For the start of 2014, I am creating a new line of articles I am calling "CA License Law 101". With a sorry lack of good information on the internet that explains how license law works for the California licensing agencies that follow the Administrative Procedure Act (basically all of them), I will strive to get "back to the basics" and explain common terms, documents, issues and procedures that make up the law that controls the California process for regulating, issuing licenses to and disciplining California licensees.
So here I begin with the Statement to Respondent. I am starting here because when the dreaded big manila envelope shows up from your licensing Board, Bureau, Department or Agency, with a stack of legal documents inside, the document on top is the Statement to Respondent. The Statement to Respondent is intended to be a notice that educates a licensee or license applicant about their most important rights and obligations. However, we find in our practice that it accomplishes two basic tasks – first, scaring the heck out of the recipient with intimidating legal language, then in much simpler and friendlier language, encouraging settlement by just contacting the agency attorney.
The Statement of Respondent must contain these four pieces of information:
1) that you need to request a hearing within 15 days, or you will be deprived of a hearing (found in default),;
2) that you can ask for discovery, that is, all the evidence that the agency has accumulated to build this case against you;
3) that once a hearing is set, if you need to postpone it, you need to let OAH know you want to postpone it within 10 days of learning of the reason to postpone it; and
4) that you can, but need not be, represented by counsel.
When a licensee or license applicant reads the Statement to Respondent, they tend to do one of two things – call a license lawyer, or call up the agency attorney (often the Deputy Attorney General). Unfortunately, we are so often later told by our clients, that if they called the agency attorney, the first thing they are often told is they do not need to hire an attorney.
As you can tell, I am pretty critical of the Statement to Respondent. First, I think that the Statement to Respondent should counsel every recipient to get as much legal help as they can afford. After all, agencies don’t handle disciplinary cases themselves, they have a staff attorney or the Attorney General represent them. If a staff member at the Board of Registered Nursing, for example, cannot handle an accusation on their own, how is a nurse supposed to? Secondly, this document is used to promote settlement at a stage when settlement is very premature. The priority upon receipt of the Statement to Respondent and accompanying documents is to preserve the right to a hearing, get information, research the law and issues, advocate for the best possible outcome, and then, and only then, settle if, and only if, the facts and law support settlement.
If you have received a stack of documents topped with a Statement to Respondent, I am sorry for your news. I encourage you to call our office for a consultation to see how we can help. Stay tuned for more CA License Law 101 articles, I hope you found this one informative.