Professional and Occupational Licensing：Standard of Conduct for Administrative License Revocation
【美】Marc H. Monheimer
California Law Review, Vol. 44, No. 2,2007
California has three types of statutes dealing with suspension or revocation of professional and occupational licenses. The statutes variously provide that a license may be revoked for: (1) commission of specific acts which are declared to be unprofessional conduct; (2) conviction of a felony or crime involving moral turpitude;(3) behavior which is grossly immoral or grossly negligent.
Statutes of the first type are, by the nature of the specific acts prohibited, limited to a particular profession; and where a licensee has been prosecuted for a crime involving those acts, acquittal or dismissal is not a bar to a subsequent administrative action to revoke the license for unprofessional conduct. The revocation may be based on the same facts that prompted the unsuccessful criminal prosecution, provided the act itself is declared by statute to be unprofessional conduct. The justification for thus 'doubly jeopardizing' the practitioner is that the revocation action is in the nature of a civil proceeding designed to protect the public. Therefore, the rules for civil rather than criminal trials are applicable.
Although statutes of this first type impose upon the licensee standards of con- duct which relate only to the particular profession, statutes of the second and third type are not so limited.
Those of the second type generally provide that conviction of a felony or crime involving moral turpitude constitutes unprofessional conduct, hence ground for disciplinary action. Statutes of the third type contain omnibus provisions providing that acts of gross immorality or gross negligence (apparently whether criminal or not) are also a basis for discipline.
One might assume that though statutes of the second type would be applicable to most professions (which is the case),o statutes of the third type would be restricted to those professions in which there exists a highly confidential relation between the practitioner and his client (e.g., medicine).' But such is not the case. As the statutes now read, the professions with only limited confidential relations -barbers, dentists, optometrists, pharmacists, professional engineers, funeral directors, embalmers, cosmetologists, clinical laboratory technicians are subject to disciplinary provisions imposing exceptionally high standards; while as to the healing arts where the relation is so highly confidential, the disciplinary provisions are limited to convictions and specific acts of misconduct.
The reason for anomaly in the disciplinary provisions is clear enough. In the occupations later to develop and seek recognition as 'professions,' there were usually no established and respected professional 'ethics' on which regulatory provisions could be predicated. In an effort to promote respect for their callings, men within these 'professions' fostered legislation demanding the highest standards of conduct for their members. However laudable may be the aim of winning recognition and respect, the result has been the creation of a patchwork system of revocation clauses calling for a standard of conduct higher than needed for some professions and less than required for others.
The present provisions are defective in two ways. First, they do not provide the practitioner with any precise, clear-cut standard to which he can conform; second, they do not conform with the basic justification for regulation of professions- public protection.
License revocation is an exceptionally severe penalty. Despite many California decisions holding that revocation proceedings are not penal in nature, it must be conceded as a practical matter that loss of a license is one of the heaviest penalties which can be imposed on a practitioner. The means to secure a livelihood should not be denied where the denial is calculated to effect an aim of any less importance than protection of the public.
License revocation should not be tolerated unless the crime, act, or pattern of conduct of the licensee adversely reflects upon his ability to perform properly the duties of his profession. A statute drafted along the following lines would help to insure such a goal:
The Board may revoke or suspend the license of any person licensed under the pro- visions of this act for:
a. Conviction of a crime which manifests a disability to perform properly the licensees professional (or occupational) duties; or
b. Commission of an act or series of acts which manifests a disability to perform properly the licensees professional (or occupational) duties.
The Board shall make a specific finding as to the manner in which the crime, act, or series of acts manifests such disability, and this finding shall be incorporated in the order suspending or revoking the license.
By such a statute, conduct which demonstrates an inability to carry out the duties of the profession would be made the ground for disciplinary action. The standard of conduct imposed in each case would be linked to the profession, but application of the standard would vary in that the licensees conduct would be measured against the risk placed upon the public by permitting one who exhibits such behavior to continue in practice.
The licensees conduct would still be judged by a board composed of members of the same profession, who presumably are qualified to assess the risk to the public. The wording of the proposed statute is vague, but the practitioner would be guided by a reasonable test for relating conduct to professional performance. The value judgment required by such words as 'grossly immoral' and 'grossly negligent' would be eliminated. Persons unfamiliar with California professional standards would be able to acquire more useful knowledge of them from a reading of the s
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