Filed 12/7/05 Rached v. Sup. Ct. CA4/1

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COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

PETITION for writ of mandate challenging an order of the Superior Court of San Diego County, Jay M. Bloom, Judge. Petition denied.

Elias Y. Rached filed a petition for writ of mandate in the trial court challenging a decision of the California Board of Chiropractic Examiners (the Board) increasing the length of Rached's license suspension proposed by the administrative law judge (ALJ). The trial court issued an order denying that petition. Rached filed the instant petition challenging that order. He contends the trial court erred by interpreting the 100-day period for issuance of the Board's decision under Government Code section 11517, subdivision (c)(2)(E)(iv)[1] as directory rather than mandatory.

FACTUAL AND PROCEDURAL BACKGROUND

On January 1, 1987, the Board issued a chiropractic license to Rached. On April 26, 2002, Rached pleaded guilty to and was convicted of one count of insurance fraud (Pen. Code, § 550, subd. (b)(3)).^[2] On August 2 the Board filed an accusation against Rached, alleging that he had been convicted of an offense substantially related to his qualifications, functions and duties as a chiropractor and seeking to revoke or suspend his license. On January 26, 2004, following an administrative hearing on the accusation, the ALJ issued a proposed decision (Proposed Decision) finding the charges were true and suspending Rached's license for a period of 30 days.^[3]

On April 29 the Board issued an order of nonadoption of the Proposed Decision. Its order stated: "The Board will decide the case itself upon the record, including the transcript, and exhibits, and written argument of the parties, without taking additional evidence. The Board will order a transcript and will notify the parties when the transcript has been prepared and of the date for submission of written argument."

On December 24 the Board notified Rached that it had received the transcript and exhibits and he had an opportunity to present written argument. On January 20, 2005, the Board met in executive session to consider the matter and made factual findings and legal conclusions.

On April 25, 122 days after it received the transcript and exhibits, it issued its decision (Decision). The Decision was substantially the same as the Proposed Decision, except it increased the period of suspension of Rached's license from 30 to 90 days. The Decision was to become effective on May 25.

On May 17 Rached filed a petition for writ of mandate in the trial court, contending the Decision was untimely and therefore void under section 11517, subdivision (c)(2)(E)(iv) because it was issued more than 100 days after the Board's receipt of the administrative hearing transcript, and arguing the Proposed Decision therefore should remain operative.

On June 27 the trial court issued an order denying Rached's petition for writ of mandate (Order), finding:

"The time limitations set forth in Gov. Code § 11517 are directory only. (Chrysler Corp. v. New Motor Vehicle Bd. (1993) 12 Cal.App.4th 621[.]) Therefore, [the Board] did not lose jurisdiction by rejecting the [Proposed Decision], deciding the case upon the record and issuing its decision more than 100 days after receipt of the transcript of the proceedings before the [ALJ]. (Gov. Code § 11517[.])

"Any changes or additions to § 11517 after the Chrysler case do not change the general rule that requirements relating to the time within which an act must be done are directory rather than mandatory or jurisdictional, unless a contrary intent is clearly expressed. (Edwards v. Steele (1979) 25 Cal.3d 406, 410[.]) A time limitation is usually treated as merely directory unless a consequence or penalty is provided for failure to do the act within the time commanded. (Anserv Ins. Service v. Kelso (2000) 83 Cal.App.4th 197, 207[.]) The court notes that the [L]egislature did not express any intent to abrogate the holding in Chrysler when it revised § 11517 and the statute still does not provide a consequence or penalty if a decision is not timely rendered.

"In any event, to find the statute mandatory and jurisdictional would defeat the public protection policies inherent in the statutory licensing procedures. The court cannot assume the Legislature intended to penalize state agencies and the people of the state by mandating reinstatement of an incompetent or untrustworthy employee [sic] solely because the Board failed to render a timely decision. (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1150[.])

"It seems that [Rached] questions the wisdom of the Chrysler case, however this court is bound by the decision of the [C]ourt of [A]ppeal. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450[.])"

The court also found the Board did not abuse its discretion, independently concluding Rached's "conduct demonstrated both professional and moral irresponsibility" and "the weight of the evidence is more than sufficient to support the punishment imposed on [Rached]."

On July 1 Rached filed the instant petition for writ for mandate and for an immediate stay of the suspension of his license (Petition). On July 8 we issued an order staying the suspension of Rached's license pending further order and directing the Board to file a response to the Petition. On July 18 the Board filed a response to the Petition. On July 25 we issued an order to show cause why the relief requested by the Petition should not be granted.

DISCUSSION

I

Effect of Statutory Time Limits for Agency Action Generally

The designation of a particular statutory time limitation for agency action as "directory" or "mandatory" denotes whether noncompliance with that limitation "will or will not have the effect of invalidating the governmental action to which the procedural requirement relates. [Citations.]" (Morris v. County of Marin (1977) 18 Cal.3d 901, 908, fn. omitted.) "If the failure to comply with a particular procedural step [e.g., time limitation for action] does not invalidate the action ultimately taken, . . . the procedural requirement is referred to as 'directory.' If, on the other hand, it is concluded that noncompliance does invalidate subsequent action, the requirement is deemed 'mandatory.' [Citation.]" (Edwards v. Steele, supra, 25 Cal.3d at p. 410.) "[T]he 'directory' or 'mandatory' designation does not refer to whether a particular statutory requirement is 'permissive' or 'obligatory.' " (Morris, supra, at p. 908, italics added.) "Many statutory provisions which are 'mandatory' in the obligatory sense are accorded only 'directory' effect. For example, while a governmental entity has an obligatory duty to observe the provisions of California's 'open meeting' law [citation], and can be enjoined from violating or mandated to follow such provisions [citation], California decisions to date have uniformly construed such provisions as having 'directory' effect, and thus have refused to invalidate governmental acts, such as the promulgation of an administrative regulation, even when the governmental entity improperly discussed the matter at a nonpublic meeting. [Citations.] [¶] . . . The great bulk of the cases which have invoked the doctrine . . . recognize that the 'directory-mandatory' distinction is concerned only with whether a particular remedy--invalidation of the ultimate governmental action--is appropriate when a procedural requirement is violated; even when invalidation is not appropriate, other remedies--such as injunctive relief, mandamus or monetary damages--may be available to enforce compliance with the statutory provision. Indeed, the availability or unavailability of alternative remedies may have an important bearing on whether a procedure is to be accorded 'directory' or 'mandatory' effect." (Id. at pp. 908-909, fn. 4.)

"[G]enerally, requirements relating to the time within which an act must be done are directory rather than mandatory or jurisdictional, unless a contrary intent is clearly expressed. [Citations.] In ascertaining probable intent, California courts have expressed a variety of tests. In some cases focus has been directed at the likely consequences of holding a particular time limitation mandatory, in an attempt to ascertain whether those consequences would defeat or promote the purpose of the enactment. [Citations.] Other cases have suggested that a time limitation is deemed merely directory 'unless a consequence or penalty is provided for failure to do the act within the time commanded.' [Citations.]" (Edwards v. Steele, supra, 25 Cal.3d at p. 410.)

"In order to determine whether a particular statutory provision . . . is mandatory or directory, the court, as in all cases of statutory construction and interpretation, must ascertain the legislative intent. In the absence of express language, the intent must be gathered from the terms of the statute construed as a whole, from the nature and character of the act to be done, and from the consequences [that] would follow the doing or failure to do the particular act at the required time. [Citation.] When the object is to subserve some public purpose, the provision may be held directory or mandatory as will best accomplish that purpose [citation] . . . ." (Pulcifer v. County of Alameda (1946) 29 Cal.2d 258, 262.) As Edwards noted: "[S]eemingly mandatory language need not be construed as jurisdictional where to do so might well defeat the very purpose of the enactment or destroy the rights of innocent aggrieved parties. [Citations.] In other words, the provision at issue may be considered mandatory only in the sense that the board 'could be mandated to act if it took more time than the short period allotted.' [Citations.]" (Edwards v. Steele, supra, 25 Cal.3d at p. 412.) "When the Legislature has specified a time within which an administrative board is to render a decision, that time limit may be mandatory in the obligatory sense, but this 'does not necessarily mean that a failure to comply with its provisions causes a loss of jurisdiction.' [Citation.]" (California Correctional Peace Officers Assn. v. State Personnel Bd., supra, 10 Cal.4th at p. 1147.) "In construing a statute, a court may consider the consequences that would follow from a particular construction and will not readily imply an unreasonable legislative purpose. Therefore a practical construction is preferred. [Citation.]" (Ibid.)

On appeal, "to the extent pure questions of law (e.g., jurisdiction) were decided [by] the trial court upon undisputed facts, a de novo standard will apply . . . ." (Anserv Ins. Services, Inc. v. Kelso, supra, 83 Cal.App.4th at p. 204.) "[I]nterpretation of law is a judicial function. [Citation.]" (People v. Cruz (1996) 13 Cal.4th 764, 780.) Because the parties in this case agree the relevant facts are undisputed and the trial court's decision was based on its interpretation of section 11517, subdivision (c)(2)(E)(iv), we independently review the trial court's determination of that question.

II

Interpretation of Section 11517, Subdivision (c)(2)(E)(iv)

Rached contends the trial court erred by interpreting section 11517, subdivision (c)(2)(E)(iv)'s 100-day requirement for Board action as directory and not mandatory.

A

In 1999, former section 11517 was repealed and replaced with current section 11517, which provides:

"(a) A contested case may be originally heard by the agency itself and subdivision (b) shall apply. Alternatively, at the discretion of the agency, an administrative law judge may originally hear the case alone and subdivision (c) shall apply.

"(b) If a contested case is originally heard before an agency itself, all of the following provisions apply:

"(1) An administrative law judge shall be present during the consideration of the case and, if requested, shall assist and advise the agency in the conduct of the hearing.

"(2) No member of the agency who did not hear the evidence shall vote on the decision.

"(3) The agency shall issue its decision within 100 days of submission of the case.

"(c)(1) If a contested case is originally heard by an administrative law judge alone, he or she shall prepare within 30 days after the case is submitted to him or her a proposed decision in a form that may be adopted by the agency as the final decision in the case. Failure of the administrative law judge to deliver a proposed decision within the time required does not prejudice the rights of the agency in the case. Thirty days after the receipt by the agency of the proposed decision, a copy of the proposed decision shall be filed by the agency as a public record and a copy shall be served by the agency on each party and his or her attorney. The filing and service is not an adoption of a proposed decision by the agency.

"(2) Within 100 days of receipt by the agency of the administrative law judge's proposed decision, the agency may act as prescribed in subparagraphs (A) to (E), inclusive. If the agency fails to act as prescribed in subparagraphs (A) to (E), inclusive, within 100 days of receipt of the proposed decision, the proposed decision shall be deemed adopted by the agency. The agency may do any of the following:

"(A) Adopt the proposed decision in its entirety.

"(B) Reduce or otherwise mitigate the proposed penalty and adopt the balance of the proposed decision.

"(C) Make technical or other minor changes in the proposed decision and adopt it as the decision. Action by the agency under this paragraph is limited to a clarifying change or a change of a similar nature that does not affect the factual or legal basis of the proposed decision.

"(D) Reject the proposed decision and refer the case to the same administrative law judge if reasonably available, otherwise to another administrative law judge, to take additional evidence. If the case is referred to an administrative law judge pursuant to this subparagraph, he or she shall prepare a revised proposed decision, as provided in paragraph (1), based upon the additional evidence and the transcript and other papers that are part of the record of the prior hearing. A copy of the revised proposed decision shall be furnished to each party and his or her attorney as prescribed in this subdivision.

"(E) Reject the proposed decision, and decide the case upon the record, including the transcript, or upon an agreed statement of the parties, with or without taking additional evidence. By stipulation of the parties, the agency may decide the case upon the record without including the transcript. If the agency acts pursuant to this subparagraph, all of the following provisions apply:

"(i) A copy of the record shall be made available to the parties. The agency may require payment of fees covering direct costs of making the copy.

"(ii) The agency itself shall not decide any case provided for in this subdivision without affording the parties the opportunity to present either oral or written argument before the agency itself. If additional oral evidence is introduced before the agency itself, no agency member may vote unless the member heard the additional oral evidence.

"(iii) The authority of the agency itself to decide the case under this subdivision includes authority to decide some but not all issues in the case.

"(iv) If the agency elects to proceed under this subparagraph, the agency shall issue its final decision not later than 100 days after rejection of the proposed decision. If the agency elects to proceed under this subparagraph, and has ordered a transcript of the proceedings before the administrative law judge, the agency shall issue its final decision not later than 100 days after receipt of the transcript. If the agency finds that a further delay is required by special circumstance, it shall issue an order delaying the decision for no more than 30 days and specifying the reasons therefor. The order shall be subject to judicial review pursuant to Section 11523.

"(d) The decision of the agency shall be filed immediately by the agency as a public record and a copy shall be served by the agency on each party and his or her attorney."^[4] (Stats. 1999, ch. 339, § 2, pp. 2154-2155, italics added.)

B

We first consider section 11517's express terms. Section 11517's language does not expressly provide that an agency's failure to issue a final decision within 100 days of its receipt of a requested administrative hearing transcript (after a timely rejection of a proposed decision) results in adoption of an ALJ's proposed decision. Rather, its express language provides that a proposed decision "shall be deemed adopted" by the agency if the agency "fails to act as prescribed in subparagraphs (A) to (E), inclusive, within 100 days of receipt of the proposed decision." (§ 11517, subd. (c)(2), italics added.) In this case, within 100 days of Board's receipt of the Proposed Decision, the Board elected to act as prescribed in subparagraph (E): it rejected the Proposed Decision and chose to decide the case on the record, including the transcript. Section 11517, subdivision (c)(2)(E) provides that an agency may "[r]eject the proposed decision and decide the case upon the record, including the transcript . . . ." Reading section 11517 as a whole, subdivision (c)(2)(E) cannot reasonably be construed as requiring an agency that has timely rejected a proposed decision and chosen to decide the case on the record, including the transcript, to issue its final decision within 100 days of its initial receipt of the proposed decision to avoid a "deemed" adoption of the proposed decision for a failure to "act" per section 11517, subdivision (c)(2).

Because section 11517, subdivision (c)(2) expressly provides that an agency may act by rejecting the proposed decision and deciding the case on the record, including the transcript, it is implicit (if not explicit) within the statute that an agency be given sufficient time to obtain that transcript and additional time to then consider that evidence in finally deciding the case. In fact, section 11517, subdivision (c)(2)(E)(iv) provides that if an agency rejects a proposed decision and chooses to decide the case on the record, "the agency shall issue its final decision not later than 100 days after rejection of the proposed decision. If the agency elects to proceed under this subparagraph, and has ordered a transcript of the proceedings before the administrative law judge, the agency shall issue its final decision not later than 100 days after receipt of the transcript." (Italics added.) Therefore, if an agency elects to reject a proposed decision, chooses to decide the case on the record, and orders a transcript of the administrative hearing proceedings, that agency implicitly is given an unstated (presumably at least a reasonable) period of time in which to receive that transcript and then is given an additional 100 days after receipt of that transcript in which to issue its final decision. Accordingly, there are in effect three separate time periods that apply in the event an agency elects to act in that manner. First, there is the initial 100-day period after receipt of the proposed decision during which the agency may elect to act under one of the five subparagraphs (A) to (E) (e.g., reject the proposed decision and decide the case on the record). (§ 11517, subd. (c)(2).) Second, there is the implicit, unstated period of time in which to obtain a copy of the administrative hearing transcript after an agency elects to reject the proposed decision and decide the case on the record, including the transcript. (§ 11517, subd. (c)(2)(E)(iv).) Finally, there is a second 100-day period after receipt of that transcript during which the agency must issue its final decision.^[5] (§ 11517, subd. (c)(2)(E)(iv).) An agency's failure to issue its final decision within that second 100-day period does not result in adoption of the proposed decision under section 11517, subdivision (c)(2). Rather, a deemed adoption of a proposed decision occurs only if an agency fails to timely act as prescribed in section 11517, subdivision (c)(2)(A) through (E) within the initial 100-day period after its receipt of the proposed decision.

Section 11517 expressly provides an agency is deemed to have adopted a proposed decision only if the agency "fails to act as prescribed in subparagraphs (A) to (E), inclusive, within 100 days of receipt of the proposed decision." (§ 11517, subd. (c)(2), italics added.) We conclude an agency timely acts under that provision if within 100 days after it receives a proposed decision, it rejects a proposed decision and chooses to decide the case on the record, including the transcript. That provision cannot reasonably be construed as requiring that all of the following occur within 100 days after receipt of a proposed decision to avoid deemed adoption of that proposed decision: (1) agency's consideration and rejection of the proposed decision and election to decide the case on the record, including the transcript; (2) request for, preparation of, and receipt of a transcript of the administrative hearing; and (3) agency's consideration of that transcript and other evidence and issuance of its final decision. Therefore, under section 11517, subdivision (c)(2)'s express language, there is no deemed adoption of a proposed decision or other consequence or penalty for an agency's failure to timely issue a final decision within 100 days after receipt of a transcript if it had previously timely (i.e., within 100 days after receipt of that proposed decision) rejected that proposed decision and chosen to decide the case on the record, including the transcript. Section 11517, subdivision (c)(2)'s penalty (i.e., deemed adoption of an ALJ's proposed decision) for an agency's failure to act within the first 100-day period (i.e., after its receipt of a proposed decision) does not also apply to an agency's failure to timely issue a final decision during the second 100-day period (i.e., after its receipt of the transcript following its timely rejection of a proposed decision and choice to decide the case on the record). Because section 11517 does not clearly express an intent that the second 100-day period set forth in subdivision (c)(2)(E)(iv) for an agency's final decision is mandatory or jurisdictional, the general presumption that it is merely directory applies. (Edwards v. Steele, supra, 25 Cal.3d at p. 410.)

Furthermore, there does not appear to be any legislative intent to impose a consequence or other penalty for an agency's failure to timely issue a final decision within the second 100-day period (i.e., after its receipt of a transcript following its rejection of a proposed decision) under section 11517, subdivision (c)(2)(E)(iv). Had there been such legislative intent, the Legislature presumably would have expressly provided for a consequence or other penalty (e.g., a deemed adoption of the proposed decision) for an agency's failure to issue a final decision during that second 100-day period as it did for failure to comply with the first 100-day period. In support of our conclusion there was no legislative intent to impose a consequence or penalty, we note that other provisions in section 11517 similarly lack an express consequence or penalty for delay. For example, if an agency within 100 days after receipt of a proposed decision elects to reject that proposed decision and refers the case to the same or another ALJ to take additional evidence, there is no express time limitation (much less a consequence or penalty) for that ALJ to issue a revised proposed decision. (§ 11517, subd. (c)(2)(D).) Also, if an agency (rather than an ALJ) originally hears a case, the agency is required to issue its decision within 100 days of submission of the case, but there is no consequence or penalty provided in the event the agency does not timely issue its decision. (§ 11517, subd. (b)(3).)

We further conclude the legislative purpose of section 11517 does not show the second 100-day period under section 11517, subdivision (c)(2)(E)(iv) is mandatory, rather than merely directory. An apparent purpose of section 11517 is to provide an aggrieved party with a reasonably timely hearing and decision by an agency. (Chrysler Corp. v. New Motor Vehicle Bd., supra, 12 Cal.App.4th at pp. 630-631 [regarding legislative purpose of former section 11517]; cf. Edwards v. Steele, supra, 25 Cal.3d at p. 410 [regarding legislative purpose of municipal code time limits for hearing and action on administrative appeal].) However, following the reasoning in Chrysler and Edwards, a holding that the time limit in section 11517, subdivision (c)(2)(E)(iv) is mandatory or jurisdictional in the circumstances of this case would seemingly defeat that legislative purpose by depriving an aggrieved party (i.e., Rached) of an agency hearing and decision through no fault of his own.^[6] (Chrysler Corp. v. New Motor Vehicle Bd., supra, 12 Cal.App.4th at pp. 630-631; Edwards v. Steele, supra, 25 Cal.3d at p. 410.) An interpretation of section 11517, subdivision (c)(2)(E)(iv) as directory would not give the Board unlimited time to decide his case. Rather, the Legislature's imposition of the second 100-day period under section 11517, subdivision (c)(2)(E)(iv) notifies a licensee (e.g., Rached) that the Board is required to decide his or her case within that second 100-day period (after rejecting a proposed decision and choosing to decide the case on the record, including the transcript) thereby precluding any "administrative limbo" or lengthy periods of uncertainty. (Cf. Poliak v. Board of Psychology, supra, 55 Cal.App.4th at pp. 350-351.) In the circumstances of this case, Rached does not show he was actually prejudiced by the Board's 22-day delay in issuing the Decision. (Cf. Edwards, supra, at pp. 410-411.)

The availability of alternative remedies also may be a factor in determining whether a statutory time requirement for agency action is directory or mandatory. (Morris v. County of Marin, supra, 18 Cal.3d at pp. 908-909, fn. 4.) For example, the availability of a writ of mandate (e.g., under Code Civ. Proc., § 1985) to require an agency to comply with that time requirement may support a determination that it is only directory. (Morris, supra, at pp. 908-909, fn. 4; Board of Education v. Sacramento County Bd. of Education (2001) 85 Cal.App.4th 1321, 1332 [statutory time requirement was only directory and not mandatory, noting "any delay beyond the 40-day statutory deadline for decisionmaking is remediable by petition for writ of ordinary mandamus to compel the School Board to perform its duty"]; Edwards v. Steele, supra, 25 Cal.3d at p. 412 ["[w]e conclude that although the board could have been mandated to comply with the 15-day and 40-day requirements, these provisions are not to be deemed [mandatory or] jurisdictional"]; California Correctional Peace Officers Assn. v. State Personnel Bd., supra, 10 Cal.4th at p. 1146; Kaiser Foundation Hospitals v. Superior Court (2005) 128 Cal.App.4th 85, 105 ["Dr. Dennis could have sought a writ of mandate from the superior court to compel the Hospital to begin the [peer review] hearing"].) Because Rached presumably could have filed a petition for writ of mandate to require the Board to timely issue a final decision pursuant to its chosen course of action under section 11517, subdivision (c)(2)(E)(iv), there is no reason to conclude that time requirement was mandatory, rather than merely directory.

We conclude the time requirement under section 11517, subdivision (c)(2)(E)(iv) for the Board to issue its final decision within 100 days after its receipt of the administrative hearing transcript (following its election to reject the Proposed Decision and decide the case on the record, including the transcript) is directory and not mandatory or jurisdictional. There is no contrary intent clearly expressed in section 11517. (Edwards v. Steele, supra, 25 Cal.3d at p. 410.) Also, section 11517 does not provide any consequence or penalty for the Board's failure to issue a final decision within that 100-day period. (Edwards, at p. 410.) Furthermore, holding that time requirement to be mandatory would defeat the purpose of section 11517. (Edwards, at p. 410.) Finally, Rached had an alternative remedy for the Board's failure to timely issue the Decision (i.e., a petition for writ of mandate). Accordingly, the Board's failure to issue the Decision until 122 days after its receipt of the administrative hearing transcript did not invalidate the Decision. (Morris v. County of Marin, supra, 18 Cal.3d at p. 908.)

DISPOSITION

The petition is denied. The stay of the suspension of the petitioner's chiropractic license issued on July 8, 2005, will be vacated when the opinion is final as to this court. The parties are to bear their own costs in the writ proceeding.

McDONALD, Acting P. J.

WE CONCUR:

McINTYRE, J.

IRION, J.

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^[1] All statutory references are to the Government Code unless otherwise specified.

^[2] Penal Code section 550, subdivision (b) provides: "It is unlawful to do, or to knowingly assist or conspire with any person to do, any of the following: [¶] . . . [¶] (3) [c]onceal, or knowingly fail to disclose the occurrence of, an event that affects any person's initial or continued right or entitlement to any insurance benefit or payment, or the amount of any benefit or payment to which the person is entitled." The trial court subsequently granted Rached's motions to reduce his conviction to a misdemeanor and to set aside his guilty plea and dismiss the charges against him.

^[3] The Proposed Decision revoked Rached's license, then stayed that revocation and placed him on five years' probation subject to certain terms and conditions, including, inter alia, suspension of his license for 30 days.

^[4] Before its repeal in 1999, former section 11517 provided that: "(c) If the proposed decision is not adopted as provided in subdivision (b), the agency itself may decide the case upon the record, including the transcript . . . . [¶] (d) The proposed decision shall be deemed adopted by the agency 100 days after delivery to the agency by the Office of Administrative Hearings, unless within that time (i) the agency notifies the parties that the proposed decision is not adopted as provided in subdivision (b) and commences proceedings to decide the case upon the record, including the transcript . . . , or (ii) the agency refers the case to the administrative law judge to take additional evidence. In a case where the agency commences proceedings to decide the case upon the record and has ordered a transcript of the proceedings, the 100-day period shall begin upon delivery of the transcript. . . ." (Assem. Bill No. 1692 (1999-2000 Reg. Sess.) as introduced Mar. 24, 1999, italics added.)

^[5] That second 100-day period may be extended for up to an additional 30 days if the agency "issue[s] an order delaying the decision . . . and specif[ies] the reasons" for that delay. (§ 11517, subd. (c)(2)(E)(iv).)

^[6] Furthermore, were the second 100-day period under section 11517, subdivision (c)(2)(E)(iv) held to be mandatory, another apparent legislative purpose of section 11517 and related statutes regarding disciplinary actions against professional licensees would be defeated (i.e., protection of the public). (Cf. Poliak v. Board of Psychology (1997) 55 Cal.App.4th 342, 350.) In this case, the Board's decision to increase the length of the suspension of Rached's chiropractic license presumably was intended (at least in part) to protect the public and to hold that decision void would frustrate that purpose of the Board and applicable disciplinary statutes.