THE OKLAHOMA BAR JOURNAL 26 | APRIL 2025 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. to adjudicate the rights of an individual, that agency is required to provide due process similar to civil courts.10 Courts consider the balancing of three factors to determine whether due process was afforded in administrative actions: “First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”11 Here, OMMA has the authority to suspend and revoke business licenses, fine license holders and, as discussed below, “embargo” and destroy product. Therefore, OMMA acts in a quasi-judicial manner, and its proceedings must comport with due process guarantees. OMMA must balance the interests of individuals and procedural safeguards in protecting constitutional rights. Unfortunately, at least three OMMA rules raise serious due process concerns: summary suspension, discovery and summary order of destruction. DUE PROCESS CONCERNS Summary Suspension Oklahoma Administrative Code (OAC) Section 442:1-1-7 provides that if OMMA “finds that the public health, safety, or welfare requires emergency action,” then the “summary suspension of any licensee may be ordered pending proceedings for revocation.” The licensee may then request a hearing on the suspension, but “the burden [is] on the licensee to show good cause why the suspension should be set aside.”12 This rule places the burden of proof solely on the licensee. When the government initiates legal proceedings against a private individual or company, the government bears the burden of proving it is justified in taking adverse action.13 If the government claims someone violated the law and seeks to punish the individual, the government must meet the applicable standard of proof showing the evidence of the violation. Even with a showcause order issued on a temporary employment license suspension, the burden of proof remains on the accusing party, the government, to produce evidence supporting its accusations.14 Not only does the law clearly place the burden on the government, but arguably, the standard of that burden should be clear and convincing evidence in order to ensure due process. The Oklahoma Supreme Court has previously addressed the standard of proof required to meet due process in administrative proceedings. In Johnson v. Board of Governors of Registered Dentists of State of Okla., a dentist petitioned the Supreme Court of Oklahoma to review an administrative disciplinary action imposed against the dentist by the Board of Governors of Registered Dentists.15 The court emphasized the importance of the right to a fair hearing because of the “possible loss of a constitutionally protected property right, the loss of a livelihood, and the loss of a professional reputation.”16 As part of that fair hearing, the Supreme Court of Oklahoma took issue with the standard of proof – reasoning the government should have had a higher standard of proof: “The proper standard of proof in disciplinary proceedings against a person holding a professional license is clear and convincing If the government claims someone violated the law and seeks to punish the individual, the government must meet the applicable standard of proof showing the evidence of the violation.
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