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Simas & Associates, Ltd. Newsletter | November 4, 2016 | Volume IV, Issue 11
Firm Announcement
 
Simas & Associates, Ltd. Cautions Licensees About Self-Representation at Administrative Hearings

Sacramento, CA — Every so often, the team at Simas & Associates, Ltd. encounters a new story about a licensee who undertook to represent himself or herself in an administrative proceeding. The seeming informal nature of administrative proceedings somehow lures intelligent, successful, licensees and business owners into thinking they can represent themselves. Unfortunately, as in the case discussed in a recent blog entry, this can lead to utter disaster.

There is a saying, "he who represents himself has a fool for a client." And while individuals are always free or forced due to circumstances outside of their control to self-represent, there are countless examples where that is not the case.

"This is a big deal," explains Steven L. Simas, owner and founder of Simas & Associates, Ltd. "However, a number of times we encounter individuals who think, 'this is not a big deal,' or 'I just need to clear up this misunderstanding. And many of the times they are wrong. Really, really wrong."

A neglected complaint from a consumer, can lead to a complaint with the underlying licensing agency. A complaint with the underlying licensing agency will almost certainly lead to at least a preliminary investigation of the complaint. 

"Many times," continued Simas, "the licensee will just blow off the investigator. Or worse yet, tell a half-truth over the telephone that cannot be substantiated with the underlying records. And the investigator does not respond by telling the licensee, 'GOTCHA!' Rather, they internalize the results of the interaction and begin the process of presenting the potential accusation or citation to their supervisor in enforcement. We are lucky when a licensee takes the inquiry from the investigator seriously and gets us involved. However, such is lucky and rare with many professions."

Then the Accusation hits.

"The Accusation is usually when it stops the licensees in their tracks," explained Simas. "Listen, I understand and empathize with many of the licensees because they are usually small businesses, with families, and bills, and health issues; a million other things on their mind. So, they may not have taken the complaint or investigation seriously. Understandable. And when the Accusation hits, then they start to look for answers."

Basically, the question is, "what does this mean?" or "what do I need to do now?

"And we help them. We explain the entire administrative hearing process to them. We inform them not only of the adversarial process of the hearing but also the almost always more important need for evidence of rehabilitation, mitigation, and good character. Some hire, some listen, and some go-a-marching on their own."

When professional licensees go on their own, they are typically surprised by the formality of the process. While administrative law and administrative hearing practice may not be as formal as a criminal or civil proceeding, it is really a reduction in inches, not feet, yards, or miles like many professional licensee assume.

"So many self-represented licensees fail to abide by pre-hearing orders, fail to participate in discovery, fail to attempt to negotiate a settlement, fail to subpoena documents or witnesses, and just come to a hearing empty handed," continued Simas. "Of course, they do not understand how to object to evidence or cross-examine witnesses. And unless they were listening, of course they failed to supply evidence of mitigation. So, of course the self-represented licensee often does poorly at the time of decision."  

Sometimes the self-represented licensee was worse off even attempting to defend himself than if he had just let a default decision go into place.

"By the time a decision is reached by an agency after hearing," continued Simas, "an administrative record now exists. And the administrative record will demonstrate the opportunity the self-represented licensee had to object, cross-examine, and present his or her own evidence. And given the substantial evidence test in actual civil court, most of these cases have no worthwhile or even credible grounds upon which to seek re-hearing or overturning by way of a petition for writ of administrative mandate."

Of course, hindsight is 20/20; but in a significant percentage of cases, revocation can be avoided.

"While this does not mean the licensee will get off completely unscathed all of the time," concluded Simas, "the vast majority can be resolved in favor of a probationary license. Many cases just involve being competent about the procedures of the hearing, ensuring the other side has the evidence to prove its claims, being entirely truthful at hearing, and presenting evidence of contrition and mitigation to sway the severity of the discipline."

Keep this in mind as a preeminent example of – “please, do not represent yourself.”

For more information on Simas & Associates, Ltd. and its professional licensing and healthcare licensing practice areas, please visit our website at www.simasgovlaw.com.
Firm Announcement
 
Steve Simas Presents at CPTA Conference 

On October 8 and 9, 2016, Steven L. Simas, founder and owner of Simas & Associates, Ltd. spoke at the 2016 Annual Conference for the California Physical Therapy Association (CPTA).



The conference was held at the Santa Clara Convention Center and had over several hundred physical therapists in attendance. This year’s conference featured two days of educational programming packed with more than 25 sessions, panels, and roundtable discussions on the latest physical therapy best practices and tools taught by leading industry experts.

As counsel to CPTA, Mr. Simas was selected to lead a forum on legal issues in payment policies for the profession. His presentation can be found by way of this embedded link.

For more information on Simas & Associates, Ltd. and its entire roster of legal professionals, please visit our website at www.simasgovlaw.com.
Client/Vendor of the Month

Wells Pharmacy Network
3420 Fairlane Farms Road
Wellington, FL 33414
P: (800) 622-4510
www.wellsrx.com
 
Wells Pharmacy Network is a privately held nationwide compounding pharmacy specializing in wellness, anti-aging, weight management, urology, sexual health, thyroid and adrenal health, and veterinary compounding solutions. Physicians, patients and veterinarians across the nation choose Wells Pharmacy Network for their compounded medication needs.

Wells combines superior science and service in order to provide safe, effective, custom medications for its consumers and their patients and provide comprehensive support that allows its professional clientele to spend more time focusing on your practice. Wells Pharmacy Network ships to all 50 states and Puerto Rico.

Simas & Associates, Ltd. appreciates the opportunity to serve as Wells Pharmacy Network's special counsel. If you would like to be featured as our law firm’s “Client/Vendor of the Month,” please contact us at info@simasgovlaw.com
Featured Agency Announcement

California Cities Ban Pot Ahead of Statewide Vote

San Jose, CA — Worried that California might legalize recreational marijuana, the state's third-largest city by population has voted to ban pot sales ahead of Tuesday's election.



However, under Proposition 64, which is winning in polls, local governments would not be able to prohibit people 21 and older from having up to six marijuana plants for personal use and possessing up to an ounce of pot.

City Council members in San Jose, with a population of a million people, said they passed the temporary ban Tuesday to give city officials time to develop regulations for sales and farming. Its ban includes a prohibition on outdoor gardens.

Most provisions of Proposition 64 wouldn't kick in until 2018 if it's approved by a majority of voters. The proposition seeks approval and regulation of the recreational marijuana industry, from planting seeds to smoking buds. It would levy a 15 percent state sales tax and require farmers to pay $9.25 for every ounce of marijuana or 8 grams of concentrate sold.

Cities and counties could add their own taxes and regulations.

Some 23 California cities and five counties have formally called for voters to defeat Proposition 64. It's also opposed by many law enforcement agencies and organizations that say marijuana attracts crime and impairs drivers.
Featured Blog Entry

Ignore the Form – File a Special Notice of Defense

Professional licensees and health care -related licensees in the state of California can have discipline imposed on their licenses for misconduct. The “misconduct” for which license discipline is under the vague and amorphous “substantially-related to the profession” standard that is not the subject of this blog entry.

When these licensees face discipline, it is usually their first impression of the system of administrating license discipline from their licensing authority. They are confronted by a large packet of information, containing a voluminous statements of rights, the charging document ( i.e.  Accusation or Statement of Issues), controlling statutory or regulatory authority, a request for discovery, and, lastly, a form Notice of Defense. The form Notice of Defense is a way for the licensee to quickly and easily deny all allegations and request a hearing.

While the form does serve a helpful purpose, it also leads to a somewhat devious result. Whether intentionally or not, the form encourages the licensee merely to deny the allegations contained in the charging document. And by the way that it is written, does not provide the licensee with a mechanism for asserting affirmative defenses against the allegations. 

To keep reading this entry, please click here:
Ignore the Form – File a Special Notice of Defense. For more blog entries from our attorneys and legal staff, please visit our law firm’s official blog – Wit of Mandate.
Happy Halloween

Spooky Fun!

Simas & Associates, Ltd. celebrated Halloween with an annual costume contest. This year's theme was 1980s movies. And this year's winner was Lindsay Yoshitomi as Betelgeuse (Beetlejuice):


For more pcitures, please visit our Facebook page here.
Word of the Month

Qui tam

Type of claim or lawsuit whistleblowers bring under the False Claims Act, a law that rewards whistleblowers if their case recovers funds for the government. Its name is an abbreviation of the latin phrase qui tam pro domino rege quam pro se ipso in hac parte sequitur, meaning "[he] who sues in this matter for the king as well as for himself." The claim or suit is a powerful way for citizens to patrol many kinds of fraud - Medicare and Medicaid fraud, government contractor fraud, etc. - that impact the government financially. The claim can help the government recover billions of dollars per year that is lost due to fraud, malfeasance, and waste. The incentive is providing the whistleblower with a percentage of the ill gotten recovery. 

For more terms related to our practice areas, please visit our law firm’s glossary at 
SimasGovLaw.com - Glossary.
Upcoming Calendar

November 4 -
Breeder's Cup.

November 5 - Happy Guy Fawkes Day!

November 6 - Saxophone Day. Also,
New York City Marathon.

November 7 -
Civil Best Practices in Sonoma County, Sonoma County Bar Association.

November 8 - Election Day! 

November 9 - Schwartz-Levi American Inn of Courts. And, 
Howell and Beyond: Today’s Measure of Medical Special Damages, San Diego County Bar Association.

November 10 - Simas & Associates, Ltd. Private Event - offices closed.

November 11 - Veterans' Day - offices closed.
World Chess Championship begins.

November 16 -
29th Annual Unity Bar Dinner, Sacramento County Bar Association.

November 17 - World Peace Day.
Cloud Based Law Practice, San Luis Obispo County Bar Association.

November 24 - Happy Thanksgiving! - offices closed.

November 25 - Black Friday - offices closed.
Davis Cup Final begins.

November 27 -
104th Annual Grey Cup.

November 28 - Cyber Monday.
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