If you are a licensed professional in California, and you are facing discipline by the board that governs your ability to maintain your professional license — due to misconduct on or off the job, including a criminal arrest, charge or conviction — your livelihood and ability to practice your career may be in jeopardy. In this precarious economic climate, keeping your license can mean the difference between stability and dire financial straits.
State authorities review court records, run background checks, investigate grievances and prosecute many licensed professionals against whom complaints have been filed. Professionals who incur criminal charges or convictions face the possibility of having their licenses suspended or even revoked.
Fortunately, it’s not that simple.
Due process, that is, the ability for you to get a fair hearing to challenge discipline, is enshrined in the US and state constitutions. The reason is that you have what is called a property interest in your professional license. That is called substantive due process.
Your right to have a hearing to contest adverse action on your license is what is called procedural due process.
Our Los Angeles licensing defense attorneys are experienced and aggressive in taking on the proposed suspension of your license.
Everybody makes mistakes. Perhaps you took something you were not supposed to, like from a store or an employer. Maybe you got a DUI, took drugs or engaged in some other conduct that does not bespeak your normal character. You feel that your life is back to normal now and you don’t want to look back.
While it’s commendable that you may have abandoned such conduct, it can come back to haunt you. The way this can happen is if you were convicted of a crime.
If you plead or were found guilty of a crime that your licensing board or entity deems to be substantially related to you being fit to carry out your profession or vocation, that board can suspend or even revoke your license.
The process begins with a notice of accusation, letting you know that you are facing discipline as the result of a criminal conviction or some work-related misconduct. If you don’t have a license but have applied for one, the licensing board will send you a statement of issues.
This is not a matter to handle on your own or with any attorney but a knowledgeable and skilled licensing defense attorney. Our 60-plus combined years defending criminal cases gives us the edge over our competitors, especially if you plead guilty to a crime without knowing the consequences of a plea, or if your charges are pending. We can concurrently fight the criminal charges or try to undo the criminal conviction altogether.
In disciplinary proceedings, you have the right to legal representation (at your own cost). Our lawyers may be able to negotiate a successful settlement that allows you to keep your license. We may be able to persuade the administrative law judge that you do not deserve to have your license suspended or revoked.
Whether you hire an attorney or not, you must be extremely careful not to neglect any deadlines. For example, you must notify the licensing board within 15 days of receipt to preserve your right to a hearing. Failure to do so may be deemed a forfeiture or your right to contest the hearing, meaning that the board may suspend or revoke your license on its own without allowing you the chance to be heard.
Let’s look at examples of discipline cases:
Example (accusation): A Los Angeles teacher pleads no contest to drug possession and public intoxication. He abides by all his probationary obligations and hires a Los Angeles expungement attorney to expunge his conviction.
In the meantime, he continues teaching history and social science at a public high school. The Commission on Teacher Credentialing finds out about his conviction and sends him a notice of accusation seeking to suspend or revoke his teaching license.
The teacher challenges the accusation in a hearing before an administrative law judge. He submits character reference letters from supervisors, school faculty, teachers and parents attesting to his proficiency, reliability and good moral character. He also makes known to the judge that he has followed through with his court obligations by successfully completing drug rehabilitation and/or AA meetings, stayed clean during his probationary period, paid all outstanding fines and expunged his conviction.
The administrative law judge decides, and the Committee of Credentials agrees, that the teacher has demonstrated rehabilitation. Rather than suspending his license, the Committee puts him on probation.
Example (statement of issues): A Southern California woman applies for a registered nurse’s license. On her application, she fails to divulge past criminal convictions for petty theft (under Cal. Pen. Code §484(a)) and vandalism (under Cal. Pen. Code §594).
The Board of Registered Nurses (BRN) finds out about her record and sends the nursing applicant a statement of issues. The BRN won’t issue her a license due to not only her convictions but also her failure to disclose them.
However, the nursing applicant hires a Torrance licensing attorney, who responds to the statement of issues with a denial and request for a hearing. The licensing attorney gathers evidence in mitigation and rehabilitation, including that the applicant has fulfilled all her court obligations, has kept her nose clean, and that the incidents were isolated and situational in nature. Based on the licensing attorney’s arguments, the administrative law judge considers the evidence, rules that the applicant has shown genuine remorse and assumed responsibility for her actions.
The BRN concurs with the administrative law judge’s ruling and issues the applicant her nursing license.
Yes, pursuant to the Administrative Procedure Act, you are entitled to an administrative hearing in your license discipline case. In effect, administrative hearings are a check and balance against arbitrary and abusive disciplinary actions. They help strike a balance between your right to earn a livelihood and public safety, i.e., the right of the public to be free from unscrupulous and potentially dangerous individuals.
The Office of Administrative Hearings (the OAH) governs the administrative hearing process, handling more than 10,000 cases annually.
An OAH administrative hearing resembles a bench trial in a criminal court (as there are no juries in administrative hearings). Lawyers for the disciplinary board and the accused professional are entitled to present opening and closing statements, direct- and cross-examine witnesses and present evidence. The hearings are heard in administrative courts located in Los Angeles, Oakland, Sacramento and San Diego. An administrative law judge, or ALJ, hears the matter.
No. The ALJ is an experienced lawyer acting independently of the licensing board. While the board’s function is to take disciplinary action on your license, the ALJ’s job is to administer the proceedings in a fair, unbiased and impartial manner. The board is usually represented by a Deputy Attorney General (or DAG) from the Office of the California Attorney General.
As you may know from personal experience (or from television), in a criminal case the prosecutor can only win if he or she proves beyond a reasonable doubt that the defendant committed the crime.
No. It is the licensing board’s burden of proof to show that your license should be suspended or revoked. However, because the worst thing that can happen is that you lose your license (as opposed to criminal cases, where you can lose your freedom), the standard of proof is not as high as in criminal cases (beyond a reasonable doubt). Yet, it is not as low a standard of proof as in civil cases, which is generally preponderance of the evidence. Instead, the licensing board must prove by clear and convincing evidence you are unfit to keep your license.
If you are an applicant, however, and have received a statement of issues, you have the burden of proof. It is you who must prove that you are sufficiently fit to be issued a professional license.
These may be hard concepts to grasp. We invite you to call us or email us if you have any question.
You are entitled to the names of witnesses whom the licensing authority will call to testify against you, copies of statements pertinent to the board’s case and the board’s investigative reports, regardless of whether they were made on behalf of the board.
Though the evidentiary rules are more slack in administrative hearings, your attorney has the right to introduce evidence and direct- and cross-examine witnesses. While not always the wisest course of action, you have the right to testify on your own behalf. Unlike criminal trials, however, if you choose not to testify, the licensing board’s attorney may still call you to testify as if you were on cross-examination.
If the licensing board seeks to discipline you based on a conviction you sustained, our South Bay licensing attorneys may introduce evidence demonstrating that the crime for which you were convicted was not related substantially to your profession, if at all. Secondly, we can show that you have been rehabilitated from your conviction, specifically, fulfilled all probationary obligations, not incurred any new convictions, and, generally, that your character is reformed.
In cases heard by an ALJ, he or she has 30 days to prepare and forward to the licensing board or agency a proposed decision. Within 30 days, the agency must make the decision public and serve it on the parties. The agency then has 100 days to do either of the following:
If you lost your hearing, including, but not limited to, a request for reconsideration of the licensing board’s order, your licensing attorney can file what is known as a petition for writ of administrative mandate. The purpose of the petition is to motion the Superior Court to review and reverse the board’s order.
Although your case will not be retried, a trial court judge will review the proceedings to ensure you were given a fair hearing. He or she will also ascertain whether the licensing board committed abuse of discretion by issuing its order to suspend or revoke your license. Your licensing attorney may be able to convince the administrative judge that the board abused its discretion by not following the law, or by issuing an order that was not supported by the evidence.
At Ernenwein & Mathes, LLP, our Torrance professional license defense attorneys have the experience, knowledge and skill to effectuate a powerful and convincing defense of your license. In these dire economic times, keeping or losing your license to practice your profession or vocation can mean the difference between prosperity and bankruptcy. Your livelihood is too important to leave to anybody but the best legal counsel you can find. Call us today at 424-552-3901 for a free consultation.