September 17, 2019

September 16, 2019

Subscribe to Latest Legal News and Analysis

Understanding and Responding to Licensing Boards

Receiving notice of a complaint or investigation from a licensing board almost always is traumatizing. 

Responding can be challenging because the mere submission of a complaint can trigger a strong emotional response and because the process presents a risk that action adversely affecting the licensee may be taken.  This article focuses on understanding the role and processes of licensing boards, which can help manage this challenge.

Professional and trade licenses are valuable.  They represent a certification by the State that the party to whom the license is issued has demonstrated certain levels of competence and expertise in a particular area and that the person will conform to the standards of conduct established for the area.  Obtaining a license generally requires a substantial investment of time, effort, and money.  Return on this investment is realized, in part, through opportunities secured through public confidence in the license.

Most licensing boards have the power to act independently.  However, most inquiries from boards begin with a complaint.  Each board has designed its own procedure for investigating and handling complaints.  The procedures can be found on the board's website and in Title 21 of the North Carolina Administrative Code. 

Although different, the procedures tend to share some features in common.  The board's investigation usually will involve gathering information and input from both the complainant and the licensee.  Some boards have staff members whose primary responsibility is investigating these matters.  After the investigation, boards have the power to dismiss a complaint without taking any action if this is warranted.  When dismissal may not be warranted, many boards provide for formal settlement conferences.  These generally are used to communicate directly with a licensee for the purpose of resolving what may appear to be misunderstandings or disputes.  If the issues presented cannot be resolved through settlement, then the boards have a process by which a formal hearing is convened and held, after which the board decides on the proper course of action.  Formal hearings do not occur often.  They usually take place only when a board and licensee are diametrically opposed and the issue presented involves the potential revocation or suspension of a license. 

After a board makes a decision, a licensee normally has the right to obtain judicial review of the decision through Article 4 of the North Carolina Administrative Act.  The scope of this review is limited because the court gives some deference to the decision of the board.  This makes sense because the judge is hearing the matter on appeal often is not as familiar with the profession as the licensees that likely comprised the initial board that made the decision.  As such, the board's decision will not usually be overturned unless there has been an error of law or violation of procedure, the decision is not supported by the facts, or the board has acted arbitrarily or capriciously in making the decision.  Because the scope of review is limited, a licensee seeking judicial review of a board decision must necessarily temper expectations for changing the decision of the board.  Additionally, because courts do not often overturn board decisions, it is critical to put forth a strong defense during the initial investigation and hearing before the board.

So, what does all of this mean if you, as a licensee, receive notice from a licensing board that a complaint has been submitted against you or you are under investigation:

  • Understand that the board is required to investigate the complaint; try not to take the notice personally.

  • Treat the notice with an appropriate sense of urgency; respond in a timely manner.

  • Gather all of the information needed to respond to the board; keep in mind that the board sees only one side of the story in the complaint.

  • Contact an attorney to assist in preparing the response.

  • In the response:

    • Acknowledge the board's responsibility to the public and profession or trade.

    • Address the facts and allegations directly, providing supporting material if helpful.

    • If the complaint is unfounded, explain why and seek dismissal.

    • If an error has occurred, accept responsibility, explain how it occurred, and express contrition by committing to the learning gained from the experience.

  • Cooperate with the board in both the investigation and resolution of the issues.

  • Seek to resolve issues through settlement, if possible.

A professional or trade license is an investment that should be protected.  Respecting the responsibility of the licensing board that issued the license is fundamental to doing so, especially when a licensee is responding to a board complaint or investigation.

© 2019 Ward and Smith, P.A.. All Rights Reserved.

TRENDING LEGAL ANALYSIS


About this Author

Marla S. Bowman, Ward Smith, business, civil, and commercial litigation matters

Marla's practice experience focuses on a broad range of business, civil, and commercial litigation matters in state and federal court.  Clients rely on Marla for her advice regarding business and family disputes, which often are one and the same.  She also frequently represents clients in cases involving contract disputes.  

Marla focuses on using the rules of civil procedure to pursue her clients' objectives while following legal trends to pursue newly opened avenues of redress for her clients.  Businesses can rely on her to utilize the latest...

919-277-9152
Donalt Eglinton Commercial Litigation Attorney
Attorney

Don's practice focuses primarily in the area of commercial litigation.  This includes, among other matters, disputes involving patent, trademark, and copyright infringement; trade secrets; covenants not to compete; franchise and license agreements; construction; organizational and business matters; and the purchase, sale, and warranty of goods.  He has represented parties in some of the most complex and contested trademark and copyright actions filed in the United States District Court for the Eastern District of North Carolina.  Don also has represented parties in patent infringement actions filed in North Carolina, Texas, and California, and he has represented parties in cancellation proceedings before the United States Trademark Trial and Appeal Board.  He is a speaker for the North Carolina Bar Foundation and has been rated by his peers as being "preeminent" in his fields of law.

EDUCATION

  • J.D., Wake Forest School of Law, 1982. Research Editor, Wake Forest Law Review.

  • M.A., Central Michigan University, 1980

  • B.E.D., magna cum laude, Texas A&M University, 1974

REPRESENTATIVE EXPERIENCE

  • Representation of a financial institution in a dispute involving architectural copyright infringement

  • Representation of a winery in a dispute involving claims of copyright infringement, conversion, and unfair trade practices

  • Representation of alcoholic beverage distributor regarding trademark infringement, unfair competition, and unfair and deceptive trade practices

  • Representation of financial institution in a dispute involving patent infringement of a business methods patent

  • Representation of a corporation in a dispute involving trademark infringement and unfair and deceptive trade practices

  • Representation of individuals in a Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA)

  • Representation of a financial institution in an income tax challenge involving Market Discount Income

  • Representation of a transportation company regarding corporate governance and breach of fiduciary duty

  • Representation of a physician and inventor regarding breach of contract to pay royalties on medical device

  • Representation of a sign company in a dispute involving copyright infringement and unfair and deceptive trade practices

  • Representation of a community college in a construction dispute involving asbestos abatement

  • Representation of a technology company regarding trademark infringement, unfair competition, and unfair and deceptive trade practices

  • Representation of a medical device company in a dispute involving patent infringement on a medical device (Multi-District Litigation)

  • Representation of a hotel chain regarding trademark infringement, unfair competition, and unfair and deceptive trade practices

  • Representation of an engineering company in a dispute involving patent royalties for mechanical devices

  • Representation of a financial institution in a commercial dispute involving breach of contract and an indemnification provision

252.672.5456