Our law firm’s primary practice area is representing professional licensees and healthcare licensees before the various licensing agencies within the state of California and its local or municipal levels of government. Most of these matters are “litigated” – if at all – through the administrative hearing process.
Sometimes, the administrative hearing or final decision goes sideways in these cases, warranting an “appeal” of sorts. This is technically a judicial branch review of the executive branch’s 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.
Similar to an appeal, there is not a lot of time to decide on whether or not to pursue judicial review. However, there is one mechanism under statute that permits an automatic, often extensive extension on that deadline.
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. The ninety (90) days begins to run upon the date in which the decision to reject or revoke is “final.” Typically, the effective “final” date is identified in the written decision. When it is not, the decision is final for purposes of this section upon the date it is mailed by first-class mail, postage prepaid, including a copy of the affidavit or certificate of mailing, to the party seeking the writ.
(Please note that subdivision (a) of Section 1013 does not apply to extend the time, following deposit in the mail of the decision or findings, within which a petition shall be filed.)
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.)
Automatic Extension if Request for Administrative Record
Luckily, rejected license applicants and revoked licensees both have a similar mechanism for extending these deadlines. 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.)
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. It provides the following:
If the petitioner files a request for the record as specified in subdivision (c) within 10 days after the date the decision becomes final as provided in subdivision (b), the time within which a petition pursuant to Section 1094.5 may be filed shall be extended to not later than the 30th day following the date on which the record is either personally delivered or mailed to the petitioner or his attorney of record.
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. It states:
If the petitioner, within 10 days after the last day on which reconsideration can be ordered [i.e. effective date], requests the [licensing] agency 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 to him or her.
As one can imagine, creating the administrative record – especially in a lengthy, contested matter that has triggered the possibility of judicial review of the administrative decision – takes a long time. It oftentimes takes 2 to even 10 times as long as the amount of time provided under statute to file the underlying petition for judicial review.
Little 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. (Gov. Code, § 11522.) 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.