Sunday, January 23, 2011

License Denial or Discipline? No. 4 of the Top Ten Essential Tasks to Do Now: Prepare Your Character Evidence

This post discusses Task No. 4 of the Top Ten Essential Tasks: Prepare Your Character Evidence.
After decades of practice in the field of administrative law, the partners of License Advocates Law Group LLP have seen, time after time, that every occupational and professional licensing case can be strengthened by some very straightforward actions by the licensee or applicant even after the initial denial of a license or after disciplinary charges have been brought by the State. Over the next weeks, this blog will identify, explain and discuss the Top Ten Essential Tasks for Appealing a License Denial or Defending Disciplinary Charges Against the Licensee.
Prior installments of The Top 10 Essential Tasks for license applicants and licensees facing discipline are available in the archive of our blog. The first all-important installment of this series, Task No. 1, is available in the August Archive here. Task No. 2, also in the August Archive, is here. Task No. 3 is set forth in the September Archive here.
Most licensees and license applicants who undertake a challenge of the denial of a license, or initiate a defense against a licensing agency’s notice of intent to revoke an existing license, have an intuitive sense that their part of the license-dispute process involves making a persuasive showing of good character, competence, and integrity. But what most don’t realize is that the laws of the State of California specify exactly what kind of evidence is relevant and material for this purpose. Even more important and less understood is the fact that California law requires that the State licensing agency give full consideration to this evidence. This is a vitally important right, one that can have a powerful effect on the outcome of the administrative law proceeding that determines the result of a licensing case.
In a typical criminal trial with a jury, the lawyer for the accused might offer into evidence character references and biographical information that is intended to cause the judge and jury to see the defendant as a “regular” person, one just like them but for some difficult circumstances. But the advocate in that situation is, necessarily, guessing and using his or her own value system to predict the kind of information that may be persuasive for his or her purpose.
The task in administrative law is much more straight-forward, and the results are more predictable because the law spells out exactly what evidence is relevant and persuasive on character, fitness and “moral” issues, and, critically, compels the licensing agency and the administrative law judge to give weight to that evidence. So, for example, if the licensee or license applicant offers into evidence admissible and credible character references from half a dozen persons, and if the licensing agency has no competing or rebutting evidence on the subject of the licensee’s or applicant’s character to overcome that evidence of good character, then the fact of good character is established by operation of law and that evidence of good character must be a factor in the ultimate decision.
Skilled licensing attorneys can make compelling and substantial showings of their clients’ present good character with even a modest quantum of affirmative evidence.  So it is essential, well in advance of the administrative hearing, to identify, collect, organize, and prepare for evidentiary presentation the mitigation and rehabilitation evidence that will be introduced to support the licensee or license applicant at the hearing. Much of this work can and should be done by the client — the licensee or license applicant — not only to reduce the costs for attorney time, but because the affected person is closest to the ground in these matters — has a better grasp of what may be available and useful than any “outsider” could possibly bring to bear — and will inevitably produce a stronger and broader package.
The Task begins with identifying the kinds of evidence that should be collected for the mitigation/rehabilitation evidence package. Every licensing agency in California, as required by law, has adopted written evidentiary standards for mitigation and rehabilitation. Most of them are operationally and functionally identical, and almost all of them are found in Title 16 of the California Code of Regulations (formerly the California Administrative Code). Many of the agencies’ mitigation and rehabilitation criteria are also set forth in the Business & Professions Code. (See, as examples: Department of Real Estate at CCR, title 10, section 2911; Department of Motor Vehicles at CCR, title 13, section 440.04.)
All of the State agencies’ criteria for rehabilitation include (1) the nature and severity of the act(s) or crime(s) on which the denial or proposed discipline is based (and whether the acts involved violence or a threat of violence to others); (2) circumstances of the crime or act that suggest that repetition is unlikely; (3) evidence of any misconduct committed subsequent to the act for which discipline or license denial is at issue; (4) the applicant’s or licensee’s total criminal record; (5) activities since the crime or act, such as participation in therapy or education, that may indicate changed behavior; (6) the amount of time that has passed since the act(s) or crime(s) at issue; (7) the extent to which the applicant or licensee has complied with any terms of parole, probation, restitution, or any other sanctions lawfully imposed for the offense on which the license denial or discipline is based; (8) evidence of honesty and truthfulness as revealed in the application for license and interviews during the licensing agency's investigation; and (9) character references.
All of these factors, and additional similar factors not set out here, are sufficiently elastic and comprehensive as to enable all credible license applicants and licensees a meaningful opportunity to make a strong and wide-ranging showing of rehabilitation and current good character. Some of these factors involve formal legal process to secure critical orders; those measures will be discussed and explained in the next post, Task No. 5 of the Top Ten Essential Tasks: Prepare Your Rehabilitation Evidence. But where there is not sufficient or satisfactory evidence of good character, there is ample time, in between the date of demand for hearing and the time when that hearing will occur, to build compelling and persuasive character evidence and to materially improve the evidence to be introduced at the hearing before the administrative law judge. 
So, in those critical months before the hearing, if the evidence of good character and fitness for licensing is lacking, immediately implement these straightforward measures of self-help:
1.      Find a job. Keep the job. Do well at the job, particularly with respect to attendance, and ask the supervisor for a brief written attestation to your attendance, attitude, and quality of work.
2.      Renew or improve family connections. Get current on child support and child visitation.
3.      Retire or reduce overdue debts of any significance.
4.      Complete any and all remaining terms of probation or parole, including restitution payments.
5.      Join a church or synagogue; join the choir; attend and participate in activities beyond formal weekly services.
6.      Get counseling; stay in counseling; work the program. Ask the counselor for a brief written attestation to attendance and participation. Note: if there is any hint of drug or alcohol abuse in the facts on which the license was denied or is subject to discipline, participation in a formal treatment program (not necessarily in-patient) is a necessity. So is completion of the program as measured by the standards of the program. Make a careful choice of program; opting in and out of different programs is counter-productive evidence of rehabilitation.
7.      Pursue additional education or professional or vocational training. Astute choices may secure credit that will later satisfy continuing education requirements for the license. But in all events, take a course or even two. In-person counts much more heavily than on-line course-work.
8.      Break ties with, and stay away from, former associates with criminal histories or drug or alcohol connections.
9.      Ask for letters of personal knowledge pertaining to character and reputation for integrity, honesty and truthfulness from ALL friends and relatives and from any present or former employers, co-workers, neighbors, customers or clients, pastors or spiritual counselors, psychotherapists, probation and parole officers — anyone who has a basis for personal knowledge. The absence of any such letters is a conspicuous omission from the necessary and expected evidence at the administrative hearing. Conversely, there cannot be too much evidence of personal attestations of good character. Each letter need be no more than a paragraph or two — a page at most; each one will count heavily. It can be hard to summon one’s pride and ask for this kind of assistance. Do it anyway. 
10.   Pick at least two ways to be involved in a giving and contributive way with the larger community. Choose from any and all of the universe of good deeds. Volunteer at shelters (homeless, animal, domestic violence, children); coach a kids’ sports team; walk for a charity’s fund-raising effort. The community's needs for charitable and civic contributions are, sadly, endless. And no matter how busy, tired, broke, depressed, pre-occupied, stressed-out or otherwise needy the applicant or licensee feels at this time, there is no getting around the fact that charitable and civic activities count highly in the assessment of character by the licensing agency and by the administrative law judge. A serious challenge to the State’s objections to the applicant or licensee will include a showing of active and enthusiastic participation in two charitable or civic activities, evidenced by a short written attestation from the local coordinator of each.
Critical Task No. 4, Prepare Your Character Evidence, is often an outcome-determinative step in the license process. Compiling such evidence requires perseverance, dedication, imagination, and the affection and support of others. It can be expensive, burdensome, time-consuming, and emotionally uncomfortable. It is up to the denied applicant or the licensee at risk of losing the license to determine whether the occupational or professional license will be worth the effort. But if the applicant or licensee is going to go as far in the process as to proceed to an evidentiary hearing, if there is a determination to put the State of California to its proof in its initial decision to rule out licensed work, then it only makes sense to go the whole distance.  Make good on the time and effort and money already invested in training and qualifications. For those who are in it to win it, the measures in Critical Task No. 4, Prepare Your Character Evidence, are essential.

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