California Professional License Defense Process
The State of California oversees and regulates the licensing of a wide variety of professions. These professions include everything from doctors and nurses to acupuncturists and real estate agents. Many of these professions are overseen by professional boards or agencies who deal with issuing licenses, regulating license holders, and dealing with any disciplinary issues.
Under California law, most licensing disciplinary actions are governed by the Administrative Procedures Act or APA. The APA provides the guidelines that ensure basic due process is followed throughout the hearing process. This includes such things as written notice of the charges of professional misconduct being brought against the licensee, as well as the right to a hearing on those charges should the licensee request one.
It should be noted that a formal administrative disciplinary hearing is different than a civil or criminal trial. The hearing is usually conducted before an administrative law judge at the Office of Administrative Hearings. Most importantly, the licensing agency involved in bringing the charges makes the final decision on the case, not the administrative law judge. This means that even if the administrative law judge finds in the licensee’s favor following hearing, the agency can modify that finding as they see fit or reject it outright.
Because of the importance of what is at stake, it’s imperative that any holder of a professional license in the State of California have a good grasp of the professional license defense process. As a license holder, you are always at risk of having a complaint brought against you which could trigger a disciplinary accusation.
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Agency Issues a Formal Accusation
The defense process begins when the agency that regulates your professional license issues a formal written accusation. In this accusation, the agency is required to inform you of the professional rules that you have allegedly violated, as well as how your actions violated those rules. In this document, you are referred to as the “Respondent.” The licensing defense process in California, begins when you receive a Statement of Issues (or Accusation) by your licensing board indicating you are under investigation. This is a serious matter for you because, by filing on Accusation, your licensing body, based on advice from it’s legal counsel, has already decided that it believes it has good grounds to seek the suspension or revocation of your License, or to impose other discipline upon you.
Notice of Defense
Under the APA, you have a right to a hearing on the issues raised in the accusation, but only if you, or your attorney, ask for one. Therefore, to preserve your right to a hearing, a notice of defense must be filed within 15 days of the mailing date of the accusation. You may be represented by a lawyer at your own expense. You may also represent yourself. You have typically 60 days to file a Notice of Defense to protect your right to request a hearing to defend yourself. Once the case is filed with the Office of Administrative Hearings (OAH), your licensing case proceeds into the “discovery” phase of the investigation during which the issues framed in the Statement of Issues will be fully evaluated by the Board’s attorney.
Filing of the Case with the OAH
Once you, or your attorney, file a notice of defense, your case will be sent to the OAH, and an administrative law judge will be assigned to conduct the hearing. At this point, OAH procedures will govern the pre-hearing process, settlement, and the hearing itself.
The Pre-Hearing Process
The pre-hearing process is a period before the hearing where both sides to the case get to “discover” the nature of the evidence that their opponent intends to use at the hearing. This evidence includes the names and addresses of all known witnesses who will be called to testify during the hearing and those who will not be called. It also includes any reports made by the agency regarding the case and statements made by any party or witness. All discovery is required to be completed within 30 days.
During this time, the OAH may also issue subpoenas to compel the attendance of witnesses at the hearing or compel the production of documents to be used during the hearing. If you, or your attorney, issue any subpoenas on your own, you are responsible for service of the subpoena, as well as paying any fees or mileage expenses.
Once the discovery phase is completed by the Board, you may be asked to attend a Settlement Conference at which the Board’s attorney may extend a “stipulated settlement” offer to you outlining the conditions you must accept for the settlement agreement to proceed including costs you will have to pay, any sanctions, probationary requirements etc. Either party may ask for a pre-hearing conference, or the administrative law judge may schedule one. The purpose of the conference is two-fold: First, it is an attempt to try to settle the case or send it to alternative dispute resolution. Second, it an opportunity to finalize all the evidence each side plans to present at the hearing.
In some instances, it is expedient to settle the case. A settlement is a little like a plea bargain. The agency foregoes more severe punishment in favor of an early resolution of the case. The respondent waives the right to hearing to avoid the possibility of greater discipline being imposed. All settlements are the results of negotiations between the Respondent, or the Respondent’s attorney, and the agency. If settlement terms are reached, they must be stipulated to by both parties. No settlement is final until the agency approves and adopts the settlement as its final decision.
The Administrative Hearing
At the hearing, both sides have the opportunity to present testimonial and documentary evidence that supports their respective positions. The burden of proof rests equally with both parties requiring them to persuade the administrative law judge on every contested factual issue. Typically, the agency gets to present its case first with the Respondent or their attorney having the right to cross-examine any witnesses. Then the roles are reversed, and the respondent presents their case, and the agency gets the right to cross-examine. When both sides have presented their case, the administrative law judge takes the case under advisement. If you don’t accept this settlement offer, your case will proceed to an Administrative Hearing. Administrative hearings are not the same kind of hearing you would get in a regular court or even small claims court, with full discovery and rights to appeal. These are more similar to a trial before a judge in Superior Court, with the State Board or Agency represented by its attorney or the Attorney General, fully prepared with exhibits and witnesses and legal briefs to present to the Administrative Law Judge. At the Administrative Hearing, you will appear before an Administrative Judge and will be asked to defend your case.
Following the conclusion of the hearing, the administrative law judge will issue a proposed decision to the licensing agency. This occurs approximately 30 days after the hearing, but it can take longer. The judge has up to 30 days to adjudicate your case after which your licensing board has 100 days to accept, modify or reject (rehear) the Administrative Judge’s decision. IA California licensee whose license has been suspended, revoked or denied reinstatement may seek judicial review of the board’s decision by filing what is called a petition for Writ of Mandate (“Writ of Administrative Mandamus”) in Superior Court under Code of Civil Procedure (CCP) section 1094.5. The time for filing an appeal depends on a number of factors, but it can be as little as 30 days from the order of denial, suspension or revocation. If you license is ultimately revoked, you cannot reapply for your license until one year after receiving written notification of the Administrative Law Judge’s decision
The agency then has 100 days to do one of the following:
- Adopt the decision of the administrative law judge;
- Reject the decision of the administrative law judge and substitute its own decision; or
- Automatically let the proposed decision become the final decision after 100 days have passed.
The Respondent or their attorney can ask an agency to reconsider its decision at any time before the decision becomes final. Reconsideration is a way to point out errors in the decision or bring new evidence or arguments to the attention of the agency. If a petition to reconsider is granted, the agency can ask for written and oral arguments before issuing a new decision that either affirms or alters the previous decision.
Once a decision becomes final, the Respondent does have the opportunity to appeal the administrative decision to the Superior Court of the State of California. This is done through a petition for writ of administrative mandamus. If the Superior Court grants the petition, it will require the complete administrative record and legal arguments from both sides. If the appeal to the Superior Court is successful, the matter will be sent back to the agency with specific instructions from the court.