The Intersection of Criminal and Administrative Law

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Presentation given by Simas & Associates, Ltd. on March 6, 2013 for the San Mateo County Bar Association Private Defender's Panel.

Presentation given by Simas & Associates, Ltd. on March 6, 2013 for the San Mateo County Bar Association Private Defender's Panel.

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  • We could add another couple of bulbs in this section. I was thinking combination of function, fair hearing process, etc. Let me know what you think.


  • 1. San Mateo County BarAssociation PrivateDefender PanelThe Intersection of Criminal and Administrative LawMarch 6, 2013, 12:00 PMSteven L. Simas and Justin D. Hein
  • 2. Presenters• Steven L. Simas, Esq. – • Owner and Founder of Simas & Associates, Ltd. • Former Deputy Attorney General, Office of the Attorney General • Practicing Administrative and Professional Licensing Law since 2002• Justin D. Hein, Esq. – • Managing Attorney at Simas & Associates, Ltd. since 2011
  • 3. Intersection of Criminal and Administrative Law• Summary Overview 1. Administrative Process and Hearing Overview 2. Substantially Related to the Profession 3. Common Procedural Complexities• Overall Goals of Presentation • Obtain a better understanding of the overlap. • How best to advise clients on what to expect. • When negotiating plea bargains, recognizing the impact and giving it appropriate weight (even if client does not). • Consult with an experienced administrative law attorney when dealing with complexities of a particular charge.
  • 4. Administrative Process and Hearing Overview • Constitutions (U.S., California) Law Governing • Administrative Procedure Act (Government Code §§ 11400, et al.) • California Code of Regulations Administrative • Business & Professions Code • Evidence Code Adjudicative • Code of Civil Procedure • California Rules of Professional Conduct Process • Precedential Decisions – within an Executive Agency • Case Law – California Judicial Branch Beyond • Rulemaking • Discretionary and Ministerial Acts Administrative • Public Records Act • Government Claims Act • Open Meetings Law Adjudication • Fair Political Process
  • 5. Administrative Process and Hearing Overview (Background)Bodies Subject to • Executive Agencies Administrative • Local, Municipal, Regional Government • Some Private Entities engaged in Public Function AdjudicationBodies Not Subject • Legislature • Office of the Governor to Administrative • Judicial Branch Adjudication • Courts • Office of Administrative Hearings • Administrative Law Judges (ALJs)Adjudicating Body • 4 offices – Sacramento, Los Angeles, Oakland, San Diego •
  • 6. Administrative Process and Hearing Overview (Pre-Charge)Investigation by State Agency Interview of Charging Document –•Government Code § 11180 Licensee/Applicant Accusation/Statement of•Triggered by Consumer Complaint, Tip •More common in Issues from Other Agency, Database, Self- complicated, substantive types of •Should indicate jurisdiction. Reporting. licensing discipline. •Should indicate statutes and regulations•Could exceed 2 years. •Recorded, under oath. alleged to have been violated.•Oftentimes can involve an Audit. •Right to invoke 5th Amendment Privilege •Should indicate standard of conduct•Licensee has a duty to cooperate. Against Self-Incrimination. breached. •Disciplinary Guidelines are found in Regulations. •Might include a Temporary Suspension Order on Licensed Activity.
  • 7. Administrative Process and Hearing Overview (Continued– Pre-Hearing Process)Notice of Defense Discovery – Documents, Pre-Hearing Settlement•15 days (+5 if served via mail) to Subpoenas, Limited Conference Statement respond. Depositions •Conference usually 30 days in•Can file general denial, but then •Can file motions to compel, motions advance of hearing. waive rights to affirmative defenses, to quash, motions in limine. •Provide ALJ with background on demurrer. case, identify evidentiary/witness •OAH cannot impose sanctions but•Can file late special notice with can certify facts to present to issues, attempts to settle. Agency permission (Gov. Code § Superior Court. 11506(b).)•Default – agency can take license discipline without hearing.
  • 8. Administrative Process and Hearing Overview (Continued– Hearing Process)Pre-Hearing Expert Witness AdministrativeSettlement Disclosure HearingConference • More common in cases • Executive Agency (in• 2-4 hours. involving substantive types licensing matters) has the of licensing discipline. burden of proof.• Licensee and individual with settlement authority • More often than not make • Present exculpatory from agency must be or break the case. evidence and evidence of present. rehabilitation.
  • 9. Administrative Process and Hearing Overview (Continued– Decision Process)Closing Arguments ALJ’s Decision Agency Adoption• Sometimes given opportunity to • Must define jurisdiction. • Executive Agency and/or its present closing arguments after • Must determine whether the Executive Director has the review of administrative record alleged misconduct took place discretion to adopt, adopt with and transcript. (beyond a preponderance or modification, or decline to clear and convincing). adopt ALJ’s decision. • Must take into consideration all • Could set a new hearing or rehabilitation, mitigating, and decide matter on its own. character evidence presented.
  • 10. Administrative Process and Hearing Overview (Continued – Post-Hearing Process)Petition for Petition for Writ of Petition for ReinstatementReconsideration Administrative (or or Modification of•Attempt to present any other Traditional Mandate) in Probation type of evidence or argument Superior Court •An attempt to demonstrate that was improperly denied or overwhelming evidence of prevented at hearing. •Judicial review of the administrative adjudication. Rehabilitation and Correction,•Vehicle to set aside defaults. enough to warrant a reduction in •Often coupled with an ex parte•Must be done shortly after Request for Stay. discipline imposed. Notice of Adoption of ALJs Decision.
  • 11. Administrative Process and Hearing Overview (Differences in Common Charging Documents)• Statement of Issues • Denial of a license application.• Citations • Business & Professions Code § 125.9 • Fine, Order of Abatement, Order of Correction • Compare to a traffic ticket or ordinance violation – a statutorily recognized alternative to disciplinary proceedings • Nevertheless, can be contested via administrative hearing• Accusations • Revocation, suspension, or restriction of an already issued license.• Petition to Revoke Probation or Restricted License • Type of pleading used to impose a previously ordered discipline that had been stayed pending suspension, probation, or the completion of some specified form of education, rehabilitation.• Temporary Suspension Orders • “permitting the licensee to continue to engage in the licensed activity will endanger the public health, safety, or welfare” • Interim Suspension Order – Administrative • Business & Professions Code § 494; Government Code § 11529 • If without notice, a hearing must be held on Accusation within 20 days. • Temporary Restraining Order – Judicial • Business & Profession Code §§ 125.5 – 127.8 • Hearing must be held on Accusation within 30 days after issuance.
  • 12. Administrative Process and Hearing Overview (Differences in Types of Discipline)• Determination of Appropriate Penalty • Mandated by Statute • Prior Decisions – accessible through Public Records Act • Disciplinary Guidelines • Rehabilitation Criteria• Types of Discipline • Revocation • License Surrender • Suspension • Probation (Restricted License, Stayed Revocation) • Public Reproval • Civil Penalties/Fines • Mandatory Restitution • Cost Recovery • Training, Education • Therapy or Treatment
  • 13. Substantially Related to the Profession• May deny, suspend, or revoke a license on the ground that the applicant or licensee has been convicted of a crime, if the crime is substantially related to the qualifications, functions, or duties of the business or profession for the license sought or for which the license was issued. (Business & Professions Code §§ 480, 490.) • Typically includes: • Almost all felonies • Crimes of “moral turpitude” – domestic violence, dishonesty, sexual misconduct, controlled substance abuse. • Does not require that the crime be committed while the licensee or applicant was engaged in licensed activities. • Can look beyond the “conviction” to the underlying conduct that led to the conviction (Lone Star Sec. & video, Inc. v. Bureau of Sec. & Investigative Servs. (2009) 176 Cal.App.4th 1249, 1256): • “Disturbing the Peace” was considered substantially related to the profession when a licensed alarm manager drew his weapon without proper cause in violation of Business & Professions Code § 7597.3(c). Evidence that the licensee, armed with a rifle, chased a woman down a residential street at 10:00 p.m. and then held her at gunpoint because he saw her tearing fliers off his company sign trailer was sufficient to support the finding.• Importance in designation is that the conviction itself is sufficient proof of guilt – there is no need to re-litigate the issue of guilt. (Arneson v. Fox (1980) 28 Cal.3d 440, 447.)
  • 14. Substantially Related to the Profession (Further Background)Agency Requirements • Must set out the “substantial relationship” criterion within its regulations (Bus. & Prof. Code § 481.) • Must include a general definition. • Licensing agencies do not "enjoy unfettered discretion to determine on a case-by- case basis whether a given conviction is substantially related to the relevant professional qualifications" but must instead rely on their written criteria. (Donaldson v. Department of Real Estate (2005) 134 Cal.App.4th 948, 955.) • List of violations presumed to be “substantially related”.Disproving Substantial Relationship • Review the statutes, regulations, disciplinary guidelines. • Determine the definition of what is “substantially related”. • Find the list of crimes that fit that definition or are specified. • Examine facts of what is alleged, charged, convicted, and what is the profession. • Produce Expert Witness Testimony.
  • 15. Substantially Related to the Profession (Convictions)What Constitutes a Conviction? • Bus. & Prof. Code §§ 480, 490 • Defined as a plea or verdict of guilty • Pleas and verdicts of “guilty” are presumed to permit the issuance of license discipline, even in the absence of an authorizing statute, as they are a "reliable indicator of actual guilt" to support a disciplinary charge. (Cartwright v. Board of Chiropractic Examrs (1976) 16 Cal.3d 762, 773.) • OR a conviction following a plea of nolo contendere (no contest). • Only if a specific statute so provides. “A nolo contendere plea does not constitute a conviction absent a legislative determination that such pleas and convictions are sufficiently reliable indicators of guilt to warrant disciplinary measures for protection of the public." (Id. at 774.) • Most licensing agencies’ statutes so provide.What does not Constitute a Conviction? • Acquittal – but does not serve as Res judicata or collateral estoppel given the higher standard of proof in criminal cases. • Arrest
  • 16. Substantially Related to the Profession (Convictions)Expungement • Dismissal of a conviction under Penal Code § 1203.4 does not prevent a licensing agency from bringing a disciplinary action based on the conviction. (Bus. & Prof. Code § 490(c); Krain v. Medical Bd. (1999) 71 Cal.App.4th 1416, 1420 [agency may take disciplinary action based on expunged conviction unless statute provides otherwise].) • An expungement may be relevant to a license discipline case as evidence of mitigation or rehabilitation. (See, e.g., 16 Cal Code Regs § 99.1(5) [Board of Accountancy will consider evidence of expungement proceedings in evaluating licensees rehabilitation].) Several agencies are required by law to "give special consideration" to applicants whose convictions have been dismissed pursuant to Penal Code § 1203.4.Substance Abuse Conviction Notwithstanding Drug Diversion • A licensing agency may bring disciplinary action even if the licensee successfully completes a drug diversion program as part of a criminal case under Penal Code § 1000.5 (Bus. & Prof. Code § 492).
  • 17. Procedural Complexities Right to •No constitutional guarantee of representation in administrative proceedings. (Borror v. Department of Inv. (1971) 15 Cal.App.3d 531.) •No constitutional guarantee of effective counsel in administrative proceedings. Counsel (White v Board of Med. Quality Assur. (1982) 128 Cal.App.3d 699, 707.) •An administrative hearing is generally not continued or abated when a criminal action based on the same facts is pending against the same party. (Savoy Club v. Board of Supervisors (1970) 12 Cal.App.3d 1034, 1038.) •Because administrative proceedings involving license revocation are not criminalContinuances in nature but are set up by the legislature to protect the public, it would frustrate the legislative intent to abate the administrative proceeding until the conclusion of the criminal action. (Funke v. DMV (1969) 1 Cal.App.3d 449.) •An agency or administrative law judge (ALJ) does not have to grant a continuance because counsel is not available on the date set for the hearing. (Givens v. Department of Alcoholic Beverage Control (1959) 176 Cal.App.2d 529.)
  • 18. Procedural Complexities (Continued) •When an administrative remedy is required by statute or by rule of the agency involved, the aggrieved party must use that procedure or remedy before seekingExhaustion of any other remedy, such as direct review by a superior court. (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280.)Administrative •This is a jurisdictional prerequisite, not a matter of judicial discretion. (Palmer v. Regents of Univ. of Cal. (2003) 107 Cal.App.4th 899.) •Exhaustion of administrative remedies also applies when an agency establishes Remedies an internal grievance mechanism (Palmer v. Regents of Univ. of Cal. (2003) 107 Cal.App.4th 899), and to proceedings such as hospital peer review. (Kaiser Found. Hosp. v Superior Court (Dennis-Johnson) (2005) 128 Cal.App.4th 85.) •Res judicata, also known as claim preclusion, may preclude the subsequent litigation of a claim litigated and decided in a previous proceeding. Collateral Res Judicata estoppel, also known as issue preclusion, prevents relitigation of an issue decided in the first proceeding even though the claim in the subsequent proceeding may be different from the first.and Collateral •Works both ways: •favorable decision in an administrative proceeding may be used by the licensee Estoppel in a civil or criminal case. •negative decision in a civil or criminal proceeding may be used against the licensee in his or her administrative proceeding.
  • 19. Procedural Complexities (Continued) •In some circumstances, the combination of function (investigatory, prosecutory, adjudicatory) within a single agency may violate due process and the fair hearingCombination process. •When same person(s) who investigated, bring the charges or are involved in the adjudicative function. (Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108 of Function Cal.App.4th 81, 95.) •Composition of the decision-making body are not competent or unbiased according to statute. (American Motors Sales Corp. v. New Motor Vehicle Bd. (1977) 69 Cal.App.3d 983, 991.) •The basic guarantee a licensee is provided – a fair hearing. •The principles of due process determine whether the hearing granted by anFair Hearing agency was fair. Additional procedural requirements are sometimes provided in the statutes governing particular agencies, and these statutes should be consulted. State statutes, however, cannot take away federal protections. Process •It varies, given the factual circumstances. •It does not require any particular form of notice or method of procedure; all that is required is reasonable notice and a reasonable opportunity to be heard.
  • 20. Procedural Complexities (Continued) Use of •Evidence of a statement made at another time or place than by the witness testifying at the hearing and offered to prove the truth of the matter stated. (Evid. Code § 1200.) •Includes the following types:Administrative •Transcript of telephone call to Police Department (Melkonians v. Los Angeles County Civil Serv. Commn (2009) 174 Cal.App.4th 1159, 1170.); •Examination reports from a sister state containing allegations of misconduct; Hearsay •Verified civil complaint; •Administrative Hearsay evidence is permitted into Evidence, when supplementing or explaining other evidence. (Gov. Code § 11513(d); Berg v. Davi (2005) 130 Cal.App.4th 223.) Evidence •Cannot be the sole evidence upon which a finding is based. (Gov. Code § 11513(c).) Hearsay •Hearsay evidence that would normally be admitted over objection in a civil proceeding are NOT Evidence administrative hearsay. •Rather, this evidence CAN be used as sole evidence to support a finding. •Includes the following types:Admitted Over •A police officer’s report (Lake v. Reed (1997) 16 Cal.4th 448, 461) even if it contains another officer’s observations (Gananian v. Zolin (1995) 33 Cal.App.4th 634.) ; •Testimony offered to prove not the truth of a statement but that the statement was made. Objection
  • 21. Procedural Complexities (Continued) • Permitted to be used and accepted as direct oral testimony unless opposing party objects and requests Use of to cross-examine. (Gov. Code § 11514(a).)Affidavit/Declarations • If party fails to produce affiant/declarant in response to objection, the affidavit/declaration is still admitted as administrative hearsay. (Gov. Code § 11513(c).) • At discretion of the agency or the ALJ, similar matters may be consolidated into a single hearing. Consolidation or • A matter may be severed from an existing hearingSeverance of Hearing upon motion of either party or the ALJ in the interest of prejudice or convenience.
  • 22. Procedural Complexities (Common Defenses)Lack of Jurisdiction • An agency can only act within statutory authority. If the agency has misinterpreted a statute, it may be a defense for the licensee. • Regulations must be promulgated under the APA.Constitutionality • An agency cannot declare a law unconstitutional. And failing to raise constitutionality at hearing does not waive the defense. • Must be raised on a Petition for a Writ of Administrative Mandate.Statute of Limitations • Statutes of limitation barring civil actions do not apply to a disciplinary proceeding of a state administrative agency. • There is no specific time limitation for administrative proceedings unless the legislature has imposed a statute of limitation for a particular proceeding. (City of Oakland v. Public Employees Retirement Sys. (2002) 95 Cal.App.4th 29, 34.) • If they have, they are more often than not 3 years.Doctrine of Laches • Trial court may dismiss the administrative proceeding if it is not diligently prosecuted or there has been unreasonable preaccusation delay and the licensee has been prejudiced. (Steen v. City of Los Angeles (1948) 31 Cal.2d 542, 546.)
  • 23. Procedural Complexities (Common Defenses)Privilege Against Self-Incrimination • Licensing agency can compel a licensee to testify at a proceeding. (Gov. Code & 11513(b); Black v. State Bar (1972) 7 Cal.3d 676.) • Licensee can then refuse to testify concerning those matters that could lead to criminal exposure.Entrapment • Applicable to administrative and licensing proceedings. (Patty v. Board of Med. Examrs (1973) 9 Cal.3d 356, 367.) • conduct of a law enforcement agent that "was likely to induce a normally law-abiding person to commit the offense.“ (People v Barraza (1979) 23 Cal.3d 675, 689.)Illegal Search and Seizure • Where warrantless searches are permitted, they still must be conducted reasonably, “tailored to administrative goals and purposes.” (People v Potter (2005) 128 Cal.App.4th 611, 619.) • Limited applicability of exclusionary rule.
  • 24. Procedural Complexities (Evidence of Rehabilitation, Mitigation)Administrative Adjudicative Licensing Proceedings by their very naturecombine the trial and sentencing functions into a single proceeding Hearing on Evidence of Rehabilitation, Hearing on Evidence Mitigation, and Related to Character Misconduct • Demonstrate restitution, • Asserting procedural and remorse for misconduct. substantive defenses. • Present corrective action – • Demonstrating compliance through rehabilitation, with relevant standard of education, training. care. • Demonstrate an altered lifestyle – new friends, colleagues, employment.
  • 25. Procedural Complexities (Evidence of Rehabilitation, Mitigation) • This can lead to admissions or other forms of evidence which could be used against the licensee in his or her criminal law matter. • Nevertheless, here are relevant types of Rehabilitation and Mitigation evidence: Mitigation Evidence Rehabilitation Evidence• Length of time since misconduct/conviction. • Volunteering.• Absence of prior convictions. • Completion of court-order probation.• Absence of post-misconduct discipline. • Expungement of criminal conviction.• Employment record. • Post-violation activities (i.e. employment,• Restitution to injured parties. education, contributing to social community,• Reputation in the industry; General reputation in etc.) community. • Restitution (to injured parties, interests).• Good faith actions and behavior by the licensee. • Abstention from controlled substances• Efforts made to avoid repetition. • Changed personal, profesisional, familial, or• Acceptance of responsibility, remorse. social circumstances.• Honest and earnest assistance during • Psychological treatment. investigation.
  • 26. Closing Points• Ask. Do not rely upon your client to tell you that he/she has a license. Ask and then explain that it will need to be something that they consider when reviewing plea bargain offers.• Self-Reporting. Find out if your client has a self-reporting obligation. Some agencies, boards, bureaus, or commissions have such a requirement. And short deadlines upon which to report.• Need to “Earn Badges”. Clients need to start compiling evidence of rehabilitation, mitigation, and character immediately. Even if they are not ready (or it is not advisable) to engage in restitution, they must begin contributing to the community.• Start Identifying Character Witnesses. They may or may not prove helpful to you in your criminal defense. But, again, directing your client to start compiling letters of recommendation, support, testimonials, and endorsements will start the process of being able to improve the client’s chances at keeping his or her license.• Check-in with an Administrative Law Attorney. You can look up whether the alleged crime is substantially related and the disciplinary guidelines on your own. However, just checking-in with an experienced administrative law attorney might be worthwhile. You can double-check on items and bounce ideas off from him or her.
  • 27. Thank You! Steven L. Simas, Esq. Justin D. Hein, Esq.• P: 805.547.9300 • P: 916.789.9800• F: 805.547.9302 • F: 916.789.9801• •