BILL ANALYSIS                                                                                                                                                                                                    Ó






           ----------------------------------------------------------------- 
          |SENATE RULES COMMITTEE            |                       AB 1232|
          |Office of Senate Floor Analyses   |                              |
          |(916) 651-1520    Fax: (916)      |                              |
          |327-4478                          |                              |
           ----------------------------------------------------------------- 


                                   THIRD READING 


          Bill No:  AB 1232
          Author:   Cristina Garcia (D)
          Amended:  6/29/15 in Senate
          Vote:     21  

           SENATE INSURANCE COMMITTEE:  8-0, 7/8/15
           AYES:  Roth, Gaines, Berryhill, Glazer, Hall, Hernandez, Liu,  
            Wieckowski
           NO VOTE RECORDED:  Mitchell

           SENATE APPROPRIATIONS COMMITTEE:  Senate Rule 28.8

           ASSEMBLY FLOOR:  77-0, 5/7/15 (Consent) - See last page for  
            vote

           SUBJECT:   Insurance Commissioner: administrative hearings


          SOURCE:    California Department of Insurance 


          DIGEST:  This bill provides an applicant whose license to act as  
          an insurance agent, broker, or solicitor has been denied by the  
          California Department of Insurance (CDI) the option to request a  
          hearing in front of an administrative law judge (ALJ) from CDI's  
          Administrative Hearing Bureau (AHB) or the Office of  
          Administrative Hearings (OAH), or permits the Insurance  
          Commissioner (IC) to assign the case if the applicant fails to  
          select a preference.


          ANALYSIS:









                                                                    AB 1232  
                                                                    Page  2



          Existing law:

           1)  Requires a person acting in the capacity of an insurance  
              agent, broker, or solicitor to hold a license issued by CDI.

           2)  Permits the IC to deny a license to an applicant for a  
              range of reasons including a lack of qualification,  
              conviction of any felony or a misdemeanor related to  
              insurance, or for prior unlicensed activity.
            
            3)  Prohibits the IC from denying a license without providing  
              the applicant a hearing held pursuant to the Administrative  
              Procedure Act (APA).

           4)  Requires that most hearings of state agencies conducted  
              pursuant to the APA be presided over by OAH ALJs.
           
           This bill:


           1)  Permits the applicant to choose, at the time a hearing is  
              requested, whether to have an ALJ from CDI or from the OAH  
              hear the appeal.


           2)  Permits the IC to refer the matter for hearing to either  
              the OAH or to a CDI ALJ if the applicant does not indicate a  
              preference.


           3)  Requires the IC to annually report for three years on the  
              total number of hearings and the number of those cases heard  
              by CDI ALJs, average number of days between case referral  
              and when the ALJ issues a proposed decision, and outcome of  
              the cases.

          Background


          The IC issues licenses and takes disciplinary actions, such as  
          suspension or revocation, against a person who already holds a  
          license ("licensees").  This bill would only impact a person  
          that the IC has initially denied a license as an insurance  







                                                                    AB 1232  
                                                                    Page  3


          agent, broker, or solicitor ("applicant") and who has requested  
          a hearing to challenge the reason for the denial.  


          Every applicant must complete a background check prior to  
          receiving a license as a part of the application and examination  
          process. If the background check is cleared and the applicant  
          has successfully passed the examination, a license is granted.  
          However, for a variety of reasons, the IC may deny the license  
          or grant a license with restrictions.  The IC may deny the  
          license without a hearing on certain grounds (such as conviction  
          for any felony), but usually must give the applicant an  
          opportunity to make a case for licensure. 


          The hearing is the applicant's opportunity to prove that alleged  
          facts or reasons for the denial are untrue, invalid, or should  
          be considered along with mitigating factors.  Unlike criminal  
          and licensee discipline cases, the burden is on the applicant to  
          show that he or she is fit for the license.  The agency retains  
          the burden of proving wrongdoing for which the applicant has not  
          already been convicted, but only by a preponderance of the  
          evidence or "more likely than not" standard.  An adverse  
          decision may brand the applicant as dishonest or untrustworthy  
          and the applicant will have to disclose the decision anytime he  
          or she applies for another professional license or some types of  
          employment.  Documents related to the case are usually public  
          records and pleadings and final decisions are posted on the CDI  
          website.


          The Hearing Process.  When the applicant requests a hearing, CDI  
          must serve a "statement of issues" explaining the basis of the  
          denial.  Once CDI mails the statement of issues, the applicant  
          has 15 days to file a "notice of defense" that requests a  
          hearing and notes any special objections.  Once a hearing is  
          requested, CDI will file the case with OAH to start the formal  
          process and request OAH to set a hearing give the availability  
          of the parties. 


          This bill would allow the applicant to request a hearing with  
          either the OAH or AHB when filing the notice of defense.  If the  
          applicant fails to select a preference, the IC could select the  







                                                                    AB 1232  
                                                                    Page  4


          forum.


          The agency and applicant will attempt to work out a settlement  
          before the hearing that may include probationary terms.  Often  
          the applicant may want the license as soon as possible, but not  
          always.  An applicant may need time to establish a history of  
          employment, advance professional training, sobriety (if the  
          cause for denial involved drug or alcohol-related conduct) or  
          other factor that favors licensure.  At the hearing, the  
          applicant may present witnesses, such as therapists, employers,  
          friends, and others, who will testify on his or her behalf.   
          CDI, on the other hand, will present witnesses and documents  
          supporting a conclusion that the applicant is unfit for the  
          license including witnesses or victims of a wrongful act.


          An ALJ from OAH presides over the hearing, accepts evidence,  
          rules on legal questions, resolves discovery disputes, and  
          submits a proposed decision to the IC.  The ALJ is the guardian  
          of the record that serves as the basis for the ultimate decision  
          and any subsequent review.  The IC, however, retains ultimate  
          authority to make the decision and may adopt an ALJ's proposed  
          decision entirely or adopt it with a reduced restrictions or  
          probationary terms.  To increase the restrictions or  
          probationary terms, IC must reject the proposed decision and  
          either decide the case on the existing record or refer it back  
          to take additional evidence.


          Due Process Considerations.  Due process demands a careful  
          balancing of administrative efficiency and separation of powers.  
           The roles played by a state agency become critical elements in  
          the due process analysis.  Some agencies serve as either  
          prosecutor or judge and pose little to no risk of an  
          unconstitutional consolidation of power.  For example, the  
          Department of Fair Employment and Housing investigates  
          discrimination cases but prosecutes them in superior court.   
          (Prior to 2012, the Fair Employment and Housing Commission would  
          hear and decide those cases.)  Other agencies, however, serve as  
          prosecutor and judge, an arrangement that raises the risks of  
          potential due process violations such as those involving  
          improper ex parte contact or pro-agency bias by the  
          decision-maker or hearing officer.







                                                                    AB 1232  
                                                                    Page  5




          In order to protect due process rights, agencies that exercise  
          prosecutorial and adjudicatory powers must internally separate  
          those functions; for instance, staff involved in the  
          investigation or prosecution of a matter may not advise the  
          decision-maker on that matter.  The APA regulates some internal  
          agency conduct, such as ex parte communications, and requires  
          that most cases be heard by an ALJ employed by OAH.  Since OAH  
          ALJs are exposed to a variety of regulations and agency  
          practices, OAH judges may be less likely to establish practices  
          and biases that favor the agency, especially when an ALJ is  
          asked to rule on whether an agency has engaged in improper  
          conduct or exceeded its authority. 


          Despite the general trend to transfer cases to OAH, many  
          agencies have kept their in-house ALJs.  Some agencies use  
          in-house ALJs to determine eligibility for public benefits or  
          decide disputes between private parties (such as an employer and  
          an employee).  The Department of Social Services hears cases  
          before in-house ALJs that involve the denial of benefits for  
          several social assistance programs but it prosecutes actions  
          against day care or residential facilities in front of OAH.   
          Entities within the Department of Consumer Affairs, such as the  
          Medical Board and Bureau of Automotive Repair, hear licensing  
          disputes before OAH.  The Public Utilities Commission (PUC) is a  
          notable exception; the PUC needs its own expert ALJs given the  
          complexity and unique nature of the issues and laws related to  
          utility regulation.  This is one reason why CDI uses its own  
          ALJs to hear insurance rating matters. 


          CDI is a state agency directed by the IC, a statewide elected  
          official that holds quasi-legislative, prosecutorial, and  
          quasi-judicial powers that are not subject to an administrative  
          appeal process.  AHB ALJs are appointed by the IC pursuant to  
          civil service rules and may not be supervised directly by the IC  
          or supervised directly or indirectly by an employee in the legal  
          branch.  A deputy commissioner writes the performance reviews of  
          the Chief ALJ who writes the performance reviews and assigns the  
          cases and other work to the other ALJs.  









                                                                    AB 1232  
                                                                    Page  6


          Length of Time to Resolve a Case.  CDI data shows that for 2013  
          and 2014, it has taken, on average, 188.41 days from the date a  
          Request to Set a Hearing was sent to OAH until CDI received the  
          proposed decision from OAH.  According to CDI, previous OAH data  
          showed an average number of days to hear cases (start to finish)  
          was approximately 162 days.  CDI claims that it would be able to  
          hear these cases within 30 days.


          According to OAH, it has taken 111 days from when OAH receives a  
          Request to Set form, but notes that this time frame fits within  
          two weeks of the parties' typical availability.  OAH explains  
          that CDI attorneys often indicate that they are unavailable for  
          weeks or months.   


          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   No


          SUPPORT:   (Verified8/18/15)




          California Department of Insurance (source)




          OPPOSITION:   (Verified8/18/15)


          California Department of General Services


          ARGUMENTS IN SUPPORT:     CDI has sponsored this bill because  
          existing law does not provide the IC the authority to hear new  
          licensee applicant cases unlike many other entities in the  
          state.  Currently the hearings are heard by OAH within the  
          Department of General Services with only a handful of  
          exceptions.  OAH conducts hearings, mediations, and settlement  
          conferences for more than 1,600 state, local, and county  
          agencies, which can make it challenging to schedule hearings for  







                                                                    AB 1232  
                                                                    Page  7


          all outstanding applicants in a timely manner.  This has led to  
          a hearing process that can be lengthy for new licensee  
          applicants and consumers, as well as being costly to CDI.  
          Individuals with a pending application or a new licensee  
          applicant are unable to work in a licensed capacity in the  
          insurance industry and must wait for their case to be resolved.   
          In many cases insurers and other related employers have  
          significantly invested in these potential new agents, making  
          delays extremely costly.  Out of 370,000 licenses, CDI sends  
          approximately 160 licensee cases per year to the OAH since the  
          IC does not have the authority to assign licensing matters to  
          the AHB within CDI.  Sixty percent (or roughly 100) of those  
          cases are new licensee applicant cases that could be heard by  
          the AHB.  This bill will enhance governmental efficiency by  
          streamlining the licensee hearing adjudication process for new  
          CDI licensee applicants.  An administratively efficient process  
          better serves new licensee applicants and keeps consumers  
          protected.


          ARGUMENTS IN OPPOSITION:      The Department of General Services  
          opposes this bill it seeks to remove an unknown number of cases  
          from OAH, which was established as the state's independent and  
          neutral adjudicatory body, and place them under the jurisdiction  
          of the AHB of the prosecutorial agency, the CDI. It also asserts  
          that there is no data supporting the CDI's premise that this  
          change would increase the efficiency of the hearing process.

          ASSEMBLY FLOOR:  77-0, 5/7/15
          AYES:  Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,  
            Bonilla, Bonta, Brough, Brown, Burke, Calderon, Chang, Chau,  
            Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly,  
            Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina  
            Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez,  
            Gordon, Gray, Grove, Hadley, Harper, Holden, Irwin, Jones,  
            Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low,  
            Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin,  
            Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea,  
            Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark  
            Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams,  
            Wood, Atkins
          NO VOTE RECORDED:  Campos, Roger Hernández, Steinorth

          Prepared by:Erin Ryan / INS. / (916) 651-4110







                                                                    AB 1232  
                                                                    Page  8


          8/18/15 15:52:34


                                   ****  END  ****