Joseph P. Hougnon, Attorney at Law

Administrative Hearings in California


As a licensed professional in the State of California, you have a vested interest in keeping your license active. However, despite your best intentions, events beyond your control can put your license in jeopardy. Perhaps you had the misfortune to be convicted of a misdemeanor crime such as a DUI. Maybe a disgruntled patient or client reported you to your licensing agency. In either case, the conviction or complaint can result in a suspension or revocation of your professional license.

However, under the California Administrative Procedure Act, or APA, the agency or department that issued your license must first conduct a formal hearing of the matter at hand before deciding on whether disciplinary action is warranted. Administrative hearings act as a check against overzealous licensing agencies. They balance the public’s right to be protected from negligent and unethical professional practices against your right to earn a living in your chosen profession.

THE OFFICE OF ADMINISTRATIVE HEARINGS

The vast majority of professional license discipline cases in California are handled by the Office of Administrative Hearings or OAH. Professions as varied as engineers, registered nurses, insurance brokers and more all appear before the OAH when licensing issues arise. The various licensing agencies that regulate these professions delegate the task of administrative disciplinary hearings to the OAH. However, each agency reserves the right of final decision making to itself. This satisfies the APA hearing requirements while preserving the authority of the agency in question as the final arbiter on all licensing questions.

Over the course of a given year, the OAH will hear over 10,000 cases, typically in one of the courtrooms at the four OAH offices located in Sacramento, Oakland, Los Angeles and San Diego. However, a hearing can be held at any remote location for the convenience of the parties. A quiet room with adequate tables and chairs which are accessible to a court reporter, such as is found in many state and federal office buildings, can be used for an OAH hearing. Occasionally, parties or witnesses are allowed to testify via telephone, as long as the applicable rules have been followed, and the parties are in agreement.

Hearings are presided over by an administrative law judge, or ALJ, employed by the OAH. This means that the ALJ is independent of the licensing agency that is trying to impact your license. The ALJ is an experienced lawyer, familiar with the APA procedures. Their job is to provide you with a fair hearing on all the issues being raised by the agency.

A licensing agency will typically initiate a formal disciplinary case by issuing an accusation against a licensee. This accusation will list alleged actions taken by the licensee that have violated specific laws or regulations governing the profession in question, along with the names of people involved and the dates of said violations.

REQUESTING A HEARING

Once the accusation has been issued, the licensee must request a hearing to obtain one. This is done by filing a Notice of Defense to the Accusation within 15 days of the date the accusation was mailed to the licensee. Failure to do so will result in default. The agency in question will consider the licensee’s lack of a response as an acquiescence to the charges against him or her. As a result, the agency will discipline the licensee as they see fit without further notice.

Once a Notice of Defense has been filed, and assuming that there is no possibility for settlement within the licensing agency, the case will proceed to a hearing before an ALJ at the OAH. At this point, it should be noted that it is a mistake to consider an administrative hearing an informal proceeding. A hearing has more in common with a trial than an investigation.

To begin with, whether you are represented by counsel or not, the licensing agency will likely be represented by a Deputy Attorney General from the California Department of Justice. It will be their job to convince the ALJ (there is no jury in an administrative hearing) to adopt a finding that supports the accusations issued by the licensing agency. To accomplish this, they must prove, by clear and convincing evidence, that the allegations in the agency’s accusation are true. The accused licensee has no burden of proof. However, they can present evidence that rebuts the evidence presented by the Deputy Attorney General on the agency’s behalf.

To accomplish this, both sides engage in pre-hearing discovery which helps them gather evidence supporting their respective positions. This includes the exchange of witness information, witness statements and any investigative reports made by the licensing agency regarding the matter.

At the hearing itself, the rules of evidence are somewhat less formal and technical than would be seen at trial. Nevertheless, there are still evidentiary procedures in place. Both sides can introduce relevant evidence, call and examine witnesses and cross-examine opposing witnesses. A licensee has the right to testify on their behalf. However, if they choose not to testify, the attorney for the agency can call them to testify as a hostile witness and cross-examine them as such.

Once all testimony has concluded, the ALJ takes the matter under advisement. Usually, within a month, the ALJ makes a recommendation to the licensing agency in the form of a written proposed decision. The agency then has 100 days to either adopt or reject the ALJ’s proposed decision, in whole or in part. If they reject the decision, they can issue a disciplinary order of their own.

If the licensee disagrees with the agency’s decision, they can appeal the matter to the Superior Court, but, with very limited exceptions, the Court will not hear new evidence. It will only look for legal errors. It is rare that the Superior Court will disagree with either the OAH or the agency involved.

EXPERIENCED HELP WHEN YOU NEED IT MOST

The administrative law behind the administrative hearing process can be complex. If your professional license is at stake, you need an experienced advocate like Joe Hougnon in your corner.  Joe will fight the allegations made against you and use his knowledge of the law to your advantage, protecting your livelihood and your future. Call today for a free and confidential consultation.

Joe Hougnon, Esq.

Answers to all your questions are only a phone call away. Call Now at (916) 730-5251.