If a commissioner levies an administrative penalty pursuant to Section 27583, the following shall apply:
(a) (1) Before an administrative penalty is levied, the person charged with the violation shall receive written notice of the proposed action in accordance with paragraph (2). The notice shall include the nature of the violation, the amount of the proposed penalty, and the right to request a hearing to appeal the administrative action.
(2) (A) Notice shall be sent by certified mail to one of the following:
(i) The address of the person charged, as provided by any license or registration issued by the department, which is not limited to a certificate of registration issued pursuant to this chapter.
(ii) The address of an agent for service of process for the person charged, as filed with the Secretary of State.
(iii) If an address described in clause (i) or (ii) is not available, the last known address of the person charged.
(B) Notice that is sent to any of the addresses described in subparagraph (A) shall be considered received, even if delivery is refused or if the notice is not accepted at that address.
(C) The person charged shall have the right to appeal the proposed action by requesting a hearing within 20 days of the issuance of the notice of the proposed action.
(3) If a hearing is requested, the commissioner shall schedule a hearing within 45 days of the request, with notice of the time and place of the hearing given at least 10 days before the date of the hearing. At the hearing, the person charged shall be given an opportunity to review the commissioner’s evidence and to present evidence on his or her own behalf. If a hearing is not timely requested, the commissioner may take the proposed action without a hearing. If the person charged, or his or her legal representative, fails to appear, the commissioner shall prevail in the proceedings.
(4) The commissioner shall issue a decision within 30 days of the conclusion of the hearing, which decision shall become effective immediately.
(5) The commissioner shall send a copy of the notice of the proposed action to the secretary at the same time notice is sent to the person charged with the violation.
(b) If the person, upon whom the commissioner levied an administrative penalty, requested and appeared at a hearing, the person may appeal the commissioner’s decision to the secretary within 30 days of the date of receiving a copy of the commissioner’s decision. The following procedures apply to the appeal:
(1) The appeal shall be in writing and signed by the appellant or his or her authorized agent, state the grounds for the appeal, and include a copy of the commissioner’s decision. The appellant shall file a copy of the appeal with the commissioner at the same time it is filed with the secretary.
(2) The appellant and the commissioner, at the time of filing the appeal, within 10 days thereafter, or at a later time prescribed by the secretary, may present the record of the hearing and a written argument to the secretary stating the ground for affirming, modifying, or reversing the commissioner’s decision.
(3) The secretary may grant oral arguments upon application made at the time written arguments are filed.
(4) If an application to present an oral argument is granted, written notice of the time and place for the oral argument shall be given at least 10 days before the date set for oral argument. The times may be altered by mutual agreement of the appellant, the commissioner, and the secretary.
(5) The secretary shall decide the appeal on the record of the hearing, including the written evidence and the written argument described in paragraph (2), that he or she has received. If the secretary finds substantial evidence in the record to support the commissioner’s decision, the secretary shall affirm the decision.
(6) The secretary shall render a written decision within 45 days of the date of appeal or within 15 days of the date of oral arguments or as soon thereafter as practical.
(7) On an appeal pursuant to this section, the secretary may affirm the commissioner’s decision, modify the commissioner’s decision by reducing or increasing the amount of the penalty levied so that it is consistent with the penalty schedule described in Section 27581.1, or reverse the commissioner’s decision. An administrative penalty increased by the secretary shall not be higher than that proposed in the commissioner’s notice of proposed action given pursuant to subdivision (a). A copy of the secretary’s decision shall be delivered or mailed to the appellant and the commissioner.
(8) Any person who does not request a hearing with the commissioner pursuant to an administrative penalty assessed under subdivision (a) shall not file an appeal to the secretary pursuant to this subdivision.
(c) If the proposed action is not overturned, in addition to the levy of an administrative penalty, the commissioner may recover from the person charged any other reasonable costs incurred by the commissioner in connection with administering the hearing to appeal the proposed action.
(d) Revenues from administrative penalties levied by the commissioner shall be deposited in the general fund of the county and, upon appropriation by the board of supervisors, shall be used by the commissioner to carry out his or her responsibilities under this chapter. The commissioner shall inform the secretary of any violations for which a penalty has been assessed.
(Amended by Stats. 2016, Ch. 86, Sec. 142. (SB 1171) Effective January 1, 2017.)
Last modified: October 25, 2018