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Responding to an Accusation from a California Public Licensing Agency In an Administrative Disciplinary Proceeding Seeking Revocation or Suspension of a Professional License

In California, a number of State government licensing Agencies, Departments and Boards such as the Contractors State License Board, the Department of Real Estate, Architects’ Board, Department of Insurance, Board of Registration for Engineers and Land Surveyors, Structural Pest Control Board, Board of Accountancy, and other State Agencies and Boards which issue professional Licenses to individuals or businesses typically have the power to initiate more serious disciplinary proceedings against their Licenses by filing a legal pleading entitled on “Accusation” and serving it on their Licenses, such as contractors, real estate agents, engineers, etc.

In the “Accusation” the licensing Board or Agency typically lists actions taken by the Licensee which are alleged to have violated specific laws or regulations governing that sort of professional License, usually listing names, dates, and legal provisions claimed to have been violated.

The service of an Accusation on a professional Licensee is a very serious matter, and should not be taken lightly.

It is usually best to at least immediately consult with an experienced professional licensing attorney with experience in administration hearings in such matters, so you do not in advertently waive rights to an administrative hearing, discovery of information supporting, the government ‘s case against you.

You can easily lose these rights if you fail to act in a proper manner, immediately after being served with an Accusation.

You need to respond to the Accusation in a timely and proper manner, file a Notice of Defense to the Accusation, usually within 15 days, and request a hearing.

If you fail to do this in a proper and timely manner, the Agency will consider that you have defaulted - and that you have effectively conceded the correctness of the allegations made against you - and proceed to revoke or suspend your license or impose other discipline against you, without further prior notice to you. Although you will later get notice of their decision, that may be too late to object to their decision.

The Notice of Defense can also raise certain legal issues, attack the legal sufficiency of the Accusation, raise Affirmative Defenses such as the Statute of Limitations, Estoppel, Laches/prejudicial delay in bringing the Accusation, Entrapment, various Constitutional defenses, etc

While such disciplinary cases can sometimes be settled within licensing agency after filing a Notice of Defense or while the or Agency is investigating the case (such as by dismissal, some agreed discipline, accepting a probationary Licenses, etc ), with or without a Settlement conference before an Administrative Law Judge, better results are typically obtained with the assistance of experienced legal Counsel, as it would be unlikely for a Licensing Agency or to abandon its case entirely or settle for some nominal discipline without some strong evidence or legal arguments being made on your behalf.

By filing on Accusation, the Agency has already decided, with the assistance of its legal counsel, that it believes it has good grounds to seek the suspension or revocation of your License, or to impose other discipline upon you.

If the case cannot be settled or otherwise resolved, and if you have timely requested a hearing, the case will proceed to an evidentiary hearing before a State Administrative Law Judge (“ALJ”), to hear the evidence and legal arguments against you and render an initial recommendation regarding your discipline based on the evidence.

In a licensing proceeding the Licensee is entitled to Due Process of Law, which means notice of the accusations against you and a right to present your side of the case and opposing evidence at some kind of a “hearing”. But this is not necessarily the same kind of hearing you would get in a regular court, with full discovery and rights to appeal, etc.

But the administrative hearing before the ALJ is much like or somewhat similar to a trial before a judge in Superior Court, but there are some differences.

Although the proceedings may seen slightly less formal than in Superior Court, do not be deceived or lulled into failing to adequately prepare witnesses, evidence, and legal briefs by this somewhat more informal environment!!

This is thus not typically a kind of hearing where you can easily go to on your own, and simply “tell your story” to the ALJ.

The State Board or Agency will be represented by its attorney or the Attorney General, and will be very well organized and prepared with exhibits and witnesses and legal briefs to present to the ALJ.

You must also respond in kind, with your own witnesses, evidence and legal arguments,

Letters from witnesses usually will not be considered sufficient evidence, except possibility in mitigation of or to reduce the penalty or discipline to be imposed, but not to rebut other evidence of your guilt offered per the Rules of Evidence.

After the hearing the parties both may submit closing legal briefs, or closing arguments, and the ALJ later renders a written recommended decision

The government licensing Agency or Board then considers the factual findings and recommendations of the ALJ, and can accept or reject them in whole or in part in imposing a disciplinary order, including possible penalties, restitution requirements, License suspension or revocation, etc.

This Board’s decision or order can be reviewed in Superior Court before a regular judge, but there the Judge will only look to see if there were legal errors, or if the transcript of the hearings before the ALJ include some evidence supporting the Agency’s decision.

Except in unique situations you usually cannot introduce new evidence, or make new legal arguments in Superior Court that you could have been presented to the ALJ at or before the administrative hearing, but did not.

All legal arguments and evidence thus usually need to be first raised in the hearings before the ALJ, with a few very limited exceptions.

These Board or Agency decisions are rarely overturned by the Superior Court.

Thus, if you proceed to an administrative hearing before on ALJ, you therefore must do your absolute best to present all possible evidence and legal arguments there, as you likely will not be given a second chance to do so later in Superior Court.

Usually it is quite difficult to raise a successful defense and present your case effectively before an ALJ without the assistance of experienced legal counsel

If your License has been revoked, you may still have an opportunity to reapply or Petition for reinstatement after a period of time or years has elapsed, which reinstatement is usually conditioned on proving good conduct in the meanwhile and “rehabilitation”, which is often defined by Agency or Board regulations.

If you are denied, reinstatement you can typically again request a hearing before an ALJ to prove your good character. Unlike the case with a disciplinary proceeding, where the Licensing Board or Agency has the Burden of Proof, in reinstatement hearings the Licensee has the Burden of Proof.

Sometimes a License may be reinstated subject to certain conditions, or on a probationary basis for a period of time.

N.B. The contents of this Article do not constitute legal advice or create an attorney-client relationship, and you may not rely on it without seeking legal advice regarding your particular situation and contract from a competent government contracts lawyer or public works contract attorney. Please also note that statutes and case law are frequently changing and these materials may become outdated. For further information on this topic and how the current law may apply to your particular project and issues, Contact Us via email, phone (415)788-1881 or visit our website at www.wolfflaw.com.