Part Four of an in-depth Five-Part series on the Complaint and Disciplinary Process in Regulatory Affairs. See Part One “Navigating Complaints: A How-To Guide” from the August 2024 eBulletin, Part Two “The Road Ahead: After the Investigation” from the September 2024 eBulletin, and Part Three “Beneath the Surface: The Pre-Hearing Process” from the October 2024 eBulletin.
In Part Four, we take a close look at what happens when a disciplinary case goes to a hearing before the Commission.
Administrative hearings before the Commission are formal in nature and are conducted according to Article 3A of Chapter 150B of the North Carolina General Statutes, also known as the Administrative Procedures Act. The North Carolina Rules of Evidence and the Commission’s Local Rules also apply to contested hearings, although the Rules of Evidence are more loosely applied than in civil or criminal court settings.
A hearing before the Commission resembles what you might see at a trial in a local courthouse. Present in the hearing room are the Commission members, the Respondent and any attorney for the Respondent, the Commission staff attorney, witnesses, and the court reporter. The Respondent is the real estate broker, either an individual or a firm, accused of violating real estate license law and/or Commission rules. The hearing room and the proceedings are open to the public.
The Commission staff attorney prosecutes the allegations and has the burden of proving the case by a preponderance of the evidence. This legal standard requires the staff attorney to prove that it is more likely true than not that the Respondent violated the License Law or rules. There may be evidence on both sides, and the Commission members determine the weight given to each piece of evidence.
In a hearing, a quorum of the Commission members sit as both judge and jury. The members present for the hearing are considered the hearing panel. They evaluate the evidence impartially and make a decision. One member of the hearing panel, usually the Chair of the Commission, is designated to preside over the hearing and make decisions regarding the admissibility of evidence.
A court reporter is also present in the hearing room. The court reporter swears in witnesses, documents the testimony of witnesses and arguments of the parties, and produces an official transcript of the proceedings.
A contested hearing begins with the opportunity for each party to make an opening statement. An opening statement is not considered evidence and is not an argument but is an opportunity to introduce the case, forecast the admissible evidence, and present a theory of the case to the hearing panel.
Following the opening statements, each party may present evidence. This may include the testimony of witnesses, the introduction of documents, and other material deemed relevant. The Commission staff attorney, who has the burden of proof, presents evidence first. Once the staff attorney has presented all of their evidence, the Respondent may present evidence.
After all of the evidence has been presented, each party has the opportunity to make closing arguments. Like the opening statement, the closing argument is not evidence but is an opportunity for each party to summarize the evidence that has been presented and attempt to argue, or persuade, the hearing panel to come to a particular outcome.
After closing arguments, the Commission retires to their deliberation room where, in private, they discuss the case and determine whether the allegations have been proven more likely than not. If the Commission decides that it is more likely than not that the Respondent has violated the law, the Commission will also decide what disciplinary sanction to impose. The Commission may impose a reprimand, a suspension of the Respondent’s license, some or all of which may be stayed on conditions, or even a revocation of a license. A revocation can be without the right to apply for reinstatement for a period of time, or it may be permanent. Following deliberations, the Commission typically returns to the hearing room to announce its decision. Occasionally, they take additional time and announce the decision within thirty days of the conclusion of the hearing. A written order issued by the Commission shortly thereafter formally documents the Commission’s decision regarding the matters at issue during the hearing and is sent to the Respondent.
A Respondent has the right to seek judicial review of a final agency decision. The process and requirements to seek this review, often referred to as an “appeal,” are outlined in Article 4 of Chapter 150B of the North Carolina General Statutes. Petitions for Judicial Review are heard in the Superior Court Division.
Next month, we conclude our series of the disciplinary process with a look at what happens during compliance review.