KRS 13B.090: Findings of fact -- Evidence -- Recording of hearing -- Burdens of proof.

(1) In an administrative hearing, findings of fact shall be based exclusively on the

evidence on the record. The hearing officer shall exclude evidence that is irrelevant,

immaterial, unduly repetitious, or excludable on constitutional or statutory ground s

or on the basis of evidentiary privilege recognized in the courts of this

Commonwealth. Hearsay evidence may be admissible, if it is the type of evidence

that reasonable and prudent persons would rely on in their daily affairs, but it shall

not be sufficient in itself to support an agency's findings of facts unless it would be

admissible over objections in civil actions.

(2) All testimony shall be made under oath or affirmation. Any part of the evidence

may be received in written form if doing so will exp edite the hearing without

substantial prejudice to the interests of any party. The hearing officer may make a

recommended order in an administrative hearing submitted in written form if the

hearing officer determines there are no genuine issues of material fact in dispute and

judgment is appropriate as a matter of law.

(3) Any party shall have the right to inspect, at least five (5) days prior to the hearing, a

list of all witnesses every other party expects to call at the hearing, and the available

documentary or tangible evidence relating to an administrative hearing either in

person or by counsel. Copies of documentary evidence may be obtained upon the

payment of a fee, except documents protected from disclosure by state or federal

law. Nothing in this section shall be construed as giving a party the right to examine

or copy the personal notes, observations, or conclusions of the agency staff, unless

exculpatory in nature, nor shall it be construed as allowing access to the work

product of counsel for the agency. Conditions for examining and copying agency

records, fees to be charged, and other matters pertaining to access to these records

shall be governed by KRS 61.870 to 61.884. To the extent required by due process,

the hearing officer may order the ins pection of any records excluded from the

application of KRS 61.870 to 61.884 under KRS 61.878 that relate to an act,

transaction, or event that is a subject of the hearing, and may order their inclusion in

the record under seal.

(4) Objections to evidentiary offers may be made by any party and shall be noted in the

record.

(5) The hearing officer may take official notice of facts which are not in dispute, or of

generally-recognized technical or scientific facts within the agency's specialized

knowledge. The hearing officer shall notify all parties, either before or during the

hearing, or in preliminary reports or otherwise, of any facts so noticed and their

source. All parties shall be given an opportunity to contest facts officially noticed.

(6) The agency shall cause all testimony, motions, and objections in a hearing to be

accurately and completely recorded. Any person, upon request, may receive a copy

of the recording or a copy of the transcript, if the hearing has been transcribed, at

the discretion of t he agency, unless the hearing is closed by law. The agency may

prepare a transcript of a hearing or a portion of a hearing upon request but the party

making the request shall be responsible for the transcription costs. The form of all

requests and fees charged shall be consistent with KRS 61.870 to 61.884.

(7) In all administrative hearings, unless otherwise provided by statute or federal law,

the party proposing the agency take action or grant a benefit has the burden to show

the propriety of the agency ac tion or entitlement to the benefit sought. The agency

has the burden to show the propriety of a penalty imposed or the removal of a

benefit previously granted. The party asserting an affirmative defense has the

burden to establish that defense. The party with the burden of proof on any issue has

the burden of going forward and the ultimate burden of persuasion as to that issue.

The ultimate burden of persuasion in all administrative hearings is met by a

preponderance of evidence in the record, except when a higher standard of proof is

required by law. Failure to meet the burden of proof is grounds for a recommended

order from the hearing officer.