Senate BillNo. 1159


Introduced by Senator Lara

February 20, 2014


An act to amend Section 494 of the Business and Professions Code, relating to professions and vocations.

LEGISLATIVE COUNSEL’S DIGEST

SB 1159, as introduced, Lara. Professions and vocations: license suspension or restriction.

Existing law provides for the licensure and regulation of various professions and vocations by boards within the Department of Consumer Affairs, among other entities. Existing law authorizes a board or an administrative law judge to, upon petition, issue an interim order suspending a licensee or imposing license restrictions if the petition demonstrates that the licensee has engaged in specified violations of law or has been convicted of a crime related to the licensed activity and permitting the licensee to continue to practice would endanger the public.

This bill would make technical, nonsubstantive changes to that provision.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

P1    1

SECTION 1.  

Section 494 of the Business and Professions Code
2 is amended to read:

3

494.  

(a) A board or an administrative law judge sitting alone,
4as provided in subdivision (h), may, upon petition, issue an interim
5order suspendingbegin delete any licentiateend deletebegin insert a licenseeend insert or imposing license
P2    1restrictions, including, but not limited to, mandatory biological
2fluid testing, supervision, or remedial training. The petition shall
3include affidavits that demonstrate, to the satisfaction of the board,
4both of the following:

5(1) Thebegin delete licentiateend deletebegin insert licenseeend insert has engaged in acts or omissions
6constituting a violation of this code or has been convicted of a
7crime substantially related to the licensed activity.

8(2) Permitting thebegin delete licentiateend deletebegin insert licenseeend insert to continue to engage in
9the licensed activity, or permitting thebegin delete licentiateend deletebegin insert licenseeend insert to
10continue in the licensed activity without restrictions, would
11endanger the public health, safety, or welfare.

12(b) begin deleteNoend deletebegin insert Anend insert interim order provided for in this section shallbegin insert notend insert be
13issued without notice to thebegin delete licentiateend deletebegin insert licenseeend insert unless it appears
14from the petition and supporting documents that serious injury
15would result to the public before the matter could be heard on
16notice.

17(c) Except as provided in subdivision (b), thebegin delete licentiateend deletebegin insert licenseeend insert
18 shall be given at least 15 days’ notice of the hearing on the petition
19for an interim order. The notice shall include documents submitted
20to the board in support of the petition. If the order was initially
21issued without notice as provided in subdivision (b), thebegin delete licentiateend delete
22begin insert licenseeend insert shall be entitled to a hearing on the petition within 20
23days of the issuance of the interim order without notice. The
24begin delete licentiateend deletebegin insert licenseeend insert shall be given notice of the hearing within two
25days after issuance of the initial interim order, and shall receive
26all documents in support of the petition. The failure of the board
27to provide a hearing within 20 days following the issuance of the
28interim order without notice, unless thebegin delete licentiateend deletebegin insert licenseeend insert waives
29his or her right to the hearing, shall result in the dissolution of the
30interim order by operation of law.

31(d) At the hearing on the petition for an interim order, the
32begin delete licentiateend deletebegin insert licenseeend insert maybegin insert do all of the followingend insert:

33(1) Be represented by counsel.

34(2) Have a record made of the proceedings, copies of which
35shall be available to thebegin delete licentiateend deletebegin insert licenseeend insert upon payment of costs
36computed in accordance with the provisions for transcript costs
37for judicial review contained in Section 11523 of the Government
38Code.

39(3) Present affidavits and other documentary evidence.

40(4) Present oral argument.

P3    1(e) The board, or an administrative law judge sitting alone as
2provided in subdivision (h), shall issue a decision on the petition
3for interim order within five business days following submission
4of the matter. The standard of proof required to obtain an interim
5order pursuant to this section shall be a preponderance of the
6evidence standard. If the interim order was previously issued
7without notice, the board shall determine whether the order shall
8remain in effect, be dissolved, or modified.

9(f) The board shall file an accusation within 15 days of the
10issuance of an interim order. In the case of an interim order issued
11without notice, the time shall run from the date of the order issued
12after the noticed hearing. If thebegin delete licentiateend deletebegin insert licenseeend insert files a Notice
13of Defense, the hearing shall be held within 30 days of the agency’s
14receipt of the Notice of Defense. A decision shall be rendered on
15the accusation no later than 30 days after submission of the matter.
16Failure to comply with any of the requirements in this subdivision
17shall dissolve the interim order by operation of law.

18(g) Interim orders shall be subject to judicial review pursuant
19to Section 1094.5 of the Code of Civil Procedure and shall be heard
20only in the superior court in and for the Counties of Sacramento,
21San Francisco, Los Angeles, or San Diego. The review of an
22interim order shall be limited to a determination of whether the
23board abused its discretion in the issuance of the interim order.
24Abuse of discretion is established if the respondent board has not
25proceeded in the manner required by law, or if the court determines
26that the interim order is not supported by substantial evidence in
27light of the whole record.

28(h) The board may, in its sole discretion, delegate the hearing
29onbegin delete anyend deletebegin insert aend insert petition for an interim order to an administrative law
30judge in the Office of Administrative Hearings. If the board hears
31the noticed petition itself, an administrative law judge shall preside
32at the hearing, rule on the admission and exclusion of evidence,
33and advise the board on matters of law. The board shall exercise
34all other powers relating to the conduct of the hearing but may
35delegate any or all of them to the administrative law judge. When
36the petition has been delegated to an administrative law judge, he
37or she shall sit alone and exercise all of the powers of the board
38relating to the conduct of the hearing. A decision issued by an
39administrative law judge sitting alone shall be final when it is filed
40with the board. If the administrative law judge issues an interim
P4    1order without notice, he or she shall preside at the noticed hearing,
2unless unavailable, in which case another administrative law judge
3may hear the matter. The decision of the administrative law judge
4sitting alone on the petition for an interim order is final, subject
5only to judicial review in accordance with subdivision (g).

6(i) Failure to comply with an interim order issued pursuant to
7subdivision (a) or (b) shall constitute a separate cause for
8disciplinary action againstbegin delete any licentiateend deletebegin insert a licenseeend insert, and may be
9heard at, and as a part of, the noticed hearing provided for in
10subdivision (f). Allegations of noncompliance with the interim
11order may be filed at any time prior to the rendering of a decision
12on the accusation. Violation of the interim order is established
13upon proof that thebegin delete licentiateend deletebegin insert licenseeend insert was on notice of the interim
14order and its terms, and that the order was in effect at the time of
15the violation. The finding of a violation of an interim order made
16at the hearing on the accusation shall be reviewed as a part of any
17review of a final decision of the agency.

18If the interim order issued by the agency provides for anything
19less than a complete suspension of thebegin delete licentiateend deletebegin insert licenseeend insert from his
20or her business or profession, and thebegin delete licentiateend deletebegin insert licenseeend insert violates
21the interim order prior to the hearing on the accusation provided
22for in subdivision (f), the agency may, upon notice to thebegin delete licentiateend delete
23begin insert licenseeend insert and proof of violation, modify or expand the interim order.

24(j) A plea or verdict of guilty or a conviction after a plea of nolo
25contendere is deemed to be a conviction within the meaning of
26this section. A certified record of the conviction shall be conclusive
27evidence of the fact that the conviction occurred. A board may
28take action under this section notwithstanding the fact that an
29appeal of the conviction may be taken.

30(k) The interim orders provided for by this section shall be in
31addition to, and not a limitation on, the authority to seek injunctive
32relief provided in any other provision of law.

33(l) In the case of a board, a petition for an interim order may be
34filed by the executive officer. In the case of a bureau or program,
35a petition may be filed by the chief or program administrator, as
36the case may be.

37(m) “Board,” as used in this section, shall include any agency
38described in Section 22, and any allied health agency within the
39jurisdiction of the Medical Board of California. Board shall also
40include the Osteopathic Medical Board of California and the State
P5    1Board of Chiropractic Examiners. The provisions of this section
2shall notbegin delete be applicableend deletebegin insert applyend insert to the Medical Board of California,
3the Board of Podiatric Medicine, or the State Athletic Commission.



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