Continuing with our start-up series, your Baltimore Small Business lawyer discusses Licensing and Administrative law issues in Smal Business. If you want to review our previous posts, check out the startup checklist here; a simple primer on Contracts; or non-compete agreements. Now for a basic understanding of licensure and administrative law issues
Baltimore Small Business Lawyer: Licensure and Administrative law issues
Every type of business requires a license. Every single business. Licenses are very simply “permission” from the government to do a particular activity. Here are some examples:
- Trader’s License to buy and sell goods (county clerk’s office)
- Liquor License to buy and sell alcoholic beverages (county liquor board)
- Occupancy Permit (County)
- Zoning (County)
- Law license to practice law (Court of Appeals in Annapolis)
- Nursing license (Nursing board)
- Speech Therapist’s license (Department of Health and Mental Hygene)
- ALF (assisted living facility) license (DHMH)
- Day Care license (Board of Education)
- Food processing facility (USDA, State, & county)
As you can see, almost every business, when starting up needs a license of some form, whether it is zoning approval or a license to practice law. Every business is a bit different, but the process is generally the same. If you fail to obtain the proper license or run afoul of the laws governing the license process, rules and regulation, then the administrative procedures come into play and your business licenses could be in jeopardy.
Baltimore Small Business lawyer: Getting the license
When starting a business, the first thing I do is identify what, if any licenses my client will require to open their doors and lawfully (and hopefully profitably) run their business. The process is like this:
- Determine what licenses are required
- Determine where to apply (state, local, federal, etc)
- Determine what is needed to apply and what else needs to be done by myself or the client
- Submit the correct paperwork and of course the fees, await the decision
- Appeal if necessary.
the most important thing in any licensure process is to know that you WILL be successful because you have hit all the requirements (education, safety classes, etc) to obtain the license or permit.
Baltimore Small Business lawyer: Administrative process
If you fail to obtain a license (operating without a license), you may be facing serious charges (depending on your type of business). You risk not only shutdown of your operation, but maybe even jail time. For example unauthorized practice of the law carries a 1 year jail sentence and/or a fine of $1000. However, if you have a license and run afoul of the rules and provisions of your licensure, the process, no matter the agency is generally the same. This is true whether it is a state, federal, or local agency.
- The agency provides the licensee (you) notice of an infraction or problem. This notice must be in writing but often does not require in person service (like a court process)
- You will have some period of time to prepare a defense.
- You usually have some right to discovery (to see the documents the government agency is using against you).
- You will receive some sort of hearing. Often the rules of evidence are relaxed, but it is usually a very good idea to have a lawyer to test and object to the evidence and to advocate on your behalf. You may be able to represent yourself.
- The hearing officer will listen to the evidence and make a decision. Every agency has a different set of rules for hearings and who the hearing officers are. Often at a state level license, OAH (Office of Administrative Hearings) has judges who hear the case. They are neutral and detached judges. However, sometimes the agency that gives the license is the same one who hears your case (obvious bias).
- If you don’t prevail, you always may appeal to a local court (Circuit Court for XYZ County or Federal District Court) where you will receive some type of appeal.
However, it is important to note that every administrative process is slightly different and consultation with an attorney is highly advisable, especially if your livelihood is at stake.
Baltimore Small Business lawyer: Bottom Line
ENlawyers regularly represents individuals and businesses in both licensure and administrative processes. Our goal is always to keep you working and earning a living. Administrators at government agencies can be ruthless and relentless in their witch hunts for people who they think may have run afoul of administrative charges, regardless of what the actual evidence demonstrates. Don’t be caught flat footed without counsel call ENlawyers if you have a question about a small business license!