or taking of photographs in the hearing room shall be made in writing to the attorney hearing examiner or presiding board member prior to the commencement of the hearing, and shall be made a part of the record of the proceedings;

(B) Permission is expressly granted prior to commencement of the hearing in writing by the attorney hearing examiner and is made a part of the record of the proceedings;

(C) If the permission is granted, the place or places in the hearing room where operators and equipment are to be positioned shall be specified by the attorney hearing examiner or presiding board member.

(D) The filming, videotaping, recording or taking of photographs of witnesses who object thereto shall not be permitted.

R.C. 119.032 review dates: 12/20/2012 and 12/20/2017
Promulgated Under: 119.03
Statutory Authority: 4759.05(A)
Rule Amplifies: 119, 4759.09 , 4759.07(A)(1)
Prior Effective Dates: 03/15/03

4759-8-27 Sexual misconduct evidence.

In those cases where sexual misconduct has been alleged;

(A) Evidence of specific instances of the victim's sexual activity, opinion evidence of the victim's sexual activity, and reputation evidence of the victim's sexual activity shall not be admitted unless it involves evidence of the origin of semen, pregnancy, or disease, or the victim's sexual activity with the offender, and only to the extent that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.

(B) Prior to taking testimony or receiving evidence of any sexual activity of the victim, the attorney hearing examiner or presiding board member shall resolve the admissibility of the proposed evidence in a closed hearing. The victim may be represented by counsel in that hearing or other proceedings to resolve the admissibility of evidence upon approval by the attorney hearing examiner or presiding board member.

(C) Nothing in this rule shall be construed as limiting the authority of the hearing examiner or presiding board member to close a hearing as provided paragraph (B) of rule 4759-8-04 of the Administrative Code.

R.C. 119.032 review dates: 12/20/2012 and 12/20/2017
Promulgated Under: 119.03
Statutory Authority: 4759.05(A)
Rule Amplifies: 119, 4759.09 , 4759.07(A)(1)
Prior Effective Dates: 03/15/03

4759-8-28 Reinstatement of license.

Any disciplinary action taken by the board pursuant to division (A) of section 4759.07 of the Revised Code which results in suspension from practice shall either lapse by its own terms or contain a written statement of the conditions under which the license may be reinstated.

Such conditions may include but are not limited to:

(A) Submission of a written application for reinstatement;

(B) Payment of all appropriate fees as provided in Chapter 4759. of the Revised Code;

(C) Mental or physical examination;

(D) Additional education or training;

(E) Reexamination;

(F) Practice limitations;

(G) Participation in counseling programs;

(H) Demonstration that applicant can resume practice in compliance with acceptable and prevailing standards.

R.C. 119.032 review dates: 12/20/2012 and 12/20/2017
Promulgated Under: 119.03
Statutory Authority: 4759.05(A)
Rule Amplifies: 119, 4759.09 , 4759.07(A)(1)
Prior Effective Dates: 03/15/03

4759-8-29 Settlements, dismissals, and voluntary surrenders.

(A) Any matter which is the subject of a hearing may be settled at any time prior to the close of the hearing record. If settlement negotiations are to continue after the close of the hearing record, the representatives of record must, within ten days of the close of the hearing, jointly present the attorney hearing examiner or presiding board member with written notice specifying a period of time, not to exceed thirty days, for which the record is to be held open for purposes of negotiation. Such notice shall toll the thirty-day time period for issuance of finding of fact and conclusions of law pursuant to rule 4759-8-15 of the Administrative Code. If the attorney hearing examiner has not received appropriate written notice that a settlement agreement has been executed within the time period specified by the representatives' joint notice, the tolling of the attorney hearing examiner's thirty-day period for issuance of findings of fact and conclusions of law shall cease, no further settlement negotiations shall be undertaken, and no settlement agreement shall be executed in lieu of the issuance of a final order by the board.

(B) Settlement shall be negotiated on behalf of the board by the probable review panel. Concurrence of the full board will be required prior to the execution of any settlement agreement containing terms not in conformity with disciplinary guidelines previously adopted.

(C) All settlement agreements shall be in writing and shall be signed by the respondent and chairman of the board.

The representative from the office of the attorney general and the respondent's attorney, if any, shall sign the agreement in their representative capacities.

(D) Signed settlement agreements shall be submitted for ratification by the board.

(E) Authorization to enter a notice of dismissal must be received from the presiding board member or chairman. Such a notice may be entered at any time prior to closing of the hearing record. If negotiations are to be continued and the hearing record has been closed, the procedures in paragraph (A) of this rule must be followed. Any notice of dismissal must be signed by the board's chariman.

(F) In the event that the board issues an amended notice of opportunity for hearing, the original notice of opportunity for hearing is automatically superseded by the amended notice. To request a hearing pursuant to Chapter 119. of the Revised Code, the respondent must file a new hearing request in response to the amended notice of opportunity for hearing.

R.C. 119.032 review dates: 12/20/2012 and 12/20/2017
Promulgated Under: 119.03
Statutory Authority: 4759.05(A)
Rule Amplifies: 119, 4759.09 , 4759.07(A)(1)
Prior Effective Dates: 03/15/03