If you hold a professional license in Florida, such as an insurance license from the Department of Financial Services or a securities license from the Office of Financial Regulation, you may be wondering about your rights in the event the administrative agency opens an investigation into your past license actions. Sometimes the investigations can reveal actions that are in violation of the Florida Statutes and administrative rules that govern your profession. In that case, the Florida administrative agency in control of your license may elect to bring a disciplinary action against you. If this occurs, it is extremely important that you contact an attorney immediately in order to defend yourself and your professional standing.
What is the right to remain silent in a professional license disciplinary proceeding?
One of the most important rights that a professional licensee has in Florida is the right to remain silent in professional license disciplinary proceedings. The right to remain silent in professional license disciplinary proceedings was first set out by the Florida Supreme Court in the case State ex rel. Vining v. Florida Real Estate Commission, 281 So. 2d 487 (Fla. 1973). In Vining, the Florida Supreme Court dealt with a state statute that required real estate agents to provide a sworn answer to the administrative complaint filed by Florida Real Estate Commission in the real estate agent’s professional license disciplinary case. In its decision to extend the right to remain silent to professional license disciplinary proceedings, the Florida Supreme Court stated, “In succinct terms, it is our view that the right to remain silent applies not only to the traditional criminal case, but also to proceedings ‘penal’ in nature in that they tend to degrade the individual’s professional standing, professional reputation, or livelihood.” Id. at 491. In the specific instance of the Florida Real Estate Commission at the time of Vining, the Court determined that the requirement of a sworn answer compelled the real estate agent to be a witness against himself and shifts the burden to the real estate agent of proving his own guilt. Id. at 492. The Florida Supreme Court states, “[B]y requiring the defendant to answer, the Commission is clearly seeking to shift to defendant the burden of proving his own guilt.” Id.
When can the right to remain silent be invoked in a professional license disciplinary proceeding?
However, the right to remain silent is not always applicable in Florida professional license proceedings. An example is the case Boedy v. Department of Professional Regulation, 463 So. 2d 215 (Fla. 1985). In Boedy, the Florida Supreme Court was considering a Florida statute that allowed for a doctor’s license to be suspended or revoked if the doctor is unable to practice medicine “with reasonable skill and safety to patients by illness…” Id. at 216. The doctor in this case was alleged by the Department of Professional Regulation to be suffering from a mental or emotional illness and requested that the doctor sit for a mental health evaluation. Id. at 215. The doctor objected, citing the right to remain silent set out in Vining. Id. The Florida Supreme Court disagreed with the doctor’s argument and reliance on the Vining decision. Id. at 216. The right to remain silent under Vining only relates to professional license disciplinary proceedings that are penal in nature. Id. at 216-217. In Boedy, the complaint by the Department of Professional Regulation related to the doctor’s health and ability to practice, resulting in an action that is not considered penal in nature. Id. at 217. The Florida Supreme Court summarized, “So long as State authorities do not derive any imputation of guilt from a claim of privilege or use the testimonial revelations gleaned from the physician in any other proceeding, there occurs no harmful incriminatory abuse of the information extracted from the physician.” Id. at 218. Therefore, the right to remain silent did not apply for the doctor and he was required to sit for the mental health evaluation.
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As you can see from the two cited cases in this post, the right to remain silent in a professional license disciplinary proceeding is an important one. However, it may not always apply. In order to properly assert this right, there are requirements that you should discuss with your attorney. Being represented by an attorney is extremely important in a professional license disciplinary proceeding. An attorney will be able to advise you of your rights and may be able to put you in the best position to keep your professional license. Getting your attorney involved as soon as possible is key in defending your professional license.
At Richert Quarles P.A., our attorneys are experienced in defending clients against actions by Florida state professional licensing agencies to revoke or suspend professional licenses. Contact us today to schedule a free consultation to discuss your options and how our attorneys may be able to help you.