Frequently Asked Questions
How does license discipline work in California?
In California, most license discipline matters are decided by a formal hearing process under the Administrative Procedure Act (also known as the “APA”.) The APA provides for basic due process by way of written notices and a hearing, if demanded by the licensee or one denied a license, before an administrative law judge, usually at the Office of Administrative Hearings. Some administrative matters are dealt with informally by alternative procedures, such as an informal investigation or citation, which are not discussed here.
A formal administrative disciplinary hearing is unlike other types of trials in that the licensing agency, board, bureau or department makes the final decision on the case. Even if the administrative law judge finds in a licensee’s favor, the agency, board, bureau or department can reject or modify the decision of the administrative law judge.
What is an Accusation? What is a Statement of Issues?
Attorneys on behalf of the agency, board, bureau or department serve the licensee with a notice, called an Accusation, stating their intent to discipline the licensee and the basis for such discipline. If a license applicant has been denied a license, the applicant is served a Statement of Issues stating why an applicant should be denied a license. These documents open the administrative case and accompany documents that notify an individual of their rights in the hearing process. Upon receiving an Accusation or Statement of Issues, a Notice of Defense must be promptly filed in response to the Accusation or Statement of Issues to preserve the right to a hearing.
What happens at an administrative hearing?
A formal administrative hearing is essentially a trial. There is a judge, a court reporter, and cases are presented by attorneys. The state agency is represented by a highly trained attorney who handles licensing matters full time professionally. There is no jury, the environment is somewhat less formal than the superior court, and the rules of evidence that strictly apply in criminal and civil cases are not as stringent. Evidence is introduced, witnesses are questioned and are cross-examined, and closing legal and factual arguments are made.
What happens after an administrative hearing?
After hearing the case, the administrative law judge typically takes the matter under submission and issues a proposed decision approximately 30 days after the hearing ends (although this may sometimes take longer). The licensing agency then has 100 days to adopt the proposed decision of the judge, to reject the proposed decision and substitute its own decision (which sometimes happens if the agency feels the judge has been too lenient or made mistakes in the decision), or let the proposed decision automatically become the final decision after 100 days have elapsed. The decision issued by the agency, if not promptly reconsidered, is final, subject only to an appeal.
Can a licensing case be settled?
Some formal disciplinary actions or license denial actions result in a stipulated settlement, which is like a “plea bargain.” In a stipulated settlement, the licensing agency foregoes a more severe punishment or outright denial of a license, in order to achieve early resolution of a case, and the licensee or license applicant waives the right to a hearing, in order to avoid the possibility of more severe discipline or an outright denial of a license after hearing. Stipulated settlements are typically the product of negotiation between the agency’s attorney and this office. Stipulated settlement terms vary widely depending upon the agency, board, bureau or department. Some cases are settled for a reprimand, but most are settled for probation. Probation often includes some type of stayed (suspended) penalty and specific tasks, such as classes, community service, or treatment. During the probationary period, if a new license violation arises, a licensee might suffer a previously suspended or stayed punishment.
Do I have to testify at my hearing?
Yes. Unlike in criminal matters, a licensee or person denied a license has no right to remain silent at hearing (unless they invoke their 5th Amendment rights if applicable). If the licensee or license applicant does not voluntarily testify on his or her own behalf, the licensing agency attorney will call them to the stand as a witness. Therefore, any person who has an administrative hearing must have an experienced license law attorney to prepare them for hearing, guide them through questions during testimony, and protect them from unfair or improper questions from the state.
Can I ask for reconsideration?
A licensee or license applicant can ask an agency to reconsider its decision before the decision becomes final. Reconsideration is an opportunity to point out flaws in the administrative decision, bring new evidence and legal arguments to the attention of the licensing agency, and even raise objections before the administrative matter is closed. An agency will sometimes briefly stay (delay) a decision effective date to review a petition for reconsideration. If reconsideration is granted, the agency can ask for written or even oral arguments, before issuing a new decision either affirming or changing the prior decision.
Can I appeal an adverse decision?
Yes. Appeals of administrative decisions are filed in the Superior Court. This process, called a petition for writ of administrative mandamus, is extremely complex. The Superior Court requires preparation of the administrative hearing record and written legal arguments from both sides. A hearing results at the end of the written argument process. If the appeal is won, in most cases, the matter is sent back to the administrative agency with instructions from the Superior Court.
Can I get my revoked license reinstated?
All licensing agencies make provisions for license reinstatement. Almost all revoked licenses can eventually be restored upon a showing of rehabilitation. There is a waiting period of usually one to three years before bringing a petition for reinstatement. A licensee will usually not have to requalify for the license and will appear at either an administrative hearing or before a licensing board at a board meeting to seek reinstatement. Some agencies require that a former licensee reapply for the license to start the process.
How much does it cost to hire an attorney?
Legal fees can vary greatly depending upon the stage of the case and the complexity of the case. Legal fees can range from the cost of a major appliance purchase or a major car repair, up to the cost of a new roof on a home or a new automobile. A skilled attorney must complete a four-year college degree, another three years of law school, pass the bar exam, and be trained in the law. A law firm such as Ray & Bishop, PLC, additionally has institutional knowledge of hundreds of successful cases and years of experience dealing with professional license law and governmental law to apply to each and every case. Different lawyers charge different fees in part based upon the knowledge and experience of the law firm, and the law firm’s particular expertise in a certain area of law. As a helpful reference, most errors and omissions insurance policies for licensed professionals provide anywhere from $5,000.00 to $25,000.00 in license defense coverage, although some policies may have higher limits.
How do I pay for an attorney?
When you consult with one of our attorneys, you can expect to receive a competitive flat fee or hourly fee quote for our services. Ray & Bishop, PLC, accepts all forms of payment accepted at any major service firm, including American Express, Visa, Mastercard and Discover credit cards, as well as debit cards, cash or check. If you have license defense coverage on your errors and omissions insurance policy and your carrier extends coverage to your matter, we may be able to directly bill your insurance company for your legal fees, or help you seek reimbursement of fees at the end of your case.
Can any lawyer competently represent me at an administrative hearing?
No. All lawyers are licensed, but very few possess in-depth experience in handling professional licensing administrative cases. To be competent to handle such cases, an attorney should appear regularly at the Office of Administrative Hearings and should have handled a variety of professional licensing matters. These cases can often take several years from a triggering incident to a final decision, so only the most experienced attorneys possess in-depth knowledge of the process. An attorney who does not do administrative hearings or appeals of adverse decisions may not have the confidence, ability or insight to deliver the best results possible. Call our office at (949) 557-4888 today for a consultation today to discover the difference that experienced counsel makes.
**Attorneys are only licensed to practice law in California. Attorneys’ offices are only located in California. However, pursuant to United States Code of Federal Regulations 8 C.F.R. § 1.2 and United States Code 5 U.S.C. § 500, Attorneys may practice Federal Administrative Law and represent an individual located outside of California within the parameters of Federal Administrative Law. Attorneys will NOT advise clients on the laws of any State or any State law legal matters (with the exception of California). The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship. Legal advertisement.**