[License Challenge] Talia Was Licensed by Her State to Train

question 50

Multiple Choice

[License Challenge] Talia was licensed by her state to train massage therapists. The state-licensing agency, the Aesthetic and Massage Commission, took very seriously its role of enforcing the state statute enabling the Commission to do its work and providing that licensed massage therapists must refrain from "any act or conduct indicating bad faith, incompetence, dishonesty, or improper dealing." Rules were passed authorizing the agency to revoke the license of anyone found guilty of such acts or conduct. While driving home late one night from a party, Talia was stopped by police and arrested for driving under the influence of alcohol. She pled guilty to the offense. When the Aesthetic and Massage Commission discovered the conviction, the officials of the agency met, decided that Talia might drink on the job, and that she might pose a danger to students. Accordingly, her license to teach massage therapy was revoked. Talia threatened to sue to retain her license and was told by the agency head that she had no right to appeal to court because, based on her admission of guilt, no factual dispute was involved. The agency official went on to say that even if an appealable issue existed, agency action may only be overturned when there is clear and convincing evidence that the agency exceeded its discretion. The administrative system in Talia's state is identical to the federal system.
-Which of the following is true regarding the statement by the agency head that agency action may only be overturned when there is clear and convincing evidence that the agency exceeded its discretion?

• A) The agency representative is essentially correct because agency decisions are upheld in over 99% of the cases and may only be reversed if no evidence whatsoever supports the agency's interpretation of its regulation.
• B) The agency representative is incorrect because agency decisions are usually reversed unless they are supported by clear and convincing evidence.
• C) The agency representative is incorrect because agency decisions are usually reversed unless it can be established that an appeal of an agency decision is frivolous and without reason.
• D) The agency representative is incorrect because a court will review a dispute with an agency de novo, meaning independent basis, giving no deference to the agency decision.
• E) The agency representative is incorrect because while agency actions are usually upheld, they may be reversed if the agency exceeded its power or the facts are not supported by substantial evidence.

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