I am often asked about the burden of proof that must be met by the state Department of Health (DOH) in professional licensing disciplinary cases. This could be a complaint against a physician, dentists, mental health counselor, nurse, psychologist, pharmacist or anyone else. It also includes, for example, engineers, general contractors, school teachers, architects, cosmetologists, or any other professional holding a professional license in Florida. However, since we routinely represent health professionals, I will concentrate on those licenses by the state DOH in this blog.
What few people (even attorneys) know is that cases which involve discipline against a professional’s license are treated as “punitive” or “penal” cases. This means the standards applied to them, at least in Florida, are the same that are applied to criminal cases.
Therefore, if the statute that is being charged is unclear or ambiguous, the courts apply a “strict scrutiny” standard. If the language of the statute does not clearly prohibit the acts being charged or is unclear about being covered by the statute, then there should be a ruling in favor of the one charged.
Additionally, rights that apply in criminal cases, such as the right to have an attorney and the right to not be compelled to be a witness against oneself found in the Fifth Amendment of the U.S. Constitution, also apply to administrative cases involving discipline against a license holder.
The state has a higher burden of proof in an administrative licensure case, as well. The burden of proof that applies in a civil case, “preponderance of the evidence” (also described as the greater weight of the evidence, the preponderance of the evidence or more than fifty percent), does not apply in administrative discipline cases. Instead a higher burden, “clear and convincing evidence” applies. Therefore, if the evidence supports the license holder’s position, just as much as it supports the state’s case, the state loses.
How Constitutional Rights Are Involved.
The Fifth Amendment of the United States Constitution provides individuals protection against self-incrimination, stating:
No person . . . shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law. . . .
Note that in Florida, as in most states, a professional license is considered to be a property right which cannot be taken by the state without due process of law.
Article I, Section 9 of the Constitution of Florida also provides similar protections stating:
No person shall be deprived of life, liberty or property without due process of law . . . or be compelled in any criminal matter to be a witness against oneself.
In addition, case law in Florida has upheld as a protected right the individual’s ability to practice a profession of choice if otherwise so qualified. To take away this right requires due process of law and reviewing courts will apply a strict scrutiny standard.
Under some states’ constitutions or state statutes there is a right to work or a right to practice the profession of one’s choice; this further lends credibility to an argument that agency actions which take away this substantial right should require a greater burden than that required in a mere civil case (i.e., preponderance of the evidence”). However, even without such a provision in the state constitution, a professional license (or the right to practice a profession) is a substantial right and to take it away should require a higher burden of proof (e.g., clear and convincing).
Supreme Court Gives More Protection In Cases That Are “Penal.”
The law is settled through U.S. Supreme Court cases that “penal statutes are to be construed strictly, Commissioner v. Acker, 361.U.S. 87, 80 S. Ct. 144, 4. L. Ed. 2d 127 (1959), Fed’l Comm. Comm’n v. Am. Broadcasting Co., 347 U.S. 284, 296. One “is not to be subjected to a penalty unless the words of the statute plainly impose it,” Keppel v. Tiffin Savings Bank, 197 U.S. 356, 362. See, e.g., Tiffany v. National Bank of Missouri, 18 Wall. 409, 410; Elliott v. RR Co., 99 U.S. 573, 576.
Penal statutes must be construed narrowly and are interpreted against the state. Any part or term that is vague will not be enforced or will be stricken. Warren v. State, 16 Fla. L. Week 1346 (Fla. 1991). Accord, Riley v. Georgia, 219 Ga. 345, 133 S.E. 2d 367 (Ga. 1963); State v. Morrison, 25 N.J. Super. 534, 96 A. 2d 723 (Essex Cty. Ct., N.J., 1953); U.S. v. Ortiz, 24 M.J. 164 (CMA 1987), at 168.
Florida Courts Apply Criminal Law Rights and Protections to Cases Involving Administrative Penalties.
The Florida Supreme Court has affirmatively extended the proscription against self-incrimination to any administrative proceeding of a “penal” character. This could be one in which the state seeks revocation or suspension of a license or one in which the state seeks a fine on a licensee. Kozerowitz v. Fla. Real Estate Comm’n, 289 So. 2d 391 (Fla. 1974).
Any administrative proceeding in which the state seeks to inflict a penalty against the license or the licensee would invoke these rights. An action to revoke a professional license is penal. So, too, is an action which results in the loss of income or a fine.
More to Come.
Be sure to check our blog regularly to learn more on the burden of proof in administrative cases involving discipline of professional licenses. Part two of this blog series will be posted soon.
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About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.
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