CALIFORNIA LICENSEE ASKS: WHAT IF I AM GUILTY?

     First, this is an excellent question, and one that the lawyers of License Advocates Law Group hear frequently from licensees across the spectrum of California occupational and professional licenses. In fact, whether in meetings with individual clients, or in the programs we offer at annual meetings and conventions, whether we are speaking to nurses, teachers, real estate and insurance professionals, building contractors, accountants or any other category of licensee, this question is always asked. And we are always pleased to hear it because the answer takes us into the very heart of the process of effectively defending a California occupational licensee against discipline of the license. 

To begin, it's critical to define our terms:  there is no such thing as “guilt” in licensee discipline. “Guilt” is what criminal courts determine. In civil actions, where one is sued for doing things that damage or violate the rights of others, the operative concepts are “culpability” and “liability.”  License regulation and discipline are different. These governmental processes are mainly controlled by administrative law, as opposed to criminal law or general civil law. 

Although the specific rules and technicalities in license discipline cases can vary widely depending on the type of license and which Department or other office of the State of California issues the license, it is still administrative law that governs discipline against the license -- whether the license of a building trades contractor operating under a license issued by the Contractors State License Board, as well as the licenses of a real estate agent (Department of Real Estate), vehicle salesperson (Department of Motor Vehicles), insurance producer or broker (Department of Insurance), or a nurse (Board of Nursing). In almost all instances of license enforcement, the critical question is not whether the licensee is “guilty” as in criminal law, or “liable” as in civil law, but whether factual cause exists to impose discipline. So, what the licensee is really asking is this:  what if there is factual cause to justify discipline? Now, take some comfort and courage from the answer:  most of the time there is indeed some factual cause for discipline. 

It's very rare in administrative law for the State licensing authority to be acting completely in error such as pursing the wrong person with wholly erroneous allegations. Yes, it does happen, infrequently. (There is a great example of this situation posted in the FAQ's at our website, www.LicenseAdvocates.com). But, in most cases, the real issue is not that there is no evidence of misconduct to support the State's accusation. Instead, the most common situation is that the State licensing Department or Board intends to impose a much more severe punishment or penalty than is necessary or appropriate. 

So, if you are facing a revocation of your license, it may be that the right outcome for your case is some temporary conditions on your license, conditions which are narrowly tailored to meet the true circumstances of your case and which apply just long enough to demonstrate that there is no need for permanent or more severe discipline against your license. Such conditions might include financial restitution to a complaining witness, such as a former client, or a mandate for additional continuing education coursework. If you have been denied a license, it may be that the facts on which the State Department or Board denied the license application support lesser measures than denial of the license. Very frequently a contested denial, if appealed and set for fair hearing by the applicant, can result instead in the issuance of a probationary license which allows the licensee to demonstrate competence and professionalism while working in the licensed field.

Of course, just as each licensee and each license applicant is unique, each license discipline case is different and must be evaluated and handled on its individual facts. But it is a true and reliable statement that, in most cases, a competent (maybe even skilled) defense against the licensing authority's penalty decision can result in a much less severe penalty and shorter burden or limitation on the licensee than the State originally intended. So, don't let the fact that you are “guilty” – that there are facts justifying the State's accusation – cause you to simply roll over. 

If your license is your livelihood, if that's how you put food on your table and support your family, it is not right and not necessary for you to pay a higher price for prior mistakes than the law requires.

Further information can be found at www.LicenseAdvocates.com. or in private consultation with any of the partners at License Advocates Law Group.


 
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