CALIFORNIA OCCUPATIONAL LICENSING LAW: Beware the “Gift” of License Probation In Lieu of Revocation
“License probation" often seems like a safe harbor – an acceptable and available result for a California State license-holder who has been faced with criminal charges and now must deal with the fall-out of consequences for the occupational or professional license. These can be very difficult circumstances for the license-holder. The defense of the criminal case may have been financially costly and emotionally wearing. The criminal court may have imposed fines and financial penalties that have yet to be fully satisfied and retired. Conditions of criminal court probation may be affecting the quality and quantity of work available to the license-holder. It is necessarily a difficult time for the license-holder to be forced to defend against the potential loss of the occupational license and the losses of employment or business opportunities and income that are derived by the license. In this context of difficult circumstances, license probation can look very appealing-- at first consideration.
But in practice, license probation often operates as a black hole from which State licensees cannot emerge successfully. No State license-holder should agree to license probation without clearly understanding these elements of the probation program:
The licensee will be required to pay all of the licensing agency's costs for the license enforcement action, including the costs of the initial investigation, hearing, and probation throughout the probationary term (usually three years). Costs totaling $10,000.00 or more in routine and uncomplicated cases are not uncommon.
License probation causes expensive and labor-intensive supervision and reporting obligations for the license-holder's employer, often resulting in termination of employment.
Employer liability (insurance) coverage often prohibits hiring or retaining employees with probationary restrictions of their State licenses, particularly in health-care services and in other employment involving services to children or impaired persons.
Even though license probation often causes the loss of the licensee's long-term employment, license probation itself requires work in the licensed field for at least 20 – 30 hours per week throughout the course of the probation term. In the event that the probationary license-holder is out of work during the probation term and cannot fulfill the minimum licensed work probation requirement, the probation will be extended by an equal period of time. By this mechanism, license probation is sometimes extended far into the future, years longer than the original 2 – 3 year term agreed to.
Licensing agencies are generally unwilling to “customize" probation conditions. Standard Terms and Conditions or Standard Terms and Conditions plus Special Drug and Alcohol Terms and Conditions are almost always required by the State. In many instances the standard uniform terms and conditions are unnecessarily restrictive or difficult.
Drug and alcohol probation conditions allow unlimited mandatory random biological testing at the licensee’s expense. These costs can easily exceed $2,000 per year.
Special drug and alcohol-related probation terms are not limited to cases where conviction is based on substance use or possession. These conditions are often imposed where the facts underlying the offense involve even minor alcohol or drug use. Domestic violence cases almost always cause substance-abuse probation terms.
Special drug and alcohol license probation terms require the license-holder to submit a written quarterly statement of abstinence from alcohol or drug use, under penalty of perjury. Any evidence of any breach of total abstinence is grounds for immediate revocation of the license without further process. This can mean that one beer causes loss of the license. The abstinence requirement is enforced very strictly.
In some cases the license-holder has no realistic or meaningful choice to avoid license probation. But agreeing to probation with a California State licensing agency always requires careful and measured consideration of the costs and risks and potential outcome. It is seldom the straight-forward solution to the difficult situation of license enforcement proceedings. In all events, a consultation with a California attorney experienced in occupational licensing law can serve to identify the potential pitfalls and allow the license-holder to make an intelligent and knowledgeable decision about the wisdom of agreeing to occupational license probation.