California License Law Blog : California License Lawyer & Attorney : Fredrick M. Ray Law Firm : Professional Licensing Revocation & Suspension : CA License Law Blog

Our law firm has saved the licenses of numerous nurses, even in the face of multiple criminal convictions or allegations of gross negligence.  However, we are often asked, “how long will my disciplinary documents will be on the internet?”  Clients also wonder how much of their case will be able to be seen, such as whether or not the terms of a settlement or the result of a hearing will be searchable under their license record.

Disciplinary decisions issued by the Office of Administrative Hearings are considered public record, and are displayed by the Board of Registered Nursing (BRN) on their website once they are final.  However, the length of time a decision stays on the internet depends on when the action became final and on the seriousness of the disciplinary charge against an RN.

For example, for final decisions upholding a citation or a fine, or for decisions resulting in a public reprimand against a licensee, the BRN displays those documents for three (3) years from the date of completion of the Board’s action.  For decisions resulting in a probationary license, the documents stay on the internet for ten (10) years from the date of completion of the Board’s action.  Certain decisions, such as those resulting in license surrender or revocation, or citations against an unlicensed individual, stay on the internet indefinitely.

However, figuring out the “date of completion of the Board’s action” can be difficult.  For disciplinary decisions issued on or after January 1, 2012, the “date of completion” is considered to be the effective date of the decision; in other words, the date on which the Board’s action became final.  For disciplinary decisions issued anytime before January 1, 2012, the three- or ten-year period of internet publication doesn’t begin until January 1, 2012.  This can lead to an extended period of retention of discipline documents for nurses disciplined before 2012.  For example, an RN who received a probationary decision in 2005 would have his or her decision remain on the internet for ten years, beginning on January 1, 2012. 

The Board's recently enacted policy outlined above to limit the retention of records on the internet for probation and reprimand outcomes give those nurses additional future relief from the collateral effects of license discipline.  Recognizing the collateral effects of license discipline is another way that our expertise in professional license law delivers superior results for our clients.

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Since the passage of the SAFE Act in 2008 and the subsequently enacted legislation in California, real estate professionals and employees of California finance lenders who want to originate home loans in California must apply for a Mortgage Loan Originator (MLO) endorsement through the Nationwide Mortgage Licensing System & Registry (NMLS).

For licensees and applicants with felony convictions in their background, this requirement can delay the endorsement or even result in a lifetime bar from licensure.  Section 10166.05 of the California Business and Professions Code requires applicants to disclose all felony convictions to the Department of Real Estate on their MLO endorsement application.  Under section (b)(1), the applicant cannot be convicted of a felony during the seven-year period preceding the date of application.  This applies to all felonies, regardless of type of circumstance.  As this is an absolute bar, the Department of Real Estate or Department of Corporations must deny an MLO endorsement to any applicant with a felony conviction in the seven years before the date of application.

Section (b)(2) further disqualifies those applicants who have, at any time, committed a felony involving “fraud, dishonesty, a breach of trust, or money laundering.”  The distinction between which felonies “involve” these four categories and which do not is critical; if the Department can show that a particular felony committed by an applicant involves fraud or dishonesty, that applicant can never get an MLO certificate.  On the other hand, if an applicant can successfully show that his or her conviction did not involve one of the four categories within section (b)(2), the applicant can, with proper disclosures and a showing of rehabilitation, receive the MLO certificate and originate home loans.

Certain felonies are easier to classify than others.  A felony conviction for embezzlement, credit card fraud, wire fraud, or money laundering would fall within the literal definition of section (b)(2).  Most other felonies, at first glance, might not appear to fall within the definition of section (b)(2).  For example, a conviction for murder, although a very serious offense in its own right, would not seem to be a conviction involving “dishonesty” or “fraud.”  However, the Department of Real Estate has taken the position that whether or not a felony conviction “involves” dishonesty depends on the facts and circumstances surrounding the conviction.  A murder conviction, therefore, might involve dishonesty if it was accomplished by dishonest means or while in the process of a dishonest act.

To illustrate how this distinction can have serious consequences for a potential licensee, imagine a first-time applicant to the Department of Real Estate who, decades ago, was convicted of a serious crime, such as a murder.  Imagine that this murder was committed while the applicant was in the process of committing a burglary, such as a “robbery-gone-wrong” or a burglar was surprised by the unexpected return of the occupant of the home.  Even if the applicant was never charged with burglary or robbery, the Department could still argue that the murder “involved” dishonesty, and attempt to forever exclude the applicant from originating home loans.

Of course, the crime described in the example above is a serious crime, and the applicant would likely have been severely punished.  However, even if this applicant served a very lengthy prison sentence, even if he or she fully complied with the terms of his parole and probation, and even if he or she successfully rehabilitated himself, paid restitution, and restored his reputation within the community, he or she can never restore his or her relationship with the Department if the felony is deemed to have “involved” dishonesty or fraud.

It is also possible to get even felony convictions reduced from felonies to misdemeanors under California Penal Code section 17(b) if the felony is a "wobbler" (can be a felony or misdemeanor) and was not punished by a term served in state prison.  Likewise, a felony conviction dismissed through a diversion program or some other court alternative sentencing program might not be a felony conviction for licensing purposes.

If you are a licensee or an applicant to the Department of Real Estate or Department of Corporations with a felony conviction in your background, it is especially important to secure legal representation if you plan to apply for an MLO endorsement.  Thorough legal research is necessary to determine whether or not your felony could be categorized as “dishonest” within the meaning of California law, and the results can have lifelong, irreversible effects.  We strongly recommend also that you explore any and all avenues for reduction of a felony conviction before making the nationwide disclosure required by the NMLS MLO endorsement application system. 

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Today, February 14, 2012, Governor Brown signed SB 98, reinstating the California Board of Registered Nursing, which had been dissolved by an automatic sunset provision on December 31, 2011.  The Board has been authorized to operate until 2016.

Our office had observed an apparent slowdown in the enforcement filings and hearing settings while Board enforcement activity has been in legal limbo.  Presumably Board enforcement will now resume normal litigation activity.  Since the Board has 100 days to adopt proposed license discipline decisions, and there is no time limitation for license denial decisions, and the Board did not exist for only about 45 days, few if any cases should have jurisdictional problems. 

We have observed a trend over the last year of more aggressive action by the Board in terms of disciplining or denying licenses for less serious drunk driving convictions and seeking discipline for dismissed criminal charges.  There seems, however, to be no popular concern that the Board is failing in its job to zealously protect the public.  With this latest episode finally over, which had to do more with public pensions than questioning the need for this Board, perhaps the Board can moderate its enforcement push to protect the public in a manner that is just and fair for its licensees and license applicants.

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The California Department of Insurance wields arguably the most powerful licensing law in California, California Insurance Code section 1669.  Section 1669, which applies to applicants but also to existing insurance broker licenses through a related statute, empowers the Commissioner to summarily deny or summarily revoke (without a hearing) an insurance broker license for a felony conviction or any Insurance Code misdemeanor conviction, or if the applicant or licensee has had any occupational license (including an insurance broker license) denied, revoked or suspended within the prior five years.

The Department has a practice to make its Order of Summary Denial or Order of Summary Revocation effective immediately or after a short delay, limiting the amount of time a broker or applicant has to weigh their legal options.  There are three options in reaction to such an Order: 1) filing a petition for reconsideration, if it can be done before the effective date of the Order, 2) bringing a petition for writ of administrative mandamus in Superior Court usually within 30 days of the effective date of the Order, or 3) reapplying for a denied or lost insurance producer's license at a future date. 

The difficulty with this statute is that once someone has let an Order of Summary Denial or Order of Summary Revocation become final, that order in and of itself is cause for future orders of summary denial in response to attempts to get the license back, invoking the previously mentioned five year bar from the date of the latest Order of Summary Denial.  The cycle of applications and responsive Summary Denial orders can be broken by counsel, but this usually requires a prepared showing of rehabilitation either with the application disclosure, or in seeking reconsideration.

Our firm has demonstrated success in securing licensing success even in the face of felony convictions, other license revocations, and long strings of license denials.  We can break the cycle with proper planning and timely advocacy.

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On January 1, 2012, the California Board of Registered Nursing was dissolved by a sunset provision in its authorizing statute.  California licensing boards, by law, must be renewed by legislation periodically.  The California Board of Registered Nursing, or BRN, was to expire on January 1, 2012, unless new legislation was enacted, which is typically a routine matter.  In October 2011, Governor Brown refused to sign Senate Bill 538, which would have extended the authority of the BRN for another four years.  He did this because there were provisions in the bill to authorize the BRN to have its own sworn peace officers as investigators, which would impose further financial burdens on the state by expanding pension liabilities.  The BRN currently employs Department of Consumer Affairs (DCA) investigators to handle its investigations.

The last time this happened prominently, in 2008, the Dental Board and Vocational Nursing Board, among others, were sunset.  However, the legislature passed emergency legislation to continue those boards as bureaus (with their boards converted to advisory committees) until they could be reauthorized as boards.  No such legislation has been enacted to continue the Board of Registered Nursing as a bureau.

In order to continue its licensing and enforcement functions, the Board of Registered Nursing has renamed itself the Registered Nursing Program within the Department of Consumer Affairs.  To attempt to solve the sunset problem, the BRN authorized an Interagency Agreement between BRN and DCA before the sunset date to transfer the powers of the BRN to the DCA, which has in turn delegated those powers to the executive officer of the Registered Nursing Program acting on behalf of the DCA.  Interestingly, the Interagency Agreement cites no statutes, regulations or case law authorizing this action between the two agencies.

There exists a genuine issue as to whether the newly constituted Registered Nursing Program acts with any lawful authority.  It appears that in the coming weeks or months, the legislature should act upon new legislation to reauthorize the BRN without its own investigators.  However, troubling jurisdictional questions will cloud all nursing discipline orders issued and other such actions taken in this interim period.  Since having come under scrutiny in recent years for being perceived as lax in disciplining nurses, the BRN, having filed thousands of discipline cases, seems to have too many cases in its pipeline to halt license discipline litigation during this period of uncertainty.  Under what jurisdictional authority the "program" will act seems to have been left to license lawyers, administrative law judges and perhaps ultimately to the courts to sort out.   

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The California Medical Board mandates the disclosure of felony charges (after an information has been filed in criminal court) and all misdemeanor convictions.  Also, through the California Department of Justice or the criminal courts, the Board sometimes is notified of a pending or completed criminal case.  Physicians also must answer background change questions (such as, have you been convicted of a crime?) on their license renewal forms.  Through one of these channels, the Medical Board typically becomes aware of a pending or completed criminal case that can trigger discipline.

Make Good Decisions from the Start of the Problem

To exercise effective damage control from the early days of the criminal matter, I strongly recommend having a license law attorney on one's legal team.  A license law attorney brings a long-term perspective of potential future license consequences that can educate the criminal defense attorney and his client.  One of the biggest mistakes that physicians make is to fail to appreciate the serious fallout and lasting career damage that can result from a criminal investigation or prosecution.

Documenting and Preserving Mitigating Information

One often missed step, important for successful handling of potential license problems, is to document and preserve mitigation evidence.  Mitigation evidence is evidence that tends to explain or provide a context for the alleged wrongful act to cast it in a more sympathetic, reasonable and understandable light.  Examples of mitigation evidence are a tragic life event, something that causes extreme stress such as the death of a parent or child, a bitter divorce, a severe illness, or extreme financial hardship.  Without important contextual information, the Board might assume that the criminal matter gives telling insight into the personal flaws of the Board's licensee from which the Board can generalize and make broader assumptions.

Criminal Defense with License Consequences in Mind

Criminal defense lawyers often focus upon the final conviction charge (case outcome) in attempting to minimize adverse effects on a physician's license.  This emphasis is too narrow and usually  misplaced.  If there is any conviction of a felony or misdemeanor, the Board can look through the conviction to the underlying facts.  Therefore the contents of the investigative reports, the rulings of the judge on issues such as bail or protective orders, the length and conditions of probation, and negotiated post-conviction relief, are all aspects of the case which have an impact upon whether the Board will seek discipline against a license, and what the disciplinary case outcome might be.

Early and Proactive Rehabilitative Efforts

Another often missed opportunity is the chance to make early and proactive rehabilitative efforts.  If the Board decides to discipline a physician's license, once a conviction is proven at hearing, the burden shifts to the licensee to show rehabilitation to enable the Board or administrative law judge to decide what, if any, discipline is appropriate.  Rehabilitation evidence is critical because the Board justifies discipline based upon criminal convictions by reasoning that criminal convictions show a character flaw, a lack of judgment, or impairment that endangers the public, depending upon the facts of the case.  To the degree that a physician can show the issues in the criminal case have been addressed or resolved by rehabilitative efforts, the justification for discipline may be reduced or removed, resulting in a better discipline case outcome, or perhaps even a case dismissal.

What Types of Cases Trigger Discipline

Unremarkable misdemeanor convictions that do not point to troubling concerns about the licensee are the most likely to not result in license discipline.  These would include low blood alcohol drunk driving cases, disturbing the peace based on loud noise or a fight between adults, some types of disorderly conduct, and misdemeanor Vehicle Code cases.  Criminal cases that are likely to trigger discipline are ones that point to drug or alcohol abuse, have facts that show or hint at mental illness, any type of theft or fraud, any violent crime, and any sex crime, to name some major categories.  Sexual offenses that result in conviction and mandated sex offender registration can trigger immediate license revocation.  To make a reasonable assessment of the potential Board reaction to a particular factual scenario, it is best to hire a license defense law firm to review the matter.  We offer consultations to review criminal matters to assess them for likely licensing outcomes, to identify mitigation evidence early and to build a rehabilitation case. 

Be Honest

It is crucial that a physician never lie to the Medical Board about a criminal case.  Direct dishonesty is typically more damaging than the criminal case itself.  I strongly recommend that the physician have an attorney review all their communications with the Board before they are sent, if for no other reason than to ensure that the information provided is accurate and that the exchanges are well documented.  The early involvement of a license defense attorney can ensure an honest, positive and consistent message that reassures the Medical Board and acts to prevent or minimize license discipline.

Medical Students, Medical Residents and Physician License Applicants

These principles apply to anyone applying to medical school, attending medical school, working in a medical residency, applying for a PTAL (foreign medical school graduate's residency permit) or seeking a California physician's license.  The earlier the issue is addressed, the better.  If the background problem is so serious that it will jeopardize the physician's licensing process, the problem must be identified early so that the individual can consider options and plan for overcoming impediments to obtaining a full clear physician's license.

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In California, the Office of Administrative Hearings (OAH) hears all professional license discipline or denial cases, except for liquor license and attorney discipline hearings.  The same administrative court hears cases for such varied occupations as physicians, architects, dentists, insurance brokers and engineers.  A panel of about 75 administrative law judges (ALJs), working our of four OAH offices in Sacramento, Oakland, Los Angeles and San Diego, hears thousands of cases each year.  Administrative licensing agencies such as the Medical Board of California, the Dental Board of California and the Department of Insurance delegate the job of hearing disciplinary hearings to these judges, while retaining final decision-making authority.   

When a licensing agency issues an accusation (the start of a formal disciplinary case) or a statement of issues (a formal license denial case), and the licensee has requested a hearing, the case is typically filed with OAH for adjudication.  Once OAH receives the filing, it assumes jurisdiction over the case which continues until the case is settled, the accusation is withdrawn, or a panel judge issues a proposed decision.   The presiding judge of a particular OAH office, or an ALJ acting temporarily on her or his behalf, addresses any logistics issues that arise.  Before the hearing date itself (the trial to decide the case), a hearing judge is assigned.  However, the assigned judge can be changed even shortly before the start of the hearing.

A hearing can be held at one of the courtrooms available at one of OAH's offices, or sometimes in a remote location (typically a borrowed conference room in a state or federal building) for the convenience of the parties or witnesses.  Occasionally, a party or witness, complying with applicable rules and with the agreement of the parties, appears by telephone.  I have seen an OAH hearing held in a state mental hospital, a federal office building, and even at a prison.  As long as a quiet room with adequate seating and tables is available and a court reporter can get to the location, it can be used for an OAH hearing.

OAH is different than any other court in that OAH is a state agency that other state agencies hire to hear their cases.  ALJs produce "proposed decisions" that can be adopted, changed or rejected then decided differently by licensing agencies.  Although a very high percentage of proposed decisions are adopted as written, occasionally a decision is rewritten or even decided differently by the agency.  Therefore, for ALJs to do their job, they must be "in tune" with the agencies for whom they decide cases.  Licensing agencies issue disciplinary guidelines to guide ALJs to decide cases consistently on common fact patterns, however, in reality most disciplinary guidelines are not specific enough to provide clear guidance.  It is definitely an art for a judge to intuit the wishes of a distant licensing board or agency head to reach a decision consistent with the agency's own thinking.

Having seen hundreds of ALJ decisions adopted or rejected by agencies, patterns tend to form.  For agencies particularly that have a high volume of cases or an elected agency head, a higher percentage of decisions seem to be adopted.  If many decisions are rejected, the burden of deciding those cases upon the administrative agency would be great.  Agencies with relatively few disciplinary cases can review them with greater care and more easily reject or modify those decisions.  Also, in the case of some agencies, the agency may prefer to leave the burden of the decision upon the ALJ, who is not subject to political pressure or public scrutiny, rather than to alter the decision to have a greater hand in the decision.  

For self-represented litigants (individuals without an attorney), and inexperienced attorneys as well, a common mistake is to think that OAH proceedings are just informal meetings.  Indeed, these are trials that require pre-planning and organization, legal research, questioning of witnesses, objections to evidence, and arguments.  The primary "law firm" that prosecutes cases at OAH, the California Department of Justice, has hundreds of well trained Deputy Attorneys General.

OAH decisions are often published on the internet by the particular licensing agency for whom cases have been heard.  I strongly advise unrepresented litigants to search out those decisions to review them before deciding to proceed without an attorney.  It is not uncommon that administrative decisions are 10, 15, 20 pages or more, discussing a range of factual and legal issues.  Reviewing these decisions, the complexity of these administrative proceedings becomes apparent.

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In 2010, all 50 states were required to implement the SAFE Act, with a compliance deadline of December 31, 2010.  With the passing of this deadline, individuals acting as Mortgage Loan Originators who are either California Department of Real Estate (DRE) licensed real estate brokers or salespeople, or are employed by a lender licensed by the California Department of Corporations, must complete a 20 hour approved course for the initial application, 8 hours of continuing education for renewal, pass the SAFE MLO test, and undergo a background check.  Applicants begin by completing the extensive Nationwide Mortgage Licensing System, or NMLS, application.  For anyone coming from a broker-dealer background, this application will look familiar, as it is the equivalent of FINRA's form U-4 or U4.   For individuals who are applying to be mortgage loan originators, it is called the MU4 or MU-4.

For those who have passed the coursework and test, challenges may arise in background checks.  In addition to a criminal record background check, the SAFE Act requires that all applicants permit their credit to be checked as well.  Regulators will be looking for bankruptcies, unsatisfied liens, judgments, and other evidence of prior financial mismanagement.  Currently, these cases are reaching the legal departments of the DRE and DOC, and may result in the first litigated administrative MLO endorsement cases.

The SAFE Act contains certain prohibitions for issuance of the endorsement.  If an applicant has been ever convicted of a felony involving fraud, dishonesty, breach of trust, or money laundering, they cannot get an MLO endorsement.  Also, the SAFE Act bars issuance of an MLO endorsement if someone has been convicted of any felony within the prior seven years.  Apparently, individuals who have criminal records, but are not barred from issuance of the MLO endorsement by these rules, will be evaluated on a case-by-case basis, just as they are for any state occupational licenses. 

Also, the SAFE Act requires applicants to submit to credit checks to determine if an applicant has demonstrated "financial responsibility, character, and general fitness such as to command the confidence of the community and to warrant a determination that applicants will operate honestly, fairly, and effectively".  So how bad must your credit be to run afoul of the SAFE Act?  No one will exactly know until these cases are litigated.  It seems likely that if someone's credit is bad enough, the licensing agency will want to see an explanation of the misfortune that occurred.  Clearly, the person whose credit was trashed due to medical bills will do better than a compulsive gambler.  Also, credit can be cleaned up.  NMLS websites actively encourage applicants to check their credit first and clean up their credit reports before applying.  

Review of credit reports by state agencies to make licensing decisions is a new, and uncomfortable area.  The poor credit criteria draws a correlation between financial mismanagement and dishonesty that is a difficult analogy.  My suspicion is that absent unsatisfied judgments or liens that cast an applicant in an appalling light, this criteria alone, without some prior criminal misconduct, will be a difficult standard to apply to deny the endorsement.

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For about 70 years, the California Department of Justice tracked prescriptions of narcotic medications as a means to detect prescription drug abuse.  In 2008, then-Attorney General Jerry Brown set out to modernize the system, which came to be known as CURES, or Controlled Substance Utilization Review and Evaluation System, so that instead of calling or faxing in information requests, physicians and pharmacists could log in and check prescription histories to detect diversion of narcotic drugs through filled prescriptions.

As the CURES system has been modernized, it is also become a widely used tool for the detection of "doctor shopping," excessive prescribing and other strategies whereby both patients abuse prescription drugs and physicians game the system to essentially act as drug dealers from their medical practice.  The result of the modernization of the CURES system is apparent in a growing number of high profile cases involving physicians criminally prosecuted and disciplined for excessive prescribing of narcotic medications to drug abusing individuals.  CURES has become a law enforcement tool for the Medical Board and police alike to both detect and substantiate perceived drug dealing involving medical practices and pharmacies.

Physicians must therefore be mindful of patients who return for multiple refills of narcotic medications.  In these cases, a check of the CURES database through the Department of Justice can detect doctor shopping behavior by a patient.  Also, physicians should be aware that excessive prescribing of dangerous drugs outside of practice norms can raise a red flag resulting in a Medical Board investigation and more dire consequences.

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