BILL NUMBER: SB 1159	INTRODUCED
	BILL TEXT


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:

  SECTION 1.  Section 494 of the Business and Professions Code is
amended to read:
   494.  (a) A board or an administrative law judge sitting alone, as
provided in subdivision (h), may, upon petition, issue an interim
order suspending any licentiate   a licensee
 or imposing license restrictions, including, but not limited
to, mandatory biological fluid testing, supervision, or remedial
training. The petition shall include affidavits that demonstrate, to
the satisfaction of the board, both of the following:
   (1) The  licentiate   licensee has
engaged in acts or omissions constituting a violation of this code or
has been convicted of a crime substantially related to the licensed
activity.
   (2) Permitting the  licentiate   licensee
 to continue to engage in the licensed activity, or permitting
the  licentiate   licensee  to continue in
the licensed activity without restrictions, would endanger the public
health, safety, or welfare.
   (b)  No   An  interim order provided for
in this section shall  not  be issued without notice to the
 licentiate   licensee  unless it appears
from the petition and supporting documents that serious injury would
result to the public before the matter could be heard on notice.
   (c) Except as provided in subdivision (b), the  licentiate
  licensee  shall be given at least 15 days'
notice of the hearing on the petition for an interim order. The
notice shall include documents submitted to the board in support of
the petition. If the order was initially issued without notice as
provided in subdivision (b), the  licentiate  
licensee  shall be entitled to a hearing on the petition within
20 days of the issuance of the interim order without notice. The
 licentiate   licensee  shall be given
notice of the hearing within two days after issuance of the initial
interim order, and shall receive all documents in support of the
petition. The failure of the board to provide a hearing within 20
days following the issuance of the interim order without notice,
unless the  licentiate   licensee  waives
his or her right to the hearing, shall result in the dissolution of
the interim order by operation of law.
   (d) At the hearing on the petition for an interim order, the
 licentiate   licensee  may  do all of
the following  :
   (1) Be represented by counsel.
   (2) Have a record made of the proceedings, copies of which shall
be available to the  licentiate   licensee 
upon payment of costs computed in accordance with the provisions for
transcript costs for judicial review contained in Section 11523 of
the Government Code.
   (3) Present affidavits and other documentary evidence.
   (4) Present oral argument.
   (e) The board, or an administrative law judge sitting alone as
provided in subdivision (h), shall issue a decision on the petition
for interim order within five business days following submission of
the matter. The standard of proof required to obtain an interim order
pursuant to this section shall be a preponderance of the evidence
standard. If the interim order was previously issued without notice,
the board shall determine whether the order shall remain in effect,
be dissolved, or modified.
   (f) The board shall file an accusation within 15 days of the
issuance of an interim order. In the case of an interim order issued
without notice, the time shall run from the date of the order issued
after the noticed hearing. If the  licentiate  
licensee  files a Notice of Defense, the hearing shall be held
within 30 days of the agency's receipt of the Notice of Defense. A
decision shall be rendered on the accusation no later than 30 days
after submission of the matter. Failure to comply with any of the
requirements in this subdivision shall dissolve the interim order by
operation of law.
   (g) Interim orders shall be subject to judicial review pursuant to
Section 1094.5 of the Code of Civil Procedure and shall be heard
only in the superior court in and for the Counties of Sacramento, San
Francisco, Los Angeles, or San Diego. The review of an interim order
shall be limited to a determination of whether the board abused its
discretion in the issuance of the interim order. Abuse of discretion
is established if the respondent board has not proceeded in the
manner required by law, or if the court determines that the interim
order is not supported by substantial evidence in light of the whole
record.
   (h) The board may, in its sole discretion, delegate the hearing on
 any   a  petition for an interim order to
an administrative law judge in the Office of Administrative
Hearings. If the board hears the noticed petition itself, an
administrative law judge shall preside at the hearing, rule on the
admission and exclusion of evidence, and advise the board on matters
of law. The board shall exercise all other powers relating to the
conduct of the hearing but may delegate any or all of them to the
administrative law judge. When the petition has been delegated to an
administrative law judge, he or she shall sit alone and exercise all
of the powers of the board relating to the conduct of the hearing. A
decision issued by an administrative law judge sitting alone shall be
final when it is filed with the board. If the administrative law
judge issues an interim order without notice, he or she shall preside
at the noticed hearing, unless unavailable, in which case another
administrative law judge may hear the matter. The decision of the
administrative law judge sitting alone on the petition for an interim
order is final, subject only to judicial review in accordance with
subdivision (g).
   (i) Failure to comply with an interim order issued pursuant to
subdivision (a) or (b) shall constitute a separate cause for
disciplinary action against  any licentiate   a
licensee , and may be heard at, and as a part of, the noticed
hearing provided for in subdivision (f). Allegations of noncompliance
with the interim order may be filed at any time prior to the
rendering of a decision on the accusation. Violation of the interim
order is established upon proof that the  licentiate
  licensee  was on notice of the interim order and
its terms, and that the order was in effect at the time of the
violation. The finding of a violation of an interim order made at the
hearing on the accusation shall be reviewed as a part of any review
of a final decision of the agency.
   If the interim order issued by the agency provides for anything
less than a complete suspension of the  licentiate 
 licensee  from his or her business or profession, and the
 licentiate   licensee  violates the
interim order prior to the hearing on the accusation provided for in
subdivision (f), the agency may, upon notice to the 
licentiate   licensee and proof of violation,
modify or expand the interim order.
   (j) A plea or verdict of guilty or a conviction after a plea of
nolo contendere is deemed to be a conviction within the meaning of
this section. A certified record of the conviction shall be
conclusive evidence of the fact that the conviction occurred. A board
may take action under this section notwithstanding the fact that an
appeal of the conviction may be taken.
   (k) The interim orders provided for by this section shall be in
addition to, and not a limitation on, the authority to seek
injunctive relief provided in any other provision of law.
   (  l  ) In the case of a board, a petition for an interim
order may be filed by the executive officer. In the case of a bureau
or program, a petition may be filed by the chief or program
administrator, as the case may be.
   (m) "Board," as used in this section, shall include any agency
described in Section 22, and any allied health agency within the
jurisdiction of the Medical Board of California. Board shall also
include the Osteopathic Medical Board of California and the State
Board of Chiropractic Examiners. The provisions of this section shall
not  be applicable   apply  to the Medical
Board of California, the Board of Podiatric Medicine, or the State
Athletic Commission.