If you’re a licensed professional in California – like a doctor or teacher or real estate broker – your livelihood may be in jeopardy for sustaining certain kinds of criminal convictions.
Authorities across the state are reviewing court records, running fingerprint checks and investigating complaints. Professionals without clean records face license revocation or suspension.
The good news is that professionals have vested interests in their licenses. The board, department or commission that regulates you can’t just take away your license without giving you a chance for a hearing.
Our California Criminal Defense Lawyers can help. We represent people accused of crimes and have experience helping professionals to avoid losing their licenses in disciplinary actions.1 We can help you understand what is going on and get the full benefit of your rights.
This article is about hearings in criminal conviction-related professional discipline cases.2 If you have questions after reading it, we invite you to contact us for a consultation.
This article covers:
(Click on a title to proceed directly to that section)
You might also be interested in reading our related articles about how criminal convictions can impact licenses for the following particular professions:
- California State Employees
- Police Officers
- Real Estate Brokers
- Social Workers
Maybe you caught a few DUI’s or engaged in an out-of-character shoplifting spree. Maybe you did something really stupid involving weapons or narcotics. Maybe you made a mistake and now have things under control.
When it comes to professionals and criminal convictions in California, however, even if you’ve turned things around, fulfilled your probation terms, gotten your case dismissed, etc., past convictions can continue to haunt you.
If you were convicted of a crime that your regulatory board or department considers substantially related to your fitness to do your job, it may be able to revoke or suspend your professional license.
In fact, you might be reading this because you’ve already received an accusation notifying you of conviction-related discipline.3 If you don’t hold a license but have applied for one, you might have received a statement of issues.4
We’ll look at examples of accusation and statement of issues cases in a minute, but in the meantime take note:
- Don’t panic, all is not over and done with. You may have defenses that can make the case go away or minimize the extent of discipline.
- Seriously consider hiring an attorney. You have the right to an attorney (at your expense) in disciplinary proceedings. A lawyer might be able to negotiate a favorable settlement with the licensing authority or persuade an administrative law judge to see things in your favor. A lawyer can help you see the “big picture” and assess how different strategies might lead to different outcomes.
- Keep on top of deadlines and be vigilant. Whether or not you opt for a lawyer, there are decisions you must make and deadlines you must comply with in order to fight your case. For example, you must notify the board within 15 days of receiving an accusation in order to preserve your right to a hearing.5 If you ignore the accusation and fail to respond, the licensing authority might go ahead and revoke your license in a default decision.
Let’s look at examples of discipline cases:
Example (accusation): A Los Angeles registered nurse pleads no contest to domestic violence and making criminal threats following a fight with his wife. He complies with all probation terms and eventually the convictions are expunged.
Meanwhile, he continues his nursing work in the chemotherapy infusion and rapid HIV testing units of a busy medical center. The Board of Registered Nursing finds out about the convictions and sends him an accusation seeking to revoke or suspend his license.
The nurse contests the accusation in a hearing before an administrative law judge. He submits letters of reference from supervisors, doctors and patients attesting to his compassion, trustworthiness and efficiency. He also makes clear that he has made good with the criminal justice system by fulfilling his probation terms and expunging his convictions.
The administrative law judge decides, and the Board of Registered Nursing agrees, that the man has shown rehabilitation. Instead of revoking his license, the Board places him on probation.6
Example (statement of issues): A woman in Northern California applies for a registered dental assistant license. On her application she fails to report past criminal convictions for vehicular manslaughter (PC 192(c)(3)) and driving under the influence.
The Dental Board of California discovers the convictions and sends the woman a statement of issues. The Dental Board does not want to issue her a license because of the convictions and misrepresentations.
But she keeps on top of things and requests a hearing. The administrative law judge looks at the evidence and decides the applicant has demonstrated “genuine remorse” and taken responsibility for her actions.
The Dental Board ends up agreeing with the administrative law judge and issues the applicant a probationary license.7
Just like the nurse and registered dental assistant applicant in our above examples, you are entitled to an administrative hearing in your discipline case in accordance with the Administrative Procedure Act.8
Administrative hearings serve as a “check” on overzealous enforcement efforts. They help ensure an appropriate balance is struck between your right to earn a living and the public’s right to be protected from possibly dangerous professionals.
The administrative hearing process is managed by the Office of Administrative Hearings (the “OAH”), which handles over 10,000 cases a year.
An OAH administrative hearing is like a mini court trial, with opening and closing statements, evidence and witnesses. Hearings take place in special courtrooms in Sacramento, Oakland, Los Angeles and San Diego.9
An administrative law judge (the “ALJ”) presides over the proceedings.10
The ALJ is independent of the licensing authority that is trying to take away (or deny) your license. The ALJ is an experienced lawyer whose job it is to ensure you get a fair trial.
Whether or not you retain counsel, a lawyer (most likely from the California Attorney General’s Office) will make the case for the licensing authority. If you decide to go it alone, you might want to check out OAH’s webpage on “Representing Yourself”.
There is no jury in an administrative hearing.
Burden of proof
As you may know from personal experience (or from television), in a criminal case the prosecutor can only win if he or she proves beyond a reasonable doubt that the defendant committed the crime.
The “burden of proof” – the measure by which a licensing authority must make its case – is less in an administrative case than in a criminal case because less is at stake. Nobody is going to jail.
In the case of an accusation, where a licensing authority is trying to take something away from you, the licensing authority generally must prove by “clear and convincing” evidence that you are not fit to have your professional license.11
In the case of a statement of issues, however, the burden of proof shifts to you. You must prove that you are fit for the license in question.12
Lots of work happens before the actual hearing. It is during this time that parties gather evidence for their cases.
The discovery process is not as complicated in an administrative hearing context as it is in other kinds of trials.13 But you still get access to key materials like:
- the names of witnesses the licensing authority intends to call to testify
- copies of statements relevant to the licensing authority’s case
- investigative reports made by or on behalf of the licensing authority14
Evidence and testimony
The rules regarding evidence and testimony are also less technical in administrative hearings. But you can introduce relevant evidence, call and examine witnesses and cross-examine opposing witnesses.15
You have the right to testify in your own behalf, but even if you choose not to testify the licensing authority can still call you to testify “as if under cross-examination.”16
It is often useful in conviction-related disciplinary hearings to present evidence showing
- that your conviction was for a crime that is not substantially related to your profession
- that you have been rehabilitated from your crime
About a month after the hearing concludes, the ALJ will make a recommendation to the licensing authority about your case. This is called a “proposed decision.”17
The licensing authority then has 100 days to decide whether or not to accept the ALJ’s proposed decision. Often the licensing authority will agree with the ALJ’s proposed decision, just as happened in our above examples with the Board of Registered Nursing and the Dental Board of California.
But it doesn’t always happen that way. Sometimes the licensing authority disagrees with the ALJ and issues a different disciplinary order.
Let’s look at an example:
Example: The Medical Board of California files an accusation against a Los Angeles doctor seeking to discipline him for sustaining three alcohol-related driving convictions. After a hearing, the ALJ decides the doctor should not be disciplined because “no inherent nexus” exists between driving under the influence and the practice of medicine.
But the Medical Board decides not to adopt the ALJ’s decision. Instead, after the parties submit further arguments, the Board revokes the doctor’s license, stays the revocation and places him on probation.
The doctor appeals by asking the trial court to issue a writ of mandate (discussed below) setting aside the Board’s disciplinary order. The trial court denies the writ and an appellate court affirms, finding that the Board’s order was within bounds. The court decides that the doctor can be disciplined for the convictions after all.18
If you’ve gone through the hearing process without success, including a request for a reconsideration of the licensing authority’s order, there may be something else to try.19
You can file a petition for writ of administrative mandate in which you ask the Superior Court to review and reverse the licensing authority’s order.20
This is not a brand new trial. You won’t be “re-trying” your case. It is a special proceeding in which a trial court judge will look everything over to make sure you had a fair hearing.
The judge will also make sure the licensing authority did not “abuse its discretion” by failing to follow the law, by issuing an order unsupported by findings, or by making findings unsupported by evidence.21
Let’s look at an example of a writ of mandate proceeding:
Example: A well-liked real estate salesman applies for a broker’s license. The Department of Real Estate denies the application on the ground that the salesman has a prior conviction for making false statements in connection with unemployment benefits.
After a hearing, the ALJ sides with the Department of Real Estate. The ALJ finds that the denial is justified because the conviction is substantially related to real estate work.
Not giving up, the salesman files a petition for writ of mandate, which an appellate court eventually grants.
The court decides that the ALJ and the Department got things wrong – that the evidence didn’t establish a sufficient relationship between the salesman’s isolated conviction and his ability to perform future broker activity. He could get his license after all.22
Not every case comes out as successfully as this one, but it does illustrate the importance of the hearing process.
The law provides us with legal protections and mechanisms to secure them. What better time to utilize them than now, when your livelihood and reputation is at stake?
Our California Criminal Defense Lawyers Can Help.
If you or a loved one is charged with a crime and has a professional license and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
California Office of Administrative Hearings
1Our California Criminal Defense Lawyers have local offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, San Diego, San Francisco, Torrance, Van Nuys, West Covina, and Whittier.
2The hearing process discussed in this article is generally applicable to many professions governed by the California Business and Professions Code. However, certain professions (such as law and teaching) involve different or additional procedures. It is always a good idea to check with an attorney regarding your particular profession and case.
3California Government Code Section 11503 provides: “A hearing to determine whether a right, authority, license or privilege should be revoked, suspended, limited or conditioned shall be initiated by filing an accusation. The accusation shall be a written statement of charges which shall set forth in ordinary and concise language the acts or omissions with which the respondent is charged, to the end that the respondent will be able to prepare his defense. It shall specify the statutes and rules which the respondent is alleged to have violated, but shall not consist merely of charges phrased in the language of such statutes and rules. The accusation shall be verified unless made by a public officer acting in his official capacity or by an employee of the agency before which the proceeding is to be held. The verification may be on information and belief.”
4California Government Code Section 11504 provides: “A hearing to determine whether a right, authority, license, or privilege should be granted, issued, or renewed shall be initiated by filing a statement of issues. The statement of issues shall be a written statement specifying the statutes and rules with which the respondent must show compliance by producing proof at the hearing and, in addition, any particular matters that have come to the attention of the initiating party and that would authorize a denial of the agency action sought. The statement of issues shall be verified unless made by a public officer acting in his or her official capacity or by an employee of the agency before which the proceeding is to be held. The verification may be on information and belief. The statement of issues shall be served in the same manner as an accusation, except that, if the hearing is held at the request of the respondent, Sections 11505 and 11506 shall not apply and the statement of issues together with the notice of hearing shall be delivered or mailed to the parties as provided in Section 11509. Unless a statement to respondent is served pursuant to Section 11505, a copy of Sections 11507.5, 11507.6, and 11507.7, and the name and address of the person to whom requests permitted by Section 11505 may be made, shall be served with the statement of issues.”
5California Government Code Section 11506 provides: (“(a) Within 15 days after service of the accusation the respondent may file with the agency a notice of defense in which the respondent may: (1) Request a hearing. (2) Object to the accusation upon the ground that it does not state acts or omissions upon which the agency may proceed. (3) Object to the form of the accusation on the ground that it is so indefinite or uncertain that the respondent cannot identify the transaction or prepare a defense. (4) Admit the accusation in whole or in part. (5) Present new matter by way of defense. (6) Object to the accusation upon the ground that, under the circumstances, compliance with the requirements of a regulation would result in a material violation of another regulation enacted by another department affecting substantive rights. (b) Within the time specified respondent may file one or more notices of defense upon any or all of these grounds but all of these notices shall be filed within that period unless the agency in its discretion authorizes the filing of a later notice. (c) The respondent shall be entitled to a hearing on the merits if the respondent files a notice of defense, and the notice shall be deemed a specific denial of all parts of the accusation not expressly admitted. Failure to file a notice of defense shall constitute a waiver of respondent’s right to a hearing, but the agency in its discretion may nevertheless grant a hearing. Unless objection is taken as provided in paragraph (3) of subdivision (a), all objections to the form of the accusation shall be deemed waived. (d) The notice of defense shall be in writing signed by or on behalf of the respondent and shall state the respondent’s mailing address. It need not be verified or follow any particular form. (e) As used in this section, “file,” “files,” “filed,” or “filing” means “delivered or mailed” to the agency as provided in Section 11505.” BUT SEE California Business and Professions Code Section 485, which provides: “Upon denial of an application for a license under this chapter or Section 496, the board shall do either of the following: (a) File and serve a statement of issues in accordance with Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code. (b) Notify the applicant that the application is denied, stating (1) the reason for the denial, and (2) that the applicant has the right to a hearing under Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code if written request for hearing is made within 60 days after service of the notice of denial. Unless written request for hearing is made within the 60-day period, the applicant’s right to a hearing is deemed waived. Service of the notice of denial may be made in the manner authorized for service of summons in civil actions, or by registered mail addressed to the applicant at the latest address filed by the applicant in writing with the board in his or her application or otherwise. Service by mail is complete on the date of mailing.”
6In the Matter of the Accusation Against Charles H. Rosales (RN) Case No. 2010-23.
7In the Matter of the Statement of Issues Against Rhanda Thalina Glasgow (RDA) Case No. DBC-2008 26 and related Proposed Decision of the Administrative Law Judge. This case took a subsequent unfortunate turn. The Board recently filed a petition to revoke probation as a result of a subsequent DUI conviction. See In the Matter of the Accusation and Petition to Revoke Probation Against Rhanda Thalina Glasgow (RDA) DBC 2010-4.
8See California Government Code Section 11370 et seq; California Code of Regulations Title 1, Division 2 (Office of Administrative Hearings). In addition to the hearing provisions discussed in this article, see also the APA’s “Bill of Rights” in California Government Code Section 11425.10 to 11425.60. Section 11425.10 provides: “(a) The governing procedure by which an agency conducts an adjudicative proceeding is subject to all of the following requirements: (1) The agency shall give the person to which the agency action is directed notice and an opportunity to be heard, including the opportunity to present and rebut evidence. (2) The agency shall make available to the person to which the agency action is directed a copy of the governing procedure, including a statement whether Chapter 5 (commencing with Section 11500) is applicable to the proceeding. (3) The hearing shall be open to public observation as provided in Section 11425.20. (4) The adjudicative function shall be separated from the investigative, prosecutorial, and advocacy functions within the agency as provided in Section 11425.30. (5) The presiding officer is subject to disqualification for bias, prejudice, or interest as provided in Section 11425.40. (6) The decision shall be in writing, be based on the record, and include a statement of the factual and legal basis of the decision as provided in Section 11425.50. (7) A decision may not be relied on as precedent unless the agency designates and indexes the decision as precedent as provided in Section 11425.60. (8) Ex parte communications shall be restricted as provided in Article 7 (commencing with Section 11430.10). (9) Language assistance shall be made available as provided in Article 8 (commencing with Section 11435.05) by an agency described in Section 11018 or 11435.15. (b) The requirements of this section apply to the governing procedure by which an agency conducts an adjudicative proceeding without further action by the agency, and prevail over a conflicting or inconsistent provision of the governing procedure, subject to Section 11415.20. The governing procedure by which an agency conducts an adjudicative proceeding may include provisions equivalent to, or more protective of the rights of the person to which the agency action is directed than, the requirements of this section.”
9California Government Code Section 11508 provides: “(a) The agency shall consult the office, and subject to the availability of its staff, shall determine the time and place of the hearing. The hearing shall be held at a hearing facility maintained by the office in Sacramento, Oakland, Los Angeles, or San Diego and shall be held at the facility that is closest to the location where the transaction occurred or the respondent resides. (b) Notwithstanding subdivision (a), the hearing may be held at either of the following places: (1) A place selected by the agency that is closer to the location where the transaction occurred or the respondent resides. (2) A place within the state selected by agreement of the parties. (c) The respondent may move for, and the administrative law judge has discretion to grant or deny, a change in the place of the hearing. A motion for a change in the place of the hearing shall be made within 10 days after service of the notice of hearing on the respondent. Unless good cause is identified in writing by the administrative law judge, hearings shall be held in a facility maintained by the office.”
10California Government Code Section 11502 provides: “(a) All hearings of state agencies required to be conducted under this chapter shall be conducted by administrative law judges on the staff of the Office of Administrative Hearings. This subdivision applies to a hearing required to be conducted under this chapter that is conducted under the informal hearing or emergency decision procedure provided in Chapter 4.5 (commencing with Section 11400). (b) The Director of the Office of Administrative Hearings has power to appoint a staff of administrative law judges for the office as provided in Section 11370.3. Each administrative law judge shall have been admitted to practice law in this state for at least five years immediately preceding his or her appointment and shall possess any additional qualifications established by the State Personnel Board for the particular class of position involved.”
11Ettinger v. Board of Medical Quality Assurance, 135 Cal.App.3d 853, 856 (1982) [writ of mandate granted in case involving incorrect burden of proof used in administrative hearing on doctor license revocation] (“The purpose of an administrative proceeding concerning the revocation or suspension of a license is not to punish the individual; the purpose is to protect the public from dishonest, immoral, disreputable or incompetent practitioners. Since it is apparent that the underlying purpose of disciplining both attorneys and physicians is protection of the public, it would be anomalous to require a higher degree of proof in disciplinary hearings involving attorneys or real estate agents than in hearings involving physicians. Accordingly, we hold that the proper standard of proof in an administrative hearing to revoke or suspend a doctor’s license should be clear and convincing proof to a reasonable certainty and not a mere preponderance of the evidence.” Internal citations and quotations omitted). SEE ALSO In the Matter of the Accusation Against Richard O. Castaneda (TCH) Case No. 3121 [pharmacy technician license revoked after several convictions and probation violations] (In the Proposed Decision, the ALJ notes: “Neither of the parties cited, nor has the ALJ been able to find, any authority specifically addressing the standard of proof to be applied in disciplinary proceedings against pharmacy technicians. More generally, however, courts have typically drawn a distinction between professional and nonprofessional licenses. With regard to nonprofessional licenses, a preponderance of the evidence standard applies. With regard to professional licenses, the standard is clear and convincing evidence standard to a reasonable certainty. The evidence reflects that a substantial amount of training (i.e., hours of experience) is required in order for an individual to become a pharmacy technician. Complainant’s counsel agreed that the clear and convincing evidence standard applies. It is so concluded. The key element of clear and convincing evidence is that it must establish a high probability of the existence of the disputed fact, greater than proof by a preponderance of the evidence. This standard is less stringent than proof beyond a reasonable doubt. Clear and convincing evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt and sufficiently strong to command the unhesitating assent of every reasonable mind.” Internal citations and quotations omitted)
12California Government Code Section 11504, supra; See also OAH webpage on Representing Yourself: “In a Statement of Issues, the burden is on you to prove your side. If you are applying for a license, you must prove you meet the qualifications for that license.”
13See CEB Professional Licensing: Disciplinary Practice in California, 1.14 (“The procedures of administrative license discipline cases also differ sharply from those of criminal and other civil cases. A license discipline case is intended to be an expedited proceeding without the pretrial motions and extensive discovery of a civil tort case. Absent unusual circumstances, discovery is limited to document production and subpoenas.”)
14California Government Code Section 11507.5 provides: “The provisions of Section 11507.6 provide the exclusive right to and method of discovery as to any proceeding governed by this chapter.” California Government Code Section 11507.6 provides: “After initiation of a proceeding in which a respondent or other party is entitled to a hearing on the merits, a party, upon written request made to another party, prior to the hearing and within 30 days after service by the agency of the initial pleading or within 15 days after the service of an additional pleading, is entitled to (1) obtain the names and addresses of witnesses to the extent known to the other party, including, but not limited to, those intended to be called to testify at the hearing, and (2) inspect and make a copy of any of the following in the possession or custody or under the control of the other party: (a) A statement of a person, other than the respondent, named in the initial administrative pleading, or in any additional pleading, when it is claimed that the act or omission of the respondent as to this person is the basis for the administrative proceeding; (b) A statement pertaining to the subject matter of the proceeding made by any party to another party or person; (c) Statements of witnesses then proposed to be called by the party and of other persons having personal knowledge of the acts, omissions or events which are the basis for the proceeding, not included in (a) or (b) above; (d) All writings, including, but not limited to, reports of mental, physical and blood examinations and things which the party then proposes to offer in evidence; (e) Any other writing or thing which is relevant and which would be admissible in evidence; (f) Investigative reports made by or on behalf of the agency or other party pertaining to the subject matter of the proceeding, to the extent that these reports (1) contain the names and addresses of witnesses or of persons having personal knowledge of the acts, omissions or events which are the basis for the proceeding, or (2) reflect matters perceived by the investigator in the course of his or her investigation, or (3) contain or include by attachment any statement or writing described in (a) to (e), inclusive, or summary thereof. For the purpose of this section, “statements” include written statements by the person signed or otherwise authenticated by him or her, stenographic, mechanical, electrical or other recordings, or transcripts thereof, of oral statements by the person, and written reports or summaries of these oral statements. Nothing in this section shall authorize the inspection or copying of any writing or thing which is privileged from disclosure by law or otherwise made confidential or protected as the attorney’s work product.”
15California Government Code Section 11513 provides: “(a) Oral evidence shall be taken only on oath or affirmation. (b) Each party shall have these rights: to call and examine witnesses, to introduce exhibits; to cross-examine opposing witnesses on any matter relevant to the issues even though that matter was not covered in the direct examination; to impeach any witness regardless of which party first called him or her to testify; and to rebut the evidence against him or her. If respondent does not testify in his or her own behalf he or she may be called and examined as if under cross-examination. (c) The hearing need not be conducted according to technical rules relating to evidence and witnesses, except as hereinafter provided. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in civil actions. (d) Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but over timely objection shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. An objection is timely if made before submission of the case or on reconsideration. (e) The rules of privilege shall be effective to the extent that they are otherwise required by statute to be recognized at the hearing. (f) The presiding officer has discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time.”
16See CEB Professional Licensing, supra, 6.41 (“Although a licensing agency has the right to call the licensee to testify, that does not abrogate the licensee’s rights under the Fifth Amendment to the Constitution. The licensee can refuse to testify concerning matters that could lead to criminal exposure.”)
17California Government Code Section 11517 provides: “(a) A contested case may be originally heard by the agency itself and subdivision (b) shall apply. Alternatively, at the discretion of the agency, an administrative law judge may originally hear the case alone and subdivision (c) shall apply. (b) If a contested case is originally heard before an agency itself, all of the following provisions apply: (1) An administrative law judge shall be present during the consideration of the case and, if requested, shall assist and advise the agency in the conduct of the hearing. (2) No member of the agency who did not hear the evidence shall vote on the decision. (3) The agency shall issue its decision within 100 days of submission of the case. (c) (1) If a contested case is originally heard by an administrative law judge alone, he or she shall prepare within 30 days after the case is submitted to him or her a proposed decision in a form that may be adopted by the agency as the final decision in the case. Failure of the administrative law judge to deliver a proposed decision within the time required does not prejudice the rights of the agency in the case. Thirty days after the receipt by the agency of the proposed decision, a copy of the proposed decision shall be filed by the agency as a public record and a copy shall be served by the agency on each party and his or her attorney. The filing and service is not an adoption of a proposed decision by the agency. (2) Within 100 days of receipt by the agency of the administrative law judge’s proposed decision, the agency may act as prescribed in subparagraphs (A) to (E), inclusive. If the agency fails to act as prescribed in subparagraphs (A) to (E), inclusive, within 100 days of receipt of the proposed decision, the proposed decision shall be deemed adopted by the agency. The agency may do any of the following: (A) Adopt the proposed decision in its entirety. (B) Reduce or otherwise mitigate the proposed penalty and adopt the balance of the proposed decision. (C) Make technical or other minor changes in the proposed decision and adopt it as the decision. Action by the agency under this paragraph is limited to a clarifying change or a change of a similar nature that does not affect the factual or legal basis of the proposed decision. (D) Reject the proposed decision and refer the case to the same administrative law judge if reasonably available, otherwise to another administrative law judge, to take additional evidence. If the case is referred to an administrative law judge pursuant to this subparagraph, he or she shall prepare a revised proposed decision, as provided in paragraph (1), based upon the additional evidence and the transcript and other papers that are part of the record of the prior hearing. A copy of the revised proposed decision shall be furnished to each party and his or her attorney as prescribed in this subdivision. (E) Reject the proposed decision, and decide the case upon the record, including the transcript, or upon an agreed statement of the parties, with or without taking additional evidence. By stipulation of the parties, the agency may decide the case upon the record without including the transcript. If the agency acts pursuant to this subparagraph, all of the following provisions apply: (i) A copy of the record shall be made available to the parties. The agency may require payment of fees covering direct costs of making the copy. (ii) The agency itself shall not decide any case provided for in this subdivision without affording the parties the opportunity to present either oral or written argument before the agency itself. If additional oral evidence is introduced before the agency itself, no agency member may vote unless the member heard the additional oral evidence. (iii) The authority of the agency itself to decide the case under this subdivision includes authority to decide some but not all issues in the case. (iv) If the agency elects to proceed under this subparagraph, the agency shall issue its final decision not later than 100 days after rejection of the proposed decision. If the agency elects to proceed under this subparagraph, and has ordered a transcript of the proceedings before the administrative law judge, the agency shall issue its final decision not later than 100 days after receipt of the transcript. If the agency finds that a further delay is required by special circumstance, it shall issue an order delaying the decision for no more than 30 days and specifying the reasons therefor. The order shall be subject to judicial review pursuant to Section 11523. (d) The decision of the agency shall be filed immediately by the agency as a public record and a copy shall be served by the agency on each party and his or her attorney.”
18Griffiths v. Superior Court of Los Angeles, 96 Cal.App.4th 757, 770 (2002) (“Convictions involving alcohol consumption reflect a lack of sound professional and personal judgment that is relevant to a physician’s fitness and competence to practice medicine. Alcohol consumption quickly affects normal driving ability, and driving under the influence of alcohol threatens personal safety and places the safety of the public in jeopardy. It further shows a disregard of medical knowledge concerning the effects of alcohol on vision, reaction time, motor skills, judgment, coordination and memory, and the ability to judge speed, dimensions, and distance. Driving while under the influence of alcohol also shows an inability or unwillingness to obey the legal prohibition against drinking and driving and constitutes a serious breach of a duty owed to society..In relation to multiple convictions involving driving and alcohol consumption, we reject the argument that a physician can seal off or compartmentalize personal conduct so it does not affect the physician’s professional practice. For a nexus to exist between the misconduct and the fitness or competence to practice medicine, it is not necessary for the misconduct forming the basis for discipline to have occurred in the actual practice of medicine.” Internal citations and quotations omitted). See also various disciplinary records in connection with In the Matter of the Accusation Against Cadvan O. Griffiths (MD) No D- 5673. NOTE that the doctor’s discipline appears to be over and done with. See “Corrected” Order Restoring License to Clear Status Following Completion of Probation.
19As to reconsideration, California Government Code Section 11521 provides: “(a) The agency itself may order a reconsideration of all or part of the case on its own motion or on petition of any party. The agency shall notify a petitioner of the time limits for petitioning for reconsideration. The power to order a reconsideration shall expire 30 days after the delivery or mailing of a decision to a respondent, or on the date set by the agency itself as the effective date of the decision if that date occurs prior to the expiration of the 30-day period or at the termination of a stay of not to exceed 30 days which the agency may grant for the purpose of filing an application for reconsideration. If additional time is needed to evaluate a petition for reconsideration filed prior to the expiration of any of the applicable periods, an agency may grant a stay of that expiration for no more than 10 days, solely for the purpose of considering the petition. If no action is taken on a petition within the time allowed for ordering reconsideration, the petition shall be deemed denied. (b) The case may be reconsidered by the agency itself on all the pertinent parts of the record and such additional evidence and argument as may be permitted, or may be assigned to an administrative law judge. A reconsideration assigned to an administrative law judge shall be subject to the procedure provided in Section 11517. If oral evidence is introduced before the agency itself, no agency member may vote unless he or she heard the evidence.” SEE ALSO California Government Code Section 11523, regarding the intersection of reconsideration and mandamus (“Judicial review may be had by filing a petition for a writ of mandate in accordance with the provisions of the Code of Civil Procedure, subject, however, to the statutes relating to the particular agency. Except as otherwise provided in this section, the petition shall be filed within 30 days after the last day on which reconsideration can be ordered. The right to petition shall not be affected by the failure to seek reconsideration before the agency. On request of the petitioner for a record of the proceedings, the complete record of the proceedings, or the parts thereof as are designated by the petitioner in the request, shall be prepared by the Office of Administrative Hearings or the agency and shall be delivered to the petitioner, within 30 days after the request, which time shall be extended for good cause shown, upon the payment of the cost for the preparation of the transcript, the cost for preparation of other portions of the record and for certification thereof. The complete record includes the pleadings, all notices and orders issued by the agency, any proposed decision by an administrative law judge, the final decision, a transcript of all proceedings, the exhibits admitted or rejected, the written evidence and any other papers in the case. If the petitioner, within 10 days after the last day on which reconsideration can be ordered, requests the agency to prepare all or any part of the record, the time within which a petition may be filed shall be extended until 30 days after its delivery to him or her. The agency may file with the court the original of any document in the record in lieu of a copy thereof. If the petitioner prevails in overturning the administrative decision following judicial review, the agency shall reimburse the petitioner for all costs of transcript preparation, compilation of the record, and certification.”)
20California Code of Civil Procedure Section 1094.5 (a) provides: “(a) Where the writ is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer, the case shall be heard by the court sitting without a jury. All or part of the record of the proceedings before the inferior tribunal, corporation, board, or officer may be filed with the petition, may be filed with respondent’s points and authorities, or may be ordered to be filed by the court. Except when otherwise prescribed by statute, the cost of preparing the record shall be borne by the petitioner. Where the petitioner has proceeded pursuant to Section 68511.3 of the Government Code and the Rules of Court implementing that section and where the transcript is necessary to a proper review of the administrative proceedings, the cost of preparing the transcript shall be borne by the respondent. Where the party seeking the writ has proceeded pursuant to Section 1088.5, the administrative record shall be filed as expeditiously as possible, and may be filed with the petition, or by the respondent after payment of the costs by the petitioner, where required, or as otherwise directed by the court. If the expense of preparing all or any part of the record has been borne by the prevailing party, the expense shall be taxable as costs.”
21California Code of Civil Procedure Section 1094.5 (b) through (f) provides: “(b) The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence. (c) Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence. In all other cases, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record. (d) Notwithstanding subdivision (c), in cases arising from private hospital boards or boards of directors of districts organized pursuant to The Local Hospital District Law, Division 23 (commencing with Section 32000) of the Health and Safety Code or governing bodies of municipal hospitals formed pursuant to Article 7 (commencing with Section 37600) or Article 8 (commencing with Section 37650) of Chapter 5 of Division 3 of Title 4 of the Government Code, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record. However, in all cases in which the petition alleges discriminatory actions prohibited by Section 1316 of the Health and Safety Code, and the plaintiff makes a preliminary showing of substantial evidence in support of that allegation, the court shall exercise its independent judgment on the evidence and abuse of discretion shall be established if the court determines that the findings are not supported by the weight of the evidence. (e) Where the court finds that there is relevant evidence that, in the exercise of reasonable diligence, could not have been produced or that was improperly excluded at the hearing before respondent, it may enter judgment as provided in subdivision (f) remanding the case to be reconsidered in the light of that evidence; or, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, the court may admit the evidence at the hearing on the writ without remanding the case. (f) The court shall enter judgment either commanding respondent to set aside the order or decision, or denying the writ. Where the judgment commands that the order or decision be set aside, it may order the reconsideration of the case in the light of the court’s opinion and judgment and may order respondent to take such further action as is specially enjoined upon it by law, but the judgment shall not limit or control in any way the discretion legally vested in the respondent.” REGARDING stays of administrative orders, see California Code of Civil Procedure Section 1094.5 (g) through (j).
22 Pieri v. Fox, 96 Cal.App.3d 802, 806 (1979) (“In short, there is a total lack of evidence to support the finding that the misdemeanor offense committed in 1974 was substantially related to the 1978 qualifications of Mr. Pieri as a real estate broker. All evidence points to an opposite conclusion.”)