Wednesday, March 30, 2011
The short answer to the question posed in the title of this post is “Yes!” But, as described below, that answer can cut both for and against the California licensee or license applicant who is not represented by skilled licensing counsel.
An exhaustive discussion of the law of post-hearing procedures in administrative law would require a treatise, possibly multi-volume, and is obviously beyond what can be accomplished in these few paragraphs. But the following information provides an overview of what to expect in the typical professional or occupational license hearing in California after the evidence has been put before an Administrative Law Judge in a “fair” hearing procedure.
The Proposed Decision. Contested hearings are presided over by a hearing officer, of course. But the hearing officer who presides at the hearing may or may not be the ultimate decision-maker in the case. In California, disputes about State professional and occupational licenses are heard by an Administrative Law Judge, or ALJ, employed by the State of California, Department of General Services, Office of Administrative Hearings.
In almost all occupational licensing cases, the ALJ is not the ultimate decision-maker. (An important exception is a teacher credentialing case, which is heard by a three-person Commission, with an ALJ presiding; it issues final decisions.) In most kinds of cases, the ALJ hears the evidence, makes findings of fact and conclusions of law based on the evidence he or she has heard, and then renders a proposed decision in writing that relies on and incorporates those findings and conclusions. The licensing agency itself—often the agency’s top officer or its governing board—is ordinarily the ultimate decision-maker.
The law provides that within 30 days of the conclusion of the hearing, the ALJ will prepare a proposed decision in writing and submit it to the decision-maker. It is very common for that 30-day deadline to be extended. Within 30 days of the receipt of the proposed decision by the licensing agency, the agency must file a copy as a public record and serve a copy on all parties. You can click here to see what one of these proposed decisions looks like.
Agency Review of an ALJ’s Proposed Decision. Although contested administrative hearings are ordinarily open to the public, agency reviews of proposed decisions may be, and usually are, conducted in private. In reviewing an ALJ’s proposed decision, the agency may take one of five possible actions: (1) adopt the proposed decision in its entirety, (2) reduce the proposed penalty and adopt the remainder of the proposed decision, (3) make technical or other minor changes in the proposed decision and adopt it as modified, (4) reject the proposed decision and refer the case back to the ALJ to take additional evidence and prepare a new proposed judgment, or (5) reject the proposed decision and decide the case itself after reading the record of the evidence taken at the hearing. In this last option, the licensing agency may or may not allow or ask for additional evidence and may allow the parties to submit additional written or oral argument before the agency makes its decision. If the licensing agency asks for or allows additional evidence or oral argument, those matters will occur in an open public proceeding.
Once 100 days have passed from the delivery of the proposed decision to the agency, and the agency has failed during that time to notify the parties that the proposed decision is not adopted, the proposed decision is adopted in its entirety by operation of law – that is, without any further action by the parties.
In the great majority of cases, the agency adopts the proposed decision in its entirety. With certain exceptions, the decision is effective 30 days after the agency mails or delivers it to the licensee.
Rehearing, Reconsideration, Stay and Administrative Appeal. Most agencies allow a licensee to seek a rehearing or reconsideration of a decision, but these requests are seldom granted. Some agencies lack the power to rehear or reconsider their decisions. It is also possible to obtain a delay—called a “stay”—of the effective date of a license revocation or suspension. Some agencies are empowered by statute to allow administrative appeals of decisions to various bodies within the agency itself.
Even where a licensing agency is unlikely to grant a request for rehearing or reconsideration, it may be important for the licensee or license applicant to make a formal, well-supported request for such action. By such request, important legal issues that could cause the case to be reversed by subsequent review in Superior Court can be properly framed and supported. It also happens occasionally that, by identifying a challenging legal issue in a request for rehearing or reconsideration, the licensing agency may decide that it does not want to take a risk that the matter will be appealed to the Superior Court, where the agency may suffer a result it does not want, one that could turn out to be applicable to all of its cases. So, sometimes, a strong request for reconsideration or rehearing will result in a successful settlement agreement of an individual case, even though the fair hearing on the evidence has already occurred.
Judicial Review of the Ultimate Decision. At some point, all efforts to rehear, reconsider, stay or otherwise administratively appeal the decision have been exhausted, and the decision is effective. The effective date of the decision is important, because that date starts the running of the time within which the licensee, license applicant, or other responding party may file a petition in the Superior Court seeking to overturn the agency’s decision. Whether or not to challenge the agency’s decision through this formal court process is a significant decision that must be carefully weighed and discussed by the licensee with his or her attorney.
A challenge of the licensing agency's decision in Superior Court will be heard in the department of the court known as “Writs and Receivers.” Writs and Receivers does not ordinarily take additional evidence — the judge in that department reviews the record of the evidence admitted at the hearing before the ALJ — to determine if there are errors of law or an insufficient evidentiary basis for the agency’s decision. Typically, if the court decides that the agency’s decision is wrong, based on the record of the evidentiary hearing, the court will not order a different result. Instead the court will “remand” — or send the matter back — to the licensing agency with instructions to correct its error. Sometimes complying with that instruction requires a new hearing or a “re-opening” of the earlier hearing to allow for the taking of additional evidence. More often, complying with a remand by the Superior Court results in the agency simply modifying or reversing its initial decision.
Appeals to the Writs and Receivers Department of Superior Court are an “expedited” process. There is sometimes a substantial delay necessary, because the transcript of the evidentiary hearing must be prepared and approved. But once the transcript is in hand, the case record is filed with the court and a date is set for the court to hear argument about the case — usually about eight weeks out from the date of filing.
The Petition for Writ procedure is not expensive as legal matters go. There are no depositions, interrogatories or other time-consuming and expensive discovery processes. There is no gathering of new or additional evidence, no taking of testimony. Even before the matter is called on the day of the Superior Court hearing, the court will have reviewed the transcript and the exhibits admitted into evidence at the prior hearing and usually will have read and considered the parties’ written arguments. The court will then allow the attorneys to argue briefly, and then the court will rule, either orally from the bench or within a few days in a written Order. The court hearing takes less than an hour in most cases. Appeals can be taken from the Superior Court’s final order.
Reinstatement of a Suspended or Revoked License. After a period of time — usually one year, but there are exceptions — has passed from a decision revoking or suspending a license, or from an order placing probationary conditions on a license, the licensee ordinarily may petition the decision-making agency for reinstatement of the license or for relief from any probationary conditions. The burden that the licensee faces is severe in these situations: he or she will need to establish, by clear and convincing proof, that the relief sought is merited. This isn’t easy, but a convincing showing of rehabilitation, present good character, good conduct, subsequent education, training and services, a remorseful state of mind and, if appropriate, restitution to any people harmed by the licensee’s past conduct all can help to convince the agency to grant the petition. Any agency decision denying one of these petitions can be reviewed in the Superior Court, just as the original decision was.
Many California licensees and license applicants choose to represent themselves at the administrative hearing before the ALJ. One of the reasons that this is always a bad idea is that the licensee or applicant lacks the training to recognize and “tee up” the legal issues that can influence the licensing agency’s decision after the hearing decision by the ALJ. There is nothing more frustrating in licensing law than for the licensee or applicant to obtain a favorable decision from the ALJ following the fair hearing, only to see the licensing agency make a different decision against the licensee. Competent experienced licensing counsel know how to limit the potential for this disappointing result, and they know how to put the agency’s feet to the fire in Superior Court when it happens. If your earning power is or can be significantly strengthened by a California occupational license, then retaining qualified licensing counsel is a cost-effective way to reduce the chance of losing the licensing decision after winning the hearing.
Monday, March 7, 2011
License Denial or Discipline? No. 5 of the Top Ten Essential Tasks to Do Now: Prepare Your Rehabilitation Evidence
This post discusses Task No. 5 of the “Top Ten Essential Tasks for Appealing a License Denial or Defending Against License Discipline: Prepare Your Rehabilitation Evidence.”
After decades of practice in the field of California administrative law, the partners of License Advocates Law Group LLP have seen, time after time, that every occupational and professional licensing case can be strengthened by some very straightforward actions by the licensee or denied applicant even after the initial denial of a license or after disciplinary charges have been brought by the State. Over the next weeks, this blog will continue to identify, explain and discuss the “Top Ten Essential Tasks for Appealing a License Denial or Defending Against License Discipline.”
Prior installments of the “Top 10 Essential Tasks” are available in the archive of our blog. The first all-important installment of this series, Task No. 1, is available in the August Archive here. Task No. 2, also in the August Archive, is here. Task No. 3 is set forth in the September Archive here. Task No. 4, “Preparing Your Character Evidence” is found here.
In the years of administrative law practice by the attorneys of License Advocates Law Group LLP we have seen that most cases of license denial or discipline are based on a record of criminal acts underlying the denial or proposal for discipline. In many cases, the offense on the record is very old (a recent license denial based on 39-year old felony conviction) or it was acquired as a juvenile. In other instances, the conviction is based on almost ludicrous facts (a burglary conviction based on entry into one’s own work-space after hours for purposes of using office equipment to make a single photocopy of personal material). But all cases of license denial or discipline rest ultimately on the ability of the licensee or license applicant to make a compelling showing at or before an evidentiary hearing that one is fit and worthy of the privilege of doing licensed work.
Notwithstanding the many reasons that a license denial or discipline of a license can seem an overbearing and oppressive exercise of State regulatory powers, under California law State licensing agencies are entitled to deny any application for license, or to revoke or otherwise discipline a license, on the grounds of a criminal conviction if the acts underlying the conviction are determined by the State to be acts that are inconsistent with the functions, qualifications and duties of the licensed occupation. Even where there has been no conviction, or no prosecution, the State may rely on evidence of improper acts to deny or discipline an occupational or professional license. By obtaining a court order that improves or recasts the criminal history, or by resolving pending matters pertinent to financial and legal obligations, these matters can be removed from the consideration and evaluation of licensing officials and no longer available as a basis for unfavorable licensing decisions. For these reasons, clearing up prior criminal history and other pending lapsed financial and legal obligations is a critical task during the months preceding the license hearing.
Clearing or improving the record of prior criminal convictions, where possible, is an important pre-requisite to making the strongest and most effective showing at the license hearing. But it is also an important precursor to successful negotiations with California licensing agencies. Even where available procedures result in only partial revisions of the conviction record, it is important that the licensee or license applicant demonstrate seriousness of purpose by pursuing all available legal measures. Where a record-clearing process is available, and the eligible license applicant or licensee has not petitioned the court for the benefit, the licensing agency often interprets that failure as one of indifference to the outcome of the licensing matter.
Significant records-cleaning procedures will usually require the services of an attorney. Most criminal defense attorneys are experienced in these legal processes, and all specialized licensing attorneys can and should include these measures as part of the agreement for services attendant to appealing a denial of a license application or defending against license discipline. The focus of this discussion, then, is not how to do these things yourself, without an attorney, but what processes you can expect your attorney to evaluate for applicability and to undertake where you are eligible.
First, let go of an old myth. It is not true that only felony convictions matter in obtaining or preserving a California professional or occupational license. Not only are misdemeanors grounds for denial or discipline by State licensing agencies, even infractions can be a basis for State action against a license. In fact, even where there has been no criminal prosecution or conviction, State licensing agencies are allowed by California law to consider acts — acts not pertaining in the slightest to work under the auspices of the license — that are inconsistent with the functions, duties and qualifications of a licensee.
A recent example from a case defended by License Advocates Law Group LLP may be instructive. Our client was a California-licensed architect with an unblemished criminal history and a solid record of outstanding work in the profession and in his employment of over thirty years. When he sold his personal residence, the buyer decided within a few days of taking possession of the home that our client had failed to disclose a defect in the heating-cooling system. The buyer made a complaint to the State licensing agency, alleging that our client’s failure to disclose the defect was dishonest and inconsistent with the requirements of the laws pertaining to real estate transactions. The architect’s licensing agency was poised to commence a formal disciplinary investigation, potentially leading to revocation or suspension of our client’s license, even though the acts in question had nothing to do with our client’s performance in his licensed work, and even though there was no criminal prosecution or conviction arising from the conduct complained of. (The case was amicably resolved before any disciplinary investigation ensued.)
Criminal prosecutions and records of conviction are the primary means by which State licensing agencies learn of acts that may be considered unacceptable — improper — for licensees. So applicants and licensees need to utilize all that the law allows in order to
maintain “clean” records of criminal history.
One of the many advantages in the extended period of time between asking for and obtaining a fair hearing to appeal a license denial or defend against license discipline, is that those months are usually sufficient to initiate and complete the process of obtaining formal court orders that revise a problematic criminal conviction record. Court-ordered revision of a criminal history can be determinative in establishing rehabilitation after conviction, because the licensing agency is ordinarily bound by the terms of the court’s order. So, for example, if a Court issues a Certificate of Rehabilitation, the licensing agency cannot use the conviction to which the Certificate applies in denying or disciplining a license. The single exception to this principle is expungement under Penal Code Sections 1203 and 1203.4. By the express terms of those statutes, State licensing agencies are allowed to consider “expunged” convictions and the circumstances underlying those convictions in determining the fitness of licensees and license applicants.
Most of the legal processes for improving criminal records involve petitioning the Superior Court, or the court in which the applicant or licensee was convicted, for an Order. Court orders are potentially available to strengthen licensing applications and defenses in several different and sometimes overlapping respects.
1. Dismissal of prior misdemeanor convictions and an early termination of current probation.
2. Reduction of a felony conviction to a misdemeanor, where the charge of conviction is an alternative felony-misdemeanor.
3. Sealing of prior juvenile criminal history.
4. Issuance of a Certificate of Rehabilitation for any felony conviction more than five years old that cannot be reduced to a misdemeanor.
Other record-cleaning measures do not require action by a court:
5. Resolve outstanding or lapsed financial obligations.
6. Clear up old warrants, even traffic, and unpaid fines, penalty assessments, and other outstanding criminal matters.
7. Complete and satisfy all remaining terms and conditions of any probation or parole, including orders for restitution, and obtain a written declaration of completion from monitoring officials.
8. Satisfy or reach a formal compromise of all outstanding civil judgments (including any relating to spousal support, child support or asset distribution attendant to marital dissolution).
9. Resolve pending cases for civil damages and administrative complaints based on allegations of misconduct.
For some applicants and licensees, the records-cleaning processes in California law will be unavailing. For example, a juvenile conviction for a violent crime involving the use of a firearm is generally not “sealable” under California law. But other remedies may apply to the same factual situation. For example, if an unsealable juvenile conviction resulted in a sentence to the custody of the State Department of Corrections, the offender may be eligible for a Certificate of Rehabilitation. The multiplicity of potential record-cleaning measures, and their patchwork of eligibility requirements, virtually demand the skill and experience of an attorney to effectively mine the possibilities for the measure that can best meet the needs of the applicant or licensee.
Of course, the need to first clean up the criminal record can add to the costs and time of appealing a denial of license or defending against license discipline. Still, the math will always demonstrate that the costs of obtaining or preserving an occupational license are always offset in a relatively short period of time by the enhanced earning power under the license, which can continue indefinitely. For these reasons, then, cleaning up any prior criminal history, or discernible history of civil claims or lapsed financial obligations, must be considered a Critical Task in defending or obtaining a professional or occupational license in California and should be accomplished before the matter is submitted to an Administrative Law Judge.
Christine C. McCall, License Advocates Law Group LLP
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