CHAPTER 33
PLUMBING AND MECHANICAL SYSTEMS BOARD—CONTESTED CASES
641—33.1(17A,105,272C) Scope and applicability. This chapter applies to contested case proceedings conducted by the plumbing and mechanical systems board.
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
641—33.2(17A,105,272C) Definitions. Except where otherwise specifically defined by law:
“Board” means the plumbing and mechanical systems board as established pursuant to 2009 Iowa Code Supplement section 105.3.
“Contested case” means a proceeding defined by Iowa Code section 17A.2(5) and includes any matter defined as a no factual dispute contested case under Iowa Code section 17A.10A.
“Executive officer” means the executive officer for the plumbing and mechanical systems board.
“Issuance” means the date of mailing of a decision or order, or date of delivery if service is by other means, unless another date is specified by rule or in the order.
“License” means a license, registration, certificate, permit or other form of practice permission required by Iowa Code chapter 105.
“Party” means the state of Iowa, as represented by the assistant attorney general assigned to prosecute the case on behalf of the public interest, the respondent, or an intervenor.
“Presiding officer” means the board, a panel of board members, or a panel of nonboard member specialists as provided in Iowa Code subsections 272C.6(1) and (2) in a disciplinary contested case.
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
641—33.3(17A) Time requirements.
	33.3(1) Time shall be computed as provided in Iowa Code subsection 4.1(34).
	33.3(2) For good cause, the presiding officer may extend or shorten the time to take any action, except as precluded by statute. Except for good cause stated in the record, before extending or shortening the time to take any action, the presiding officer shall afford all parties an opportunity to be heard or to file written arguments.
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
641—33.4(17A,272C) Probable cause. In the event the board finds there is probable cause for taking disciplinary action against a licensee, the board shall order a contested case hearing commenced by the filing and service of a statement of charges.
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
641—33.5(17A,272C) Informal settlement. The board, board staff or a board committee may attempt to informally settle a disciplinary case before filing a statement of charges and notice of hearing. If the board and the licensee agree to a settlement of the case, a statement of charges shall be filed simultaneously with a consent order. The statement of charges and consent order may be separate documents or may be combined in one document. By electing to sign a consent order, the licensee waives all rights to a hearing and all attendant rights. The consent order shall have the force and effect of a final disciplinary order entered in a contested case and is an open record. Matters not involving licensee discipline which may culminate in a contested case may also be settled through consent order. Procedures governing settlement after notice of hearing is served are described in rule 641—33.23(272C).
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
641—33.6(17A) Statement of charges.
	33.6(1) Legal review. Every statement of charges prepared by the board shall be reviewed by the office of the attorney general before it is filed.
	33.6(2) Delivery. Delivery of the statement of charges constitutes the commencement of the contested case proceeding. Delivery may be executed by:
	a. 	Personal service as provided in the Iowa Rules of Civil Procedure; or
	b. 	Certified mail, return receipt requested; or
	c. 	Publication as provided in the Iowa Rules of Civil Procedure.
	33.6(3) Contents. The statement of charges shall contain the following information:
	a. 	A statement by the board showing that there is probable cause to file the statement of charges;
	b. 	A statement of the time, place, and nature of the hearing;
	c. 	A statement of the legal authority and jurisdiction under which the hearing is to be held;
	d. 	A reference to the particular sections of the statutes and rules involved;
	e. 	A short and plain statement of the matters asserted. This statement shall contain sufficient detail to give the respondent fair notice of the allegations so the respondent may adequately respond to the charges, and to give the public notice of the matters at issue;
	f. 	Identification of all parties including the name, address and telephone number of the person who will act as advocate for the board or the state and of parties’ counsel where known;
	g. 	Reference to the procedural rules governing conduct of the contested case proceeding;
	h. 	Reference to the procedural rules governing informal settlement;
	i. 	Identification of the presiding officer as the board, a panel of board members, or a panel of nonboard member specialists as provided in Iowa Code subsections 272C.6(1) and (2); and
	j. 	A statement requiring the respondent to submit an answer pursuant to subrule 33.13(2) within 20 days after service of the statement of charges.
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
641—33.7(17A) Requests for contested case proceeding. Any person claiming an entitlement to a contested case evidentiary hearing shall file a written request for such a proceeding within the time specified by the particular rules or statutes governing the subject matter or, in the absence of such law, the time specified in the board action in question. The request for a contested case proceeding shall state the name and address of the requester; identify the specific board action which is disputed; describe issues of material fact in dispute; and, where the requester is represented by a lawyer, identify the provisions of law or precedent requiring or authorizing the holding of a contested case proceeding in the particular circumstances involved. If the board grants the request, the board shall issue a notice of hearing. If the board denies the request, the board shall issue a written order specifying the basis for the denial.
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
641—33.8(105) Legal representation. Following the filing of a statement of charges, the office of the attorney general shall be responsible for the legal representation of the public interest in all proceedings before the board. The assistant attorney general assigned to prosecute a contested case before the board shall not represent the board in that case but shall represent the public interest. All other parties to a proceeding before the board shall be entitled to have counsel at their own expense.
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
641—33.9(17A,105,272C) Presiding officer in a disciplinary contested case. The presiding officer in a disciplinary contested case shall be the board, a panel of not less than three board members who are licensed under Iowa Code chapter 105, or a panel of nonboard member specialists as provided in Iowa Code subsections 272C.6(1) and (2). The board or a panel of board members when acting as presiding officer may request that an administrative law judge perform certain functions as an aid to the board or board panel, such as ruling on prehearing motions, conducting the prehearing conference, ruling on evidentiary objections at hearing, assisting in deliberation, or drafting the written decision for review by the board or board panel. Decisions of the administrative law judge serving in this capacity are subject to the interlocutory appeal provisions of rule 641—33.29(17A).
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
641—33.10(17A) Presiding officer in a nondisciplinary contested case.
	33.10(1) A nondisciplinary contested case includes license denial proceedings. Any party in a nondisciplinary contested case, including an appeal of a denial of licensure, who wishes to request that the presiding officer assigned to render a proposed decision be an administrative law judge employed by the department of inspections and appeals must file a written request within 20 days after service of a notice of hearing which identifies or describes the presiding officer as the board.
	33.10(2) The board may deny the request only upon a finding that one or more of the following apply:
	a. 	There is a compelling need to expedite issuance of a final decision in order to protect the public health, safety, or welfare.
	b. 	An administrative law judge with the qualifications identified in subrule 33.10(4) is unavailable to hear the case within a reasonable time.
	c. 	The case involves significant policy issues of first impression that are inextricably intertwined with the factual issues presented.
	d. 	The demeanor of the witnesses is not likely to be dispositive in resolving the disputed factual issues.
	e. 	Funds are unavailable to pay the costs of an administrative law judge and an interagency appeal.
	f. 	The request was not timely filed.
	g. 	The request is not consistent with a specified statute.
	33.10(3) The board shall issue a written ruling specifying the grounds for its decision within 20 days after a request for an administrative law judge is filed. If the ruling is contingent upon the availability of an administrative law judge with the qualifications identified in subrule 33.10(4), the parties shall be notified at least 10 days prior to hearing if a qualified administrative law judge will not be available.
	33.10(4) An administrative law judge assigned to act as presiding officer in a nondisciplinary contested case shall possess a juris doctorate degree.
	33.10(5) Except as otherwise provided by a provision or law, all rulings by an administrative law judge acting as presiding officer in a nondisciplinary contested case are subject to appeal to the board. A party must seek any available intra-agency appeal in order to exhaust adequate administrative remedies. Such appeals must be filed within 10 days of the date of the issuance of the challenged ruling but no later than the time for compliance with the order or the date of the hearing, whichever occurs first.
	33.10(6) Unless otherwise provided by law, when reviewing a proposed decision of an administrative law judge in a nondisciplinary contested case upon appeal, the board shall possess the powers and shall comply with the provisions of this chapter which apply to presiding officers.
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
641—33.11(17A) Disqualification.
	33.11(1) A presiding officer or other person shall withdraw from participation in the making of any proposed or final decision in a contested case if that person:
	a. 	Has a personal bias or prejudice concerning a party or a representative of a party;
	b. 	Has personally investigated, prosecuted, or advocated, in connection with that case, the specific controversy underlying that case, another pending factually related contested case, or a pending factually related controversy that may culminate in a contested case involving the same parties (if the licensee elects to appear before the board in the investigative process pursuant to rule 641—34.7(17A), the licensee waives this provision);
	c. 	Is subject to the authority, direction or discretion of any person who has personally investigated, prosecuted or advocated, in connection with that contested case, the specific controversy underlying that contested case, or a pending factually related contested case or controversy involving the same parties;
	d. 	Has acted as counsel to any person who is a private party to that proceeding within the past two years;
	e. 	Has a personal financial interest in the outcome of the case or any other significant personal interest that could be substantially affected by the outcome of the case;
	f. 	Has a spouse or relative within the third degree of relationship who:
	(1)	Is a party to the case, or an officer, director or trustee of a party;
	(2)	Is a lawyer in the case;
	(3)	Is known to have an interest that could be substantially affected by the outcome of the case; or
	(4)	Is likely to be a material witness in the case; or
	g. 	Has any other legally sufficient cause to withdraw from participation in the decision making in that case.
	33.11(2) The term “personally investigated” means taking affirmative steps to interview witnesses directly or to obtain documents or other information directly. The term “personally investigated” does not include:
	a. 	General direction and supervision of assigned investigators;
	b. 	Unsolicited receipt of information which is relayed to assigned investigators;
	c. 	Review of another person’s investigative work product in the course of determining whether there is probable cause to initiate a proceeding; or
	d. 	Exposure to factual information while performing other board functions, including fact gathering for purposes other than investigation of the matter which culminates in a contested case.
	33.11(3) Factual information relevant to the merits of a contested case received by a person who later serves as presiding officer in that case shall be disclosed if required by Iowa Code section 17A.17(3) and subrule 33.27(9).
	33.11(4) By electing to participate in an appearance before the board pursuant to rule 641—34.7(17A), the licensee waives any objection to a board member’s participating as a decision maker in a contested case proceeding on the grounds that the board member “personally investigated” the matter under this provision.
	33.11(5) In a situation where a presiding officer or other person knows of information which might reasonably be deemed to be a basis for disqualification and decides voluntary withdrawal is unnecessary, that person shall submit the relevant information from the records by affidavit and shall provide for the record a statement of the reasons for the determination that withdrawal is unnecessary.
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
641—33.12(17A) Consolidation—severance.
	33.12(1) Consolidation. The presiding officer may consolidate any or all matters at issue in two or more contested cases where:
	a. 	The matters involve common parties or common questions of fact or law;
	b. 	Consolidation would expedite and simplify consideration of the issues involved; and
	c. 	Consolidation would not adversely affect the rights of any of the parties to those proceedings.
	33.12(2) Severance. The presiding officer may, for good cause shown, order any contested case proceeding or portions thereof severed.
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
641—33.13(17A) Pleadings.
	33.13(1) Pleadings. Pleadings may be required by rule, by the statement of charges, or by order of the presiding officer.
	33.13(2) Answer. An answer shall be filed within 20 days of service of the statement of charges.
	a. 	An answer shall:
	(1)	Identify on whose behalf it is filed;
	(2)	Set forth the name, address and telephone number of the person filing the answer, the person on whose behalf it is filed, and the attorney, if any, representing that person;
	(3)	Specifically admit, deny, or otherwise answer all material allegations of the statement of charges; and
	(4)	Set forth any facts deemed necessary to show an affirmative defense and contain as many additional defenses as the respondent may claim.
	b. 	The presiding officer may refuse to consider any defense not raised in the answer which could have been raised on the basis of facts known when the answer was filed if any party would be prejudiced.
	33.13(3) Amendments. Any notice of hearing or statement of charges may be amended before a responsive pleading has been filed. Otherwise, a party may amend a pleading only with the consent of the other parties or at the discretion of the presiding officer who may impose terms or grant a continuance.
[ARC 9057B, IAB 9/8/10, effective 10/13/10; ARC 1223C, IAB 12/11/13, effective 1/15/14]
641—33.14(17A) Service and filing.
	33.14(1) Service—when requested. Except where otherwise provided by law, every document filed in a contested case proceeding shall be served upon each of the parties of record to the proceeding, including the person designated as prosecutor for the state, simultaneously with its filing. Except for the original statement of charges and an application for rehearing as provided in Iowa Code section 17A.16(2), the party filing a document is responsible for service on all parties.
	33.14(2) Service—how made. Service upon a party represented by an attorney shall be made upon the attorney unless otherwise ordered. Service is made by delivery or by mailing a copy to the person’s last-known address. Service by mail is completed upon mailing, except where otherwise specifically provided by statute, rule, or order.
	33.14(3) Filing—when required. After the statement of charges, all documents in a contested case proceeding shall be filed with the board. All documents that are required to be served upon a party shall be filed simultaneously with the board.
	33.14(4) Filing—when made. Except where otherwise provided by law, a document is deemed filed at the time it is delivered to the Plumbing and Mechanical Systems Board, Lucas State Office Building, 321 E. 12th Street, Des Moines, Iowa 50319-0075; delivered to an established courier service for immediate delivery to that office; or mailed by first-class mail or state interoffice mail to that office, so long as there is proof of mailing.
	33.14(5) Proof of mailing. Proof of mailing includes:
	a. 	A legible United States Postal Service postmark on the envelope, or
	b. 	A certificate of service, or
	c. 	A notarized affidavit, or
	d. 	A certification in substantially the following form:
I certify under penalty of perjury and pursuant to the laws of Iowa that, on (date of mailing), I mailed copies of (describe document) addressed to the Plumbing and Mechanical Systems Board, Lucas State Office Building, 321 E. 12th Street, Des Moines, Iowa 50319-0075, and to the names and addresses of the parties listed below by depositing the same in (a United States Post Office mailbox with correct postage properly affixed or state interoffice mail).
______________	___________________________
(Date)	(Signature)
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
641—33.15(17A) Discovery.
	33.15(1) Discovery procedures applicable in civil actions are applicable in contested cases. Unless lengthened or shortened by these rules, by order of the presiding officer, or by agreement of the parties, time periods for compliance with discovery shall be as provided in the Iowa Rules of Civil Procedure.
	33.15(2) Any motion relating to discovery shall allege that the moving party has previously made a good faith attempt to resolve the discovery issues involved with the opposing party. Motions in regard to discovery shall be ruled upon by the presiding officer. Opposing parties shall be afforded the opportunity to respond within 10 days of the filing of the motion unless the time is shortened as provided in subrule 33.15(1). The presiding officer may rule on the basis of the written motion and any response, or may order argument on the motion.
	33.15(3) Evidence obtained in discovery may be used in the contested case proceeding if that evidence would otherwise be admissible in that proceeding.
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
641—33.16(17A,272C) Subpoenas in a contested case.
	33.16(1) Subpoenas issued in a contested case may compel the attendance of witnesses at deposition or hearing and may compel the production of books, papers, records, or other real evidence. A command to produce evidence or to permit inspection may be joined with a command to appear at deposition or hearing or may be issued separately. Subpoenas shall be issued by the executive officer or designee upon written request. In the case of a request for a subpoena of mental health records, the request must confirm compliance with the following conditions prior to the issuance of the subpoena:
	a. 	The nature of the issues in the case reasonably justifies the issuance of the requested subpoena;
	b. 	Adequate safeguards have been established to prevent unauthorized disclosure;
	c. 	An express statutory mandate, articulated public policy, or other recognizable public interest favors access; and
	d. 	An attempt was made to notify the patient to secure an authorization from the patient for the release of the records at issue.
	33.16(2) A request for a subpoena shall include the following information, as applicable, unless the subpoena is requested in order to compel testimony or documents for rebuttal or impeachment purposes:
	a. 	The name, address, and telephone number of the person requesting the subpoena;
	b. 	The name and address of the person to whom the subpoena shall be directed;
	c. 	The date, time, and location at which the person shall be commanded to attend and give testimony;
	d. 	Whether the testimony is requested in connection with a deposition or hearing;
	e. 	A description of the books, papers, records, or other real evidence requested;
	f. 	The date, time, and location for production, or inspection and copying; and
	g. 	In the case of a subpoena request for mental health records, confirmation that the conditions described in subrule 33.16(1) have been satisfied.
	33.16(3) Each subpoena shall contain, as applicable:
	a. 	The caption of the case;
	b. 	The name, address, and telephone number of the person who requested the subpoena;
	c. 	The name and address of the person to whom the subpoena is directed;
	d. 	The date, time, and location at which the person is commanded to appear;
	e. 	Whether testimony is commanded in connection with a deposition or hearing;
	f. 	A description of the books, papers, records, or other real evidence the person is commanded to produce;
	g. 	The date, time, and location for production, or inspection and copying;
	h. 	The time within which a motion to quash or modify the subpoena must be filed;
	i. 	The signature, address, and telephone number of the board executive officer or designee;
	j. 	The date of issuance; and
	k. 	A return of service.
	33.16(4) Unless a subpoena is requested in order to compel testimony or documents for rebuttal or impeachment purposes, the executive officer or designee shall mail the subpoena to the requesting party, with a copy to the opposing party. The person who requested the subpoena is responsible for serving the subpoena upon the subject of the subpoena.
	33.16(5) Any person who is aggrieved or adversely affected by compliance with the subpoena, or any party to the contested case, who desires to challenge the subpoena must, within 14 days after service of the subpoena, or before the time specified for compliance if such time is less than 14 days, file with the board a motion to quash or modify the subpoena. The motion shall describe the legal reasons why the subpoena should be quashed or modified and may be accompanied by legal briefs or factual affidavits.
	33.16(6) Upon receipt of a timely motion to quash or modify a subpoena, the board may request an administrative law judge to hold a hearing and issue a decision, or the board may conduct the hearing and issue a decision. Oral argument may be scheduled at the discretion of the board or the administrative law judge. The administrative law judge or the board may quash or modify the subpoena, deny the motion, or issue an appropriate protective order.
	33.16(7) A person who is aggrieved by a ruling of an administrative law judge and who desires to challenge that ruling must appeal the ruling to the board by serving on the board’s executive director, either in person or by certified mail, a notice of appeal within ten days after service of the decision of the administrative law judge.
	33.16(8) If the person contesting the subpoena is not a party to the contested case, the board’s decision is final for purposes of judicial review. If the person contesting the subpoena is a party to the contested case, the board’s decision is not final for purposes of judicial review until there is a final decision in the contested case.
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
641—33.17(17A) Motions.
	33.17(1) No technical form for motions is required. However, prehearing motions must be in writing, state the grounds for relief, and state the relief sought.
	33.17(2) Any party may file a written response to a motion within ten days after the motion is served, unless the time period is extended or shortened by the presiding officer. The presiding officer may consider a failure to respond within the required time period in ruling on the motion.
	33.17(3) The presiding officer may schedule oral argument on any motion. If the board requests that an administrative law judge issue a ruling on a prehearing motion, the ruling is subject to interlocutory appeal pursuant to rule 641—33.29(17A).
	33.17(4) Motions pertaining to the hearing, except motions for summary judgment, must be filed and served at least five days prior to the date of the hearing unless there is good cause for permitting later action or the time for such action is lengthened or shortened by rule of the board or an order of the presiding officer.
	33.17(5) Motions for summary judgment. Motions for summary judgment shall comply with the requirements of Iowa Rule of Civil Procedure 1.981 and shall be subject to disposition according to the requirements of that rule to the extent such requirements are not inconsistent with the provisions of this rule or any other provision of law governing the procedure in contested cases.
	a. 	Motions for summary judgment must be filed and served at least 20 days prior to the scheduled hearing date, or other time period determined by the presiding officer. Any party resisting the motion shall file and serve a resistance within 10 days, unless otherwise ordered by the presiding officer, from the date a copy of the motion was served.
	b. 	The time fixed for hearing or nonoral submission shall be not less than 15 days after the filing of the motion, unless a shorter time is ordered by the presiding officer.
	c. 	A summary judgment order rendered on all issues in a contested case is subject to rehearing pursuant to rule 641—33.32(17A,272C) and appeal pursuant to rule 641—33.30(17A,272C).
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
641—33.18(17A) Withdrawals. A party requesting a contested case proceeding may withdraw that request prior to the hearing upon written notice filed with the board and served on all parties. Unless otherwise ordered by the board, a withdrawal shall be with prejudice.
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
641—33.19(17A) Intervention.
	33.19(1) Motion. A motion for leave to intervene in a contested case proceeding shall state the grounds for the proposed intervention, the position and interest of the proposed intervenor, and the possible impact of intervention on the proceeding. A proposed answer or petition in intervention shall be attached to the motion. Any party may file a response within 14 days of service of the motion to intervene unless the time period is extended or shortened by the presiding officer.
	33.19(2) When filed. Motion for leave to intervene shall be filed as early in the proceeding as possible to avoid adverse impact on existing parties or the conduct of the proceeding. Unless otherwise ordered, a motion for leave to intervene shall be filed before the prehearing conference, if any, or at least 20 days before the date scheduled for hearing. Any later motion must contain a statement of good cause for the failure to file in a timely manner. Unless inequitable or unjust, an intervenor shall be bound by any agreement, arrangement, or other matter previously raised in the case. Requests by untimely intervenors for continuances which would delay the proceeding will ordinarily be denied.
	33.19(3) Grounds for intervention. The movant shall demonstrate that:
	a. 	Intervention would not unduly prolong the proceedings or otherwise prejudice the rights of existing parties;
	b. 	The movant is likely to be aggrieved or adversely affected by a final order in the proceeding; and
	c. 	The interests of the movant are not adequately represented by existing parties.
	33.19(4) Effect of intervention. If appropriate, the presiding officer may order consolidation of the petitions and briefs of different parties whose interests are aligned with each other and limit the number of representatives allowed to participate actively in the proceedings. A person granted leave to intervene is a party to the proceeding. The order granting intervention may restrict the issues that may be raised by the intervenor or otherwise condition the intervenor’s participation in the proceeding.
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
641—33.20(17A) Telephone proceedings. The presiding officer may, on the officer’s own motion or as requested by a party, order hearings or argument to be held by telephone conference or other electronic means in which all parties have an opportunity to participate. The presiding officer will determine the location of the parties and witnesses for telephone or other electronic hearings. The convenience of the witnesses or parties, as well as the nature of the case, will be considered when location is chosen. Disciplinary hearings will generally not be held by telephone or electronic means in the absence of consent by all parties, but the presiding officer may permit any witness to testify by telephone. Parties shall disclose at or before the prehearing conference if any witness will be testifying by telephone. Objections, if any, shall be filed with the board and served on all parties at least three business days in advance of hearing.
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
641—33.21(17A) Prehearing conferences.
	33.21(1) Any party may request a prehearing conference. Prehearing conferences shall be conducted by the executive officer or designee, who may request the assistance of an administrative law judge. A written request for prehearing conference or an order for prehearing conference on the executive officer’s own motion shall be filed not less than ten days prior to the hearing date. A prehearing conference shall be scheduled not less than five business days prior to the hearing date. The executive officer shall set a prehearing conference in all licensee disciplinary cases and provide notice of the date and time in the notice of hearing. Written notice of the prehearing conference shall be given by the executive officer to all parties. For good cause the executive officer may permit variances from this rule.
	33.21(2) The parties at a prehearing conference shall be prepared to discuss the following subjects, and the executive officer or administrative law judge may issue appropriate orders concerning:
	a. 	The possibility of settlement.
	b. 	The entry of a scheduling order to include deadlines for completion of discovery.
	c. 	Stipulations of law or fact.
	d. 	Stipulations on the admissibility of evidence.
	e. 	Submission of expert or other witness lists. Witness lists may be amended subsequent to the prehearing conference within the time limits established by the executive officer or administrative law judge at the prehearing conference. Any such amendments must be served on all parties. Witnesses not listed on the final witness list may be excluded from testifying unless there was good cause for the failure to include their names.
	f. 	Submission of exhibit lists. Exhibit lists may be amended subsequent to the prehearing conference within the time limits established by the executive director or administrative law judge at the prehearing conference. Other than rebuttal exhibits, exhibits that are not listed on the final exhibit list may be excluded from admission into evidence unless there was good cause for the failure to include them.
	g. 	Stipulations for waiver of any provision of law.
	h. 	Identification of matters which the parties intend to request to be officially noticed.
	i. 	Consideration of any additional matters which will expedite the hearing.
	33.21(3) Prehearing conferences may be conducted by telephone unless otherwise ordered.
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
641—33.22(17A) Continuances.
	33.22(1) Unless otherwise provided, applications for continuance shall be filed with the board at least seven days before the date scheduled for hearing. If the application for continuance is not contested, the executive officer or designee shall issue the appropriate order. If the application for continuance is contested, the matter shall be heard by the board or delegated by the board to an administrative law judge.
	33.22(2) A written application for continuance shall:
	a. 	Be made at the earliest possible time and no less than seven days before the hearing except in case of unanticipated emergencies;
	b. 	State the specific reasons for the request for continuance; and
	c. 	Be signed by the requesting party or the party’s representative.
	33.22(3) An oral application for continuance may be made if the presiding officer waives the requirement for a written motion. However, a party making such an oral application for a continuance must confirm that request by written application within five days after the oral request unless that requirement is waived by the presiding officer.
	33.22(4) No application for continuance shall be made or granted without notice to all parties except in an emergency where notice is not feasible. The board may waive notice of such requests for a particular case or an entire class of cases.
	33.22(5) The board or administrative law judge may require documentation of any grounds for continuance. In determining whether to grant a continuance, the board or administrative law judge may consider:
	a. 	Prior continuances;
	b. 	The interests of all parties;
	c. 	The public interest;
	d. 	The likelihood of informal settlement;
	e. 	The existence of an emergency;
	f. 	Any objection;
	g. 	Any applicable time requirements;
	h. 	The existence of a conflict in the schedules of counsel, parties, or witnesses;
	i. 	The timeliness of the request; and
	j. 	Other relevant factors.
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
641—33.23(272C) Settlement agreements.
	33.23(1) Settlement negotiations after the notice of hearing is served may be initiated by the licensee or other respondent, the prosecuting attorney, the board’s executive officer, or the board chair or chair’s designee.
	33.23(2) The board chair or chair’s designee shall have authority to negotiate on behalf of the board but shall not have the authority to bind the board to a particular terms of settlement.
	33.23(3) The respondent is not obligated to participate in settlement negotiations. The respondent’s initiation or consent to settlement negotiations constitutes a waiver of notice and opportunity to be heard during the settlement negotiation pursuant to Iowa Code section 17A.17 and rule 641—33.27(17A). Thereafter, the prosecuting attorney is authorized to discuss informal settlement with the board chair or chair’s designee, and the designated board member is not disqualified from participating in the adjudication of the contested case.
	33.23(4) Unless designated to negotiate, no member of the board shall be involved in settlement negotiation until a written consent order is submitted to the full board for approval. No informal settlement shall be submitted to the full board unless it is in final written form executed by the respondent. By signing the proposed consent order, the respondent authorizes the prosecuting attorney or executive officer to have ex parte communications with the board related to the terms of the settlement. If the board fails to approve the consent order, it shall be of no force and effect to either party and shall not be admissible at hearing. Upon rejecting a proposed consent order, the board may suggest alternative terms of settlement, which the respondent is free to accept or reject.
	33.23(5) If the board and respondent agree to a consent order, the consent order shall constitute the final decision of the board. By electing to resolve a contested case through consent order, the respondent waives all rights to a hearing and attendant rights. A consent order in a licensee disciplinary case shall have the force and effect of a final disciplinary order entered in a contested case and may be published as provided in subrule 33.30(1).
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
641—33.24(17A) Hearing procedures. The presiding officer shall be in control of the proceedings and shall have the authority to administer oaths and to admit or exclude testimony or other evidence and shall rule on all motions and objections. The board may request that an administrative law judge assist the board by performing any of these functions.
	33.24(1) Examination of witnesses. All witnesses shall be sworn or affirmed by the presiding officer or the court reporter, and shall be subject to cross-examination. Board members and the administrative law judge have the right to examine witnesses at any stage of a witness’s testimony. The presiding officer may limit questioning in a manner consistent with law.
	33.24(2) Public hearing. The hearing shall be open to the public unless a licensee or licensee’s attorney requests in writing that a licensee disciplinary hearing be closed to the public.
	33.24(3) Record of proceedings. Oral proceedings shall be recorded either by mechanical or electronic means or by certified shorthand reporters. Oral proceedings or any part thereof shall be transcribed at the request of any party with the expense of the transcription charged to the requesting party. The recording or stenographic notes of oral proceedings or the transcription shall be filed with and maintained by the board for at least five years from the date of decision.
	33.24(4) Order of proceedings. Before testimony is presented, the record shall show the identities of any board members present, the identity of the administrative law judge, the identities of the primary parties and their representatives, and the fact that all testimony is being recorded. In contested cases initiated by the board, such as licensee discipline, hearings shall generally be conducted in the following order, subject to modification at the discretion of the board:
	a. 	The presiding officer or designee may read a summary of the charges and answers thereto and other responsive pleadings filed by the respondent prior to the hearing.
	b. 	The assistant attorney general representing the state’s interest before the board may make a brief opening statement, which may include a summary of charges and the names of any witnesses and documents to support such charges.
	c. 	Each respondent shall be offered the opportunity to make an opening statement, including the names of any witnesses the respondent(s) desires to call in defense. A respondent may elect to make the opening statement just prior to the presentation of evidence by the respondent(s).
	d. 	The presentation of evidence on behalf of the state.
	e. 	The presentation of evidence on behalf of the respondent(s).
	f. 	Rebuttal evidence on behalf of the state, if any.
	g. 	Rebuttal evidence on behalf of the respondent(s), if any.
	h. 	Closing arguments first on behalf of the state, then on behalf of the respondent(s), and then on behalf of the state, if any. The order of proceedings shall be tailored to the nature of the contested case. In license reinstatement hearings, for example, the respondent will generally present evidence first because the respondent is obligated to present evidence in support of the respondent’s application for reinstatement pursuant to rule 641—33.40(17A,272C). In license denial hearings, the state will generally first establish the basis for the board’s denial of licensure, but thereafter the applicant has the burden of establishing the conditions for licensure pursuant to rule 641—33.36(17A,105,272C).
	33.24(5) Decorum. The presiding officer shall maintain the decorum of the hearing and may refuse to admit or may expel anyone whose conduct is disorderly.
	33.24(6) Immunity. The presiding officer shall have authority to grant immunity from disciplinary action to a witness, as provided by Iowa Code section 272C.6(3), but only upon the unanimous vote of all members of the board hearing the case. The official record of the hearing shall include the reasons for granting the immunity.
	33.24(7) Sequestering witnesses. The presiding officer, on the officer’s own motion or upon the request of a party, may sequester witnesses.
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
641—33.25(17A) Evidence.
	33.25(1) The presiding officer shall rule on the admissibility of evidence and may, where appropriate, take official notice of facts in accordance with all applicable requirements of law.
	33.25(2) Stipulation of facts is encouraged. The presiding officer may make a decision based on stipulated facts.
	33.25(3) Evidence in the proceeding shall be confined to the issues as to which the parties required notice prior to the hearing unless a party waives the party’s right to such notice or the presiding officer determines that good cause justifies expansion of the issues. If the presiding officer decides to admit evidence on issues outside the scope of the notice over the objection of a party who did not have actual notice of those issues, that party, upon timely request, shall receive a continuance sufficient to amend pleadings and to prepare on the additional issue.
	33.25(4) The party seeking admission of an exhibit must provide the opposing party with an opportunity to examine the exhibit prior to the ruling on its admissibility. Copies of documents shall be provided to opposing parties. All exhibits admitted into evidence shall be appropriately marked and be made part of the record.
	33.25(5) Any party may object to specific evidence or may request limits on the scope of any examination or cross-examination. Such an objection must be timely and shall be accompanied by a brief statement of the grounds upon which it is based. The objection, the ruling on the objection, and the reasons for the ruling shall be noted in the record. The presiding officer may rule on the objection at the time it is made or may reserve a ruling until the written decision.
	33.25(6) Whenever evidence is ruled inadmissible, the party offering that evidence may submit an offer of proof on the record. The party making the offer of proof for excluded oral testimony shall briefly summarize the testimony or, with permission of the presiding officer, present the testimony. If the excluded evidence consists of a document or exhibit, it shall be marked as part of an offer of proof and inserted in the record.
	33.25(7) Irrelevant, immaterial and unduly repetitious evidence should be excluded. A finding will be based upon the kind of evidence upon which reasonably prudent persons are accustomed to rely for the conduct of their serious affairs, and may be based on hearsay or other types of evidence which may or would be inadmissible in a jury trial.
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
641—33.26(17A) Default.
	33.26(1) If a party fails to appear or participate in a contested case proceeding after proper service of notice, the presiding officer may, if no adjournment is granted, enter a default decision or proceed with the hearing and render a decision in the absence of the party.
	33.26(2) Where appropriate and not contrary to law, any party may move for default against a party who has failed to appear after proper service.
	33.26(3) Default decisions or decisions rendered on the merits after a party has failed to appear or participate in a contested case proceeding become final board action unless, within 15 days after the date of notification or mailing of the decision, a motion to vacate is filed and served on all parties or an appeal of a decision on the merits is timely initiated within the time provided by subrule 33.30(2). A motion to vacate must state all facts relied upon by the moving party which establish that good cause existed for that party’s failure to appear or participate at the contested case proceeding. Each fact so stated must be substantiated by at least one sworn affidavit of a person with personal knowledge of each such fact, which affidavit(s) must be attached to the motion.
	33.26(4) The time for further appeal of a decision for which a timely motion to vacate has been filed is stayed pending a decision on the motion to vacate.
	33.26(5) Properly substantiated and timely filed motions to vacate shall be granted only for good cause shown. The burden of proof as to good cause is on the moving party. Adverse parties shall have ten days to respond to a motion to vacate. Adverse parties shall be allowed to conduct discovery as to the issue of good cause and to present evidence on the issue prior to a decision on the motion, if a request to do so is included in that party’s response.
	33.26(6) “Good cause” for purposes of this rule shall have the same meaning as “good cause” for setting aside a default judgment under the Iowa Rules of Civil Procedure.
	33.26(7) A decision denying a motion to vacate is subject to further appeal within the time limit allowed for further appeal of a decision on the merits in the contested case proceeding. A decision granting a motion to vacate is subject to interlocutory appeal by the adverse party pursuant to rule 641—33.29(17A).
	33.26(8) If a motion to vacate is granted and no interlocutory appeal has been taken, the presiding officer shall issue another statement of charges and the contested case shall proceed accordingly.
	33.26(9) A default decision may provide either that the default is to be stayed pending a timely motion to vacate or that the default decision is to take effect immediately, subject to a request for stay under rule 641—33.33(17A).
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
641—33.27(17A) Ex parte communication.
	33.27(1) Prohibited communications. Unless requested for the disposition of ex parte matters specifically authorized by statute, following issuance of the statement of charges, there shall be no communication, directly or indirectly, between the presiding officer and any party or representative of any party or any other person with a direct or indirect interest in such case in connection with any issue of fact or law in the case except upon notice and opportunity for all parties to participate. Nothing in this provision is intended to preclude board members from communicating with other board members or members of the board staff, other than those with a personal interest in, or those engaged in personally investigating as defined in subrule 33.11(2), prosecuting, or advocating in, either the case under consideration or a pending factually related case involving the same parties, as long as those persons do not directly or indirectly communicate to the presiding officer any ex parte communications they have received of a type that the presiding officer would be prohibited from receiving or that furnish, augment, diminish, or modify the evidence in the record.
	33.27(2) Prohibitions on ex parte communications commence with the issuance of the statement of charges in a contested case and continue for as long as the case is pending before the board.
	33.27(3) Written, oral, or other forms of communication are “ex parte” if made without notice and opportunity for all parties to participate.
	33.27(4) To avoid prohibited ex parte communications, notice must be given in a manner reasonably calculated to give all parties a fair opportunity to participate. Notice of written communications shall be provided in compliance with rule 641—33.14(17A) and may be supplemented by telephone, facsimile, electronic mail, or other means of notification. When permitted, oral communications may be initiated through conference telephone call including all parties or their representatives.
	33.27(5) Persons who jointly act as a presiding officer in a pending contested case may communicate with each other without notice or opportunity for parties to participate.
	33.27(6) The executive officer or other persons may be present during deliberations as long as the executive officer or other person is not disqualified from participating pursuant to rule 641—33.11(17A).
	33.27(7) Communications with the presiding officer involving uncontested scheduling or procedural matters do not require notice or opportunity for parties to participate. Parties should notify other parties prior to initiating such contact with the presiding officer when feasible, and shall notify other parties when seeking to continue hearings or other deadlines pursuant to rule 641—33.22(17A).
	33.27(8) Disclosure of prohibited communications. A presiding officer who receives a prohibited ex parte communication during the contested case process must initially determine if the effect of the communication is so prejudicial that the presiding officer should be disqualified.
	a. 	If the presiding officer determines that disqualification is warranted, a copy of any prohibited written communication, all written responses to the communication, a written summary stating the substance of any prohibited oral or other communication not available in written form for disclosure, all responses made, and the identity of each person from whom the presiding officer received a prohibited ex parte communication shall be submitted for inclusion in the record under seal by protective order.
	b. 	If the presiding officer determines that disqualification is not warranted, such documents shall be submitted for inclusion in the record and served on all parties. Any party desiring to rebut the prohibited communication must be allowed the opportunity to do so upon written request filed within ten days after notice of the communication.
	33.27(9) Promptly after being assigned to serve as presiding officer at any stage in a contested case proceeding, a presiding officer shall disclose to all parties material factual information received through ex parte communication prior to such assignment, unless the factual information has already been or shortly will be disclosed pursuant to Iowa Code section 17A.13(2) or through discovery. Factual information contained in an investigative report or similar document need not be separately disclosed by the presiding officer as long as such documents have been or will shortly be provided to the parties.
	33.27(10) The presiding officer may render a proposed or final decision imposing appropriate sanctions for violations of this rule including default, a decision against the offending party, censure, or suspension or revocation of the privilege to practice before the board. Violation of ex parte communications prohibitions by board personnel shall be reported to the board and the board’s executive officer for possible sanctions, including censure, suspension, dismissal, or other disciplinary action.
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
641—33.28(17A) Recording costs. Upon request, the board shall provide a copy of the whole or any portion of the record at cost. The cost of preparing a copy of the record or of transcribing the hearing record shall be paid by the requesting party.
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
641—33.29(17A) Interlocutory appeals. Upon written request of a party or on its own motion, the board may review an interlocutory order of the executive officer, administrative law judge, or hearing panel. Any request for interlocutory review must be filed within 14 days of issuance of the challenged order, but no later than the time for compliance with the order or the date of the hearing, whichever is first. In determining whether to do so, the board shall consider:
	1.	The extent to which its granting the interlocutory appeal would expedite final resolution of the case; and
	2.	The extent to which review of that interlocutory order by the board at the time it reviews the proposed decision of the presiding officer would provide an adequate remedy.
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
641—33.30(17A,272C) Decisions.
	33.30(1) Final decisions. When a quorum of the board presides over the reception of the evidence at the hearing, its decision is a final decision. A majority of the members shall constitute a quorum. Final decisions shall be served on the parties in accordance with subrule 33.14(2). Final decisions of the board, including consent agreements and consent orders, are public documents, are available to the public, and may be disseminated by the board and others as provided in Iowa Code chapter 22.
	33.30(2) Proposed panel decisions.
	a. 	Panel of specialists. When a panel of three specialists presides over the hearing, the panel shall issue a proposed decision which shall include findings of fact but shall not include conclusions of law or any recommendation for or against the licensee discipline. A proposed decision of a panel of specialists, together with a transcript of the proceedings and the exhibits presented, shall be reviewed by the board within 30 days of the date the proposed decision was issued.
	b. 	Panel of board members. When a panel of three or more board members presides over the hearing, the panel shall issue a proposed decision which shall include proposed findings of fact, conclusions of law, and the order. A proposed panel decision shall be reviewed by the board within 30 days of the date the proposed panel decision was issued. A proposed panel decision becomes a final decision without further proceedings unless appealed in accordance with paragraph 33.30(2)“c.”
	c. 	Appeal of proposed panel decisions. A proposed panel decision pursuant to paragraph 33.30(2)“a” or paragraph 33.30(2)“b” may be appealed to the full board by either party by serving on the executive officer, either in person or by certified mail, a notice of appeal within 30 days after service of the proposed decision on the appealing party. The notice of appeal shall specify the party initiating the appeal, the proposed decision or order appealed from, the specific findings or conclusions to which exception is taken and any other exceptions to the decision or order, the relief sought, and the grounds for relief.
	(1)	Following receipt of a notice of appeal, the board shall enter an order establishing a schedule for submission of briefs and oral argument. The parties shall serve their briefs on the board and shall furnish an additional copy to each party by first-class mail. Briefs shall cite any applicable legal authority and specify relevant portions of the record in that proceeding.
	(2)	Oral argument shall be heard by the board unless waived by both parties. The time granted each party for oral argument shall be established by the board.
	(3)	The record on appeal shall be the entire record made before the hearing panel or administrative law judge.
	d. 	Confidentiality. At no time prior to the release of the final decision by the board shall a proposed decision be made public or distributed to any person other than the parties.
	e. 	Requests to present additional evidence. A party may request the taking of additional evidence after the issuance of a proposed decision only by establishing that:
	(1)	The evidence is material; and
	(2)	The evidence arose after the completion of the original hearing; or
	(3)	Good cause exists for failure to present the evidence at the original hearing; and
	(4)	The party has not waived the right to present additional evidence.
A written request to present additional evidence must be filed with the notice of appeal or by a nonappealing party within 14 days of service of the notice of appeal. The board may remand a case to the hearing panel for further hearing or may itself preside at the taking of additional evidence.
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
641—33.31(17A,272C) Client notification. Within 15 days (or such other time period specifically ordered by the board) of the licensee’s receipt of the board’s final decision, whether entered by consent or following hearing, which suspends or revokes a license or accepts a voluntary surrender of a license to resolve a disciplinary case, the licensee shall notify in writing all current clients of the fact that the license has been suspended, revoked or voluntarily surrendered. Such notice shall advise clients to obtain alternative professional services. Within 30 days of receipt of the board’s final order, the licensee shall file with the board copies of the notices sent. Compliance with this requirement shall be a condition for an application for reinstatement.
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
641—33.32(17A,272C) Application for rehearing.
	33.32(1) Who may file. Any party to a contested case proceeding may file an application for rehearing from a final order.
	33.32(2) Content of application. The application for rehearing shall state on whose behalf it is filed, the specific grounds for rehearing, and the relief sought. In addition, the application shall state whether the applicant desires reconsideration of all or part of the board decision on the existing record and whether, on the basis of grounds enumerated in paragraph 33.30(2)“e” and rule 641—33.31(17A,272C), the applicant requests an opportunity to submit additional evidence.
	33.32(3) Filing deadline. The application shall be filed with the board within 20 days after issuance of the final decision.
	33.32(4) Notice to other parties. A copy of the application shall be timely mailed by the applicant to all parties of record not joining therein.
	33.32(5) Additional evidence. A request that additional evidence be considered on rehearing shall be governed by paragraph 33.30(2)“e.”
	33.32(6) Disposition. Any application for rehearing shall be deemed denied unless the board grants the application within 20 days after its filing.
	33.32(7) Only remedy. Application for rehearing is the only procedure by which a party may request that the board reconsider a final board decision.
	33.32(8) Proceedings. If the board grants an application for rehearing, the board may set the application for oral argument or for hearing if additional evidence will be received. If additional evidence will not be received, the board may issue a ruling without oral argument or hearing. The board may, on the request of a party or on its own motion, order or permit the parties to provide written argument on one or more designated issues. The board may be assisted by an administrative law judge in all proceedings related to an application for rehearing.
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
641—33.33(17A) Stays of board actions.
	33.33(1) When available.
	a. 	Any party to a contested case proceeding may petition the board for a stay of an order issued in that proceeding or for other temporary remedies, pending review by the board. The petition shall be filed with the notice of appeal and shall state the reasons justifying a stay or other temporary remedy. The board may rule on the stay or authorize the administrative law judge to do so.
	b. 	Any party to a contested case proceeding may petition the board for a stay or other temporary remedies, pending judicial review of all or part of that proceeding. The petition shall state the reasons justifying a stay or other temporary remedy.
	33.33(2) When granted. In determining whether to grant a stay, the presiding officer or board shall consider the factors listed in Iowa Code section 17A.19(5)“c.”
	33.33(3) Vacation. A stay may be vacated by the issuing authority upon application of the board or any other party.
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
641—33.34(17A) No factual dispute contested cases. If the parties agree that no dispute of material fact exists as to a matter that would be a contested case if such a dispute of fact existed, the parties may present all relevant admissible evidence either by stipulation or otherwise as agreed by the parties, without necessity for the production of evidence at an evidentiary hearing. If such agreement is reached, a jointly submitted schedule detailing the method and timetable for submission of the record, briefs and oral argument should be submitted to the presiding officer for approval as soon as practicable. If the parties cannot agree, any party may file and serve a motion for summary judgment pursuant to the rules governing such motions.
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
641—33.35(17A) Emergency adjudicative proceedings.
	33.35(1) Emergency action. To the extent necessary to prevent or avoid immediate danger to the public health, safety, or welfare, and consistent with the Constitution and other provisions of law, the board may issue a written order in compliance with Iowa Code section 17A.18A to suspend a license in whole or in part, order the cessation of any continuing activity, order affirmative action, or take other action within the jurisdiction of the board by emergency adjudicative order. Before issuing an emergency adjudicative order, the board shall consider factors including, but not limited to, the following:
	a. 	Whether there has been a sufficient factual investigation to ensure that the board is proceeding on the basis of reliable information;
	b. 	Whether the specific circumstances which pose immediate danger to the public health, safety, or welfare have been identified and determined to be continuing;
	c. 	Whether the person required to comply with the emergency adjudicative order may continue to engage in other activities without posing immediate danger to the public health, safety, or welfare;
	d. 	Whether imposition of monitoring requirements or other interim safeguards would be sufficient to protect the public health, safety, or welfare; and
	e. 	Whether the specific action contemplated by the board is necessary to avoid the immediate danger.
	33.35(2) Issuance of order.
	a. 	An emergency adjudicative order shall contain findings of fact, conclusions of law, and policy reasons to justify the determination of an immediate danger and the board’s decision to take immediate action. The order is an open record.
	b. 	The written emergency adjudicative order shall be immediately delivered to the person who is required to comply with the order, by utilizing one or more of the following procedures:
	(1)	Personal delivery.
	(2)	Certified mail, return receipt requested, to the last address on file with the board.
	(3)	Certified mail to the last address on file with the board.
	(4)	Facsimile, which may be used as the sole method of delivery if the person required to comply with the order has filed a written request that board orders be sent by facsimile and has provided a facsimile number for that purpose.
	c. 	To the degree practicable, the board shall select the procedure for providing written notice that best ensures prompt, reliable delivery.
	33.35(3) Oral notice. Unless the written emergency adjudicative order is provided by personal delivery on the same day that the order is issued, the board shall make reasonable immediate efforts to contact by telephone the person who is required to comply with the order.
	33.35(4) Completion of proceedings. After the issuance of an emergency adjudicative order, the board shall proceed as quickly as feasible to complete any proceedings that would be required if the matter did not involve an immediate danger.
	a. 	Issuance of a written emergency adjudicative order shall include notification of the date on which board proceedings are scheduled for hearing.
	b. 	After issuance of an emergency adjudicative order, continuance of further board proceedings to a later date will be granted only in compelling circumstances upon written application unless the person required to comply with the order is the party requesting the continuance.
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
641—33.36(17A,105,272C) License denial. If the board denies an application for a license, the board or its staff shall send written notice to the applicant by regular first-class mail identifying the factual and legal basis for denying the application. If the board denies an application to renew an existing license, the provisions of rule 641—33.37(17A,105,272C) shall apply.
	33.36(1) An applicant who is aggrieved by the denial of an application for licensure and who desires to contest the denial must request a hearing before the board within 30 calendar days of the date the notice of denial is mailed. A request for hearing must be in writing and is deemed made on the date of the United States Postal Service nonmetered postmark or the date of personal service to the board office. The request for hearing shall specify the factual or legal errors that the applicant contends were made by the board, must identify any factual disputes upon which the applicant desires an evidentiary hearing, and may provide additional written information or documents in support of licensure. If a request for hearing is timely made, the board shall promptly issue a notice of hearing on the grounds asserted by the applicant.
	33.36(2) Subject to subrule 33.10(1), the board may act as presiding officer at the contested case hearing, may hold the hearing before a panel of three board members, or may request that an administrative law judge act as the presiding officer and render a proposed decision. A proposed decision by a panel of board members or an administrative law judge is subject to appeal or review by the board pursuant to subrule 33.30(2).
	33.36(3) License denial hearings are contested cases open to the public. Evidence supporting the denial of the license may be presented by an assistant attorney general. While each party shall have the burden of establishing the affirmative of matters asserted, the applicant shall have the ultimate burden of persuasion as to the applicant’s qualification for licensure.
	33.36(4) The presiding officer, after a hearing on the license denial, may grant or deny the application for licensure. If denied, the presiding officer shall state the reasons for denial of the license and may state conditions under which the application for licensure might be granted, if applicable.
	33.36(5) The notice of license denial, request for hearing, notice of hearing, record at hearing, and order are open records and available for inspection and copying in accordance with Iowa Code chapter 22. Copies may be provided to the media, collateral organizations, and other persons or entities.
	33.36(6) Judicial review of a final order of the board denying licensure may be sought in accordance with the provisions of Iowa Code section 17A.19 which are applicable to judicial review of any agency’s final decision in a contested case.
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
641—33.37(17A,105,272C) Denial of application to renew license. If the board denies a timely and sufficient application to renew a license, a notice of hearing shall be issued to commence a contested case proceeding.
	33.37(1) Hearings on denial of an application to renew a license shall be conducted according to the procedural rules applicable to contested cases. Evidence supporting the denial of the license may be presented by an assistant attorney general. The provisions of subrules 33.36(2) and 33.36(4) to 33.36(6) shall generally apply, although license denial hearings which are in the nature of disciplinary actions will be subject to all laws and rules applicable to such hearings.
	33.37(2) Pursuant to Iowa Code section 17A.18(2), an existing license shall not terminate or expire if the licensee has made timely and sufficient application for renewal until the last day for seeking judicial review of the board’s final order denying the application, or a later date fixed by order of the board or the reviewing court.
	33.37(3) Within the meaning of Iowa Code section 17A.18(2), a timely and sufficient renewal application shall be:
	a. 	Received by the board in paper or electronic form, or postmarked with a nonmetered United States Postal Service postmark on or before the date the license is set to expire or lapse;
	b. 	Signed by the licensee if the application is submitted in paper form or certified as accurate if submitted electronically;
	c. 	Fully completed; and
	d. 	Accompanied with the required fee. The fee shall be deemed unacceptable if, for instance, the amount is incorrect, the fee was not included with the application, the credit card number provided by the applicant is incorrect, the date of expiration of a credit card is omitted or incorrect, the attempted credit card transaction is rejected, or the applicant’s check is returned for insufficient funds.
	33.37(4) The administrative processing of an application to renew an existing license shall not prevent the board from subsequently commencing a contested case to challenge the licensee’s qualifications for continued licensure if grounds exist to do so.
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
641—33.38(105,272C) Recovery of hearing fees and expenses. The board may assess the licensee certain fees and expenses relating to a disciplinary hearing only if the board finds that the licensee has violated a statute or rule enforced by the board. Payment shall be made directly to the Plumbing and Mechanical Systems Board.
	33.38(1) The board may assess the following costs under this rule:
	a. 	For conducting a disciplinary hearing, an amount not to exceed $75.
	b. 	All applicable costs involved in the transcript of the hearing or other proceedings in the contested case including, but not limited to, the services of the court reporter at the hearing, transcription, duplication, and postage or delivery costs. In the event of an appeal to the full board from a proposed decision, the appealing party shall timely request and pay for the transcript necessary for use in the board appeal process. The board may assess the transcript cost against the licensee pursuant to Iowa Code section 272C.6(6) or against the requesting party pursuant to Iowa Code section 17A.12(7), as the board deems equitable under the circumstances.
	c. 	All normally accepted witness expenses and fees for a hearing or the taking of depositions, as incurred by the state of Iowa. These costs shall include, but not be limited to, the cost of an expert witness and the cost involved in telephone testimony. The costs for lay witnesses shall be guided by Iowa Code section 622.69. The cost for expert witnesses shall be guided by Iowa Code section 622.72. Mileage costs shall not be guided by Iowa Code section 625.2. The provisions of Iowa Code section 622.74 regarding advance payment of witness fees and the consequences of failure to make such payment are applicable with regard to any witness who is subpoenaed by either party to testify at hearing. Additionally, the board may assess travel and lodging expenses for witnesses at a rate not to exceed the rate applicable to state employees on the date the expense is incurred.
	d. 	All normally applicable costs incurred by the state of Iowa involved in depositions including, but not limited to, the service of the court reporter who records the deposition, transcription, duplication, and postage or delivery costs. When a deposition of an expert witness is taken, the deposition cost shall include a reasonable expert witness fee. The expert witness fee shall not exceed the expert’s customary hourly or daily rate, and shall include the time spent in travel to and from the deposition but exclude time spent in preparation for the deposition.
	33.38(2) When imposed at the board’s discretion, hearing fees (not exceeding $75) shall be assessed in the final disciplinary order. Costs and expenses assessed pursuant to this rule shall be calculated and, when possible, entered into the final disciplinary order specifying the amount to be reimbursed and the time period in which the amount assessed must be paid by the licensee.
	a. 	When it is impractical or not possible to include in the disciplinary order the exact amount of the assessment and time period in which to pay in a timely manner, or if the expenditures occur after the disciplinary order is issued, the board, by majority vote of the members present, may assess through separate order the amount to be reimbursed and the time period in which payment is to be made by the licensee.
	b. 	If the assessment and the time period are not included in the disciplinary order, the board shall have until the end of the sixth month after the date the state of Iowa paid the expenditures to assess the licensee for such expenditures. In order for the board to rely on this provision, however, the final disciplinary order must notify the licensee that fees and expenses will be assessed once known.
	33.38(3) Any party may object to the fees, costs, or expenses assessed by the board by filing a written objection within 20 days of the issuance of the final disciplinary decision, or within 10 days of any subsequent order establishing the amount of the assessment. A party’s failure to timely object shall be deemed a failure to exhaust administrative remedies. Orders which impose fees, costs, or expenses shall notify the licensee of the time frame in which objections must be filed in order to exhaust administrative remedies.
	33.38(4) Fees, costs, and expenses assessed by the board pursuant to this rule shall be allocated to the expenditure category in which the disciplinary procedure or hearing was incurred. The fees, costs, and expenses shall be considered repayment of receipts as defined in Iowa Code section 8.2.
	33.38(5) The failure to comply with payment of the assessed costs, fees, and expenses within the time specified by the board shall constitute a violation of an order of the board, shall be grounds for discipline, and shall be considered prima facie evidence of a violation of Iowa Code section 272C.3(2)(a). However, no action may be taken against the licensee without the opportunity for hearing as provided in this chapter.
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
641—33.39(17A) Judicial review. Judicial review of the board’s decision may be sought in accordance with the terms of Iowa Code chapter 17A.
	33.39(1) Consistent with Iowa Code section 17A.19(3), if a party does not file a timely application for rehearing, a judicial review petition must be filed with the district court within 30 days after the issuance of the board’s final decision. The board’s final decision is deemed issued on the date it is mailed or the date of delivery if service is by other means, unless another date is specified in the order.
	33.39(2) If a party files a timely application for rehearing, a judicial review petition must be filed with the district court within 30 days after the application for rehearing is denied or deemed denied. An application for rehearing is denied or deemed denied as provided in subrule 33.32(6).
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
641—33.40(17A,272C) Reinstatement.
	33.40(1) The term “reinstatement,” as used in this rule, includes both the reinstatement of a suspended license and the issuance of a new license following the revocation or voluntary surrender of a license.
	33.40(2) Any person whose license has been revoked or suspended by the board, or who voluntarily surrendered a license in a disciplinary proceeding, may apply to the board for reinstatement in accordance with the terms of the order of revocation or suspension, or order accepting the voluntary surrender.
	33.40(3) Unless otherwise provided by law, if the order of revocation or suspension did not establish terms upon which reinstatement might occur, or if the license was voluntarily surrendered, an initial application for reinstatement may not be made until at least one year has elapsed from the date of the order or the date the board accepted the voluntary surrender of a license.
	33.40(4) All proceedings for reinstatement shall be initiated by the respondent, who shall file with the board an application for reinstatement of the respondent’s license. Such application shall be docketed in the original case in which the license was revoked, suspended, or relinquished. All proceedings upon the petition for reinstatement, including the matters preliminary and ancillary thereto, shall be subject to the same rules of procedure as other cases before the board.
	33.40(5) An application for reinstatement shall allege facts which, if established, will be sufficient to enable the board to determine that the basis of revocation, suspension or voluntary surrender of the respondent’s license no longer exists and that it will be in the public interest for the license to be reinstated. Compliance with rule 641—33.31(17A,272C) must also be established. The burden of proof to establish such facts shall be on the respondent.
	33.40(6) An order of reinstatement shall be based upon a decision which incorporates findings of fact and conclusions of law and must be based upon the affirmative vote of not fewer than a majority of the board. This order shall be published as provided for in subrule 33.30(1).
[ARC 9057B, IAB 9/8/10, effective 10/13/10]
These rules are intended to implement Iowa Code chapters 17A, 105 and 272C.
[Filed ARC 9057B (Notice ARC 8861B, IAB 6/16/10), IAB 9/8/10, effective 10/13/10]
[Filed ARC 1223C (Notice ARC 0931C, IAB 8/7/13), IAB 12/11/13, effective 1/15/14]