Section 309-B:12 Enforcement Procedures; Hearings by the Board.
I. In any case where probable cause with respect to a violation by a licensee has been determined by the board, whether following an investigation under RSA 309-B:11, or upon receipt of a written complaint furnishing grounds for a determination of such probable cause, or upon receipt of notice of a decision by the board of accountancy or similar agency of another state, possession of the United States or country furnishing such grounds, the board shall issue a complaint setting forth appropriate charges and set a date for a disciplinary hearing before the board on such charges. The board shall, not less than 30 days prior to the date of such hearing, serve a copy of the complaint and notice of the time and place of the hearing upon the licensee, together with a copy of the board's rules governing proceedings under this section, either by personal delivery or by mailing a copy by certified mail, return receipt requested, to the licensee at the licensee's address last known to the board.
II. A licensee against whom a complaint has been issued under this section shall have the right, reasonably in advance of the hearing, to examine and copy the report of investigation, if any, and any documentary or testimonial evidence and summaries of anticipated evidence in the board's possession relating to the subject matter of the complaint. The board's rules governing proceedings under this section shall specify the time and manner in which such right may be exercised.
III. In a hearing under this section the respondent licensee may appear in person or, in the case of a firm, through a duly authorized partner, officer, director, or shareholder member or manager, or by counsel. The respondent or counsel may examine witnesses and evidence presented in support of the complaint, and may present evidence and witnesses on the licensee's behalf. The licensee shall have the right, on application to the board, to the issuance of subpoenas to compel the attendance of witnesses and the production of documentary evidence.
IV. The evidence supporting the complaint shall be presented by the investigating officer, by a board member designated for that purpose, or by counsel. A board member who presents the evidence, or who has conducted the investigation of the matter under RSA 309-B:11, shall not participate in the board's decision of the matter.
V. In a hearing under this section, the board shall be advised by counsel, and such individual shall not be the same counsel who presents or assists in presenting the evidence supporting the complaint under paragraph IV of this section.
VI. In a hearing under this section, the board shall not be bound by the technical rules of evidence.
VII. In a hearing under this section, a stenographic or electronic record shall be made and filed with the board. A transcript need not be prepared unless review is sought under paragraph X of this section or the board determines that there is other good cause for its preparation. The respondent may request a copy of such record and shall bear the cost of making such copy.
VIII. In a hearing under this section, a recorded vote of a majority of all members of the board, excluding members disqualified by reason of paragraph IV or other reasons under this section, shall be required to sustain any charge and to impose any penalty with respect to such hearing.
IX. If, after service of a complaint and notice of hearing as provided in paragraph I of this section, the respondent licensee fails to appear at the hearing, the board may proceed to hear evidence against the licensee and may enter such order as it deems warranted by the evidence. The order shall be final unless the licensee petitions for review under paragraph X of this section, provided, however, that within 30 days from the date of any such order, upon a showing of good cause for the licensee's failure to appear and defend, the board may set aside the order and schedule a new hearing on the complaint to be conducted in accordance with applicable paragraphs of this section.
X. Any person or firm adversely affected by any order of the board entered after a hearing under this section may appeal such order by filing a written petition with the superior court in the county in which the respondent resides or, if not a resident of this state, in the county in which the respondent has a place of business or resident agent. An appeal shall not suspend the order of the board unless the court orders otherwise. The record of the hearing of the board's action shall be presented to the superior court for its review pursuant to the procedures and standards of RSA 541. The superior court may affirm, reverse, or modify the board's order or may order a trial de novo. A trial de novo shall be pursuant to the board's rules and the rules of evidence shall not apply.
XI. In any case where the board renders a decision imposing discipline against a licensee under RSA 309-B:10 or RSA 309-B:12, the board shall examine its records to determine whether the licensee holds a certificate, license, or a permit in any other state, possession of the United States, or country. If that is the case, the board shall notify the board of accountancy or other similar regulatory agency of such other state, possession of the United States, or country of its decision, by mail, within 45 days of rendering the decision or within 45 days of a final decision of an appeal by a court reviewing the board's decision, whichever is later. The board may also furnish information relating to proceedings resulting in disciplinary action to other public authorities and to professional organizations having a disciplinary interest in the licensee. Where a petition for review has been filed pursuant to RSA 309-B:12, X, the notification and furnishing of information provided for in this paragraph shall await the resolution of such review and, if resolution is in favor of the licensee, no such notification or furnishing of information shall be made.
Source. 1999, 236:1. 2003, 285:2, eff. Sept. 16, 2003.