Subchapter VII. Application of Chapter
TITLE 29
State Government
General Regulations for State Agencies
CHAPTER 101. ADMINISTRATIVE PROCEDURES
Subchapter VII. Application of Chapter
§ 10161. State agencies affected.
(a) This chapter shall apply only to the following agencies:
(1) Alcoholic Beverage Control Commission;
(2) State Banking Commissioner;
(3) Public Service Commission;
(4) Real Estate Commission;
(5) State Human Relations Commission;
(6) Tax Appeal Board;
(7) State Insurance Commissioner;
(8) Industrial Accident Board;
(9) Environmental Appeals Board;
(10) Coastal Zone Industrial Control Board;
(11) State Board of Education;
(12) Merit Employee Relations Board;
(13) Division of Boiler Safety;
(14) Board of Veterinary Medicine;
(15) Board of Landscape Architecture;
(16) Board of Clinical Social Work Examiners;
(17) Board of Architects;
(18) Board of Podiatry;
(19) Board of Pilot Commissioners;
(20) Board of Chiropractic;
(21) State Board of Electrical Examiners;
(22) Board of Medical Licensure and Discipline;
(23) Council of the Delaware Association of Professional Engineers;
(24) Board of Occupational Therapy Practice;
(25) Division of Child Support Enforcement;
(26) Board of Mental Health and Chemical Dependency Professionals;
(27) State Board of Dentistry and Dental Hygiene;
(28) Board of Nursing;
(29) Board of Examiners in Optometry;
(30) Board of Examiners of Psychologists;
(31) Board of Speech/Language Pathologists, Audiologists and Hearing Aid Dispensers;
(32) Board of Professional Land Surveyors;
(33) Board of Accountancy;
(34) Board of Pharmacy;
(35) Board of Geologists;
(36) Board of Cosmetology and Barbering;
(37) Commission on Adult Entertainment Establishments;
(38) Board of Physical Therapy and Athletic Trainers;
(39) Real Estate Commission;
(40) Board of Funeral Services;
(41) Board of Examiners of Nursing Home Administrators;
(42) Delaware Gaming Control Board;
(43) Board of Massage and Bodywork;
(44) Committee of Dietetics/Nutrition;
(45) Council on Real Estate Appraisers.
(46) Child Placement Review Board;
(47) The Professional Standards Board;
(48) Election Commissioner;
(49) Board of Plumbing Examiners;
(50) Board of Athletic Agent Examiners;
(51) Manufactured Home Installation Board; and
(52) Division of Professional Regulation
(b) All agencies which are not listed in subsection (a) of this section shall only be subject to subchapters I and II of this chapter and §§ 10141, 10144 and 10145 of this title.
(c) Any professional licensing board governed by Title 24 and listed in subsection (a) of this section, upon notice, hearing and review afforded by subchapters III and V of this chapter, may issue a cease and desist order to a person that the Board determines is engaged in the practice of the profession regulated by the Board without having lawfully obtained a license or that a person previously licensed by the Board is engaged in the regulated practice of the profession notwithstanding that the person's license has lapsed, expired or has been suspended or revoked.
(d) The professional licensing boards named in subsection (c) of this section may establish fines for persons that violate cease and desist orders by statute or by regulation in accordance with subchapters I and II of this chapter. Subject to notice, hearing and review afforded by subchapters III and V of this chapter, such professional licensing boards may fine any person who violates a cease and desist order not less than $100 or more than $1000. Each day a violation continues may be deemed a separate offense in the Board's discretion.
(e) In addition to the remedies provided in subsections (c) and (d) of this section, professional licensing boards named in subsection (c) of this section may seek injunctive relief to prevent unauthorized practice of the profession.
(f) Nothing in this section shall be construed to prevent prosecution under, or be otherwise inconsistent with, Titles 11 and 24.
(g) At a properly convened board meeting, the board president or chairperson of any professional licensing board governed by Title 23, 24, or 28 and listed in subsection (a) of this section that is not already authorized by statute to use hearing panels or committees to resolve cases, may nominate at least 3 members of the board, the 3 members being 2 professional members and 1 public member if practical, to serve on a hearing panel to decide disciplinary complaints and complaints of unlicensed practice. Nominees must be approved by a majority vote of the board members present at the properly convened meeting. The board president or chairperson shall designate 1 member of a hearing panel to serve as the hearing panel chair. Hearing panels shall consist of board members only.
(h) Notice of the panel hearing shall be given and the hearing shall be conducted in accordance with the Administrative Procedures Act, Chapter 101 of this title. All hearings shall be informal without use of rules of evidence. A verbatim record must be kept of all public hearings, a transcript of which must be provided at cost upon a party's request. Decisions of the hearing panel must be made by majority vote of the hearing panel members. Decisions must be based on the evidence presented at the hearing and must be supported by substantial evidence in the record. Decisions must not be based exclusively on hearsay.
(1) If the hearing panel determines that no violation of the applicable provisions of Title 23, 24, 28 or this title or any of the board's rules and regulations promulgated thereunder has occurred, it shall issue an order dismissing the complaint.
(2) If the hearing panel determines that a violation of the applicable provisions of Title 23, 24, 28 or this title or any of the board's rules and regulations promulgated thereunder has occurred, it shall issue an order stating its proposed findings of fact, conclusions of law, and disciplinary sanctions.
(3) If the respondent fails or refuses to appear, the hearing panel may nevertheless proceed to hear the complaint and render a decision.
(i) Orders issued by the hearing panel are not final until approved by the board having jurisdiction. By majority vote of the members present at a properly convened board meeting, the board shall approve or reject the hearing panel's written order based only on the information contained in the order. The board shall overturn the decision of a hearing panel only if it decides that a hearing panel decision is contrary to a specific state or federal law or regulation, is not supported by substantial evidence, or is arbitrary or capricious. If a board does not approve the hearing panel's order, the matter must be remanded to the hearing panel for further proceedings in accordance with the board's written reasons for withholding its approval. Where the respondent is in disagreement with the action of the board, the respondent may appeal the board's decision in accordance with the provisions of the Administrative Procedures Act. The court shall hear the appeal on the record. Stays shall be granted in accordance with § 10144 of this title. Copies of orders must be served personally or by registered or certified mail to each party.
60 Del. Laws, c. 585, § 1; 62 Del. Laws, c. 301, § 2; 63 Del. Laws, c. 460, § 15; 63 Del. Laws, c. 461, § 18; 63 Del. Laws, c. 462, § 3; 64 Del. Laws, c. 1, § 2; 64 Del. Laws, c. 39, § 2; 64 Del. Laws, c. 161, § 1; 64 Del. Laws, c. 413, § 4; 64 Del. Laws, c. 476, § 9; 64 Del. Laws, c. 477, § 5; 64 Del. Laws, c. 483, § 2; 65 Del. Laws, c. 172, § 2; 65 Del. Laws, c. 228, § 7; 65 Del. Laws, c. 238, § 1; 65 Del. Laws, c. 378, § 6; 65 Del. Laws, c. 416, § 1; 66 Del. Laws, c. 105, § 10; 66 Del. Laws, c. 128, § 2; 67 Del. Laws, c. 144, § 9; 67 Del. Laws, c. 449, § 2; 68 Del. Laws, c. 297, § 1; 69 Del. Laws, c. 107, § 1; 69 Del. Laws, c. 306, § 3; 70 Del. Laws, c. 143, § 3; 70 Del. Laws, c. 582, §§ 3, 4; 71 Del. Laws, c. 185, § 3; 71 Del. Laws, c. 296, § 18; 71 Del. Laws, c. 298, § 4; 72 Del. Laws, c. 265, § 4; 72 Del. Laws, c. 294, § 54; 72 Del. Laws, c. 338, § 7; 72 Del. Laws, c. 418, §§ 3, 4; 72 Del. Laws, c. 486, § 23; 73 Del. Laws, c. 392, § 1; 75 Del. Laws, c. 105, §§ 6, 7; 75 Del. Laws, c. 365, §§ 5-11; 76 Del. Laws, c. 245, § 1; 76 Del. Laws, c. 413, § 4; 77 Del. Laws, c. 127, § 1; 77 Del. Laws, c. 319, § 1; 77 Del. Laws, c. 463, § 3.;