This chapter governs cease and desist order proceedings held under the authority of Commercial Law Article, §13-403, Annotated Code of Maryland. In this chapter, the following terms have the meanings indicated. Terms Defined. Agency. “Agency” means the Consumer Protection Division in its role as an administrative agency authorized to adjudicate contested cases under Commercial Law Article, §13-403, and State Government Article, §10-202(b), Annotated Code of Maryland. “Agency” includes the Chief of the Consumer Protection Division, and any person to whom the Chief of the Consumer Protection Division has delegated the authority to issue the final administrative decision of the Agency in a contested case. “Authorized representative” means an attorney or, if permitted by applicable law, a person designated by a party to represent the party. “Chief” means: The Chief of the Consumer Protection Division; or A person designated by the Chief of the Consumer Protection Division not employed by the Office of Administrative Hearings. “Chief Administrative Law Judge” means the Chief Administrative Law Judge of the Office of Administrative Hearings. “Division” means the Consumer Protection Division of the Office of the Attorney General in its role as a party to a contested case. “Judge” means an administrative law judge: Appointed by the Chief Administrative Law Judge under State Government Article, §9-1604, Annotated Code of Maryland; or Designated by the Chief Administrative Law Judge under State Government Article, §9-1607, Annotated Code of Maryland. “Office” means the Office of Administrative Hearings. “Party” means a person named or admitted to participate in a cease and desist order proceeding. “Person” means an individual, corporation, business trust, estate, trust, partnership, association, two or more persons having a joint or common interest, or any other legal or commercial entity. Filing a Petition. Any person may file a petition with the Agency. The petition shall: Be accompanied by a statement of charges; and Show cause why a hearing on the matters raised should be granted. Review by the Agency. The Agency shall: Review each petition; and Determine whether to hold a hearing under Commercial Law Article, §13-403, Annotated Code of Maryland. Unless notice issued under Regulation .06 of this chapter states otherwise, the Division is the party proponent. To Whom Delegated. The Chief of the Consumer Protection Division shall: Conduct the hearing; or Delegate the hearing authority to: The Office; or With the prior approval of the Chief Administrative Law Judge, a person not employed by the Office. Scope of Authority Delegated. Unless the Agency notifies the parties of a different delegation, the authority delegated shall issue proposed findings of fact and proposed conclusions of law, but not recommend proposed relief. Delegation of Authority to Issue Final Administrative Decision. The Chief of the Consumer Protection Division may delegate the authority to issue the final administrative decision of the Agency. The party designated as the party proponent has the burden of proving the allegations by a preponderance of the evidence. Type of Notice. The Agency shall issue notice in compliance with State Government Article, §§10-207 and 10-208, Annotated Code of Maryland. If a hearing date is required and has not been set, notice under State Government Article, §10-208(b)(1), Annotated Code of Maryland, shall be given once the hearing date has been set by the Agency or the Office, whichever is conducting the hearing. The party proponent shall serve each party with all documents required by and in compliance with Commercial Law Article, §13-403(a)(2), Annotated Code of Maryland, and State Government Article, §§10-207, 10-208, and 10-209, Annotated Code of Maryland. A respondent shall file a written response to the statement of charges. Time for Filing. Unless the Agency has issued a cease and desist order under Commercial Law Article, §13-403(d) or 14-12B-08(a), Annotated Code of Maryland, without first conducting a hearing, the respondent shall file the response: Within 20 days of service of the statement of charges; and Within 20 days of service of an amended statement of charges if a respondent wishes to contest new facts or allegations introduced in the amended statement of charges. If the Agency has issued a cease and desist order under Commercial Law Article, §13-403(d) or 14-12B-08(a), Annotated Code of Maryland, and if a hearing is requested, the respondent shall file the response with the request for hearing. Content. The respondent shall state in the response all affirmative and negative defenses, and shall: Admit or deny each allegation in the statement of charges; Generally deny all allegations in the statement of charges except for those allegations that are specifically admitted; or State that the respondent is without knowledge or information sufficient to form a belief concerning the truth of any allegation, which statement has the effect of a denial. Effect of Failure to Deny. Unless denied in a timely-filed response, allegations are admitted. Effect of Failure to File Response. Failure to timely file a response may be grounds for issuance of a default order under Regulation .17 of this chapter. After service on a respondent of notice issued pursuant to Regulation .06 of this chapter, a party shall file pleadings and papers with: The Agency, if the hearing is before the Chief; or The Office, if the hearing authority is delegated to the Office. A party shall serve pleadings and papers filed after notice issued pursuant to Regulation .06 of this chapter: Upon each party's attorney; or Upon the party if a party is not represented by counsel. A party shall make service by: Delivery of a copy; Mailing it to: The address most recently stated in a pleading or paper filed by the attorney or party; or To the last known address, if no address is stated on the most recent pleading or paper filed by the attorney or party; or Any other method agreed upon by the parties. A party shall include in its pleadings a certificate of service showing the date and manner of making service. The Division shall prepare and send to at least six newspapers of general circulation in Maryland notice of every cease and desist action filed. The Division shall include in the notice: A summary of the allegations; The date and time the case is scheduled for hearing, if a hearing has been scheduled; and A statement that hearings are open to the public. In hearings before the Chief, the parties are entitled to the following discovery: By written request filed not later than 30 days before the scheduled hearing, a party may require any other party to produce within 15 days, for inspection or copying, any file, memorandum, correspondence, document, object, or tangible thing: Relevant to the subject matter of the case; and Not privileged; and Unless provided by law or by agreement of the parties, no other discovery procedure may be required. In hearings delegated to the Office, the parties shall conduct any discovery pursuant to COMAR 28.02.01.13. Issuance of Hearing Subpoenas. On the request of a party in hearings before the Chief, or at the direction of the Chief, the Agency may issue subpoenas requiring the attendance and testimony of witnesses and the production at the hearing of any tangible items in the possession or under the control of the witness. Requests for Hearing Subpoenas. A party requesting a subpoena shall make the request, in writing, to the Agency. Unless cause is shown, a party shall file subpoena requests with the Agency at least 10 calendar days before the hearing. A request for a subpoena shall specify the: Name and full address of the person to be subpoenaed; and Name, full address, and telephone number of the party requesting the subpoena. A party requesting a subpoena for the production of tangible items, books, papers, or other documents shall describe those items with particularity. A party need not serve a subpoena request on all parties. Service of Hearing Subpoenas. The party requesting the subpoena shall be responsible for serving the subpoena by: Personal delivery by an individual 18 years old or older who is not a party to the proceeding; Certified mail, return receipt requested, to the person at the address specified in the subpoena request; Regular mail, if the subpoena is to a party; or Any other method of service authorized by the Agency. Affidavit of Service. The person requesting the subpoena shall file an Affidavit with the Agency showing the date and manner of making service. Objections to Hearing Subpoenas. A person may object to a subpoena by filing a motion to quash or for other relief. Failure to Comply with Hearing Subpoenas. Upon a timely request by a party to the proceeding, the Agency may: Seek an order from a circuit court to obtain compliance with the subpoena; Enter an order imposing sanctions, including default, upon a party who fails to comply with a subpoena; and Grant any other appropriate relief. Hearings Before the Chief. In hearings before the Chief, any prehearing conferences shall be conducted as provided in §A(2)—(7) of this regulation. If appropriate, the Agency may hold a prehearing conference to resolve matters preliminary to the hearing. The Agency may require the parties to submit information before the prehearing conference. A prehearing conference may be convened to address the following matters: Issuance of subpoenas; Factual and legal issues; Stipulations; Requests for official notice; Identification and exchange of documentary evidence; Admissibility of evidence; Identification and qualification of witnesses; Motions; Discovery disputes; Order of presentation; Scheduling; Alternate dispute resolution; and Any other matters that will promote the orderly and prompt conduct of the hearing. Except as otherwise indicated in this chapter, at the discretion of the Agency, all or part of a prehearing conference may be recorded. Prehearing Orders. Unless otherwise stated in this chapter, when a prehearing conference has been held, the Agency shall issue a prehearing order. The Agency shall set forth in the prehearing order the actions taken or to be taken with regard to any matter addressed at the prehearing conference. If a prehearing conference is not held, the Agency may issue a prehearing order to regulate the conduct of the proceedings. The prehearing order shall be a part of the case record. If, after notice is given, a party fails to attend a prehearing conference, that party is bound by the Agency's prehearing order. In hearings delegated to the Office, COMAR 28.02.01.17 governs any prehearing conferences. Hearings Before the Chief. In hearings before the Chief, the provisions of §A(2) and (3) of this regulation apply. Each party is entitled, on a genuine issue in a contested case, to: Call witnesses; Offer evidence; and Cross-examine any witness who testifies. Exclusion of Witnesses. Upon request by a party, the Chief shall exclude witnesses other than parties from the hearing room, except when testifying. A party that is not an individual may designate an employee or officer as its representative to remain in the hearing room, even though the employee or officer may be a witness. An expert witness who is to render an opinion based on testimony given at the hearing may remain during that testimony. A party, representative, witness, or spectator may not disclose to a witness excluded under §A(3) of this regulation the nature, substance, or purpose of testimony, or other evidence introduced during that witness's absence. The Chief may: Exclude the testimony of a witness who receives information in violation of §A(3) of this regulation; or Take other appropriate action. COMAR 28.02.01.20 governs hearings delegated to the Office. Duties of the Chief. In hearings before the Chief, the Chief shall: Conduct a full, fair, and impartial hearing; Take action to avoid unnecessary delay in the disposition of the proceeding; and Maintain order. Powers of the Chief. In hearings before the Chief, the Chief has the power to regulate the course of the hearing and the conduct of the parties and authorized representatives, including the power to: Administer oaths and affirmations; Issue subpoenas for witnesses and the production of evidence; Rule upon offers of proof and receive relevant and material evidence; Consider and rule upon motions; Admit affidavits and other hearsay as evidence, unless there are nonhearsay reasons why the evidence should be excluded; Examine and call witnesses as necessary to ensure a full and complete record; Limit unduly repetitious testimony and reasonably limit the time for presentations; Grant a continuance or postponement; Modify or waive, reasonably, any time periods established by this chapter; Request parties to submit legal memoranda and proposed findings of fact and conclusions of law; Make proposed or final decisions, as authorized, and take any other appropriate actions authorized by law; Issue orders necessary to secure procedural simplicity and administrative fairness, and to eliminate unjustifiable expense and delay; Conduct the hearing in a manner suited to ascertain the facts and safeguard the rights of the parties to the hearing; and Impose appropriate sanctions for failure to abide by these regulations or any lawful order of the individual conducting the hearing. COMAR 28.02.01.11 governs the powers and duties of the Judge in hearings delegated to the Office. Evidence is admissible in accordance with State Government Article, §10-213, Annotated Code of Maryland, and other pertinent law. Hearings Before the Chief. In hearings before the Chief, the provisions of §A(2)—(4) of this regulation apply. After receiving proper notice, if a party fails to file a response or fails to attend or participate in a prehearing conference, hearing, or other stage of a proceeding, the Chief may proceed in that party's absence or may issue a default order against the defaulting party. On motion filed within 30 days after the date of a default order, the Chief may, for good cause, vacate or modify the final default order and set the case in for further proceedings as appropriate. If no motion is filed or a motion is denied, the default order is effective. COMAR 28.02.01.23 governs default in hearings delegated to the Office. Hearings Before the Chief. In hearings before the Chief, the provisions of §A(2—(7) of this regulation apply. A party may move for appropriate relief by submitting a motion either: In writing; or Orally at the hearing. Content of Motions. In the motion, a party shall: Set forth the relief or order sought; State with particularity the grounds; and Attach as an exhibit to a written motion or, in an oral motion, refer to, any necessary supporting documents. Prehearing Motions. Filing. A party shall file any prehearing motions: In writing; and Not later than 15 days before the date of the hearing. Response. A party shall file a written response to a prehearing motion: Within 15 days of filing of the motion; or If the hearing is scheduled within 15 days of filing of the motion, not later than the date of the hearing. Emergency Request for Postponement. For purposes of this section, “emergency” means a sudden, unforeseen occurrence requiring immediate attention that arises within 5 days of the hearing. In an emergency, a party may request a postponement by telephone. When practicable, a party shall contact all parties to a proceeding before a ruling on a postponement request is made. Post-hearing Motions. Filing. Post-hearing motions shall be filed in writing. Response. A response to a post-hearing motion shall be filed: In writing; and Within 15 days of filing of the motion. Effect of Motion on Other Time Limits. The filing or pendency of a motion does not alter or extend any time limit otherwise established by this chapter. Review of Ruling. A ruling on a motion may only be reviewed by: Exception to the proposed decision; or Judicial review under State Government Article, §10-222, Annotated Code of Maryland. COMAR 28.02.01.12 governs motions in hearings delegated to the Office. In hearings before the Chief: An individual may represent himself or herself; or A party may be represented by an attorney authorized to practice law in Maryland or, if authorized by law, appear through a representative who is not an attorney. COMAR 28.02.01.08 governs representation matters in hearings delegated to the Office. Proceedings shall be recorded by: A stenographer; A court reporting service; or Electronic recording. Transcription. Judicial Review of a Final Order. If a recorded proceeding has not been transcribed by a court reporting service before the filing of a petition for judicial review of a final order, and the parties are not filing a statement in lieu of record pursuant to Maryland Rule 7-206(b), the first party seeking judicial review shall: Order the transcript from a court reporting service; and Within 30 days of filing the petition for judicial review, have the court reporting service deliver a copy of the transcript to the Agency's administrative hearing clerk for transmittal to the clerk of the court. Expense of Transcription. The first party seeking judicial review shall pay the expense of transcription. The expense of transcription is taxable as costs. Filing Exceptions. A party shall file any exceptions to the proposed findings, conclusions, or orders of the Office or other designated person: In writing; With the Agency; and Within 30 days of the date the proposed findings, conclusions, or orders are submitted to the Agency. Content of Exceptions. In its exceptions, a party shall: Identify the proposed finding, conclusion, or order to which exception is being taken; Specify the basis of the exception; Set forth the facts and law that support the exception; and State arguments in their entirety and not by reference to prior filings. Length of Exceptions. Unless a request is filed with and granted by the Agency, a party may not file exceptions that exceed 50 pages. Response to Exceptions. Filing. A party shall file a response to exceptions: In writing; With the Agency; and Within 30 days of filing of the exceptions. Length. Unless a request is filed with and granted by the Agency, a party may not file a response to exceptions that exceeds 50 pages. Form of Exceptions and Responses. A party shall file exceptions and responses that conform to Maryland Rule 8-112. Oral Argument on Exceptions. Upon the request of a party, the Chief shall hear oral argument on exceptions. Additional Evidence. The Chief may take additional evidence that was not introduced at the time of the hearing, or order that the individual who conducted the hearing take the additional evidence, if a party: Applies for leave to offer the additional evidence at the time exceptions are filed; and Establishes that: The evidence is material; and There was good cause for failure to offer the evidence in the hearing. The Chief, on the Chief's own initiative, may take additional evidence at any time before a final decision is rendered. After proposed findings of fact and conclusions of law have been issued, any party may file a proposed order with the Agency. If the Agency finds that a respondent has violated the Consumer Protection Act, Commercial Law Article, Title 13, Annotated Code of Maryland, the Agency shall issue a final order under Commercial Law Article, §13-403, and State Government Article, §10-221, Annotated Code of Maryland. On motion of any party filed at any time, the Chief may modify a final decision to correct a mistake, irregularity or fraud in the same manner that the courts may exercise revisory power under Maryland Rule 2-535(b). On the initiative of the Chief, or on the motion of any party filed at any time, the Chief may modify a final decision to correct a clerical mistake in the same manner as the courts may exercise revisory power under Maryland Rule 2-535(d). In addition to the ability of the Chief to issue supplemental or amended orders in accordance with the terms of the final decision, on motion of any party filed within 14 days of the date of the final order, the Chief may modify a final decision. A request for modification pursuant to §§A—C of this regulation does not automatically stay the action or toll the time for filing a petition for judicial review. COMAR 28.02.01.27 governs modification of final decisions when final decision-making authority is delegated to the Office. A party shall notify the Agency and all parties in writing of any change of address or telephone number within 30 days of the change. If no change is provided, the Agency and all parties may rely on the last known address or telephone number. State Government Article, §10-206(b);Commercial Law Article, §§13-204(12), 13-205(a), and 13-403; Annotated Code of Maryland Effective date: July 23, 1975 (2:16 Md. R. 1137) Regulations .01—.16 repealed and new Regulations .01—.24 adopted effective January 31, 2005 (32:2 Md. R. 145) Regulation .04C amended effective January 26, 2009 (36:2 Md. R. 99) Annotation: COMAR 02.01.02.12 and 02.01.02.14 cited in Consumer Protection Division v. Consumer Publishing Co., 304 Md. 731 (1985)