Senate Bill No. 737
(By Senators Bowman, Bailey, Chafin, Harrison, Jenkins, Kessler, Lanham,
McCabe, Minard, Plymale, Weeks and White)
[Passed April 9, 2005; in effect ninety days form passage.]
to amend and reenact §30-1-5 and §30-1-8 of the Code of West
Virginia, 1931, as amended, all relating to licensing boards;
establishing a time limit for licensing boards to issue a
status report and a final ruling on complaints; exception; and
to suspend and revoke licenses
when a licensee cannot be located.
Be it enacted by the Legislature of West Virginia:
That §30-1-5 and §30-1-8 of the Code of West Virginia, 1931,
as amended, be amended and reenacted, all to read as follows:
ARTICLE 1. GENERAL PROVISIONS APPLICABLE TO ALL STATE BOARDS OF
EXAMINATION OR REGISTRATION REFERRED TO IN CHAPTER.
§30-1-5. Meetings; quorum; investigatory powers; duties.
(a) Every board referred to in this chapter shall hold at
least one meeting each year, at such time and place as it may
prescribe by rule, for the examination of applicants who desire to
practice their respective professions or occupations in this state and to transact any other business which may legally come before
it. The board may hold additional meetings as may be necessary,
which shall be called by the secretary at the direction of the
president or upon the written request of any three members. A
majority of the members of the board constitutes a quorum for the
transaction of its business.
(b) The board is authorized to compel the attendance of
witnesses, to issue subpoenas, to conduct investigations and hire
an investigator and to take testimony and other evidence concerning
any matter within its jurisdiction. The president and secretary of
the board are authorized to administer oaths for these purposes.
(c) Every board referred to in this chapter has a duty to
investigate and resolve complaints which it receives and shall,
within six months of the complaint being filed, send a status
report to the party filing the complaint by certified mail with a
signed return receipt and within one year of the status report's
return receipt date issue a final ruling, unless the party filing
the complaint and the board agree in writing to extend the time for
the final ruling.
(d) Every board shall provide public access to the record of
the disposition of the complaints which it receives in accordance
with the provisions of chapter twenty-nine-b of this code. Every
board has a duty to report violations of individual practice acts
contained in this chapter to the board by which the individual may be licensed and shall do so in a timely manner upon receiving
notice of such violations. Every person licensed or registered by
a board has a duty to report to the board which licenses or
registers him or her a known or observed violation of the practice
act or the board's rules by any other person licensed or registered
by the same board and shall do so in a timely manner.
Law-enforcement agencies or their personnel and courts shall report
in a timely manner to the appropriate board any violations of
individual practice acts by any individual.
(e) Whenever a board referred to in this chapter obtains
information that a person subject to its authority has engaged in,
is engaging in or is about to engage in any act which constitutes
or will constitute a violation of the provisions of this chapter
which are administered and enforced by that board, it may apply to
the circuit court for an order enjoining the act. Upon a showing
that the person has engaged, is engaging or is about to engage in
any such act, the court shall order an injunction, restraining
order or other order as the court may deem appropriate.
§30-1-8. Denial, suspension or revocation of a license or
registration; probation; proceedings; effect of
suspension or revocation; transcript; report;
(a) Every board referred to in this chapter may suspend or
revoke the license of any person who has been convicted of a felony or who has been found to have engaged in conduct, practices or acts
constituting professional negligence or a willful departure from
accepted standards of professional conduct. Where any person has
been convicted of a felony or has been found to have engaged in
such conduct, practices or acts, every board referred to in this
chapter may enter into consent decrees, to reprimand, to enter into
probation orders, to levy fines not to exceed one thousand dollars
per day per violation, or any of these, singly or in combination.
Each board may also assess administrative costs. Any costs which
are assessed shall be placed in the special account of the board
and any fine which is levied shall be deposited in the state
treasury's general revenue fund.
(b) For purposes of this section, the word "felony" means a
felony or crime punishable as a felony under the laws of this
state, any other state or the United States.
(c) Every board referred to in this chapter may promulgate
rules in accordance with the provisions of chapter twenty-nine-a of
this code to delineate conduct, practices or acts which, in the
judgment of the board, constitute professional negligence, a
willful departure from accepted standards of professional conduct
or which may render an individual unqualified or unfit for
licensure, registration or other authorization to practice.
(d) Every board referred to in this chapter may revoke the
license or registration of an individual licensed or otherwise lawfully practicing within this state whose license or registration
in any other state, territory, jurisdiction or foreign nation has
been revoked by the licensing authority thereof.
(e) Notwithstanding any other provision of law to the
contrary, no certificate, license, registration or authority issued
under the provisions of this chapter may be suspended or revoked
without a prior hearing before the board or court which issued the
certificate, license, registration or authority, except:
(1) A board is authorized to suspend or revoke a certificate,
license, registration or authority prior to a hearing if the
person's continuation in practice constitutes an immediate danger
to the public; or
(2) After due diligence, if a board cannot locate a person
licensed under the provisions of this chapter within sixty days of
a complaint being filed against the licensee, then the board may
suspend the license, certificate, registration or authority of the
person without holding a hearing. After due diligence, if a Board
still cannot locate the person licensed under the provisions of
this chapter thirty days after the suspension of the person's
license, certificate, registration or authority, then the board may
revoke the license, certificate, registration or authority of the
person without holding a hearing.
(f) In all proceedings before a board or court for the
suspension or revocation of any certificate, license, registration or authority issued under the provisions of this chapter, a
statement of the charges against the holder of the certificate,
license, registration or authority and a notice of the time and
place of hearing shall be served upon the person as a notice is
served under section one, article two, chapter fifty-six of this
code at least thirty days prior to the hearing and he or she may
appear with witnesses and be heard in person, by counsel, or both.
The board may take oral or written proof, for or against the
accused, as it may consider advisable. If upon hearing the board
finds that the charges are true, it may suspend or revoke the
certificate, license, registration or authority and suspension or
revocation shall take from the person all rights and privileges
(g) Pursuant to the provisions of section one, article five,
chapter twenty-nine-a of this code, informal disposition may also
be made by the board of any contested case by stipulation, agreed
settlement, consent order or default. Further, the board may
suspend its decision and place a licensee found by the board to be
in violation of the applicable practice on probation.
(h) Any person denied a license, certificate, registration or
authority who believes the denial was in violation of this article
or the article under which the license, certificate, registration
or authority is authorized shall be entitled to a hearing on the
action denying the license, certificate, registration or authority. Hearings under this subsection are in accordance with the
provisions for hearings which are set forth in this section.
(i) A stenographic report of each proceeding on the denial,
suspension or revocation of a certificate, license, registration or
authority shall be made at the expense of the board and a
transcript of the hearing retained in its files. The board shall
make a written report of its findings, which shall constitute part
of the record.
(j) All proceedings under the provisions of this section are
subject to review by the supreme court of appeals.
(k) On or before the first day of July, two thousand one,
every board referred to in this chapter shall adopt procedural
rules in accordance with the provisions of article three, chapter
twenty-nine-a of this code, which shall specify a procedure for the
investigation and resolution of all complaints against persons
licensed under this chapter. The proposed legislative rules
relating only to complaint procedures or contested case hearing
procedures required by the prior enactment of this subsection shall
be redesignated as procedural rules in accordance with the
provisions of article three, chapter twenty-nine-a of this code.
Each board shall file the procedural rules required by this
subsection by the thirty-first day of January, two thousand one.
The public hearing or public comment period conducted for the
proposed legislative rules shall serve as the public hearing or public comment period required by section five, article three,
chapter twenty-nine-a of this code.