11106.5
. (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.