SECTIONS 490-494 - California Statutes

BUSINESS AND PROFESSIONS CODE

SECTION 490-494

490. (a) In addition to any other action that a board is permitted
to take against a licensee, a board may suspend or revoke a license
on the ground that the licensee has been convicted of a crime, if the
crime is substantially related to the qualifications, functions, or
duties of the business or profession for which the license was
issued.
(b) Notwithstanding any other provision of law, a board may
exercise any authority to discipline a licensee for conviction of a
crime that is independent of the authority granted under subdivision
(a) only if the crime is substantially related to the qualifications,
functions, or duties of the business or profession for which the
licensee's license was issued.
(c) A conviction within the meaning of this section means a plea
or verdict of guilty or a conviction following a plea of nolo
contendere. An action that a board is permitted to take following the
establishment of a conviction may be taken when the time for appeal
has elapsed, or the judgment of conviction has been affirmed on
appeal, or when an order granting probation is made suspending the
imposition of sentence, irrespective of a subsequent order under
Section 1203.4 of the Penal Code.
(d) The Legislature hereby finds and declares that the application
of this section has been made unclear by the holding in Petropoulos
v. Department of Real Estate (2006) 142 Cal.App.4th 554, and that the
holding in that case has placed a significant number of statutes and
regulations in question, resulting in potential harm to the
consumers of California from licensees who have been convicted of
crimes. Therefore, the Legislature finds and declares that this
section establishes an independent basis for a board to impose
discipline upon a licensee, and that the amendments to this section
made by Chapter 33 of the Statutes of 2008 do not constitute a change
to, but rather are declaratory of, existing law.

490.5. A board may suspend a license pursuant to Section 17520 of
the Family Code if a licensee is not in compliance with a child
support order or judgment.

491. Upon suspension or revocation of a license by a board on one
or more of the grounds specified in Section 490, the board shall:
(a) Send a copy of the provisions of Section 11522 of the
Government Code to the ex-licensee.
(b) Send a copy of the criteria relating to rehabilitation
formulated under Section 482 to the ex-licensee.

492. Notwithstanding any other provision of law, successful
completion of any diversion program under the Penal Code, or
successful completion of an alcohol and drug problem assessment
program under Article 5 (commencing with Section 23249.50) of Chapter
12 of Division 11 of the Vehicle Code, shall not prohibit any agency
established under Division 2 (commencing with Section 500) of this
code, or any initiative act referred to in that division, from taking
disciplinary action against a licensee or from denying a license for
professional misconduct, notwithstanding that evidence of that
misconduct may be recorded in a record pertaining to an arrest.
This section shall not be construed to apply to any drug diversion
program operated by any agency established under Division 2
(commencing with Section 500) of this code, or any initiative act
referred to in that division.

493. Notwithstanding any other provision of law, in a proceeding
conducted by a board within the department pursuant to law to deny an
application for a license or to suspend or revoke a license or
otherwise take disciplinary action against a person who holds a
license, upon the ground that the applicant or the licensee has been
convicted of a crime substantially related to the qualifications,
functions, and duties of the licensee in question, the record of
conviction of the crime shall be conclusive evidence of the fact that
the conviction occurred, but only of that fact, and the board may
inquire into the circumstances surrounding the commission of the
crime in order to fix the degree of discipline or to determine if the
conviction is substantially related to the qualifications,
functions, and duties of the licensee in question.
As used in this section, "license" includes "certificate,"
"permit," "authority," and "registration."

494. (a) A board or an administrative law judge sitting alone, as
provided in subdivision (h), may, upon petition, issue an interim
order suspending any licentiate or imposing license restrictions,
including, but not limited to, mandatory biological fluid testing,
supervision, or remedial training. The petition shall include
affidavits that demonstrate, to the satisfaction of the board, both
of the following:
(1) The licentiate has engaged in acts or omissions constituting a
violation of this code or has been convicted of a crime
substantially related to the licensed activity.
(2) Permitting the licentiate to continue to engage in the
licensed activity, or permitting the licentiate to continue in the
licensed activity 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 licentiate 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 licentiate 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
board in support of the petition. If the order was initially issued
without notice as provided in subdivision (b), the licentiate shall
be entitled to a hearing on the petition within 20 days of the
issuance of the interim order without notice. The licentiate 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 board to provide a hearing within 20
days following the issuance of the interim order without notice,
unless the licentiate 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
licentiate may:
(1) Be represented by counsel.
(2) Have a record made of the proceedings, copies of which shall
be available to the licentiate 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 board, 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 board shall determine whether the order shall remain in effect,
be dissolved, or modified.
(f) The board 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 licentiate 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 Counties of Sacramento, San
Francisco, Los Angeles, or San Diego. The review of an interim order
shall be limited to a determination of whether the board abused its
discretion in the issuance of the interim order. Abuse of discretion
is established if the respondent board 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 board 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 board 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 board on matters of law. The board 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 board 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 board.
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) Failure to comply with an interim order issued pursuant to
subdivision (a) or (b) shall constitute a separate cause for
disciplinary action against any licentiate, 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
licentiate 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 agency.
If the interim order issued by the agency provides for anything
less than a complete suspension of the licentiate from his or her
business or profession, and the licentiate violates the interim order
prior to the hearing on the accusation provided for in subdivision
(f), the agency may, upon notice to the licentiate 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. A board
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.
(l) In the case of a board, a petition for an interim order may be
filed by the executive officer. In the case of a bureau or program,
a petition may be filed by the chief or program administrator, as the
case may be.
(m) "Board," as used in this section, shall include any agency
described in Section 22, and any allied health agency within the
jurisdiction of the Medical Board of California. Board shall also
include the Osteopathic Medical Board of California and the State
Board of Chiropractic Examiners. The provisions of this section shall
not be applicable to the Medical Board of California, the Board of
Podiatric Medicine, or the State Athletic Commission.