California License Law Blog : California License Lawyer & Attorney : Fredrick M. Ray Law Firm : Professional Licensing Revocation & Suspension : CA License Law Blog

In California, the Office of Administrative Hearings (OAH) hears all professional license discipline or denial cases, except for liquor license and attorney discipline hearings.  The same administrative court hears cases for such varied occupations as physicians, architects, dentists, insurance brokers and engineers.  A panel of about 75 administrative law judges (ALJs), working our of four OAH offices in Sacramento, Oakland, Los Angeles and San Diego, hears thousands of cases each year.  Administrative licensing agencies such as the Medical Board of California, the Dental Board of California and the Department of Insurance delegate the job of hearing disciplinary hearings to these judges, while retaining final decision-making authority.   

When a licensing agency issues an accusation (the start of a formal disciplinary case) or a statement of issues (a formal license denial case), and the licensee has requested a hearing, the case is typically filed with OAH for adjudication.  Once OAH receives the filing, it assumes jurisdiction over the case which continues until the case is settled, the accusation is withdrawn, or a panel judge issues a proposed decision.   The presiding judge of a particular OAH office, or an ALJ acting temporarily on her or his behalf, addresses any logistics issues that arise.  Before the hearing date itself (the trial to decide the case), a hearing judge is assigned.  However, the assigned judge can be changed even shortly before the start of the hearing.

A hearing can be held at one of the courtrooms available at one of OAH's offices, or sometimes in a remote location (typically a borrowed conference room in a state or federal building) for the convenience of the parties or witnesses.  Occasionally, a party or witness, complying with applicable rules and with the agreement of the parties, appears by telephone.  I have seen an OAH hearing held in a state mental hospital, a federal office building, and even at a prison.  As long as a quiet room with adequate seating and tables is available and a court reporter can get to the location, it can be used for an OAH hearing.

OAH is different than any other court in that OAH is a state agency that other state agencies hire to hear their cases.  ALJs produce "proposed decisions" that can be adopted, changed or rejected then decided differently by licensing agencies.  Although a very high percentage of proposed decisions are adopted as written, occasionally a decision is rewritten or even decided differently by the agency.  Therefore, for ALJs to do their job, they must be "in tune" with the agencies for whom they decide cases.  Licensing agencies issue disciplinary guidelines to guide ALJs to decide cases consistently on common fact patterns, however, in reality most disciplinary guidelines are not specific enough to provide clear guidance.  It is definitely an art for a judge to intuit the wishes of a distant licensing board or agency head to reach a decision consistent with the agency's own thinking.

Having seen hundreds of ALJ decisions adopted or rejected by agencies, patterns tend to form.  For agencies particularly that have a high volume of cases or an elected agency head, a higher percentage of decisions seem to be adopted.  If many decisions are rejected, the burden of deciding those cases upon the administrative agency would be great.  Agencies with relatively few disciplinary cases can review them with greater care and more easily reject or modify those decisions.  Also, in the case of some agencies, the agency may prefer to leave the burden of the decision upon the ALJ, who is not subject to political pressure or public scrutiny, rather than to alter the decision to have a greater hand in the decision.  

For self-represented litigants (individuals without an attorney), and inexperienced attorneys as well, a common mistake is to think that OAH proceedings are just informal meetings.  Indeed, these are trials that require pre-planning and organization, legal research, questioning of witnesses, objections to evidence, and arguments.  The primary "law firm" that prosecutes cases at OAH, the California Department of Justice, has hundreds of well trained Deputy Attorneys General.

OAH decisions are often published on the internet by the particular licensing agency for whom cases have been heard.  I strongly advise unrepresented litigants to search out those decisions to review them before deciding to proceed without an attorney.  It is not uncommon that administrative decisions are 10, 15, 20 pages or more, discussing a range of factual and legal issues.  Reviewing these decisions, the complexity of these administrative proceedings becomes apparent.

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New clients sometimes call the firm to ask " what are my rights?" in a license discipline or license denial case.  The answer to this question goes to the heart of the complexities of representing clients in professional licensing cases. 

When I see that a client is struggling with the concept of their constitutional protections, I usually ask them to envision a continuum (like a time line), with criminal cases at one end and at the other end licensing cases, and in the middle civil cases for money damages.  The criminal end symbolizes the greatest constitutional protections, the licensing or administrative end represents the fewest protections.  I then talk about three major case types in exemplifying the rights involved in each.

Starting with the greatest protections, a criminal defendant enjoys the strongest rights because their liberty is at stake.  A criminal defendant has the absolute right of presumed innocence, and can only be found guilty beyond a reasonable doubt by a unanimous vote of twelve unbiased peers.  The criminal defendant can remain silent throughout the trial.  The defendant is guaranteed an effective defense, which for someone indigent can mean a free lawyer and even a free investigator.  These are some of the rights involved.

In a civil case, typically a defendant must be found liable by a preponderance of the evidence (basically, more than 50 percent).  A defendant is entitled to a jury of his peers, but a unanimous decision is not required.  Numerous procedures, including discovery (exchanging information through asking for documents and answers to questions,  and taking depositions) and summary judgment motions (to get a case that lacks merit dismissed) are available to the defendant.

In a licensing case, there is no jury.  The neutral judge who hears the case only makes a proposed decision, which then goes to the licensing agency for adoption, non-adoption or modification.  In other words, the licensing agency board or agency head (without a board) makes the final decision.  The licensee has no right to remain silent, meaning they must testify at their trial.  There is nothing to prevent an agency from bringing even a meritless case against the licensee and to press the matter to hearing.  And, in most cases, a licensee can be made to pay reimbursement to the licensing agency for its attorneys fees and investigation costs.

The rights, or lack of rights, of a licensee in a disciplinary hearing, is often shocking to hear the first time.  However, there are reasons why licensees have fewer rights.  First, a professional license is a privilege, not a right.  Second, the protection of the public against incompetent, impaired or dishonest licensees is paramount for a licensing agency.  And third, a licensee issued by a licensing agency is neither a fundamental freedom nor the personal property of the licensee.  It is a grant of permission predicated upon education, experience, exams, payment of fees, and meeting qualifications.

The striking difference in rights between criminal, civil and licensing matters may lead one to ask, can a license discipline case be fought and won? The answer is yes.  Despite the relatively few rights that a licensee has, a skilled attorney can contain the damage from a license discipline action and even win cases.  The key is understanding that the administrative discipline process is a system which is somewhat predictable.  A licensing attorney must usually work with, and sometimes within the system, to avoid loss of license or severe discipline.  Finally, the client must be willing to take steps, sometimes extraordinary steps, to reassure their licensing agency that they are safe and competent to work in their profession.

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