§ 43-10A-17. Denial or revocation of license; other discipline; subpoenas; judicial review; reinstatement; investigation; immunity; failure to appear; voluntary surrender of license; other applicable law.

CODE OF GEORGIA

Title 43. PROFESSIONS AND BUSINESSES

Chapter 10A. PROFESSIONAL COUNSELORS, SOCIAL WORKERS, AND MARRIAGE AND FAMILY THERAPISTS

Current through 2019 Chapter 321

§ 43-10A-17. Denial or revocation of license; other discipline; subpoenas; judicial review; reinstatement; investigation; immunity; failure to appear; voluntary surrender of license; other applicable law

(a) The board shall have the authority to refuse to grant a license to an applicant therefor or to revoke the license of a person licensed by the board or to discipline a person licensed by the board, upon a finding by a majority of the entire board that the licensee or applicant has:
(1) Failed to demonstrate the qualifications or standards for a license contained in this chapter or rules or regulations promulgated thereunder; it shall be incumbent upon the applicant to demonstrate to the satisfaction of the board that he meets all the requirements for the issuance of a license, and, if the board is not satisfied as to the applicant's qualifications, it may deny a license without a prior hearing; provided, however, that the applicant shall be allowed to appear before the board if he so desires;
(2) Knowingly made misleading, deceptive, untrue, or fraudulent representations in the practice of a specialty or on any document connected therewith; or practiced fraud or deceit or intentionally made any false statement in obtaining a license to practice the specialty; or made a false statement or deceptive registration with the board;
(3) Been convicted of any felony or of any crime involving moral turpitude in the courts of this state or any other state, territory, or country or in the courts of the United States; as used in this paragraph and paragraph (4) of this subsection, the term "felony" shall include any offense which, if committed in this state, would be deemed a felony, without regard to its designation elsewhere; and, as used in this paragraph, the term "conviction" shall include a finding or verdict of guilty or a plea of guilty, regardless of whether an appeal of the conviction has been sought;
(4) Been arrested, charged, and sentenced for the commission of any felony, or any crime involving moral turpitude, where:
(A) First offender treatment without adjudication of guilt pursuant to the charge was granted; or
(B) An adjudication or sentence was otherwise withheld or not entered on the charge except with respect to a plea of nolo contendere.

The plea of nolo contendere or the order entered pursuant to the provisions of Article 3 of Chapter 8 of Title 42, relating to probation of first offenders, or other first offender treatment shall be conclusive evidence of arrest and sentencing for such crime;

(5) Had his license to practice a specialty revoked, suspended, or annulled by any lawful licensing authority other than the board; or had other disciplinary action taken against him by any such lawful licensing authority other than the board; or was denied a license by any such lawful licensing authority other than the board, pursuant to disciplinary proceedings; or was refused the renewal of a license by any such lawful licensing authority other than the board, pursuant to disciplinary proceedings;
(6) Engaged in any unprofessional, immoral, unethical, deceptive, or deleterious conduct or practice harmful to the public, which conduct or practice materially affects the fitness of the licensee or applicant to practice the specialty or is of a nature likely to jeopardize the interest of the public, which conduct or practice need not have resulted in actual injury to any person or be directly related to the practice of the specialty but shows that the licensee or applicant has committed any act or omission which is indicative of bad moral character or untrustworthiness; unprofessional conduct shall also include any departure from, or the failure to conform to, the minimal standards of acceptable and prevailing practice of the specialty, as well as the practice of any professional activity which the licensee or applicant is not qualified to perform by virtue of not having acquired the requisite professional education, training, or experience;
(7) Knowingly performed any act which in any way aids, assists, procures, advises, or encourages any unlicensed person or any licensee whose license has been suspended or revoked by the board to practice unlawfully a specialty or to practice outside the scope of any disciplinary limitation placed upon the licensee by the board;
(8) Violated a statute, law, or any rule or regulation of this state, any other state, the board, the United States, or any other lawful authority (without regard to whether the violation is criminally punishable), which statute, law, or rule or regulation relates to or in part regulates the practice of the specialty, when the licensee or applicant knows or should know that such action is violative of such statute, law, or rule; or violated a lawful order of the board previously entered by the board in a disciplinary hearing, consent decree, or license reinstatement;
(9) Been adjudged mentally incompetent by a court of competent jurisdiction within or without this state; any such adjudication shall automatically suspend the license of any such person and shall prevent the reissuance or renewal of any license so suspended for as long as the adjudication of incompetence is in effect; or
(10) Displayed an inability to practice the specialty with reasonable skill and safety to the public or has become unable to practice the specialty with reasonable skill and safety to the public by reason of illness, use of alcohol, drugs, narcotics, chemicals, or any other type of material:
(A) In enforcing this subsection, the board may, if it has a reasonable basis to believe that the licensee is practicing while incapacitated in the performance of his or her duties by reason of substance abuse or mental or physical illness, require a licensee or applicant to submit to a mental, physical, or mental and physical examination by an appropriate licensed practitioner designated by the board. The results of such examination shall be admissible in any hearing before the board, notwithstanding any claim of privilege under a contrary rule of law or statute. If a licensee fails to submit to each examination when properly directed to do so by the board, the board may summarily suspend the license of such licensee, if the public health, safety, and welfare imperatively require such action, and thereafter enter a final order upon proper notice, hearing, and proof of such refusal; and
(B) For the purpose of this subsection, the board, if it has a reasonable basis to believe that the licensee is incapacitated in the performance of his or her duties by reason of substance abuse or mental or physical illness, may require the licensee to produce or give the board permission to obtain any and all records relating to the alleged incapacitating mental or physical condition of a licensee or applicant, including that individual's personal psychiatric, psychological, and mental health records; and such records shall be admissible in any hearing before the board. If a licensee fails to provide such records when properly directed to do so by the board, the board may summarily suspend the license of such licensee, if the public health, safety, and welfare imperatively require such action, and thereafter enter a final order upon proper notice, hearing, and proof of such refusal.
(b) The provisions of Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," with respect to emergency action by a professional licensing board and summary suspension of a license are adopted and incorporated by reference into this Code section.
(c) For purposes of this Code section, the board may obtain, through subpoena by the division director, upon reasonable grounds, any and all records relating to the mental or physical condition of a licensee or applicant, and such records shall be admissible in any hearing before the board.
(d) When the board finds that any person is unqualified to be granted a license or finds that any person should be disciplined pursuant to subsection (a) of this Code section or the laws, rules, or regulations relating to a specialty, the board may take any one or more of the following actions:
(1) Refuse to grant or renew a license to an applicant;
(2) Administer a public or private reprimand, but a private reprimand shall not be disclosed to any person except the licensee;
(3) Suspend any license for a definite period or for an indefinite period in connection with any condition which may be attached to the restoration of said license;
(4) Limit or restrict any license as the board deems necessary for the protection of the public;
(5) Revoke any license;
(6) Condition the penalty upon, or withhold formal disposition pending, the applicant's or licensee's submission to such care, counseling, or treatment as the board may direct; or
(7) Impose a fine not to exceed $500.00 for each violation of a law, rule, or regulation relating to the specialty.
(e) In addition to and in conjunction with the actions described in subsection (d) of this Code section, the board may make a finding adverse to the licensee or applicant but withhold imposition of judgment and penalty; or it may impose the judgment and penalty but suspend enforcement thereof and place the licensee on probation, which probation may be vacated upon noncompliance with such reasonable terms as the board may impose.
(f) Initial judicial review of a final decision of the board shall be had solely in the superior court of the county of domicile of the board.
(g) In its discretion, the board may reinstate a license which has been revoked or issue a license which has been denied or refused, following such procedures as the board may prescribe by rule; and, as a condition thereof, it may impose any disciplinary or corrective method provided in this Code section.
(h)
(1) The division director is vested with the power and authority to make, or cause to be made through employees or agents of the board, such investigations as he or she or the board may deem necessary or proper for the enforcement of the provisions of this chapter. Any person properly conducting an investigation on behalf of the board shall have access to and may examine any writing, document, or other material relating to the fitness of any licensee or applicant. The division director or his or her appointed representative may issue subpoenas to compel such access upon a determination that reasonable grounds exist for the belief that a violation of this chapter may have taken place.
(2) The results of all investigations initiated by the board shall be reported solely to the board, and the records of such investigations shall be kept for the board by the division director, with the board retaining the right to have access at any time to such records. No part of any such records shall be released, except to the board, for any purpose other than a hearing before the board, nor shall such records be subject to subpoena; provided, however, that the board shall be authorized to release such records to another enforcement agency or lawful licensing authority.
(3) If a licensee is the subject of a board inquiry, all records relating to any person who receives services rendered by that licensee in his or her capacity as licensee shall be admissible at any hearing held to determine whether a violation of this chapter has taken place, regardless of any statutory privilege; provided, however, that any documentary evidence relating to a person who received those services shall be reviewed in camera and shall not be disclosed to the public.
(4) The board shall have the authority to exclude all persons during its deliberations on disciplinary proceedings and to discuss any disciplinary matter in private with a licensee or applicant and the legal counsel of that licensee or applicant.
(i) A person, firm, corporation, association, authority, or other entity shall be immune from civil and criminal liability for reporting or investigating the acts or omissions of a licensee or applicant which violate the provisions of this chapter or for initiating or conducting proceedings against such licensee or applicant, if such report is made or action is taken in good faith, without fraud or malice. Any person who testifies or who makes a recommendation to the board in the nature of peer review, in good faith, without fraud or malice, before the board in any proceeding involving the provisions of subsection (a) of this Code section shall be immune from civil and criminal liability for so testifying.
(j) Neither the issuance of a private reprimand nor the denial of a license by reciprocity nor the denial of a request for reinstatement of a revoked license nor the refusal to issue a previously denied license shall be considered to be a contested case within the meaning of Chapter 13 of Title 50, the "Georgia Administrative Procedure Act"; notice and hearing within the meaning of said chapter shall not be required, but the applicant or licensee shall be allowed to appear before the board if he so requests.
(k) If any licensee or applicant after reasonable notice fails to appear at any hearing of the board, the board may proceed to hear the evidence against such licensee or applicant and take action as if such licensee or applicant had been present. A notice of hearing, initial or recommended decision, or final decision of the board in a disciplinary proceeding shall be served upon the licensee or applicant by certified mail or statutory overnight delivery, return receipt requested, to the last known address of record with the board. If such material is returned marked "unclaimed" or "refused" or is otherwise undeliverable and if the licensee or applicant cannot, after diligent effort, be located, the division director shall be deemed to be the agent for service for such licensee or applicant for purposes of this Code section, and service upon the division director shall be deemed to be service upon the licensee or applicant.
(l) The voluntary surrender of a license or the failure to renew a license by the end of an established penalty period shall have the same effect as a revocation of said license, subject to reinstatement in the discretion of the board. The board may restore and reissue a license to practice a specialty and, as a condition thereof, may impose any disciplinary sanction provided by this Code section.
(m) This Code section shall apply equally to all licensees or applicants whether individuals, partners, or members of any other incorporated or unincorporated associations, limited liability companies, corporations, or other associations of any kind whatsoever.
(n) Regulation by the board of a specialty shall not exempt licensees under this chapter from regulation pursuant to any other applicable law, including but not limited to Part 2 of Article 15 of Chapter 1 of Title 10, the "Fair Business Practices Act of 1975."

Cite as OCGA § 43-10A-17