Administrative Services Kate Brown, Governor 635 capit01 St NE Ste 100 Salem, OR 97301-2532 PESTICIDES PROGRAM TEL: 503-986-4635 I regon Department of Agrlculture CERTIFIED MAIL December La- 2016 Timothy L. Aman PO Box 511 Silverton, Oregon 97116 Re: NOTICE OF IMPOSITION OF CIVIL PENALTY and ORDER, ODA PESTICIDES CASE NO. 150512 This is a Notice of Imposition of Civil Penalty and Proposed/Final Order that is based on a pesticide investigation conducted by the Pesticides Program of the Oregon Department of Agriculture. This NOTICE addresses violation of Oregon Revised Statutes (ORS) Chapter 634. The action is taken pursuant to statutory and regulatory provisions including but not limited to ORS Chapter 183, ORS 634.900 et seq, Oregon Administrative Rules (OAR) Chapter 137, Division 3, and OAR 603?057-0500 et seq. Also enclosed is information on contested case rights and procedures. This information is provided for your consideration should you select to contest the NOTICE and request an administrative hearing of this matter. Read all of the NOTICE carefully; If you request a hearing in this matter, your request for hearing must be made in writing to the Oregon Department of Agriculture so that it is received by the Department within ten business days of the date that you receive the NOTICE. If you do not request a hearing this NOTICE will become the Final Order, and the Final Order shall constitute a judgment. Important Note: The Department is also issuing separate proposed enforcement actions to Heesacker Farms, Inc. and Steven J. Heesacker. Those proposed actions are specific to Heesacker Farms, Inc. and Mr. Heesacker. Your request for a hearing or payment of penalty is separate from and has no bearing on Heesacker Farms, nc.?s or Mr. Heesacker's responses to their enforcement actions, although hearing processes could be combined if multiple parties request hearings. 9.411. DALE L. MITCHELL PESTICIDES COMPLIANCE PROGRAM MANAGER OREGON DEPARTMENT OF AGRICULTURE Encl: Notice of Contested Case Rights and Procedures STATE OF OREGON DEPARTMENT OF AGRICULTURE Before The Director of The Department of Agriculture NOTICE OF IMPOSITION OF CIVIL PENALTY and ORDER, for Violation of the State Pesticide Control Act, ODA Pesticides Case No. 150512 In the Matter of: Timothy L. Aman An pesticide consultant The Director of the Oregon Department of Agriculture (ODA or the Department) hereby assesses a civil penalty in the amount of $407.00 against Timothy L. Aman (Mr. Aman) as authorized by statutory and regulatory provisions including, but not limited to, ORS 634.900 to ORS 634.915 and OAR 603-057-0500 to 603-057-0532. The findings and conclusions on which this determination is based, and the criteria used to calculate the penalty, are set out below. I. APPLICABLE LAW 1. The applicable law includes the following: Oregon Revised Statutes (ORS) Chapters 60 (corporations), 183 (administrative law), 561 (agriculture), and 634 (pesticides); Oregon Administrative Rules (OAR) Chapter 137, Division 3 (contested case procedures), and OAR Chapter 603, Division 57 (pesticide control). 2. Oregon?s pesticide control law is known as the State Pesticide Control Act and is codified in ORS Chapter 634. 3. ORS 634.006(8) states: ?Pesticide? includes: ?Defoliant? which means any substance or mixture of substances intended for causing the leaves or foliage to drop from a plant with or without causing abscission; ?Desiccant' which means any substance or mixture of substances intended for artificially accelerating the drying of plant tissue; (0) ?Fungicide? which means any substance or mixture of substances intended for preventing, destroying, repelling or mitigating any fungus; ?Herbicide? which means any substance or mixture of substances intended for preventing, destroying, repelling or mitigating any weed; ?Insecticide? which means any substance or mixture of substances intended for preventing, destroying, repelling or mitigating any insects which may be present in any environment whatsoever; 'Nematocide? which means any substance or mixture of substances intended for preventing, destroying, repelling or mitigating nematodes; (9) ?Plant regulator? which means any substance or mixture of substances intended, through physiological action, to accelerate or retard the rate of growth or rate of maturation or to otherwise alter the behavior of ornamental or crop plants or the produce thereof, but shall not Heesacker Farms, Inc. Civil Penalty Page 2 of 10 include substances to the extent that they are intended as plant nutrients, trace elements, nutritional chemicals, plant inoculants or soil amendments; or Any substance, or mixture of substances intended to be used for defoliating plants or for preventing, destroying, repelling or mitigating all insects, plant fungi, weeds, rodents, predatory animals or any other form of plant or animal life which is, or which the department may declare to be a pest, which may infest or be detrimental to vegetation, humans, animals, or be present in any environment thereof." 4. ORS 634.006(22) states: ?Restricted-use pesticide? means any pesticide or device that the department has found and determined to be so injurious or detrimental to humans, pollinating insects, bees, animals, crops, wildlife, land or environment, other than the pests it is intended to prevent, destroy, control or mitigate, that additional restrictions are required." 5. ORS 634.372(4) states: person may not: Perform pesticide application activities in a faulty, careless or negligent manner.? 6. ORS 634.006(15) states: ?Private applicator? means an individual who uses or supervises the use of any pesticide, classified by the department as a restricted- use or highly toxic pesticide, for the purpose of producing agricultural commodities or forest crops on land owned or leased by the individual or the employer of the individual.? 7. ORS 634.006(10) states: ?Pesticide consultant' means a person who offers or supplies technical advice, supervision, aid or recommendations to the user of pesticides classified by the department as restricted-use or highly toxic pesticides, whether licensed as a pesticide dealer or not.? 8. ORS Chapter 634 authorizes the Oregon Department of Agriculture to issue pesticide licenses, including licenses for private applicators and consultants. ORS 634.057, 634.142, and 634.132. 9. The Department is responsible for enforcing the Oregon State Pesticide Control Act and may make any rule necessary for enforcement of program requirements. ORS 561.020; ORS 561.190; ORS Chapter 634. 10. Oregon Administrative Rules (OAR) Chapter 603 Division 057 is entitled Pesticide Control and implements provisions of the State Pesticide Control Act, ORS Chapter 634. 11. ORS 561.190 states: ?The State Department of Agriculture is authorized and directed to make any and all rules and regulations necessary for the administration or enforcement of any law with the administration or enforcement of which the department is charged, and not inconsistent with the authority with which the department is vested or with any such law. Such rules and regulations shall be compiled and printed in pamphlet form for distribution. The violation of any rule or regulation made by the department pursuant to this section shall be a violation of the law to which such rule or regulation applies and shall be punishable in the manner provided for violations of such law.? Heesacker Farms, Inc. Civil Penalty Page 3 of 10 12. ORS 634.900 et seq. authorizes ODA to impose civil penalties for violations of provisions of ORS Chapter 634. ORS 634.375 states: ?The State Department of Agriculture may suspend, revoke or refuse to renew a license, certificate or other authorization issued to a person under this chapter if the person fails to pay a civil penalty under ORS 634.900 on or before 90 days after the date that the order imposing the civil penalty becomes final by operation of law or on appeal.? 13. OAR 603-057-0500 et seq. provides formulae for calculating the civil penalties authorized by ORS 634.900. OAR 603-057-0502(7) states ?Civil penalties shall be due and payable ten (10) business days after the order becomes final by operation of law or on appeal. A person may pay a civil penalty before an order becomes final. Payment of a civil penalty before an order becomes final is an admission by the person of all of the allegations in the Notice of Imposition of Civil Penalty.? 14. ORS Chapter 60 regulates corporations transacting business in Oregon. II. FINDINGS OF FACT ODA Pesticides Case No. 150512 1. This Notice of Imposition of Civil Penalty is the result of an investigation conducted by the Department in response to a complaint received on June 9, 2015. The complainant stated that wildlife and domestic animals were being impacted by an application of a rodenticide in the neighboring hazelnut orchard. The persons in contact with the Department during this investigation were Steven J. Heesacker (Mr. Heesacker) and Timothy Aman (Mr. Aman). 2. Heesacker Farms, Inc., an Oregon-licensed corporation, leases and manages a hazelnut orchard (orchard) located at 1480 SW 345th Ave, Hillsboro, Washington County, Oregon from Richard Hendricks, the landowner. Heesacker Farms lnc.?s primary place of business is located at 45868 NW Hillside Rd., Forest Grove, Washington County, Oregon. 3. Steven J. Heesacker is the registered agent for Heesacker Farms, Inc., and the orchard manager. Orchard cultivation practices include pesticide applications to growing crops and the land to control pests. 4. On June 10, 2016 The Department spoke with Mr. Heesacker. He told the Department he had placed Ramik Brown rodenticide, EPA Reg. No. 61282-45 (Ramik Brown), in bait stations made of three-inch PVC pipe throughout the orchard to control ground squirrels. 5. The Department conducted a pesticide product label review of Ramik Brown. The label states: ?For use in and around structures and in terrestrial nonfood nonfeed areas to control commensal rats and mice and in fruit tree and nut (Pecans, Almonds, Walnuts, Filberts/Hazelnuts) orchards, Christmas tree farms, tree plantations and commercial nurseries to control voles. Environmental Hazards This product is toxic to mammals and birds. Heesacker Farms, Inc. Civil Penalty Page 4 of 10 Important: Do Not expose children, pets or other non-target animals to rodenticides. To prevent accidents: Store product not in use in a location out of reach of children and pets. Apply bait in locations out of reach of children, pets, domestic animals and non- target wildlife, or in tamper-resistant bait stations. These stations must be resistant to destruction by digs and by children under six years of age, and must be used in a manner that prevents such children from reaching into bait compartments and obtaining bait. If bait can be shaken from stations when they are lifted, units must be secured or othenivise immobilized. Nut Orchards (Pecans, Almonds, Walnuts, Filberts/Hazelnuts) For Pine and Meadow vole control. Use Restrictions: For control of pine and meadow voles in Nut Orchards in the following states: Idaho, Washington, Oregon, Montana, Ohio. Timing: Apply after fall harvest (including drops), before new spring growth, and when three days of good weather are expected.? 6. The Department contacted the United States Fish and Wildlife Service (USFWS) to participate in the investigation and address the allegation that migratory birds could have been impacted. 7. The Department and the USFWS visited the orchard and the neighboring property. Several decomposing bird carcasses were documented. They also witnessed and made recordings of birds (Brewer?s blackbird) entering a PVC pipe bait station on the orchard ground, and removing bait therefrom. 8. USFWS confirmed the bird carcasses found at the orchard included migratory birds. 9. Mr. Heesacker told the Department that he used Ramik Brown after hearing about it at the Nut Growers Society of Oregon Summer Tour (Tour). He said a speaker at the Tour had indicated the product could be used to control squirrels in hazelnut orchards. Mr. Heesacker also told the Department and USFWS that he believed birds could not get to the bait in the three-inch PVC pipes. 10. The Department told Mr. Heesacker that all bait stations need to be removed from the orchard immediately. The Department and USFWS discussed with Mr. Heesacker the possible impact to migratory birds and that they had recordings of birds entering the pipe bait stations. 11. The Department told Mr. Heesacker that Ramik Brown is not labeled for control of squirrels in hazelnuts. The Department discussed rodenticide labels with Mr. Heesacker, including that rodenticide labels are different then insecticide labels because they require that the pest you want to control be listed on the label. The Department also told Mr. Heesacker that the label specified not just pest and sites of application, it also identified the time of use as, ?Apply after fall harvest (including drops), before new spring growth, and when three days of good weather are expected." The application was made Heesacker Farms, Inc. Civil Penalty Page 5 of 10 after new spring growth. Mr. Heesacker informed the Department that he was not aware that rodenticides must have the pest you want to control listed on the label. 12. Mr. Heesacker reiterated that he had never used Ramik Brown before this application and only used it because the speaker at the Tour told a room of over 300 attendees that it would control squirrels in hazelnuts. 13. The Department contacted the Hazelnut Growers Association (HGA) about the speaker at the Tour who had recommended Ramik Brown for mitigation of squirrels in hazelnut orchards and discussed rodenticide label requirements. The representative of the HGA told ODA that he was unaware that rodenticides require the pest be listed on the label. He told the Department that the speaker was Timothy Aman. 14. Ramik Brown is a restricted use pesticide and can only be sold to and used by an applicator with an appropriate license 15. A review of the ODA license database showed that Steven J. Heesacker was a licensed Private Pesticide Applicator, AG-L0015420PAL (issued March, 1990), and Timothy L. Aman was a licensed Pesticide Consultant, (issued October 1985), at the time of this investigation. 16. The Department spoke with Mr. Aman about the content of his talk at the Tour. He told the Department that he informed the attendants at the meeting that he used Ramik Brown himself and it worked to control squirrels in hazelnuts. He also told them how to make the bait stations with three-inch pipe. 17. The Department told Mr. Aman that Ramik Brown is not labeled for control of squirrels in hazelnuts and discussed rodenticide label requirements and that birds were recorded entering the bait stations. 18. Mr. Aman told the Department that he was unaware that rodenticide labels required the pest to be listed on the label and that he believed no bird could get into the pipes to access the bait. 19. The Department issued a Pesticide Advisory informing growers of rodenticide label requirements and that they could not use Ramik Brown in hazelnut orchards to control squirrels. ULTIMATE FINDINGS OF FACT 1. Heesacker Fams, Inc. manages a hazelnut orchard in Hillsboro, Oregon. Its agricultural practices include the application of pesticides onto growing crops. Steven Heesacker is the registered agent of Heesacker Farms and the manager of the orchard. 2. On or about June 9, 2015, Heesacker Farms, through Mr. Heesacker and agents or employees, intentionally applied a pesticide onto a hazelnut orchard in Washington County, Oregon. The pesticide applied is an RUP, Ramik Brown. 3. The Ramik Brown Label states: ?Environmental Hazards This product is toxic to mammals and birds. Heesacker Farms, Inc. Civil Penalty Page 6 of 10 Important: Do Not expose children, pets or other non-target animals to rodenticides. To prevent accidents: Nut Orchards (Pecans, Almonds, Walnuts, Filberts/Hazelnuts) For Pine and Meadow vole control. Use Restrictions: For control of pine and meadow voles in Nut Orchards in the following states: Idaho, Washington, Oregon. Timing: Apply after fall harvest (including drops), before new spring growth, and when three days of good weather are expected.? 4. USFWS confirmed that bird carcasses found at the orchard after the Ramik Brown application included migratory birds. ODA and USFWS observed birds entering one of the PVC pipe bait stations. 5. Mr. Aman, a licensed pesticide consultant, told attendants at an agricultural conference that he used Ramik Brown himself and it worked to control squirrels in hazelnuts. He also told them how to make the bait stations with three?inch pipe. These ultimate findings of fact are based on the findings of fact. IV. CONCLUSION OF LAW The Oregon Department of Agriculture determines that Mr. Aman violated Oregon Revised Statutes (ORS) Chapter 634 as follows: VIOLATION NO. 1 Mr. Aman violated ORS 634.372 (2) As a pesticide applicator or operator, intentionally or willfully apply or use a worthless pesticide or any pesticide inconsistent with its labeling, or as a pesticide consultant or dealer, recommend or distribute such pesticides. Specifically, on or about June 9, 2015 Heesacker Farms, Inc., through Steven J. Heesacker and other agents or employees, intentionally applied a pesticide onto a hazelnut orchard located at 1480 SW 345th Ave, Hillsboro, Washington County, Oregon. The pesticide applied was Ramik Brown, EPA Reg. No. 61282-45, a restricted use pesticide. It was placed in homemade three-inch PVC pipe bait stations to control squirrels in the hazelnut orchard following the recommendation given by Timothy Aman at the Hazelnut Growers Association Summer Tour. ODA observed migratory birds entering at least one of these bait stations and removing bait therefrom. Mr. Aman told the Department that he informed the attendants at the Summer Tour meeting that he used Ramik Brown himself and it worked to control squirrels in hazelnuts. He also told them how to make the bait stations with three-inch pipe. Mr. Aman was a licensed Pesticide Consultant, AG-L0093767PC since October 1985, and has knowledge of the importance of reading pesticide labels and the requirements to follow label directions. The Ramik Brown label specifies the pests to be controlled in hazelnut orchards Orchards (Pecans, Almonds, Walnuts, Filberts/Hazelnuts) For Pine and Meadow vole .Use Restrictions: For control of pine and meadow voles in Nut Orchards in the Heesacker Farms, Inc. Civil Penalty Page 7 of 10 following states: Idaho, Washington, Oregon, Montana, Squirrels are not listed on the label. Mr. Aman consulted hazelnut growers to use the pesticide to control squirrels in the hazelnut orchard inconsistent with its labeling in violation of ORS 634.372 (4). This conclusion is based on the findings of fact and ultimate findings of fact. V. PENALTY The total civil penalty is $407.00 as described below. VIOLATION NO. 1 The penalty is determined using the criteria in OAR 603-057-0525 to 603-057-0530. NB NB) $370.00 $407.00 1. N, the number of related violations within a period of three years prior to and including the date of the current violative act is 1; OAR 2. B, the base penalty is $370.00; OAR The base penalty was determined as follows: a. The MAGNITUDE is CATEGORY I (MAJOR) under OAR 603-057- b. The GRAVITY is HIGH LEVEL because the pesticide applied was injurious to migratory birds, as observed by USFWS, designated as an RUP, and used over a wide area; OAR and OAR 3. P, the past occurrence of unrelated violations is 0 (zero) because of no prior violations or insufficient evidence on which to base a finding; OAR 603-057- 0530(1)(c)(A). 4. H, the history of taking steps to correct a violation is 0 (zero) because there is insufficient information on which to base a finding; OAR 5. R, preventability of the violation is 3 because Mr. Aman?s actions determined to be violative were reasonably avoidable. Mr. Aman is an experienced grower and user of agricultural pesticides. Mr. Aman had been licensed as a pesticide consultant since 1985. He knew or should have known to read and follow pesticide product label directions; OAR 6. C, cooperativeness is ?2 (negative 2). Mr. Aman was cooperative and readily provided information to the Department regarding the pesticide application made in June of 2015; OAR Any final order regarding this Notice of Imposition of Civil Penalty will become a part of Mr. Aman?s history for a period of three years. Any future violations of ORS Chapter 634 Heesacker Farms, Inc. Civil Penalty Page 8 of 10 or OAR Chapter 603, Division 057 within the next three years will subject Mr. Aman to additional enforcement actions including, but not limited to, civil penalties, product seizure, or license revocation. VI. RIGHT TO A HEARING You are entitled to a contested case hearing as provided by statues and rules including, but not limited to: ORS Chapter 183, including 183.413 to 183.470, and ORS 183.745; OAR Chapter 137, Division 3, including OAR 137-003-0501 to 137-003-0700; ORS 634.905; and OAR Chapter 603, Division 57. The request for a hearing must be made in writing to the Department within ten business days of the date that you receive the OAR The request should be made to the attention of: Ann P. Ketter Pesticides Program, Oregon Department of Agriculture 635 Capitol Street NE Salem, Oregon 97301-2532 If you make a timely request for a hearing you will be notified of the date, time and place of such hearing. You will also be given information on the procedures, right of representation and other rights of parties relating to the conduct of the hearing before commencement of the hearing. An administrative law judge from the Office of Administrative Hearings will preside at any hearing. The Director of the Department has authority to issue the final order. If the recipient of the enforcement notice is a corporation, partnership, limited liability company, unincorporated association, trust, or other entity that is not a natural person or individual, it must be represented in the contested case process by an attorney unless otherwise authorized by law. Furthermore, the attorney representing such a corporation or other entity must ratify the request for hearing, in writing, within 28 days of the date that the request is received by the agency; OAR 137-003-0550. This provision does not, however, require any entity to be represented by an attorney at any informal conference. Individuals may but are not required to be represented by counsel. The state will not provide legal counsel in administrative cases such as this, but private legal aid organizations may be able to assist a person with limited financial resources. VII. FINAL ORDER If you do not make a timely request for a hearing, you will waive your right to request a hearing and this order will become final and effective 10 (ten) business days after it is served on you; OAR If you request a hearing but later fail to appear at the hearing, withdraw the request for a hearing, or notify the agency or administrative law judge that you will not appear at the hearing and it is not rescheduled, you will waive your right to a hearing and this order will become final; OAR In these circumstances, the Department will mail you a notice stating when this order became final. The Department has designated the relevant portions of its files on the subject of this matter, including all materials that you have submitted relating to this matter, as the record in this case for the purpose of proving a prima facie case upon default. Heesacker Farms, Inc. Civil Penalty Page 9 of 10 If this order becomes final, the Department will issue a judgment against you and a civil penalty in the amount set out in this Notice will become due and payable 10 (ten) days after the order becomes final. ORS 183745. Your check or money order should be made payable to the Oregon Department of Agriculture and sent to: Oregon Department of Agriculture 635 Capitol Street NE Salem, Oregon 97301-2532 When any final order regarding this Notice becomes final you will have the right to appeal the order to the Oregon Court of Appeals pursuant to ORS 183.482. To appeal you must file a petition for judicial review with the Court of Appeals within 60 days from the date this order becomes final. If you do not file a petition for judicial review within this time period you will lose your right to appeal. ?dayof_QgcemA_Z/ .2016 Lisa Charpilloz Hanson Acting Director Oregon Department of Agriculture NOTE: Copies of the Department?s investigation report will be provided upon request. The request must be made in writing. There may be a monetary charge for some reports. The written request should be made to: Oregon Department of Agriculture, Pesticides Program, ATTN: Andrea Sonnen, 635 Capitol Street NE, Salem, Oregon 97301-2532. TO ACTIVE DUTY SERVICEMEMBERS: Active duty servicemembers have a right to stay these proceedings under the federal Servicemembers Civil Relief Act. For more information contact the Oregon State Bar at 800-452-8260, the Oregon Military Department at 800-452?7500, or the nearest United States Armed Forces Legal Assistance Office through Heesacker Farms, Inc. Civil Penalty Page 10 of 10 Timothy Aman Oregon Department of Agriculture, Pesticides Case No. 150512 Notice of Contested Case Rights and Procedures Pursuant to ORS you are entitled to be informed of the following: 1. Time and place of hearing. The time and place of hearing is or will be set forth in the Notice of Hearing issued by the Administrative Law Judge (ALJ) after the prehearing conference. Issues to be considered at hearing. The issues to be considered at hearing are those set forth in the notice issued by the Oregon Department of Agriculture (ODA), entitled Notice of Imposition of Civil Penalty and Proposed/Final Order (NICP), and dated {Member and those issues related thereto that are properly before the presiding of?cer to this proceeding. Law that applies. The matter set for hearing is a contested case. The hearing will be conducted as provided in Chapter 183 and 634 of the Oregon Revised Statutes the administrative rules of the ODA, OAR 603-057-0500 through 603- 057-0515, and the Attorney General's Of?ce of Administrative Hearing Rules, OAR 137-003-0501 to 137-003-0700. Other laws involved include: ORS Chapters 561, 570, and 616; additional rules of the ODA, OAR 603-057; Title 7, Chapter 6, Subchapter ll of the United States Code; and Title 40, Parts 152, 156, and 180 of the Code of Federal Regulations. Right to attorney. You may be represented by an attorney at the hearing. Most persons are represented by counsel for hearings involving ORS 634. You are not required to be represented by counsel, unless you are a corporation, LLC, partnership, etc., in which case you are required to be represented by an attorney at the hearing, and more immediately, your request for a hearing must be ratified by an attorney within 28 days of the agency's receipt of the request, OAR 137- 003-0550. If you are not represented at the hearing and during the hearing you determine that representation by an attorney is necessary, you may request a recess to allow you an opportunity to secure the services of an attorney. The hearing ALJ will decide whether to grant such a request. The ODA will be represented by an attorney. Legal aid organizations may be able to assist a party with limited ?nancial resources. Administrative Law Judge. The person presiding at the hearing is known as the administrative law judge (ALJ). The ALJ will rule on all matters that arise at the hearing, subject to agency consideration of matters transmitted for agency decision under OAR 137-003-0635 or matters subject to agency review under OAR 137-003-0640 or OAR 137-003-0570. The ALJ will be assigned by the Chief ALJ from the Of?ce of Administrative Hearings (OAH). The OAH consists of employees of, and independent contractors with, the Chief ALJ. The ALJ does not have the authority to make the ?nal decision in the case. The ?nal determination will be made by the Director of the ODA. Discovery. If the agency or the ALJ authorizes discovery, the agency or the ALJ shall control the methods, timing and extent of discovery. Discovery is permitted in this proceeding. Discovery is permitted as provided in OAR 137-003-0570, OAR 137-003-0572, and OAR 137-003-0573. Witnesses. A witness must testify under oath or af?rmation to tell the truth. The ODA or the ALJ will issue subpoenas for witnesses on your behalf upon a showing that their testimony is relevant to the case and is reasonably needed by you to establish your position. If you are represented by an attorney, your attorney may issue subpoenas for attendance of witnesses at hearing. Payment of witness fees and mileage to the person subpoenaed is your responsibility. Order of evidence. A hearing is similar to a court proceeding but is less formal. Its general purpose is to determine the facts and whether the proposed action is appropriate. The order of presentation of evidence is normally as follows: a. Testimony of witnesses and other evidence of the ODA in support of its proposed action. b. Testimony of your witnesses and your other evidence. c. Rebuttal evidence by the ODA and by you. Burden of presenting evidence. The burden of presenting evidence to support an allegation or position rests upon the proponent of the allegation or position. If you have the burden of proof on an issue, or if you intend to present evidence on an issue in which the agency has the burden of proof, you should approach the hearing prepared to present the testimony of witnesses, including yourself, and other evidence that will support your position. All witnesses are subject to cross- examination and also to questioning by ALJ. Notice of Contested Case Rights and Procedures Page 1 10. 11. 12. 13. 14. 15. 16. 17. Admissible evidence. Relevant evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their serious affairs is admissible and will be received. Hearsay evidence is not automatically excluded. Rather, the fact that it is hearsay generally affects how much reliance the ALJ and the Director of the ODA will place on it in reaching a decision. There are four kinds of evidence: a. Knowledge of the agency or ALJ. The agency or ALJ may take ?official notice? of facts based on the agency's or ALJ's knowledge in a specialized field. This includes notice of general, technical or scienti?c facts. The agency or ALJ may also take ?judicial notice" of a fact that is not subject to reasonable dispute in that it is generally known or is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. You will be informed if the agency or ALJ takes "official notice" or ?judicial notice" of any fact and you will be given 'an opportunity to contest any facts so noticed. b. Testimony of witnesses. Testimony of witnesses, including you, who have knowledge of the facts may be received in evidence. 0. Writings. Written documents including letters, maps, diagrams and other written material may be received in evidence. d. Experiments, demonstrations and similar means used to prove a fact. The results of experiments and demonstrations may be received in evidence. Objections to evidence. Objections to the admissibility of evidence must be made at the time the evidence is offered. Objections are generally made on one of the following grounds: a. The evidence is unreliable; b. The evidence is irrelevant or immaterial and has no tendency to prove or disprove any issue involved in the case; c. The evidence is unduly repetitious and duplicates evidence already received. Continuances. There are normally no continuances granted at the end of the hearing for you to present additional testimony or other evidence. However, if you can show that the record should remain open for additional evidence, the ALJ may grant you additional time to submit such evidence. Record. A record will be made of the entire proceeding to preserve the testimony and other evidence for appeal. This may be done by use of a tape or digital recorder or court reporter. The record is generally not transcribed, unless there is an appeal to the Court of Appeals. However, you may obtain a copy of the tape recording upon payment of the costs of making a copy of the tape. If a court reporter is used, you may obtain a transcript or a copy of the court reporter's transcript upon payment of a transcription fee or other fee that the parties may agree upon. Proposed Order and Exceptions. The ALJ will issue a proposed order in the form of findings of fact, conclusions of law and recommended agency action. You will be provided with a copy and you will be given an opportunity to make written objections, called ?exceptions," to the recommendations. You will be notified when exceptions to the proposed order must be filed. You will be notified when you may appear and make oral argument to the agency. Final Order. The agency will render the final order in this case. The agency may modify the proposed order issued by the ALJ. If the agency modi?es the proposed order in any substantial manner, the agency in its order will identify the modifications and will provide an explanation as to why the agency made the modi?cations. The agency may modify a proposed ?nding of "historical" fact only if the proposed finding is not supported by a preponderance of the evidence in the record. Appeal. If you wish to appeal the final order, you must ?le a petition forjudicial review with the Oregon Court of Appeals within 60 days after the final order is served upon you. See Oregon Revised Statutes 183.482. Notice to Active Duty Servicemembers. Active duty servicemembers have a right to stay these proceedings under the federal Servicemembers Civil Relief Act. For more information contact the Oregon State Bar at 800-452-8260, the Oregon Military Department at 800-452-7500, or the nearest United States Armed Forces Legal Assistance Of?ce through Notice of Contested Case Rights and Procedures Page 2