After a license hearing, the administrative law judge (ALJ) will issue a proposed decision. Under Government Code section 11517(c)(1), the ALJ has 30 days to issue the proposed decision. (However, there is no penalty if this deadline is not met.) Thirty days after the ALJ issues the proposed decision, each side in the case has the right to get a copy of the decision. Under 11517(c)(2), starting with the date the agency receives the proposed decision, the licensing board or agency has 100 days to decide whether to adopt the proposed decision, reject it, make changes to it that don’t require rejection.
The proposed decision is a unique feature of administrative law. Most of the time, the proposed decision is an accurate sneak peak of the final outcome of the case. If the proposed decision is favorable, the licensee or license applicant can breathe a sigh of relief knowing that a good outcome may be just around the corner. If the proposed decision is unfavorable, the licensee or license applicant can review their options for reconsideration or appeal and consider the career impact of the likely final decision.
However, sometimes a licensing agency will reject a proposed decision. This most often happens because, 1) the proposed decision imposes a result that is too lenient or generous, or 2) the proposed decision has a technical flaw that is so serious it must be rewritten or decided again. This rejection is called “non-adoption”. ALJs try to write proposed decisions that square with the practices and expectations of licensing agencies, and ALJs also try to avoid mistakes, because “non-adoption” is a big headache for everyone – the government attorney, the defense attorney, and the clients on each side. A non-adoption means extra work, added expense for the client, and months of uncertainty.
If a proposed decision is rejected, under law, it becomes a nullity. The case can be re-litigated to a completely different decision by the licensing board or agency. However, as a practical matter, the proposed decision still looms large as an influence on the process. If a board or agency makes a different decision after non-adoption, it usually will copy large parts of the proposed decision into its final decision.
If you have a proposed decision you are not happy with, or your good proposed decision has been non-adopted, call us for legal advice. Don’t wait until your non-adoption or adverse proposed decision becomes a final, bad result.