San Luis Obispo County BarCriminal Law SectionThe Intersection of Criminal and Administrative LawJune 12, 2013, 12:00 PMSteven L. Simas

• Steven L. Simas, Esq. – ssimas@simasgovlaw.com • Experience

• Owner and Founder of Simas & Associates, Ltd. since 2002• Deputy Attorney General, Office of the Attorney General• American Veterinary Medical Legal Association • California Academy of Attorneys for Health Care Professionals• Legal Counsel, California Physical Therapy Association, California Registered

Veterinary Technician Association • Practice Areas

• Health Care Law• Professional Licensing and Regulation• Civil Litigation and Appeals• Employment Law and Workplace Regulation

• Justin D. Hein, Esq. – jhein@simasgovlaw.com • Managing Attorney at Simas & Associates, Ltd. since 2011

Intersection of Criminal and Administrative Law

• Summary Overview1. Administrative Process and Hearing Overview2. Substantially Related to the Profession3. Common Procedural Complexities

• Overall Goals of Presentation• Obtain a better understanding of the overlap.• How best to advise clients on what to expect.• When negotiating plea bargains, recognizing the impact and

giving it appropriate weight (even if client does not). • Consult with an experienced administrative law attorney when

dealing with complexities of a particular charge.

Administrative Process and Hearing Overview

Law Governing Administrative Adjudicative

Process

Beyond Administrative Adjudication

• Constitutions (U.S., California) • Administrative Procedure Act

(Government Code §§ 11400, et al.)• California Code of Regulations • Business & Professions Code• Evidence Code• Code of Civil Procedure• California Rules of Professional

Conduct• Precedential Decisions – within an

Executive Agency• Case Law – California Judicial Branch

• Rulemaking• Discretionary and Ministerial Acts• Public Records Act• Government Claims Act• Open Meetings Law• Fair Political Process

Administrative Process and Hearing Overview(Background)

• Executive Agencies• Local, Municipal, Regional Government• Some Private Entities engaged in Public Function

Bodies Subject to Administrative Adjudication

• Legislature• Office of the Governor• Judicial Branch• Courts

Bodies Not Subject to Administrative

Adjudication

• Office of Administrative Hearings• Administrative Law Judges (ALJs)• 4 offices – Sacramento, Los Angeles, Oakland, San Diego• http://www.dgs.ca.gov

Adjudicating Body

Administrative Process and Hearing Overview(Pre-Charge)

Investigation by State Agency•Government Code § 11180•Triggered by Consumer Complaint, Tip

from Other Agency, Database, Self-Reporting.

•Could exceed 2 years.•Oftentimes can involve an Audit.• Licensee has a duty to cooperate.

Interview of Licensee/Applicant•More common in complicated,

substantive types of licensing discipline.•Recorded, under oath.•Right to invoke 5th Amendment Privilege

Against Self-Incrimination.

Charging Document – Accusation/Statement of Issues• Should indicate jurisdiction.• Should indicate statutes and regulations

alleged to have been violated.• Should indicate standard of conduct

breached.•Disciplinary Guidelines are found in

Regulations.•Might include a Temporary Suspension

Order on Licensed Activity.

Administrative Process and Hearing Overview(Continued – Pre-Hearing Process)

Notice of Defense•15 days (+5 if served via mail) to respond.

•Can file general denial, but then waive rights to affirmative defenses, demurrer.

•Can file late special notice with Agency permission (Gov. Code § 11506(b).)

•Default – agency can take license discipline without hearing.

Discovery – Documents, Subpoenas, Limited Depositions•Can file motions to compel, motions to quash, motions in limine.

•OAH cannot impose sanctions but can certify facts to present to Superior Court.

Pre-Hearing Settlement Conference Statement•Conference usually 30 days in advance of hearing.

•Provide ALJ with background on case, identify evidentiary/witness issues, attempts to settle.

Administrative Process and Hearing Overview(Continued – Hearing Process)

Pre-Hearing Settlement Conference• 2-4 hours.• Licensee and individual

with settlement authority from agency must be present.

Expert Witness Disclosure• More common in cases

involving substantive types of licensing discipline.

• More often than not make or break the case.

Administrative Hearing• Executive Agency (in

licensing matters) has the burden of proof.

• Present exculpatory evidence and evidence of rehabilitation.

Administrative Process and Hearing Overview(Continued – Decision Process)

Closing Arguments• Sometimes given

opportunity to present closing arguments after review of administrative record and transcript.

ALJ’s Decision• Must define jurisdiction.• Must determine whether the

alleged misconduct took place (beyond a preponderance or clear and convincing).

• Must take into consideration all rehabilitation, mitigating, and character evidence presented.

Agency Adoption• Executive Agency and/or

its Executive Director has the discretion to adopt, adopt with modification, or decline to adopt ALJ’s decision.

• Could set a new hearing or decide matter on its own.

Administrative Process and Hearing Overview(Continued – Post-Hearing Process)

Petition for Reconsideration• Attempt to present any

other type of evidence or argument that was improperly denied or prevented at hearing.

• Vehicle to set aside defaults.• Must be done shortly after

Notice of Adoption of ALJs Decision.

Petition for Writ of Administrative (or Traditional Mandate) in Superior Court• Judicial review of the

administrative adjudication.

• Often coupled with an ex parte Request for Stay.

Petition for Reinstatement or Modification of Probation• An attempt to

demonstrate overwhelming evidence of Rehabilitation and Correction, enough to warrant a reduction in discipline imposed.

Administrative Process and Hearing Overview(Differences in Common Charging Documents)

• Statement of Issues• Denial of a license application.

• Citations• Business & Professions Code § 125.9• Fine, Order of Abatement, Order of Correction• Compare to a traffic ticket or ordinance violation – a statutorily recognized alternative to disciplinary

proceedings• Nevertheless, can be contested via administrative hearing

• Accusations• Revocation, suspension, or restriction of an already issued license.

• Petition to Revoke Probation or Restricted License• Type of pleading used to impose a previously ordered discipline that had been stayed pending

suspension, probation, or the completion of some specified form of education, rehabilitation.• Temporary Suspension Orders

• “permitting the licensee to continue to engage in the licensed activity will endanger the public health, safety, or welfare”

• Interim Suspension Order – Administrative• Business & Professions Code § 494; Government Code § 11529• If without notice, a hearing must be held on Accusation within 20 days.

• Temporary Restraining Order – Judicial • Business & Profession Code §§ 125.5 – 127.8• Hearing must be held on Accusation within 30 days after issuance.

Administrative Process and Hearing Overview(Differences in Types of Discipline)

• Determination of Appropriate Penalty• Mandated by Statute• Prior Decisions – accessible through Public Records Act• Disciplinary Guidelines• Rehabilitation Criteria

• Types of Discipline• Revocation• License Surrender• Suspension• Probation (Restricted License, Stayed Revocation)• Public Reproval• Civil Penalties/Fines• Mandatory Restitution• Cost Recovery• Training, Education• Therapy or Treatment

Substantially Related to the Profession

• May deny, suspend, or revoke a license on the ground that the applicant or licensee has been convicted of a crime, if the crime is substantially related to the qualifications, functions, or duties of the business or profession for the license sought or for which the license was issued. (Business & Professions Code §§ 480, 490.)• Typically includes:

• Almost all felonies • Crimes of “moral turpitude” – domestic violence, dishonesty, sexual misconduct, controlled

substance abuse.• Does not require that the crime be committed while the licensee or applicant was engaged

in licensed activities.• Can look beyond the “conviction” to the underlying conduct that led to the conviction.

• “Disturbing the Peace” was considered substantially related to the profession when a licensed alarm manager drew his weapon without proper cause in violation of Business & Professions Code § 7597.3(c). Evidence that the licensee, armed with a rifle, chased a woman down a residential street at 10:00 p.m. and then held her at gunpoint because he saw her tearing fliers off his company sign trailer was sufficient to support the finding.

• Issue of Law (Morrison v. State Bd. of Educ. (1969) 1 Cal.3d 214, 238.)• Importance in designation is that the conviction itself is sufficient proof of guilt – there

is no need to re-litigate the issue of guilt. (Arneson v. Fox (1980) 28 Cal.3d 440, 447.)

Substantially Related to the Profession(Further Background)

Agency Requirements

• Must set out the “substantial relationship” criterion within its regulations (Bus. & Prof. Code § 481.)• Must include a general definition.• Licensing agencies do not "enjoy unfettered discretion to determine on a case-by-case basis whether a given conviction is substantially related to the relevant

professional qualifications" but must instead rely on their written criteria. (Donaldson v. Department of Real Estate (2005) 134 Cal.App.4th 948, 955.)• List of violations presumed to be “substantially related”.

Disproving Substantial Relationship

• Review the statutes, regulations, disciplinary guidelines.• Determine the definition of what is “substantially related”.• Find the list of crimes that fit that definition or are specified.

• Examine facts of what is alleged, charged, convicted, and what is the profession.• Produce Expert Witness Testimony.

Substantially Related to the Profession(Convictions)

What Constitutes a Conviction?

• Bus. & Prof. Code §§ 480, 490• Defined as a plea or verdict of guilty

• Pleas and verdicts of “guilty” are presumed to permit the issuance of license discipline, even in the absence of an authorizing statute, as they are a "reliable indicator of actual guilt" to support a disciplinary charge. (Cartwright v. Board of Chiropractic Exam'rs (1976) 16 Cal.3d 762, 773.)

• OR a conviction following a plea of nolo contendere (no contest).• Only if a specific statute so provides. “A nolo contendere plea does not constitute a conviction absent a legislative determination that such pleas and convictions are sufficiently reliable indicators of guilt to warrant disciplinary measures for

protection of the public." (Id. at 774.)• Most licensing agencies’ statutes so provide.

What does not Constitute a Conviction?

• Acquittal – but does not serve as Res judicata or collateral estoppel given the higher standard of proof in criminal cases.

• Arrest

Substantially Related to the Profession(Convictions)

Expungement

• Dismissal of a conviction under Penal Code § 1203.4 does not prevent a licensing agency from bringing a disciplinary action based on the conviction. (Bus. & Prof. Code § 490(c); Krain v. Medical Bd. (1999) 71 Cal.App.4th 1416, 1420 [agency may take disciplinary action based on expunged conviction unless statute provides otherwise].)

• An expungement may be relevant to a license discipline case as evidence of mitigation or rehabilitation. (See, e.g., 16 Cal Code Regs § 99.1(5) [Board of Accountancy will consider evidence of expungement proceedings in evaluating licensee's rehabilitation].) Several agencies are required by law to "give special consideration" to applicants whose convictions have been dismissed pursuant to Penal Code § 1203.4.

Substance Abuse Conviction Notwithstanding Drug Diversion

• A licensing agency may bring disciplinary action even if the licensee successfully completes a drug diversion program as part of a criminal case under Penal Code § 1000.5 (Bus. & Prof. Code § 492).

Procedural Complexities

•No constitutional guarantee of representation in administrative proceedings. (Borror v. Department of Inv. (1971) 15 Cal.App.3d 531.)•No constitutional guarantee of effective counsel in administrative proceedings. (White v Board of Med. Quality Assur. (1982) 128 Cal.App.3d 699, 707.)

Right to Counsel

•An administrative hearing is generally not continued or abated when a criminal action based on the same facts is pending against the same party. (Savoy Club v. Board of Supervisors (1970) 12 Cal.App.3d 1034, 1038.)

•Because administrative proceedings involving license revocation are not criminal in nature but are set up by the legislature to protect the public, it would frustrate the legislative intent to abate the administrative proceeding until the conclusion of the criminal action. (Funke v. DMV (1969) 1 Cal.App.3d 449.)

•An agency or administrative law judge (ALJ) does not have to grant a continuance because counsel is not available on the date set for the hearing. (Givens v. Department of Alcoholic Beverage Control (1959) 176 Cal.App.2d 529.)

Continuances

Procedural Complexities(Continued)

•When an administrative remedy is required by statute or by rule of the agency involved, the aggrieved party must use that procedure or remedy before seeking any other remedy, such as direct review by a superior court. (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280.)

•This is a jurisdictional prerequisite, not a matter of judicial discretion. (Palmer v. Regents of Univ. of Cal. (2003) 107 Cal.App.4th 899.)

•Exhaustion of administrative remedies also applies when an agency establishes an internal grievance mechanism (Palmer v. Regents of Univ. of Cal. (2003) 107 Cal.App.4th 899), and to proceedings such as hospital peer review. (Kaiser Found. Hosp. v Superior Court (Dennis-Johnson) (2005) 128 Cal.App.4th 85.)

Exhaustion of

Administrative Remedies

•Res judicata, also known as claim preclusion, may preclude the subsequent litigation of a claim litigated and decided in a previous proceeding. Collateral estoppel, also known as issue preclusion, prevents relitigation of an issue decided in the first proceeding even though the claim in the subsequent proceeding may be different from the first.•Works both ways:•favorable decision in an administrative proceeding may be used by the licensee in a civil or criminal case. •negative decision in a civil or criminal proceeding may be used against the licensee in his or her administrative proceeding.

Res Judicata and

Collateral Estoppel

Procedural Complexities(Continued)

•In some circumstances, the combination of function (investigatory, prosecutory, adjudicatory) within a single agency may violate due process and the fair hearing process.•When same person(s) who investigated, bring the charges or are involved in the adjudicative function. (Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 95.)•Composition of the decision-making body are not competent or unbiased according to statute. (American Motors Sales Corp. v. New Motor Vehicle Bd. (1977) 69 Cal.App.3d 983, 991.)

Combination of

Function

•The basic guarantee a licensee is provided – a fair hearing.•The principles of due process determine whether the hearing granted by an agency was fair. Additional procedural requirements are sometimes provided in the statutes governing particular agencies, and these statutes should be consulted. State statutes, however, cannot take away federal protections. •It varies, given the factual circumstances. •It does not require any particular form of notice or method of procedure; all that is required is reasonable notice and a reasonable opportunity to be heard.

Fair Hearing Process

Procedural Complexities(Continued)

•Evidence of a statement made at another time or place than by the witness testifying at the hearing and offered to prove the truth of the matter stated. (Evid. Code § 1200.)

•Includes the following types:•Transcript of telephone call to Police Department (Melkonians v. Los Angeles County Civil Serv. Comm'n (2009) 174 Cal.App.4th 1159, 1170.);

•Examination reports from a sister state containing allegations of misconduct;•Verified civil complaint;

•Administrative Hearsay evidence is permitted into Evidence, when supplementing or explaining other evidence. (Gov. Code § 11513(d); Berg v. Davi (2005) 130 Cal.App.4th 223.)

•Cannot be the sole evidence upon which a finding is based. (Gov. Code § 11513(c).)

Use of Administrative Hearsay Evidence

•Hearsay evidence that would normally be admitted over objection in a civil proceeding are NOT administrative hearsay.

•Rather, this evidence CAN be used as sole evidence to support a finding.•Includes the following types:•A police officer’s report (Lake v. Reed (1997) 16 Cal.4th 448, 461) even if it contains another officer’s observations (Gananian v. Zolin (1995) 33 Cal.App.4th 634.) ;

•Testimony offered to prove not the truth of a statement but that the statement was made.

Hearsay Evidence

Admitted Over Objection

Procedural Complexities(Continued)

•Permitted to be used and accepted as direct oral testimony unless opposing party objects and requests to cross-examine. (Gov. Code § 11514(a).)•If party fails to produce affiant/declarant in response to objection, the affidavit/declaration is still admitted as administrative hearsay. (Gov. Code § 11513(c).)

Use of Affidavit/Declarations

•At discretion of the agency or the ALJ, similar matters may be consolidated into a single hearing.•A matter may be severed from an existing hearing upon motion of either party or the ALJ in the interest of prejudice or convenience.

Consolidation or

Severance of Hearing

Procedural Complexities(Common Defenses)

Lack of Jurisdiction

• An agency can only act within statutory authority. If the agency has misinterpreted a statute, it may be a defense for the licensee.• Regulations must be promulgated under the APA.

Constitutionality

• An agency cannot declare a law unconstitutional. And failing to raise constitutionality at hearing does not waive the defense.• Must be raised on a Petition for a Writ of Administrative Mandate.

Statute of Limitations

• Statutes of limitation barring civil actions do not apply to a disciplinary proceeding of a state administrative agency. • There is no specific time limitation for administrative proceedings unless the legislature has imposed a statute of limitation for a particular proceeding. (City of Oakland v. Public Employees' Retirement Sys. (2002) 95 Cal.App.4th 29, 34.)• If they have, they are more often than not 3 years.

Doctrine of Laches

• Trial court may dismiss the administrative proceeding if it is not diligently prosecuted or there has been unreasonable preaccusation delay and the licensee has been prejudiced. (Steen v. City of Los Angeles (1948) 31 Cal.2d 542, 546.)

Procedural Complexities(Common Defenses)

Privilege Against Self-Incrimination

• Licensing agency can compel a licensee to testify at a proceeding. (Gov. Code & 11513(b); Black v. State Bar (1972) 7 Cal.3d 676.)• Licensee can then refuse to testify concerning those matters that could lead to criminal exposure.

Entrapment

• Applicable to administrative and licensing proceedings. (Patty v. Board of Med. Exam'rs (1973) 9 Cal.3d 356, 367.)• conduct of a law enforcement agent that "was likely to induce a normally law-abiding person to commit the offense.“ (People v Barraza (1979) 23

Cal.3d 675, 689.)

Illegal Search and Seizure

• Where warrantless searches are permitted, they still must be conducted reasonably, “tailored to administrative goals and purposes.” (People v Potter (2005) 128 Cal.App.4th 611, 619.)

• Limited applicability of exclusionary rule.

Procedural Complexities(Evidence of Rehabilitation, Mitigation)

Hearing on Evidence Related to Misconduct• Asserting procedural

and substantive defenses.

• Demonstrating compliance with relevant standard of care.

Hearing on Evidence of Rehabilitation, Mitigation, and Character• Demonstrate restitution,

remorse for misconduct.• Present corrective action

– through rehabilitation, education, training.

• Demonstrate an altered lifestyle – new friends, colleagues, employment.

Administrative Adjudicative Licensing Proceedings by their very nature combine the trial and sentencing functions into a single proceeding

Procedural Complexities(Evidence of Rehabilitation, Mitigation)

Mitigation Evidence

•Length of time since misconduct/conviction.•Absence of prior convictions.•Absence of post-misconduct discipline.•Employment record.•Restitution to injured parties.•Reputation in the industry; General reputation in community.•Good faith actions and behavior by the licensee.•Efforts made to avoid repetition.•Acceptance of responsibility, remorse.•Honest and earnest assistance during investigation.

Rehabilitation Evidence

•Volunteering.•Completion of court-order probation.•Expungement of criminal conviction.•Post-violation activities (i.e. employment, education, contributing to social community, etc.)

•Restitution (to injured parties, interests).•Abstention from controlled substances•Changed personal, profesisional, familial, or social circumstances.

•Psychological treatment.

• This can lead to admissions or other forms of evidence which could be used against the licensee in his or her criminal law matter.

• Nevertheless, here are relevant types of Rehabilitation and Mitigation evidence:

Closing Points• Ask. Do not rely upon your client to tell you that he/she has a license. Ask and then

explain that it will need to be something that they consider when reviewing plea bargain offers.

• Self-Reporting. Find out if your client has a self-reporting obligation. Some agencies, boards, bureaus, or commissions have such a requirement. And short deadlines upon which to report.

• Need to “Earn Badges”. Clients need to start compiling evidence of rehabilitation, mitigation, and character immediately. Even if they are not ready (or it is not advisable) to engage in restitution, they must begin contributing to the community.

• Start Identifying Character Witnesses. They may or may not prove helpful to you in your criminal defense. But, again, directing your client to start compiling letters of recommendation, support, testimonials, and endorsements will start the process of being able to improve the client’s chances at keeping his or her license.

• Check-in with an Administrative Law Attorney. You can look up whether the alleged crime is substantially related and the disciplinary guidelines on your own. However, just checking-in with an experienced administrative law attorney might be worthwhile. You can double-check on items and bounce ideas off from him or her.

Thank You!

Steven L. Simas, Esq.

• Tel: 805.547.9300• Fax: 805.547.9302

• www.simasgovlaw.com • ssimas@simasgovlaw.com