Florida Professional License Defense: Investigations and Administrative Hearings
In Florida, after a complaint is made against a licensee to the Department of Business and Professional Regulation, or to one of the regulatory boards it oversees, it may be forwarded to a Department analyst who is expert in that particular field, or to the appropriate board which will determine if there is probable cause to pursue the matter further. If it is determined that the complaint has merit, it will assigned to an investigator. The investigator may be from the Department or from a contracted law firm. If an investigation is undertaken, all information regarding the complaint will remain confidential and the Department will furnish to the subject, and the subject’s lawyer, a copy of the complaint that resulted in the initiation of the investigation.
The Investigation Process
During the investigation process, the subject will be asked to respond to the complaint and tender all documents related to the matter. If you are a professional licensee, you should not attempt to represent yourself during an investigation, but should hire an experienced and knowledgeable attorney who can help guide you through the process. This may include ensuring that you do not inadvertently incriminate yourself or take a position that later becomes part of the investigative record and which might affect the availability of defenses during the course of any formal action taken by the Department.
At this point in the process, the complaint may be dismissed, or if the investigator determines that the complaint does have merit, it will be assigned to a prosecuting attorney from the State’s Office of the General Counsel (OGC) (or, in some cases, a contracted law firm). The OGC does not represent individual complainants, the subjects of complaints, or any other interests, other than those of the people of the state of Florida.
However, according to the Department of Business and Professional Regulation’s website, the
“OGC has, and exercises, prosecutorial discretion. Prosecutorial discretion includes, among other things: weighing the strength of the evidence which would support a violation against the Department’s applicable burden of proof; the motives and biases of the complainant; the motives and biases of the subject; the credibility of each witness; the timeliness or staleness of the complaint; the harm, if any, caused to others by the alleged violation; the subject’s prior disciplinary history; and a costs-benefits analysis of prosecuting a case through to a final order.”
If the prosecuting attorney determines that the case should go forward, it will be assigned to an Administrative Law Judge from the Department of State’s Division of Administrative Hearings. Administrative law is different than civil or criminal law, in that is provides for different standards of proof and a more restricted range of options and remedies than are available in civil or criminal proceedings. It is also important to understand that the Florida legislature limits the range of administrative discipline that the Department may impose on licensees who violate their practice acts. The prosecuting attorney from the OGC, for example, cannot seek to award monetary damages on behalf of a victim or to cause a licensee to be sentenced to prison.
However, if the case does go forward it will proceed as a normal court action – witnesses can be called and cross-examined and evidence will be introduced. No licensee who appears before an Administrative Law Judge, sometimes referred to as a Hearing Officer, should attend without competent legal counsel by his or her side. Because there is no jury, the final decision of the Hearing Officer will go to the licensee’s professional board, if there is one, or to the Secretary of the Department, if no board exists.
In almost all cases, the Hearing Officer’s recommendations will be accepted and appropriate actions will be taken against the licensee who has been the subject of an adjudicated complaint. Any proceeding for the purpose of a license suspension or restriction must be conducted by the Secretary of the Department of Business and Professional Regulation who will issue the final summary order.