August 6, 2013
A Florida administrative proceeding that seeks to affect an individual’s professional license is considered to be a penal proceeding. This means it seeks a penalty, such as the revocation or suspension of a person’s professional license. However, this also means that the individual has greater rights that help to protect him or her in such a situation, similar to what you would have if you were facing criminal charges.
The following is a brief summary of the law in this area:
An administrative action that seeks discipline against a respondent’s license is penal in nature and the state has the burden of proving the allegations in the administrative complaint by clear and convincing evidence.
Clear and convincing evidence has been described by the courts as follows:
[C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witness must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
Clear and convincing evidence “requires more proof than a ‘preponderance of the evidence’ but less than ‘beyond and to the exclusion of a reasonable doubt.'” In re Graziano. It is an intermediate standard.
In a proceeding of this nature (an administrative proceeding seeking action against a license), proof greater than a mere preponderance of the evidence must be submitted. Clear and convincing evidence is required. See for example Department of Banking & Fin., Div. of Sec. & Investor Protection v. Osborne Stern & Co., Ferris v. Turlington, and Section 120.57(1)(j), Florida Statutes (“Findings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute.”).
In the case of those holding a medical license, there may be additional procedures required in Chapter 458, Florida Statutes, the Medical Practice Act. However, Section 458.331(3), Florida Statutes, provides, among other things: “The division shall establish grounds for revocation or suspension of license by clear and convincing evidence.” There is no exception to this statutory requirement for proceedings involving only charges under Section 458.331(1)(s), Florida Statutes.
“Although this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous.” Westinghouse Electric Corp., Inc. v. Shuler Bros., Inc.
“Clear and convincing” evidence, therefore, is evidence of a far greater weight than merely the “preponderance of the evidence” standard used in civil trials. Preponderance of the evidence is sometimes called “greater weight of the evidence” or “more likely than not.” However, it is not quite as high as beyond a reasonable doubt,” the standard used in criminal trials. Evidence that is ambiguous or that equally supports either finding does not meet the “clear and convincing” standard.