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Restrictions on Granting Licenses

Generally, one who seeks a license has the burden of proving eligibility to the satisfaction of the licensing agency.[i] The authority to amend or modify a license is a corollary of the power to grant that license.  It is supported by the settled principle that an agency is deemed to have not only those powers that is expressly conferred by the statute, but also those powers that are reasonably necessary to carry out its mission.[ii]

No vested property rights are attached from license and permits.  Similarly, no condemnation damages can be awarded when a revocable permit is revoked.  A valid permit becomes a vested right when there is a substantial change in position and the corresponding doctrine of equitable estoppel is invoked.[iii]

In Hughes v. Board of Architectural Examiners, 17 Cal. 4th 763 (Cal. 1998), the court observed that an individual who obtained the license required to engage in a particular profession or vocation, has a “fundamental vested right” to continue in that activity.  However, the right to practice a particular profession or vocation does not affect the due process analysis.

In City Council of Agawam v. Energy Facilities Siting Bd., 437 Mass. 821 (Mass. 2002), the court observed that any structure used for the keeping, storage, manufacture, or sale of explosive or inflammable materials must be licensed by the local licensing authority.  However, the power to approve or disapprove a license carries a concurrent power to grant the license on some condition.

It was observed in State ex rel. Dep’t of Health v. Jeffrey, 247 Neb. 100 (Neb. 1994), in equity actions which involves licensing, an appellate court reviews the factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court.  Moreover, in the absence of any infringement of right or liberty which is constitutionally protected, a licensing authority has to only show that the requirement it imposes on license applicants is rationally related to the fitness of the applicant for the occupation.[iv]

[i] Arkansas Health Planning & Dev. Agency v. Hot Spring County Memorial Hospital, 291 Ark. 186 (Ark. 1987)

[ii] Taunton Dog Track v. State Racing Comm’n, 424 Mass. 54 (Mass. 1997)

[iii] Foster & Kleiser v. Chicago, 146 Ill. App. 3d 928 (Ill. App. Ct. 1st Dist. 1986)

[iv] Chalfy v. Turoff, 804 F.2d 20 (2d Cir. N.Y. 1986)

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