On November 26, 2018, the Department of Consumer Affairs (DCA) and Bureau of Automotive Repair (BAR) designated two administrative decisions as precedential. These decisions contain legal conclusions by an administrative law judge (ALJ) that confirm general legal principles and can be used in future BAR cases to resolve similar legal issues without prolonged testimony.
BAR Precedential Decision No. 2018-01 (OAH No. 2016120680, Case No. 79/16-152) involves an accusation against Darryl Bone Contracting, Inc., dba Tony’s Test and Repair; and Adrian Miguel Martinez, dba Tony’s Smog Check, Smog Check Inspector, Smog Check Repair Technician. In this matter, the ALJ ruled on the appropriate burden of proof created by BAR’s 2012 regulatory change that discontinued the use of certain (EA and EB) prefixes for technician licenses, replaced those licenses with new (EO and EI) prefixes, and made minor changes to the training and experience requirements for the new licenses. In the decision, the ALJ determined the change in technician licensing structure did not elevate these licenses to the status of a professional license and should remain classified as an occupational license. In administrative proceedings, the agency must present evidence against a professional license that meets a clear and convincing burden of proof. However, evidence against an occupational license must be proven by a preponderance of the evidence, a lower burden of proof.
BAR Precedential Decision No. 2018-02 (OAH No. 2017010575, Case No. M2015-1666) involves a citation issued to Mohammad Faraji, Smog Check Inspector, Smog Check Repair Technician. In this matter, the ALJ determined BAR’s March 9, 2015, start date for BAR On-Board Diagnostic Inspection System (BAR-OIS) inspections to replace BAR-97 inspections was duly adopted pursuant to the Government Code as demonstrated by the filing of a certified copy with the Secretary of State’s Office. This decision confirms BAR’s ability to specify Smog Check Program changes, such as equipment updates, in regulation without defining a precise start date, thus affording BAR the opportunity to collaborate with industry to ensure all concerns have been resolved prior to establishing and clearly communicating through ET Blasts and other forums a specified date of implementation for required program changes.