2019 New Mexico Statutes
Chapter 61 - Professional and Occupational Licenses
Article 1 - Uniform Licensing
Section 61-1-3 - Opportunity for licensee or applicant to have hearing.

Every licensee or applicant shall be afforded notice and an opportunity to be heard, before the board has authority to take any action which would result in:

A. denial of permission to take an examination for licensing for which application has been properly made as required by board rule;

B. denial of a license after examination for any cause other than failure to pass an examination;

C. denial of a license for which application has been properly made as required by board rule on the basis of reciprocity or endorsement or acceptance of a national certificate of qualification;

D. withholding the renewal of a license for any cause other than:

(1) failure to pay the required renewal fee;

(2) failure to meet continuing education requirements; or

(3) issuance of a temporary license extension if authorized by statute;

E. suspension of a license;

F. revocation of a license;

G. restrictions or limitations on the scope of a practice;

H. the requirement that the applicant complete a program of remedial education or treatment;

I. monitoring of the practice by a supervisor approved by the board;

J. the censure or reprimand of the licensee or applicant;

K. compliance with conditions of probation or suspension for a specific period of time;

L. payment of a fine for a violation not to exceed one thousand dollars ($1,000) for each violation, unless a greater amount is provided by law;

M. corrective action, as specified by the board; or

N. a refund to the consumer of fees that were billed to and collected from the consumer by the licensee.

History: 1953 Comp., § 67-26-3, enacted by Laws 1957, ch. 247, § 3; 1981, ch. 349, § 2; 1993, ch. 295, § 2.

The 1993 amendment, effective June 18, 1993, added the Paragraph (1) designation and Paragraphs (2) and (3) to Subsection D; added Subsections G through N; and made stylistic changes throughout the section.

Sufficiency of notice and hearing determined under due process standards. Because there is no precise statutory guideline for a proceeding under this section and due process requires adequate notice and a hearing before the state can take action seeking remuneration against a licensee, the sufficiency of the notice and hearing must be determined under a constitutional due process analysis. Rex, Inc. v. Manufactured Hous. Comm., 2003-NMCA-134, 134 N.M. 533, 80 P.3d 470.

A constitutional due process analysis under this section must consider and balance three factors: (1) the private interest affected, (2) the risk of an erroneous deprivation of the interest with the procedures used, and (3) the government's interest, including the fiscal and administrative burdens of providing additional procedures. Rex, Inc. v. Manufactured Hous. Comm., 2003-NMCA-134, 134 N.M. 533, 80 P.3d 470.

Due process requirements were satisfied where the notice of contemplated action cited the statute and the rules the committee relied upon in contemplating the attachment of the consumer bond, contained information about the actual bond, and outlined the general nature of the evidence, and where the licensee had a full and fair opportunity to be heard on the issue of whether collateral estoppel applied on the issues of misrepresentation and loss by the consumers. Rex, Inc. v. Manufactured Hous. Comm., 2003-NMCA-134, 134 N.M. 533, 80 P.3d 470.

Probable cause hearing not necessary before revocation proceedings. — A licensee is not deprived of any due process rights when no probable cause hearing is conducted prior to the institution of license revocation proceedings. Keney v. Derbyshire, 718 F.2d 352 (10th Cir. 1983).

Charging board not disqualified in hearing on charge. — The board of medical examiners has exclusive jurisdiction of the granting and revoking of certificates admitting physicians and surgeons to practice and, in view of the absence of a provision for disqualification of board members, proceedings before the board may not be restrained merely by reason of the fact that the board itself initiated the proceedings against a physician and was, therefore, an interested party. Seidenberg v. N.M. Bd. of Med. Exam'rs, 1969-NMSC-028, 80 N.M. 135, 452 P.2d 469.

Zeal in performing public duty does not disqualify. Seidenberg v. N.M. Bd. of Med. Exam'rs, 1969-NMSC-028, 80 N.M. 135, 452 P.2d 469.

Authority of pharmacy board. — Subsection L grants the board of pharmacy authority to fine pharmacist licensees up to $1,000.00 for any violation of the Pharmacy Act, Section 61-11-1 NMSA 1978 et seq., or for a violation of provisions of the board's rules and regulations for which the Pharmacy Act authorizes disciplinary action. Additionally, Subsection L grants the board authority to impose fines of the same amounts upon non-pharmacist registrants and licensees over whom the board has the power to impose other forms of discipline including license or registration revocation and suspension. As to persons over whom the board lacks such disciplinary powers under the Pharmacy Act, the Uniform Licensing Act does not grant the power to impose fines. 1995 Op. Att'y Gen. No. 95-01.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 51 Am. Jur. 2d Licenses and Permits §§ 16, 57, 139.

Validity of statute or ordinance vesting discretion as to license in public officials without prescribing a rule of action, 12 A.L.R. 1435, 54 A.L.R. 1104, 92 A.L.R. 400.

Suspicion of intended violation of its conditions as ground for refusal of license, 27 A.L.R. 325.

Personal liability of public officers for refusing to grant license, 85 A.L.R. 298.

License holder's right to question propriety of issuing license to other persons, 109 A.L.R. 1259.

What amounts to conviction or satisfies requirement as to showing of conviction, within statute making conviction a ground for refusing to grant or for cancelling license or special privilege, 113 A.L.R. 1179.

Prohibition as means of controlling licensing official, 115 A.L.R. 15, 159 A.L.R. 627.

Revocability of license for fraud or other misconduct before or at the time of its issuance, 165 A.L.R. 1138.

Change in law pending application for permit or license, 169 A.L.R. 584.

Construction of "grandfather clause" of statute or ordinance regulating or licensing business or occupation, 4 A.L.R.2d 667.

Right of person wrongfully refused license upon proper application therefor to do act for which license is required, 30 A.L.R.2d 1006.

Right to attack validity of statute, ordinance or regulation relating to occupational or professional license as affected by applying for, or securing, license, 65 A.L.R.2d 660.

Bias of members of license revocation board, 97 A.L.R.2d 1210.

53 C.J.S. Licenses §§ 43, 55.