• Justin Hein

Act Quick to Extend Deadline on Writ

If a hearing or adoption of a decision after municipal or state administrative hearing does not go your way, ask for the administrative record right away to extend your filing deadline.

Sometimes, an administrative hearing or final decision on a license application or discipline goes the wrong way. This could be a variety of reasons but, to be completely honest, it is likely the result of a licensee attempting to represent themselves throughout the matter and only realizing when its too late that they may have bit off more than they can chew.

In such cases or in default action, an "appeal” of sorts may be warranted. Technically, there is no intra-agency appeal right (with a few exceptions [e.g. Department of Alcoholic Beverage Control, etc.]). Rather, your only option is judicial branch review of a nonjudicial branch’s (e.g. local government; executive branch agency) attempt to adjudicate a dispute. One files a pleading in the appropriate Superior Court of California, seeking judicial review by way of writ of administrative mandate.

Clock is Always Ticking

Similar to an appeal, however, is the short deadline to act. You have between 30-90 days to act. This is not a lot of time to pull a Hamlet and d-around (i.e. dilly-dally... that's what you thought that meant, right/).

Under California Code of Civil Procedure, section 1094.6, a  local government license applicant or a licensee has ninety (90) days to file a petition for a writ of administrative mandate, challenging the administrative decision rejecting a license application or revoking a license. State licensees or license applicants do not receive the same luxury. Their deadline to challenge an administrative decision rejecting a license application or revoking a license is only thirty (30) days from the effective date–or the last day in which reconsideration may be ordered by the licensing agency. (Gov. Code, § 11523.)

Get More Time

If you do, inadvertently, pull a Hamlet and lament in your lot in life for the first week or so thereafter, and realize you may need a bit more time, there is a procedure to effectuate it.

It involves promptly requesting the underlying agency to prepare the underlying administrative record supporting the local or state licensing agency’s decision. The administrative record is “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.” (Gov. Code, § 11523.)

The authority for extending the deadline to challenge the local licensing agency decision by way of a petition for a writ of administrative mandate is found within subsection (d) of section 1094.6. And the authority for extending the deadline to challenge the state license agency decision by way of a petition for a writ of administrative mandate is found within the body of Government Code, section 11523. To paraphrase both, they provide:

If within 10 days after the [effective date], requests the [agency, municipality] to prepare all or any part of the [administrative] record, the time within which a petition [for writ of administrative mandate] may be filed shall be extended until 30 days after its delivery

Creating the administrative record takes a long time. Even in a short 1/2 to 1 day matter, the process of putting together transcript, compiling the pleadings, motions, briefing, rulings, and exhibits will likely take at least 2 weeks from the date of the request. And thereafter, 30 days are tacked on.

More often than not, you looking at 3 months of additional time to d-around to your little-inner-Hamlet's content.

Little to No Negative Consequence

Thus, in the event you are unsure about proceeding on a judicial review of a license denial or revocation, it is in your best interest to immediately request, in writing, the preparation of the administrative record, including a proof of service when doing so. This will ensure that you are provided the maximum time under the law to consider your options.

And, ultimately, if you do not choose to pursue the judicial review, there is no negative collateral impact. Specifically, doing so does not extend the time frame for petitioning for reinstatement. And you may not even be subject to a fee for its production of the record. Depending on the agency, they may not charge you for the production of the record BEFORE its production. And, typically, the agency would only seek to recover the expenses associated with its production by way of judgment for costs AFTER a hearing on your petition. Yet, such a hearing would only happen if you filed and litigated the petition.

So, you got nothing to lose. Just make sure to do it before you go shopping for a skull.

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