Our law firm works with professional licensees on a regular basis. Many of these individuals are independent, hard-working individuals, with usually barely enough time to handle their personal lives, let alone to administer or organize their profession as a going concern. This lack of time is often a direct cause resulting in license discipline.
- The lack of personal time can lead to lives of personal abuse. Whether this is through self-medication, drug abuse, alcohol abuse, or domestic problems, all can result in license discipline.
- The lack of time to administer your business properly can lead to professional abuse. This could be through shoddy labor practices, disorganized records, financial abuses, or just general professional incompetence. Again, all of these can result in license discipline.
As these individuals are already bad with time management, it is not surprising that these same individuals miss critical deadlines to challenge licensing discipline actions. Many put off confronting the problem, subconsciously, while others wait until it is too late to consult with someone knowledgeable about the strict timelines that must be followed. Sometimes, people do not even open the certified letter until the deadline to respond has come-and-gone, in the licensee shrugs their shoulders and just passively waits for the discipline that the licensing agency levies.
Losing the opportunity to challenge license discipline through an administrative hearing is tragic, it is not the end of the case – or the possibility that the licensee can still have his matter heard. The Administrative Procedure Act (APA) anticipated mistaken or erroneous default license discipline scenarios, and thus has given licensees some options after a lost or late request for hearing:
- Petition for Reconsideration. The first option is reconsideration. The APA permits a licensee or license applicant to ask the administrative agency to reconsider its decision before the decision becomes final. The petition for reconsideration can be an opportunity, if the agency allows it, to produce additional evidence that was not available at the administrative hearing. Reconsideration also gives the agency another opportunity to decide the case where the agency feels the outcome was too harsh.
- Monetary Penalty in Lieu of Discipline. This is something to consider when facing license discipline from the Bureau of Real Estate.
- Writ of Mandate. Once an administrative decision has become final, the next step is an appeal to Superior Court, called a writ of administrative mandamus. The writ process allows a Superior Court judge to review the case record and determine if the agency abused its discretion. A Superior Court judge can also stay, or stop, imposing a penalty (such as license revocation) while the writ is pending. The judge can remand a case back to the agency for proceedings in line with the judge's decision. Sometimes the licensing agency will settle a case once the writ is granted, to save time and money, rather than send the case through the administrative discipline process again. The deadline to file a writ of administrative mandamus is generally 30 days after the effective date of the decision.
- Petition for Reinstatement. If a writ was not filed or was unsuccessful, the final option is a petition for reinstatement of a default revoked license. Some health care licensing agencies require a three-year wait before applying for reinstatement, although most agencies permit a petition for reinstatement to be filed after one year. Some agencies decide these petitions by a short hearing in front of their respective Board, but some submit the cases to a full-blown hearing before an administrative law judge at the Office of Administrative Hearings. The agency hearing the petition for reinstatement focuses upon the licensee's evidence rehabilitation, mitigation, and character (i.e. education and personal enrichment activities) after losing a license. The petition for reinstatement is not an opportunity to again fight the lost battle over a license.
So, a valuable license can be saved even after a default decision.