Extended Degree Program
Lecture Notes

Approximate Time:

6 hours.

Key Points

A. Definitions

1. Registration: The term registration was originally restricted to the recording of a list of individuals involved in a particular activity, i.e., merely data gathering. However, registration, particularly professional registration, has taken on the additional connotation of assuring certain minimum standards of education, training and/or experience for practitioners of the profession, making it synonymous with the term certification. Thus, the terms Registered Sanitarian and Certified Industrial Hygienist both connote a professional worker who has passed some kind of an examination designed to test for a minimum competency in their respective fields.

2. Permits and Licenses: The terms license and permit have come to be used inter-changeably. Both are special permission by the government to perform an otherwise unlawful activity. That is, the government first bans or prohibits anyone from performing a particular activity and then establishes authorized exceptions to the ban through the issuance of a license or permit. Usually these also contain certain conditions and performance standards designed to limit the activity to qualified individuals and to insure safe and healthful operations.

B. Authority

Since the U. S. Constitution speaks in terms of "property", for the purpose of meeting "due process" requirements, this concept should be used instead of the ambiguous terms of "right" and "privilege". An intangible property right is said to exist when there is a mutual expectation between the parties. For a permit, the mutual expectation is that upon meeting the standards of the permit, a person will be allowed to continue operating. The agency's expectation is that the person will meet and continue to abide by the standards in order to lawfully maintain his/her operation.

A person's right to a permit devolves from two sources. One is the licensing statute itself. The other is constitutional guarantees. Constitutional guarantees are bare minimums that apply across the board. Licensing statutes may merely incorporate the constitutional protections requirements or they may expand them to provide greater protection. As long as the minimal constitutional protections are provided the licensing statute controls the agency's actions and discretions.

C. Process

In the licensing process there are three critical points with different legal implications. The first point is the application. The second is during the term of the permit. And, the third is at the time of time of renewal.

1. Initial Application: When a person applies to an agency for a license, there is a mutual expectation that he will receive it, if he meets all of the standards. However, in the absence of statutory provisions, there is no right to a hearing before the agency if the license is denied. If the agency is sued over the denial of a permit application, the court will only look to see if the decision of the agency was arbitrary. The applicant has the full burden of proving that he has met all of the agency's standards and that the agency's action was arbitrary.

2. During the Term of the Permit: Once a license or permit has been issued, the power and the burden shift. A mutual expectation exists between the licensee and the agency that the licensee will be allowed to continue operating during the term of the permit. This, provided that the licensee fulfills the terms and conditions of the permit. The mutual expectation creates "due process" rights and shifts to the agency the burden of proving any violations and acting on them. If the agency wishes to break the mutual expectation and take away the licensee's property, i.e., the permit, it must follow "due process" to achieve suspension or revocation of the license or permit. At a trial, the agency may have to prove by substantial evidence or by a preponderance of the evidence that there is sufficient reason to act upon the person's license.

3. Renewal of the Permit or License: A license renewal could be treated in the same manner as the initial application, or as a mere extension of the license's terms, or as some hybrid in between. The treatment depends upon the licensing statute and the agency's operations. If either the statute or the operation fosters or creates a mutual expectation of continued licensure, then the agency must deal with the licensee in virtually the same manner as it would during the term of the license or permit. Therefore, any nonrenewal would require notice, a hearing and substantial evidence. An agency's operation would create a mutual expectation, if previous license renewals were automatically given upon payment of the fee and if there existed significant violations about which the agency said or did nothing.

D. The Effect of Licensing

In the previous lesson we examined the issue of entry and indicated that the requirement for a business to have and maintain a license or permit might constitute an exception to the general requirement for obtaining a warrant when an inspector is refused entry. The case In Re: State Department of Environmental Protection [Reading #21] discusses the application of this exception to the warrant requirement. Since many environmental health programs involve the licensing or permitting of an establishment or business the court's consideration of the issues in this case are particularly important.

The court distinguished between two types of cases. The first involves "general regu-latory schemes" which apply to all residences, or all structures, or all employees within a particular jurisdiction. The second type of case involves regulatory legislation governing specific licensed industries.

Progress Assessment Exercise

Download the following Microsoft Word file and answer the questions. Your responses should be brief, yet contain sufficient depth to demonstrate your understanding of the issues and/or concepts involved. All progress assessment exercises should be typewritten, well organized and clearly presented. You will be evaluated on the effectiveness and organization of your responses as well as on the substance of the content. When you have finished, email your answers to the instructor. You may also send them by US mail to:

Mr. Charles D. Treser
Department of Environmental & Occupational Health Sciences
University of Washington
Campus Box 357234
Seattle, WA 98195-7234

Exercise No. 7

When you have finished you may proceed to Lesson 8 Orders and Citations.