CHAPTER 20:36:05
CHARGES AND HEARINGS
Section
20:36:05:01 Charges -- Scope and methods of making.
20:36:05:02 Board hears charges by resolution.
20:36:05:03 Complaint procedure.
20:36:05:04 Charges -- Subject matter -- Specifications -- Filing -- Service -- Time.
20:36:05:05 Complaint filed with board.
20:36:05:05.01 Informal proceedings.
20:36:05:05.02 Assurance of voluntary compliance.
20:36:05:05.03 Formal proceedings.
20:36:05:06 Serving complaint on accused.
20:36:05:06.01 Disqualification.
20:36:05:07 Hearings shall be public.
20:36:05:08 Hearing procedure.
20:36:05:09 Subpoena procedure.
20:36:05:10 Hearings may be extended.
20:36:05:11 Hearings -- Decision.
20:36:05:12 Petition for review.
20:36:05:01. Charges -- Scope and methods of making. Upon all matters involving the right of a person, firm, or corporation to engage in or to continue in abstracting under the laws of South Dakota either as an owner, operator, agent, or employee, the board may make charges in its discretion upon its own resolution or may consider charges upon sworn complaint of any person or persons as herein provided.
Source: SL 1975, ch 16, § 1; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority: SDCL 36-13-6.
Law Implemented: SDCL 36-13-10.
20:36:05:02. Board hears charges by resolution. The board may, whenever a majority of its members at any regular or special meeting of the board shall adopt a resolution for the purpose, specify and hear charges on any of such matters referred to in § 20:36:05:01 or otherwise permitted by law.
Source: SL 1975, ch 16, § 1; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority: SDCL 36-13-6.
Law Implemented: SDCL 36-13-10.
20:36:05:03. Complaint procedure. Any person, firm, or corporation or one or more of such jointly may make a complaint under oath against any person, firm, or corporation or one or more of them jointly if they are engaged in the same plant operation upon any of the matters hereinbefore referred to in this section or otherwise permitted by law.
Source: SL 1975, ch 16, § 1; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority: SDCL 36-13-6.
20:36:05:04. Charges -- Subject matter -- Specifications -- Filing -- Service -- Time. The charges may embrace any one or more violations of law or of this article or any other law or rule or regulation of South Dakota applicable in the circumstances. The resolution, if charges are made by the board of its own selection, or the complaint if made otherwise, shall specify each violation relied upon, separately and with sufficient definiteness and certainty to enable a person of ordinary understanding to know the nature of the charge and to show the jurisdiction of the board to hear the same.
Source: SL 1975, ch 16, § 1; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority: SDCL 36-13-6.
20:36:05:05. Complaint filed with board. The original resolution or complaint shall be filed with the executive secretary and remain a permanent record of the board, and a note of its filing shall be made in the journal or minutes of the board. The executive secretary shall immediately submit the resolution or complaint to the board unless the charges shall, after consideration of the board, be dismissed as trivial or not within the jurisdiction of the board without a hearing. The charges shall be heard and determined by the board within 90 days after their filing with the executive secretary. The board shall fix a time and place within the county in which the person, firm, or corporation charged will be engaged in the business of abstracting, and the time and location where the hearing on the charge shall be conducted.
Source: SL 1975, ch 16, § 1; 12 SDR 151, 12 SDR 155, effective July 1, 1986; 46 SDR 42, effective October 3, 2019.
General Authority: SDCL 36-13-6.
Law Implemented: SDCL 36-13-6, 36-13-10.
20:36:05:05.01. Informal proceedings. Unless the parties agree to proceed directly to a formal hearing, the board shall conduct informal proceedings on complaints of a serious nature constituting grounds for disciplinary action. The board shall consult with any parties affected in an effort to resolve the matter satisfactorily and shall notify in writing the person making the complaint, the applicant for or holder of a certificate of registration complained against, and any other affected parties of the results of the informal proceedings. Such informal proceedings shall not preclude the board from instituting formal proceedings.
Source: 6 SDR 11, effective August 14, 1979; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority: SDCL 36-13-6.
20:36:05:05.02. Assurance of voluntary compliance. The board may accept an assurance of voluntary compliance with respect to any alleged violation of this article or SDCL chapter 36-13 from any person or firm complained against. Any such assurance shall be in writing and shall be subject to the approval of the board. The assurance may include a stipulation for the voluntary payment by the alleged violator of the costs of the investigation and any amount necessary to restore to any person any money or property which may have been acquired by the alleged violator by means of any violation. Assurance of voluntary compliance shall not be considered an admission to a violation for any purpose; however, proof of failure to comply with the assurance of voluntary compliance shall be prima facie evidence of a violation of this article.
Source: 6 SDR 11, effective August 14, 1979; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority: SDCL 36-13-6.
20:36:05:05.03. Formal proceedings. If it appears to the board that formal proceedings in respect to a complaint should be instituted, the board shall serve by mail a formal complaint issued in the name of the board and a notice of hearing upon the applicant for or holder of a certificate of registration complained against, the person making the complaint, and any other affected parties.
Source: 6 SDR 11, effective August 14, 1979; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority: SDCL 36-13-6.
20:36:05:06. Serving complaint on accused. A copy of the order of the board fixing the time and place of hearing together with a copy of the resolution or complaint shall be legally served upon the accused at least 30 days before the date fixed for hearing. If such service cannot be effected within 30 days before the date fixed for hearing, the time for hearing and determination may be extended by order of the board from time to time in order that such services can be legally effected 30 days before the time fixed for same.
Source: SL 1975, ch 16, § 1; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority: SDCL 36-13-6.
20:36:05:06.01. Disqualification. If the complaint referred to in § 20:36:05:03 was filed by a board member, that board member shall be disqualified from sitting at the hearing as a board member and from participating in the decision rendered by the board.
Source: 6 SDR 11, effective August 14, 1979; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority: SDCL 36-13-6.
20:36:05:07. Hearings shall be public. The hearings shall be public and any of the board present shall have authority to preserve order and decorum under the contempt process. A majority of the board shall be present at all hearings. If the president and secretary-treasurer are present the president shall preside and the secretary-treasurer shall act in his usual capacity. If either is absent the board members present shall act in such manner as they shall specify at the opening of the hearing.
Source: SL 1975, ch 16, § 1; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority: SDCL 36-13-6.
20:36:05:08. Hearing procedure. A stenographic record of the oral testimony shall be kept, but as to any documentary evidence offered, the party offering same shall submit three copies for introduction. If the inspection or examination of a plant is involved the board shall specify in the record or incorporate in its decision its finding with reference thereto. The accused shall have a right to appear personally and by counsel, to cross examine all witnesses, and to produce evidence and witnesses in his own behalf. The board may hear arguments orally or by briefs or both as the members present may order.
Source: SL 1975, ch 16, § 1; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority: SDCL 36-13-6.
20:36:05:09. Subpoena procedure. Subpoena shall be issued under the name and seal of the board upon application of any party or any member of the board at any time prior to the hearing or during the hearing under the provisions of SDCL 36-13-2, but requests for subpoena during the hearing shall not be granted if in uncontrolled discretion of the board the effect of same would be to delay the hearing unduly.
Source: SL 1975, ch 16, § 1; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority: SDCL 36-13-6.
20:36:05:10. Hearings may be extended. Continuances of the hearing and extension of the time for making and service of the decision of the board may be granted for good cause shown upon application of any party or may be made by order of the board entered in the record whenever the reason and necessity therefor shall appear.
Source: SL 1975, ch 16, § 1; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority: SDCL 36-13-6.
Law Implemented: SDCL 36-13-6, 36-13-10.
Cross-Reference: Right of appeal when agency fails to act in contested case, SDCL 1-26-30.1.
20:36:05:11. Hearings -- Decision. After hearing the evidence and arriving at a decision, the board may, depending upon the circumstances, dismiss the complaint, revoke the certificate of registration, suspend the certificate of registration, or issue a letter of reprimand to be placed in the files of the holder of the certificate of registration complained against. A letter of reprimand shall state the actions against which a complaint was filed with the names, dates, places, and list of witnesses involved in the complaint.
The board may announce its decision orally at the conclusion of the hearing, provided a majority of the members of the board agree to do so at the time. The decision of the board, whether announced orally at the conclusion of the hearing or formulated later, shall be reduced to writing in accordance with the provisions of SDCL 1-26-25.
This section shall not preclude the board from allowing a settlement of the complaint, and the board may also allow an assurance of voluntary compliance as prescribed by § 20:36:05:05.02.
Source: SL 1975, ch 16, § 1; 6 SDR 11, effective August 14, 1979; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority: SDCL 36-13-6.
20:36:05:12. Petition for review. Within 10 days after receipt of the board's decision, any party to the hearing may file with the board a petition for review of its decision. The board, at its discretion, may deny the petition, order a rehearing, or direct any other proceedings it deems appropriate. Upon rehearing, the board may affirm, reverse, or modify its earlier decision. Notice of the board's decision on the petition to review shall be served by mail upon the petitioner and other affected parties.
Source: 6 SDR 11, effective August 14, 1979; 12 SDR 151, 12 SDR 155, effective July 1, 1986.
General Authority: SDCL 36-13-6.
Law Implemented: SDCL 1-26-18.
