1.1. Scope. -- This rule specifies the procedure for the adjudication of contested case hearings before the Board.
1.2. Authority. -- W. Va. Code §30-10-1 et seq. and §30-1-1 et seq.
1.3. Filing Date. November 24, 2010.
1.4. Effective Date. -- January 1, 2011.
The following words and phrases as used in this rule shall have
the following meanings, unless the context otherwise requires:
2.1. "Board" means the West Virginia Board of Veterinary Medicine.
2.2. "Demanding party" means an individual who has been denied
a license, permit, registration or certificate to practice a regulated
profession as specified in §30-10-1 et seq. of W. Va. Code by the Board
and who, as a result, demands that a hearing be held before the Board on
the issue of such denial, which is not related to the requirements for
such license, permit, registration or certificate as specified by W. Va.
Code or the Rules of the Board.
2.3. The term “Charged party” means an individual who holds a
license, permit, registration or certificate to practice a profession
under the authority of the Board as specified in §30-10-1 et seq. of W.
Va. Code and who has been charged by the Board as described in Section
3.4 of these rules.
2.4. “License” means a license to practice veterinary medicine
issued by the Board pursuant to W. Va. Code §30-10-1 et seq.
2.5. The term "Licensee" means an individual who holds a license to practice veterinary medicine issued by the Board.
2.6. “Permit” means a temporary permit to practice veterinary
medicine issued by the Board pursuant to W. Va. Code §30-10-1 et seq.
2.7. “Permittee” means a person holding a temporary permit to practice veterinary medicine.
2.8. “Registration” means a veterinary technician registration
issued under the provisions of W. Va. Code §30-10-1 et seq.
2.9. “Registrant” means a person holding a registration as a veterinary technician.
2.10. “Certificate” means an animal euthanasia certificate issued under the provisions of W. Va. Code §30-10-1 et seq.
2.11. “Certificate holder” means a person holding a certificate to euthanize animals.
2.12. “Practice of veterinary medicine” means the practice of veterinary medicine as defined in W. Va. Code §30-10-1.
2.13. “Hearing committee” means those members of the Board
assigned to hear a contested case. The hearing committee shall consist
of a quorum of the members of the Board.
3.1. Any applicant for reasons other than non-compliance with
the application completion requirements set by W. Va. Code and the Rules
of the Board who is denied a license, permit, registration or
certificate or any licensee, permittee, registrant or certificate holder
who has had their license, permit, registration or certificate
suspended by the Board who believes such denial or suspension was in
violation of W. Va. Code §§30-1-1 et seq. and/or 30-10-1 et seq. shall
be entitled to a hearing on the action denying or suspending such
license, permit, registration or certificate.
3.2. Any person who desires a hearing for the reason described
in subsection 3.1 of this section must present a written demand for
such to the Board.
3.3. When the chair of the Board or his or her authorized
designee is presented with such a demand for a hearing, he or she shall
schedule a hearing within 45 days of receipt by him or her of such
written demand, unless postponed to a later date by mutual agreement.
3.4. Charges may be instituted against any licensee,
permittee, registrant or certificate holder by the Board when probable
cause exists for believing that the licensee, permittee, registrant or
certificate holder may have engaged in conduct, practices or acts in
such condition that his or her license, permit, registration or
certificate should be suspended, revoked or otherwise disciplined for
one or more of the grounds set forth in W. Va. Code §30-10-19 et seq. or
the Board's legislative rules. Charges may be based upon information
received by way of a verified written complaint filed with the Board and
further information gathered by the Board in the process of
investigating such complaint. Charges may also be based upon information
received solely through investigative activities undertaken by the
3.5. Charges instituted against a licensee, permittee,
registrant or certificate holder as described in subsection 3.4 of this
section shall be set forth in a Complaint and Notice of Hearing issued
in the name of the Board as the agency of the state regulating the
profession. Such Complaint and Notice of Hearing shall designate the
Board as the “Complainant", and shall designate the licensee, permittee,
registrant or certificate holder involved in the proceeding as the
“Respondent"; shall set out the substance of each offense charged with
sufficient particularity to reasonably apprise the Respondent of the
nature, time and place of the conduct or condition complained of
therein; and shall state the date, time and place for the hearing.
3.6. Upon receipt of a demand for a hearing described in
subsections 3.1 and 3.2 of this section, the chair or his or her
designee shall provide the demanding party with a Complaint and Notice
of Hearing issued in the name of the Board. Such Complaint and Notice of
Hearing shall designate the demanding party as the "Complainant" and
shall designate the Board as the “Respondent"; shall set out the
substance of each and every reason that the Board has denied the
demanding party a license, permit, registration or certificate with
sufficient particularity to reasonably apprise the demanding party of
the nature, time and place of the conduct or condition at issue therein
or the deficiencies for completion of the application which caused the
denial; and shall state the date, time and place for the hearing, if the
reason for the hearing is unrelated to application requirements as
specified by law.
3.7. The Board may amend the charges set forth in a Complaint and Notice of Hearing as it deems proper.
3.8. A Complaint and Notice of Hearing shall be served upon
the demanding or charged party at least 30 days prior to the date of
3.9. Upon written motion received by the Board no later than
20 days prior to the date of hearing, a more definite statement of the
matters charged or the reasons stated for denial of the license, permit,
registration or certificate shall be provided to the demanding or
charged party or his or her counsel, at least 15 days prior to the
3.10. Hearings shall be conducted as follows:
3.10.1. Any party to a hearing shall have the right to
be represented by an attorney-at-law, duly qualified to practice law in
the state of West Virginia.
3.10.2. The Board shall be represented by the West Virginia Attorney General's Office.
3.10.3. Irrelevant, immaterial, or unduly repetitious
evidence shall be excluded from the hearing. Furthermore, the rules of
evidence as applied in civil cases in the circuit courts of this state
shall be followed. However, when necessary to ascertain facts not
reasonably susceptible of proof under those rules, evidence not
admissible there under may be admitted, except where precluded by
statute, if it is of a type, as determined by presiding member of the
hearing committee that is commonly relied upon by reasonably prudent
persons in the conduct of their affairs.
3.10.4. The rules of privilege recognized by the law of this state shall be followed.
3.10.5. Objections to evidentiary offers shall be noted
in the record. Any party to the hearing may vouch the record as to any
excluded testimony or other evidence.
3.10.6. Any party to a hearing may appear with witnesses
to testify on his or her behalf; may be heard in person, by counsel or
both; may present such other evidence in support of his or her position
as deemed appropriate by the Board and, when appropriate, may
cross-examine witnesses called by the Board in support of the charges or
in defense of its decision to deny licensure.
3.10.7. The hearing shall be held at such time and place
as is designated by the Board, but no hearing shall be conducted unless
and until at least 30 days written notice thereof has been served upon
the charged or demanding party and/or his or her attorney in person; or
if he or she cannot be found, by delivering such notice at his or her
usual place of abode, and giving written information of its purport, to
his wife or her husband, or to any other person found there who is
identified or identifies them self as a member of his or her family and
above the age of 16 years; or if neither his wife or her husband nor any
such person can be found there, and he or she cannot be found, by
leaving such notice posted at the front door of such place of abode; or
if he or she does not reside in this state, such notice may be served by
the publication thereof once a week for three successive weeks in a
newspaper published in this state; or such notice may by served by
registered or certified mail.
3.10.8. The hearing shall be open to the general public.
3.10.9. Members of the Board and its officers, agents
and employees shall be competent to testify at the hearing as to
material and relevant matters: Provided, that no member of the Board
who testifies at such hearing shall thereafter participate in the
deliberations or decisions of the Board with respect to the case in
which he testified.
3.10.10. A record of the hearing, including the
complaint(s), if applicable, the notice of hearing, all pleadings,
motions, rulings, stipulations, exhibits, documentary evidence,
evidentiary depositions and the stenographic report of the hearing,
shall be made and a transcript thereof maintained in the Board's files.
Upon request, a copy of the transcript shall be furnished to any party
at his or her expense.
3.10.11. Documentary evidence may be received in the form of copies or excerpts or by incorporation by reference.
3.10.12. Where a hearing is held upon the instance of
the Board after charges have been brought against a licensee, permittee,
registrant or certificate holder pursuant to subsection 3.4 and 3.5 of
this section, the Board shall have the burden of proof and shall
present its evidence and/or testimony in support of the charges first.
3.10.13. Where a hearing is held upon demand under the
provisions of subsections 3.1, 3.2, 3.3, and 3.6 of this action, the
demanding party shall have the burden of proof and shall therefore be
required to present his or her evidence first. The Board may require
the person demanding the hearing to give security for the costs thereof.
3.10.14. Following the conclusion of the Board's
presentation of evidence in accordance with subsection 3.10.13 of this
section the Respondent or charged party shall have the right to submit
his or her evidence in defense.
3.10.15. Following the conclusion of the demanding
party's presentation of evidence in accordance with subsection 3.10.14
of this section, the Board shall have the right to offer its evidence in
3.10.16. The Board may call witnesses to testify in
support of its decision to deny a license, permit, registration or
certificate or in support of the charges instituted against a licensee,
permittee, registrant or certificate holder; may present such other
evidence to support its position; and, may cross-examine witnesses
called by the demanding party or charged party in support of his or her
3.10.17. All parties shall have the right to offer
opening and closing arguments, not to exceed 10 minutes for each
3.10.18. Hearings held by the Board as a result of
charges instituted against a licensee, permittee, registrant or
certificate holder may be continued or adjourned to a later date or
different place by the Board or its designee by appropriate notice to
3.10.19. Motions for a continuance of a hearing may be
granted upon a showing of good cause. Motions for continuance must be in
writing and received in the office of the Board no later than 7 days
before the hearing date. In determining whether good cause exists,
consideration will be given by the Board to the ability of the party
requesting the continuance to proceed effectively without a continuance.
A motion for a continuance filed less than 7 days from the hearing
date shall be denied unless the Board finds that the reason for the
motion could not have been ascertained earlier. Motions for continuance
filed prior to the date of the hearing shall be ruled on by the chair or
executive director of the Board. All other motions after motions for
continuance shall be ruled on by the Board member(s) who serve on the
hearing committee or the member presiding over the hearing.
3.10.20. All motions related to a case set for hearing
before the Board, except motions for continuance as set forth in 3.10.20
of this rule and those made during the hearing, shall be in writing and
shall be received in the office of the Board at least 10 days before
the hearing. Prehearing motions shall be heard at a prehearing
conference or at the hearing prior to the commencement of testimony. The
Board member(s) presiding at the hearing shall hear the motions and the
response from the non-moving party and shall rule on such motions
4.1. All testimony, evidence, arguments and rulings on the
admissibility of testimony and evidence shall be reported by
stenographic notes and characters or by mechanical means.
4.2. All reported materials shall be transcribed. The Board
shall have the responsibility to make arrangements for the transcription
of the reported testimony and evidence.
4.3. Upon the motion of the Board or any party assigning error
or omission in any part of any transcript, the Board chair or presiding
member, if the Board chair is not serving on the hearing committee
shall settle all differences arising as to whether such transcript truly
discloses what occurred at the hearing and shall direct that the
transcript be corrected and/or revised as appropriate so as to make it
conform to the truth.
4.4. A transcript of the hearing shall be provided to all
members of the Board for review at least 10 days before the vote is
taken by the hearing committee on its decision in any licensure
5.1. Any party to a hearing may submit proposed findings of
fact and conclusions of law at a time and manner designated by the
6.1. At any time prior to the hearing or thereafter, the Board
or its designee may hold conferences for the following purposes:
6.1.1. To dispose of procedural requests, prehearing motions or similar matters;
6.1.2. To simplify or settle issues by consent of the parties; or,
6.1.3. To provide for the informal disposition of cases by stipulation or agreement.
6.2. The Board may cause such conferences to be held on its
own motion or by the request of a party, with the approval of the
6.3. The Board may also initiate or consider stipulation or
agreement proposals with regard to the informal disposition of cases and
may enter into such stipulations and/or agreements without conference.
6.4. A written record or transcript of the agreed to
stipulations or consent agreement shall be made by a transcriptionist or
the executive director of the Board.
6.5. Any such conference or meeting for discussion of a
settlement to avoid proceeding to a hearing shall, for the record, be
noted in the record as such, to assure compliance with the requirements
of this section.
7.1. Evidentiary depositions may be taken and read or
otherwise included into evidence as in civil actions in the circuit
courts of this state.
8.1. Subpoenas to compel the attendance of witnesses and
subpoenas duces tecum to compel the production of documents may be
issued by any member of the Board or its Executive Director. Such
subpoenas and subpoenas duces tecum shall be issued pursuant to W. Va.
Code §29A-5-1 (b).
8.2. Written requests by a party other than the Board for the
issuance of subpoenas or subpoenas duces tecum as provided in subsection
8.1 of this section must be received by the Board no later than 10 days
before a scheduled hearing. Any such party requesting the issuance of
subpoenas or subpoenas duces tecum shall see that they are properly
served in accordance with W. Va. Code §29A-5-1(b).
8.3. A person serving a subpoena or subpoena duces tecum at
the request of the Board shall be authorized by law to render this
service and his or her compensation for the service shall be in
accordance with W. Va. Code §29A-5-1.(b).
9.1. Any final order entered by the Board following a hearing
conducted pursuant to these rules shall be made pursuant to the
provisions of W. Va. Code §29A-5-3 and 30-1-8(d). Such orders shall be
entered within 45 days following the submission of all documents and
materials necessary for the proper disposition of the case, including
transcripts, and shall contain findings of fact and conclusions of law.
9.2. The findings of fact and conclusions of law must be
approved by a majority of the Board either by a written poll or vote at a
regular meeting, before a final order is entered. A copy of the final
order approved by a majority of the Board shall be served upon the
demanding or charged party and/or his or her attorney of record, if any,
within 10 days after entry by the Board by personal service or by
registered or certified mail.
10.1. An appeal from any final order entered in accordance
with these rules shall comply with the provisions of W. Va. Code §30-1-9
and W. Va. Code §29A-5-4 et seq.