PART 2123 BOILER AND PRESSURE VESSEL RULES FOR HEARINGS : Sections Listing

TITLE 41: FIRE PROTECTION
CHAPTER III: BOARD OF BOILER AND PRESSURE VESSEL RULES
PART 2123 BOILER AND PRESSURE VESSEL RULES FOR HEARINGS


AUTHORITY: Implementing the Boiler and Pressure Vessel Safety Act [430 ILCS 75] and the Boiler and Pressure Vessel Repairer Regulation Act [225 ILCS 203] and authorized by Section 16 of the Boiler and Pressure Vessel Safety Act [430 ILCS 75/16] and Section 25 of the Boiler and Pressure Vessel Repairer Regulation Act [225 ILCS 203/25].

SOURCE: Adopted at 21 Ill. Reg. 979, effective January 1, 1997; recodified from Chapter I, 41 Ill. Adm. Code 123, to Chapter III, 41 Ill. Adm. Code 2123, at 39 Ill. Reg. 10653.

 

Section 2123.5  Applicability

 

These rules shall apply to all hearings conducted under the jurisdiction of the Board pursuant to the Boiler and Pressure Vessel Safety Act and the Boiler and Pressure Vessel  Repairer Regulation Act.

 

Section 2123.10  Definitions

 

"Civil Administrative Code of Illinois" means 20 ILCS 2905.

 

"Board" means the Board of Boiler and Pressure Vessel Rules.

 

"Discipline" means suspension, revocation, probation, refusal to issue or renew a Certificate of Registration.

 

"Office" means the Office of the State Fire Marshal.

 

"State Fire Marshal" means the Executive Director of the Office or duly appointed Acting Director, or, in his absence from the State or in any event of his incapacity to act, his next immediate subordinate statutory officer within the Office.

 

"Hearing" means any hearing authorized to be held by the Board pursuant to statute.

 

"Petitioner" is a party who by written petition or application seeks relief licensure under any provision of the statutes of the State of Illinois governing the Board or any rule, regulation, order or determination of the Office or the Board.

 

"Registrant" means any holder of a Certificate of Registration issued by the Office, or any applicant therefor.

 

"Respondent" is a person, firm, association or corporation against whom complaint or petition is filed or to whom an order or complaint is directed by the Office.

 

Section 2123.20  Initiation of a Contested Case by the Office

 

a)         A contested case is initiated by the Office when a Complaint and Notice are mailed to the licensee's last known address, postage prepaid.

 

b)         A Complaint shall be in writing, signed by the Chief Inspector, and shall include a clear statement of the acts or omissions alleged to violate a statute or rule, and citation of the statute or rule, and any discipline to be imposed.

 

c)         A Notice shall be in writing, and shall contain the date, time, place and nature of the hearing to be held, shall refer to these rules, and shall comply with the Notice requirements of Section 2123.70 of this Part.

 

Section 2123.30  Initiation of a Contested Case by Petitioner

 

a)         A contested case is initiated by a petitioner when a Petition for Hearing is mailed to the Office, Attention:  Chief Inspector, Boiler and Pressure Vessel Safety, 1035 Stevenson Drive, Springfield, IL  62703-4259, postage prepaid.

 

b)         In a case where petitioner seeks to contest a decision by the Office to deny his application for licensure, the Petition for Hearing will be in writing, signed by the petitioner, and state with specificity the particular reasons why the applicant believes that the action by the Office to deny licensure was incorrect.

 

c)         In a case where a petitioner is seeking restoration of a Certificate of Registration which was revoked or suspended, the Petition for Hearing shall be in writing, signed by the petitioner, and shall set forth:

 

1)         The identification number of the certificate which was suspended or revoked;

 

2)         The docket number of the case which resulted in discipline;

 

3)         The date on which the suspension or revocation was ordered;

 

4)         Whether the order which suspended or revoked the license was appealed, and if so, whether a stay of the imposition of discipline was granted by any reviewing court; and

 

5)         Date and disposition of any other petitions for restoration filed since the discipline was ordered.

 

d)         Upon receipt by the Chief Inspector of a properly completed Petition for Hearing, a case will be docketed, and Notice sent to the petitioner setting forth the date, time, and place of hearing.

 

Section 2123.40  Joinder

 

In the interest of the efficient disposition of related cases, the Office may join cases relating to multiple respondents or petitioners without regard to whether the cases relate to the same license as long as the cases involve issues of law or fact which are common to the parties.  The respondent may contest the decision to join cases by filing a motion pursuant to Section 2123.210(a)(14) of this Part.

 

Section 2123.50  Form of Papers

 

All papers filed or submitted to the Office or Board in a contested case shall be typewritten, on 8½ by 11 inch white paper.  The first page of each document shall set forth the names of the parties and the docket number assigned to the case by the Office.  Petitions for Hearing which are filed before a docket number is assigned shall contain a space for entry of the assigned number. (See Appendix A.)

 

Section 2123.60  Service

 

a)         Service of any document may be by mail or by personal delivery.  Proof of service will be attached to the original of any document served.  In the absence of evidence to the contrary, the date shown on the proof of service shall be deemed the date of service.

 

b)         Service on the State Fire Marshal or on the Office, or on an Office Attorney or other Office employee, is made by service on the Chief Inspector, or on the State Fire Marshal, at the Springfield headquarters.

 

c)         Service of any document as provided in this Section shall include at least three copies of the documents served.

 

Section 2123.70  Notice

 

a)         Notice shall include:

 

1)         A statement of the date, time, place and nature of the hearing;

 

2)         A statement of the legal authority and jurisdiction under which the hearing is to be held; and

 

3)         Except where a more detailed statement is otherwise provided for by law, a short and plain statement of the matters asserted. [5 ILCS 100/10-25]

 

b)         Except as otherwise provided by statute, the registrant will be given at least ten days notice prior to the first date set for the preliminary hearing or hearings, as the case may be.  Once such notice is given, it will thereafter be the responsibility of the registrant to become acquainted with subsequent hearing dates.

 

c)         Nothing in this Section will prevent the Office from scheduling a hearing within ten days after the date on which the Office summarily suspends a Certificate of Registration pending proceedings.

 

d)         Any contention that improper notice was given will be deemed waived unless it is raised by the registrant prior to argument on any other motion, or, if no other motions are presented, prior to the commencement of opening statements.

 

e)         Proper notice is given by depositing a Notice with the U.S. Postal Service either by certified or registered mail, or by personal service, to the last known address of the registrant.

 

Section 2123.80  Prehearing Negotiations

 

a)         The Board may form Committees of its members to participate in hearings, and along with the hearing officer, submit reports to the full Board.

 

b)         The Office and the respondent may stipulate to facts and may agree to discipline conditioned upon Board acceptance.  If the agreement is acceptable to the Committee, it shall signify its consent with signatures of a majority of its members on the written agreement.  Such signed agreement shall be considered the Conclusions of Law, Findings of Fact, and Recommendation to the Board.  If the Board rejects the agreement, the respondent shall then be entitled to a hearing on the merits.  It shall not be a bar to participation in the hearing by a member that has previously considered a proposed agreement under this Section.

 

c)         A respondent may waive his right to have discipline imposed only upon the action and report in writing of the Board.

 

Section 2123.90  Representation

 

a)         A party may be represented by an attorney who is licensed in Illinois. Attorneys who appear in a representative capacity must file written notice of appearance setting forth:

 

1)         The name, address and telephone number of the attorney;

 

2)         The name and address of the party represented; and

 

3)         An affirmative statement indicating that the attorney is licensed in Illinois.

 

b)         An attorney may withdraw from employment as a representative only upon written notice, to the Office, stating the specific reasons therefor.

 

c)         Any individual may appear on his or her own behalf.

 

d)         A corporation may be represented by an officer, upon presentation to the Office of a duly executed resolution of the Board of Directors authorizing the action in a representative capacity and setting forth the power which the officer is authorized to exercise.

 

e)         A partnership may be represented by any partner, upon presentation to the Office of written authorization from all the partners authorizing action in a representative capacity.

 

f)         Any failure to behave in a manner which permits the efficient functioning of the Office will authorize the Board or hearing officer to take any of the following actions:

 

1)         Limitation of evidence;

 

2)         Substitution of written argument in place of oral argument;

 

3)         Exclusion of an attorney from the proceeding;

 

4)         Suspension or revocation of the person, including an attorney's right to appear before the Board or hearing officer.

 

g)         If any of the above actions are taken by the Board or hearing officer, it shall be done as a matter of record, and the Board or hearing officer shall state for the record the specific reasons therefor.

 

Section 2123.100  Failure to Appear

 

Failure to appear at the time and place set for hearing shall be deemed a waiver of the right to present evidence.  After presentation by the Office of an offer of proof that the registrant was given proper notice, the Board shall make its recommendation.  Where a petitioner fails to appear, the Petition for Hearing shall be dismissed.

 

Section 2123.110  Amendment, Withdrawal of Complaints and Petitions for Hearing

 

a)         The Complaint may be amended at any time.  An Amended Complaint may be filed in the same manner as a Complaint, or it may be presented to the Committee or hearing officer during the course of the hearing.  A continuance shall be granted whenever the amendment materially alters the Complaint and where the registrant demonstrates that he would otherwise be unable to properly prepare an Answer to the Amended Complaint or prepare his case.

 

b)         A Complaint or Petition for Hearing may be withdrawn at any time prior to the hearing by the party who initiated it.  After a hearing has begun, a Complaint may be withdrawn only upon written notice to the Board.

 

Section 2123.120  Requirement of an Answer

 

a)         In all contested cases initiated by the Office, the registrant shall file an Answer within ten days after the date on which the Complaint was served. The Answer shall be in writing, signed by the registrant or his representative, and shall contain a specific response to each allegation in the Complaint.  The response shall either admit or deny the allegation, or shall state that the registrant has insufficient information to admit or deny the allegation.

 

b)         Any Answer which states that the registrant has insufficient information to admit or deny the allegation shall be accompanied by an affidavit attesting to the truth of this assertion.

 

c)         On motion by the Office, the hearing officer will cause to be issued a Notice to Plead.  The Respondent will be held in default, if within 15 days after issuance of such Notice, the Respondent does not answer or otherwise file a responsive Pleading.

 

Section 2123.130  Discovery

 

a)         Discovery shall not be the subject of motions presented to the Board or hearing officer, except when a motion is made alleging failure to comply with this Section, and requesting relief in the form of dismissal of the case or recommendation to the Board based on the pleadings without a hearing.

 

b)         Upon written request served on the opposing party, any party shall be entitled to:

 

1)         The name and address of any witness who may be called to testify;

 

2)         Copies of any document which may be offered as evidence; and

 

3)         A description of any other evidence which may be offered.

 

c)         The above information will be provided within ten days after service of a request.

 

d)         Whether or not a request is made, during discovery a registrant shall be entitled to:

 

1)         Any exculpatory evidence in the Office's possession.  Exculpatory evidence is any evidence which tends to support the registrant's position or to call into question the credibility of an Office witness; and

 

2)         Copies of any investigative report which purports to be a memorandum of interview of the registrant.

 

e)         The registrant shall be entitled to the above whether or not the investigator is called to testify and whether or not the investigator uses reports to refresh recollection prior to or during testimony.

 

f)         Upon a written request served on the registrant, at any time after a Complaint is filed, or at any stage of the hearing, the registrant will be required to produce documents, books, records or other evidence which relates directly to conduct alleged in the Complaint.

 

g)         The investigative file of the Office is not subject to discovery except as stated in subsection (d) above relating to exculpatory evidence and memoranda of interviews of a registrant.  However, after the direct examination of an Office witness, but prior to the cross-examination of that witness, the registrant shall be entitled to all investigative reports relating to that witness.  Investigative reports relating to the witness shall be those which purport to be memoranda of interviews of the witness or which contain information about the witness.

 

h)         Nothing in this Section shall prevent the parties in a contested case from agreeing to a mutual exchange of information which is more extensive than what is provided for herein.  Where the parties agree to the use of an evidence deposition, such agreement will be in writing, and will operate as a waiver of any objection not made during the deposition, except for an objection that the testimony of the witness is not relevant to the case.

 

i)          This provision will be construed to impose a continuing obligation upon the parties to exchange new information as it becomes available.

 

Section 2123.140  Subpoenas

 

a)         The State Fire Marshal or his delegate will issue subpoenas for the attendance of witnesses or production of books, records, documents or other evidence.

 

b)         Any registrant or petitioner seeking issuance of a subpoena will apply in writing to the Office, Attention: Chief Inspector, setting forth facts which purport to demonstrate that the subpoena is required.  Upon refusal by the State Fire Marshal to issue any subpoena, the registrant will be entitled to a hearing before the State Fire Marshal, to be conducted as a matter of record.

 

c)         Service of subpoenas and payment of witness fees and expenses shall be as provided in the Civil Administrative Code of Illinois.

 

Section 2123.150  Prehearing Conference

 

a)         After a case is initiated, upon the written motion of either party, or on its own motion, the Board or the hearing officer may direct the parties to attend a prehearing conference.

 

b)         Unless waived by the parties, the conference will be conducted as a matter of record.  Participation by any Board member, committee, or a hearing officer will not affect the right to participate in a subsequent hearing on the matter.

 

c)         The purposes of the conference include:

 

1)         Simplification of issues;

 

2)         Limitation of issues;

 

3)         Negotiating admissions or stipulations;

 

4)         Limitation of witnesses or evidence;

 

5)         Exchange of exhibits; or

 

6)         Discussion of any other matter which may aid in efficient disposition of the case.

 

Section 2123.160  Hearings

 

The sequence to be followed for all contested cases is as follows:

 

a)         Preliminary Hearing.  The purpose is to set a date on which all parties expect to be prepared and to rule on any preliminary motions which are presented.  This may be eliminated by agreement of the parties, by the Board, or by the hearing officer.

 

b)         Prehearing Conference – Optional.  The purposes are set out in Section 2123.150.

 

c)         Hearings

 

1)         Preliminary Matters – Motion, attempts to narrow issues or limit evidence.

 

2)         Opening Statements – The party bearing the burden of proof proceeds first.

 

3)         Case in Chief − Evidence and witnesses are presented by the party bearing the burden of proof.  As witnesses' testimony is completed, they are subject to cross-examination.

 

4)         Defense – Evidence and witnesses may be presented by the opposing parties.

 

5)         Closing Statements – The party bearing the burden of proof proceeds first, then the opposing party, then a final word by the party bearing the burden of proof.

 

6)         Board Report − Described in Section 2123.240.

 

Section 2123.170  Hearing Officers

 

a)         The Board shall conduct the hearing or may appoint any attorney licensed to practice law in Illinois to serve as a hearing officer.

 

b)         The hearing officer may be empowered to conduct the hearing, question witnesses, make rulings on motions and objections, and/or submit suggested Findings of Fact and Conclusions of Law to the Board at the conclusion of the case.  The hearing officer may also afford the Board such legal counsel as it may require during the course of the hearing and until a final order is signed. It shall not be a bar to employment as hearing officer that the attorney is also an employee of the Office.

 

Section 2123.180  Examination by the Board

 

a)         Any member of any Board Committee, or any hearing officer, may examine any witness.

 

b)         Either party may object to specific questions asked by the Board Committee or hearing officer, but it shall not be objectionable that a question violates a technical rule of evidence.  For purposes of these rules, the rule against hearsay is a substantive, rather than technical, rule of evidence.

 

Section 2123.190  Burden of Proof

 

a)         The burden of proof rests with the Office in all cases initiated by the Office by the filing of a Complaint.  A recommendation for discipline may be made by the Board or hearing officer only where the Office establishes by clear and convincing evidence that the allegations of the Complaint are true.

 

b)         The burden of proof in all cases initiated by the filing of a Petition for Hearing rests with the petitioner.  The petitioner must prove by a preponderance of the evidence that the license should be granted or restored, as the case may be.

 

Section 2123.200  Documents

 

a)         Business records shall be admissible.  A business record is:

 

1)         Relevant;

 

2)         A memorandum, report, record or data compilation;

 

3)         Made by a person with first-hand knowledge of the facts;

 

4)         Made at or near the time of the facts;

 

5)         Made as part of the regular practice of the activity; and

 

6)         Kept in the course of regularly conducted activity.

 

b)         Any party may prove elements (a)(3) through (a)(6) above by presentation of a sworn statement by an individual responsible for making or keeping such records.  Business records include, but are not limited to, medical reports and police reports.

 

c)         Any party seeking introduction of a document will be allowed to offer a copy of the original without any showing that the original is unavailable, upon representation of the party or attorney that the copy is a fair and accurate copy of the original.

 

Section 2123.210  Motions

 

a)         Motions will be made in writing, unless otherwise allowed by the Board, hearing officer or Office, during the course of a hearing.  Written motions are limited to the following:

 

1)         To request dismissal of a Complaint, for failure to state facts which, if true, would form a sufficient basis for discipline.

 

2)         To request sanctions in accordance with Section 2123.90 of this Part dealing with Representation.

 

3)         To request sanctions in accordance with Section 2123.130 of this Part dealing with Discovery.

 

4)         To request dismissal of a Petition for Hearing for failure to comply with the Section 2123.30 of this Part dealing with Initiation of a Contested Case by a Petitioner.

 

5)         To request dismissal of a Complaint where the Office's case has been concluded without sufficient evidence having been presented to form a basis for discipline.

 

6)         To request a continuance, or extension of time, to comply with any provision of this Part.

 

7)         To request an order granting a rehearing or additional hearings.

 

8)         To request an order that a Board or hearing officer reconsider its Findings of Fact, Conclusions of Law or Recommendation or to request a new hearing or additional hearings.

 

9)         To request that a Board or hearing officer deem a failure to file an Answer to be an admission of the truth of the allegations contained in the Complaint.

 

10)         To request employment of a hearing officer.

 

11)         To request that a member of the Board be excluded from the hearing or deliberations for prejudice.

 

12)         To request that an Order be vacated or modified.

 

13)         To request a prehearing conference.

 

14)         To request separation of cases joined by the Office.

 

b)         When any motion is filed, the Board or hearing officer may allow oral argument if this is deemed necessary to a fuller understanding of the issues presented.  Where facts are alleged as a basis for the request, which are not a part of the record in the case, an affidavit will be attached to the motion setting forth such facts.

 

Section 2123.220  Evidence

 

a)         Except as otherwise provided herein, the rules of evidence applicable to all contested cases will be the rules of evidence which are applicable in civil cases in the State of Illinois.

 

b)         Hearsay is not admissible.  In addition to any other exceptions to the hearsay rule which exists in Illinois, a statement may be admitted if it has circumstantial guarantees of trustworthiness, and if the probative value of the statement outweighs any prejudice resulting from an inability to cross-examine the declarant.

 

c)         Statements which are not hearsay:

 

1)         Prior statement by witness.  The declarant testifies at the hearing and is subject to cross-examination concerning the statement, and the statement is:

 

A)        inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a hearing or other proceeding, or in a deposition; or

 

B)        consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive; or

 

C)        one of identification of a person made after perceiving the declarant; or

 

2)         Admission by party-opponent.  The statement is offered against a party and is:

 

A)        declarant's own statement in either the declarant's individual or a representative capacity; or

 

B)        a statement of which the declarant has manifested the declarant's adoption or belief in its truth; or

 

C)        a statement by a person authorized by the declarant to make a statement concerning the subject; or

 

D)        a statement by the declarant's agent or servant concerning a matter within the scope of the declarant's agency or employment, made during the existence of the relationship; or

 

E)        a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

 

Section 2123.230  Adverse Witness

 

a)         Any party or witness may be called as an adverse witness.  In such a case, examination of the witness will be allowed as if under cross-examination.

 

b)         Upon a showing that a witness was called in good faith, and that the party calling the adverse witness is surprised by the testimony, examination of the witness may proceed as if under cross-examination, and the testimony of the witness may be impeached by prior statements or otherwise.

 

Section 2123.240  Board Reports

 

a)         In every contested case, the Board will file a written report which contains its Findings of Fact and Conclusions of Law with respect to the allegations contained in the Complaint or Petition and its decision.

 

b)         In a case initiated by the Office, the decision may be:

 

1)         That a certificate not be issued;

 

2)         That a certificate not be renewed;

 

3)         That a certificate be issued;

 

4)         That a certificate be renewed;

 

5)         That a certificate be issued or renewed subject to discipline or special conditions;

 

6)         That a certificate be suspended or revoked; or

 

7)         That a certificate remain in good standing.

 

c)         Where the recommendation is for discipline, the Board will include its specific action as to type and duration.

 

d)         The Board may request that any hearing officer, any attorney for the Office or Board, or any attorney representing the Petitioner or Respondent assist in preparing a draft Board Report for its consideration.

 

e)         Any member of the Board may join the Board in its decision, abstain, or may file a separate dissenting or concurring report.

 

f)         Where a rehearing, or additional hearings are requested, the request shall be in the form of a motion and shall state with specificity the reasons for the request.  If it is alleged that new evidence is available which was not available at the time of the hearing, the affidavit shall describe the new evidence and reasons why it was not available for use at the hearing.

 

g)         Where a Board or hearing officer grants any motion which would dispose of the case, it shall first afford the parties an opportunity to cure the defects in pleading or proof.

 

Section 2123.250  Severability

 

If any Section, subsection, sentence or clause of this Part shall be held by a court of competent jurisdiction to be invalid, such holding shall not affect the remaining portions thereof.


Section 2123.APPENDIX A   Caption for a Case Filed by the Office

 

STATE OF ILLINOIS

OFFICE OF THE STATE FIRE MARSHAL

 

OFFICE OF THE STATE FIRE MARSHAL                                   )

of the State of Illinois,                                     Complainant                )

 

                        v.                                                                     )           No.

 

(Name of Respondent)

(License Number)                                           Respondent                 )

 

C O M P L A I N T


Section 2123.APPENDIX B   Caption for a Petition for Restoration

 

STATE OF ILLINOIS

OFFICE OF THE STATE FIRE MARSHAL

 

In RE the Petition for Restoration of                                      )

)           No.

(Name of Petitioner)

(License Number)                                           Petitioner         )

 

PETITION FOR

HEARING


Section 2123.APPENDIX C   Caption for an Application for Licensure

 

STATE OF ILLINOIS

OFFICE OF THE STATE FIRE MARSHAL

 

IN RE THE APPLICATION FOR LICENSURE OF

                                                                                                            )           No.

(Name of Applicant)               Applicant                                            )

 

PETITION FOR

HEARING


Section 2123.APPENDIX D   Caption for Other Relief (e.g., State Special, Denial of Certificate of Inspection

 

STATE OF ILLINOIS

OFFICE OF THE STATE FIRE MARSHAL

 

Name of Petitioner                                          )

vs.                                                        )           No. _______

OSFM, Respondent                                        )

 

Petition for _____________________