§ 10550. Administrative Review of Civil Penalties.

(a) The licensee may appeal a notice of civil penalty by forwarding a written request for review to the Director, Department of Alcohol and Drug Programs, 1700 K Street, Sacramento, CA 95811-4037.

(b) The written request for review shall be postmarked within fifteen (15) working days of receipt by the licensee of the written notice of civil penalty. The written request for review shall include:

(1) A statement of the statute or regulation which is at issue and the legal basis for the licensee's appeal.

(2) A statement of the facts supporting the licensee's position.

(c) Failure to submit the written request for review, pursuant to Subsection (b) of this regulation, shall be deemed a waiver of administrative review.

(d) Within fifteen (15) working days of receipt of the request for review, the Director or the Director's designee shall schedule and hold an informal conference with the licensee, unless the Director or the Director's designee and the licensee agree to settle the matter based upon the information submitted with the request for review.

(e) Failure to hold the informal conference within fifteen (15) working days of the receipt of the request shall be deemed a waiver of the civil penalties by the Department unless the licensee:

(1) Fails to attend the conference as scheduled,

(2) Waives the fifteen (15) working day requirement, or

(3) Waives his/her right to the informal conference.

(f) The licensee shall have the following rights at the informal conference:

(1) The right to be represented by legal counsel.

(2) The right to present oral and written evidence.

(3) The right to explain any mitigating circumstances.

(g) The representatives of the Department who issued the Notice of Deficiency or the Notice of Civil Penalties shall attend the informal conference and present evidence and information, oral or written, in substantiation of the alleged violation.

(h) The conference shall be conducted as an informal proceeding, and shall not be conducted in the manner of a judicial hearing under the Administrative Procedure Act (Chapter 5 (commencing with Section 11500) Part 1, Division 3, Title 2 of the Government Code), and need not be conducted according to the technical rules relating to evidence and witnesses.

(i) Neither the licensee nor the Department shall have the right to subpoena any witness to attend the informal conference. However, both the licensee and the Department may present any witness to present evidence and information on its behalf at the conference.

(j) The proceedings at the informal conference may be recorded by either party on audio tape.

(k) The decision to affirm, modify, or dismiss the Notice of Civil Penalties shall be mailed by the Director or the Director's designee to the licensee postmarked no later than ten (10) working days from the date of the informal conference. The decision shall state with particularity the reason for affirming, modifying, or dismissing the Notice of Civil Penalties. A copy of the decision shall be transmitted to each party to the appeal.

(l) If the civil penalty, discussed at the informal conference, was assessed for failure to correct a Class A violation, the decision made at the informal conference shall be deemed final.

(m) If the civil penalty, discussed at the informal conference, was assessed for failure to correct a Class B or C violation, the decision shall include a statement from the Director or the Director's designee notifying the licensee of the right of further administrative appeal to the decision made at the informal conference. A hearing may be requested in accordance with Chapter 5 (commencing with Section 11500) Part 1, Division 3, Title 2 of the Government Code.

(1) The licensee may appeal the decision made at the informal conference by submitting a written request to the Director, Department of Alcohol and Drug Programs, 1700 K Street, Sacramento, CA 95811-4037, postmarked no later than ten (10) working days from the date of the decision. Upon receipt of the request for appeal, the Department shall initiate administrative review and request that the matter be set for hearing. The Department shall notify the licensee of the time and place of the hearing.

(2) Failure of the licensee to timely submit the written request for an administrative hearing shall be deemed a waiver of further administrative review and the decision of the Director or the Director's designee shall be deemed the final decision of the Department.

(3) In the event the licensee appeals the Department's proposed assessment of penalties, collection of the penalties shall be subject to the outcome of the final administrative appeal.

(4) A civil penalty shall be deemed final if:

(A) The licensee fails to appeal the civil penalty in a timely manner, pursuant to Subsections (c) and (m)(2) of this regulation; or

(B) A final determination has been made on an action previously pending administrative review.

(5) After deemed final, the civil penalty shall be paid to the Department within sixty (60) days of receipt of the notice of final adjudication. Failure to pay the civil penalty within sixty (60) days of receipt of the notice of final adjudication shall result in automatic termination of the license.

HISTORY

1. Renumbering and amendment of former section 10554 to section 10550 filed 4-18-94; operative 5-18-94 (Register 94, No. 16).

2. Change without regulatory effect adopting new article 7 heading filed 11-17-94 pursuant to section 100, title 1, California Code of Regulations (Register 94, No. 46).

3. Amendment of subsections (h), (j), (m) and (m)(4), new subsection (m)(5) and amendment of Note filed 4-9-97 as an emergency; operative 4-9-97 (Register 97, No. 15). A Certificate of Compliance must be transmitted to OAL by 8-7-97 or emergency language will be repealed by operation of law on the following day.

4. Editorial correction of subsection (g) (Register 97, No. 25).

5. Amendment of subsections (g), (h), (j), (m) and (m)(4), new subsection (m)(5) and amendment of Note refiled 6-16-97 as an emergency; operative 8-7-97 (Register 97, No. 25). A Certificate of Compliance must be transmitted to OAL by 12-5-97 or emergency language will be repealed by operation of law on the following day.

6. Editorial correction of subsection (h) (Register 97, No. 51).

7. Certificate of Compliance as to 6-16-97 emergency, including amendment of subsection (k) and further amendment of subsection (m), transmitted to OAL 10-29-97 and filed 12-15-97 (Register 97, No. 51).

8. Change without regulatory effect amending subsections (a) and (m)(1) filed 6-12-2007 pursuant to section 100, title 1, California Code of Regulations (Register 2007, No. 24).

9. Change without regulatory effect amending subsections (a) and (m)(1) filed 3-6-2008 pursuant to section 100, title 1, California Code of Regulations (Register 2008, No. 10).

Note

Note: Authority cited: Sections 11755, 11834.50 and 11835, Health and Safety Code. Reference: Sections 11834.34, 11834.36, 11834.37, 11834.45 and 11834.50, Health and Safety Code; and Chapter 5 (commencing with Section 11500), Part 1, Division 3, Title 2, Government Code.