The art of licensure.

• Author: Bisbee, H. Richard
• Position: Florida

This article provides guidelines for the problematic licensing case, so that the attorney can adequately and vigorously represent the client's interests.

You are a general practitioner. Your client places an official document in front of you entitled "notice of intent to deny license." This client, who was convicted of a relatively minor drug charge while in college 10 years ago, has for months sought licensure before a state agency to engage in a regulated activity so he could, in his own words, earn a living and support a family. He has already paid the various filing fees (which may range from hundreds to thousands of dollars), and studied for, taken, and passed with flying colors an examination to demonstrate competency. He is now perplexed as to why, after all his effort, he is being denied a license. What could you, as an attorney, have done for this client in terms of providing legal advice and representation while he sought licensure, as well as in response to his receipt of the notice of denial?

From my vantage point as a supervising attorney with a governmental agency responsible for deciding thousands of licensing issues each year, I have observed a wide spectrum of legal skills in the private sector, dealing with licensing cases. Numerous practitioners appear to lack the day-to-day experience for handling such matters with finesse, while some attorneys -- by combining both legal and persuasive skills at key points in the licensing process -- elevate the quality of their representation to that closely resembling an art form. There are a number of pitfalls, both legal and practical, for the inexperienced attorney who stumbles through the licensing process. While most license applications which reflect no prior disciplinary history speed through the system, those applications revealing criminal convictions, previous license denials, and other similar past disciplinary events may and do become "bogged down" in the bureaucracy.

This article will provide some guidelines for attorneys (and perhaps applicants) when confronted with the latter type of problematic licensing case, so that he or she can adequately and vigorously represent the client's interests, regardless of the type of license sought.

There are essentially three stages to a license application case. The first and perhaps most important step involves the correct and truthful completion of the license application, as attested to by the signature of the applicant, and the proper mailing of the application to the agency, along with the required filing fees. The second step involves the agency's review of the license application, which at times can be a lengthy, drawn-out process. The last stage is the decisional stage, where all previous elements come together, in the form of a preliminary decision by the agency either to grant or deny licensure, based upon the materials collected in its licensing file. A lawyer for the agency may become involved in the decisional stage, depending upon the complexity of the issues. Each step is important in its own right. For the sake of brevity, this article will concentrate mostly on the first two steps.

Most licenses are processed in Florida's capital, Tallahassee. Depending upon the type of license, most, if not all, of the decisionmakers who review the license application live and work in the capital. For those reasons, counsel's knowledge of licensing law and the regulatory climate in the north Florida region are equally important in understanding how to handle a license application.

Usually, when an individual is seeking licensure, he or she is anxious to "get on with his or her life" and begin the newly chosen profession. Any delay in the process -- sometimes caused by the applicant or by an attorney representing the applicant -- can result in a real loss of dollars to that person affected by the delay. That is why prompt and accurate initial and subsequent responses to the licensing agency during the application stage are vitally important.

F.S. Ch. 120 provides the overall statutory framework for the administrative processing of licenses. Each agency has certain statutes and administrative rules (the latter found in the Florida Administrative Code) specifying the actual requirements for licensure. The practitioner, when asked to assist an individual with processing an application, should be thoroughly familiar with F.S. [sections] 120.60, which deals with various statutory time frames that an agency must observe to process the application and the specific statutes under which licensure is being sought. Keep in mind that many application questions may be the subject of legal interpretation (e.g., 10 years ago, did I commit a crime of moral turpitude?) and careful research by counsel before advising a client as to how to respond to a question may mean the difference in receiving or not receiving a license...