SEC. 69-21-129. Notice and hearing for alleged violators of article provisions.
(1) Whenever the board, an employee of the board or the Bureau of Plant Industry has reason to believe that a violation of this article, the rules and regulations adopted by the board, a condition included in a license issued by the board or an order issued by the board has occurred, the board may cause a written notice of violation to be served upon the alleged violator or violators. The notice of violation shall specify the statute, regulation, license or order alleged to be violated and the facts alleged to constitute a violation thereof and shall require that the alleged violator appear before the board at a time and place specified in the notice and answer the charges complained of. The time of appearance before the board shall not be less than fifteen (15) days from the date of the receipt by the alleged violator of the notice of violation, as proven by testimony, affidavit of the person delivering the notice of violation to the alleged violator, entry into evidence of a United States Postal Service return receipt or similar evidence of receipt.
(2) The board shall afford an opportunity for a hearing to the alleged violator at the time and place specified in the notice of violation. A certified court reporter shall be present at the hearing who shall make a transcription of the proceedings. At the hearing, both the alleged violator and the staff, or their legal representatives, shall be allowed to present legal arguments, factual evidence and witnesses relevant to the allegations and shall be allowed to cross-examine witnesses for the opposing party. Board hearings may be conducted by the board itself, or the board may appoint a hearing officer who shall be authorized to conduct the hearing and to have the record of the hearing prepared and delivered to the board along with that hearing officer's recommended findings of fact and conclusions of law. On the basis of the evidence produced at the hearing, the board shall make findings of fact and conclusions of law and enter an order that in its opinion will best further the purposes of this article. The board's order may include an assessment of penalties, the imposition of injunctive relief, or both. If the board has utilized a hearing officer in the matter, the board may, upon review of the hearing record, issue an order accepting the hearing officer's recommended findings of fact and conclusions of law or may include in its order the board's own findings of fact and conclusions of law. The board shall give written notice of the order to the alleged violator and to other persons who make written request for notice of the order, and the board may assess such penalties as provided in this article.
(3) For purposes of such hearing, the board or its hearing officer may require the attendance of witnesses, administer oaths and hear testimony, either oral or documentary, for and against the accused. The board may issue subpoenas to compel the attendance of witnesses and the production of books, papers, records or other documentary evidence at a hearing. Subpoenas may be served by any method allowed by the Mississippi Rules of Civil Procedure or may be served by certified mail, return receipt requested. In case of the failure of any person to comply with any subpoena issued by the board, the board or its authorized representative may invoke the aid of any court of general jurisdiction of this state. The court may thereupon order such person to comply with the requirements of the subpoena. Failure to comply with the order of the court may be treated as contempt thereof.
(4) The board may adopt rules of practice and procedure governing its proceedings and hearings.
(5) The board may settle an enforcement matter before a hearing. The settlement of any enforcement matter shall be memorialized in an order approved by the board and subject to review under Section 69-21-133.
(6) In assessing penalties under this article, the board may consider at least the following:
(a) The willfulness of the violation;
(b) Any damage to air, water, land or other natural resources of the state or to their uses;
(c) Costs of restoration and abatement borne by governmental bodies;
(d) Economic benefit as a result of noncompliance;
(e) The seriousness of the violation, including any harm to public health, safety and welfare, harm to the environment and the importance of the provision violated to the agricultural aviation regulatory system; and
(f) Past performance history.
(7) Any interested person has the right to request the board to call a hearing for the purpose of taking action in respect to any matter within the jurisdiction of the board by making a request therefor in writing. Upon receipt of any such request, the board shall conduct such investigations as it deems necessary. On the basis of its investigations, the board shall schedule the matter for hearing or shall determine in writing that no hearing is warranted. Any hearing held under this subsection shall conform to the requirements of this section regarding hearing notice and procedure.
SOURCES: Laws, 2002, ch. 301, § 12, HB 866, eff from and after passage (approved Jan. 31, 2002.).
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