Complaint Process

An Explanation of the Complaint Handling Process for the Division of Occupational and Professional Licensing, Utah Department of Commerce

Every day the Utah Division of Occupational and Professional Licensing (DOPL) receives complaints regarding the conduct of individuals practicing in regulated occupations and professions. Complaints are received from many sources including the general public, co-workers, licensing board members, professional associations, other state agencies, and federal disciplinary databases.

DOPL is legislatively responsible to investigate acts or practices inconsistent with generally recognized standards of conduct, unlicensed practice in regulated professions or occupations, allegations of gross negligence or incompetence, and patterns of negligence or incompetence.

Complaints are confidential in nature and are not generally available to the public. However, in certain situations, the information contained in a complaint may be shared with other governmental agencies, if the other agency demonstrates a legal basis for the sharing of such information.

Upon submission, all complaints are entered into an investigative database in order to analyze patterns of behavior. Each complaint is then reviewed by DOPL’s chief investigator or an investigation supervisor who makes one of three initial determinations:

• no violation
• violation which does not meet DOPL’s criteria for investigation
• violation which does meet DOPL’s criteria for investigation

No Violation

If it is determined that the complaint does not involve a violation, the complaint is closed and no action is taken. Additionally, no public reporting of the information will occur.

Violation which Does Not Meet Criteria for Investigation

When a complaint involves a violation, but does not meet DOPL's criteria for opening an investigation, the DOPL may choose to take any or all of the following actions:

• refer the complaint to another local, state, or federal agency
• invite the involved individual(s) to participate in an informal, educational interview
• issue a letter of concern to the involved individual(s)

At times, DOPL is legally unable to investigate or take action on a complaint due to lack of jurisdiction or authority. In other situations, DOPL may determine that the complaint would be better handled by another local, state, or federal agency and will refer the complaint to that agency for further review.

An educational interview provides an opportunity for the respective licensing board and the involved individual to obtain and provide information about the situation. Educational interviews usually occur during a regularly scheduled board meeting.

A letter of concern is a means of informing the individual of the reported allegations, of DOPL's concerns regarding the allegations, and of the applicable regulations -- without imposing a disciplinary sanction on the individual's license. A letter of concern also offers the individual an opportunity to respond and explain his or her side of the situation.

Educational interviews and letters of concern are non-disciplinary actions and do not affect an individual's professional license. Essentially, these two options are proactive methods of addressing inappropriate activity before public safety is compromised and before action must be taken against the individual's license.

Violation which Does Meet Criteria for Investigation

Finally, if a complaint is determined to involve a violation and is within DOPL's jurisdiction, the complaint will be prioritized and assigned to an investigator. Investigators use their experienced judgment and established procedures to determine the type of investigation to conduct. An investigation may include any of the following elements:

• interviewing complainant(s)
• interviewing witness(es)
• interviewing involved individual(s)
• obtaining appropriate records or documentation (subpoena)
• gathering other evidence
• obtaining input from applicable experts

At any time, the case may be reviewed by any or all of the following: the Utah Attorney Generals Office, an expert in the respective occupation or profession, DOPL's enforcement counsel, or DOPL's bureau manager responsible for the regulation of the respective occupation or profession. DOPL may also determine that a criminal complaint is warranted and will then notify the appropriate authorities of the situation.

A case is usually resolved in one of two ways under the Utah Administrative Procedures Act (UAPA):

• informally
• formally

Unless specified otherwise in an order, all cases are public and reportable.

Cases designated to be handled informally are resolved in one of three ways:

Administrative Citations: A citation is the imposition of a fine or a cease and desist order, or both, in response to unlawful or unprofessional conduct, or both. Citations are issued when proper authority is established in statute and a citation is determined to be the appropriate response to a violation.

Citations are normally issued by the investigator who has been assigned the case. Practicing without a license, exceeding the scope of a license, and hiring someone who is required to be licensed who is unlicensed are good examples of citable offenses for all professions. Some professions have additional fine and citation authority.

Citations may also be issued by a bureau manager for violation of probation or other violation of the terms of an order governing a license. This is normally tracked and identified for the bureau manager’s action by DOPL’s Compliance Unit. It may be issued as part of a probationary interview before a licensing board.

Citations become the final order of the Division after the passage of 20 calendar days unless the citation is challenged. Each citation is issued together with a notice of response that has four options:

• I admit the citation and hereby pay the fine without contesting the citation.
• I admit the citation and hereby pay the fine with a written explanation of the circumstances of the offense, and a request that the fine be reduced.
• I admit the citation and request a hearing to explain the circumstances of the offense (with a written response requested).
• I deny committing the offense and request a hearing to contest the citation (with a written response requested).

Informal citation hearings are held monthly. Notices of hearing are sent in advance. A presiding officer for conducting the hearing and entering final orders is designated by the Director. Normally parties represent themselves at such hearings, but occasionally parties retain counsel. The hearings are informal, somewhat analogous to traffic court, with the presiding officer gathering from the parties the necessary information to enter an order. Citations may be affirmed, dismissed or modified by the presiding officer. Orders are announced by the presiding officer at the hearing while the citation coordinator completes a template written order.

Stipulated Agreements: A stipulated agreement is a written settlement accepted by all applicable parties with regard to the involved individual's license. It may include any combination of the same actions that are possible during an informal adjudicative proceeding. A stipulated agreement may also be the result of the voluntary surrender of an individual's license.

No hearing is held for such actions. A stipulated agreement must be approved by the director of DOPL in an order.

Informal Adjudicative Proceeding: An informal adjudicative proceeding is a case initiated by a notice of agency action and decided or resolved by a file review as opposed to a hearing, unless a right to a hearing has been established by statute or rule, such as in the case of citations. These matters should be fairly straightforward and reasonably easy to resolve, and hence their designation to be handled informally.

Misconduct that has been designated as to be handled by informal adjudicative proceeding includes:

• violating the terms of an order governing a license such as probation (U.C.A. §58-1-501(2)(o));
• engaging in conduct that results in a conviction, plea of no contest, a plea held in abeyance with respect to crimes of moral turpitude or any other crime, that when considered with the functions and duties of the occupation or profession for which the license was issued or is to be issued, bears a reasonable relationship to the licensee's or applicant's ability to safely or competently practice an occupation or profession (U.C.A. §58-1-501(2)(c));
• engaging in conduct that results in disciplinary action by another licensing or regulatory authority having jurisdiction over the licensee or applicant in the same occupation or profession if the conduct would, in this state, constitute grounds for denial of licensure or disciplinary proceedings (U.C.A. §58-1-501(2)(d)); and
• surrendering licensure to any other licensing or regulatory authority having jurisdiction over the licensee or applicant in the same occupation or profession while an investigation or inquiry into allegations of unprofessional or unlawful conduct is in progress or after a charging document has been filed against the applicant of licensee alleging unprofessional or unlawful conduct (U.A.C. §R156-1-501(1)).

The applicant or licensee has their opportunity to be heard in writing as opposed to a hearing . As permitted by rule, the notice of agency action requires a written response to be filed with the Division within 30 days and specifies that a party’s default will be entered should they fail to submit the response as required.

In practice these types of cases will normally be placed on a board meeting agenda for discussion by the board and recommended action to the Division. The licensee or applicant involved may attend the meeting and provide public comment. However, the matter is an agenda item, NOT a hearing.

A recommended and final order may include any of the following actions or a combination of these actions:

• revocation
• revocation with a stay of enforcement
• indefinite suspension
• indefinite suspension with terms and conditions to be met to lift the suspension
• suspension for a specific period of time
• suspension for a specific period of time followed by a term of probation
• suspension with a stay of enforcement and probation
• probation for a specific period of time with terms and conditions
• probation with restrictions
• restrictions
• fine (if allowed by statute)
• public reprimand

Cases designated to be handled formally are resolved in one of two ways:

Stipulated Agreements: A stipulated agreement is a written settlement accepted by all applicable parties with regard to the involved individual's license. It may include any combination of the same actions that are possible during a formal administrative hearing. A stipulated agreement may also be the result of the voluntary surrender of an individual's license.

No hearing is held for such actions. A stipulated agreement must be approved by the director of DOPL in an order.

Formal Adjudicative Proceeding: Formal adjudicative proceedings are initiated by a notice of agency action with a Petition and decided or resolved through a formal administrative hearing process. Similar in some ways to a civil court proceeding, a formal adjudicative proceeding grants limited discovery and allows the presentation of evidence, testimony, defenses, and mitigating or aggravating circumstances regarding the alleged misconduct. Each party may present evidence in response to the case.

An administrative law judge rules on all evidence, procedures, and legal issues. The respective licensing board receives the submitted evidence and may question all witnesses. DOPL is represented by an assistant attorney general, and the involved individual may be represented by personal legal counsel.

At the conclusion of a hearing, the licensing board considers the evidence and makes a recommendation regarding the status of the individual's license. The recommendation is submitted to the director of DOPL who may accept the entire recommendation or may issue a modified or supplemental order. A recommended and final order may include any of the following actions or a combination of these actions:

• revocation
• revocation with a stay of enforcement
• indefinite suspension
• indefinite suspension with terms and conditions to be met to lift the suspension
• suspension for a specific period of time
• suspension for a specific period of time followed by a term of probation
• suspension with a stay of enforcement and probation
• probation for a specific period of time with terms and conditions
• probation with restrictions
• restrictions
• fine (if allowed by statute)
• public reprimand

Review after Entry of an Order: Any individual who has action taken against his or her license has rights of appeal specified under UAPA. An appeal must first be may be made to the Department of Commerce Executive Director (agency review) and then to the appropriate court for judicial review (Informal: District Court – de novo review) (Formal: Court of Appeals – review on the record).