A Notice of Defense is the document a licensee and some license applicants submit to preserve their right to a hearing after receiving an accusation or denial. If a Notice of Defense is not timely filed, a licensing agency can take the licensee or license applicant’s default. A default usually means that the harshest sanction sought is imposed – revocation or license denial.
A Notice of Defense must be filed with the agency or attorney for the agency within 15 days of service. This means that if the agency mails out the Notice of Defense on the 1st of the month, the completed Notice of Defense must come back to the agency counsel (or agency, as specified) by the 16th. Due to mailing times, therefore, the period of response is less than 15 days. Some licensees or license applicants mistakenly believe that the 15 days start to run upon receipt of the Notice of Defense, but this is incorrect and could lead to default.
The statute that creates and sets forth the functions of the Notice of Defense is Government Code section 11506. This statute provides that a Notice of Defense constitutes a request for hearing and a general denial of all the allegations in the accusation. The Notice of Defense is typically a form supplied by the licensing agency with the accusation, and in the case of a license denial, with the statement of issues (when a request for hearing has not been previously made).
In a Notice of Defense, the respondent can object to the form of the accusation or object that the accusation is uncertain or ambiguous. These objections are rarely applicable, particularly if the agency is represented by experienced administrative law counsel.
Finally, the Notice of Defense need only contain the respondent’s mailing address and be signed by the respondent. Nevertheless, it is not unusual for the Notice of Defense to have blanks and check boxes for various other information. One common feature is a box to check if a respondent objects to recording the hearing (and instead demands a court reporter); alternatively, the check box may give permission for recording instead of court reporting. We always demand a court reporter (decline electronic recording), because a court reporter provides a record superior to an audio recording which can be faint, jumbled, or has participants talking over one another at hearing.
Occasionally an attorney representing a respondent licensee or license applicant will draft an elaborate Notice of Defense to file. We have rarely if ever found this necessary. The pre-prepared Notice of Defense form is sufficient for 99% of all cases. Also, in the rare case where the accusation is poorly drafted, early objections in the Notice of Defense give the agency a chance to correct mistakes that might inure to the respondent’s benefit at hearing. Therefore, making objections in the Notice of Defense may be a poor strategic decision.