1.3 Notice and Conduct of Hearings

Outline item I.A.3, Notice and Conduct of Hearing, cites W.Va. Code §§33-2-12 and 33-2-13. These sections matter because the bail rule ties discipline to them. Under 114CSR103-11.1, a license may be suspended or revoked "after notice and hearing pursuant to W. Va. Code §§33-2-12 and 33-2-13." The numbers in these sections (15, 45, 45, 30) are classic exam material.

Notice: W.Va. Code §33-2-12

When Chapter 33 requires the Commissioner to give notice:

• To a licensee (or a licensee's employee): notice is proper and effective when deposited in the United States mail, postage prepaid, addressed to the licensee's principal place of business or residence as last of record in the Commissioner's office.
• Proof of service: the verified return of the person who mailed it.
• To anyone else: service follows the rules for service of process in civil actions. That method may also be used for licensees.

Notice by mail to the address of record is effective even if you never read it. That is why the bail rule makes address changes mandatory. A bondsman must report changes of legal name, residence, business or mailing address, email or telephone within 30 days (114CSR103-3.11). Failing to do so, or failing to respond to a properly mailed notice within a reasonable time, is itself a ground for suspension or revocation (114CSR103-11.1.11).

Hearings: W.Va. Code §33-2-13

When hearings happen

• The Commissioner may call a hearing for any purpose it considers necessary.
• The Commissioner must hold a hearing when Chapter 33 requires one, or on written demand by a person aggrieved by an act, a failure to act, or a rule or order of the Commissioner.
• A written demand must specify the grounds for the relief requested.
• A demanded hearing must be held within 45 days of the Commissioner's receipt of the demand, unless postponed by mutual agreement.
• The Commissioner may, in its discretion, stay the effect of an order pending the hearing.

Notice of the hearing

At least 15 days' notice of the time, place and matters to be considered must go to everyone directly affected.

Rights at the hearing

Anyone directly affected may:

1. appear in person and by counsel;
2. be present while all evidence is given;
3. have a reasonable opportunity to inspect documentary evidence;
4. examine witnesses and present relevant evidence; and
5. have the Commissioner issue subpoenas to compel witnesses and evidence on their behalf.

Formal rules of pleading or evidence need not be observed. A full stenographic record is made on timely written request, at the requester's expense, or on the Commissioner's own motion and expense. A transcript can be added to the official record on request, at the requesting party's expense.

The order

• Within 45 days after the hearing is completed, unless extended by mutual consent, the Commissioner enters an order with findings of fact and conclusions.
• The order may affirm, modify or nullify earlier action, or prescribe new action within the scope of the hearing notice.
• A copy is mailed to everyone directly affected.
• A rehearing may be granted on a written request filed within 30 days of the mailing of the order.
• Hearing costs (witnesses, subpoenas, stenographic record) may be taxed to the party the Commissioner finds against.

Hearing timeline at a glance

Hearings that appear elsewhere in the bail rule

• Suspension or revocation for good cause (114CSR103-11.1): only after notice and hearing under §§33-2-12 and 33-2-13.
• Aggregate bonding authority (114CSR103-8.3): a professional bondsman may request a hearing on a refusal to increase, or a decision to decrease, aggregate authority.
• Security deficiency (114CSR103-8.6): if not cured within 10 working days, the license "shall be suspended pending a hearing."
• Bankruptcy (114CSR103-12): failure to report a bankruptcy filing within five working days means immediate suspension "pending further investigation and hearing."

In the last two cases the suspension comes first and the hearing follows.

Judicial review

The outline tests notice and hearings, not appeals. For context: W.Va. Code §33-2-14 allows an appeal only from an order entered after a hearing, or an order refusing a hearing. Its text gives 30 days after the order is mailed or delivered. The order stays in force during the appeal unless stayed. Its text names the Circuit Court of Kanawha County. Since July 1, 2022, however, W.Va. Code §51-11-4(b)(4) sends appeals of final agency orders entered after June 30, 2022 to the Intermediate Court of Appeals. A licensee should confirm the current route with counsel.

Exam traps

• Mailing completes service. Notice to a licensee is effective when mailed to the last address of record; certified mail is not required.
• 15 days' notice versus 45-day deadlines. Fifteen is the minimum notice period. Forty-five is both the deadline for a demanded hearing and the deadline for the order.
• Formal evidence rules do not bind the hearing.
• Rehearing: 30 days from mailing of the order, on written request.