BILL NUMBER: SB 523 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 18, 1995
AMENDED IN SENATE MARCH 27, 1995
INTRODUCED BY Senator Kopp
FEBRUARY 21, 1995
An act to amend Sections 124, 4160, 10175.2, and 23083 of the
Business and Professions Code, to amend Sections 232 and 94323 of,
and to add Section 92001 to, the Education Code, to amend Section
755.5 of the Evidence Code, to amend Sections 3541.3, 3563, 8541,
11018, 11125.7, 11370, 11370.3, 11370.5, 11500, 11501, 11502, 11505,
11506, 11507.6, 11507.7, 11508, 11509, 11511, 11511.5, 11512, 11513,
11517, 11518, 11519, 11520, 11523, 11524, 11526, 11529, 12935,
19582.5, 37624.2, and 68560.5 of, to amend the heading of Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2
of, to add Sections 11340.4, 11507.2, 11507.3, 11511.7, 11518.5, and
17533 to, to add article headings immediately preceding Sections
11370 and 11371 of, to add Article 3 (commencing with Section 11380)
to Chapter 4 of, and to add Chapter 4.5 (commencing with Section
11400) to, Part 1 of Division 3 of Title 2 of, and to repeal Sections
11501.5, 11502.1, 11510, 11513.5, 11525, and 11530 of, the
Government Code, to amend Sections 443.37, 1551.5, 1568.065,
1569.515, 1596.8875, 11834.37, 18949.6, 25149, 25229, 25299.59,
25375.5, 32154, and 40843 of the Health and Safety Code, to amend
Sections 146, 4600, 5278, 5710, 5811, and 6603 of, and to add Section
1144.5 to, the Labor Code, to add Section 105 to the Military and
Veterans Code, to add Section 3066 to the Penal Code, to amend
Sections 663.1, 40412, and 40413 of, and to add Sections 25513.3 and
30329 to, the Public Resources Code, to amend Section 1701 of the
Public Utilities Code, to amend Section 1636 of the Revenue and
Taxation Code, to amend Section 409 of the Unemployment Insurance
Code, to amend Sections 3066, 11728, and 14112 of the Vehicle Code,
and to amend Section 4689.5 Sections 4689.5
and 11350.6 of, and to add Sections 1778 and 3158 to, the
Welfare and Institutions Code, relating to administrative procedure.
LEGISLATIVE COUNSEL'S DIGEST
SB 523, as amended, Kopp. Administrative procedure.
The Administrative Procedure Act contains provisions governing the
conduct of administrative adjudication and rulemaking proceedings of
state agencies.
This bill would revise the procedures for administrative
adjudications by expanding the hearing procedure options available to
state agencies and by including additional due process and public
policy requirements, as specified.
This bill would also make various technical, nonsubstantive
changes.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 124 of the Business and Professions Code is
amended to read:
124. Notwithstanding subdivision (c) of Section 11505 of the
Government Code, whenever written notice, including a notice, order,
or document served pursuant to Chapter 3.5 (commencing with Sec.
11340), Chapter 4 (commencing with Sec. 11370), or Chapter 5
(commencing with Sec. 11500), of Part 1 of Division 3 of Title 2 of
the Government Code, is required to be given by any board in the
department, the notice may be given by regular mail addressed to the
last known address of the licentiate or by personal service, at the
option of the board.
SEC. 2. Section 4160 of the Business and Professions Code is
amended to read:
4160. (a) The California Hazardous Substances Act, Chapter 13
(commencing with Section 28740) of Division 21 of the Health and
Safety Code, applies to pharmacies and pharmacists and any other
person or place subject to the jurisdiction of the board.
(b) The board may enforce that act when necessary for the
protection of the health and safety of the public if prior regulatory
notice is given in accordance with the rulemaking provisions of the
Administrative Procedure Act (Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code).
Board enforcement shall focus on those hazardous substances which
relate significantly to or overlap the practice of pharmacy.
(c) "Poison," as used elsewhere in this chapter, shall reference a
category of hazardous substances defined in Section 28743 of the
Health and Safety Code which the board may by regulation make more
specific.
SEC. 3. Section 10175.2 of the Business and Professions Code is
amended to read:
10175.2. (a) If the Real Estate Commissioner determines that the
public interest and public welfare will be adequately served by
permitting a real estate licensee to pay a monetary penalty to the
department in lieu of an actual license suspension, the commissioner
may, on the petition of the licensee, stay the execution of all or
some part of the suspension on the condition that the licensee pay a
monetary penalty and the further condition that the licensee incur no
other cause for disciplinary action within a period of time
specified by the commissioner.
(b) The commissioner may exercise the discretion granted
to him under subdivision (a) either with respect to a
suspension ordered by a decision after a contested hearing on an
accusation against the licensee or by stipulation with the licensee
after the filing of an accusation, but prior to the rendering of a
decision based upon the accusation. In either case, the terms and
conditions of the disciplinary action against the licensee shall be
made part of a formal decision of the commissioner.
(c) If a licensee fails to pay the monetary penalty in accordance
with the terms and conditions of the decision of the commissioner,
the commissioner may, without a hearing, order the immediate
execution of all or any part of the stayed suspension in which event
the licensee shall not be entitled to any repayment nor credit,
prorated or otherwise, for money paid to the department under the
terms of the decision.
(d) The amount of the monetary penalty payable under this section
shall not exceed two hundred fifty dollars ($250) for each day of
suspension stayed nor a total of ten thousand dollars ($10,000) per
decision regardless of the number of days of suspension stayed under
the decision.
(e) Any monetary penalty received by the department pursuant to
this section shall be credited to the Recovery Account of the Real
Estate Fund.
SEC. 4. Section 23083 of the Business and Professions Code is
amended to read:
23083. (a) The board shall determine the appeal upon the record
of the department and upon any briefs which may be filed by the
parties. If any party to the appeal requests the right to appear
before the board, the board shall fix a time and place for argument.
The board shall not receive any evidence other than that contained
in the record of the proceedings of the department.
(b) Notwithstanding Section 11425.10 of the Government Code,
Chapter 4.5 (commencing with Section 11400) of Part 1 of Division 3
of Title 2 of the Government Code does not apply to the
determination.
SEC. 5. Section 232 of the Education Code is amended to read:
232. The State Board of Education, the Board of Governors of the
California Community Colleges, and the Trustees of the California
State University shall issue regulations pursuant to Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code, commonly referred to as the rulemaking
provisions of the Administrative Procedure Act, to implement this
chapter.
The Regents of the University of California may issue regulations
to implement this chapter. If the Regents of the University of
California choose to issue regulations it may issue them pursuant to
Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3
of Title 2 of the Government Code, commonly referred to as the
rulemaking provisions of the Administrative Procedure Act.
SEC. 6. Section 92001 is added to the Education Code, to read:
92001. Notwithstanding Section 11425.10 of the Government Code,
Chapter 4.5 (commencing with Section 11400) of Part 1 of Division 3
of Title 2 of the Government Code does not apply to a hearing
conducted by the University of California.
SEC. 7. Section 94323 of the Education Code is amended to read:
94323. (a) This section establishes the procedure for notice and
hearing required under this chapter and, except as provided in
Sections 94319.12 and 94322, may be used in lieu of other notice or
hearing requirements provided in this chapter.
(b) If notice of administrative action is required by this
chapter, the council shall serve notice stating the following:
(1) The action, including the penalties and administrative
sanctions sought.
(2) The grounds for the action with sufficient particularity to
give notice of the transactions, occurrences, violations, or other
matters on which the action is based.
(3) The right to a hearing and the time period within which the
party subject to the notice may request a hearing in writing. The
time period shall not be less than 15 days after service of the
notice unless a longer period is provided by statute.
(4) The right to be present at the hearing, to be represented by
counsel, to cross-examine witnesses, and to present evidence.
(5) The administrative action set forth in the notice will be
taken and shall become final if the party subject to the notice does
not request a hearing in writing within the time period expressed in
the notice.
(c) If a party subject to a notice provided pursuant to
subdivision (b) requests a hearing in writing within 10 days of
receiving the notice, the council shall schedule a hearing. The
hearing shall be held in a location determined pursuant to Section
11508 of the Government Code. The council shall serve reasonable
notice of the time and place for the hearing at least 10 days before
the hearing. The council may continue the date of the hearing upon a
showing of good cause.
(d) (1) Any party, including the council, may submit a written
request to any other party before the hearing to obtain the names and
addresses of any person who has personal knowledge, or who the party
receiving the request claims to have personal knowledge, of any of
the transactions, occurrences, violations, or other matters that are
the bases of the administrative action. In addition, the requesting
party shall have the right to inspect and copy any written statement
made by that person and any writing, as defined by Section 250 of the
Evidence Code, or thing that is in the custody, or under the
control, of the party receiving the request and that is relevant and
not privileged. This subdivision shall constitute the exclusive
method for prehearing discovery. However, nothing herein shall
affect the council's authority, at any time, to investigate, inspect,
monitor, or obtain and copy information under any provision of this
chapter.
(2) The written request described in paragraph (1) shall be made
before the hearing and within 30 days of the service of the notice
described in subdivision (b). Each recipient of a request shall
comply with the request within 15 days of its service by providing
the names and addresses requested and by producing at a reasonable
time at the council's office or another mutually agreed reasonable
place the requested writings and things. The council may extend the
time for response upon a showing of good cause.
(3) Except as provided in this paragraph, no party may introduce
the testimony or statement of any person or any writing or thing into
evidence at the hearing if that party failed to provide the name and
address of the person or to produce the writing or thing for
inspection and copying as provided by this subdivision. A party may
introduce the testimony, statement, writing, or thing that was not
identified or produced as required herein only if there is no
objection or if the party establishes that the person, writing, or
thing was unknown at the time when the response was made to the
written request, the party could not have informed other parties
within a reasonable time after learning of the existence of the
person, writing, or thing, and no party would be prejudiced by the
introduction of the evidence.
(e) Before the hearing has commenced, the council shall issue
subpoenas at the written request of any party for the attendance of
witnesses or the production of documents or other things in the
custody or under the control of the person subject to the subpoena.
Subpoenas issued pursuant to this section shall be subject to Article
11 (commencing with Section 11450.10) of Chapter 4.5 of Part 1 of
Division 3 of Title 2 of the Government Code.
(f) (1) The council shall designate an impartial hearing officer
to conduct the hearing. The hearing officer may administer oaths and
affirmations, regulate the course of the hearing, question
witnesses, and otherwise investigate the issues, take official notice
according to the procedure provided in Division 4 (commencing with
Section 450) of the Evidence Code of any technical or educational
matter in the council's special field of expertise and of any matter
that may be judicially noticed, set the time and place for continued
hearings, fix the time for the filing of briefs and other documents,
direct any party to appear and confer to consider the simplification
of issues by consent, and prepare a statement of decision.
(2) In addition to the sanctions provided in Article 7
(commencing with Section 11430.10) of Chapter 4.5 of Part 1 of
Division 3 of Title 2 of the Government Code, if the council finds
that any party willfully violated, or caused the violation of, that
article, the council shall enter that party's default and impose the
administrative sanction set forth in the notice provided pursuant to
subdivision (b).
(g) (1) Each party at the hearing shall be afforded an opportunity
to present evidence, respond to evidence presented by other parties,
cross-examine, and present written argument or, if permitted by the
hearing officer, oral argument on the issues involved in the hearing.
The council may call any party as a witness who may be examined as
if under cross-examination.
(2) Each party may appear through its representative or through
legal counsel.
(3) The technical rules relating to evidence and witnesses shall
not apply. However, only relevant evidence is admissible.
(4) Oral evidence shall be taken only upon oath or affirmation.
The hearing shall be conducted in the English language. The
proponent of any testimony to be offered by a witness who is not
proficient in English shall provide, at the proponent's cost, an
interpreter proficient in English and the language in which the
witness will testify.
(5) The hearing shall be recorded by tape recording or other
phonographic means unless all parties agree to another method of
recording the proceedings.
(6) (A) At any time 10 or more days before the hearing, any party
may serve on the other parties a copy of any declaration which the
party proposes to introduce in evidence.
(B) The declaration shall be accompanied by a notice indicating
the date of service of the notice and stating that the declarations
will be offered into evidence, the declarants will not be called as
witnesses, and there will be no right of cross-examination unless the
party receiving the notice requests the right to cross-examine, in
writing, within seven days of the service of the declarations and
notice.
(C) If no request for cross-examination is served within seven
days of the service of the declarations and notice described in
subparagraph (B), the right to cross-examination is deemed waived and
the declaration shall have the same effect as if the declarant
testified orally. Notwithstanding this paragraph, a declaration may
be admitted as hearsay evidence without cross-examination.
(7) Disposition of any issues involved in the hearing may be made
by stipulation or settlement.
(8) If a party fails to appear at a hearing, that party's default
shall be taken and the party shall be deemed to have waived the
hearing and agreed to the administrative action and the grounds for
that action described in the notice given pursuant to subdivision
(b). The council shall serve the party with an order of default
including the administrative action ordered. The order shall be
effective upon service or at any other time designated by the
council. The council may relieve a party from an order of default if
the party applies for relief within 15 days after the service of an
order of default and establishes good cause for relief. An
application for relief from default shall not stay the effective date
of the order unless expressly provided by the council.
(h) (1) At any time before the matter is submitted for decision,
the council may amend the notice provided pursuant to subdivision (b)
to set forth any further grounds for the originally noticed
administrative action or any additional administrative action and the
grounds therefor. The statement of the further grounds for the
originally noticed administrative action, or of the grounds for any
additional administrative action, shall be made with sufficient
particularity to give notice of the transactions, occurrences,
violations, or other matters on which the action or additional action
is based. The amended notice shall be served on all parties. All
parties affected by the amended notice shall be given reasonable
opportunity to respond to the amended notice as provided in this
section.
(2) The council may amend the notice after the case is submitted
for decision. The council shall serve each party with notice of the
intended amendment and shall provide the party with an opportunity to
show that the party will be prejudiced by the amendment unless the
case is reopened to permit the party to introduce additional
evidence. If prejudice is shown, the council shall reopen the case
to permit the introduction of additional evidence.
(i) (1) Within 30 days after the conclusion of the hearing or at
another time established by the council, the hearing officer shall
submit a written statement of decision setting forth a recommendation
for a final decision. The written statement of decision shall be
made as provided in Section 11425.50 of the Government Code. The
council shall serve the hearing officer's statement of decision on
each party and its counsel within 10 days of its submission by the
hearing officer.
(2) The council shall make the final decision which shall be based
exclusively on evidence introduced at the hearing. The final
decision shall be supported by substantial evidence in the record.
The council also shall issue a statement of decision as provided in
Section 11425.50 of the Government Code. The council shall issue an
order based on its decision which shall be effective upon service or
at any other time designated by the council. The council shall serve
a copy of the final decision and order, within 10 days of their
issuance, on each party and its counsel.
(3) The council may hold a closed session to deliberate on a
decision to be reached based upon evidence introduced at the hearing.
(4) The council shall serve a certified copy of the complete
record of the hearing, or any part thereof designated by a party,
within 30 days after receiving the party's written request and
payment of the cost of preparing the requested portions of the
record. The complete record shall include all notices and orders
issued by the council, a transcript of the hearing, the exhibits
admitted or rejected, the written evidence and any other papers in
the case, the hearing officer's statement of decision, and the final
decision and order.
(j) The council shall serve all notices and other documents that
are required to be served by this section on each party by personal
delivery, by certified mail, return receipt requested, or by any
other means designated by the council.
(k) (1) Any party aggrieved by the council's final decision and
order may seek judicial review by filing a petition for a writ of
mandate pursuant to Section 1085 of the Code of Civil Procedure
within 30 days of the issuance of the final decision and order. If
review is not sought within that period, the party's right to review
shall be deemed waived.
(2) The aggrieved party shall present the complete record of the
hearing or all portions of the record necessary for the court's
review of the council's final decision and order. The court shall
deny the petition for a writ of mandate if the record submitted by
the party is incomplete. The court shall not consider any matter not
contained in the record. The factual bases supporting the final
decision set forth in the council's statement of decision shall be
conclusive if supported by substantial evidence on the record
considered as a whole.
(3) The final order shall not be stayed or enjoined during review
except upon the court's grant of an order on a party's application
after due notice to the council and the Attorney General. The order
shall be granted only if the party establishes the substantial
likelihood that it will prevail on the merits and posts a bond
sufficient to protect fully the interests of the students, the
council, and the Student Tuition Recovery Fund, from any loss.
(l) The council may adopt regulations establishing alternative
means of providing notice and an opportunity to be heard in
circumstances in which a full hearing is not required by law.
(m) For purposes of this section, "good cause" shall require
sufficient ground or reason for the determination to be made by the
council.
SEC. 8. Section 755.5 of the Evidence Code is amended to read:
755.5. (a) During any medical examination, requested by an
insurer or by the defendant, of a person who is a party to a civil
action and who does not proficiently speak or understand the English
language, conducted for the purpose of determining damages in a civil
action, an interpreter shall be present to interpret the examination
in a language that the person understands. The interpreter shall be
certified pursuant to Article 8 (commencing with Section 11435.05)
of Chapter 4.5 of Part 1 of Division 3 of Title 2 of the Government
Code.
(b) The fees of interpreters used under subdivision (a) shall be
paid by the insurer or defendant requesting the medical examination.
(c) The record of, or testimony concerning, any medical
examination conducted in violation of subdivision (a) shall be
inadmissible in the civil action for which it was conducted or any
other civil action.
(d) This section does not prohibit the presence of any other
person to assist a party.
(e) In the event that interpreters certified pursuant to Article 8
(commencing with Section 11435.05) of Chapter 4.5 of Part 1 of
Division 3 of Title 2 of the Government Code cannot be present at the
medical examination, upon stipulation of the parties the requester
specified in subdivision (a) shall have the discretionary authority
to provisionally qualify and utilize use
other interpreters.
SEC. 9. Section 3541.3 of the Government Code is amended to read:
3541.3. Notwithstanding Section 11425.10, Chapter 4.5
(commencing with Section 11400) of Part 1 of Division 3 of Title 2
does not apply to a hearing by the board under this chapter, except a
hearing to determine an unfair The board shall have
all of the following powers and duties:
(a) To determine in disputed cases, or otherwise approve,
appropriate units.
(b) To determine in disputed cases whether a particular item is
within or without the scope of representation.
(c) To arrange for and supervise representation elections
which shall be conducted by means of secret ballot elections, and
certify the results of the elections.
(d) To establish lists of persons broadly representative of the
public and qualified by experience to be available to serve as
mediators, arbitrators, or factfinders. In no case shall these lists
include persons who are on the staff of the board.
(e) To establish by regulation appropriate procedures for review
of proposals to change unit determinations.
(f) Within its discretion, to conduct studies relating to
employer-employee relations, including the collection, analysis, and
making available of data relating to wages, benefits, and employment
practices in public and private employment, and, when it appears
necessary in its judgment to the accomplishment of the purposes of
this chapter, recommend legislation. The board shall report to the
Legislature by October 15 of each year on its activities during the
immediately preceding fiscal year. The board may enter into
contracts to develop and maintain research and training programs
designed to assist public employers and employee organizations in the
discharge of their mutual responsibilities under this chapter.
(g) To adopt, pursuant to Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2, rules and regulations to
carry out the provisions and effectuate the purposes and policies of
this chapter.
(h) To hold hearings, subpoena witnesses, administer oaths, take
the testimony or deposition of any person, and, in connection
therewith, to issue subpoenas duces tecum to require the production
and examination of any employer's or employee organization's records,
books, or papers relating to any matter within its jurisdiction.
The administrative adjudication provisions of the
Administrative Procedure Act (Chapter 4.5 (commencing with Section
11400) and Chapter 5 (commencing with Section 11500) of Part 1 of
Division 3 of Title 2) do not apply to a hearing by the board under
this chapter, except that Chapter 4.5 (commencing with Section 11400)
applies to a hearing to determine an unfair
Notwithstanding Section 11425.10, Chapter 4.5 (commencing with
Section 11400) of Part 1 of Division 3 of Title 2 does not apply to a
hearing by the board under this chapter, except a hearing to
determine an unfair practice charge.
(i) To investigate unfair practice charges or alleged violations
of this chapter, and take any action and make any determinations in
respect of these charges or alleged violations as the board deems
necessary to effectuate the policies of this chapter.
(j) To bring an action in a court of competent jurisdiction to
enforce any of its orders, decisions, or rulings, or to enforce the
refusal to obey a subpoena. Upon issuance of a complaint charging
that any person has engaged in or is engaging in an unfair practice,
the board may petition the court for appropriate temporary relief or
restraining order.
(k) To delegate its powers to any member of the board or to any
person appointed by the board for the performance of its functions,
except that no fewer than two board members may participate in the
determination of any ruling or decision on the merits of any dispute
coming before it, and except that a decision to refuse to issue a
complaint shall require the approval of two board members.
(l) To decide contested matters involving recognition,
certification, or decertification of employee organizations.
(m) To consider and decide issues relating to rights, privileges,
and duties of an employee organization in the event of a merger,
amalgamation, or transfer of jurisdiction between two or more
employee organizations.
(n) To take any other action as the board deems necessary to
discharge its powers and duties and otherwise to effectuate the
purposes of this chapter.
SEC. 10. Section 3563 of the Government Code is amended to read:
3563. This chapter shall be administered by the Public Employment
Relations Board. In administering this chapter the board shall have
all of the following rights, powers, duties and responsibilities:
(a) To determine in disputed cases, or otherwise approve,
appropriate units.
(b) To determine in disputed cases whether a particular item is
within or without the scope of representation.
(c) To arrange for and supervise representation elections which
shall be conducted by means of secret ballot elections, and to
certify the results of the elections.
(d) To establish lists of persons broadly representative of the
public and qualified by experience to be available to serve as
mediators, arbitrators, or factfinders. In no case shall the lists
include persons who are on the staff of the board.
(e) To establish by regulation appropriate procedures for review
of proposals to change unit determinations.
(f) To adopt, pursuant to Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2, rules and regulations to
carry out the provisions and effectuate the purposes and policies of
this chapter.
(g) To hold hearings, subpoena witnesses, administer oaths, take
the testimony or deposition of any person, and, in connection
therewith, to issue subpoenas duces tecum to require the production
and examination of any employer's or employee organization's records,
books, or papers relating to any matter within its jurisdiction,
except for those records, books, or papers confidential under
statute. Notwithstanding Section 11425.10, Chapter 4.5 (commencing
with Section 11400) of Part 1
of Division 3 of Title 2 does not apply to a hearing by the board
under this section, except a hearing to determine an unfair practice
charge.
(h) To investigate unfair practice charges or alleged violations
of this chapter, and to take any action and make any determinations
in respect of these charges or alleged violations as the board deems
necessary to effectuate the policies of this chapter.
(i) To bring an action in a court of competent jurisdiction to
enforce any of its orders, decisions or rulings or to enforce the
refusal to obey a subpoena. Upon issuance of a complaint charging
that any person has engaged in or is engaging in an unfair practice,
the board may petition the court for appropriate temporary relief or
restraining order.
(j) To delegate its powers to any member of the board or to any
person appointed by the board for the performance of its functions,
except that no fewer than two board members may participate in the
determination of any ruling or decision on the merits of any dispute
coming before it and except that a decision to refuse to issue a
complaint shall require the approval of two board members.
(k) To decide contested matters involving recognition,
certification, or decertification of employee organizations.
(l) To consider and decide issues relating to rights, privileges,
and duties of an employee organization in the event of a merger,
amalgamation, or transfer of jurisdiction between two or more
employee organizations.
(m) To take any other action as the board deems necessary to
discharge its powers and duties and otherwise to effectuate the
purposes of this chapter.
SEC. 11. Section 8541 of the Government Code is amended to read:
8541. In carrying out its duties and responsibilities, the
commission shall have all of the following powers:
(a) To meet at any time and place as it may deem proper.
(b) As a body or, on the authorization of the commission, as a
subcommittee composed of one or more members, to hold hearings at any
time and place as it may deem proper.
(c) To issue subpoenas to compel the attendance of witnesses and
the production of books, records, papers, accounts, reports, and
documents.
(d) To administer oaths.
(e) To employ, pursuant to laws and regulations governing state
civil service, a secretary and any clerical, legal, and technical
assistants as may appear necessary.
(f) To contract with any other agencies, public or private, as it
deems necessary, for the rendition and affording of any services,
facilities, studies and reports to the commission as will best assist
it to carry out its duties and responsibilities.
(g) To cooperate with and to secure the cooperation of county,
city, city and county, and other local law enforcement agencies in
investigating any matter within the scope of its duties and
responsibilities, and to direct the sheriff of any county or any
marshal to serve subpoenas, orders, and other process.
(h) To certify to the superior court of any county in which
proceedings are held, the facts concerning the disobedience or
resistance, by any person, of any lawful order, or the refusal of any
person to respond to a subpoena, to take the oath or affirmation as
a witness, or to be examined, or the misconduct of any person during
a hearing; and to receive the assistance of the court in enforcing
orders and process, in the manner prescribed by Article 12
(commencing with Section 11455.10) of Chapter 4.5 of Part 1 of
Division 3.
(i) To cooperate with every department, agency, or instrumentality
in the state government; and to secure directly from every
department, agency, or instrumentality full cooperation, access to
its records, and access to any information, suggestions, estimates,
data, and statistics it may have available.
(j) To authorize its agents and employees to absent themselves
from the state where necessary for the performance of their duties.
(k) To do any and all other things necessary or convenient to
enable it fully and adequately to perform its duties and to exercise
the powers expressly granted it, notwithstanding any authority
expressly granted to any officer or employee of the executive branch
of state government.
SEC. 12. Section 11018 of the Government Code is amended to read:
11018. Every state agency which is authorized by any law to
conduct administrative hearings but is not subject to Chapter 5
(commencing with Section 11500) shall nonetheless comply with
Sections 11435.20, 11435.25, and 11435.55 relative to the furnishing
of language assistance at the hearing.
SEC. 13. Section 11125.7 of the Government Code is amended to
read:
11125.7. (a) Except as otherwise provided in this section, the
state body shall provide an opportunity for members of the public to
directly address the state body on each agenda item before or during
the state body's discussion or consideration of the item. This
section is not applicable if the agenda item has already been
considered by a committee composed exclusively of members of the
state body at a public meeting where interested members of the public
were afforded the opportunity to address the committee on the item,
before or during the committee's consideration of the item, unless
the item has been substantially changed since the committee heard the
item, as determined by the state body.
(b) The state body may adopt reasonable regulations to ensure that
the intent of subdivision (a) is carried out, including, but not
limited to, regulations limiting the total amount of time allocated
for public comment on particular issues and for each individual
speaker.
(c) This section is not applicable to closed sessions held
pursuant to Section 11126.
(d) This section is not applicable to decisions regarding
proceedings held pursuant to Chapter 5 (commencing with Section
11500), relating to administrative adjudication, or to the conduct of
those proceedings.
(e) This section is not applicable to hearings conducted by the
State Board of Control pursuant to Sections 13963 and 13963.1.
(f) This section is not applicable to agenda items which involve
decisions of the Public Utilities Commission regarding adjudicatory
hearings held pursuant to Chapter 9 (commencing with Section 1701) of
Part 1 of Division 1 of the Public Utilities Code. For all other
agenda items, the commission shall provide members of the public,
other than those who have already participated in the proceedings
underlying the agenda item, an opportunity to directly address the
commission before or during the commission's consideration of the
item.
SEC. 14. Section 11340.4 is added to the Government Code, to read:
11340.4. (a) The office is authorized and directed to do the
following:
(1) Study the subject of administrative rulemaking in all its
aspects.
(2) In the interest of fairness, uniformity, and the expedition of
business, submit its suggestions to the various agencies.
(3) Report its recommendations to the Governor and Legislature at
the commencement of each general session.
(b) All agencies of the state shall give the office ready access
to their records and full information and reasonable assistance in
any matter of research requiring recourse to them or to data within
their knowledge or control. Nothing in this subdivision authorizes
an agency to provide access to records required by statute to be kept
confidential.
SEC. 15. An article heading is added immediately preceding Section
11370 to Chapter 4 of Part 1 of Division 3 of Title 2 of the
Government Code, to read:
Article 1. General Provisions
SEC. 16. Section 11370 of the Government Code is amended to read:
11370. Chapter 3.5 (commencing with Section 11340), Chapter 4
(commencing with Section 11370), Chapter 4.5 (commencing with Section
11400), and Chapter 5 (commencing with Section 11500) constitute,
and may be cited as, the Administrative Procedure Act.
SEC. 17. Section 11370.3 of the Government Code is amended to
read:
11370.3. The director shall appoint and maintain a staff of
full-time, and may appoint pro tempore part-time, administrative law
judges qualified under Section 11502 which is sufficient to fill the
needs of the various state agencies. The director shall also appoint
any other technical and clerical personnel as may be required to
perform the duties of the office. The director shall assign an
administrative law judge for any proceeding arising under Chapter 5
(commencing with Section 11500) and, upon request from any agency,
may assign an administrative law judge to conduct other
administrative proceedings not arising under that chapter and shall
assign hearing reporters as required. Any administrative law judge
or other employee so assigned shall be deemed an employee of the
office and not of the agency to which he or she is assigned. When
not engaged in hearing cases, administrative law judges may be
assigned by the director to perform other duties vested in or
required of the office, including those provided for in Section
11370.5.
SEC. 18. Section 11370.5 of the Government Code is amended to
read:
11370.5. The office is authorized and directed to study the
subject of administrative adjudication in all its aspects; to submit
its suggestions to the various agencies in the interests of fairness,
uniformity and the expedition of business; and to report its
recommendations to the Governor and Legislature at the commencement
of each general session. All departments, agencies, officers, and
employees of the state shall give the office ready access to their
records and full information and reasonable assistance in any matter
of research requiring recourse to them or to data within their
knowledge or control. Nothing in this section authorizes an agency
to provide access to records required by statute to be kept
confidential.
SEC. 19. An article heading is added immediately preceding Section
11371 to Chapter 4 of Part 1 of Division 3 of Title 2 of the
Government Code, to read:
Article 2. Medical Quality Hearing Panel
SEC. 20. Article 3 (commencing with Section 11380) is added to
Chapter 4 of Part 1 of Division 3 of Title 2 of the Government Code,
to read:
Article 3. State Agency Reports and Forms Appeals
11380. (a) (1) The office shall hear and render a decision on any
appeal filed by a business, pursuant to subdivision (c) of Section
14775, in the event the business contests the certification by a
state agency head that reporting requirements meet established
criteria and shall not be eliminated.
(2) Before a business may file an appeal with the office pursuant
to subdivision (c) of Section 14775, the business shall file a
challenge to a form or report required by a state agency with that
state agency. Within 60 days of filing the challenge with a state
agency, the state agency shall either eliminate the form or report or
provide written justification for its continued use.
(3) A business may appeal a state agency's written justification
for the continued use of a form or report with the office.
(4) If a state agency fails to respond within 60 days of the
filing of a challenge pursuant to paragraph (2), the business shall
have an immediate right to file an appeal with the office.
(b) No later than January 1, 1996, the office shall adopt
procedures governing the filing, hearing, and disposition of appeals.
The procedures shall include, but shall not be limited to,
provisions that assure that appeals are heard and decisions rendered
by the office in a fair, impartial, and timely fashion.
(c) The office may charge appellants a reasonable fee to pay for
costs it incurs in complying with this section.
SEC. 21. Chapter 4.5 (commencing with Section 11400) is added to
Part 1 of Division 3 of Title 2 of the Government Code, to read:
CHAPTER 4.5. ADMINISTRATIVE ADJUDICATION: GENERAL PROVISIONS
Article 1. Preliminary Provisions
11400. (a) This chapter and Chapter 5 (commencing with Section
11500) constitute the administrative adjudication provisions of the
Administrative Procedure Act.
(b) A reference in any other statute or in a rule of court,
executive order, or regulation, to a provision formerly found in
Chapter 5 (commencing with Section 11500) that is superseded by a
provision of this chapter, means the applicable provision of this
chapter.
11400.10. (a) This chapter is operative on July 1, 1997.
(b) This chapter is applicable to an adjudicative proceeding
commenced on or after July 1, 1997.
(c) This chapter is not applicable to an adjudicative proceeding
commenced before July 1, 1997, except an adjudicative proceeding
conducted on a remand from a court or another agency on or after July
1, 1997.
11400.20. (a) Before, on, or after July 1, 1997, an agency may
adopt interim or permanent regulations to govern an adjudicative
proceeding under this chapter.
(b) Except as provided in Section 11351:
(1) Interim regulations need not comply with Article 5 (commencing
with Section 11346) or Article 6 (commencing with Section 11349) of
Chapter 3.5, but are governed by Chapter 3.5 (commencing with Section
11340) in all other respects.
(2) Interim regulations expire on December 31, 1998, unless
earlier terminated or replaced by or readopted as permanent
regulations under paragraph (3). If on December 31, 1998, an agency
has completed proceedings to replace or readopt interim regulations
and has submitted permanent regulations for review by the Office of
Administrative Law, but permanent regulations have not yet been filed
with the Secretary of State, the interim regulations are extended
until the date permanent regulations are filed with the Secretary of
State or March 31, 1999, whichever is earlier.
(3) Permanent regulations are subject to all the provisions of
Chapter 3.5 (commencing with Section 11340), except that if by
December 31, 1998, an agency has submitted the regulations for review
by the Office of Administrative Law, the regulations are not subject
to review for necessity under Section 11349.1 or 11350.
Article 2. Definitions
11405.10. Unless the provision or context requires otherwise, the
definitions in this article govern the construction of this chapter.
11405.20. "Adjudicative proceeding" means an evidentiary hearing
for determination of facts pursuant to which an agency formulates and
issues a decision.
11405.30. "Agency" means a board, bureau, commission, department,
division, office, officer, or other administrative unit, including
the agency head, and one or more members of the agency head or agency
employees or other persons directly or indirectly purporting to act
on behalf of or under the authority of the agency head. To the
extent it purports to exercise authority pursuant to this chapter, an
administrative unit otherwise qualifying as an agency shall be
treated as a separate agency even if the unit is located within or
subordinate to another agency.
11405.40. "Agency head" means a person or body in which the
ultimate legal authority of an agency is vested, and includes a
person or body to which the power to act is delegated pursuant to
authority to delegate the agency's power to hear and decide.
11405.50. (a) "Decision" means an agency action of specific
application that determines a legal right, duty, privilege, immunity,
or other legal interest of a particular person.
(b) Nothing in this section limits any of the following:
(1) The precedential effect of a decision under Section 11425.60.
(2) The authority of an agency to make a declaratory decision
pursuant to Article 14 (commencing with Section 11465.10).
11405.60. "Party" includes the agency that is taking action, the
person to which the agency action is directed, and any other person
named as a party or allowed to appear or intervene in the proceeding.
If the agency that is taking action and the agency that is
conducting the adjudicative proceeding are separate agencies, the
agency that is taking action is a party and the agency that is
conducting the adjudicative proceeding is not a party.
11405.70. "Person" includes an individual, partnership,
corporation, governmental subdivision or unit of a governmental
subdivision, or public or private organization or entity of any
character.
11405.80. "Presiding officer" means the agency head, member of
the agency head, administrative law judge, hearing officer, or other
person who presides in an adjudicative proceeding.
Article 3. Application of Chapter
11410.10. This chapter applies to a decision by an agency if,
under the federal or state Constitution or a federal or state
statute, an evidentiary hearing for determination of facts is
required for formulation and issuance of the decision.
11410.20. Except as otherwise expressly provided by statute:
(a) This chapter applies to all agencies of the state.
(b) This chapter does not apply to the Legislature, the courts or
judicial branch, or the Governor or office of the Governor.
11410.30. (a) As used in this section, "local agency" means a
county, city, district, public authority, public agency, or other
political subdivision or public corporation in the state other than
the state.
(b) This chapter does not apply to a local agency except to the
extent the provisions are made applicable by statute.
(c) This chapter applies to an agency created or appointed by
joint or concerted action of the state and one or more local
agencies.
11410.40. Notwithstanding any other provision of this article, by
regulation, ordinance, or other appropriate action, an agency may
adopt this chapter or any of its provisions for the formulation and
issuance of a decision, even though the agency or decision is exempt
from application of this chapter.
11410.50. This chapter applies to an adjudicative proceeding
required to be conducted under Chapter 5 (commencing with Section
11500) unless the statutes relating to the proceeding provide
otherwise.
Article 4. Governing Procedure
11415.10. (a) The governing procedure by which an agency conducts
an adjudicative proceeding is determined by the statutes and
regulations applicable to that proceeding. If no other governing
procedure is provided by statute or regulation, an agency may conduct
an adjudicative proceeding under the administrative adjudication
provisions of the Administrative Procedure Act.
(b) This chapter supplements the governing procedure by which an
agency conducts an adjudicative proceeding.
11415.20. A state statute or a federal statute or regulation
applicable to a particular agency or decision prevails over a
conflicting or inconsistent provision of this chapter.
11415.30. (a) To the extent necessary to avoid a loss or delay of
funds or services from the federal government that would otherwise
be available to the state, the Governor may do any of the following
by executive order:
(1) Suspend, in whole or in part, any administrative adjudication
provision of the Administrative Procedure Act.
(2) Adopt a rule of procedure that will avoid the loss or delay.
(b) The Governor shall rescind an executive order issued under
this section as soon as it is no longer necessary to prevent the loss
or delay of funds or services from the federal government.
(c) If an administrative adjudication provision is suspended or
rule of procedure is adopted pursuant to this section, the Governor
shall promptly report the suspension or adoption to the Legislature.
The report shall include recommendations concerning any legislation
that may be necessary to conform the provision to federal law.
11415.40. Except to the extent prohibited by another statute or
regulation, a person may waive a right conferred on the person by the
administrative adjudication provisions of the Administrative
Procedure Act.
11415.50. (a) An agency may provide any appropriate procedure for
a decision for which an adjudicative proceeding is not required.
(b) An adjudicative proceeding is not required for informal
factfinding or an informal investigatory hearing, or a decision to
initiate or not to initiate an investigation, prosecution, or other
proceeding before the agency, another agency, or a court, whether in
response to an application for an agency decision or otherwise.
11415.60. (a) An agency may formulate and issue a decision by
settlement, pursuant to an agreement of the parties, without
conducting an adjudicative proceeding. Subject to subdivision (c),
the settlement may be on any terms the parties determine are
appropriate. Notwithstanding any other provision of law, no evidence
of an offer of compromise or settlement made in settlement
negotiations is admissible in an adjudicative proceeding or civil
action, whether as affirmative evidence, by way of impeachment, or
for any other purpose.
(b) A settlement may be made before or after issuance of an agency
pleading, except that in an adjudicative proceeding to determine
whether an occupational license should be revoked, suspended,
limited, or conditioned, a settlement may not be made before issuance
of the agency pleading. A settlement may be made before, during, or
after the hearing.
(c) A settlement is subject to any necessary agency approval. An
agency head may delegate the power to approve a settlement. The
terms of a settlement may not be contrary to statute or regulation,
except that the settlement may include sanctions the agency would
otherwise lack power to impose.
Article 5. Alternative Dispute Resolution
11420.10. (a) An agency, with the consent of all the parties, may
refer a dispute that is the subject of an adjudicative proceeding
for resolution by any of the following means:
(1) Mediation by a neutral mediator.
(2) Binding arbitration by a neutral arbitrator. An award in a
binding arbitration is subject to judicial review in the manner
provided in Chapter 4 (commencing with Section 1285) of Title 9 of
Part 3 of the Code of Civil Procedure.
(3) Nonbinding arbitration by a neutral arbitrator. The
arbitrator's decision in a nonbinding arbitration is final unless
within 30 days after the arbitrator delivers the award to the agency
head a party requests that the agency conduct a de novo adjudicative
proceeding. If the decision in the de novo proceeding is not more
favorable to the party electing the de novo proceeding, the party
shall pay the costs and fees specified in Section 1141.21 of the Code
of Civil Procedure insofar as applicable in the adjudicative
proceeding.
(b) If another statute requires mediation or arbitration in an
adjudicative proceeding, that statute prevails over this section.
(c) This section does not apply in an adjudicative proceeding to
the extent an agency by regulation provides that this section is not
applicable in a proceeding of the agency.
11420.20. (a) The Office of Administrative Hearings shall adopt
and promulgate model regulations for alternative dispute resolution
under this article. The model regulations govern alternative dispute
resolution by an agency under this article, except to the extent the
agency by regulation provides inconsistent rules or provides that
the model regulations are not applicable in a proceeding of the
agency.
(b) The model regulations shall include provisions for selection
and compensation of a mediator or arbitrator, qualifications of a
mediator or arbitrator, and confidentiality of the mediation or
arbitration proceeding.
11420.30. Notwithstanding any other provision of law, a
communication made in alternative dispute resolution under this
article is protected to the following extent:
(a) Anything said, any admission made, and any document prepared
in the course of, or pursuant to, mediation under this article is a
confidential communication, and a party to the mediation has a
privilege to refuse to disclose and to prevent another from
disclosing the communication, whether in an adjudicative proceeding,
civil action, or other proceeding. This subdivision does not limit
the admissibility of evidence if all parties to the proceedings
consent.
(b) No reference to nonbinding arbitration proceedings, a decision
of the arbitrator that is rejected by a party's request for a de
novo adjudicative proceeding, the evidence produced, or any other
aspect of the arbitration may be made in an adjudicative proceeding
or civil action, whether as affirmative evidence, by way of
impeachment, or for any other purpose.
(c) No mediator or arbitrator is competent to testify in a
subsequent administrative or civil proceeding as to any statement,
conduct, decision, or order occurring at, or in conjunction with, the
alternative dispute resolution.
Article 6. Administrative Adjudication Bill of Rights
11425.10. (a) The governing procedure by which an agency conducts
an adjudicative proceeding is subject to all of the following
requirements:
(1) The agency shall give the person to which the agency action is
directed notice and an opportunity to be heard, including the
opportunity to present and rebut evidence.
(2) The agency shall make available to the person to which the
agency action is directed a copy of the governing procedure,
including a statement whether Chapter 5 (commencing with Section
11500) is applicable to the proceeding.
(3) The hearing shall be open to public observation as provided in
Section 11425.20.
(4) The adjudicative function shall be separated from the
investigative, prosecutorial, and advocacy functions within the
agency as provided in Section 11425.30.
(5) The presiding officer is subject to disqualification for bias,
prejudice, or interest as provided in Section 11425.40.
(6) The decision shall be in writing, be based on the record, and
include a statement of the factual and legal basis of the decision as
provided in Section 11425.50.
(7) A decision may not be relied on as precedent unless the agency
designates and indexes the decision as precedent as provided in
Section 11425.60.
(8) Ex parte communications shall be restricted as provided in
Article 7 (commencing with Section 11430.10).
(9) Language assistance shall be made available as provided in
Article 8 (commencing with Section 11435.05) by an agency described
in Section 11018 or 11435.15.
(b) The requirements of this section apply to the governing
procedure by which an agency conducts an adjudicative proceeding
without further action by the agency, and prevail over a conflicting
or inconsistent provision of the governing procedure,
subject to Section 11415.20.
(c) The 11415.20. The governing procedure by
which an agency conducts an adjudicative proceeding may include
provisions equivalent to, or more protective of the rights of the
person to which the agency action is directed than, the requirements
of this section.
11425.20. (a) A hearing shall be open to public observation.
Nothing in this subdivision limits the authority of the presiding
officer to order closure of a hearing or make other protective orders
to the extent necessary or proper for any of the following purposes:
(1) To satisfy the United States Constitution, the California
Constitution, federal or state statute, or other law,
including but not limited to, laws protecting privileged,
confidential, or other protected information.
(2) To ensure a fair hearing in the circumstances of the
particular case.
(3) To conduct the hearing, including the manner of examining
witnesses, in a way that is appropriate to protect a minor witness or
a witness with a developmental disability, as defined in Section
4512 of the Welfare and Institutions Code, from intimidation or other
harm, taking into account the rights of all persons.
(b) To the extent a hearing is conducted by telephone, television,
or other electronic means, subdivision (a) is satisfied if members
of the public have an opportunity to do both of the following:
(1) At reasonable times, hear or inspect the agency's record, and
inspect any transcript obtained by the agency.
(2) Be physically present at the place where the presiding officer
is conducting the hearing.
(c) This section does not apply to a prehearing conference,
settlement conference, or proceedings for alternative dispute
resolution other than binding arbitration.
11425.30. (a) A person may not serve as presiding officer in an
adjudicative proceeding in any of the following circumstances:
(1) The person has served as investigator, prosecutor, or advocate
in the proceeding or its pre-adjudicative stage.
(2) The person is subject to the authority, direction, or
discretion of a person who has served as investigator, prosecutor, or
advocate in the proceeding or its pre-adjudicative stage.
(b) Notwithstanding subdivision (a):
(1) A person may serve as presiding officer at successive stages
of an adjudicative proceeding.
(2) A person who has participated only as a decisionmaker or as an
advisor to a decisionmaker in a determination of probable cause or
other equivalent preliminary determination in an adjudicative
proceeding or its pre-adjudicative stage may serve as presiding
officer in the proceeding.
(c) The provisions of this section governing separation of
functions as to the presiding officer also govern separation of
functions as to the agency head or other person or body to which the
power to hear or decide in the proceeding is delegated.
11425.40. (a) The presiding officer is subject to
disqualification for bias, prejudice, or interest in the proceeding.
(b) It is not alone or in itself grounds for disqualification,
without further evidence of bias, prejudice, or interest, that the
presiding officer:
(1) Is or is not a member of a racial, ethnic, religious, sexual,
or similar group and the proceeding involves the rights of that
group.
(2) Has experience, technical competence, or specialized knowledge
of, or has in any capacity expressed a view on, a legal, factual, or
policy issue presented in the proceeding.
(3) Has as a lawyer or public official participated in the
drafting of laws or regulations or in the effort to pass or defeat
laws or regulations, the meaning, effect, or application of which is
in issue in the proceeding.
(c) The provisions of this section governing disqualification of
the presiding officer also govern disqualification of the agency head
or other person or body to which the power to hear or decide in the
proceeding is delegated.
(d) An agency that conducts an adjudicative proceeding may provide
by regulation for peremptory challenge of the presiding officer.
11425.50. (a) The decision shall be in writing and shall include
a statement of the factual and legal basis for the decision
as to each of the principal controverted issues .
(b) The statement of the factual basis for the decision may be in
the language of, or by reference to, the pleadings. If the statement
is no more than mere repetition or paraphrase of the relevant
statute or regulation, the statement shall be accompanied by a
concise and explicit statement of the underlying facts of record that
support the decision. If the factual basis for the decision
includes a determination based substantially on the credibility of a
witness, the statement shall identify any specific evidence of the
observed demeanor, manner, or attitude of the witness that supports
the determination, and on judicial review the court shall give great
weight to the determination to the extent the determination
identifies the observed demeanor, manner, or attitude of the witness
that supports it.
(c) The statement of the factual basis for the decision shall be
based exclusively on the evidence of record in the proceeding and on
matters officially noticed in the proceeding. The presiding officer'
s experience, technical competence, and specialized knowledge may be
used in evaluating evidence.
(d) Nothing in this section limits the information that may be
contained in the decision, including a summary of evidence relied on.
(e) A penalty may not be based on a guideline, criterion,
bulletin, manual, instruction, order, standard of general application
or other rule unless it has been adopted as a regulation pursuant to
Chapter 3.5 (commencing with Section 11340).
11425.60. (a) A decision may not be expressly relied on as
precedent unless it is designated as a precedent decision by the
agency.
(b) An agency may designate as a precedent decision a decision or
part of a decision that contains a significant legal or policy
determination of general application that is likely to recur.
Designation of a decision or part of a decision as a precedent
decision is not rulemaking and need not be done under Chapter 3.5
(commencing with Section 11340). An agency's designation of a
decision or part of a decision, or failure to designate a decision or
part of a decision, as a precedent decision is not subject to
judicial review.
(c) An agency shall maintain an index of significant legal and
policy determinations made in precedent decisions. The index shall
be updated not less frequently than annually, unless no precedent
decision has been designated since the last preceding update. The
index shall be made available to the public by subscription, and its
availability shall be publicized annually in the California
Regulatory Notice Register.
(d) This section applies to decisions issued on or after July 1,
1997. Nothing in this section precludes an agency from designating as
a precedent decision a decision issued before July 1, 1997.
Article 7. Ex Parte Communications
11430.10. (a) While the proceeding is pending there shall be no
communication, direct or indirect, regarding any issue in the
proceeding, to the presiding officer from an employee or
representative of an agency that is a party or from an interested
person outside the agency, without notice and opportunity for all
parties to participate in the communication.
(b) Nothing in this section precludes a communication, including a
communication from an employee or representative of an agency that
is a party, made on the record at the hearing.
(c) For the purpose of this section, a proceeding is pending from
the issuance of the agency's pleading, or from an application for an
agency decision, whichever is earlier.
11430.20. A communication otherwise prohibited by Section
11430.10 is permissible in any of the following circumstances:
(a) The communication is required for disposition of an ex parte
matter specifically authorized by statute.
(b) The communication concerns a matter of procedure or practice,
including a request for a continuance, that is not in controversy.
11430.30. A communication otherwise prohibited by Section
11430.10 from an employee or representative of an agency that is a
party to the presiding officer is permissible in any of the following
circumstances:
(a) The communication is for the purpose of assistance and advice
to the presiding officer from a person who has not served as
investigator, prosecutor, or advocate in the proceeding or its
preadjudicative stage. An assistant or advisor may evaluate the
evidence in the record but shall not furnish, augment, diminish, or
modify the evidence in the record.
(b) The communication is for the purpose of advising the presiding
officer concerning a settlement proposal advocated by the advisor.
(c) The communication is for the purpose of advising the presiding
officer concerning any of the following matters in an adjudicative
proceeding that is nonprosecutorial in character, provided the
content of the advice is disclosed on the record and all parties are
given an opportunity to address it in the manner provided in Section
11430.50:
(1) The advice involves a technical issue in the proceeding and
the advice is necessary for, and is not otherwise reasonably
available to, the presiding officer.
(2) The advice involves an issue in a proceeding of the San
Francisco Bay Conservation and Development Commission, California
Tahoe Regional Planning Agency, Delta Protection Commission, Water
Resources Control Board, or a regional water quality control board.
11430.40. If, while the proceeding is pending but before serving
as presiding officer, a person receives a communication of a type
that would be in violation of this article if received while serving
as presiding officer, the person, promptly after starting to serve,
shall disclose the content of the communication on the record and
give all parties an opportunity to address it in the manner provided
in Section 11430.50.
11430.50. (a) If a presiding officer receives a communication in
violation of this article, the presiding officer shall make all of
the following a part of the record in the proceeding:
(1) If the communication is written, the writing and any written
response of the presiding officer to the communication.
(2) If the communication is oral, a memorandum stating the
substance of the communication, any response made by the presiding
officer, and the identity of each person from whom the presiding
officer received the communication.
(b) The presiding officer shall notify all parties that a
communication described in this section has been made a part of the
record.
(c) If a party requests an opportunity to address the
communication within 10 days after receipt of notice of the
communication:
(1) The party shall be allowed to comment on the communication.
(2) The presiding officer has discretion to allow the party to
present evidence concerning the subject of the communication,
including discretion to reopen a hearing that has been concluded.
11430.60. Receipt by the presiding officer of a communication in
violation of this article may be grounds for disqualification of the
presiding officer. If the presiding officer is disqualified, the
portion of the record pertaining to the ex parte communication may be
sealed by protective order of the disqualified presiding officer.
11430.70. The provisions of this article governing ex parte
communications to the presiding officer also govern ex parte
communications to the agency head or other person or body to which
the power to hear or decide in the proceeding is delegated.
11430.80. (a) There shall be no communication, direct or
indirect, while a proceeding is pending regarding the merits of any
issue in the proceeding, between the presiding officer and the agency
head or other person or body to which the power to hear or decide in
the proceeding is delegated.
(b) This section does not apply where the agency head or other
person or body to which the power to hear or decide in the proceeding
is delegated serves as both presiding officer and agency head.
Article 8. Language Assistance
11435.05. As used in this article, "language assistance" means
oral interpretation or written translation into English of a language
other than English or of English into another language for a party
or witness who cannot speak or understand English or who can do so
only with difficulty.
11435.10. Nothing in this article limits the application or
effect of Section 754 of the Evidence Code to interpretation for a
deaf or hard-of-hearing party or witness in an adjudicative
proceeding.
11435.15. (a) The following state agencies shall provide language
assistance in adjudicative proceedings to the extent provided in
this article:
Agricultural Labor Relations Board
Department of Alcohol and Drug Abuse
State Athletic Commission California
Unemployment Insurance Appeals Board
Board of Prison Terms
State Board of Barbering and Cosmetology
State Department of Developmental Services
Public Employment Relations Board
Franchise Tax Board
State Department of Health Services
Department of Housing and Community Development
Department of Industrial Relations
State Department of Mental Health
Department of Motor Vehicles
Notary Public Section, Office of the Secretary of State
Public Utilities Commission
Office of Statewide Health Planning and Development
State Department of Social Services
Workers' Compensation Appeals Board
Department of the Youth Authority
Youthful Offender Parole Board
Bureau of Employment Agencies
Department of Insurance
State Personnel Board
California Board of Podiatric Medicine
Board of Psychology
(b) Nothing in this section prevents an agency other than an
agency listed in subdivision (a) from electing to adopt any of the
procedures in this article, provided that any selection of an
interpreter is subject to Section 11435.30.
(c) Nothing in this section prohibits an agency from providing an
interpreter during a proceeding to which this chapter does not apply,
including an informal factfinding or informal investigatory hearing.
(d) This article applies to an agency listed in subdivision (a)
notwithstanding a general provision that this chapter does not apply
to some or all of an agency's adjudicative proceedings.
11435.20. (a) The hearing, or any medical examination conducted
for the purpose of determining compensation or monetary award, shall
be conducted in English.
(b) If a party or the party's witness does not proficiently speak
or understand English and before commencement of the hearing or
medical examination requests language assistance, an agency subject
to the language assistance requirement of this article shall provide
the party or witness an interpreter.
11435.25. (a) The cost of providing an interpreter under this
article shall be paid by the agency having jurisdiction over the
matter if the presiding officer so directs, otherwise by the party at
whose request the interpreter is provided.
(b) The presiding officer's decision to direct payment shall be
based upon an equitable consideration of all the circumstances in
each case, such as the ability of the party in need of the
interpreter to pay.
(c) Notwithstanding any other provision of this section, in a
hearing before the Workers' Compensation Appeals Board or the
Division of Workers' Compensation relating to workers' compensation
claims, the payment of the costs of providing an interpreter shall be
governed by the rules and regulations promulgated by the Workers'
Compensation Appeals Board or the Administrative Director of the
Division of Workers' Compensation, as appropriate.
11435.30. (a) The State Personnel Board shall establish,
maintain, administer, and publish annually an updated list of
certified administrative hearing interpreters it has determined meet
the minimum standards in interpreting skills and linguistic abilities
in languages designated pursuant to Section 11435.40. Any
interpreter so listed may be examined by each employing agency to
determine the interpreter's knowledge of the employing agency's
technical program terminology and procedures.
(b) Court interpreters certified pursuant to Section 68562, and
interpreters listed on the State Personnel Board's recommended lists
of court and administrative hearing interpreters prior to July 1,
1993, shall be deemed certified for purposes of this section.
11435.35. (a) The State Personnel Board shall establish,
maintain, administer, and publish annually, an updated list of
certified medical examination interpreters it has determined meet the
minimum standards in interpreting skills and linguistic abilities in
languages designated pursuant to Section 11435.40.
(b) Court interpreters certified pursuant to Section 68562 and
administrative hearing interpreters certified pursuant to Section
11435.30 shall be deemed certified for purposes of this section.
11435.40. (a) The State Personnel Board shall designate the
languages for which certification shall be established under Sections
11435.30 and 11435.35. The languages designated shall include, but
not be limited to, Spanish, Tagalog, Arabic, Cantonese, Japanese,
Korean, Portuguese, and Vietnamese until the State Personnel Board
finds that there is an insufficient need for interpreting assistance
in these languages.
(b) The language designations shall be based on the following:
(1) The language needs of non-English-speaking persons appearing
before the administrative agencies, as determined by consultation
with the agencies.
(2) The cost of developing a language examination.
(3) The availability of experts needed to develop a language
examination.
(4) Other information the board deems relevant.
11435.45. (a) The State Personnel Board shall establish and
charge fees for applications to take interpreter examinations and for
renewal of certifications. The purpose of these fees is to cover
the annual projected costs of carrying out this article. The fees
may be adjusted each fiscal year by a percent that is equal to or
less than the percent change in the California Necessities Index
prepared by the Commission on State Finance.
(b) Each certified administrative hearing interpreter and each
certified medical examination interpreter shall pay a fee, due on
July 1 of each year, for the renewal of the certification. Court
interpreters certified under Section 68562 shall not pay any fees
required by this section.
(c) If the amount of money collected in fees is not sufficient to
cover the costs of carrying out this article, the board shall charge
and be reimbursed a pro rata share of the additional costs by the
state agencies that conduct administrative hearings.
11435.50. The State Personnel Board may remove the name of a
person from the list of certified interpreters if any of the
following conditions occurs:
(a) The person is deceased.
(b) The person notifies the board that the person is unavailable
for work.
(c) The person does not submit a renewal fee as required by
Section 11435.45.
11435.55. (a) An interpreter used in a hearing shall be certified
pursuant to Section 11435.30. However, if an interpreter certified
pursuant to Section 11435.30 cannot be present at the hearing, the
hearing agency shall have discretionary authority to provisionally
qualify and use another interpreter.
(b) An interpreter used in a medical examination shall be
certified pursuant to Section 11435.35. However, if an interpreter
certified pursuant to Section 11435.35 cannot be present at the
medical examination, the physician provisionally may use another
interpreter if that fact is noted in the record of the medical
evaluation.
11435.60. Every agency subject to the language assistance
requirement of this article shall advise each party of the right to
an interpreter at the same time that each party is advised of the
hearing date or medical examination. Each party in need of an
interpreter shall also be encouraged to give timely notice to the
agency conducting the hearing or medical examination so that
appropriate arrangements can be made.
11435.65. (a) The rules of confidentiality of the agency, if any,
that apply in an adjudicative proceeding shall apply to any
interpreter in the hearing or medical examination, whether or not the
rules so state.
(b) The interpreter shall not have had any involvement in the
issues of the case prior to the hearing.
Article 9. General Procedural Provisions
11440.10. (a) The agency head may do any of the following with
respect to a decision of the presiding officer or the agency:
(1) Determine to review some but not all issues, or not to
exercise any review.
(2) Delegate its review authority to one or more persons.
(3) Authorize review by one or more persons, subject to further
review by the agency head.
(b) By regulation an agency may mandate review, or may preclude or
limit review, of a decision of the presiding officer or the agency.
11440.20. Service of a writing on, or giving of a notice to, a
person in a procedure provided in this chapter is subject to the
following provisions:
(a) The writing or notice shall be delivered personally or sent by
mail or other means to the person at the person's last known address
or, if the person is a party with an attorney or other authorized
representative of record in the proceeding, to the party's attorney
or other authorized representative. If a party is required by
statute or regulation to maintain an address with an agency, the
party's last known address is the address maintained with the agency.
(b) Unless a provision specifies the form of mail, service or
notice by mail may be by first-class mail, registered mail, or
certified mail, by mail delivery service, by facsimile transmission
if complete and without error, or by other electronic means as
provided by regulation, in the discretion of the sender.
11440.30. (a) The presiding officer may conduct all or part of a
hearing by telephone, television, or other electronic means if each
participant in the hearing has an opportunity to participate in and
to hear the entire proceeding while it is taking place and to observe
exhibits.
(b) The presiding officer may not conduct all or part of a hearing
by telephone, television, or other electronic means if a party
objects.
11440.40. (a) In any proceeding under subdivision (h) or (i) of
Section 12940, or Section 19572 or 19702, alleging conduct that
constitutes sexual harassment, sexual assault, or sexual battery,
evidence of specific instances of a complainant's sexual conduct with
individuals other than the alleged perpetrator is subject to all of
the following limitations:
(1) The evidence is not discoverable unless it is to be offered at
a hearing to attack the credibility of the complainant as provided
for under subdivision (b). This paragraph is intended only to limit
the scope of discovery; it is not intended to affect the methods of
discovery allowed by statute.
(2) The evidence is not admissible at the hearing unless offered
to attack the credibility of the complainant as provided for under
subdivision (b). Reputation or opinion evidence regarding the sexual
behavior of the complainant is not admissible for any purpose.
(b) Evidence of specific instances of a complainant's sexual
conduct with individuals other than the alleged perpetrator is
presumed inadmissible absent an offer of proof establishing its
relevance and reliability and that its probative value is not
substantially outweighed by the probability that its admission will
create substantial danger of undue prejudice or confuse the issue.
(c) As used in this section "complainant" means a person claiming
to have been subjected to conduct that constitutes sexual harassment,
sexual assault, or sexual battery.
11440.50. (a) This section applies in adjudicative proceedings of
an agency if the agency by regulation provides that this section is
applicable in the proceedings.
(b) The presiding officer shall grant a motion for intervention if
all of the following conditions are satisfied:
(1) The motion is submitted in writing, with copies served on all
parties named in the agency's pleading.
(2) The motion is made as early as practicable in advance of the
hearing. If there is a prehearing conference, the motion shall be
made in advance of the prehearing conference and shall be resolved at
the prehearing conference.
(3) The motion states facts demonstrating that the applicant's
legal rights, duties, privileges, or immunities will be substantially
affected by the proceeding or that the applicant qualifies as an
intervenor under a statute or regulation.
(4) The presiding officer determines that the interest
interests of justice and the orderly and prompt
conduct of the proceeding will not be impaired by allowing the
intervention.
(c) If an applicant qualifies for intervention, the presiding
officer may impose conditions on the intervenor's participation in
the proceeding, either at the time that intervention is granted or at
a subsequent time. Conditions may include the following:
(1) Limiting the intervenor's participation to designated issues
in which the intervenor has a particular interest demonstrated by the
motion.
(2) Limiting or excluding the use of discovery, cross-examination,
and other procedures involving the intervenor so as to promote the
orderly and prompt conduct of the proceeding.
(3) Requiring two or more intervenors to combine their
presentations of evidence and argument, cross-examination, discovery,
and other participation in the proceeding.
(4) Limiting or excluding the intervenor's participation in
settlement negotiations.
(d) As early as practicable in advance of the hearing the
presiding officer shall issue an order granting or denying the motion
for intervention, specifying any conditions, and briefly stating the
reasons for the order. The presiding officer may modify the order
at any time, stating the reasons for the modification. The presiding
officer shall promptly give notice of an order granting, denying, or
modifying intervention to the applicant and to all parties.
(e) Whether the interests of justice and the orderly and prompt
conduct of the proceedings will be impaired by allowing intervention
is a determination to be made
in the sole discretion, and based on the knowledge and judgment at
that time, of the presiding officer. The determination is not
subject to administrative or judicial review.
(f) Nothing in this section precludes an agency from adopting a
regulation that permits participation by a person short of
intervention as a party, subject to Article 7 (commencing with
Section 11430.10) of Chapter 4.5.
Article 10. Informal Hearing
11445.10. (a) Subject to the limitations in this article, an
agency may conduct an adjudicative proceeding under the informal
hearing procedure provided in this article.
(b) The Legislature finds and declares the following:
(1) The informal hearing procedure is intended to satisfy due
process and public policy requirements in a manner that is simpler
and more expeditious than hearing procedures otherwise required by
statute, for use in appropriate circumstances.
(2) The informal hearing procedure provides a forum in the nature
of a conference in which a party has an opportunity to be heard by
the presiding officer.
(3) The informal hearing procedure provides a forum that may
accommodate a hearing where by regulation or statute a member of the
public may participate without appearing or intervening as a party.
11445.20. Subject to Section 1145.30
11445.30 , an agency may use an informal hearing procedure in
any of the following proceedings, if in the circumstances its use
does not violate another statute or the federal or state
Constitution:
(a) A proceeding where there is no disputed issue of material
fact.
(b) A proceeding where there is a disputed issue of material fact,
if the matter is limited to any of the following:
(1) A monetary amount of not more than one thousand dollars
($1,000).
(2) A disciplinary sanction against a student that does not
involve expulsion from an academic institution or suspension for more
than 10 days.
(3) A disciplinary sanction against an employee that does not
involve discharge from employment, demotion, or suspension for more
than 5 days.
(4) A disciplinary sanction against a licensee that does not
involve an actual revocation of a license or an actual suspension of
a license for more than five days. Nothing in this section precludes
an agency from imposing a stayed revocation or a stayed suspension
of a license in an informal hearing.
(c) A proceeding where, by regulation, the agency has authorized
use of an informal hearing.
(d) A proceeding where an evidentiary hearing for determination of
facts is not required by statute but where the agency determines the
federal or state Constitution may require a hearing.
11445.30. (a) The notice of hearing shall state the agency's
selection of the informal hearing procedure.
(b) Any objection of a party to use of the informal hearing
procedure shall be made in the party's pleading.
(c) An objection to use of the informal hearing procedure shall be
resolved by the presiding officer before the hearing on the basis of
the pleadings and any written submissions in support of the
pleadings.
11445.40. (a) Except as provided in this article, the hearing
procedures otherwise required by statute for an adjudicative
proceeding apply to an informal hearing.
(b) In an informal hearing the presiding officer shall regulate
the course of the proceeding. The presiding officer shall permit the
parties and may permit others to offer written or oral comments on
the issues. The presiding officer may limit the use of witnesses,
testimony, evidence, and argument, and may limit or eliminate the use
of pleadings, intervention, discovery, prehearing conferences, and
rebuttal.
11445.50. (a) The presiding officer may deny use of the informal
hearing procedure, or may convert an informal hearing to a formal
hearing after an informal hearing is commenced, if it appears to the
presiding officer that cross-examination is necessary for proper
determination of the matter and that the delay, burden, or
complication due to allowing cross-examination in the informal
hearing will be more than minimal.
(b) An agency, by regulation, may specify categories of cases in
which cross-examination is deemed not necessary for proper
determination of the matter under the informal hearing procedure.
The presiding officer may allow cross-examination of witnesses in an
informal hearing notwithstanding an agency regulation if it appears
to the presiding officer that in the circumstances cross-examination
is necessary for proper determination of the matter.
(c) The actions of the presiding officer under this section are
not subject to judicial review.
11445.60. (a) If the presiding officer has reason to believe that
material facts are in dispute, the presiding officer may require a
party to state the identity of the witnesses or other sources through
which the party would propose to present proof if the proceeding
were converted to a formal or other applicable hearing procedure. If
disclosure of a fact, allegation, or source is privileged or
expressly prohibited by a regulation, statute, or the federal or
state Constitution, the presiding officer may require the party to
indicate that confidential facts, allegations, or sources are
involved, but not to disclose the confidential facts, allegations, or
sources.
(b) If a party has reason to believe that essential facts must be
obtained in order to permit an adequate presentation of the case, the
party may inform the presiding officer regarding the general nature
of the facts and the sources from which the party would propose to
obtain the facts if the proceeding were converted to a formal or
other applicable hearing procedure.
Article 11. Subpoenas
11450.10. (a) Subpoenas and subpoenas duces tecum may be issued
for attendance at a hearing and for production of documents at any
reasonable time and place or at a hearing.
(b) The custodian of documents that are the subject of a subpoena
duces tecum may satisfy the subpoena by delivery of the documents or
a copy of the documents, or by making the documents available for
inspection or copying, together with an affidavit in compliance with
Section 1561 of the Evidence Code.
11450.20. (a) Subpoenas and subpoenas duces tecum shall be issued
by the agency or presiding officer at the request of a party, or by
the attorney of record for a party, in accordance with Sections 1985
to 1985.4, inclusive, of the Code of Civil Procedure.
(b) The process extends to all parts of the state and shall be
served in accordance with Sections 1987 and 1988 of the Code of Civil
Procedure. A subpoena or subpoena duces tecum may also be delivered
by certified mail return receipt requested or by messenger. Service
by messenger shall be effected when the witness acknowledges receipt
of the subpoena to the sender, by telephone, by mail, or in person,
and identifies himself or herself either by reference to date of
birth and driver's license number or Department of Motor Vehicles
identification number, or the sender may verify receipt of the
subpoena by obtaining other identifying information from the
recipient. The sender shall make a written notation of the
acknowledgment. A subpoena issued and acknowledged pursuant to this
section has the same force and effect as a subpoena personally
served. Failure to comply with a subpoena issued and acknowledged
pursuant to this section may be punished as a contempt and the
subpoena may so state. A party requesting a continuance based upon
the failure of a witness to appear in court at the time and place
required for the appearance or testimony pursuant to a subpoena,
shall prove to the court that the party has complied with this
section. The continuance shall only be granted for a period of time
that would allow personal service of the subpoena and in no event
longer than that allowed by law.
(c) No witness is obliged to attend unless the witness is a
resident of the state at the time of service.
11450.30. (a) A person served with a subpoena or a subpoena duces
tecum may object to its terms by a motion for a protective order,
including a motion to quash.
(b) The objection shall be resolved by the presiding officer on
terms and conditions that the presiding officer declares. The
presiding officer may make another order that is appropriate to
protect the parties or the witness from unreasonable or oppressive
demands, including violations of the right to privacy.
(c) A subpoena or a subpoena duces tecum issued by the agency on
its own motion may be quashed by the agency.
11450.40. A witness appearing pursuant to a subpoena or a
subpoena duces tecum, other than a party, shall receive for the
appearance the following mileage and fees, to be paid by the party at
whose request the witness is subpoenaed:
(a) The same mileage allowed by law to a witness in a civil case.
(b) The same fees allowed by law to a witness in a civil case.
This subdivision does not apply to an officer or employee of the
state or a political subdivision of the state.
Article 12. Enforcement of Orders and Sanctions
11455.10. A person is subject to the contempt sanction for any of
the following in an adjudicative proceeding before an agency:
(a) Disobedience of or resistance to a lawful order.
(b) Refusal to take the oath or affirmation as a witness or
thereafter refusal to be examined.
(c) Obstruction or interruption of the due course of the
proceeding during a hearing or near the place of the hearing by any
of the following:
(1) Disorderly, contemptuous, or insolent behavior toward the
presiding officer while conducting the proceeding.
(2) Breach of the peace, boisterous conduct, or violent
disturbance.
(3) Other unlawful interference with the process or proceedings of
the agency.
(d) Violation of the prohibition of ex parte communications under
Article 7 (commencing with Section 11430.10).
(e) Failure or refusal, without substantial justification, to
comply with a deposition order, discovery request, subpoena, or other
order of the presiding officer, or moving, without substantial
justification, to compel discovery.
11455.20. (a) The presiding officer or agency head may certify
the facts that justify the contempt sanction against a person to the
superior court in and for the county where the proceeding is
conducted. The court shall thereupon issue an order directing the
person to appear before the court at a specified time and place, and
then and there to show cause why the person should not be punished
for contempt. The order and a copy of the certified statement shall
be served on the person. Upon service of the order and a copy of the
certified statement, the court has jurisdiction of the matter.
(b) The same proceedings shall be had, the same penalties may be
imposed, and the person charged may purge the contempt in the same
way, as in the case of a person who has committed a contempt in the
trial of a civil action before a superior court.
11455.30. (a) The presiding officer may order a party, the party'
s attorney or other authorized representative, or both, to pay
reasonable expenses, including attorney's fees, incurred by another
party as a result of bad faith actions or tactics that are frivolous
or solely intended to cause unnecessary delay as defined in Section
128.5 of the Code of Civil Procedure.
(b) The order, or denial of an order, is subject to judicial
review in the same manner as a decision in the proceeding. The order
is enforceable in the same manner as a money judgment or by the
contempt sanction.
Article 13. Emergency Decision
11460.10. Subject to the limitations in this article, an agency
may conduct an adjudicative proceeding under the emergency decision
procedure provided in this article.
11460.20. (a) An agency may issue an emergency decision for
temporary, interim relief under this article if the agency has
adopted a regulation that provides that the agency may use the
procedure provided in this article.
(b) The regulation shall elaborate the application of the
provisions of this article to an emergency decision by the agency,
including all of the following:
(1) Define the specific circumstances in which an emergency
decision may be issued under this article.
(2) State the nature of the temporary, interim relief that the
agency may order.
(3) Prescribe the procedures that will be available before and
after issuance of an emergency decision under this article. The
procedures may be more protective of the person to which the agency
action is directed than those provided in this article.
(c) This article does not apply to an emergency decision,
including a cease and desist order or temporary suspension order,
issued pursuant to other express statutory authority.
11460.30. (a) An agency may only issue an emergency decision
under this article in a situation involving an immediate danger to
the public health, safety, or welfare that requires immediate agency
action.
(b) An agency may only take action under this article that is
necessary to prevent or avoid the immediate danger to the public
health, safety, or welfare that justifies issuance of an emergency
decision.
(c) An emergency decision issued under this article is limited to
temporary, interim relief. The temporary, interim relief is subject
to judicial review under Section 11460.80, and the underlying issue
giving rise to the temporary, interim relief is subject to an
adjudicative proceeding pursuant to Section 11460.60.
11460.40. (a) Before issuing an emergency decision under this
article, the agency shall, if practicable, give the person to which
the agency action is directed notice and an opportunity to be heard.
(b) Notice and hearing under this section may be oral or written,
including notice and hearing by telephone, facsimile transmission, or
other electronic means, as the circumstances permit. The hearing
may be conducted in the same manner as an informal hearing.
11460.50. (a) The agency shall issue an emergency decision,
including a brief explanation of the factual and legal basis and
reasons for the emergency decision, to justify the determination of
an immediate danger and the agency's emergency decision to take the
specific action.
(b) The agency shall give notice to the extent practicable to the
person to which the agency action is directed. The emergency
decision is effective when issued or as provided in the decision.
11460.60. (a) After issuing an emergency decision under this
article for temporary, interim relief, the agency shall conduct an
adjudicative proceeding under a formal, informal, or other applicable
hearing procedure to resolve the underlying issues giving rise to
the temporary, interim relief.
(b) The agency shall commence an adjudicative proceeding under
another procedure within 10 days after issuing an emergency decision
under this article, notwithstanding the pendency of proceedings for
judicial review of the emergency decision.
11460.70. The agency record consists of any documents concerning
the matter that were considered or prepared by the agency. The
agency shall maintain these documents as its official record.
11460.80. (a) On issuance of an emergency decision under this
article, the person to which the agency action is directed may obtain
judicial review of the decision in the manner provided in this
section without exhaustion of administrative remedies.
(b) Judicial review under this section shall be pursuant to
Section 1094.5 of the Code of Civil Procedure, subject to the
following provisions:
(1) The hearing shall be on the earliest day that the business of
the court will admit of, but not later than 15 days after service of
the petition on the agency.
(2) Where it is claimed that the findings are not supported by the
evidence, abuse of discretion is established if the court determines
that the findings are not supported by substantial evidence in the
light of the whole record.
(3) A party, on written request to another party, before the
proceedings for review and within 10 days after issuance of the
emergency decision, is entitled to appropriate discovery.
(4) The relief that may be ordered on judicial review is limited
to a stay of the emergency decision.
Article 14. Declaratory Decision
11465.10. Subject to the limitations in this article, an agency
may conduct an adjudicative proceeding under the declaratory decision
procedure provided in this article.
11465.20. (a) A person may apply to an agency for a declaratory
decision as to the applicability to specified circumstances of a
statute, regulation, or decision within the primary jurisdiction of
the agency.
(b) The agency in its discretion may issue a declaratory decision
in response to the application. The agency shall not issue a
declaratory decision if any of the following applies:
(1) Issuance of the decision would be contrary to a regulation
adopted under this article.
(2) The decision would substantially prejudice the rights of a
person who would be a necessary party and who does not consent in
writing to the determination of the matter by a declaratory decision
proceeding.
(3) The decision involves a matter that is the subject of pending
administrative or judicial proceeding
proceedings .
(c) An application for a declaratory decision is not required for
exhaustion of the applicant's administrative remedies for purposes of
judicial review.
11465.30. Within 30 days after receipt of an application for a
declaratory decision, an agency shall give notice of the application
to all persons to which notice of an adjudicative proceeding is
otherwise required, and may give notice to any other person.
11465.40. The provisions of a formal, informal, or other
applicable hearing procedure do not apply to an agency proceeding for
a declaratory decision except to the extent provided in this article
or to the extent the agency so provides by regulation or order.
11465.50. (a) Within 60 days after receipt of an application for
a declaratory decision, an agency shall do one of the following, in
writing:
(1) Issue a decision declaring the applicability of the statute,
regulation, or decision in question to the specified circumstances.
(2) Set the matter for specified proceedings.
(3) Agree to issue a declaratory decision by a specified time.
(4) Decline to issue a declaratory decision, stating in writing
the reasons for its action. Agency action under this paragraph is
not subject to judicial review.
(b) A copy of the agency's action under subdivision (a) shall be
served promptly on the applicant and any other party.
(c) If an agency has not taken action under subdivision (a) within
60 days after receipt of an application for a declaratory decision,
the agency is considered to have declined to issue a declaratory
decision on the matter.
11465.60. (a) A declaratory decision shall contain the names of
all parties to the proceeding, the particular facts on which it is
based, and the reasons for its conclusion.
(b) A declaratory decision has the same status and binding effect
as any other decision issued by the agency in an adjudicative
proceeding.
11465.70. (a) The Office of Administrative Hearings shall adopt
and promulgate model regulations under this article that are
consistent with the public interest and with the general policy of
this article to facilitate and encourage agency issuance of reliable
advice. The model regulations shall provide for all of the
following:
(1) A description of the classes of circumstances in which an
agency will not issue a declaratory decision.
(2) The form, contents, and filing of an application for a
declaratory decision.
(3) The procedural rights of a person in relation to an
application.
(4) The disposition of an application.
(b) The regulations adopted by the Office of Administrative
Hearings under this article apply in an adjudicative proceeding
unless an agency adopts its own regulations to govern declaratory
decisions of the agency.
(c) This article does not apply in an adjudicative proceeding to
the extent an agency by regulation provides inconsistent rules or
provides that this article is not applicable in a proceeding of the
agency.
Article 15. Conversion of Proceeding
11470.10. (a) Subject to any applicable regulation adopted under
Section 11470.50, at any point in an agency proceeding the presiding
officer or other agency official responsible for the proceeding:
(1) May convert the proceeding to another type of agency
proceeding provided for by statute if the conversion is appropriate,
is in the public interest, and does not substantially prejudice the
rights of a party.
(2) Shall convert the proceeding to another type of agency
proceeding provided for by statute, if required by regulation or
statute.
(b) A proceeding of one type may be converted to a proceeding of
another type only on notice to all parties to the original
proceeding.
11470.20. If the presiding officer or other agency official
responsible for the original proceeding would not have authority over
the new proceeding to which it is to be converted, the agency head
shall appoint a successor to preside over or be responsible for the
new proceeding.
11470.30. To the extent practicable and consistent with the
rights of parties and the requirements of this article relating to
the new proceeding, the record of the original agency proceeding
shall be used in the new agency proceeding.
11470.40. After a proceeding is converted from one type to
another, the presiding officer or other agency official responsible
for the new proceeding shall do all of the following:
(a) Give additional notice to parties or other persons necessary
to satisfy the statutory requirements relating to the new proceeding.
(b) Dispose of the matters involved without further proceedings if
sufficient proceedings have already been held to satisfy the
statutory requirements relating to the new proceeding.
(c) Conduct or cause to be conducted any additional proceedings
necessary to satisfy the statutory requirements relating to the new
proceeding, and allow the parties a reasonable time to prepare for
the new proceeding.
11470.50. An agency may adopt regulations to govern the
conversion of one type of proceeding to another. The regulations may
include an enumeration of the factors to be considered in
determining whether and under what circumstances one type of
proceeding will be converted to another.
SEC. 22. The heading of Chapter 5 (commencing with Section 11500)
of Part 1 of Division 3 of Title 2 of the Government Code is amended
to read:
CHAPTER 5. ADMINISTRATIVE ADJUDICATION: FORMAL HEARING
SEC. 23. Section 11500 of the Government Code is amended to read:
11500. In this chapter unless the context or subject matter
otherwise requires:
(a) "Agency" includes the state boards, commissions, and officers
to which this chapter is made applicable by law, except that wherever
the word "agency" alone is used the power to act may be delegated by
the agency, and wherever the words "agency itself" are used the
power to act shall not be delegated unless the statutes relating to
the particular agency authorize the delegation of the agency's power
to hear and decide.
(b) "Party" includes the agency, the respondent, and any person,
other than an officer or an employee of the agency in his or her
official capacity, who has been allowed to appear or participate in
the proceeding.
(c) "Respondent" means any person against whom an accusation is
filed pursuant to Section 11503 or against whom a statement of issues
is filed pursuant to Section 11504.
(d) "Administrative law judge" means an individual qualified
under Section 11502.
(e) "Agency member" means any person who is a member of any agency
to which this chapter is applicable and includes any person who
himself or herself constitutes an agency.
SEC. 24. Section 11501 of the Government Code is amended to read:
11501. (a) This chapter applies to any agency as determined by
the statutes relating to that agency.
(b) This chapter applies to an adjudicative proceeding of an
agency created on or after July 1, 1997, unless the statutes relating
to the proceeding provide otherwise.
(c) Chapter 4.5 (commencing with Section 11400) applies to an
adjudicative proceeding required to be conducted under this chapter,
unless the statutes relating to the proceeding provide otherwise.
SEC. 25. Section 11501.5 of the Government Code is repealed.
SEC. 26. Section 11502 of the Government Code is amended to read:
11502. (a) All hearings of state agencies required to be
conducted under this chapter shall be conducted by administrative law
judges on the staff of the Office of Administrative Hearings. This
subdivision applies to a hearing required to be conducted under this
chapter that is conducted under the informal hearing or emergency
decision procedure provided in Chapter 4.5 (commencing with Section
11400).
(b) The Director of the Office of Administrative Hearings has
power to appoint a staff of administrative law judges for the office
as provided in Section 11370.3. Each administrative law judge shall
have been admitted to practice law in this state for at least five
years immediately preceding his or her appointment and shall possess
any additional qualifications established by the State Personnel
Board for the particular class of position involved.
SEC. 27. Section 11502.1 of the Government Code is repealed.
SEC. 28. Section 11505 of the Government Code is amended to read:
11505. (a) Upon the filing of the accusation the agency shall
serve a copy thereof on the respondent as provided in subdivision
(c). The agency may include with the accusation any information
which it deems appropriate, but it shall include a post card or other
form entitled Notice of Defense which, when signed by or on behalf
of the respondent and returned to the agency, will acknowledge
service of the accusation and constitute a notice of defense under
Section 11506. The copy of the accusation shall include or be
accompanied by (1) a statement that respondent may request a hearing
by filing a notice of defense as provided in Section 11506 within 15
days after service upon the respondent of the accusation, and that
failure to do so will constitute a waiver of the respondent's right
to a hearing, and (2) copies of Sections 11507.5, 11507.6, and
11507.7.
(b) The statement to respondent shall be
substantially in the following form:
Unless a written request for a hearing signed by or on behalf of
the person named as respondent in the accompanying accusation is
delivered or mailed to the agency within 15 days after the accusation
was personally served on you or mailed to you, (here insert name of
agency) may proceed upon the accusation without a hearing. The
request for a hearing may be made by delivering or mailing the
enclosed form entitled Notice of Defense, or by delivering or mailing
a notice of defense as provided by Section 11506 to: (here insert
name and address of agency). You may, but need not, be represented
by counsel at any or all stages of these proceedings.
If you desire the names and addresses of witnesses or an
opportunity to inspect and copy the items mentioned in Section
11507.6 in the possession, custody or control of the agency, you may
contact: (here insert name and address of appropriate person).
The hearing may be postponed for good cause. If you have good
cause, you are obliged to notify the agency or, if an administrative
law judge has been assigned to the hearing, the Office of
Administrative Hearings, within 10 working days after you discover
the good cause. Failure to give notice within 10 days will deprive
you of a postponement.
(c) The accusation and all accompanying information may be sent to
the respondent by any means selected by the agency. But no order
adversely affecting the rights of the respondent shall be made by the
agency in any case unless the respondent shall have been served
personally or by registered mail as provided herein, or shall have
filed a notice of defense or otherwise appeared. Service may be
proved in the manner authorized in civil actions. Service by
registered mail shall be effective if a statute or agency rule
requires the respondent to file the respondent's address with the
agency and to notify the agency of any change, and if a registered
letter containing the accusation and accompanying material is mailed,
addressed to the respondent at the latest address on file with the
agency.
SEC. 29. Section 11506 of the Government Code is amended to read:
11506. (a) Within 15 days after service of the accusation the
respondent may file with the agency a notice of defense in which the
respondent may:
(1) Request a hearing.
(2) Object to the accusation upon the ground that it does not
state acts or omissions upon which the agency may proceed.
(3) Object to the form of the accusation on the ground that it is
so indefinite or uncertain that the respondent cannot identify the
transaction or prepare a defense.
(4) Admit the accusation in whole or in part.
(5) Present new matter by way of defense.
(6) Object to the accusation upon the ground that, under the
circumstances, compliance with the requirements of a regulation would
result in a material violation of another regulation enacted by
another department affecting substantive rights.
(b) Within the time specified respondent may file one or more
notices of defense upon any or all of these grounds but all of these
notices shall be filed within that period unless the agency in its
discretion authorizes the filing of a later notice.
(c) The respondent shall be entitled to a hearing on the merits if
the respondent files a notice of defense, and the notice shall be
deemed a specific denial of all parts of the accusation not expressly
admitted. Failure to file a notice of defense shall constitute a
waiver of respondent's right to a hearing, but the agency in its
discretion may nevertheless grant a hearing. Unless objection is
taken as provided in paragraph (3) of subdivision (a), all objections
to the form of the accusation shall be deemed waived.
(d) The notice of defense shall be in writing signed by or on
behalf of the respondent and shall state the respondent's mailing
address. It need not be verified or follow any particular form.
(e) As used in this section, "file," "files," "filed," or "filing"
means "delivered or mailed" to the agency as provided in Section
11505.
SEC. 30. Section 11507.2 is added to the Government Code, to read:
11507.2. (a) This section does not apply in an adjudicative
proceeding to the extent an agency by regulation provides
inconsistent rules or provides that this section is not applicable in
a proceeding of the agency.
(b) The administrative law judge shall grant a motion for
intervention if all of the following conditions are satisfied:
(1) The motion is submitted in writing, with copies served on all
parties named in the accusation.
(2) The motion is made as early as practicable in advance of the
hearing. If there is a prehearing conference, the motion shall be
made in advance of the prehearing conference and shall be resolved at
the prehearing conference.
(3) The motion states facts demonstrating that the applicant's
legal rights, duties, privileges, or immunities will be substantially
affected by the proceeding or that the applicant qualifies as an
intervenor under a statute or regulation.
(4) The administrative law judge determines that the interests of
justice and the orderly and prompt conduct of the proceeding will not
be impaired by allowing the intervention.
(c) If an applicant qualifies for intervention, the administrative
law judge may impose conditions on the intervenor's participation in
the proceeding, either at the time that intervention is granted or
at a subsequent time. Conditions may include the following:
(1) Limiting the intervenor's participation to designated issues
in which the intervenor has a particular interest demonstrated by the
motion.
(2) Limiting or excluding the use of discovery, cross-examination,
and other procedures involving the intervenor so as to promote the
orderly and prompt conduct of the proceeding.
(3) Requiring two or more intervenors to combine their
presentations of evidence and argument, cross-examination, discovery,
and other participation in the proceeding.
(4) Limiting or excluding the intervenor's participation in
settlement negotiations.
(d) As early as practicable in advance of the hearing the
administrative law judge shall issue an order granting or denying the
motion for intervention, specifying any conditions, and briefly
stating the reasons for the order. The administrative law judge may
modify the order at any time, stating the reasons for the
modification. The administrative law judge shall promptly give
notice of an order granting, denying, or modifying intervention to
the applicant and to all parties.
(e) Whether the interests of justice and the orderly and prompt
conduct of the proceedings will be impaired by allowing intervention
is a determination to be made in the sole discretion, and based on
the knowledge and judgment at that time, of the administrative law
judge. The determination is not subject to administrative or
judicial review.
(f) Nothing in this section precludes an agency from adopting a
regulation that permits participation by a person short of
intervention as a party, subject to Article 7 (commencing with
Section 11430.10) of Chapter 4.5.
SEC. 31. Section 11507.3 is added to the Government Code, to read:
11507.3. (a) When proceedings that involve a common question of
law or fact are pending, the administrative law judge on the judge's
own motion or on motion of a party may order a joint hearing of any
or all the matters at issue in the proceedings. The administrative
law judge may order all the proceedings consolidated and may make
orders concerning the procedure that may tend to avoid unnecessary
costs or delay.
(b) The administrative law judge on the judge's own motion or on
motion of a party, in furtherance of convenience or to avoid
prejudice or when separate hearings will be conducive to expedition
and economy, may order a separate hearing of any issue, including an
issue raised in the notice of defense, or of any number of issues.
SEC. 32. Section 11507.6 of the Government Code is amended to
read:
11507.6. After initiation of a proceeding in which a respondent
or other party is entitled to a hearing on the merits, a party, upon
written request made to another party, prior to the hearing and
within 30 days after service by the agency of the initial pleading or
within 15 days after the service of an additional pleading, is
entitled to (1) obtain the names and addresses of witnesses to the
extent known to the other party, including, but not limited to, those
intended to be called to testify at the hearing, and (2) inspect and
make a copy of any of the following in the possession or custody or
under the control of the other party:
(a) A statement of a person, other than the respondent, named in
the initial administrative pleading, or in any additional pleading,
when it is claimed that the act or omission of the respondent as to
this person is the basis for the administrative proceeding;
(b) A statement pertaining to the subject matter of the proceeding
made by any party to another party or person;
(c) Statements of witnesses then proposed to be called by the
party and of other persons having personal knowledge of the acts,
omissions or events which are the basis for the proceeding, not
included in (a) or (b) above;
(d) All writings, including, but not limited to, reports of
mental, physical and blood examinations and things which the party
then proposes to offer in evidence;
(e) Any other writing or thing which is relevant and which would
be admissible in evidence;
(f) Investigative reports made by or on behalf of the agency or
other party pertaining to the subject matter of the proceeding, to
the extent that these reports (1) contain the names and addresses of
witnesses or of persons having personal knowledge of the acts,
omissions or events which are the basis for the proceeding, or (2)
reflect matters perceived by the investigator in the course of his or
her investigation, or (3) contain or include by attachment any
statement or writing described in (a) to (e), inclusive, or summary
thereof.
For the purpose of this section, "statements" include written
statements by the person signed or otherwise authenticated by him or
her, stenographic, mechanical, electrical or other recordings, or
transcripts thereof, of oral statements by the person, and written
reports or summaries of these oral statements.
Nothing in this section shall authorize the inspection or copying
of any writing or thing which is privileged from disclosure by law or
otherwise made confidential or protected as the attorney's work
product.
SEC. 33. Section 11507.7 of the Government Code is amended to
read:
11507.7. (a) Any party claiming the party's request for discovery
pursuant to Section 11507.6 has not been complied with may serve and
file with the administrative law judge a motion to compel discovery,
naming as respondent the party refusing or failing to comply with
Section 11507.6. The motion shall state facts showing the respondent
party failed or refused to comply with Section 11507.6, a
description of the matters sought to be discovered, the reason or
reasons why the matter is discoverable under that section, that a
reasonable and good faith attempt to contact the respondent for an
informal resolution of the issue has been made, and the ground or
grounds of respondent's refusal so far as known to the moving party.
(b) The motion shall be served upon respondent party and filed
within 15 days after the respondent party first evidenced failure or
refusal to comply with Section 11507.6 or within 30 days after
request was made and the party has failed to reply to the request, or
within another time provided by stipulation, whichever period is
longer.
(c) The hearing on the motion to compel discovery shall be held
within 15 days after the motion is made, or a later time that the
administrative law judge may on the judge's own motion for good cause
determine. The respondent party shall have the right to serve and
file a written answer or other response to the motion before or at
the time of the hearing.
(d) Where the matter sought to be discovered is under the custody
or control of the respondent party and the respondent party asserts
that the matter is not a discoverable matter under the provisions of
Section 11507.6, or is privileged against disclosure under those
provisions, the administrative law judge may order lodged with it
matters provided in subdivision (b) of Section 915 of the Evidence
Code and examine the matters in accordance with its provisions.
(e) The administrative law judge shall decide the case on the
matters examined in camera, the papers filed by the parties, and such
oral argument and additional evidence as the administrative law
judge may allow.
(f) Unless otherwise stipulated by the parties, the administrative
law judge shall no later than 15 days after the hearing make its
order denying or granting the motion. The order shall be in writing
setting forth the matters the moving party is entitled to discover
under Section 11507.6. A copy of the order shall forthwith be served
by mail by the administrative law judge upon the parties. Where the
order grants the motion in whole or in part, the order shall not
become effective until 10 days after the date the order is served.
Where the order denies relief to the moving party, the order shall be
effective on the date it is served.
SEC. 34. Section 11508 of the Government Code is amended to read:
11508. (a) The agency shall consult the office, and subject to
the availability of its staff, shall determine the time and place of
hearing. The hearing shall be held in San Francisco if the
transaction occurred or the respondent resides within the First or
Sixth Appellate District, in the County of Los Angeles if the
transaction occurred or the respondent resides within the Second or
Fourth Appellate District other than the County of Imperial or San
Diego, in the County of Sacramento if the transaction occurred or the
respondent resides within the Third or Fifth Appellate District, and
in the County of San Diego if the transaction occurred or the
respondent resides within the Fourth Appellate District in the County
of Imperial or San Diego.
(b) Notwithstanding subdivision (a):
(1) If the transaction occurred in a district other than that of
respondent's residence, the agency may select the county appropriate
for either district.
(2) The agency may select a different place nearer the place where
the transaction occurred or the respondent resides.
(3) The parties by agreement may select any place within the
state.
(c) The respondent may move for, and the administrative law judge
has discretion to grant or deny, a change in the place of the
hearing. A motion for a change in the place of the hearing shall be
made within 10 days after service of the notice of hearing on the
respondent.
SEC. 35. Section 11509 of the Government Code is amended to read:
11509. The agency shall deliver or mail a notice of hearing to
all parties at least 10 days prior to the hearing. The hearing shall
not be prior to the expiration of the time within which the
respondent is entitled to file a notice of defense.
The notice to respondent shall be substantially in the following
form but may include other information:
You are hereby notified that a hearing will be held before (here
insert name of agency) at (here insert place of hearing) on the ____
day of ____, 19__, at the hour of ____, upon the charges made in the
accusation served upon you. If you object to the place of hearing,
you must notify the presiding officer within 10 days after this
notice is served on you. Failure to notify the presiding officer
within 10 days will deprive you of a change in the place of the
hearing. You may be present at the hearing. You have the right to
be represented by an attorney at your own expense. You are not
entitled to the appointment of an attorney to represent you at public
expense. You are entitled to represent yourself without legal
counsel. You may present any relevant evidence, and will be given
full opportunity to cross-examine all witnesses testifying against
you. You are entitled to the issuance of subpoenas to compel the
attendance of witnesses and the production of books, documents or
other things by applying to (here insert appropriate office of
agency).
SEC. 36. Section 11510 of the Government Code is repealed.
SEC. 37. Section 11511 of the Government Code is amended to read:
11511. On verified petition of any party, an administrative law
judge or, if an administrative law judge has not been appointed, an
agency may order that the testimony of any material witness residing
within or without the state be taken by deposition in the manner
prescribed by law for depositions in civil actions. The petition
shall set forth the nature of the pending proceeding; the name and
address of the witness whose testimony is desired; a showing of the
materiality of the testimony; a showing that the witness will be
unable or can not be compelled to attend; and shall request an order
requiring the witness to appear and testify before an officer named
in the petition for that purpose. The petitioner shall serve notice
of hearing and a copy of the petition on the other parties at least
10 days before the hearing. Where the witness resides outside the
state and where the administrative law judge or agency has ordered
the taking of the testimony by deposition, the agency shall obtain an
order of court to that effect by filing a petition therefor in the
superior court in Sacramento County. The proceedings thereon shall
be in accordance with the provisions of Section 11189.
SEC. 38. Section 11511.5 of the Government Code is amended to
read:
11511.5. (a) On motion of a party or by order of an
administrative law judge, the administrative law judge may conduct a
prehearing conference. The administrative law judge shall set the
time and place for the prehearing conference, and shall give
reasonable written notice to all parties.
(b) The prehearing conference may deal with one or more of the
following matters:
(1) Exploration of settlement possibilities.
(2) Preparation of stipulations.
(3) Clarification of issues.
(4) Rulings on identity and limitation of the number of witnesses.
(5) Objections to proffers of evidence.
(6) Order of presentation of evidence and cross-examination.
(7) Rulings regarding issuance of subpoenas and protective orders.
(8) Schedules for the submission of written briefs and schedules
for the commencement and conduct of the hearing.
(9) Exchange of witness lists and of exhibits or documents to be
offered in evidence at the hearing.
(10) Motions for intervention.
(11) Exploration of the possibility of using alternative dispute
resolution provided in Article 5 (commencing with Section 11420.10)
of, or the informal hearing procedure provided in Article 10
(commencing with Section 11445.10) of, Chapter 4.5, and objections to
use of the informal hearing procedure.
(12) Any other matters as shall promote the orderly and prompt
conduct of the hearing.
(c) The presiding officer may conduct all or part of the
prehearing conference by telephone, television, or other electronic
means if each participant in the conference has an opportunity to
participate in and to hear the entire proceeding while it is taking
place.
(d) With the consent of the parties, the prehearing conference may
be converted immediately into alternative dispute resolution or an
informal hearing. With the consent of the parties, the proceeding
may be converted into alternative dispute resolution to be conducted
at another time. With the consent of the agency, the proceeding may
be converted into an informal hearing to be conducted at another time
subject to the right of a party to object to use of the informal
hearing procedure as provided in Section 11445.30.
(e) The administrative law judge shall issue a prehearing order
incorporating the matters determined at the prehearing conference.
The administrative law judge may direct one or more of the parties to
prepare a prehearing order.
SEC. 39. Section 11511.7 is added to the Government Code, to read:
11511.7. (a) The administrative law judge may order the parties
to attend and participate in a settlement conference. The
administrative law judge shall set the time and place for the
settlement conference, and shall give reasonable written notice to
all parties.
(b) The administrative law judge at the settlement conference
shall not preside as administrative law judge at the hearing unless
otherwise stipulated by the parties. The administrative law judge
may conduct all or part of the settlement conference by telephone,
television, or other electronic means if each participant in the
conference has an opportunity to participate in and to hear the
entire proceeding while it is taking place.
SEC. 40. Section 11512 of the Government Code is amended to read:
11512. (a) Every hearing in a contested case shall be presided
over by an administrative law judge. The agency itself shall
determine whether the administrative law judge is to hear the case
alone or whether the agency itself is to hear the case with the
administrative law judge.
(b) When the agency itself hears the case, the administrative law
judge shall preside at the hearing, rule on the admission and
exclusion of evidence, and advise the agency on matters of law; the
agency itself 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 administrative law judge alone
hears a case, he or she shall exercise all powers relating to the
conduct of the hearing. A ruling of the administrative law judge
admitting or excluding evidence is subject to review in the same
manner and to the same extent as the administrative law judge's
proposed decision in the proceeding.
(c) An administrative law judge or agency member shall voluntarily
disqualify himself or herself and withdraw from any case in which
there are grounds for disqualification, including disqualification
under Section 11425.40. The parties may waive the disqualification
by a writing that recites the grounds for disqualification. A waiver
is effective only when signed by all parties, accepted by the
administrative law judge or agency member, and included in the
record. Any party may request the disqualification of any
administrative law judge or agency member by filing an affidavit,
prior to the taking of evidence at a hearing, stating with
particularity the grounds upon which it is claimed that the
administrative law judge or agency member is disqualified. Where the
request concerns an agency member, the issue shall be determined by
the other members of the agency. Where the request concerns the
administrative law judge, the issue shall be determined by the agency
itself if the agency itself hears the case with the administrative
law judge, otherwise the issue shall be determined by the
administrative law judge. No agency member shall withdraw
voluntarily or be subject to disqualification if his or her
disqualification would prevent the existence of a quorum qualified to
act in the particular case, except that a substitute qualified to
act may be appointed by the appointing authority.
(d) The proceedings at the hearing shall be reported by a
stenographic reporter or electronically, as determined by
the administrative law judge. If the administrative law judge
selects electronic reporting of proceedings, a party may at the party'
s own expense require stenographic reporting. .
However, upon the consent of all the parties, the proceedings may be
reported electronically.
(e) Whenever, after the agency itself has commenced to hear the
case with an administrative law judge presiding, a quorum no longer
exists, the administrative law judge who is presiding shall complete
the hearing as if sitting alone and shall render a proposed decision
in accordance with subdivision (b) of Section 11517.
SEC. 41. Section 11513 of the Government Code is amended to read:
11513. (a) Oral evidence shall be taken only on oath or
affirmation.
(b) Each party shall have these rights: to call and examine
witnesses, to introduce exhibits; to cross-examine opposing witnesses
on any matter relevant to the issues even though that matter was not
covered in the direct examination; to impeach any witness regardless
of which party first called him or her to testify; and to rebut the
evidence against him or her. If respondent does not testify in his
or her own behalf he or she may be called and examined as if under
cross-examination.
(c) The hearing need not be conducted according to technical rules
relating to evidence and witnesses, except as hereinafter provided.
Any relevant evidence shall be admitted if it is the sort of
evidence on which responsible persons are accustomed to rely in the
conduct of serious affairs, regardless of the existence of any common
law or statutory rule which might make improper the admission of the
evidence over objection in civil actions.
(d) Hearsay evidence may be used for the purpose of supplementing
or explaining other evidence but over timely objection shall not be
sufficient in itself to support a finding unless it would be
admissible over objection in civil actions. An objection is timely
if made before submission of the case or on reconsideration or other
administrative review.
(e) The rules of privilege shall be effective to the extent that
they are otherwise required by statute to be recognized at the
hearing .
(f) The presiding officer has discretion to exclude evidence if
its probative value is substantially outweighed by the probability
that its admission will necessitate undue consumption of time.
SEC. 42. Section 11513.5 of the Government Code is repealed.
SEC. 43. Section 11517 of the Government Code is amended to read:
11517. (a) If a contested case is heard before an agency itself,
all of the following provisions apply:
(1) The administrative law judge who presided at the hearing shall
be present during the consideration of the case and, if requested,
shall assist and advise the agency.
(2) No member thereof who did not hear the evidence shall vote on
the decision.
(3) The agency shall issue its decision within 100 days of
submission of the case.
(b) If a contested case is heard by an administrative law judge
alone, he or she shall prepare within 30 days after the case is
submitted a proposed decision in a form that may be adopted as the
decision in the case. Failure of the administrative law judge to
deliver a proposed decision within the time required does not
prejudice the rights of the agency in the case. Thirty days after
receipt of the proposed decision, a copy of the proposed decision
shall be filed by the agency as a public record and a copy shall be
served by the agency on each party and his or her attorney. The
filing and service is not an adoption of a proposed decision by the
agency. The agency itself may do any of the following:
(1) Adopt the proposed decision in its entirety.
(2) Reduce or otherwise mitigate the proposed penalty and adopt
the balance of the proposed decision.
(3) Make technical or other minor changes in the proposed decision
and adopt it as the decision. Action by the agency under this
paragraph is limited to a clarifying change or a change of a similar
nature that does not affect the factual or legal basis of the
proposed decision.
(4) Change the legal basis of the proposed decision and adopt the
proposed decision with that change as the decision. Before acting
under this paragraph the agency shall provide the parties an
opportunity to comment on the proposed change in legal basis.
(c) If the proposed decision is not adopted as provided in
subdivision (b), the agency itself may decide the case upon the
record, including the transcript, or an agreed statement of the
parties, with or without taking additional evidence, or may refer the
case to the same administrative law judge if reasonably available,
otherwise to another administrative law judge, to take additional
evidence. A copy of the record shall be made available to the
parties. The agency may require payment of fees covering direct
costs of making the copy. By stipulation of the parties, the agency
may decide the case upon the record without including the transcript.
If the case is assigned to an administrative law judge he or she
shall prepare a proposed decision as provided in subdivision (b) upon
the additional evidence and the transcript and other papers which
are part of the record of the prior hearing. A copy of the proposed
decision shall be furnished to each party and his or her attorney as
prescribed in subdivision (b). The agency itself shall decide no
case provided for in this subdivision without affording the parties
the opportunity to present either oral or written argument before the
agency itself. If additional oral evidence is introduced before the
agency itself, no agency member may vote unless the member heard the
additional oral evidence. The authority of the agency itself to
decide the case under this subdivision includes authority to decide
some but not all issues in the case.
(d) The proposed decision shall be deemed adopted by the agency
100 days after delivery to the agency by the Office of Administrative
Hearings, unless within that time (i) the agency notifies the
parties that the proposed decision is not adopted as provided in
subdivision (b) and commences proceedings to decide the case upon the
record, including the transcript, or without the transcript where
the parties have so stipulated, or (ii) the agency refers the case to
the administrative law judge to take additional evidence. In a
case where the agency commences proceedings to decide the case upon
the record and has ordered a transcript of the proceedings, the
100-day period shall begin upon delivery of the transcript. If the
agency finds that a further delay is required by special
circumstances, it shall issue an order delaying the decision for no
more than 30 days and specifying the reasons therefor. The order
shall be subject to judicial review pursuant to Section 11523.
(e) The decision of the agency shall be filed immediately by the
agency as a public record and a copy shall be served by the agency on
each party and his or her attorney.
SEC. 44. Section 11518 of the Government Code is amended to read:
11518. Copies of the decision shall be delivered to the parties
personally or sent to them by registered mail.
SEC. 45. Section 11518.5 is added to the Government Code, to read:
11518.5. (a) Within 15 days after service of a copy of the
decision on a party, but not later than the effective date of the
decision, the party may apply to the agency for correction of a
mistake or clerical error in the decision, stating the specific
ground on which the application is made. Notice of the application
shall be given to the other parties to the proceeding. The
application is not a prerequisite for seeking judicial review.
(b) The agency may refer the application to the administrative law
judge who formulated the proposed decision or may delegate its
authority under this section to one or more persons.
(c) The agency may deny the application, grant the application and
modify the decision, or grant the application and set the matter for
further proceedings. The application is considered denied if the
agency does not dispose of it within 15 days after it is made or a
longer time that the agency provides by regulation.
(d) Nothing in this section precludes the agency, on its own
motion or on motion of the administrative law judge, from modifying
the decision to correct a mistake or clerical error. A modification
under this subdivision shall be made within 15 days after issuance of
the decision.
(e) The agency shall, within 15 days after correction of a mistake
or clerical error in the decision, serve a copy of the correction on
each party on which a copy of the decision was previously served.
SEC. 46. Section 11519 of the Government Code is amended to read:
11519. (a) The decision shall become effective 30 days after it
is delivered or mailed to respondent unless: a reconsideration is
ordered within that time, or the agency itself orders that the
decision shall become effective sooner, or a stay of execution is
granted.
(b) A stay of execution may be included in the decision or if not
included therein may be granted by the agency at any time before the
decision becomes effective. The stay of execution provided herein
may be accompanied by an express condition that respondent comply
with specified terms of probation; provided, however, that the terms
of probation shall be just and reasonable in the light of the
findings and decision.
(c) If respondent was required to register with any public
officer, a notification of any suspension or revocation shall be sent
to the officer after the decision has become effective.
(d) As used in subdivision (b), specified terms of probation may
include an order of restitution. Where restitution is ordered and
paid pursuant to the provisions of this subdivision, the amount paid
shall be credited to any subsequent judgment in a civil action.
(e) The person to which the agency action is directed may not be
required to comply with a decision unless the person has been served
with the decision in the manner provided in Section 11505 or has
actual knowledge of the decision.
(f) A nonparty may not be required to comply with a decision
unless the agency has made the decision available for public
inspection and copying or the nonparty has actual knowledge of the
decision.
(g) This section does not preclude an agency from taking immediate
action to protect the public interest in accordance with Article 13
(commencing with Section 11460.10) of Chapter 4.5.
SEC. 47. Section 11520 of the Government Code is amended to read:
11520. (a) If the respondent either fails to file a notice of
defense or to appear at the hearing, the agency may take action based
upon the respondent's express admissions or upon other evidence and
affidavits may be used as evidence without any notice to respondent;
and where the burden of proof is on the respondent to establish that
the respondent is entitled to the agency action sought, the agency
may act without taking evidence.
(b) Notwithstanding the default of the respondent, the agency or
the administrative law judge, before a proposed decision is issued,
has discretion to grant a hearing on reasonable notice to the
parties. If the agency and administrative law judge make conflicting
orders under this subdivision, the agency's order takes precedence.
The administrative law judge may order the respondent, or the
respondent's attorney or other authorized representative, or both, to
pay reasonable expenses, including attorney's fees, incurred by
another party as a result of the respondent's failure to appear at
the hearing.
(c) Within seven days after service on the respondent of a
decision based on the respondent's default, the respondent may serve
a written motion requesting that the decision be vacated and stating
the grounds relied on. The agency in its discretion may vacate the
decision and grant a hearing on a showing of good cause. As used in
this subdivision, good cause includes, but is not limited to, any of
the following:
(1) Failure of the person to receive notice served pursuant to
Section 11505.
(2) Mistake, inadvertence, surprise, or excusable neglect.
SEC. 48. Section 11523 of the Government Code is amended to read:
11523. Judicial review may be had by filing a petition for a writ
of mandate in accordance with the provisions of the Code of Civil
Procedure, subject, however, to the statutes relating to the
particular agency. Except as otherwise provided in this section, the
petition shall be filed within 30 days after the last day on which
reconsideration can be ordered. The right to petition shall not be
affected by the failure to seek reconsideration before the agency.
On request of the petitioner for a record of the proceedings, the
complete record of the proceedings, or the parts thereof as are
designated by the petitioner in the request, shall be prepared by the
Office of Administrative Hearings or the agency and shall be
delivered to petitioner, within 30 days after the request, which time
shall be extended for good cause shown, upon the payment of the fee
specified in Section 69950 for the transcript, the cost of
preparation of other portions of the record and for certification
thereof. Thereafter, the remaining balance of any costs or charges
for the preparation of the record shall be assessed against the
petitioner whenever the agency prevails on judicial review following
trial of the cause. These costs or charges constitute a debt of the
petitioner which is collectible by the agency in the same manner as
in the case of an obligation under a contract, and no license shall
be renewed or reinstated where the petitioner has failed to pay all
of these costs or charges. The complete record includes the
pleadings, all notices and orders issued by the agency, any proposed
decision by an administrative law judge, the final decision, a
transcript of all proceedings, the exhibits admitted or rejected, the
written evidence and any other papers in the case. Where
petitioner, within 10 days after the last day on which
reconsideration can be ordered, requests the agency to prepare all or
any part of the record the time within which a petition may be filed
shall be extended until 30 days after its delivery to him or her.
The agency may file with the court the original of any document in
the record in lieu of a copy thereof. In the event that the
petitioner prevails in overturning the administrative decision
following judicial review, the agency shall reimburse the petitioner
for all costs of transcript preparation, compilation of the record,
and certification.
SEC. 49. Section 11524 of the Government Code is amended to read:
11524. (a) The agency may grant continuances. When an
administrative law judge of the Office of Administrative Hearings has
been assigned to the hearing, no continuance may be granted except
by him or her or by the presiding judge of the appropriate regional
office of the Office of Administrative Hearings, for good cause
shown.
(b) When seeking a continuance, a party shall apply for the
continuance within 10 working days following the time the party
discovered or reasonably should have discovered the event or
occurrence which establishes the good cause for the continuance. A
continuance may be granted for good cause after the 10 working days
have lapsed if the party seeking the continuance is not responsible
for and has made a good faith effort to prevent the condition or
event establishing the good cause.
(c) In the event that an application for a continuance by a party
is denied by an administrative law judge of the Office of
Administrative Hearings, and the party seeks judicial review thereof,
the party shall, within 10 working days of the denial, make
application for appropriate judicial relief in the superior court or
be barred from judicial review thereof as a matter of jurisdiction.
A party applying for judicial relief from the denial shall give
notice to the agency and other parties. Notwithstanding Section 1010
of the Code of Civil Procedure, the notice may be either oral at the
time of the denial of application for a continuance or written at
the same time application is made in court for judicial relief. This
subdivision does not apply to the Department of Alcoholic Beverage
Control.
SEC. 50. Section 11525 of the Government Code is repealed.
SEC. 51. Section 11526 of the Government Code is amended to read:
11526. The members of an agency qualified to vote on any question
may vote by mail or another appropriate method.
SEC. 52. Section 11529 of the Government Code is amended to read:
11529. (a) The administrative law judge of the Medical Quality
Hearing Panel established pursuant to Section 11371 may issue an
interim order suspending a license, or imposing drug testing,
continuing education, supervision of procedures, or other license
restrictions. Interim orders may be issued only if the affidavits in
support of the petition show that the licensee has engaged in, or is
about to engage in, acts or omissions constituting a violation of
the Medical Practice Act or the appropriate practice act governing
each allied health profession, and that permitting the licensee to
continue to engage in the profession for which the license was issued
will endanger the public health, safety, or welfare.
(b) All orders authorized by this section shall be issued only
after a hearing conducted pursuant to subdivision (d), unless it
appears from the facts shown by affidavit that serious injury would
result to the public before the matter can be heard on notice.
Except as provided in subdivision (c), the licensee shall receive at
least 15 days' prior notice of the hearing, which notice shall
include affidavits and all other information in support of the order.
(c) If an interim order is issued without notice, the
administrative law judge who issued the order without notice shall
cause the licensee to be notified of the order, including affidavits
and all other information in support of the order by a 24-hour
delivery service. That notice shall also include the date of the
hearing on the order, which shall be conducted in accordance with the
requirement of subdivision (d), not later than 20 days from the date
of issuance. The order shall be dissolved unless the requirements
of subdivision (a) are satisfied.
(d) For the purposes of the hearing conducted pursuant to this
section, the licentiate shall, at a minimum, have the following
rights:
(1) To be represented by counsel.
(2) To have a record made of the proceedings, copies of which may
be obtained by the licentiate upon payment of any reasonable charges
associated with the record.
(3) To present written evidence in the form of relevant
declarations, affidavits, and documents.
The discretion of the administrative law judge to permit testimony
at the hearing conducted pursuant to this section shall be identical
to the discretion of a superior court judge to permit testimony at a
hearing conducted pursuant to Section 527 of the Code of Civil
Procedure.
(4) To present oral argument.
(e) Consistent with the burden and standards of proof applicable
to a preliminary injunction entered under Section 527 of the Code of
Civil Procedure, the administrative law judge shall grant the interim
order where, in the exercise of discretion, the administrative law
judge concludes that:
(1) There is a reasonable probability that the petitioner will
prevail in the underlying action.
(2) The likelihood of injury to the public in not issuing the
order outweighs the likelihood of injury to the licensee in issuing
the order.
(f) In all cases where an interim order is issued, and an
accusation is not filed and served pursuant to Sections 11503 and
11505 within 15 days of the date in which the parties to the hearing
on the interim order have submitted the matter, the order shall be
dissolved.
Upon service of the accusation the licensee shall have, in
addition to the rights granted by this section, all of the rights and
privileges available as specified in this chapter. If the licensee
requests a hearing on the accusation, the board shall provide the
licensee with a hearing within 30 days of the request, unless the
licensee stipulates to a later hearing, and a decision within 15 days
of the date that matter is submitted, or the board shall nullify the
interim order previously issued, unless good cause can be shown by
the Division of Medical Quality for a delay.
(g) Where an interim order is issued, a written decision shall be
prepared within 15 days of the hearing, by the administrative law
judge, including findings of fact and a conclusion articulating the
connection between the evidence produced at the hearing and the
decision reached.
(h) Notwithstanding the fact that interim orders issued pursuant
to this section are not issued after a hearing as otherwise required
by this chapter, interim orders so issued shall be subject to
judicial review pursuant to Section 1094.5 of the Code of Civil
Procedure. The relief which may be ordered shall be limited to a
stay of the interim order. Interim orders issued pursuant to this
section are final interim orders and, if not dissolved pursuant to
subdivision (c) or (f), may only be challenged administratively at
the hearing on the accusation.
(i) The interim order provided for by this section shall be in
addition to, and not a limitation on, the authority to seek
injunctive relief provided for in the Business and Professions Code.
SEC. 53. Section 11530 of the Government Code is repealed.
SEC. 54. Section 12935 of the Government Code is amended to read:
12935. The commission shall have the following functions, powers,
and duties:
(a) To adopt, promulgate, amend, and rescind suitable rules,
regulations, and standards (1) to interpret, implement, and apply all
provisions of this part, (2) to regulate the conduct of hearings
held pursuant to Sections 12967 and 12980, and (3) to carry out all
other functions and duties of the commission pursuant to this part.
(b) To conduct hearings pursuant to Sections 12967 and 12981.
(c) To establish and maintain a principal office within the state.
(d) To meet and function at any place within the state.
(e) To appoint an executive secretary, and any attorneys and other
employees as it may deem necessary, fix their compensation within
the limitations provided by law, and prescribe their duties.
(f) To hold hearings, subpoena witnesses, compel their attendance,
administer oaths, examine any person under oath and, in connection
therewith, to require the production of any books or papers relating
to any matter under investigation or in question before the
commission.
(g) To create or provide financial or technical assistance to any
advisory agencies and conciliation councils, local or otherwise, as
in its judgment will aid in effectuating the purposes of this part,
and to empower them to study the problems of discrimination in all or
specific fields of human relationships or in particular instances of
employment discrimination on the bases enumerated in this part or in
specific instances of housing discrimination because of race,
religious creed, color, national origin, ancestry, familial status,
disability, marital status, or sex, and to foster, through community
effort or otherwise, good will, cooperation, and conciliation among
the groups and elements of the population of the state and to make
recommendations to the commission for the development of policies and
procedures in general. These advisory agencies and conciliation
councils shall be composed of representative citizens, serving
without pay.
(h) With respect to findings and orders made pursuant to this
part, to establish a system of published opinions which shall serve
as precedent in interpreting and applying the provisions of this
part. Commission findings, orders, and opinions in an adjudicative
proceeding are subject to Section 11425.60.
(i) To issue publications and results of inquiries and research
which in its judgment will tend to promote good will and minimize or
eliminate unlawful discrimination. These publications shall include
an annual report to the Governor and the Legislature of its
activities and recommendations.
(j) Notwithstanding Sections 11370.3 and 11502, to appoint hearing
officers, as it may deem necessary, to conduct hearings. Each
hearing officer shall possess the qualifications established by the
State Personnel Board for the particular class of position involved.
SEC. 55. Section 17533 is added to the Government Code, to read:
17533. Notwithstanding Section 11425.10, Chapter 4.5 (commencing
with Section 11400) of Part 1 of Division 3 does not apply to a
hearing by the commission under this part.
SEC. 56. Section 19582.5 of the Government Code is amended to
read:
19582.5. The board may designate certain of its decisions as
precedents. Decisions of the board are subject to Section 11425.60.
The board may provide by rule for the reconsideration of a
previously issued decision to determine whether or not it shall be
designated as a precedent decision. All decisions designated as
precedents shall be published in a manner determined by the board.
SEC. 57. Section 37624.2 of the Government Code is amended to
read:
37624.2. The governing body or the hearing officer, if one is
appointed, shall have the same power with respect to the issuance of
subpoenas and subpoenas duces tecum as that granted to any agency or
hearing officer pursuant to Article 11 (commencing with Section
11450.10) of Chapter 4.5 of Part 1 of Division 3 of Title 2. Any
subpoena or subpoena duces tecum issued pursuant to this section
shall have the same force and effect and impose the same obligations
upon witnesses as that provided in Section Article 11 (commencing
with Section 11450.10) of Chapter 4.5 of Part 1 of Division 3 of
Title 2.
SEC. 58. Section 68560.5 of the Government Code is amended to
read:
68560.5. As used in this article:
(a) "Court proceeding" means a civil, criminal, or juvenile
proceeding, excluding a small claims proceeding, and a deposition.
(b) "Interpreter" does not include (1) an interpreter qualified
under Section 754 of the Evidence Code to interpret for deaf or
hard-of-hearing persons, or (2) an interpreter qualified for
administrative hearings or noncourt settings under Article 8
(commencing with Section 11435.05) of Chapter 4.5 of Part 1 of
Division 3 of Title 2.
SEC. 59. Section 443.37 of the Health and Safety Code is amended
to read:
443.37. (a) Any health facility affected by any determination
made under this part by the office may petition the office for review
of the decision. This petition shall be filed with the office
within 15 business days, or within such greater time as the office,
with the advice of the commission, may allow, and shall specifically
describe the matters which are disputed by the petitioner.
(b) A hearing shall be commenced within 60 calendar days of the
date on which the petition was filed. The hearing shall be held
before an employee of the office, an administrative law judge
employed by the Office of Administrative Hearings, or a committee of
the commission chosen by the chairperson for this purpose. If held
before an employee of the office or a committee of the commission,
the hearing shall be held in accordance with any procedures as the
office, with the advice of the commission, shall prescribe. If held
before an administrative law judge employed by the Office of
Administrative Hearings, the hearing shall be held in accordance with
Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of
Title 2 of the Government Code. The employee, administrative law
judge, or committee shall prepare a recommended decision including
findings of fact and conclusions of law and present it to the office
for its adoption. The decision of the office shall be in writing and
shall be final. The decision of the office shall be made within 60
calendar days after the conclusion of the hearing and shall be
effective upon filing and service upon the petitioner.
(c) Judicial review of any final action, determination, or
decision may be had by any party to the proceedings as provided in
Section 1094.5 of the Code of Civil Procedure. The decision of the
office shall be upheld against a claim that its findings are not
supported by the evidence unless the court determines that the
findings are not supported by substantial evidence.
(d) The employee of the office, the administrative law judge
employed by the Office of Administrative Hearings, the Office of
Administrative Hearings, or the committee of the commission, may
issue subpoenas and subpoenas duces tecum in a manner and subject to
the conditions established by Article 11 (commencing with Section
11450.10) of Chapter 4.5 of Part 1 of Division 3 of Title 2 of the
Government Code.
SEC. 60. Section 1551.5 of the Health and Safety Code is amended
to read:
1551.5. In addition to the witness fees and mileage provided by
Section 11450.40 of the Government Code, the department may pay
actual, necessary, and reasonable expenses in an amount not to exceed
the per diem allowance payable to a nonrepresented state employee on
travel status. The department may pay witness expenses in advance
of the hearing.
SEC. 61. Section 1568.065 of the Health and Safety Code is
amended to read:
1568.065. (a) Proceedings for the suspension, revocation, or
denial of a license under this chapter shall be conducted in
accordance with Chapter 5 (commencing with Section 11500) of Part 1
of Division 3 of Title 2 of the Government Code, and the department
shall have all those powers granted by the provisions. In the event
of conflict between this chapter and those provisions of the
Government Code, this chapter shall prevail.
(b) In all proceedings conducted in accordance with this section,
the standard of proof to be applied shall be by the preponderance of
the evidence.
(c) If the license is not temporarily suspended pursuant to
Section 1568.082, the hearing shall be held within 90 calendar days
after receipt of the notice of defense, unless a continuance of the
hearing is granted by the department or the administrative law judge.
When the matter has been set for hearing, only the administrative
law judge may grant a continuance of the hearing. The administrative
law judge may, but need not, grant a continuance of the hearing,
only upon finding the existence of any of the following:
(1) The death or incapacitating illness of a party, a
representative or attorney of a party, a witness to an essential
fact, or of the parent, child, or member of the household of that
person, when it is not feasible to substitute another representative,
attorney, or witness because of the proximity of the hearing date.
(2) Lack of notice of hearing as provided in Section 11509 of the
Government Code.
(3) A material change in the status of the case where a change in
the parties or pleadings requires postponement, or an executed
settlement or stipulated findings of fact obviate the need for
hearing. A partial amendment of the pleadings shall not be good
cause for continuance to the extent that the unamended portion of the
pleadings is ready to be heard.
(4) A stipulation for continuance signed by all parties or their
authorized representatives, including, but not limited to, a
representative, which is communicated with the request for
continuance to the administrative law judge no later than 25 business
days before the hearing.
(5) The substitution of the representative or attorney of a party
upon showing that the substitution is required.
(6) The unavailability of a party, representative, or attorney of
a party, or witness to an essential fact due to a conflicting and
required appearance in a judicial matter if when the hearing date was
set, the person did not know and could neither anticipate nor at any
time avoid the conflict, and the conflict with request for
continuance is immediately communicated to the administrative law
judge.
(7) The unavailability of a party, a representative or attorney of
a party, or a material witness due to an unavoidable emergency.
(8) Failure by a party to comply with a timely discovery request
if the continuance request is made by the party who requested the
discovery.
(d) In addition to the witness fees and mileage provided by
Section 11450.40 of the Government Code, the department may pay
actual, necessary, and reasonable expenses in an amount not to exceed
the per diem allowance payable to a nonrepresented state employee on
travel status. The department may pay witness expenses pursuant to
this section in advance of the hearing.
(e) (1) The withdrawal of an application for a license or a
special permit after it has been filed with the department shall not
deprive the department of its authority to institute or continue a
proceeding against the applicant for the denial of the license or a
special permit upon any ground provided by law or to enter an order
denying the license or special permit upon any ground provided by
law.
(2) The suspension, expiration, or forfeiture by operation of law
of a license issued by the department, or its suspension, forfeiture,
or cancellation by order of the department or by order of a court of
law, or its surrender, shall not deprive the department of its
authority to institute or continue a disciplinary proceeding against
the licensee upon any ground provided by law or to enter an order
suspending or revoking the license or otherwise taking disciplinary
action against the licensee on any ground provided by law.
(f) (1) If an application for a license indicates, or the
department determines during the application review process, that the
applicant previously was issued a license under this chapter or
under Chapter 1 (commencing with Section 1200), Chapter 2 (commencing
with Section 1250), Chapter 3 (commencing with Section 1500),
Chapter 3.3 (commencing with Section 1569), Chapter 3.4 (commencing
with Section 1596.70), Chapter 3.5 (commencing with Section 1596.90),
or Chapter 3.6 (commencing with Section 1597.30) and the prior
license was revoked within the preceding two years, the department
shall cease any further review of the application until two years
shall have elapsed from the date of the revocation. The cessation of
review shall not constitute a denial of the application for purposes
of Section 1568.062, this section, or any other provision of law.
(2) If an application for a license indicates, or the department
determines during the application review process, that the applicant
had previously applied for a license under any of the chapters listed
in paragraph (1) and the application was denied within the last
year, the department shall cease further review of the application
under either of the following circumstances:
(A) In cases where the applicant petitioned for a hearing, the
department shall cease further review of the application until one
year has elapsed from the effective date of the decision and order of
the department upholding a denial.
(B) In cases where the department informed the applicant of his or
her right to petition for a hearing as specified in Section 1568.063
and the applicant did not petition for a hearing, the department
shall cease further review of the application until one year has
elapsed from the date of the notification of the denial and the right
to petition for a hearing.
(3) The department may continue to review the application if it
has determined that the reasons for the denial of the application
were due to circumstances and conditions which either have been
corrected or are no longer in existence.
SEC. 62. Section 1569.515 of the Health and Safety Code is amended
to read:
1569.515. In addition to the witness fees and mileage provided
by Section 11450.40 of the Government Code, the department may pay
actual, necessary, and reasonable expenses in an amount not to exceed
the per diem allowance payable to a nonrepresented state employee on
travel status. The department may pay witness expenses pursuant to
this section in advance of the hearing.
SEC. 63. Section 1596.8875 of the Health and Safety Code is
amended to read:
1596.8875. In addition to the witness fees and mileage provided
by Section 11450.40 of the Government Code, the department may pay
actual, necessary, and reasonable expenses in an amount not to exceed
the per diem allowance payable to a nonrepresented state employee on
travel status. The department may pay witness expenses pursuant to
this section in advance of the hearing.
SEC. 64. Section 11834.37 of the Health and Safety Code is amended
to read:
11834.37. (a) Proceedings for the suspension, revocation, or
denial of a license under this chapter shall be conducted in
accordance with the provisions of Chapter 5 (commencing with Section
11500) of Part 1 of Division 3 of Title 2 of the Government Code, and
the department shall have all the powers granted by those
provisions. In the event of conflict between this chapter and the
Government Code, the Government Code shall prevail.
(b) In all proceedings conducted in accordance with this section,
the standard of proof to be applied shall be by the preponderance of
the evidence.
(c) The department shall commence and process licensure
revocations under this chapter in a timely and expeditious manner.
The Office of Administrative Hearings shall give priority calendar
preference to licensure revocation hearings pursuant to this chapter,
particularly revocations where the health and safety of the
residents are in question.
SEC. 65. Section 18949.6 of the Health and Safety Code is amended
to read:
18949.6. (a) The commission shall adopt regulations setting forth
the procedure for the adoption of building standards and
administrative regulations that apply directly to the implementation
or enforcement of building standards.
(b) Regulatory adoption shall be accomplished so as to facilitate
the triennial adoption of the specified model codes pursuant to
Section 18928.
(c) The regulations shall allow for the distribution of proposed
building standards and regulatory changes to the public for review in
compliance with the requirements of the rulemaking provisions of the
Administrative Procedure Act (Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code) and
for the acceptance of responses from the public.
SEC. 66. Section 25149 of the Health and Safety Code is amended to
read:
25149. (a) Notwithstanding any other provision of law, except as
provided in Section 25149.5 or 25181 of this code or Section 731 of
the Code of Civil Procedure, no city or county, whether chartered or
general law, or district may enact, issue, enforce, suspend, revoke,
or modify any ordinance, regulation, law, license, or permit relating
to an existing hazardous waste facility so as to prohibit or
unreasonably regulate the disposal, treatment, or recovery of
resources from hazardous waste or a mix of hazardous and solid wastes
at that facility, unless, after public notice and hearing, the
director determines that the operation of the facility may present an
imminent and substantial endangerment to health and the environment.
However, nothing in this section authorizes an operator of that
facility to violate any term or condition of a local land use permit
or any other provision of law not in conflict with this section.
(b) The director shall, pursuant to subdivision (c), conduct the
hearing specified in subdivision (a) to determine whether the
operation of an existing hazardous waste facility may present an
imminent and substantial endangerment to health and the environment
whenever any of the following occurs:
(1) A state or federal public agency requires any person to
evacuate a residence or requires the evacuation of a school, place of
employment, commercial establishment, or other facility to which the
public has access, because of the release of a hazardous substance
from the facility.
(2) For more than five days in any month, the air emissions from
the facility result in the violation of an emission standard for a
hazardous air pollutant established pursuant to Section 7412 of Title
42 of the United States Code or the threshold exposure level for a
toxic air contaminant, as defined in Section 39655.
(3) A state or federal public agency requires that the use of a
source of drinking water be discontinued because of the contamination
of the source by a release of hazardous waste, hazardous substances,
or leachate from the facility.
(4) A state agency, or the board of supervisors of the county in
which the facility is located, upon recommendation of its local
health officer, makes a finding that the public health has been
affected by a release of hazardous wastes from the facility. The
finding shall be based on statistically significant data developed in
a health effects study conducted according to a study design, and
using a methodology, which are developed after considering the
suggestions on study design and methodology made by interested
parties and which are approved by the Epidemiological Studies Section
in the Epidemiology and Toxicology Branch of the department before
beginning the study.
(5) The owner or operator of the facility is in violation of an
order issued pursuant to Section 25187 which requires one or both of
the following:
(A) The correction of a violation or condition that has resulted,
or threatens to result, in an unauthorized release of hazardous waste
or a constituent of hazardous waste from the facility into either
the onsite or offsite environment.
(B) The cleanup of a release of hazardous waste or a constituent
of hazardous waste, the abatement of the effects of the release, and
any other necessary remedial action.
(6) The facility is in violation of an order issued pursuant to
Article 1 (commencing with Section 13300) of, or Article 2
(commencing with Section 13320) of, Chapter 5 of Division 7 of the
Water Code or in violation of a temporary restraining order,
preliminary injunction, or permanent injunction issued pursuant to
Article 4 (commencing with Section 13340) of Chapter 5 of Division 7
of the Water Code.
(c) Whenever the director determines that a hearing is required,
as specified in subdivision (b), the director shall immediately
request the Office of Administrative Hearings to assign an
administrative law judge to conduct the hearing, pursuant to this
subdivision.
(1) After an administrative law judge is assigned by the Office of
Administrative Hearings, the director shall transmit to the
administrative law judge and to the operator of the existing
hazardous waste facility, all relevant documents, information, and
data that were the basis for the director's determination. The
director shall also prepare a notice specifying the time and place of
the hearing. The notice shall also include a clear statement of the
reasons for conducting the hearing, a description of the facts,
data, circumstances, or occurrences that are the cause for conducting
the hearing, and the issues to be addressed at the hearing. The
hearing shall be held as close to the location of the existing
hazardous waste facility as is practicable and shall commence no
later than 30 days following the director's request to the Office of
Administrative Hearings to assign an administrative law judge to the
case.
(2) The hearing specified in paragraph (1) shall be conducted in
accordance with Article 8 (commencing with Section 11435.05) of
Chapter 4.5 of Part 1 of Division 3 of Title 2 of, and Sections 11511
to 11515, inclusive, of, the Government Code. The administrative
law judge's proposed decision shall be transmitted to the director
within 30 days after the case is submitted.
(3) The director may adopt the proposed decision of the
administrative law judge in its entirety or may decide the case upon
the record, as provided in Section 11517 of the Government Code. The
director's decision shall be in writing and shall contain findings
of fact and a determination of the issues presented. The decision is
subject to judicial review in accordance with Section 11523 of the
Government Code.
SEC. 67. Section 25229 of the Health and Safety Code is amended to
read:
25229. (a) If, after the hearing, the director makes the decision
that the subject land should not be designated a hazardous waste
property or border zone property, the director shall issue that
decision in writing and serve it in the manner provided in
subdivision (c).
(b) If, after the hearing, the director makes the decision, upon a
preponderance of the evidence, including any evidence developed at
any time prior to the hearing, that the land should be designated a
hazardous waste property or a border zone property, the director
shall issue that decision in writing, which shall identify the
subject land, or portion thereof, by street address, assessor's
parcel number, or legal description and the name of the owner of
record, contain findings of fact based upon the issues presented,
including the reasons for this designation, the substances on, under,
or in the land, and the significant existing or potential hazards to
present or future public health and safety, and order every owner of
the designated land to take all of the following actions:
(1) Execute before a notary a written instrument which imposes an
easement, covenant, restriction, or servitude, or any combination
thereof, as appropriate, upon the present and future uses of the land
pursuant to Section 25230. The written instrument shall also
include a copy of the director's decision.
(2) Return the executed instrument to the director within 30 days
after the decision is delivered or mailed. Within 10 days after
receiving the instrument, the director shall execute the written
instrument and return the instrument to the owner.
(3) Record the written instrument pursuant to Section 25230 within
10 days after receiving the written instrument executed by the
director, as specified in paragraph (2).
(4) Return the recorded written instrument to the director within
10 days after the owner records the instrument, as specified in
paragraph (3).
(c) Copies of the determination shall be delivered or sent by
certified mail to the owner of the property, the legislative body of
the city or county in whose jurisdiction the land is located, and any
other persons who were served pursuant to Section 25222 or who were
permitted to intervene in the proceeding pursuant to Section 25226.
(d) Failure or refusal to comply with any order issued pursuant to
this section shall be treated in the manner provided by Article 12
(commencing with Section 11455.10) of Chapter 4.5 of Part 1 of
Division 3 of Title 2 of the Government Code.
SEC. 68. Section 25299.59 of the Health and Safety Code is amended
to read:
25299.59. (a) Except as specified in subdivision (b), the
procedures in Article 8 (commencing with Section 11435.05) of Chapter
4.5 of Part 1 of Division 3 of Title 2 of, and in Section 11513 of,
the Government Code apply to the proceedings conducted by the board
pursuant to this article.
(b) Notwithstanding subdivision (a), Sections 801, 802, 803, 804,
and 805 of the Evidence Code apply to the proceedings conducted by
the board pursuant to this article.
(c) This article does not require any person to pursue a claim
against the board pursuant to this article before seeking any other
remedy.
(d) If the board has paid out of the fund for any costs of
corrective action, the board shall not pay any other claim out of the
fund for the same costs.
(e) Notwithstanding Sections 25299.57 and 25299.58, the board
shall not reimburse or authorize prepayment of any claim in an
aggregate amount exceeding nine hundred ninety thousand ($990,000)
for a claim arising from the same event or occurrence.
(f) The board may conduct an audit of any corrective action claim
honored pursuant to this chapter. The claimant shall reimburse the
state for any costs disallowed in the audit. A claimant shall
preserve, and make available, upon request of the board or the board'
s designee, all records pertaining to the corrective action claim for
a period of three years after the final payment is made to the
claimant.
SEC. 69. Section 25375.5 of the Health and Safety Code is amended
to read:
25375.5. (a) Except as specified in subdivision (b), the
procedures specified in Article 8 (commencing with Section 11435.05)
of Chapter 4.5 of Part 1 of Division 3 of Title 2 of, and in Section
11513 of, the Government Code apply to the proceedings conducted by
the board pursuant to this article.
(b) Notwithstanding subdivision (a), Sections 801, 802, 803, 804,
and 805 of the Evidence Code apply to the proceedings conducted by
the board pursuant to this article.
(c) The board may consider evidence presented by any person
against whom a demand was made pursuant to subdivision (c) of Section
25372. The evidence presented by that person shall become a part of
the record upon which the board's decision shall be based.
SEC. 70. Section 32154 of the Health and Safety Code is amended to
read:
32154. The board or the hearing officer, if one is appointed,
shall have the same power with respect to the issuance of subpoenas
and subpoenas duces tecum as that granted to any agency or presiding
officer pursuant to Article 11 (commencing with Section 11450.10) of
Chapter 4.5 of Part 1 of Division 3 of Title 2 of the Government
Code. Any subpoena or subpoena duces tecum issued pursuant to this
section shall have the same force and effect and impose the same
obligations upon witnesses as that provided in Article 11 (commencing
with Section 11450.10) of Chapter 4.5 of Part 1 of Division 3 of
Title 2 of the Government Code.
SEC. 71. Section 40843 of the Health and Safety Code is amended to
read:
40843. Upon receipt of a report submitted pursuant to Section
40842, the superior court shall proceed as specified in Section
11455.20 of the Government Code.
SEC. 72. Section 146 of the Labor Code is amended to read:
146. In the conduct of hearings related to permanent variances,
the board and its representatives are not bound by common law or
statutory rules of evidence or by technical or formal rules of
procedure but shall conduct the hearings in accordance with Article 8
(commencing with Section 11435.05) of Chapter 4.5 of Part 1 of
Division 3 of Title 2 of, and Section 11513 of, the Government Code.
A full and complete record shall be kept of all proceedings.
SEC. 73. Section 1144.5 is added to the Labor Code, to read:
1144.5. (a) Notwithstanding Section 11425.10 of the Government
Code, Chapter 4.5 (commencing with Section 11400) of Part 1 of
Division 3 of Title 2 of the Government Code does not apply to a
hearing by the board under this part, except a hearing to determine
an unfair labor practice charge.
(b) Notwithstanding Sections 11425.30 and 11430.10 of the
Government Code, in a hearing to determine an unfair labor practice
charge, a person who has participated in a determination of probable
cause, injunctive or other pre-hearing relief, or other equivalent
preliminary determination in an adjudicative proceeding may serve as
presiding officer or as a supervisor of the presiding officer or may
assist or advise the presiding officer in the same proceeding.
SEC. 74. Section 4600 of the Labor Code is amended to read:
4600. Medical, surgical, chiropractic, and hospital treatment,
including nursing, medicines, medical and surgical supplies,
crutches, and apparatus, including orthotic and prosthetic devices
and services, that is reasonably required to cure or relieve from the
effects of the injury shall be provided by the employer. In the
case of his or her neglect or refusal seasonably to do so, the
employer is liable for the reasonable expense incurred by or on
behalf of the employee in providing treatment. After 30 days from
the date the injury is reported, the employee may be treated by a
physician of his or her own choice or at a facility of his or her own
choice within a reasonable geographic area. However, if an employee
has notified his or her employer in writing prior to the date of
injury that he or she has a personal physician, the employee shall
have the right to be treated by that physician from the date of
injury. If an employee requests a change of physician pursuant to
Section 4601, the request may be made at any time after the injury,
and the alternative physician or chiropractor shall be provided
within five days of the request as required by Section 4601. For the
purpose of this section, "personal physician" means the employee's
regular physician and surgeon, licensed pursuant to Chapter 5
(commencing with Section 2000) of Division 2 of the Business and
Professions Code, who has previously directed the medical treatment
of the employee, and who retains the employee's medical records,
including his or her medical history.
Where at the request of the employer, the employer's insurer, the
administrative director, the appeals board, or a workers'
compensation judge, the employee submits to examination by a
physician, he or she shall be entitled to receive in addition to all
other benefits herein provided all reasonable expenses of
transportation, meals, and lodging incident to reporting for the
examination, together with one day of temporary disability indemnity
for each day of wages lost in submitting to the examination.
Regardless of the date of injury, "reasonable expenses of
transportation" includes mileage fees from the employee's home to the
place of the examination and back at the rate of twenty-one cents
($0.21) a mile or the mileage rate adopted by the Director of the
Department of Personnel Administration pursuant to Section 19820 of
the Government Code, whichever is higher, plus any bridge tolls. The
mileage and tolls shall be paid to the employee at the time he or
she is given notification of the time and place of the examination.
Where at the request of the employer, the employer's insurer, the
administrative director, the appeals board, a workers' compensation
judge, an employee submits to examination by a physician and the
employee does not proficiently speak or understand the English
language, he or she shall be entitled to the services of a qualified
interpreter in accordance with conditions and a fee schedule
prescribed by the administrative director. These services shall be
provided by the employer. For purposes of this section, "qualified
interpreter" means a language interpreter certified, or deemed
certified, pursuant to Article 8 (commencing with Section 11435.05)
of Chapter 4.5 of Part 1 of Division 3 of Title 2 of, or Section
68566 of, the Government Code.
SEC. 75. Section 5278 of the Labor Code is amended to read:
5278. (a) No disclosure of any offers of settlement made by any
party shall be made to the arbitrator prior to the filing of the
award.
(b) Article 7 (commencing with Section 11430.10) of Chapter 4.5
of Part 1 of Division 3 of Title 2 of the Government Code applies to
a communication to the arbitrator or a potential arbitrator.
SEC. 76. Section 5710 of the Labor Code is amended to read:
5710. (a) The appeals board, a workers' compensation judge, or
any party to the action or proceeding, may, in any investigation or
hearing before the appeals board, cause the deposition of witnesses
residing within or without the state to be taken in the manner
prescribed by law for like depositions in civil actions in the
superior courts of this state. To that end the attendance of
witnesses and the production of records may be required. Depositions
may be taken outside the state before any officer authorized to
administer oaths. The appeals board or a workers' compensation judge
in any proceeding before
the appeals board may cause evidence to be taken in other
jurisdictions before the agency authorized to hear workers'
compensation matters in those other jurisdictions.
(b) Where the employer or insurance carrier requests a deposition
to be taken of an injured employee, or any person claiming benefits
as a dependent of an injured employee, the deponent is entitled to
receive in addition to all other benefits:
(1) All reasonable expenses of transportation, meals, and lodging
incident to the deposition.
(2) Reimbursement for any loss of wages incurred during attendance
at the deposition.
(3) A copy of the transcript of the deposition, without cost.
(4) A reasonable allowance for attorney's fees for the deponent,
if represented by an attorney licensed by the state bar of this
state. The fee shall be discretionary with, and, if allowed, shall
be set by, the appeals board, but shall be paid by the employer or
his or her insurer.
(5) A reasonable allowance for interpreter's fees for the
deponent, if interpretation services are needed and provided by a
language interpreter certified or deemed certified pursuant to
Article 8 (commencing with Section 11435.05) of Chapter 4.5 of Part 1
of Division 3 of Title 2 of, or Section 68566 of, the Government
Code. The fee shall be in accordance with the fee schedule set by
the administrative director and paid by the employer or his or her
insurer. Payment for interpreter's services shall be allowed for
deposition of a non-English-speaking injured worker, and for any
other deposition-related events as permitted by the administrative
director.
SEC. 77. Section 5811 of the Labor Code is amended to read:
5811. (a) No fees shall be charged by the clerk of any court for
the performance of any official service required by this division,
except for the docketing of awards as judgments and for certified
copies of transcripts thereof. In all proceedings under this
division before the appeals board, costs as between the parties may
be allowed by the appeals board.
(b) It shall be the responsibility of any party producing a
witness requiring an interpreter to arrange for the presence of a
qualified interpreter. A qualified interpreter is a language
interpreter who is certified, or deemed certified, pursuant to
Article 8 (commencing with Section 11435.05) of Chapter 4.5 of Part 1
of Division 3 of Title 2 of, or Section 68566 of, the Government
Code.
Interpreter fees which are reasonably, actually, and necessarily
incurred shall be allowed as cost under this section, provided they
are in accordance with the fee schedule set by the administrative
director.
A qualified interpreter may render services during the following:
(1) A deposition.
(2) An appeals board hearing.
(3) During those settings which the administrative director
determines are reasonably necessary to ascertain the validity or
extent of injury to an employee who cannot communicate in English.
SEC. 78. Section 6603 of the Labor Code is amended to read:
6603. (a) The rules of practice and procedure adopted by the
appeals board shall be consistent with Article 8 (commencing with
Section 11435.05) of Chapter 4.5 of Part 1 of Division 3 of Title 2
of, and Sections 11507, 11507.6, 11507.7, 11513, 11514, 11515, and
11516 of, the Government Code, and shall provide affected employees
or representatives of affected employees an opportunity to
participate as parties to a hearing under Section 6602.
(b) The superior courts shall have jurisdiction over contempt
proceedings, as provided in Article 12 (commencing with Section
11455.10) of Chapter 4.5 of Part 1 of Division 3 of Title 2 of the
Government Code.
SEC. 79. Section 105 is added to the Military and Veterans Code,
to read:
105. Notwithstanding Section 11425.10 of the Government Code,
Chapter 4.5 (commencing with Section 11400) of Part 1 of Division 3
of Title 2 of the Government Code does not apply to a hearing
conducted by the Military Department under this code.
SEC. 80. Section 3066 is added to the Penal Code, to read:
3066. Notwithstanding Section 11425.10 of the Government Code,
Chapter 4.5 (commencing with Section 11400) of Part 1 of Division 3
of Title 2 of the Government Code does not apply to a parole hearing
or other adjudication concerning rights of an inmate or parolee
conducted by the Department of Corrections or the Board of Prison
Terms.
SEC. 81. Section 663.1 of the Public Resources Code is amended to
read:
663.1. (a) For the purposes of this section, "ex parte
communication" means any oral or written communication between a
member of the board and an interested person about a matter within
the board's jurisdiction that does not occur in a public hearing,
workshop, or other official proceeding, or on the official record of
the proceeding on the matter.
(b) For purposes of this section, "a matter within the board's
jurisdiction" means any action on a reclamation plan or financial
assurance appealed pursuant to subdivision (e) of Section 2770, any
review of an order setting administrative penalties pursuant to
Section 2774.2, or any review of an appeal pursuant to Section 2775.
(c) (1) A board member or any person, other
than a staff member of the board, department, or any other state
agency, who is acting in his or her official capacity and who intends
to influence the decision of the board on a matter within the board'
s jurisdiction, shall not conduct an ex parte communication, unless
the board member or the person who engages in the communication with
the board member discloses that communication in one of the following
ways:
(A)
(1) The board member or the person fully discloses the
communication and makes public the ex parte communication by
providing a full report of the communication to the executive officer
or, if the communication occurs within seven days of the next board
hearing, to the board on the record of the proceeding of that
hearing.
(B)
(2) When two or more board members receive substantially the
same written communication or receive the same oral communication
from the same party on the same matter, one of the board members
fully discloses the communication on behalf of the other board member
or members who received the communication and requests in writing
that it be placed in the board's official record of the proceeding.
(d) (1) The board shall adopt standard disclosure forms for
reporting ex parte communications which shall include, but not be
limited to, all of the following information:
(A) The date, time, and location of the communication.
(B) The identity of the person or persons initiating and the
person or persons receiving the communication.
(C) A complete description of the content of the communication,
including the complete text of any written material that was part of
the communication.
(2) The executive officer shall place in the public record any
report of an ex parte communication.
(e) Communications shall cease to be ex parte communications when
fully disclosed and placed in the board's official record.
(f) In addition to any other applicable penalty, a board member
who knowingly violates this section is subject to a civil fine, not
to exceed seven thousand five hundred dollars ($7,500).
Notwithstanding any law to the contrary, the court may award
attorneys' fees and costs to the prevailing party.
(g) Notwithstanding Section 11425.10 of the Government Code, the
ex parte communications provisions of the Administrative Procedure
Act (Article 7 (commencing with Section 11430.10) of Chapter 4.5 of
Part 1 of Division 3 of Title 2 of the Government Code) do not apply
to proceedings of the board under this code.
SEC. 82. Section 25513.3 is added to the Public Resources Code, to
read:
25513.3. Notwithstanding Sections 11425.30 and 11430.10 of the
Government Code, unless a party demonstrates other statutory grounds
for disqualification, a person who has served as investigator or
advocate in an adjudicative proceeding of the commission under this
code may serve as a supervisor of the presiding officer or assist or
advise the presiding officer in the same proceeding if the service,
assistance, or advice occurs more than one year after the time the
person served as investigator or advocate, provided the content of
any advice is disclosed on the record and all parties have an
opportunity to comment on the advice.
SEC. 83. Section 30329 is added to the Public Resources Code, to
read:
30329. Notwithstanding Section 11425.10 of the Government Code,
the ex parte communications provisions of the Administrative
Procedure Act (Article 7 (commencing with Section 11430.10) of
Chapter 4.5 of Part 1 of Division 3 of Title 2 of the Government
Code) do not apply to proceedings of the California Coastal
Commission under this division.
SEC. 84. Section 40412 of the Public Resources Code is amended to
read:
40412. (a) Subject to subdivision (c), Article 7 (commencing with
Section 11430.10) of Chapter 4.5 of Part 1 of Division 3 of Title 2
of the Government Code applies to matters under the board's
jurisdiction that are subject to a rollcall vote pursuant to Section
40510.
(b) If a communication in violation of this section occurs, the
board member shall notify the interested party that a full disclosure
of the ex parte communication shall be entered in the board's
record.
(c) It is not a violation of this section if either of the
following occurs:
(1) The board member or the person who engaged in the
communication with the board member fully discloses the communication
and requests in writing that it be placed in the board's official
record of the proceeding.
(2) When two or more board members receive substantially the same
written communication, or are party to the same oral communication,
from the same party on the same matter, and a single board member
fully discloses the communication on behalf of the other board member
or members who received the communication and requests in writing
that it be placed in the board's official record of the proceeding.
SEC. 85. Section 40413 of the Public Resources Code is amended to
read:
40413. (a) Any person who violates Section 40411 is punishable by
a fine of not more than fifty thousand dollars ($50,000) or by
imprisonment for not more than one year in the county jail or in the
state prison, or by both that fine and imprisonment.
(b) In addition to the sanctions provided in Article 7 (commencing
with Section 11430.10) of Chapter 4.5 of Part 1 of Division 3 of
Title 2 of the Government Code, any person who violates Section 40412
is punishable by a fine of not more than fifty thousand dollars
($50,000) or by imprisonment for not more than one year in the county
jail or in the state prison, or by both that fine and imprisonment.
SEC. 86. Section 1701 of the Public Utilities Code is amended to
read:
1701. (a) All hearings, investigations, and proceedings shall be
governed by this part and by rules of practice and procedure adopted
by the commission, and in the conduct thereof the technical rules of
evidence need not be applied. No informality in any hearing,
investigation, or proceeding or in the manner of taking testimony
shall invalidate any order, decision or rule made, approved, or
confirmed by the commission.
(b) Notwithstanding Section 11425.10 of the Government Code,
Chapter 4.5 (commencing with Section 11400) of Part 1 of Division 3
of Title 2 of the Government Code does not apply to a hearing by the
commission under this part.
SEC. 87. Section 1636 of the Revenue and Taxation Code is amended
to read:
1636. The county board of supervisors may appoint one or more
assessment hearing officers or contract with the Office of
Administrative Hearings for the services of an administrative law
judge pursuant to Chapter 14 (commencing with Section 27720) of Part
3 of Division 2 of Title 3 of the Government Code to conduct hearings
on any assessment protests filed under Article 1 (commencing with
Section 1601) of this chapter and to make recommendations to the
county board of equalization or assessment appeals board concerning
the protests. Only persons meeting the qualifications prescribed by
Section 1624 may be appointed as an assessment hearing officer.
SEC. 88. Section 409 of the Unemployment Insurance Code is amended
to read:
409. The chairperson shall assign cases before the board to any
two members of the board for consideration and decision. Assignments
by the chairperson of members to the cases shall be rotated so as to
equalize the workload of the members, but with the composition of
the members so assigned being varied and changed to assure that there
shall never be a fixed and continuous composition of members.
Except as otherwise provided, the decision of the two members
assigned the case shall be the decision of the appeals board. In the
event that the two members do not concur in the decision, the
chairperson or another member of the board designated by the
chairperson shall be assigned to the panel and shall resolve the
impasse. A case shall be considered and decided by the appeals board
acting as a whole at the request of any member of the appeals board.
The appeals board shall meet as a whole when the chairperson may
direct to consider and pass on any matters that the chairperson may
bring before it, and to consider and decide cases that present issues
of first impression or that will enable the appeals board to achieve
uniformity of decisions by the respective members.
The appeals board, acting as a whole, may designate certain of its
decisions as precedents. Precedent decisions of the appeals board
are subject to Section 11425.60 of the Government Code. The appeals
board, acting as a whole, may, on its own motion, reconsider a
previously issued decision solely to determine whether or not the
decision shall be designated as a precedent decision. Decisions of
the appeals board acting as a whole shall be by a majority vote of
its members. The director and the appeals board administrative law
judges shall be controlled by those precedents except as modified by
judicial review. If the appeals board issues decisions other than
those designated as precedent decisions, anything incorporated in
those decisions shall be physically attached to and be made a part of
the decisions. The appeals board may make a reasonable charge as it
deems necessary to defray the costs of publication and distribution
of its precedent decisions and index of precedent decisions.
SEC. 89. Section 3066 of the Vehicle Code is amended to read:
3066. (a) Upon receiving a notice of protest pursuant to Section
3060, 3062, 3064, or 3065, the board shall fix a time, which shall be
within 60 days of the order, and place of hearing, and shall send by
registered mail a copy of the order to the franchisor, the
protesting franchisee, and all individuals and groups which have
requested notification by the board of protests and decisions of the
board. Except in any case involving a franchisee who deals
exclusively in motorcycles, the board or its secretary may, upon a
showing of good cause, accelerate or postpone the date initially
established for a hearing, but in no event shall the hearing be
rescheduled more than 90 days after the board's initial order. For
the purpose of accelerating or postponing a hearing date, "good cause"
includes, but is not limited to, the effects upon, and any
irreparable harm to, the parties or interested persons or groups if
the request for a change in hearing date is not granted. The board,
or a hearing officer designated by the board, shall hear and
consider the oral and documented evidence introduced by the parties
and other interested individuals and groups, and the board shall make
its decision solely on the record so made. Sections 11507.6,
11507.7, 11511, 11513, 11514, 11515, and 11517 of the Government Code
apply to these proceedings.
(b) In any hearing on a protest filed pursuant to Section 3060 or
3062, the franchisor shall have the burden of proof to establish that
there is good cause to modify, replace, terminate, or refuse to
continue a franchise. The franchisee shall have the burden of proof
to establish that there is good cause not to enter into a franchise
establishing or relocating an additional motor vehicle dealership.
(c) In any hearing on a protest filed pursuant to Section 3064 or
3065, the franchisee shall have the burden to establish that the
schedule of compensation or the warranty reimbursement schedule is
not reasonable.
(d) A member of the board who is a new motor vehicle dealer may
not participate in, hear, comment, or advise other members upon, or
decide, any matter involving a protest filed pursuant to this
article.
SEC. 90. Section 11728 of the Vehicle Code is amended to read:
11728. As part of a compromise settlement agreement entered into
pursuant to Section 11707 or 11808.5, the department may assess a
monetary penalty of not more than two thousand five hundred dollars
($2,500) per violation and impose a license suspension of not more
than 30 days for any dealer who violates subdivision (r) of Section
11713. The extent of the penalties shall be based on the nature of
the violation and effect of the violation on the purposes of this
article. Except for the penalty limits provided for in Sections
11707 and 11808.5, all the provisions governing compromise settlement
agreements for dealers, salespersons, and wholesalers apply to this
section, and Section 11415.60 of the Government Code does not apply.
SEC. 91. Section 14112 of the Vehicle Code is amended to read:
14112. (a) All matters in a hearing not covered by this chapter
shall be governed, as far as applicable, by Chapter 5 (commencing
with Section 11500) of Part 1 of Division 3 of Title 2 of the
Government Code.
(b) Subdivision (a) of Section 11425.30 of the Government Code
does not apply to a proceeding for issuance, denial, revocation, or
suspension of a driver's license pursuant to this division. The
Department of Motor Vehicles shall study the effect of that
subdivision on proceedings involving vehicle operation certificates
and shall report to the Legislature by December 31, 1999, with
recommendations concerning experience with its application in those
proceedings.
SEC. 92. Section 1778 is added to the Welfare and Institutions
Code, to read:
1778. Notwithstanding Section 11425.10 of the Government Code,
Chapter 4.5 (commencing with Section 11400) of Part 1 of Division 3
of Title 2 of the Government Code does not apply to a parole hearing
or other adjudication concerning rights of a person committed to the
control of the Youth Authority conducted by the Youth Authority or
the Youthful Offender Parole Board.
SEC. 93. Section 3158 is added to the Welfare and Institutions
Code, to read:
3158. Notwithstanding Section 11425.10 of the Government Code,
Chapter 4.5 (commencing with Section 11400) of Part 1 of Division 3
of Title 2 of the Government Code does not apply to a release hearing
or other adjudication concerning rights of a person committed to the
custody of the Director of Corrections conducted by the Narcotic
Addiction Evaluation Authority.
SEC. 94. Section 4689.5 of the Welfare and Institutions Code is
amended to read:
4689.5. (a) Proceeding for the termination, or denial of
vendorization as a family home agency or family home pursuant to
Section 4689.4 shall be conducted in accordance with Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code, and the State Department of Developmental
Services shall have all the powers granted by Chapter 5. In the
event of conflict between this section and Chapter 5, Chapter 5 shall
prevail.
(b) In all proceedings conducted in accordance with this section,
the standard of proof to be applied shall be a preponderance of the
evidence.
(c) The hearing shall be held within 90 calendar days after
receipt of the notice of defense, unless a continuance of the hearing
is granted by the department or the administrative law judge. When
the matter has been set for hearing, only the administrative law
judge may grant a continuance of the hearing. The administrative law
judge may grant a continuance of the hearing, but only upon finding
the existence of one or more of the following:
(1) The death or incapacitating illness of a party, a
representative or attorney of a party, a witness to an essential
fact, or of the parent, child, or member of the household of that
person, when it is not feasible to substitute another representative,
attorney, or witness because of the proximity of the hearing date.
(2) Lack of notice of hearing as provided in Section 11509 of the
Government Code.
(3) A material change in the status of the case where a change in
the parties or pleadings requires postponement, or an executed
settlement or stipulated findings of fact obviate the need for
hearing. A partial amendment of the pleadings shall not be good
cause for continuance to the extent that the unamended portion of the
pleadings is ready to be heard.
(4) A stipulation for continuance signed by all parties or their
authorized representatives that is communicated with the request for
continuance to the administrative law judge no later than 25 business
days before the hearing.
(5) The substitution of the representative or attorney of a party
upon showing that the substitution is required.
(6) The unavailability of a party, representative, or attorney of
a party, or witness to an essential fact due to a conflicting and
required appearance in a judicial matter if when the hearing date was
set, the person did not know and could neither anticipate nor at any
time avoid the conflict, and the conflict with request for
continuance is immediately communicated to the administrative law
judge.
(7) The unavailability of a party, a representative or attorney of
a party, or a material witness due to an unavoidable emergency.
(8) Failure by a party to comply with a timely discovery request
if the continuance request is made by the party who requested the
discovery.
(d) In addition to the witness fees and mileage provided by
Section 11450.40 of the Government Code, the department may pay
actual, necessary, and reasonable expenses in an amount not to exceed
the per diem allowance payable to a nonrepresented state employee on
travel status. The department may pay witness expenses in advance
of the hearing.
SEC. 95. Section 11350.6 of the Welfare and Institutions Code is
amended to read:
11350.6. (a) As used in this section:
(1) "Applicant" means any person applying for issuance or renewal
of a license.
(2) "Board" means any entity specified in Section 101 of the
Business and Professions Code, the entities referred to in Sections
1000 and 3600 of the Business and Professions Code, the State Bar,
the Department of Real Estate, and any other state commission,
department, committee, examiner, or agency that issues a license,
certificate, credential, or registration authorizing a person to
engage in a business, occupation, or profession.
(3) "Certified list" means a list provided by the district
attorney to the State Department of Social Services in which the
district attorney verifies, under penalty of perjury, that the names
contained therein are support obligors found to be out of compliance
with a judgment or order for support in a case being enforced under
Title IV-D of the Social Security Act.
(4) "Compliance with a judgment or order for support" means that,
as set forth in a judgment or order for child or family support, the
obligor is no more than 30 calendar days in arrears in making
payments in full for current support, in making periodic payments in
full, whether court-ordered or by agreement with the district
attorney, on a support arrearage, or in making periodic payments in
full, whether court-ordered or by agreement with the district
attorney, on a judgment for reimbursement for public assistance, or
has obtained a judicial finding that equitable estoppel as provided
in statute or case law precludes enforcement of the order. The
district attorney is authorized to use this section to enforce orders
for spousal support only when the district attorney is also
enforcing a related child support obligation owed to the obligee
parent by the same obligor, pursuant to Sections 11475.1 and 11475.2.
(5) "License" includes membership in the State Bar, and a
certificate, permit, registration, or any other authorization issued
by a board that allows a person to engage in a business, occupation,
or profession, or to operate a commercial motor vehicle.
(6) "Licensee" means any person holding a license, certificate,
permit, registration, or other authorization issued by a board, to
engage in a business, occupation, or profession, or a commercial
driver's license as defined in Section 15210 of the Vehicle Code.
(b) The district attorney shall maintain a list of those persons
included in a case being enforced under Title IV-D of the Social
Security Act against whom a support order or judgment has been
rendered by, or registered in, a court of this state, and who are not
in compliance with that order or judgment. The district attorney
shall submit a certified list with the names, social security
numbers, and last known addresses of these persons and the name,
address, and telephone number of the district attorney who certified
the list to the State Department of Social Services. The district
attorney shall verify, under penalty of perjury, that the persons
listed are subject to an order or judgment for the payment of support
and that these persons are not in compliance with the order or
judgment. The district attorney shall submit to the State Department
of Social Services an updated certified list on a monthly basis.
(c) The State Department of Social Services shall consolidate the
certified lists received from the district attorneys and, within 30
calendar days of receipt, shall provide a copy of the consolidated
list to each board which is responsible for the regulation of
licenses, as specified in this section.
(d) On or before November 1, 1992, or as soon thereafter as
economically feasible, as determined by the State Department of
Social Services, all boards subject to this section shall implement
procedures to accept and process the list provided by the State
Department of Social Services, in accordance with this section.
(e) (1) Promptly after receiving the certified
consolidated list from the State Department of Social Services, and
prior to the issuance or renewal of a license, each board shall
determine whether the applicant is on the most recent certified
consolidated list provided by the State Department of Social
Services. The board shall have the authority to withhold issuance or
renewal of the license of any applicant on the list.
(2) If an applicant is on the list, the board shall immediately
serve notice as specified in subdivision (f) on the applicant of the
board's intent to withhold issuance or renewal of the license. The
notice shall be made personally or by mail to the applicant's last
known mailing address on file with the board. Service by mail shall
be complete in accordance with Section 1013 of the Code of Civil
Procedure.
(A) The board shall issue a temporary license valid for a period
of 150 days to any applicant whose name is on the certified list if
the applicant is otherwise eligible for a license.
(B) The 150-day time period for a temporary license shall not be
extended. Only one temporary license shall be issued during a
regular license term and it shall coincide with the first 150 days of
that license term. As this paragraph applies to commercial driver
licenses, "license term" shall be deemed to be 12 months from the
date the application fee is received by the Department of Motor
Vehicles. A license for the full or remainder of the license term
shall be issued or renewed only upon compliance with this section.
(C) In the event that a license or application for a license or
the renewal of a license is denied pursuant to this section, any
funds paid by the applicant or licensee shall not be refunded by the
board.
(3) (A) The State Department of Social Services may, when it is
economically feasible for the department and the boards to do so as
determined by the department, in cases where the department is aware
that certain child support obligors listed on the certified lists
have been out of compliance with a judgment or order for support for
more than four months, provide a supplemental list of these obligors
to each board with which the department has an interagency agreement
to implement this paragraph. Upon request by the department, the
licenses of these obligors shall be subject to suspension, provided
that the licenses would not otherwise be eligible for renewal within
six months from the date of the request by the department. The board
shall have the authority to suspend the license of any licensee on
this supplemental list.
(B) If a licensee is on a supplemental list, the board shall
immediately serve notice as specified in subdivision (f) on the
licensee that his or her license will be automatically suspended 150
days after notice is served, unless compliance with this section is
achieved. The notice shall be made personally or by mail to the
licensee's last known mailing address on file with the board.
Service by mail shall be complete in accordance with Section 1013 of
the Code of Civil Procedure.
(C) The 150-day notice period shall not be extended.
(D) In the event that any license is suspended pursuant to this
section, any funds paid by the licensee shall not be refunded by the
board.
(E) This paragraph shall not apply to licenses subject to annual
renewal or annual fee.
(f) Notices shall be developed by each board in accordance with
guidelines provided by the State Department of Social Services and
subject to approval by the State Department of Social Services. The
notice shall include the address and telephone number of the district
attorney who submitted the name on the certified list, and shall
emphasize the necessity of obtaining a release from that district
attorney's office as a condition for the issuance, renewal, or
continued valid status of a license or licenses.
(1) In the case of applicants not subject to paragraph (3) of
subdivision (e), the notice shall inform the applicant that the board
shall issue a temporary license, as provided in subparagraph (A) of
paragraph (2) of subdivision (e), for 150 calendar days if the
applicant is otherwise eligible and that upon expiration of that time
period the license will be denied unless the board has received a
release from the district attorney who submitted the name on the
certified list.
(2) In the case of licensees named on a supplemental list, the
notice shall inform the licensee that his or her license will
continue in its existing status for no more than 150 calendar days
from the date of mailing or service of the notice and thereafter will
be suspended indefinitely unless, during the 150-day notice period,
the board has received a release from the district attorney who
submitted the name on the certified list. Additionally, the notice
shall inform the licensee that any license suspended under this
section will remain so until the expiration of the remaining license
term, unless the board receives a release along with applications and
fees, if applicable, to reinstate the license during the license
term.
(3) The notice shall also inform the applicant that if an
application is denied or a license is suspended pursuant to this
section, any funds paid by the applicant or licensee shall not be
refunded by the board. The State Department of Social Services shall
also develop a form that the applicant shall use to request a review
by the district attorney. A copy of this form shall be included
with every notice sent pursuant to this subdivision.
(g) Each district attorney shall maintain review procedures
consistent with this section to allow an applicant to have the
underlying arrearage and any relevant defenses investigated, to
provide an applicant information on the process of obtaining a
modification of a support order, or to provide an applicant
assistance in the establishment of a payment schedule on arrearages
if the circumstances so warrant.
(h) If the applicant wishes to challenge the submission of his or
her name on the certified list, the applicant shall make a timely
written request for review on the form specified in subdivision (f)
to the district attorney who certified the applicant's name. The
district attorney shall, within 75 days of receipt of the written
request, inform the applicant in writing of his or her findings upon
completion of the review. The district attorney shall immediately
send a release to the appropriate board and the applicant, if any of
the following conditions are met:
(1) The applicant is found to be in compliance or negotiates an
agreement with the district attorney for a payment schedule on
arrearages or reimbursement.
(2) The applicant has submitted a request for review, but the
district attorney will be unable to complete the review and send
notice of his or her findings to the applicant within 75 days. This
paragraph applies only if the delay in completing the review process
is not the result of the applicant's failure to act in a reasonable,
timely, and diligent manner upon receiving notice from the board that
his or her name is on the list.
(3) The applicant has filed and served a request for judicial
review pursuant to this section, but a resolution of that review will
not be made within 150 days of the date of service of notice
pursuant to subdivision (f). This paragraph applies only if the delay
in completing the judicial review process is not the result of the
applicant's failure to act in a reasonable, timely, and diligent
manner upon receiving the district attorney's notice of his or her
findings.
(4) The applicant has obtained a judicial finding of compliance as
defined in this section.
(i) An applicant is required to act with diligence in responding
to notices from the board and the district attorney with the
recognition that the temporary license will lapse or the license
suspension will go into effect after 150 days and that the district
attorney and, where appropriate, the court must have time to act
within that period. An applicant's delay in acting, without good
cause, which directly results in the inability of the district
attorney to complete a review of the applicant's request or the court
to hear the request for judicial review within the 150-day period
shall not constitute the diligence required under this section which
would justify the issuance of a release.
(j) Except as otherwise provided in this section, the district
attorney shall not issue a release if the applicant is not in
compliance with the judgment or order for support. The district
attorney shall notify the applicant in writing that the applicant
may, by filing an order to show cause or notice of motion, request
any or all of the following:
(1) Judicial review of the district attorney's decision not to
issue a release.
(2) A judicial determination of compliance.
(3) A modification of the support judgment or order.
The notice shall also contain the name and address of the court in
which the applicant shall file the order to show cause or notice of
motion and inform the applicant that his or her name shall remain on
the certified list if the applicant does not timely request judicial
review. The applicant shall comply with all statutes and rules of
court regarding orders to show cause and notices of motion.
Nothing in this section shall be deemed to limit an applicant from
filing an order to show cause or notice of motion to modify a
support judgment or order or to fix a payment schedule on arrearages
accruing under a support judgment or order or to obtain a court
finding of compliance with a judgment or order for support.
(k) The request for judicial review of the district attorney's
decision shall state the grounds for which review is requested and
judicial review shall be limited to those stated grounds. The court
shall hold an evidentiary hearing within 20 calendar days of the
filing of the request for review. Judicial review of the district
attorney's decision shall be limited to a determination of each of
the following issues:
(1) Whether there is a support judgment, order, or payment
schedule on arrearages or reimbursement.
(2) Whether the petitioner is the obligor covered by the support
judgment or order.
(3) Whether the support obligor is or is not in compliance with
judgment or order of support.
(4) The extent to which the needs of the obligor, taking into
account the obligor's payment history and the current circumstances
of both the obligor and the obligee, warrant a conditional release as
described in this subdivision.
The request for judicial review shall be served by the applicant
upon the district attorney who submitted the applicant's name on the
certified list within seven calendar days of the filing of the
petition. The court has the authority to uphold the action,
unconditionally release the license, or conditionally release the
license.
If the judicial review results in a finding by the court that the
obligor is in compliance with the judgment or order for support, the
district attorney shall immediately send a release in accordance with
subdivision (h) to the appropriate board and the applicant. If the
judicial review results in a finding by the court that the needs of
the obligor warrant a conditional release, the court shall make
findings of fact stating the basis for the release and the payment
necessary to satisfy the unrestricted issuance or renewal of the
license without prejudice to a later judicial determination of the
amount of support arrearages, including interest, and shall specify
payment terms, compliance with which are necessary to allow the
release to remain in effect.
(l) The State Department of Social Services shall prescribe
release forms for use by district attorneys. When the obligor is in
compliance, the district attorney shall mail to the applicant and the
appropriate board a release stating that the applicant is in
compliance. The receipt of a release shall serve to notify the
applicant and the board that, for the purposes of this section, the
applicant is in compliance with the judgment or order for support.
If the district attorney determines subsequent to the issuance of
a release that the applicant is once again not in compliance with a
judgment or order for support, or with the terms of repayment as
described in this subdivision, the district attorney may notify the
board, the obligor, and the State Department of Social Services in a
format prescribed by the State Department of Social Services that the
obligor is not in compliance.
The State Department of Social Services may, when it is
economically feasible for the department and the boards to develop an
automated process for complying with this subdivision, notify the
boards in a manner prescribed by the department, that the obligor is
once again not in compliance. Upon receipt of this notice, the board
shall immediately notify the obligor on a form prescribed by the
department that the obligor's license will be suspended on a specific
date, and this date shall be no longer than 30 days from the date
the form is mailed. The obligor shall be further notified that the
license will remain suspended until a new release is issued in
accordance with subdivision (h). Nothing in this section shall be
deemed to limit the obligor from seeking judicial review of
suspension pursuant to the procedures described in this subdivision.
(m) The State Department of Social Services may enter into
interagency agreements with the state agencies that have
responsibility for the administration of boards necessary to
implement this section, to the extent that it is cost-effective to
implement this section. These agreements shall provide for the
receipt by the other state agencies and boards of federal funds to
cover that portion of costs allowable in federal law and regulation
and incurred by the state agencies and boards in implementing this
section. Notwithstanding any other provision of law, revenue
generated by a board or state agency shall be used to fund the
nonfederal share of costs incurred pursuant to this section. These
agreements shall provide that boards shall reimburse the State
Department of Social Services for the nonfederal share of costs
incurred by the department in implementing this section. The boards
shall reimburse the State Department of Social Services for the
nonfederal share of costs incurred pursuant to this section from
moneys collected from applicants.
(n) Notwithstanding any other provision of law, in order for the
boards subject to this section to be reimbursed for the costs
incurred in administering its provisions, the boards may, with the
approval of the appropriate department director, levy on all
licensees and applicants a surcharge on any fee or fees collected
pursuant to law, or, alternatively, with the approval of the
appropriate department director, levy on the applicants or licensees
named on a certified list or supplemental list, a special fee.
(o) The process described in subdivision (h) shall constitute the
sole administrative remedy for contesting the issuance of a temporary
license or the denial or suspension of a license under this section.
The procedures specified in the administrative adjudication
provisions of the Administrative Procedure Act (Chapter 4.5
(commencing with Section 11400) and Chapter 5 (commencing with
Section 11500) of Part 1 of Division 3 of Title 2 of the Government
Code) shall not apply to the denial, suspension, or failure to issue
or renew a license or the issuance of a temporary license pursuant to
this section.
(p) In furtherance of the public policy of increasing child
support enforcement and collections, on or before November 1, 1995,
the State Department of Social Services shall make a report to the
Legislature and the Governor based on data collected by the boards
and the district attorneys in a format prescribed by the State
Department of Social Services. The report shall contain all of the
following:
(1) The number of delinquent obligors certified by district
attorneys under this section.
(2) The number of support obligors who also were applicants or
licensees subject to this section.
(3) The number of new licenses and renewals that were delayed,
temporary licenses issued, and licenses suspended subject to this
section and the number of new licenses and renewals granted and
licenses reinstated following board receipt of releases as provided
by subdivision (h) by May 1, 1995.
(4) The costs incurred in the implementation and enforcement of
this section.
(q) Any board receiving an inquiry as to the licensed status of an
applicant who has had a license denied or suspended under this
section or has been granted a temporary license under this section
shall respond only that the license was denied or suspended or the
temporary license was issued pursuant to this section. Information
collected pursuant to this section shall be subject to the
Information Practices Act (Section 1798.76 of the Civil Code).
(r) Any rules and regulations issued pursuant to this section may
be adopted as emergency regulations in accordance with the rulemaking
provisions of the Administrative Procedure Act (Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code). The adoption of these regulations shall be
deemed an emergency and necessary for the immediate preservation of
the public peace, health, and safety, or general welfare. The
regulations shall become effective immediately upon filing with the
Secretary of State.
(s) The State Department of Social Services and boards, as
appropriate, shall adopt regulations necessary to implement this
section.
(t) The Judicial Council shall develop the forms necessary to
implement this section, except as provided in subdivisions (f) and
(l).
(u) The release or other use of information received by a board
pursuant to this section, except as authorized by this section, is
punishable as a misdemeanor.
(v) If any provision of this section or the application thereof to
any person or circumstance is held invalid, that invalidity shall
not affect other provisions or applications of this section which can
be given effect without the invalid provision or application, and to
this end the provisions of this section are severable.
(w) All rights to administrative and judicial review afforded by
this section to an applicant shall also be afforded to a licensee.
SEC. 96. (a) Except as provided in subdivision (b), this act shall
be operative on July 1, 1997.
(b) If Section 443.37 of the Health and Safety Code is repealed
before July 1, 1997, then Section 59 of this act shall not become
operative.