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.
Between a Rock and a Hard Place – When Criminal Law Overlaps Administrative Law
San Luis ObispoCounty Bar Association
Between a Rock and a Hard Place – When Criminal Law
Overlaps Administrative Law
November 12, 2015 PM
Steven L. Simas
• Steven L. Simas, Esq. – firstname.lastname@example.org
• Owner and Founder of Simas & Associates, Ltd.
• Offices in San Luis Obispo, Sacramento, Santa Rosa
• Former Deputy Attorney General, Office of the Attorney General
• Practicing Administrative, Healthcare and Professional Licensing Law since 1990
• Member California Academy of Attorneys for Healthcare Professionals
• Past President, Sacramento County Bar Association, Administrative Law Section
• Former Counsel, Public Employment Relations Board
Betweena Rockand a Hard Place – When
• 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.
Administrative Process and Hearing
• Constitutions (U.S., California)
• Administrative Procedure Act
(Government Code §§ 11400, et al.)
• California Code of Regulations
• Business & Professions Code
• Evidence Code
• Code of Civil Procedure
• California Rules of Professional Conduct
• Precedential Decisions – within an
• Case Law – California Judicial Branch
• Discretionary and Ministerial Acts
• Public Records Act
• Government Claims Act
• Open Meetings Law
• Fair Political Process
•Local, Municipal, Regional Government
•Some Private Entities engaged in Public Function
Bodies Subject to
•Office of the Governor
Bodies Not Subject
•Office of Administrative Hearings
•Administrative Law Judges (ALJs)
•4 offices – Sacramento, Los Angeles, Oakland, San Diego
Investigation by State Agency
•Government Code § 11180
•Triggered by Consumer Complaint, Tip
from Other Agency, Database, Self-
•Could exceed 2 years.
•Oftentimes can involve an Audit.
•Licensee has a duty to cooperate.
•More common in complicated,
substantive types of licensing discipline.
•Recorded, under oath.
•Right to invoke 5th Amendment Privilege
Charging Document –
•Should indicate jurisdiction.
•Should indicate statutes and regulations
alleged to have been violated.
•Should indicate standard of conduct
•Disciplinary Guidelines are found in
•Might include a Temporary Suspension
Order on Licensed Activity.
Notice of Defense
•15 days (+5 if served via mail) to
•Can file general denial, but then
waive rights to affirmative defenses,
•Can file late special notice with
Agency permission (Gov. Code §
•Default – agency can take license
discipline without hearing.
Discovery – Documents,
•Can file motions to compel, motions
to quash, motions in limine.
•OAH cannot impose sanctions but
can certify facts to present to
•Conference usually 30 days in
advance of hearing.
•Provide ALJ with background on
case, identify evidentiary/witness
issues, attempts to settle.
• 2-4 hours.
• Licensee and individual
with settlement authority
from agency must be
• More common in cases
involving substantive types
of licensing discipline.
• More often than not make
or break the case.
• Executive Agency (in
licensing matters) has the
burden of proof.
• Present exculpatory
evidence and evidence of
• Sometimes given opportunity to
present closing arguments after
review of administrative record
• Must define jurisdiction.
• Must determine whether the
alleged misconduct took place
(beyond a preponderance or
clear and convincing).
• Must take into consideration all
rehabilitation, mitigating, and
character evidence presented.
• Executive Agency and/or its
Executive Director has the
discretion to adopt, adopt with
modification, or decline to
adopt ALJ’s decision.
• Could set a new hearing or
decide matter on its own.
•Attempt to present any other
type of evidence or argument
that was improperly denied or
prevented at hearing.
•Vehicle to set aside defaults.
•Must be done shortly after
Notice of Adoption of ALJs
Petition for Writ of
Traditional Mandate) in
•Judicial review of the
•Often coupled with an ex parte
Request for Stay.
Petition for Reinstatement
or Modification of
•An attempt to demonstrate
overwhelming evidence of
Rehabilitation and Correction,
enough to warrant a reduction in
• Statement of Issues
• Denial of a license application.
• 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
• Nevertheless, can be contested via administrative hearing
• 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.
• Determination of Appropriate Penalty
• Mandated by Statute
• Prior Decisions – accessible through Public Records Act
• Disciplinary Guidelines
• Rehabilitation Criteria
• Types of Discipline
• License Surrender
• Probation (Restricted License, Stayed Revocation)
• Public Reproval
• Civil Penalties/Fines
• Mandatory Restitution
• Cost Recovery
• Training, Education
• Therapy or Treatment
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.
Substantially Related to the Profession
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.)
•Must set out the “substantial relationship” criterion within its regulations (Bus. & Prof. Code
•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”.
•Admissibility of Police Report without foundation at admin hearing (Lake v. Reed (1997) 16
Cal.4th 448; Evidence Code 1280).
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.
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 Exam'rs (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.
• 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
licensee's 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).
•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.
(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 criminal
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.)
•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 seeking
any other remedy, such as direct review by a superior court. (Abelleira v. District
Court of Appeal (1941) 17 Cal.2d 280.)
•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
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
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.
•Works both ways:
•favorable decision in an administrative proceeding may be used by the licensee
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.
•In some circumstances, the combination of function (investigatory, prosecutory,
adjudicatory) within a single agency may violate due process and the fair hearing
•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
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 an
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.
•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.
•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:
•Transcript of telephone call to Police Department (Melkonians v. Los Angeles County Civil Serv.
Comm'n (2009) 174 Cal.App.4th 1159, 1170.);
•Examination reports from a sister state containing allegations of misconduct;
•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.)
•Cannot be the sole evidence upon which a finding is based. (Gov. Code § 11513(c).)
•Hearsay evidence that would normally be admitted over objection in a civil proceeding are NOT
•Rather, this evidence CAN be used as sole evidence to support a finding.
•Includes the following types:
•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.
• Permitted to be used and accepted as direct oral
testimony unless opposing party objects and requests
to cross-examine. (Gov. Code § 11514(a).)
• 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.
• A matter may be severed from an existing hearing
upon motion of either party or the ALJ in the interest
of prejudice or convenience.
Severance of Hearing
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.
• 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
• 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.)
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
• Applicable to administrative and licensing proceedings. (Patty v. Board of Med.
Exam'rs (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.
Hearing on Evidence
• Asserting procedural and
• Demonstrating compliance
with relevant standard of
Hearing on Evidence
• Demonstrate restitution,
remorse for misconduct.
• Present corrective action –
• Demonstrate an altered
lifestyle – new friends,
Administrative Adjudicative Licensing Proceedings by their very nature
combine the trial and sentencing functions into a single proceeding
• Length of time since misconduct/conviction.
• Absence of prior convictions.
• Absence of post-misconduct discipline.
• Employment record.
• Restitution to injured parties.
• Reputation in the industry; General reputation in
• Good faith actions and behavior by the licensee.
• Efforts made to avoid repetition.
• Acceptance of responsibility, remorse.
• Honest and earnest assistance during
• Completion of court-order probation.
• Expungement of criminal conviction.
• Post-violation activities (i.e. employment,
education, contributing to social community,
• Restitution (to injured parties, interests).
• Abstention from controlled substances
• Changed personal, profesisional, familial, or
• Psychological treatment.
• 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
• 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
• 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
• 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
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