Written by attorney Christine C McCall

Can the Result of A Licensing Fair Hearing Ever Be Reversed or Changed?

"Yes!" is the short answer to the question posed in the title of this post.

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 occupational licenses are heard by an Administrative Law Judge, or ALJ, employed by the Office of Administrative Hearings.

In almost all occupational licensing cases, the ALJ is not the ultimate decision-maker. (An important exception are teacher credentialing cases which are heard by a three-person Commission with an ALJ presiding which issues final decisions.) In most kinds of cases, instead, 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.

Agency Review of an ALJ’s Proposed Decision.

Although contested administrative hearings are ordinarily open to the public, agency reviews of proposed decisions are usually conducted in closed (non-public) session. In reviewing an ALJ’s proposed decision, the agency may take any of these 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 minor changes in the proposed decision and adopt it as modified; (4) reject it and refer the case back to the ALJ to take additional evidence and prepare a new proposed decision; 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 allow or ask for additional evidence and may allow additional written or oral argument before the agency makes its decision. If so, those procedures will occur in an open public proceeding.

Once 100 days have passed from the delivery of the proposed decision to the agency, if 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 most 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. It is also possible to obtain a delay—a “stay"—of the effective date of a license revocation or suspension.

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 which might be applicable to other or even 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. 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." The Court does not ordinarily take additional evidence – the judge reviews the record of the evidence admitted at the hearing “below" – 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, but will instead “remand" – send the matter back – to the licensing agency with instructions to correct the error. Sometimes complying with that instruction requires a new hearing or a “re-opening" of the earlier hearing for additional evidence. More often, complying with a remand by the Superior Court results in the agency modifying or reversing its initial decision.

Appeals to the Writs and Receivers Department of Superior Court are by “expedited" process. There is sometimes a substantial delay necessary while the transcript of the evidentiary hearing is 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 Court hearing, the Court will have reviewed the transcript and the exhibits admitted into evidence at the prior hearing. The Court will then allow argument by the attorneys, and then the Court will rule, either orally from the bench or within a few days in a written Order. The hearing takes less than an hour in most cases.

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 may petition the decision-making agency for reinstatement of the license or for relief from any probationary conditions. The licensee 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.

The Bottom Line.

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 qualified licensing counsel is a cost-effective decision to prevent the experience of losing the licensing decision after winning the hearing.

By: License Advocates Law Group LLP:

Michael Claessens, Managing Partner

Robert Cramer, Partner

Christine McCall, Partner

888-406-4020 225 South Lake Avenue, Suite 300 Pasadena, CA 91101

[email protected]

copyright 2011

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