§13646. Hearings to Deny an Application and to Revoke or Suspend Registration.

(a) Denial of an application for registration and revocation or suspension of registration shall be upon proper notice and upon hearing, if appealed. The appeal shall be directed to the Labor Commissioner who shall assign the matter to a hearing officer for hearing. The hearing shall be conducted according to the rules set forth below, and except as specifically provided herein, the provisions of Title 2, Division 3, Part 1, Chapter 5 of the Government Code (commencing with Government Code Section 11500) shall not apply to these proceedings.

(b) Proceedings to determine whether a registration shall be revoked, suspended or conditioned shall be initiated by filing an accusation. The accusation shall be a written statement of charges which set forth in ordinary and concise language the acts or omissions with which the registrant is charged, and shall specify the statutes or rules which the registrant is alleged to have violated. The accusation shall be verified unless made by a public officer acting in his or her official capacity or by an employee of the Division of Labor Standards Enforcement.

(c) Proceedings to determine whether a registration certificate shall be issued or renewed shall be initiated by filing a statement of issues. The statement of issues shall be a written statement specifying the statutes and rules with which the applicant must show compliance by producing proof at the hearing and, in addition, any particular matters that have come to the attention of the initiating party that would authorize a denial of the application for registration. The statement of issues shall be verified unless made by a public officer acting in his or her official capacity or by an employee of the Division of Labor Standards Enforcement.

(d) Upon the filing of an accusation or statement of issues, the Division of Labor Standards Enforcement shall serve a copy thereof on the registrant or applicant in a manner provided by Government Code Section 11505(c). The copy of the accusation or statement of issues shall include or be accompanied by:

(1) a statement that the respondent may request a hearing by filing a notice of defense within 15 days after service upon the respondent of the accusation or statement of issues, and that failure to do so will constitute a waiver of the respondent's right to a hearing, and

(2) a form entitled notice of defense which, when signed by or on behalf of the respondent and returned to the Division, will constitute a request for a hearing.

(e) Within 15 days after service of the accusation or statement of issues, the respondent may file with the Division a notice of defense in which the respondent may:

(1) Request a hearing;

(2) Object to the accusation or statement of issues on the ground that it does not state acts or omissions upon which the Division may proceed;

(3) Object to the form of the accusation or statement of issues on the ground that it is so indefinite or uncertain that the respondent cannot prepare a defense;

(4) Admit the accusation or statement of issues in whole or in part; or

(5) Present new matter by way of a defense.

The respondent shall be entitled to a hearing on the merits if the respondent files a timely notice of defense, and the notice shall be deemed a specific denial of all parts of the accusation or statement of issues not expressly admitted. Failure to file a notice of defense shall constitute a waiver of respondent's right to a hearing, but the Division, in its discretion, may nevertheless grant a hearing.

(f) If the respondent either fails to file a notice of defense or to appear at the hearing, the Division may take action based upon the respondent's express admissions or upon other evidence, and declarations may be used as evidence without any notice to respondent; and where the burden of proof is on the respondent to establish that the respondent is entitled to the issuance or renewal of a registration, the Division may proceed by default without scheduling a hearing or taking evidence.

(g) Declarations may be admitted into evidence at a contested hearing in accordance with the procedure for admitting affidavits set forth at Government Code Section 11514.

(h) At any time before the matter is submitted for decision, the Division may file or permit the filing of an amended or supplemental accusation or statement of issues. If the amended or supplemental accusation or statement of issues presents new charges, the Division shall afford the respondent a reasonable opportunity to prepare a defense thereto. Any new charges shall be deemed controverted, and any objections to the amended or supplemental accusation or statement of issues may be made orally during the hearing.

(i) The provisions of Government Code Section 11507.6 provide the exclusive right to and method of discovery as to any proceeding to deny an application for registration or to revoke or suspend a registration. A party shall have 20 days from the date of the mailing of the request for discovery to provide the requested discovery to the requesting party. Any party claiming non-compliance with a discovery request made under this section may file with the hearing officer a motion to compel discovery. Any such motion shall be served upon the party from whom discovery is sought within 15 days of that party's failure or refusal to provide the discovery. The party against whom discovery is sought may file a written response to the motion by filing such response within 10 days of service of the motion. The motion may be decided with or without a hearing, at the discretion of the hearing officer. The order denying the motion, or granting the motion in whole or in part, shall be in writing.

(j) The Division shall deliver or mail a notice of hearing to all parties at least 10 days prior to the hearing. The notice of hearing shall be in substantially the same form as set forth at Government Code Section 11509, and shall include notice of the right to request an interpreter for a party or witness who cannot proficiently speak or understand English.

(k) The hearing shall be presided over by a hearing officer appointed by the Labor Commissioner. A contested hearing shall be conducted in accordance with the procedures set forth at sections 13651 to 13654 of this subchapter.

(l) The hearing officer's proposed decision shall be in writing, be based on the record, and include a statement of the factual and legal basis of the decision, as provided in Government Code Section 11425.50. Within 45 days of the conclusion of the hearing, the hearing officer shall transmit the proposed decision to the Labor Commissioner, who may either:

(1) Adopt the proposed decision in its entirety, or

(2) Modify any part of the proposed decision, including the order, or

(3) Remand the case to the hearing officer for further proceedings. Within 60 days of the conclusion of the hearing, copies of the Labor Commissioner's decision, and the hearing officer's proposed decision which shall be attached thereto, shall be delivered to the parties personally or sent to them by certified mail. The decision shall become effective 30 days after it is delivered or mailed to the respondent, unless the decision provides for an earlier date, or a stay of execution has been granted by the Division. A stay of execution may be included in the decision or granted by the Division at any time before the decision becomes effective, and may be accompanied by an express condition that the respondent comply with specified conditions or terms of probation.

NOTE : Authority cited: Section 2672, Labor Code. Reference: Sections 2673.1(m), 2675(a)(2) and 2679(b), Labor Code.

HISTORY

1. Amendment of section heading, section and Note filed 9-9-2002; operative 10-9-2002 (Register 2002, No. 37).