Current through Register Vol. 48, No. 38, September 20, 2024
a) The
burden of proof rests with the Division in all cases instituted by the Division
by the filing of a Complaint or Notice of Intent to Refuse to Renew. A
recommendation for discipline may be made by the Administrative Law Judge only
when the Division establishes by clear and convincing evidence that the
allegations of the Complaint or Notice are true.
b) The burden of proof in all cases
instituted by the filing of a Petition for Hearing rests with the Petitioner
except as provided in this Section. The Petitioner must prove by a
preponderance of the evidence that the license should be restored.
c) An action may be commenced by the Division
by the filing of a Notice of Intent to Deny issuance of a license or other
credential.
1) If the Notice of Intent to Deny
alleges that the applicant has violated a disciplinary provision of the
applicable professional Act, the Division has the burden of proof to prove by
clear and convincing evidence that the alleged violation occurred. Upon the
Division meeting this burden of proof, the Applicant then has the burden to
prove by a preponderance of the evidence that the license or other credential
should be granted. In any contested case in which the Notice of Intent to Deny
alleges that the applicant has violated a disciplinary provision of the
applicable professional Act, the sequence of the formal hearing shall be as if
the Division has the burden of proof. This provision does not apply in any
situation in which the relevant statute provides that no hearing shall be
held.
2) If the Notice of Intent to
Deny notifies the applicant that he or she does not meet the minimum
qualifications for a license or other credential and does not otherwise allege
applicant has violated a disciplinary provision of the applicable professional
Act, the applicant has the burden of proof to prove by a preponderance of the
evidence that the qualifications have been met. This provision does not apply
in any situation in which the relevant statute provides that no hearing shall
be held.
3) Upon a finding that the
applicant was previously convicted of a felony or misdemeanor that may be
grounds for refusing to issue a license or certification or to grant
registration, the Administrative Law Judge or Board making a recommendation
regarding a Notice of Intent to Deny shall consider the mitigating factors and
evidence of rehabilitation contained in the applicant's record, when allowed by
the DFPR Law, to determine whether a prior conviction will impair the ability
of the Applicant to engage in the practice for which a license, certificate or
registration is sought.
4) Upon
review of a previous conviction of an initial applicant for the purpose of
determining good moral character, the ALJ or Board making a recommendation
regarding a Notice of Intent to Deny shall consider evidence of rehabilitation
and mitigating factors in the applicant's record, when allowed by the DFPR
Law.
d) Except as
otherwise provided in this Section, a case instituted by the filing of a Notice
to Refuse to Renew shall be handled in the same manner as a
Complaint.
e) The burden of proof
rests with the Division to prove by clear and convincing evidence that the
alleged violation has occurred when a licensee files a Request for Hearing
after he or she has been subject to an automatic suspension or other discipline
due to a violation of a term of a previous Director's Order or Consent
Order.
f) No burden of proof
applies in hearings conducted for the sole purpose of determining the length of
an automatic indefinite suspension imposed pursuant to Section 2105-170 of the
DFPR Law.
