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Failure to notify licensee voids revocation in sexual assault case

A decision by the New Mexico Counseling and Therapy Practice Board to revoke the license of a substance-abuse counselor it believed had sexually assaulted a minor client was overturned by the state’s supreme court because the board had failed to inform the counselor of the meeting at which it decidedĀ to revoke his license (Avalos v. New Mexico Counseling and Therapy Practice Board).

The counselor, Homer Avalos of Chaparral, New Mexico, was accused of sexually assaulting a sixteen-year-old client in September 2007. The accusation led the state’s counseling board to file discipline charges in 2009.

After a hearing, the officer in charge of the case found that insufficient evidence existed to show that Avalos had assaulted his client and passed on his recommendation that the charges be dropped. The board then moved to hold a meeting to discuss the case.

Although the board issued a public newspaper notice announcing the meeting, it failed to give personal notice to either Avalos or his attorney, both of whom consequently did not attend.

Then, despite the recommendation of the hearing officer and absent Avalos’ participation, the board ruled that the evidence indicated that Avalos was guilty of the accusations against him, revoked his license, and assessed over $4,000 in fines and costs.

Avalos appealed and eventually the case reached the state’s Supreme Court. The court, in a decision written by Justice Charles Daniels, reversed the discipline against Avalos and vacated the board’s discipline order.

The board, the court explained, denied Avalos his due process rights when it failed to inform him of the meeting in which it revoked his license. In so doing, the board denied him the chance to contest its findings of fact and to monitor the board’s adherence to administrative procedures, Justice Daniels wrote.

“Avalos,” he continued, “was entitled to personal notice of the date, time, and location of any meeting at which the board would decide to suspend or revoke his license.”

The case was vacated and returned to the board to decide if another attempt to discipline Avalos was warranted.