The state of California regulates a tremendous number of professions, from physicians, surgeons, and registered nurses to dentists, dental hygienists and pharmacists. If you already practice, or intend to practice, a profession that is regulated professions by California, you need a license, certification, or registration from at least one of California’s over 35 licensing or review boards, bureaus, or committees, many of which operate under the umbrella of the California Department of Consumer Affairs (DCA).
As its name implies, the purpose of these boards within the DCA is to protect consumers from harm that comes from utilizing the services of people within these regulated professions. Consequently, when consumers believe that they have been seriously harmed—either through incompetence or intentional wrongdoing—they can lodge a complaint with the appropriate board, which then has the power to determine whether adverse action is warranted against the licensee—up to and including revoking the license or certification. In short, these California licensing boards have the power over whether you can earn your living.
Typically, anyone practicing these professions can end up in an adversarial position to these regulatory agencies in one of two situations: 1) appealing the denial of a license; or 2) defending against a disciplinary action. You may retain the services of legal counsel for these hearings, and, in many situations, retaining legal counsel is essential. Not only do professional license defense attorneys understand the legal standards and processes involved, but administrative hearings, while seemingly more “informal” than court procedures, are in fact critical: the facts established in an administrative hearing create the entire record upon which disciplinary action is based, even in any subsequent court proceedings.
The Administrative Review Process
Cintean is a professional license defense attorney. We help professional clients facing administrative review hearings under a variety of circumstances. However, one of the most crucial tasks we can perform is to defend licensees facing accusations from a consumer, in which the consumer is asking the relevant board or agency to administer some disciplinary action—possibly even license revocation—against a licensee.
Receiving an Accusation
In general, you will learn about an adverse action when you receive something called an ‘Accusation’ notice from the appropriate licensing agency. These Accusation notices must be taken seriously. Unfortunately, the time frame for responding to them can be very brief—you may have only 15 days to file a Notice of Defense. In particular, it is essential that you read the information contained in the notice carefully, and comply with all of the instructions. Failure to respond the Accusation could result in a Default Decision and Order, and that order may result in you professional licensed being revoked.
While you may be tempted to handle the matter yourself, particularly if you believe that the basis for the accusation is flimsy, or that the person complaining is unreasonably disgruntled, it is important to remember that the board in question must take every complaint seriously and as a legitimate and valid complaint. You should not assume that the board is sympathetic to you; on the contrary, the board’s primary constituency is the consumer. Consequently, whether or not you believe that the complaint has merit, it is important to consult an attorney from the very beginning to explain to you the process that is involved and the potential consequences, as well as how best to address the particular Accusation against you.
Final Resolution of the Accusation
There are two ways an Accusation may be resolved: through a stipulated settlement, or via an administrative hearing.
If you believe that there may be some merit to the Accusation, you may decide that the best route is to enter into a stipulated settlement with the board by accepting some disciplinary action. If so, the relevant regulatory agency often publishes a set of disciplinary guidelines which can help evaluate whether and what may be appropriate; however, it is advisable to consult a professional licensing attorney to evaluate whether settlement is really your best option. Occasionally, even some minor wrongdoing or error on the part of a professional is arguably not relevant to the issue of licensure or may not be sufficient to warrant discipline, and your attorney can advise you as to whether you need to accept any disciplinary action at all, or what disciplinary action would be reasonable.
If settlement is appropriate, you attorney can help you:
- Negotiate with the agency;
- Present your position in the best light possible, including evidence of mitigation, remediation, or rehabilitation;
- Fashion a remedy that suits your personal priorities; and
- Advise you about the consequences, or potential consequences, of any proposed settlement.
The settlement terms sought by the board may address a broad range of options, from dismissing the action, to a public reprimand, to a fine, to probation, to enduring a temporary license suspension, or all the way up to voluntarily surrendering the license.
If you choose to defend your license after you file your Notice of Defense, you or your attorney will have to communicate with the licensing board’s attorney to begin the hearing process. Administrative hearings are governed by California’s Administrative Procedures Act, (California Government Code 11370 and following), and, except for hearings related to liquor licenses and attorney discipline hearings, the California Office of Administrative Hearings (OAH) hears all professional license cases. While the process is somewhat similar to a lawsuit, administrative hearings have special considerations, such as procedural and evidentiary rules, that require your attorney to have a thorough understanding of administrative processes.
First, you will pursue “discovery.” Discovery is the process by which you obtain information about the case against you—copies of the documents and other evidence obtained in the administrative investigation, names of material and expert witnesses, and so on. At this point, you will need to begin developing your defense strategy, including obtaining your own evidence, witnesses, and experts, in order to help you to prove that the allegations are false, distorted, mistaken, or otherwise insufficient to merit discipline. In an administrative hearing, you will be required to testify, so your attorney can prepare you for the types of questions you will be asked. Your attorney will also help you to devise the best defense arguments relevant to the retention of your license, including, if appropriate, any mitigation measures you have taken, or any potential or performed rehabilitation measures that you may take that can protect your license.
Your case will then proceed to a hearing before an Administrative Law Judge (ALJ). The process is adversarial, in which the board’s attorney will present the case against you, and you then have the opportunity to will defend yourself. After the hearing, the ALJ usually has 30 days to render a final decision and make a recommendation to the board as to how to resolve the case. The board, however, has the final say in what action will ultimately be taken, and you will receive that decision within another 100 days. If the licensee opposes the board’s action, he or she can then appeal the decision. Depending upon the situation, the decision can be appealed to the agency itself (a Request for Reconsideration) or to California Superior Court.
The Attorneys at Alin Cintean, Attorney at Law and Richard Dudek, Attorney at Law Understand the Administrative Process, and Can Help You to Defend Your Professional License
Depending on your situation, once an Accusation is filed, it may take anywhere from a few months to over a year to get your licensing matter resolved, even if you wish to settle. It is in your best interest to place your defense in the hands of a competent, experienced license defense attorney, so that you can have as much peace of mind as possible as you navigate through this stressful process.
If you are a California state-licensed professional practicing anywhere in the state of California and you are facing disciplinary action from a state board, contact the professional license defense attorneys at Alin Cintean, Attorney at Law and Richard Dudek, Attorney at Law, with offices in San Francisco and Contra Costa County. California’s licensing boards, committees, and bureaus have the power to prevent you from practicing your profession; don’t risk your livelihood and your future by failing to consult a qualified professional license defense attorney.
Alin Cintean, Attorney at Law and Richard Dudek, Attorney at Law can help you defend your license before any California state board, from the initial complaint all the way to administrative resolution, or for any subsequent appeals through the agency itself or in the California court system. Call our San Francisco office at (415) 946-4020, our Contra Costa office at (925) 335-6444, or use the inquiry form here on our website.