Over the course of their career, many contractors will eventually be thrust into some type of legal dispute. In some instances, the dispute may trigger an unexpected CSLB disciplinary action. But what can the contractor do if it believes the CSLB discipline was unfair? The answer is to challenge the CSLB by petitioning the court to issue a Writ of Administrative Mandamus. This article will generally discuss Writs of Administrative Mandamus and how to use them to challenge CSLB Citations and Accusations.
How Can a Legal Dispute Turn into a Citation or Accusation?
When a contractor is first faced with a CSLB Complaint, it is generally recommended that the contractor acknowledge the existence of the problem (without admitting fault) and indicate a willingness to fix the issue, including an offer to repair if appropriate, in attempt to avoid any discipline. For more information on handling a CSLB Complaint, read our article “What You Need to Know About CSLB Complaints.”
During a CSLB Complaint, when the CSLB has probable cause to believe that a contractor has violated the Contractors State License Law (Bus. & Prof. Code, § 7000 et seq.), it may issue the contractor a CSLB Citation or Accusation. The contractor must then decide if it wants to accept or challenge the CSLB’s decision.
What is a Writ of Administrative Mandamus?
A Writ of Administrative Mandamus is a court order instructing the CSLB (or any other administrative agency) to review or reverse its decision concerning a citation or accusation. Importantly, however, before a petition for a Writ of Administrative Mandamus can be filed with the court, the contractor must exhaust all of its CSLB administrative remedies.
What is The Deadline to File a Petition for a Writ of Administrative Mandamus?
Pursuant to California Government Code section 11523, unless exempt, a contractor has 30 days from the effective date of decision to file a petition for a Writ of Administrative Mandamus with the superior court. If a timely request for preparation is made, the deadline may be pushed back an additional 10 days, resulting in a total of 40 days from the date of decision to petition for a Writ of Administrative Mandamus.
What Must the Contractor Prove in a Writ of Administrative Mandamus Proceeding?
The burden of proof falls on the party challenging the administrative decision. The petitioner must prove to the superior court: (1) the administrative proceedings were unfair; (2) the administrative proceedings were in excess of the CSLB’s jurisdiction; or (3) the CSLB, through the administrative proceedings, engaged in a prejudicial abuse of discretion. (Code Civ. Proc., § 1094.5, subd. (b).)
How Can a Contractor Use a Writ of Administrative Mandamus to Challenge a CSLB Citation?
Pursuant to Business and Professions Code section 7099.4, a contractor has 15 days from the issuance of a CSLB Citation to notify the CSLB that it intends to challenge the citation. If a contractor timely challenges the citation, a hearing date will be set for the matter to be heard. The hearing will take place in front of an Administrative Law Judge through the Office of Administrative Hearings. After the hearing, the CSLB will issue its decision.
If the contractor believes that the outcome of the citation hearing is incorrect, then, pursuant to California Government Code section 11521, the contractor may file a Petition for Reconsideration with the CSLB. The CSLB’s authority to order reconsideration expires 30 days after the effective date of its decision. However, the contractor may request a stay of the decision and order for up to an additional 30 days for the purpose of filing a Petition for Reconsideration.
If the contractor’s Petition for Reconsideration is unsuccessful and the contractor still believes that the CSLB’s decision is incorrect, then, pursuant to California Government Code section 11523, unless exempt, the contractor has 30 days from the effective date of decision to file a petition for a Writ of Administrative Mandamus with the superior court.
On the other hand, if, within 15 days from the CSLB’s issuance of a citation by the CSLB, the contractor fails to notify the CSLB about its intent to challenge the citation, the citation becomes a final order and will not be subject to review by any court. Further, the contractor’s failure to comply with a CSLB citation may result in the immediate suspension or revocation of its license.
How Can a Contractor Use a Writ of Administrative Mandamus to Challenge a CSLB Accusation?
Pursuant to Business and Professions Code section 7091, the CSLB may initiate disciplinary proceedings against a contractor by filing an accusation. Accusation proceedings begin with the CSLB’s filing of an accusation and its service on the contractor. Within 15 days of the accusation being mailed, the contractor may file a Notice of Defense and be represented by legal counsel. If a Notice of Defense is filed, a hearing on the accusation shall be held at the facility that is closest to the location where the transaction occurred or where the contractor resides. The hearing will take place in front of an Administrative Law Judge within the Office of Administrative Hearings. However, if the contractor fails to timely file a Notice of Defense, they will be defaulted and have a decision and order entered against them, without a further opportunity to present evidence.
At the accusation hearing, the CSLB must prove with clear and convincing evidence why the contractor’s license should be either suspended or revoked. At the conclusion of the hearing, the Administrative Law Judge will file a proposed decision, which the CSLB may or may not adopt. If the CSLB adopts the Administrative Law Judge’s proposed decision and the contractor believes the decision is incorrect, the contractor may petition the CSLB for reconsideration. Pursuant to California Government Code section 11521, the power to order a reconsideration shall expire 30 days after the delivery or mailing of a decision to the contractor. However, the contractor may request a stay of the decision and order for up to an additional 30 days, as discussed above, for the purpose of filing a Petition for Reconsideration.
If a contractor is unsatisfied with the final decision and order, then, pursuant to California Government Code section 11523, unless exempt, the contractor has 30 days from the effective date of decision to file a Petition for a Writ of Administrative Mandamus with the superior court.