Overview of Disciplinary Licensing Actions

INTRODUCTION

The Law Offices of Edgardo Gonzalez successfully represents licensees charged with violating various licensing laws and regulations. We promptly negotiate favorable settlements, which allow our clients to avoid a time-consuming and costly administrative hearing. Our representation at the administrative hearings provides our clients with a well prepared defense aimed at obtaining a decision that allows our client to continue practicing his or her profession. We also represent individuals seeking professional licenses and in license reinstatement and reduction of penalty hearings.

What should I do if an investigator from the state licensing agency contacts me?

Most licensees have never been visited by a state licensing investigator. If you are not familiar with license disciplinary actions, you may essentially lose your license before a formal Accusation is even filed. When contacted by an investigator, you should be both cooperative and defensive. Licensees often think that the complaint is without merit, so they do not take pay much attention to the investigation. Regardless of whether the complaint has merit, you should realize that the investigator usually gives great credibility to the complaining party. Simply denying any wrongdoing is usually not enough for the investigator to close his or her investigation without further action.

Investigators sometimes lull licensees into a false sense of security. The investigator may call you for an "informal" conference to learn your side of the facts, so that the matter may be "cleared up." The informal conference may seem so innocuous that you may not even consider taking an attorney to the conference. When you appear at the conference, you may find that an expert consultant hired by the state licensing agency will conduct much of the interview, along with the licensing investigator. The next thing you may notice is that the interview is tape-recorded. Later you may be surprised to learn that your own comments are interpreted by the investigator or consultant as admissions of wrongdoing.

A miscommunication may lead the investigator to conclude that the complaint has merit and forward the case to the agency's legal counsel. Having an attorney attend the conference with you reduces the chance that your comments may be misinterpreted. Most investigators allow the licensee to be accompanied by an attorney. The best opportunity to resolve a case favorably comes at the investigative stage. An attorney experienced in licensing cases may craft a settlement proposal that addresses the licensing agency's concerns and resolves the case without the need to proceed with the filing of a formal Accusation. For example, in cases regarding drug abuse allegations, an Accusation is not filed, provided the licensee successfully completes a drug diversion program.

Unless an agreement with the licensing agency is reached, the investigative file may be:

- Closed and the complaint is found to be "unsubstantiated."

- Closed and retained for one year if the complaint is found to be "inconclusive."

- Closed and retained for five years because the complaint is found to have merit, but insufficient evidence to prosecute the licensee.
- Referred to the Office of the Attorney General or to the agency's Legal Division for prosecution.

- Referred for issuance of a citation.
- And/or referred to the local district attorney or other law enforcement agency for criminal prosecution.

What is really at stake if a formal Accusation or Statement of Issues is filed against me by the state licensing agency?

If your case is referred by the investigations unit to the Office of the Attorney General or to the agency's in-house Legal Division, a formal Accusation or Statement of Issues is drafted and filed against you. An Accusation is a public document containing the specific allegations and grounds for discipline. In the case of an applicant denied licensure, a Statement of Issues containing the grounds for denying the application is filed against the applicant. In most cases, the form of discipline sought is complete revocation of the license.

The mere filing of an Accusation may have serious repercussions. For example, your liability insurance carrier may cancel or not renew your policy. For physicians, your hospital privileges may be revoked or restricted, or perhaps you may be excluded from membership in Health Maintenance Organizations (HMO) or Preferred Provider Organizations (PPO).

Any other professional license or a future application for a license may be adversely affected. You may also be subject to possible civil liability or criminal liability, depending on how your administrative case is resolved.

Since the Accusation and Statement of Issues are public documents, your reputation and standing in your community may also be adversely affected by the mere filing of these documents. For all the above reasons, it is critical that you make every effort to resolve your matter before the filing of an Accusation or Statement of Issues.

Once I request a formal administrative hearing, what should I do next?

Once an Accusation/Statement of Issues is filed, you have only a short time to request a hearing. With many state licensing agencies, you have only 15 days to file a Notice of Defense. The Notice of Defense is a legal document that informs the licensing agency that you are disputing the allegations and you are requesting a formal hearing. Once the licensing agency's attorney receives your Notice of Defense, a formal administrative hearing is scheduled. Generally, an administrative hearing is a formal hearing during which testimony is taken under oath before an Administrative Law Judge (ALJ). The hearings are typically held at one of the four Office of Administrative Hearings (Sacramento, Oakland, Los Angeles, or San Diego). However, many other state buildings may hold a hearing.

The ALJ's decision is proposed to the state agency. In other words, the agency both prosecutes you and makes a decision on the discipline, if any, to impose. The agency may:

- Adopt the ALJ's decision;

- Reject the decision and either schedule another hearing before an ALJ or schedule another hearing before the actual agency or licensing board members;
- Modify the decision after reviewing the record and receiving additional oral and/or written argument.

Generally, in addition to the right to a hearing, you have the right to counsel (at your own expense), the right to testify on your own behalf, the right to confront and cross-examine witnesses, the right to subpoena witnesses to testify at the hearing, and the right to discovery. Discovery is term used for the documents and physical evidence related to the allegations. A careful review of the discovery and a thorough investigation by your defense team is necessary to prepare your defense.

Generally, hearings scheduled for four or more days trigger a Pre-hearing/Settlement Conference. A Pre-hearing Conference is a legal proceeding at which the parties review the procedural as well as some legal issues related to the scheduled hearing (such as the number and identity of proposed witnesses, the number of days actually required for the hearing, whether discovery has been exchanged, and any stipulations to legal issues in the case).

A Settlement Conference is a legal proceeding at which the parties discuss possible settlement terms with an administrative law judge. If a settlement is reached, the administrative hearing is canceled and the stipulated agreement is submitted to the licensing agency for adoption or non-adoption. Any party may request a pre-hearing and/or settlement conference from the Presiding Administrative Law Judge.

Most administrative licensing cases are resolved without proceeding to a hearing. However, there is a very broad range of settlement terms that need to be considered when negotiating with the agency's counsel. A creative settlement proposal may lead to a stipulated agreement in a case that would normally go to a costly and time consuming hearing. You may be required to reimburse your state licensing agency for the costs of investigating and prosecuting your case. Such costs may be several thousand dollars, especially if you go through an administrative hearing.

Representation by an experienced license defense attorney at all stages of a disciplinary action is highly recommended. Some licensees make the mistake of representing themselves in cases that they consider "minor." However, these licensees later learn that there are virtually no "minor" cases.

For example, a licensed real estate salesperson was surprised to learn that her single misdemeanor conviction for petty theft was reported to the Department of Real Estate (DRE) by a law enforcement agency. The licensee declined the DRE's settlement offer, which included a suspension and probationary license with various terms and conditions. The licensee admitted the conviction at the administrative hearing and testified that she was in compliance with the probation she received from the petty theft conviction. The licensee also testified that she did not have any other convictions or disciplinary actions by the DRE. The licensee introduced a letter from a colleague regarding the licensee's exceptional skills as a real estate salesperson. The administrative hearing lasted less than one hour. Two months later, the licensee received notification from the DRE that her real estate salesperson license was revoked.

What can I do if I do not agree with the agency's decision?

You may file a Request for Reconsideration with the state licensing agency. Your request must be filed and a decision must be made by the agency before the effective date of the pending order of discipline. If the licensing agency agrees to reconsider its decision, it will stay the pending order of discipline until it makes a decision on your request for reconsideration.

If your request for reconsideration is denied, the agency's final decision may be appealed via a petition for writ of administrative mandamus. You must show that the agency's disciplinary order was an abuse of discretion. In some cases, you may be able to obtain a stay of the agency's decision while the court considers your writ of administrative mandamus. If the writ is not successful, you may appeal to the court of appeal then petition the state Supreme Court. However, a recent statute prohibits medical doctors from filing an appeal to the court of appeal; instead they may only take a writ to the court of appeal (the constitutionality of this statute is currently before the California Supreme Court).

A careful review of the administrative hearing transcript and exhibits, as well as a good knowledge of administrative law is extremely important in filing a successful writ or appeal. There are also many procedural requirements, such as filing deadlines, to which you must adhere.

How do I get back my license after it has been revoked?

After a period of time prescribed by state statute, you may petition the agency to reduce the penalty on your restricted license (e.g. terminate your probationary license early or delete conditions of probation). If you have had your license revoked, you may file a Petition for Reinstatement showing evidence of rehabilitation. These petitions are personally brought before an administrative law judge and/or the agency's actual board members. A detailed and professional presentation of the various factors establishing rehabilitation is vital to getting your license back.

CONCLUSION

Whether you are in the investigative, accusation, or post-discipline stage of the administrative process, you will be opposed by knowledgeable licensing representatives with vast resources at their disposal. You should similarly be armed with an experienced professional license defense team. Proper representation would help ensure that minor cases stay minor and the more serious cases result in a disposition that enables you to continue your professional practice.

The foregoing information does not create an attorney/client relationship. Individuals should obtain the advice of a licensed attorney in good standing regarding their specific administrative matter. The author of this article, Edgardo Gonzalez, represents professional licensees throughout the State of California. He is an active member of the State Bar of California and can be reached at 1-510-446-7716.