IS REPORTING MANDATORY?

Our communications are not intended to deal exclusively with mandatory reporting requirements, whether applicable or not. The Administrative Procedure Act (APA) is found in the California Government Code, section 11340 et seq. This statute establishes “rulemaking” procedures and standards for California state agencies. Additionally, California regulations must be in compliance with regulations adopted by OAL (see California Code of Regulations, title 1, sections 1-280).  The California Code of Regulations is the official publication of regulations adopted, amended or repealed by California state agencies. Reporting requirements vary from state to state and may be different from one California Regulatory Agency to another. The mandated reporting can be found in the particular license “Practice Act” as well as the rules and regulations that apply to  the profession or occupation.

Example for a Pharmacist: ANY controlled substance loss, small or large, must be reported to the California Board of Pharmacy (BOP) within fourteen (14) calendar days from the date of loss when it was a result of the theft by a licensed employee, or when it is from any other type of loss, within thirty (30) calendar days.

Example for an RN: is the reporting of convictions by Applicants for an RN license issued by the Board of Registered Nursing (BRN). All prior convictions substantially related to the duties, functions and/or qualifications of a registered nurse are reviewed by the BRN on a case by case basis. Since July 1, 2020, applicants are not asked about their prior criminal conviction history, but they will be discovered upon the Board’s receipt of an individual’s fingerprint results.The Board will not generally take action on convictions older than seven years, however, there are several exceptions, such as a serious felony that includes approximately 42 different crimes. Upon renewal of a nurse’s license, the BRN requires nurses to disclose whether they have had ANY license disciplined by a government agency or other disciplinary body; or if they have been convicted of any crime in any state, U.S. territory, military court or other country since their  last renewal. Failing to disclose ANY conviction may be grounds for disciplinary action as the government will contend you falsified information required on your renewal form; this is mandatory even when a conviction is expunged. As stated earlier in this paragraph, any felony or misdemeanor conviction substantially related to the duties, functions and/or qualifications of a registered nurse can be the basis for disciplinary action.

Example for a Physician, who is licensed in California is required to notify the Medical Board (MBC) of certain specific occurrences. Reporting forms and links are set forth below. Pursuant to California Business & Professions Code:

  • § 801.01(b)(2), a licensee must report malpractice settlements over $30,000 and judgments or arbitration awards of any amount, if the licensee does not possess professional liability insurance. (See Report of Settlement, Judgment or Arbitration Award)
  • § 802.1, a licensee must report:
  • An indictment or information charging a felony against the licensee.
  • A conviction, including any verdict of guilty, or plea of guilty or no contest, of any felony or misdemeanor. (See Physician Reporting – Criminal Actions)
  • §2240, a licensee who performs a medical procedure outside of a general acute care hospital, that results in the death of any patient on whom that medical treatment was performed by the licensee, or by a person acting under the licensee’s orders or supervision, shall report, in writing, on a form prescribed by the board, that occurrence to the board within 15 days after the occurrence. (See Outpatient Surgery – Patient Death Reporting Form)
  • § 2021, each licensee shall report to the board each and every change of address within 30 days after each change. (See Notification of Name Change and Address of Record )

We begin with a laser focused analysis of all of the facts and circumstances, and a pivotal strategy to develop a lengthy and comprehensive written presentation, 60 to 75 pages, so that our client is not defined by the actual and perceived conclusions regarding an underlying case. In addition, we pursue and underscore exculpatory evidence and other proof by initiating steps that minimize the risk our client is charged with unprofessional conduct &/or other grounds for disciplinary action. We do not gamble on the Regulatory Agency claiming the underlying situation is substantially related to the duties, functions and qualifications of a licensed professional or occupation. We also do not want to gamble the governmental agency may not perceive there is a basis  to conclude a possible threat to the health and safety of the public; nor do we want to risk by assuming that unequivocally the underlying matter does not evince unfitness, lack of good judgment, etc.

Please note the CALIFORNIA CODE OF REGULATIONS, 16 CCR § 1444 states: [§ 1444. Substantial Relationship Criteria]. “A conviction or act shall be considered to be substantially related to the qualifications, functions or duties of a registered nurse if to a substantial degree it evidences the present or potential unfitness of a registered nurse to practice in a manner consistent with the public health, safety, or welfare Such convictions or acts shall include but not be limited to the following: [Emphasis Added; we prefer to error on the side of caution and, therefore, have provided the information herein](a) Assaultive or abusive conduct including, but not limited to, those violations listed in subdivision (d) of Penal Code Section 11160. (b) Failure to comply with any mandatory reporting requirements. (c) Theft, dishonesty, fraud, or deceit. (d) Any conviction or act subject to an order of registration pursuant to Section 290 of the Penal Code (Emphasis Added).

We understand a previous case may be unsettling; however, our role is to level the playing field and we do so by underscoring in a long written argument both a defense and offense. If you have a situation you would like us to be of  assistance, do not hesitate to send an email [or call us at 1.619.583.0350] during our regular hours of 8:30 am to 8:30 pm seven (7) days a week.

 

Constitutionality of Home Search in Question

On November 20, 2020, the U.S. Supreme Court in the case of CANIGLIA, EDWARD A. vs. STROM, ROBERT F., ET AL. (Case Number 20 -157), granted the Petition for a Writ of Certiorari, which is the procedure in which the Supreme Court is asked by a litigant who is challenging a case (akin to an “appeal”) to review the merits of a lower Court’s Decision.

The underlying case is worthy of note in that the litigant, who is entitled Petitioner, Edward Caniglia, sought to set aside the Decision of the First Circuit of the U.S. Court of Appeals, Caniglia v. Strom, 953 F.3d 112 (1st Cir. 2020), which Court held against him and in favor of law enforcement. The facts of the 2015 case dealt with Caniglia, who was 68 years old with no criminal history and no record of domestic violence; however, he got into an argument with his wife with whom he was married for 22 years and, when the argument escalated, he retrieved an unloaded gun from their residence, and said, “Why don’t you just shoot me and get me out of my misery.” However, the unloaded gun was laid on the table. As might be expected, his wife left their home [and went to a nearby motel]; the next day, she contacted the local police because she told them she was unable to reach her husband when she called.

When the police arrived to perform their “wellness check,” Caniglia told them he “couldn’t take it anymore,” but said “he would never commit suicide.” Shortly thereafter, Mrs. Caniglia entered the home. The officers claimed they had a concern and, therefore, a risk Caniglia would harm himself. After a discussion with he and his wife, Caniglia agreed to be evaluated; then, he was taken by the police to the hospital, where he was seen by a nurse and a social worker. However, Caniglia was discharged the same day, being billed about $1000 for the temporary health services. As part of the police contact, and allegedly having falsely representing to the police her husband had consented, Caniglia’s wife led them to the part of their home where they took possession of his other weapon and the particular gun Caniglia had previously laid on the table.

Thereafter, Caniglia filed a lawsuit in in the U.S. District Court, Caniglia v. Strom,  396 F. Supp. 3d 227 (D.R.I. 2019), in which he alleged the law enforcement officers violated his Constitutional guarantees under Section 1983 of the Civil Rights Act. Essentially, he claimed the police violated the Second and Fourth Amendment, along with the Fourteenth Amendment’s Due Process and Equal Protection Clauses of the U.S. Constitution. In a truly mixed and complex Decision, Caniglia lost on procedural grounds and without a trial on the merits; that Decision was appealed to the First Circuit of the U.S. Court of Appeals, which on March 13, 2020, affirmed the  U.S. District Court’s Decision. It is the ruling of the U.S. Court of Appeals that was then appealed by Caniglia’s attorneys who thereafter filed a Writ to the U.S. Supreme Court, as stated at the outset of this Blog.

Under the Fourth Amendment of the U.S. Constitution, we are guaranteed “to be secure ….. against unreasonable searches and seizures,” unless there is a valid Search Warrant or probable cause.  The concept of probable cause has a long history and is one heavily litigated by criminal defense lawyers who uniformly claim it requires sufficient proof of a reasonable basis to believe a crime may have been committed or there is evidence of a crime present in the place to be searched. The police had asserted their entry and seizure of the two weapons was justified under their “community caretaking” functions.

Most importantly, the Courts have been deeply divided on the definition and what constitutes  the duties and responsibilities of law enforcement to preserve and protect community safety. The U.S. Supreme Court granted the Petition for a Writ of Certiorari because the “community caretaking” exception should be deemed an anomaly to, and a very narrow deviation from, the Fourth Amendment. Therefore, this concept needed to be clarified if law enforcement were to use it, without a warrant, to justify searches that otherwise might violate the sanctity of our homes and undermine the dignity and respect of human life. In granting the Petition, the U.S. Supreme Court stated, “it is the role of the courts—not the police—to decide whether and when an intrusion into the home is justified. ” The Court further elaborated by stating:

The expansion of an amorphous exception—which, according to the First Circuit, can cover teenage parties, wellness checks, and anything else an officer deems “reasonable” in the name of community care—into that most private of spaces authorizes exactly those intrusions the Founders   most feared. And the entrenched split of authority leaves officers without much-needed guidance about the scope of their authority—and citizens without much-needed confidence in the supposed sanctity of their homes” (emphasis added).

The U.S. Supreme Court has accepted this significant criminal case. The Court will eventually put the matter on their calendar to hear arguments and later issue a Decision.

Is an Exceptional Attorney Essential?

Is there a distinction between essential and exceptional? How essential is it to choose the superb things we do and seek an outstanding result? Is an exceptional attorney essential? Perhaps, many individuals might have been content in utilizing a physician, dentist, accountant, and/or an attorney as long as they were not inferior.

However, is it any different in reading or watching the news, utilizing a barber or beautician, going out to dinner, or watching a movie? When the emphasis is on the desired result, it becomes essential to want a higher standard, receive value and choose exceptional as the significant keyword. In this regard, therefore, the number one criterion in selecting the people we retain (and the things we do), becomes very important; doing anything else, such as what may only be “o.k.” becomes tantamount to accepting mediocre and, at times and at best, this is superficial, inadequate, deficient and, even worse, useless and a waste of time.

I believe the majority of individuals want more, with the emphasis on an effective outcome. Yet, some will inevitably place a greater importance on the cost rather than the potential adverse outcome. In other words, they do not automatically ask “what do I have to lose, such as the priceless time I have, my professional career, credibility and/or personal integrity?” Therefore, with all of this in mind, many do not want “just o.k.” and, instead, focus on exceptional as the benchmark or measurement for the individual with whom they choose to employ and, often, on the things they do with the time they have.

In selecting a lawyer, the same criteria can be critical. The website Avvo provides a profile on all of the attorneys in the United States. Then, one has the opportunity to decide whether (s)he wants an attorney who is exceptional, as well as knowledgeable, skilled and highly experienced, particularly with a proven and written record of ongoing favorable results. For example, it might not at the outset seem as important in choosing a contractor, until one first looks at testimonials to determine whether there are others who have spent their savings or mortgaged their home, only to then experience their contractor departed from the plans and specifications, delayed at great length on the work and/or abandoned the job, not actually completing the project.

In the practice of law, it can make a huge difference if the attorney focuses on a comprehensive approach, paying attention to each of the legally significant facts, doing more than being hurried to get the work done, even with far less insight and strategic steps are planned and/or utilized. It is essential in order to diminish the risk or not gamble on the outcome. Hence, in choosing a lawyer, it is recommended you first evaluate the advantages of requesting a detailed analysis, thorough scope of work to be performed involving, among other things, indispensable steps, such as a risk assessment; an examination of pivotal facts and legal principles; focused research; essential strategizing; and utilizing credible forensic experts to evaluate and provide an opinion integrated into a cogent and compelling report concerning such issues, including those directly or indirectly, related to the standard of care, prudence, fitness, judgment, lawfulness, honesty, moral turpitude, competency, etc.

In summary, what some individuals may have previously thought were unnecessary because they did not think they required selecting an attorney who is exceptional, now are considering the very important criteria and issues as constituting essential characteristics in choosing the best lawyer (and the things they do).

Compelling and Cogent Legal Arguments

What are compelling and cogent legal arguments?

All of us from time to time have read magazines, newspapers and articles. It strains credulity, however, that far too much of what has been written is not sufficiently balanced to provide the reader with a true and accurate narrative. Even worse are long winded and/or rambling legal arguments some lawyers may assert to the Court or declare in their Legal Briefs, Motions, Points and Authorities, and other written documents. In addition to the necessity to provide interesting, insightful and easily understood writing, these presentations simply do not rise to the level of being deemed “good writing.”

Also, the statements and arguments a lawyer makes should be cogent, which means they should be powerful and effective. A lawyer’s role is to not simply state events in a narrative, but should present compelling arguments that are truly persuasive. Here, articulating facts, circumstances, statements and arguments should, but unfortunately may not always, be convincing.

Whether one is successful in these tasks may be in the eye of the beholder. However, those who spend countless and painstaking hours to think about and analyze their roles and responsibilities before framing what they intend to communicate may indeed have a better opportunity to obtain winning results. Moreover, they can provide the reader with impressive thoughts and ideas. Some may choose to utilize metaphors, insert something humorous and/or use other tools and skills to convey the subject matter and their information. While this may in certain ways be different, the goal is to benefit their respective clients who may thereby realize the outcome they desire.

Is An Exceptional Lawyer Essential?

Do you consider an “exceptional” lawyer to be essential? Will you truly be content employing a mediocre attorney?

There may have been a point when one distinguished between exceptional and essential. In the past, many individuals may have been content in utilizing a physician, dentist, accountant, an attorney and/or any professional, perhaps as long as they were not inferior. However, is it any different in reading or watching the news, utilizing a barber or beautician, going out to dinner, or watching a movie? When the emphasis is on the desired result, it becomes essential to want a higher standard, receive value and choose to utilize the services of an exceptional or superior individual. In this regard, therefore, the significant keyword and the number one criterion in selecting the people we employ or retain to perform services (and the things we do), becomes very important; doing anything else, such as what may only be “o.k.” becomes tantamount to accepting mediocre and, at times and at best, this is superficial, inadequate, deficient and, even worse, useless and a waste of time.

Most of us want more, with the emphasis on an effective outcome. Yet, some will inevitably place a greater importance on the apparent cost rather than the potential adverse outcome. In other words, they do not automatically ask “what do I have to lose, such as the priceless time I have, my professional career, credibility and/or personal integrity?” Therefore, with all of this in mind, many do not want “just o.k.” and, instead, focus on exceptional as the measurement for the individual with whom they choose to employ and, often, on the things they do with the time they have.

In selecting a lawyer, competence is the same criteria because it can be critical. The website Avvo provides a profile on all of the attorneys in the United States. This website provides one with the opportunity to decide whether (s)he wants an attorney who is exceptional, as well as knowledgeable, competent, skilled and highly experienced, particularly with a proven and written record of ongoing favorable results. For example, it might not at the outset seem as important in choosing a contractor, until one first looks at testimonials to determine whether there are others who have spent their savings or mortgaged their home, only to then experience their contractor departed from the plans and specifications, delayed at great length on the work and/or did not actually complete the project. The cost to correct the deficient workmanship can exceed the original price of the contract or simply be overwhelming as to the nature and time to resolve.

In the practice of law, it can be critical the attorney does more rather than less. It is essential in order to diminish the risk or not gamble on the outcome. Hence, in choosing a lawyer, it is recommended you evaluate the advantages of a comprehensive scope in the work to be performed involving, among other things, indispensable steps, such as a full risk assessment; an exhaustive factual and legal analysis; focused research; essential strategizing; and utilizing credible experts to evaluate and provide an opinion integrated into a proper and lengthy forensic report concerning such issues, including those directly or indirectly, related to the standard of care, competency, prudence, judgment, fitness, lawfulness, honesty, moral turpitude,  etc.

In summary, what some may have previously thought were unnecessary principles because they did not think they required selecting an attorney who is exceptional, now are considering the above issues as extremely important fundamentals and, therefore, essential characteristics in choosing the right lawyer to provide advice and representation (and most if not all of the things they do).

Unanimous Jury Verdict is Required in Serious Crimes

Today, in the case of RAMOS vs LOUISIANA, April 20, 2020 (No. 18-5924), the U.S. Supreme Court ruled a unanimous jury verdict  is required in cases involving serious crimes. It held the Sixth Amendment of the U.S. Constitution, which guarantees the right to a jury trial, also requires the verdict in serious crimes to be unanimous. Since 1968, the 6th Amendment has been applied against states under the 14th Amendment of the Constitution. Duncan v. Louisiana, 391 U.S. 145 (1968).

Up to this point, a single juror’s vote to acquit a defendant was enough to prevent a conviction in 48 States and the federal courts. The state of Oregon now remains the only state that permits a non unanimous verdict in the case of a serious offense; this distinction exists because the right to a jury trial is inapplicable to “petty offenses.

The Court addressed the historical significance by declaring: “The requirement of juror unanimity emerged in 14th-century England and was soon accepted as a vital right  protected by the common law.” It further reasoned: ” So if the Sixth Amendment’s right to a jury trial requires a unanimous verdict to support a conviction in federal court, it requires no less in state court.”

The result of the Court’s decision is that defendants and prisoners in Louisiana and Oregon, the only two states in recent years that have allowed such verdicts, will have their cases overturned claiming their verdicts are now void.

Coronavirus: School of Higher Learning

Currently, we have a Coronavirus Pandemic, but we can also turn a crisis into an opportunity; and, use some of our time as a SCHOOL OF HIGHER LEARNING.

If we have children, they can learn what they may never have in school. … for an hour a day, if not more. For adults, we can use some of our time to search for and reflect upon information as well on the following topics:

1) How we can focus on positive thoughts.

2) How to budget and economic principles of supply and demand.

3) Team work.

4) Employing a physical regimen.

5) Safety principles.

6) Health objectives.

7) Family values and religion.

8) Ethical and moral choices.

9) Time out, and finding inner peace.

10) Rules and laws.

11) Hearing and not just listening.

12) Our police and other First Responders.

13) Our military.

14) Our healthcare systems and their key members and participants.

15) Charity.

16) Positive differences between liberal and conservative values.

17) Searching through old photos.

18) Being a participant in a support group.

19) Reflecting on the meaning of love.

20) Having a deeper sense of compassion for family.

21) Engaging others through communications, offering comfort and companionship.

22) Discovering how to deal with life’s inconveniences.

23) Learning to achieve confidence and self control.

24) Democracy vs. socialism.

25) Needs vs. wants.

 

As much as children and adults know about these and other topics, we all need to be reminded of the beauty in life, the opportunities, the value of knowledge, and the choices we have and can make.

Most importantly, the goal is to find the SILVER LINING in the current “Coronavirus” Pandemic and world crisis…. spending special moments with our children, regardless of their age; our immediate and extended family; as well as past, current and new friends and associates. We can use this time to also be reminded to view Life truly as an adventure.

“Life is either a daring adventure or nothing at all!” – Helen Keller

 

Serious Ongoing Concerns re: Hacking on the Internet

Hackers are highly motivated to obtain and then sell &/or use the information they obtain from illegal means of accessing the online files and records we have for illegal gain.  As such, there are serious ongoing hacking concerns each of us must be vigilant accessing the internet.

In a most recent newspaper account, there was a report that over 10 million customers of MGM Resorts international had their records accessed because MGM was hacked; it said someone had gained unauthorized access to the company’s “cloud” server. [The “cloud” being something everyone speaks highly about since businesses maintain their data and information on the internet and not on their premises].

It has been reported that Yahoo, owned by Verizon, allegedly has had  the largest data breach in U.S. history. Others are Capitol One [July, 2019: 100 million said to be 30% of the population]; Marriott [ 2018 500 million];  Equifax one of the three largest credit bureaus[ 2017 146 million accounts (names, birth dates, social security numbers, addresses and some driver’s license numbers + 209,000 U.S. credit card numbers were exposed).  2018,(they found an additional 2.4 million U.S. consumers’ names and partial driver’s license information were stolen)]. FEMA [2019 the Federal Emergency Management Agency announced about 2.5 million disaster victims] and, just one other familiar business is Facebook [2019 540 million records; they admitted it has not properly secured passwords].

Also, reported were other familiar companies with various types of content hacked, such as INSTAGRAM, EVITE, SPRINT, STATE FARM, CHOICE HOTELS, MOVIE PASS; DOOR DASH, ADOBE, DISNEY Streaming Services, MACY’S E-Commerce site, T-MOBILE, and ZYNGA are some of those identified via information and  data protection services.

Clearly, security issues on the internet can be compromised. 

Everyone has to be proactive, because  the question that is being asked is “not” who is next, but WHEN will be the next hacking!

 

WHAT YOU SAY CAN REALLY HELP

Whether it is Valentine’s Day, an Anniversary, Holiday or Birthday, what you say can really help; it not only leaves a lasting impression, but it can bring a smile to the person with whom you are communicating, or because of the occasion you are celebrating. The same thing can be true when we SMILE, whether it is your encounter with another person at the gas station, grocery store, or waiting for an elevator, seeking a promotion in the job you have, or searching for new employment.

Often, we forget and/or do not realize how important it is to truly SMILE, as it is one of the most powerful communications we have.  Smiling is part of our demeanor, which speaks as loudly and potentially louder than the actual words we say. Perhaps it is because the first thing a person encounters is one’s facial appearance, and next their body position or movements, even with their arms and hands. These provide “indirect” expressions, which can set the stage for the feelings we have and those we want to generate [and, those we may not have intended as well]. Finally, what we say is meaningful because it is a “direct” statement and expression.

There is an old adage, “smile and the whole world smiles with you.” Our smile is a very compelling form of expression. It has also been said, a person may live longer by smiling (or course, when done sincerely); maybe it is because we create endorphins in our body that build positive chemical and physical reactions, enhancing our health.

Think about and underscore why you are grateful and appreciate the person and/or company with whom you come in contact. What you say can truly help.

When you are eager to interview for a new job, or seeking a promotion, what you say can also really help. Focus on what is great about the other person’s role and the company business or operations. Do the research first if you want to have a persuasive presentation or simply to underscore certain elements and priorities. Do not improvise. Of course, when talking to a loved one or a person with whom both of you feel comfortable, being spontaneous about your feelings can often be more compelling than rehearsing what to say.

One’s knowledge and enthusiasm are pivotal elements in so many parts of our life. For the job interview, research the business online, including their website. Consider their mission statement and core values. Familiarize yourself with the person with whom you are speaking, their employment position, perhaps how long they have been associated with the business, etc.  It may help what you say by asking appropriate questions; including the other person’s professional background, but not anything that can be considered part of their personal life.

On the other hand, it is sometimes helpful to create your own list of things “not to say.” Remember some words are like a “double-edge” sword, such as having intended a positive statement, but resulting in a negative or unfavorable reaction. Therefore, consider your words and the things not to say, and remember what you say can really help.

 

 

 

SECRETLY RECORDED CONVERSATIONS ADMISSIBLE IN CRIMINAL CASES

On December 5, 2019, in a unanimous ruling, the California Supreme Court in the case of People vs. Guzman, declared prosecutors can use secretly recorded conversations and they are, therefore, admissible in criminal cases. This decision does not change the illegal status of secretly recorded conversations that are inadmissible in civil cases. Pursuant to Penal Code section 632, it is illegal to secretly record a private conversation without the express consent of the other person.

The California Supreme Court followed a line of cases that extended the principles set forth in the ballot measure entitled Proposition 8, passed by California voters in 1992, referred to as Marsy’s Law or the Victims’ Bill of Rights Act, which among other things, sought to allow all relevant evidence in a case to be admitted into evidence in a criminal preliminary hearing and criminal trial. In reaching its conclusion, the Court rejected the argument by the defense that such a ruling would violate the defendant’s right to privacy.

Ratings and Reviews

10.0Samuel Eugene Spital Samuel Eugene SpitalClients’ ChoiceAward 2020 Clients Choice Winner, 2007 to 2019 in Administrative Law Clients Choice Winner, 2007 to 2019 in Litigation avvo rated 10/10 in Federal Crime Law avvo rated 10/10 in Administrative Law avvo rated 10/10 in Criminal Defense avvo rated 10/10 in Juvenile Law avvo rated 10/10 in Licensing avvo rated 10/10 in Personal Injury Top ContributorAward 2012Samuel Eugene Spital Samuel Eugene SpitalReviewsout of 207 reviews