8-0900-11557-2

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE DEPARTMENT OF HEALTH

 

In the Matter of Janet Louise Morrison, An Unlicensed Mental Health Practitioner

ORDER ON MOTION TO DISMISS

           

            Respondent is an unlicensed mental health practitioner.  She is charged with numerous statutory violations which, if true, could result in adverse licensing action and the imposition of civil penalties.

At the initial prehearing conference, the department was directed to amend its hearing notice to identify, by count, the charges against respondent and the facts on which the charges are based.  The department filed its amended hearing notice, and respondent moved to dismiss it on April 2, 1998.  The record closed on April 27, when the department filed supplemental arguments requested by the administrative law judge (ALJ).

Based upon all of the files, records and proceedings herein, and for the reasons set forth in the accompanying Memorandum,

 

IT IS HEREBY ORDERED:

1.                  The respondent’s motion to dismiss should be and hereby is DENIED.

2.                  The respondent’s motion should be treated as a motion for a more definite statement under Minn. R. 1400.5500A (1997).

3.                  The department shall further amend its hearing notice to link the facts supporting the charges in parts 1 and 4 to the specific statutory prohibition it alleges was violated.

4.                  The department shall file and serve its second amended hearing notice within five working days following the receipt of this order.

 

Dated this 6^th  day  of May, 1998

 

                                                                             

JON L. LUNDE

Administrative Law Judge

 

 

 

MEMORANDUM

 

            Respondent requests dismissal of the amended charges on numerous grounds.  First, she argues that the hearing notice is defective because the department failed to set forth each charge in a separate count.  Respondent’s argument, which is primarily based on criminal law decisions, lacks merit.  The United States Supreme Court has stated that disbarment proceedings are quasi-criminal in nature. [1]  Previously, the Minnesota Supreme Court stated that attorney disciplinary proceedings are neither civil actions nor criminal proceedings. [2]  If disbarment proceedings are quasi-criminal in nature, it does not follow, however, that all license revocation proceedings are quasi-criminal.  On the contrary, the Minnesota Supreme Court has consistently stated that disbarment proceedings are sui generis. [3]  Even if this proceeding is properly characterized as quasi-criminal in nature, it does not follow that criminal procedures are applicable in this case and respondent has cited no cases so holding.  As is discussed below, ALJ is not persuaded that the hearing notice must set forth a separate count for each wrong alleged or set forth the time and place of each wrong in every case as might be required in a criminal proceeding. 

 

            Proceedings relating to the suspension or revocation of a license must measure up to due process requirements. [4]  Hence, respondent is entitled to procedural due process in this proceeding. [5]  One of the elements of procedural due process is fair notice of the charges against a licensee. [6]  In administrative proceedings against a licensee, there must be a definite charge, complaint or pleading. [7]  However, the charges need not be drawn with the “refinements, niceties, and subtleties” of a pleading in court. [8] 

 

            The Minnesota Supreme Court [9] has described the notice requirement stating that the charges, though informal, “should be sufficiently clear and definite, in light of the circumstances in each case, to afford the respondent an opportunity to prepare and present his defense.” [10]  This requirement is reflected in the Administrative Procedure Act, which requires “reasonable notice” in a contested case hearing. [11] 

 

            Based on a foregoing, the administrative law judge is persuaded that procedural due process only requires reasonable notice and an opportunity to defend and that the technical rules of pleading in criminal cases are inapplicable.  Instead, all that is required is that the charges be clear and definite.  There is no requirement that each charge be listed in a separate count.  For the same reasons, the department’s amended hearing notice is not defective because more than one client is referred to in a specific charge or because the department has not specifically alleged that respondent’s acts were intentional or willful.

 

            The department was ordered to identify, “by count, the charges being made against respondent.”  The department was told that each “count must contain a statement of charges (statutory violations) and a specification of the facts on which the charges are based.”  The department’s amended hearing notice does not identify the charges by “count”.  That word is not used.  However, the department has separated its charges against the respondent into five parts.  Each charge relates to the violation of a different statutory provision.  The first charge, for example, relates to violations of Minn. Stat. § 148B.68, subd. 1(f), [12] and its predecessor.  It contains the facts on which the charges are based.  The hearing notice generally complies with the ALJ’s directive and gives reasonable notice of the charges against respondent.  However, some of the respondent’s arguments require further discussion.

 

            Respondent argues that most of the six charges are barred by a six-year statute of limitations. [13]  That argument must be rejected because the statute only applies to “actions.”  A contested case proceeding is not an action for purposes of the statute. [14]  Because the statutes the department alleged were violated contain no limitation, this proceeding is not time barred. [15]  And allegations as to the time of the alleged violations are immaterial. [16]

 

            Respondent also argued that the second charge must be dismissed because it relates to acts occurring before the statutes allegedly violated were enacted.  Because those statutes do not apply retroactively, respondent requests dismissal. [17]  The department may not charge respondent with violations occurring prior to August 1, 1987, when the unlicensed mental health service providers were first subject to regulation. [18]  However, dismissal is unwarranted on that ground because the second charge alleges violations occurring after August 1, 1987.  The department is statutorily authorized to continue carrying out the responsibilities of the unlicensed mental health board which it replaced. [19] 

 

            One aspect of the amended hearing notice requires clarification.  The first charge (A.1.) alleges that the respondent engaged in conduct likely to deceive, defraud, or harm the public, or conduct demonstrating a willful or careless disregard for the health, welfare, or safety of a client.  It does not clearly indicate, however, which of the alleged facts violate the cited statute or the specific statutory provision violated.  The department should be ordered, therefore, to identify the factual averments that are related to a particular statutory provision.  The department should, at a minimum, link the various factual statements to the specific statutory language which identifies the violation.  For example, it should state whether item (f) is being charged as conduct likely to deceive, defraud, or harm the public, or conduct demonstrating a willful or careless disregard for the health, safety, and welfare of a client.  The same clarification is necessary under charge 4.  In that charge, the department should state whether the respondent obtained benefits from a client by the use of undue influence, harassment, duress, deception, or fraud.  The respondent is entitled to know which of those acts is being charged.