Monday, September 6, 2010
(NOTE: License Advocates Law Group practices administrative law throughout the State of California and this BLOG deals mainly with issues pertaining to occupational licensees in California, a point we are careful to make plain in our posts. This post, however, is not state-specific. The information set forth here is applicable to professional and occupational licensees in most U.S. jurisdictions.)
After decades of practice in the field of administrative law, the partners of License Advocates Law Group have seen, time after time, that every licensing defense case can be strengthened by some very straightforward and do-able actions by the licensee even after denial of a license or after disciplinary charges have been brought by the State. Over the next few weeks, this blog will identify, explain and discuss the Top Ten Essential Tasks for Disputing a License Denial or Defending Disciplinary Charges Against the Licensee.
The first installment of this series, Task No. 1, is available in the August archive of this blog under the title LICENSEES AT RISK FOR REVOCATION/SUSPENSION: IMPORTANT TASKS T O DO NOW THAT WILL STRENGTHEN YOUR DEFENSE OF YOUR LICENSE. Task No. 2, is here. This post discusses Task No. 3.
No. 3: List, identify, collect, and preserve all potential evidence.
Like Task No. 2 in which the objective is to identify and preserve all potential testimony relevant to the licensing case, the purpose of Task No. 3 is to ensure the availability of all potential physical evidence at the administrative hearing so that the applicant or licensee can make the best possible case.
First, an important warning about physical evidence at the hearing before the Administrative Law Judge: Everything tangible and portable falls in the category of physical evidence. When the material is tangible but not portable, it is likely that a photograph or record of the item will be admissible as evidence in lieu of the thing itself. But, copies and replicas and photos are not always admissible, and are never as persuasive as originals, so considerable thought as to the form in which an item will be introduced is critical. This determination is attorney's work – a person unfamiliar with the Calif Evidence Code and Administrative Procedures Act is not likely to effectively make these predictive judgments.
The most common kinds of physical evidence –described and numbered or lettered as “exhibits” at the hearing whether the exhibit is accepted into evidence or not – are documents and records of every conceivable kind: time-sheets, receipts, invoices, logs, contracts, reports, journal entries,bank statements, cancelled checks, tax returns. Also photographs, maps, diagrams, charts, spread sheets. There is no limit to the kinds of documents and records that may qualify as persuasive evidence at the hearing. Even videos, tape recordings, digital answering machine logs, and screen-shots of computerized matter. The scope of potential relevant evidence is so vast, that it can be a subjective and elusive assignment to gather all of “it.” A methodical narrative process is usually the most reliable way to be sure of a thorough and competent result.
Start by deciding on a written or verbal narrative. You need pencil and paper for the first; a willing spouse with good critical listening and thinking skills for the second. Now, either in writing or in an oral presentation, start at the very beginning to narrate your knowledge of the circumstances pertaining to your present licensing problem. A common beginning might be:
1. I was first licensed as a ________ in the year_________.
2. My license history was perfect until __________ when because of ____the licensing agency imposed ________________.
3. My license has been in good standing ever since then, until a year ago when _______ .
After each of the above sentences, you (if writing) or your partner in this exercise should stop and say: “what can you provide to prove that statement?” And you start a list of all of the tangible things that could be used as proof of each of your statements.
In the example above, at the least you would list any records or documents establishing (1) the date and nature of your initial licensing; (2) the date and nature of any previous licensing investigations or discipline; and (3) any records establishing the fact of all events you are offering as relevant to explain any previous discipline or investigations, such as medical records or divorce records. These are the items that will confirm the facts as you have related them.
Work your way, in very small increments, through every single step of your explanatory narrative: what happened, who was involved, who saw or heard or knows about it, what were the results of each action, who said what, who inspected what on what dates, who interviewed you and where and when and what did you say. Skip nothing; when in doubt, include. And at each tiny step forward in your narrative, stop and ask that question --- then add to your running list a description of any tangible record or item that might confirm what you contend. It doesn't matter if the item is not in your possession or control --just note on your potential exhibit list where you think it is.
If any of your items of proof are not portable – a job site, for example, or the premises where some event occurred -- if there is public access or visibility, go take a good photograph. Include in each photo a ruler or an installed and fixed landmark or other “size reference” for all items or objects that are not self-explanatory. Remember that screwdrivers and holes in the ground―and most everything else in the world―don’t show their size in a photo without something to compare and refer to. Have hard copies of all photos printed and also maintain safe electronic storage. Label in detail each photo, both hard copies and computer-stored images: what each shows, who took it, the date it was taken, the present location of any items shown in each photo, and a description of any changes – and the reasons for any changes -- in what is shown in the photo from your recollection, such as trees removed, parking structures constructed, and so forth.
When you have completed “converting” the long version of your statement of what happened into a list of items that collectively demonstrate the accuracy of your statement, you have your List of Potential Exhibits.
This essential task will take considerable time if the facts and circumstances underlying the licensing dispute is complicated or involves multiple events or is based on a long-term investigation by the licensing agency. But it is a critical phase of the hearing preparation process, and must be done -- by your attorney if not by you. That can be expensive, and your attorney knows less about the facts of what has gone before – what has led to the point of the disciplinary case – than you know. A firm commitment to prevailing against the State licensing agency's intention to revoke or suspend your license requires a full and effective effort at producing a reliable and expansive List of Potential Exhibits.
Tune in in a few days for No. 4 of the Top Ten Essential Tasks for Disputing a License Denial or Defending Against Disciplinary Charges Against the Licensee.
For more information about denials of California licenses, or about discipline against a California professional or occupational license, certificate, or credential, visit the Web-site of License Advocates Law Group at http://www.LicenseAdvocates.com or contact any of the partners at License Advocates Law Group at (888)-406-4020. License Advocates Law Group is the only Southern California-based law firm that limits its practice exclusively to the representation of California licensees and license applicants. License Advocates Law Group is also the only license defense law firm with a former California Administrative Law Judge on staff.