Through professional licensing laws, California regulates the practice of professions and occupations as diverse as cosmotologists, funeral directors, and doctors. The California Department of Consumer Affairs (DCA) oversees many of the boards and bureaus that regulate professional and occupational licenses. Licensee’s can find themself in trouble and subject to discipline for a whole range of reasons, from incompetence to fraud. Handling professional license discipline cases can be very disorienting for attorneys who are unfamiliar with the area.
Here are some things to help get you oriented in the strange, new world of license discipline:
- Consider the Administrative Procedure Act. Prehearing and hearing procedures in license discipline cases are governed by the Administrative Procedure Act (Govt C §§11400-11529). You need to be familiar with the Act. For example, the Act limits the scope of discovery (Govt C §§11507.5-11507.7) and an attorney unfamiliar with the Act who attempts to go beyond the permissible scope of discovery may waste valuable time and client resources.
- Consider the charges alleged in the accusation. The accusation is the pleading that the agency files when it seeks to suspend or revoke a license. Govt C §11503. Don’t confuse the charges in the accusation with those listed in an investigation report; only the charges listed in the accusation are at issue in the case. Because the law requires the agency to list the laws on which the discipline in the accusation is based (Govt C §11503), the accusation is an excellent place to start legal research.
- Consider the laws and regulations governing the profession. Most DCA agencies are governed by the professional licensing laws in the Business and Professions Code. See, e.g., Bus & P C §§2700-2838.4 (laws regulating registered nurses). There are also general provisions covering all DCA licensing agencies in Bus & P C §§1-499 and general provisions governing DCA health care licensing agencies in Bus & P C §§500-922. In addition, most of the DCA agencies have promulgated regulations that affect license discipline proceedings located within Title 16 of the California Code of Regulations. Find and review all the relevant rules.
- Consider the licensing agency’s disciplinary guidelines. The DCA licensing agencies rely on “disciplinary guidelines” to assist the agency in formulating a penalty if the charges are proven at hearing. The discipinary guidelines typically contain information on standard and optional terms of probation and the minimum and maximum recommended penalties for different types of violations. They may also contain factors in aggravation and mitigation to be considered in deciding a case, as well as suggestions for rehabilitation evidence that a licensee can present during a hearing. Get a copy of the disciplinary guidelines from the agency website at soon as possible, because the agency staff uses them to craft settlement offers and administrative law judges rely on them when drafting their proposed decisions following an administrative hearing.
- Consider the possibility of mitigation and rehabilitation evidence. License discipline hearings for DCA agencies do not separate the “guilt” and “penalty” phases as criminal trials do. Although most of an administrative hearing involves the attempt to prove the charges against the licensee, the hearing also involves the appropriate penalty to be imposed if some or all of the charges are proven. Rehabilitation or mitigation evidence may lead the agency to impose a lesser disciplinary penalty. Rehabilitation evidence is particularly important when the underlying facts are undisputed, such as a license discipline case based on a licensee’s prior criminal conviction. In other cases, an attorney representing a licensee should balance the benefits of rehabilitation evidence against the risk that such evidence may appear to be an admission of guilt. Most DCA agencies have promulgated regulations listing criteria for rehabilitation. In addition, some agencies include examples of rehabilitation evidence in their disciplinary guidelines.
- Consider the possibility of settlement. Licensing agencies have statutory authority to settle disciplinary cases. Govt C §11415.60. Always consider the possibility of settlement. A settlement agreement saves the client time and money, and the agency may be willing to settle for a lesser penalty than would be imposed after a hearing.
- Consider whether discipline will affect other licenses. A decision disciplining a licensee may have ramifications beyond that individual case. Some California laws provide that the discipline of one license may lead to discipline of other professional or occupational licenses held by the same licensee. If the licensee is licensed in another state, that state may seek to discipline the out-of-state license based on the California disciplinary decision.
These factors provide a starting point for attorneys new to the area of license discipline to consider when handling a license discipline case for the first time. For help with preparing for administrative hearings of any type, check out CEB’s California Administrative Hearing Practice.
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