2019 New Mexico Statutes
Chapter 61 - Professional and Occupational Licenses
Article 1 - Uniform Licensing
Section 61-1-4 - Notice of contemplated board action; request for hearing; notice of hearing.
A. For the purpose of investigating complaints against licensees, the board may issue investigative subpoenas prior to the issuance of a notice of contemplated action as provided in this section.
B. When a board contemplates taking any action of a type specified in Subsection A, B or C of Section 61-1-3 NMSA 1978, it shall serve upon the applicant a written notice containing a statement:
(1) that the applicant has failed to satisfy the board of his qualifications to be examined or to be issued a license, as the case may be;
(2) indicating in what respects the applicant has failed to satisfy the board;
(3) that the applicant may secure a hearing before the board by depositing in the mail within twenty days after service of the notice a certified return receipt requested letter addressed to the board and containing a request for a hearing; and
(4) calling the applicant's attention to his rights under Section 61-1-8 NMSA 1978.
C. In any board proceeding to take any action of a type specified in Subsection A, B or C of Section 61-1-3 NMSA 1978, the burden of satisfying the board of the applicant's qualifications shall be upon the applicant.
D. When a board contemplates taking any action of a type specified in Subsections D through N of Section 61-1-3 NMSA 1978, it shall serve upon the licensee a written notice containing a statement:
(1) that the board has sufficient evidence that, if not rebutted or explained, will justify the board in taking the contemplated action;
(2) indicating the general nature of the evidence;
(3) that unless the licensee within twenty days after service of the notice deposits in the mail a certified return receipt requested letter addressed to the board and containing a request for a hearing, the board will take the contemplated action; and
(4) calling the licensee's attention to his rights as provided in Section 61-1-8 NMSA 1978.
E. If the licensee or applicant does not mail a request for a hearing within the time and in the manner required by this section, the board may take the action contemplated in the notice and such action shall be final and not subject to judicial review.
F. If the licensee or applicant does mail a request for a hearing as required by this section, the board shall, within twenty days of receipt of the request, notify the licensee or applicant of the time and place of hearing, the name of the person who shall conduct the hearing for the board and the statutes and regulations authorizing the board to take the contemplated action. The hearing shall be held not more than sixty nor less than fifteen days from the date of service of the notice of hearing.
G. Licensees shall bear all costs of disciplinary proceedings unless they are excused by the board from paying all or part of the fees or if they prevail at the hearing and an action specified in Section 61-1-3 NMSA 1978 is not taken by the board.
History: 1953 Comp., § 67-26-4, enacted by Laws 1957, ch. 247, § 4; 1993, ch. 295, § 3; 2003, ch. 334, § 2.
ANNOTATIONSThe 2003 amendment, effective July 1, 2003, in Paragraph D(4), substituted "as provided in" for "under"; in Subsection F, added "of hearing" at the end.
The 1993 amendment, effective June 18, 1993, added present Subsection A; redesignated the former first paragraph of Subsection A as present Subsection B; rewrote the former second paragraph of Subsection A as present Subsection C; redesignated former Subsections B through D as Subsections D through F; substituted "D through N" for "D, E or F" in the introductory language of Subsection D; added Subsection G; and made stylistic changes in Subsections B, D and F.
Guide to assessment of costs. — Rule 1-054 NMRA and Section 61-32-24(F) NMSA 1978 provide guidance to the board when considering a cost assessment, but neither provision is an exhaustive list of the types of costs that are assessable to a disciplined licensee and any costs that are not included in either provision are to be reviewed to determine whether the board acted fraudulently, arbitrarily or capriciously; whether assessment of the cost is supported by substantial evidence; and whether the board acted in accordance with law. N.M. Bd. of Veterinary Med. v. Riegger, 2007-NMSC-044, 142 N.M. 248, 164 P.3d 949.
Assessable costs. — Transcription costs, and if the board is the prevailing party, the costs of at least one expert witness, are assessable to a disciplined licensee. N.M. Bd. of Veterinary Med. v. Riegger, 2007-NMSC-044, 142 N.M. 248, 164 P.3d 949.
Non-assessable costs. — The hearing officer's costs, the cost of a hearing room and board member's per diem and mileage costs are not assessable to a disciplined licensee. N.M. Bd. of Veterinary Med. v. Riegger, 2007-NMSC-044, 142 N.M. 248, 164 P.3d 949.
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 regarding the granting and revoking of certificates admitting physicians and surgeons to practice and, in view of the fact that the statutes do not provide 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.
Content of notice. — The "evidence" to be set out in the notice of contemplated action under this statute is the evidence of the ground or grounds to be relied upon in taking the contemplated action under former Section 61-5-14 NMSA 1978, not the evidence to be adduced by way of explanation and determination of rehabilitation under the Criminal Offender Employment Act, Section 28-2-1 NMSA 1978 et seq. Weiss v. N.M. Bd. of Dentistry, 1990-NMSC-077, 110 N.M. 574, 798 P.2d 175.
Notice of contemplated action sufficient. — The notice of contemplated action in this case was sufficient to provide the licensee with notice, even though it did not state that the qualifying party certificate was in jeopardy; the licensee knew the general nature of the proceedings against him and that is all that notice pleading requires. Further, the licensee waived the lack of notice issue by appearing at the administrative hearing and defending on the merits. Oden v. State Regulation & Licensing Dep't, 1996-NMSC-022, 121 N.M. 670, 916 P.2d 1337.
Psychologist was afforded adequate notice that she might be questioned regarding what means she had used to assess her former patient's needs and potential for exploitation; the relevant board rules, which were quoted in the notice of contemplated action, provided that personal relationships with former clients could only be entered with "caution and deliberateness", which should be reflected by the psychologist considering issues such as the need for future treatment and the potential for exploitation of the client. N.M. State Bd. of Psychologist Exam'rs v. Land, 2003-NMCA-034, 62 N.M. 1244, 62 P.3d 1244, cert. denied, 133 N.M. 413, 63 P.3d 516.
The notice of contemplated action was adequate where it 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. Rex, Inc. v. Manufactured Hous. Comm., 2003-NMCA-134, 134 N.M. 533, 80 P.3d 470.
The manufacturer was not prejudiced by the omission of the right to subpoena witnesses in the notice of contemplated action because the hearing was based upon the judgment and findings of the district court in an Unfair Practices Act action, and the manufacturer did not have the right to relitigate them. Rex, Inc. v. Manufactured Hous. Comm., 2003-NMCA-134, 134 N.M. 533, 80 P.3d 470.
Rule 1-054 NMRA does not govern the award of costs in an administrative disciplinary action under the Uniform Licensing Act. N.M. Bd. of Veterinary Med. v. Riegger, 2006-NMCA-069, 139 N.M. 679, 137 P.3d 619, aff'd in part, rev'd in part, 2007-NMSC-044, 142 N.M. 248, 164 P.3d 947.
Assessment of cost of stenographic record to licensee in disciplinary hearing was not arbitrary or capricious because employing a stenographer, rather than tape recording the proceedings, was a permissible and logical choice. N.M. Bd. of Veterinary Med. v. Riegger, 2006-NMCA-069, 139 N.M. 679, 137 P.3d 619, aff'd in part, rev'd in part, 2007-NMSC-044, 142 N.M. 248, 164 P.3d 947.
Assessment of board members' per diem and mileage costs to licensee in disciplinary hearing was proper. N.M. Bd. of Veterinary Med. v. Riegger, 2006-NMCA-069, 139 N.M. 679, 137 P.3d 619, aff'd in part, rev'd in part, 2007-NMSC-044, 142 N.M. 248, 164 P.3d 947.
Requirement of actual notice to licensee. — The Uniform Licensing Act requires actual notice to be given to an individual who may lose a license, pursuant to the hearing requirements contained in the law. In that case, a public policy-making body which convenes a hearing on a licensing matter and which is subject to the provisions of the act must follow the act's specific notice tenets. In these cases, mere posting of such notice is insufficient as it affects the individual licensee. 1990 Op. Att'y Gen. No. 90-29.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 51 Am. Jur. 2d Licenses and Permits § 60.
Rights as to notice and hearing in proceeding to revoke or suspend license to practice medicine, 10 A.L.R.5th 1.
53 C.J.S. Licenses §§ 43, 55, 56.
