2017 California Code
Health and Safety Code - HSC
DIVISION 10 - UNIFORM CONTROLLED SUBSTANCES ACT
CHAPTER 3 - Regulation and Control
ARTICLE 1 - Reporting
(a) The Department of Justice, or an administrative law judge sitting alone as provided in subdivision (h), may upon petition issue an interim order suspending any permittee or imposing permit restrictions. The petition shall include affidavits that demonstrate, to the satisfaction of the department, both of the following:
(1) The permittee has engaged in acts or omissions constituting a violation of this code or has been convicted of a crime substantially related to the permitted activity.
(2) Permitting the permittee to operate, or to continue to operate without restrictions, would endanger the public health, safety, or welfare.
(b) No interim order provided for in this section shall be issued without notice to the permittee, unless it appears from the petition and supporting documents that serious injury would result to the public before the matter could be heard on notice.
(c) Except as provided in subdivision (b), the permittee shall be given at least 15 days’ notice of the hearing on the petition for an interim order. The notice shall include documents submitted to the department in support of the petition. If the order was initially issued without notice as provided in subdivision (b), the permittee shall be entitled to a hearing on the petition within 20 days of the issuance of the interim order without notice. The permittee shall be given notice of the hearing within two days after issuance of the initial interim order, and shall receive all documents in support of the petition. The failure of the department to provide a hearing within 20 days following issuance of the interim order without notice, unless the permittee waives his or her right to the hearing, shall result in the dissolution of the interim order by operation of law.
(d) At the hearing on the petition for an interim order, the permittee may do the following:
(1) Be represented by counsel.
(2) Have a record made of the proceedings, copies of which shall be available to the permittee upon payment of costs computed in accordance with the provisions for transcript costs for judicial review contained in Section 11523 of the Government Code.
(3) Present affidavits and other documentary evidence.
(4) Present oral argument.
(e) The department, or an administrative law judge sitting alone as provided in subdivision (h), shall issue a decision on the petition for interim order within five business days following submission of the matter. The standard of proof required to obtain an interim order pursuant to this section shall be a preponderance of the evidence standard. If the interim order was previously issued without notice, the department shall determine whether the order shall remain in effect, be dissolved, or be modified.
(f) The department shall file an accusation within 15 days of the issuance of an interim order. In the case of an interim order issued without notice, the time shall run from the date of the order issued after the noticed hearing. If the permittee files a notice of defense, the hearing shall be held within 30 days of the agency’s receipt of the notice of defense. A decision shall be rendered on the accusation no later than 30 days after submission of the matter. Failure to comply with any of the requirements in this subdivision shall dissolve the interim order by operation of law.
(g) Interim orders shall be subject to judicial review pursuant to Section 1094.5 of the Code of Civil Procedure and shall be heard only in the superior court in and for the County of Sacramento, San Francisco, Los Angeles, or San Diego. The review of an interim order shall be limited to a determination of whether the department abused its discretion in the issuance of the interim order. Abuse of discretion is established if the respondent department has not proceeded in the manner required by law, or if the court determines that the interim order is not supported by substantial evidence in light of the whole record.
(h) The department may, in its sole discretion, delegate the hearing on any petition for an interim order to an administrative law judge in the Office of Administrative Hearings. If the department hears the noticed petition itself, an administrative law judge shall preside at the hearing, rule on the admission and exclusion of evidence, and advise the department on matters of law. The department 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 petition has been delegated to an administrative law judge, he or she shall sit alone and exercise all of the powers of the department relating to the conduct of the hearing. A decision issued by an administrative law judge sitting alone shall be final when it is filed with the department. If the administrative law judge issues an interim order without notice, he or she shall preside at the noticed hearing, unless unavailable, in which case another administrative law judge may hear the matter. The decision of the administrative law judge sitting alone on the petition for an interim order is final, subject only to judicial review in accordance with subdivision (g).
(i) (1) Failure to comply with an interim order issued pursuant to subdivision (a) or (b) shall constitute a separate cause for disciplinary action against any permittee, and may be heard at, and as a part of, the noticed hearing provided for in subdivision (f). Allegations of noncompliance with the interim order may be filed at any time prior to the rendering of a decision on the accusation. Violation of the interim order is established upon proof that the permittee was on notice of the interim order and its terms, and that the order was in effect at the time of the violation. The finding of a violation of an interim order made at the hearing on the accusation shall be reviewed as a part of any review of a final decision of the department.
(2) If the interim order issued by the department provides for anything less than a complete suspension of the permittee and the permittee violates the interim order prior to the hearing on the accusation provided for in subdivision (f), the department may, upon notice to the permittee and proof of violation, modify or expand the interim order.
(j) A plea or verdict of guilty or a conviction after a plea of nolo contendere is deemed to be a conviction within the meaning of this section. A certified record of the conviction shall be conclusive evidence of the fact that the conviction occurred. The department may take action under this section notwithstanding the fact that an appeal of the conviction may be taken.
(k) The interim orders provided for by this section shall be in addition to, and not a limitation on, the authority to seek injunctive relief provided in any other provision of law.
(Amended by Stats. 2012, Ch. 867, Sec. 4. (SB 1144) Effective January 1, 2013.)