Saturday, July 24, 2010


     First, this is an excellent question, and one that the lawyers of License Advocates Law Group hear frequently from licensees across the spectrum of California occupational and professional licenses. In fact, whether in meetings with individual clients, or in the programs we offer at annual meetings and conventions, whether we are speaking to nurses, teachers, real estate and insurance professionals, building contractors, accountants or any other category of licensee, this question is always asked. And we are always pleased to hear it because the answer takes us into the very heart of the process of effectively defending a California occupational licensee against discipline of the license. 

To begin, it's critical to define our terms:  there is no such thing as “guilt” in licensee discipline. “Guilt” is what criminal courts determine. In civil actions, where one is sued for doing things that damage or violate the rights of others, the operative concepts are “culpability” and “liability.”  License regulation and discipline are different. These governmental processes are mainly controlled by administrative law, as opposed to criminal law or general civil law. 

Although the specific rules and technicalities in license discipline cases can vary widely depending on the type of license and which Department or other office of the State of California issues the license, it is still administrative law that governs discipline against the license -- whether the license of a building trades contractor operating under a license issued by the Contractors State License Board, as well as the licenses of a real estate agent (Department of Real Estate), vehicle salesperson (Department of Motor Vehicles), insurance producer or broker (Department of Insurance), or a nurse (Board of Nursing). In almost all instances of license enforcement, the critical question is not whether the licensee is “guilty” as in criminal law, or “liable” as in civil law, but whether factual cause exists to impose discipline. So, what the licensee is really asking is this:  what if there is factual cause to justify discipline? Now, take some comfort and courage from the answer:  most of the time there is indeed some factual cause for discipline. 

It's very rare in administrative law for the State licensing authority to be acting completely in error such as pursing the wrong person with wholly erroneous allegations. Yes, it does happen, infrequently. (There is a great example of this situation posted in the FAQ's at our website, But, in most cases, the real issue is not that there is no evidence of misconduct to support the State's accusation. Instead, the most common situation is that the State licensing Department or Board intends to impose a much more severe punishment or penalty than is necessary or appropriate. 

So, if you are facing a revocation of your license, it may be that the right outcome for your case is some temporary conditions on your license, conditions which are narrowly tailored to meet the true circumstances of your case and which apply just long enough to demonstrate that there is no need for permanent or more severe discipline against your license. Such conditions might include financial restitution to a complaining witness, such as a former client, or a mandate for additional continuing education coursework. If you have been denied a license, it may be that the facts on which the State Department or Board denied the license application support lesser measures than denial of the license. Very frequently a contested denial, if appealed and set for fair hearing by the applicant, can result instead in the issuance of a probationary license which allows the licensee to demonstrate competence and professionalism while working in the licensed field.

Of course, just as each licensee and each license applicant is unique, each license discipline case is different and must be evaluated and handled on its individual facts. But it is a true and reliable statement that, in most cases, a competent (maybe even skilled) defense against the licensing authority's penalty decision can result in a much less severe penalty and shorter burden or limitation on the licensee than the State originally intended. So, don't let the fact that you are “guilty” – that there are facts justifying the State's accusation – cause you to simply roll over. 

If your license is your livelihood, if that's how you put food on your table and support your family, it is not right and not necessary for you to pay a higher price for prior mistakes than the law requires.

Further information can be found at or in private consultation with any of the partners at License Advocates Law Group.

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Monday, July 19, 2010


          Most California teachers are probably aware of SB 955 (Huff) and know that their unions are opposing its passage in the legislature. What they may not know is how they can respond if SB 955 passes and the Governor signs it into law.

          Current law requires any budgetary layoffs or other reductions in force (“RIFs”) to be carried out in reverse seniority order. SB 955, among other things, would change current law to allow for other factors, such as performance reviews and student performance on standardized tests, to be considered in making layoff decisions. Such a move has a superficial appeal to the public, as shown by the apparent approval of SB 955 by the Los Angeles Times and other publications.
          A layoff system based entirely on seniority has its obvious weaknesses. But whatever those failings may be, seniority at least allows for a uniform, predictable, objective, non-discriminatory RIF process. A system founded on performance evaluations, regardless of how well-intentioned its supporters may be, introduces a collection of subjective considerations that often lead to biased and sometimes unlawfully discriminatory treatment that further stifles imagination and creativity in the educational process.

          Performance reviews are often out of date. Even when current, countless studies show them to be inaccurate at best, or even flagrantly biased. Reviewers tasked with preparing these evaluations rarely have the knowledge, skills or training to write objectively verifiable performance reviews. More than any other single quality, the review describes the personal and professional relationship that exists between the reviewer and the person being reviewed, as opposed to any consistent measure of the performance abilities or future potential of the reviewee. At worst, performance reviews can be used by some to mask unlawful discrimination based on race, age and other forbidden characteristics.

          RIFs founded on student performance on standardized tests don’t fare much better. Standardized tests evaluate rote memorization of facts, rather than the imagination and creative problem-solving ability that today’s world demands. Even if the tests measured useful abilities, student performance often depends on conditions outside of the teacher’s control, such as the wealth of student families, the extent to which student families choose to interact with the educational process, the quality of school and district administration, and other matters.

          Whether SB 955 is wise policy or not, the bill or similar legislation may pass and be signed into law. If that happens, and if the state’s budgetary difficulties continue, California teachers must be prepared. Can License Advocates Law Group help? We think so. Layoffs and other RIFs, whether under SB 955 or current law, demand that certain procedural rules be followed. A qualified lawyer can see that this happens. SB 955 sets up the potential for factors other than seniority to be used in the layoff process. Each district will have to set up its own layoff process consistent with the statewide legislation. Some districts will do that better than others. If the process that the laid-off teacher’s district uses is not valid under state law or if the facts show that the district’s policy is being applied incorrectly, a lawyer can explain this to an objective fact-finder.

          And if the layoff appears based on unlawful discrimination, such as on race or age, the layoff administrative process is an ideal vehicle for obtaining the evidence necessary to support a lawsuit challenging discrimination targeting the individual teacher or a group of teachers. Discrimination claims have strict rules on the time in which claims have to be made to federal and state discrimination agencies to preserve the legal rights of the claimant to sue in court. Early consultation with a lawyer will ensure that those time requirements are satisfied.

          Think about SB 955. Consult with your union or other teacher association. If the need arises, obtain timely legal representation.

           For more information about your rights, see the "Special Notice to California Teachers" at

Thursday, July 15, 2010


An article in the most recent Winter/Spring 2010 edition of the California Sate License Board’s information newsletter “California Licensed Contractor” highlighted a new business practice, known as “express van services.”  The point of the article was to suggest to General Contractors that they can expand or develop their businesses by providing customers with a “broad palette of construction trade skills” for for new projects or repairs . . .”  See page 8 at .
However, a careful reading of the entire article will reveal the more subtle point that a General Contractor thinking of starting up a Handyman-type repair or remodel service may need one or more additional license classifications.  This view is borne out by the law. Pursuant to Section 7057(a) and (b) of the California Business & Professions Code, general building contractors can take a prime contract for a framing or carpentry and they can oversee projects and coordinate the specific subcontractors for a job. However, specialty or subcontractors must be hired to perform work of a single specialty. For example, if a general contractor, operating an express van service, is offered a job calling only for electrical or plumbing work, the general contractor must decline the job as it is more appropriate for a contractor licensed in that particular specialty.
The only exception is if the job requires more than two types of work. Then it is appropriate for a licensed general building contractor to contract for and oversee the entire project. For example, a general contractor can perform a complete remodeling job if it involves plumbing, electrical and carpentry work under one contract.  Under these circumstances, a general building contractor may perform all of the work on a building, or subcontract parts of the job to contractors with specialty licenses.
Understanding that a typical real-life scenario for an express van services company would likely involve a call to perform smaller home improvement jobs like plumbing and electrical repair, it will do-well for a general contractor to be very cautious about accepting such work in light of the resources the CSLB expends in combating unlicensed contracting activity.


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