You Won! (Or Did You?)

Picture this. You spent months preparing for your licensing hearing. You testified, your witnesses showed up, and your attorney delivered a closing argument worthy of a courtroom drama. A few weeks later, the administrative law judge’s proposed decision arrives, and it’s good. Maybe the accusation is dismissed. Maybe the judge recommends a public reproval instead of the revocation the agency wanted.

You exhale. You celebrate. And then a different envelope shows up: a Notice of Non-Adoption.

Welcome to one of the least understood (and most nerve-racking) corners of California administrative law. In this post, we walk through what a non-adoption is, why it happens, and what you can do about it, all grounded in Government Code section 11517.

The Judge Proposes, the Agency Disposes

Here’s the part that surprises most licensees: the administrative law judge (ALJ) from the Office of Administrative Hearings does not make the final call. Under Government Code section 11517, subdivision (c)(1), the ALJ writes a proposed decision, in a form the agency may adopt as its final decision.

The ALJ is supposed to deliver that proposed decision within 30 days after the case is submitted. The agency (the board, bureau or department that brought the case against you) then receives it, files it as a public record and serves a copy on you and your attorney. Filing and serving it is not the same as adopting it.

In other words, the ALJ’s decision is a strong recommendation. The people who decide whether to follow it are the members of the board or the agency head, the same agency that prosecuted you.

Five Doors and a 100-Day Clock

Once the agency receives the proposed decision, section 11517, subdivision (c)(2) gives it 100 days to choose one of five options:

There is one built-in safety valve: if the agency does nothing within the 100 days, the proposed decision is deemed adopted. Silence works in your favor.

What Non-Adoption Really Means

When an agency picks option (E), it is essentially saying, “Thanks, Judge, but we’ll take it from here.” The board members review the record themselves and write their own decision. Section 11517 sets a few ground rules for that process:

• You get the record. A copy of the record, including the hearing transcript, must be made available to the parties. The agency can charge you the direct cost of copying it.
• You get to be heard. The agency cannot decide the case without giving the parties a chance to present oral or written argument to the agency itself. If new oral evidence comes in, the agency members must hear it themselves.
• The agency can pick and choose. It may decide some issues in the case and not others.
• There’s another clock. The agency must issue its final decision within 100 days after rejecting the proposed decision, or within 100 days after it receives the transcript if it ordered one. It can extend that once, by up to 30 days, for special circumstances, but only with a written order stating its reasons.

Here is the peril in the title. Unlike option (B), nothing in option (E) limits the agency to reducing the penalty. A board that non-adopts can reach different conclusions on the facts and the law, and it can impose a stricter penalty than the ALJ recommended. A proposed public reproval can become probation. Proposed probation can become revocation.

That said, non-adoption is not a guaranteed loss. Boards sometimes non-adopt to clarify a legal point, adjust probation terms or address an issue the ALJ didn’t reach. The outcome depends heavily on what happens during the argument phase.

How to Survive a Non-Adoption

If a Notice of Non-Adoption lands on your desk, take a breath and then get to work. A few practical tips from our experience:

1. Read the notice closely. It will usually say whether the board wants argument on the whole case or only on specific issues, such as the penalty. Your argument should answer the board’s actual concerns.
2. Calendar every deadline. Written-argument deadlines are often short, and a missed deadline means the board decides without hearing from you.
3. Get the transcript. Your argument is limited to the record, so your attorney needs the transcript and exhibits to point the board to the evidence that supports the ALJ’s findings.
4. Lean on the ALJ. The judge heard the witnesses in person and judged their credibility. Remind the board of that, and show how the proposed decision is well reasoned and grounded in the evidence.
5. Address the penalty head-on. Walk the board through its own disciplinary guidelines and your mitigation and rehabilitation evidence. Explain why the proposed penalty protects the public.
6. Keep the door open to settlement. Non-adoption doesn’t end negotiations. A stipulated resolution can still be on the table.
7. Don’t go it alone. Persuasive argument to a board is a specialized skill, and the stakes are high.

It’s Not Over Until It’s Over

Even after the board issues its own decision, you still have options:

• Reconsideration. Under Government Code section 11521, you can ask the agency to reconsider its decision. The window is short and closes before the decision takes effect, so act quickly.
• Court review. You can challenge the final decision in superior court by petitioning for a writ of administrative mandamus (Code of Civil Procedure section 1094.5). Government Code section 11523 sets a tight filing deadline, generally 30 days after the last day on which reconsideration can be ordered. Because a professional license is treated as a fundamental vested right, the court typically exercises its independent judgment on the evidence, and an ALJ’s well-supported findings can be powerful there too.

The Bottom Line

A favorable proposed decision is cause for celebration, but in California administrative law, it isn’t the finish line until the agency adopts it or the 100-day clock runs out. Knowing how section 11517 works helps you prepare for every possibility, including the dreaded non-adoption.

If you’ve received a Notice of Non-Adoption, or you’re heading into a licensing hearing and want to be ready for whatever comes next, the team at Simas & Associates, Ltd. is here to help. Call us at (888) 999-0008 or reach us at info@simasgovlaw.com.

This post is for general information only and is not legal advice. Every case is different, so please consult an attorney about your specific situation.