Section 34-22-8

Disciplinary action; charges; hearing; judicial procedure; appeals; sanctions; immunity of board, etc., from suit.

(a) Any person, including a licensed optometrist may initiate a charge of violation of the provisions of this chapter or a charge of misconduct by a licensed optometrist by filing with the secretary of the board a written statement under oath of the charge or charges against the accused. If a member of the board files a charge, the member shall not participate in the hearing or disposition of the charge, except to the extent of giving testimony in connection with the charge. The member filing the charge shall not be present during the hearing or deliberation of the charge except to give testimony. A discreet preliminary investigation into the charge or charges shall be made by the board, after which, if the board is reasonably satisfied that the charge or charges are not frivolous, the board shall hear the charge or charges under rules of procedure to be established by the board. A quorum of the board shall be present at all times during the hearing and deliberation and action thereon. A time and place, either within the City of Montgomery, Alabama or the county in which the accused resides for the hearing of the charge or charges shall be fixed by the board as soon as convenient. A copy of the charge or charges, together with a written notice of the time and place of the hearing, and a copy of the rules of procedure adopted by the board for the hearing shall be served on the accused at least 20 days before the date fixed for the hearing, by leaving a copy thereof at his or her last and usual place of residence, by personal service upon the accused, or by forwarding a copy to the accused via United States registered mail, with a return receipt requested, addressed to him or her at his or her last known mailing address, if a resident of the State of Alabama. If the accused is not a resident of Alabama or has departed from the State of Alabama, then notice of the time and place of the hearing shall be published in a newspaper of general circulation in the county where the accused is last known to have resided, three weeks prior to the hearing, setting out the time and place of the hearing. At least five days before the time of the hearing, the accused shall file with the secretary of the board an answer to the written charges together with a list of witnesses which the accused desires to be subpoenaed for the hearing. At the hearing, witnesses may be examined respecting the charge or charges. The board or the accused, or both, may require the attendance of witnesses, the production of books, records, and papers pertinent to the issues and, either or both may require the secretary of the board to issue a subpoena for any witnesses or a subpoena duces tecum to compel the production of any books, records, papers, or documents, which shall be directed to the sheriff of the county where the witness resides or is to be found. The subpoena shall be served and returned in the same manner as subpoenas in civil cases in the circuit court are served and returned. If any person is subpoenaed to appear before the board and fails to obey the subpoena without reasonable cause, or if any witness upon any hearing before the board refuses to be sworn, or to be examined, or to produce a book, record, paper, or document, as ordered by the board, this fact shall be certified by the board to the circuit court or the judge thereof in the county where the witness resides, and the witness shall be ordered and directed by the court to appear before the board and testify or produce such books, papers, records, or documents as are ordered by the board. At the hearing, the accused may cross-examine the witnesses against him or her, produce witnesses in his or her defense, appear personally or by counsel, or both, and have the testimony taken down by a stenographer, but the expense of counsel and stenographer shall be borne by the accused. A majority of the quorum of members of the board conducting the hearings shall render a decision on the merits of the charge or charges and, if warranted by the evidence, impose appropriate sanctions.

(b) In all cases of suspension or revocation of licenses or of other disciplinary sanctions imposed by the board, the accused may appeal only to the Circuit Court of Montgomery County, Alabama, notwithstanding any other provision of law to the contrary. Except as otherwise provided herein, judicial review of the orders and decisions of the board shall be governed by the provisions of Sections 41-22-1 to 41-22-27, inclusive, the Alabama Administrative Procedure Act.

(c) Members of the board, and the members of any committee of optometrists impaneled by the board, and any other optometrist and individual making any report or rendering any opinion, or service, or supplying any evidence or information or offering any testimony to the board in connection with a disciplinary investigation or proceeding as authorized in this chapter shall be immune from suit for any conduct with respect to the investigations, actions, hearings, and proceedings.

(Acts 1975, No. 1148, p. 2257, §10; Acts 1989, No. 89-233, p. 288, §3; Acts 1995, No. 95-218, p. 370, §1.)