TDLR Complaint Process with Ron Foster, Director of Enforcement

Transcript

Narrator: 0:00

This podcast is for educational purposes only, does not constitute legal advice and does not create an attorney-client relationship. If you need legal assistance about a legal problem, contact an attorney.

Cimone Murphree: 0:15

Thank you so much for being with us this afternoon. Mr. Foster, we’re very excited to get to talk to you about the complaint process at the Texas Department of Licensing and Regulation. How are you doing?

Ron Foster: 0:27

I’m doing well. Thank you very much. I really appreciate the opportunity to talk about TDLR and I love enforcement. I love to talk about enforcement, so I’m ready to do it.

Cimone Murphree: 0:38

Oh, that’s awesome. We are so glad to have you. For our viewers who don’t know, Mr. Ron Foster is the Director of Enforcement at the Texas Department of License and Regulation. Mr. Foster, can you give usa little bit of background on yourself and how you became the Director of Enforcement?

Ron Foster: 0:56

I’ve been the Director for about five years at TDLR for the Director of Enforcement. I’ve been a licensed attorney since 2005 now, so I did work my way up. I started off as a prosecutor back in 2009, working various programs cosmetology and barbering were two of the bigger ones. I eventually got promoted to senior prosecutor, where I started helping to mentor and train other attorneys, and I got introduced to a few more other programs like electrical and air conditioning. Then I became the chief prosecutor and I managed the team of 20 or so attorneys that we have with all the various programs. I didn’t get to have a caseload after that, so that was a little bit of a disappointment, but then, shortly after that, I became the director. So besides TDLR, which I’ve been at for a long time, I was a prosecutor at DPS. That’s where I actually started my career as a lawyer.

Cimone Murphree: 1:57

That’s awesome. So you are no stranger to protecting the public and knowing the process of enforcement. You’ve seen it for quite a while now.

Ron Foster: 2:06

It’s a mission I take dearly and I will say you know I was in the Marines and I always take it very seriously the idea of protecting people and public safety.

Cimone Murphree: 2:14

That’s great to hear. As the Director of Enforcement, can you tell us a little bit about what you oversee in your role?

Ron Foster: 2:21

Well, you know, as enforcement implies, we are enforcing the laws and the rules and at TDLR we’re functionally aligned as an agency, which means the different divisions are basically by function. So we have a licensing division, we have a compliance division, a field inspections division, and then you have enforcement and there’s a few others. My team consists of attorneys I’ve got 20 plus attorneys, we’ve got 40 plus investigators that are throughout the state of Texas and then we probably got about 60 administrative professionals consisting of legal assistants and admins that help us get the work done. We have our teams divided up according to the programs so that with the 38 various programs that TDLR has, it’s quite a bit, and so our team is organized according to those those programs so that we can try to address the complaints and the issues that come up.

Ron Foster: 3:37

Well, as many of our viewers may know, tdlr regulates quite a number and variety of professional licenses. Could you share with us just a? And all the way to water wells and weather modification at the end? So we’ve got I’m not going to list them all off the top of my head, but there’s massage and there’s podiatry, there’s elevators, there’s motor fuel, quantity and quality that we we take care of, as you know, speech, language, pathologists, dietitians, athletic trainers we like to think that we touch pretty much every text and with whether getting gas, getting electricity, having air conditioning, getting your haircut, beauty and wellness, all kinds of things like that. So there’s a lot of programs we regulate. In fact, we get a lot of complaints that come our way just because people think we regulate them and we have to redirect them to the right place.

Troy Beaulieu: 4:28

Well, thanks for that, rania. I’m really curious. Given the wide variety of license holders that TDLR regulates and oversees, the complaint process must be very complicated to account for all these. Can you share with us an overview of TDLR’s complaint process?

Ron Foster: 4:48

Great. You know, I actually think this is one of the things that we do really good at TDLR and one of the reasons why we tend to get a lot of programs in our way because of our functional alignment. You know, we don’t do I don’t have 38 different complaint processes for each program. I have one process. I have a complaint resolution procedures manual that my team follows, you know, from intake through investigations, through prosecution. That process works for every program. Now I probably should say there’s a little bit more than enforcement does. We do prosecute the cases that come from our field inspections and compliance divisions and we do all of the criminal history reviews for everybody that seeks a license and seeks to renew their license. So my team isn’t just handling the consumer complaints. We’re dealing with the internal complaints that get generated from other divisions because of their compliance checks and we’re dealing with the criminal history part for everybody that applies for a license. But the complaint process is, I think, pretty simple. You get your regular complaint, comes in the door, it comes into my intake section. They’re checking it just to make sure that we have jurisdiction. Number one and number two do we have enough information to identify the respondent? And number three is there actually an alleged violation? Let me as an example someone might complain about a bad haircut. We always say we don’t regulate bad haircuts. You don’t like the haircut, you go somewhere else and get another haircut. We’re not going to penalize someone because you don’t like your haircut, you know. So once they meet the threshold on those things, we can open up a case and at that point, a normal consumer complaint, your typical complaint, is going to be assigned to one of my investigators and, as I alluded to earlier, these investigators are broken up onto various teams.

Ron Foster: 6:43

I have a beauty and wellness team that consists of, like massage, cosmetology, barbering, laser hair removal. I have a building and mechanical team that does air conditioning, electricians, industrial housing, boilers, elevators. We have a health professions team that deals with podiatrists, massage no, not massage, I’m sorry, that’s speech language pathologists, athletic trainers. There’s about 12 or 13 of them. We’ve got a transportation team, because that deals with the towing and the vehicle storage facilities and, uh, the transportation network companies like lyft and uber. We regulate them too, uh. So there’s uh.

Ron Foster: 7:28

And then we got our criminal history teams that, of course, that we have set up. So we’ve got our teams divided up and it’s kind of done like that throughout every section and so when the complaints come in, they get funneled to that particular section for the investigator, for the prosecutor, so that those individuals can be more knowledgeable about a limited number of law and rules instead of trying to keep track of 38 different programs. Yeah, the complaint process is also a part, the beginning of which is where you get into intake and once it goes to an investigator, that’s where we’ll start reaching out to the witnesses in the case, like if it’s a licensee or to whoever the person is that made the alleged violation, and we’ll be reaching out to them to get their side of the story, to get information from them, and that all goes into our case file. We have a case file system that we can track all of the interactions we have with our witnesses.

Troy Beaulieu: 8:29

It sounds like you’ve got a really well-oiled system in place. People develop probably some specialties in looking at these cases.

Ron Foster: 8:37

Yes, sir, and it really there is a I. You know I could probably go into a lot more detail about what each one, each section, goes through and what they do, but the complaint process in general is consistent from program to program. Now there are some little tweaks here and there for peculiarities with different types of programs that might come up. And you know, sometimes we do emergency orders on cases when there’s a serious public health risk and those things might get escalated. But we do have a general process and you can. You can see that flow chart on our website as well, where it’ll explain what how a complaint process works for us and how it goes through enforcement.

Cimone Murphree: 9:18

If someone hires representation throughout the complaint process, how does TDLR handle that?

Ron Foster: 9:25

Oh, so well, first off, we need to know right away when there’s a you know when there’s representation, because as attorneys we need to make sure we’re talking to the attorney and not talking to the client. So sometimes that’s a little bit of a trying to figure out process. You know when somebody does get an attorney. But, as I mentioned, we have a case management system that we use in our office and we will normally ask for a letter of representation and once we get that in the file and and confirm with the attorney that there’s representation, um, we’re going to start communicating only with that attorney.

Cimone Murphree: 10:04

And if you start this process, if you receive a complaint and you know begin the process without an attorney, um are you still able to hire representation later on in the process?

Ron Foster: 10:15

Absolutely. You know, one of the challenges that happens is sometimes people don’t know what to do. They have an inspection, they get a complaint filed against them. One of the things we do is we send out a letter to them to let them know that there was a complaint open against them. And you know, once the investigation starts, they start talking to an investigator and they’re not sure what’s going on, and it’s usually not until there’s a notice of alleged violation that goes out the door, that someone says, oops, I made a mistake, I did something wrong.

Ron Foster: 10:46

I need to, you know, I need to figure out what to do, and so very often it’s common for people to either be unrepresented throughout the whole process or to decide to get representation midway through the process. That’s absolutely not a problem and in many situations it’s really beneficial to the individual to get some kind of representation, because, in my own opinion, those attorneys can very often help explain things to their client about the laws and rules, about the options, and because many of our cases end in a negotiated settlement. It really helps to have an attorney that can work with the client in good faith to reach a settlement, which is very often what we’re trying to do. We’re not trying to be punitive with our penalties and in fact, one of the things I have directed for my team is, you know, first and foremost, public safety right, keeping people safe, avoiding consumer harm. But we like to seek restitution, we like to get refunds, we like to get things fixed for people.

Ron Foster: 11:49

Make things right, just make things right for somebody. That’s all you really need to do, and a lot of times you can end up getting a closing on a case or a warning letter on a case, or maybe a reduced penalty, and that is much more easily facilitated sometimes when there’s a representation for the client and you know, and I don’t even probably have to explain how much more complicated it gets if it goes to the state office, administrative hearings, and then you have to prepare. There’s rules of evidence, there’s procedure, there’s things that you really should know if you’re going to go to court, and it behooves you to have representation in those situations. Now, for us it doesn’t matter. We need to be able to move forward on a case whether you have representation or not, but that that can happen at any point in the process.

Troy Beaulieu: 12:40

Speaking of kind of going through that complaint process, do you have kind of an idea of some of the most common violations that you see with license holders that you could share with our viewers, because I’m sure you run into a lot of similarities, even across different industry settings, that occur on a daily basis at TDLR?

Ron Foster: 13:04

Yes, you’re exactly right, Troy. And let’s just admit it, A lot of the violations are not by licensees. I’m going to tell you, the biggest group of violations are unlicensed folks. Right, those unlicensed people out there where they didn’t get the training, they didn’t get the education, they didn’t take the examination, they don’t know what they’re doing. They get hired by someone member of the public. Very often, unfortunately, they didn’t check our website to see if the person was licensed and that person goes and does some kind of work which can be very dangerous. You know, you don’t want a person that doesn’t know the electrical code to be doing electrical work on your home. You don’t want the person who doesn’t know what the building and mechanical code is to be doing the air conditioning work in your house.

Ron Foster: 13:53

Yeah it may seem like common sense but unfortunately things like that happen across the board and all of our programs. So I’m going to tell you the first thing in my mind is unlicensed activity. It’s something we tried to tackle. We do sting operations through the state of Texas to try to catch some of those guys, but the fact is we get a lot of consumer complaints about unlicensed activity. Now, just broadly speaking, you get a lot of violations that are just like code violations, you know, for people that are licensed but they didn’t do something to the code. You know I mentioned the electrical code, the building mechanical code. We also regulate buildings for the accessibility, so that’s the elimination of architectural barriers program. So you know when things aren’t done to code and our inspectors can come out there and find it, or when there’s a complaint made and we go and look that’s going to be a violation, you know, and that means something’s going to need to be taken care of and fixed and that can happen in almost any program.

Ron Foster: 14:55

Another one is standard of care. We have standard of care issues that come up, not just you know. Obviously you would think first in health programs like podiatry or speech, language pathology or orthodontist and prosthetist. Those are programs we regulate. Midwives as well, we regulate. But a lot of the programs have standards of care or ethical standards that are in place. It’s called different things and different rules and different regulations. So really, again, that’s one of the times when it’s helpful to have an attorney that can interpret that for you, explain it for you, and you know the prosecutor is going to do that. But, to be honest, a lot of times it’s helpful when a representative but to be honest, a lot of times it’s helpful when a representative, the person has representation and that that person’s available to explain things and say, yeah, the prosecutor was telling you right when they said the law says this. The law says that Because these laws are not what you’re always, what your average person is going and browsing for bedtime every night.

Troy Beaulieu: 15:53

Right, exactly, yeah, that’ll put you to sleep quicker than you could believe, oh us lawyers love it, but you know, not the average Joe.

Troy Beaulieu: 16:03

Exactly. Yeah, it’s really kind of specialized. You know you wouldn’t go to do your own dental work or have your own surgery done, and so a lot of times it really does help to have your own legal counsel. You know, one thing related to that that I know our viewers are curious about is how the agency handles disciplinary action, determining that and also what factors TDLR is going to consider in that process.

Ron Foster: 16:30

Yeah, that’s very important. You know TDLR. I’m all about process and procedure and doing things consistently. When you have the largest division at TDLR, as I do, and you’re trying to get your team to work consistently, it’s very important to have standardization right. It’s called an enforcement plan. Some people call it a penalty matrix. We have one of these for each one of our programs that’s in place, and we created this in conjunction with the advisory board that’s set up for most. Every one of our programs has an advisory board, and most of those advisory boards are made up of individuals that are either subject matter experts or licensees, and most of them have as well a public member on them. They approve our enforcement plan that sets out all of the violations and all of the penalties and sanctions that can happen based upon a particular violation. Those enforcement plans also get approved by our commission. So ultimately these are approved and published in the Texas Register. That might be above a little bit of some people’s head, but it gets published and it’s out there for the public to see what the enforcement plan is. You can see it on our website as well. If you go and you look up enforcement and complaints, you can dig into it and find what that is for each program. You can dig into it and find what that is for each program.

Ron Foster: 18:18

Now, did somebody get injured? These are factors that our attorneys take into consideration. I give them wide latitude and discretion for judgment. You know, on a particular case they look at it. They’re not pigeonholed into doing any one thing. They get to look at all of the facts and totality of the circumstances when they’re trying to make a decision on what to do. But that enforcement plan is the guideline and they have to follow that enforcement plan. They can only go outside of that enforcement plan with my approval. And that plan is really, I think, helpful, a part of the process for people to understand. Oh, is this a minor violation or is it a major violation? What is going to happen if I have 10 of these violations? Is it going to be a $10,000 penalty or a $100 penalty?

Troy Beaulieu: 19:05

Well, that’s great, yeah, and I think it’s very helpful to let industry members know that that process has been vetted not only by the commission but also by those advisory folks who have involvement in the industry. So you’re getting industry input, which I really think is great.

Ron Foster: 19:22

Exactly, I appreciate that and we value that input very much. And just a little plug we always need advisory board members. So if there’s folks that want to apply for the advisory board, they go to our website. They can find where the application is and you can apply. Even public members are on almost every one of those boards, so you can be a part of that government process if you wish to spend some time doing that.

Troy Beaulieu: 19:46

And that’s a really great way to kind of get involved more with your regulator. Exactly, yes, one thing I’m sure every enforcement director has love for you to share with our viewers a couple of tips or suggestions that you have. You know, based on your experience both in your role as director but also when you were a prosecutor, about how to navigate and address, you know, if you do get a complaint as a license holder.

Ron Foster: 20:17

You know, I think first we need to start at the beginning on something. When you’re a licensee, you need to keep your records up to date with the agency. The last thing you want is for notices to be going out to the old address from where you lived five years ago or something we all believe in due process. We try to send out notices to you. Those notices are informing you of things happening on your license. If you don’t keep your contact information and your address up to date with the department, those notices are not going to get to you. And as long as we’re sending stuff to the last known address on record officially with the agency, we can proceed on a case and get a default. And a default is a situation where the person doesn’t respond to the notice of violation, so they end up getting the maximum penalty. They don’t get a negotiated settlement, they don’t have an opportunity to get some kind of mitigating factors considered. It’s just out there and you just missed the whole boat when you didn’t update your records. The first things I have to say is you really need to make sure your records are that your records are maintained properly with the department, that your records are maintained properly with the department. Another part of it is you know, I think you really need to participate in good faith. When you get these notices, don’t be scared. Talk to your attorney representative, make sure that you understand what happened in the situation.

Ron Foster: 21:51

Very often a negotiated settlement can be achieved. In fact, I prefer that the money from penalties doesn’t go in my pocket, it doesn’t go in the pocket of my prosecutors, it doesn’t even stay with our agency. It goes back to the general revenue fund. I would much rather you figure out a way of making the consumer whole, making things right with the consumer, maybe a restitution or refund, or maybe fixing the thing that they said you didn’t fix, or whatever it is trying to make things right. That way you can get to a negotiated settlement where either the penalty gets reduced or maybe it gets removed and you just get a warning letter.

Ron Foster: 22:30

And that doesn’t happen if you’re not operating in good faith, trying to figure out what actually happened. You know ignoring a notice is not a solution. You know, and I think us attorneys know that very easily. Like you don’t ignore legal notices. But a lot of people don’t understand that. A lot of people are coming into this where their only interaction with the agency might be the time when they got to take the examination and then when they got to apply for the license and they got it through the mail and then they do their usual renewal and they don’t know very much else about what the agency is actually doing for them.

Troy Beaulieu: 23:04

Yeah, and I think it’s true, a lot of times there’s there’s emotions that are involved to fear and uncertainty and confusion can really kind of conspire to encourage people to stick their head in the sand. And you really just got to be proactive and, even though it might make you feel anxious, you know, don’t ignore that notice. I had experiences where I had was prosecuting folks and come to find out they had a stack of mail from us that was completely unopened and they knew right where it is, but they hadn’t bothered to open it. So, yeah, that’s definitely an important thing is keep your address updated and, goodness, when you get contact from the agency, look at it and respond.

Ron Foster: 23:46

Yes, we all believe in due process, right? No one’s out to try to get you and have a gotcha moment and, as I said earlier, having an attorney involved on representing the client is usually a good thing for us because we know they’re going to get the notice, whether they’re going to convey the information to the client. We don’t have to keep playing whack-a-mole or anything trying to find where the person is at. We know, right, where their attorney is at, you know. So, the representation piece of it, while it’s not required in every case, and for sure, there’s a lot of situations. We deal with individuals in large companies, we deal with million-dollar companies, just like we deal with mom-and-pop places, you know where and sole proprietor not everyone has a violation where that necessarily makes financial sense to go and get an attorney representation, you know. But there certainly are a lot of situations where you would want to do that and you would want to be aware of what your options are, you know. So, again, I think that due process is very important. We want to get to an agreed order. I can tell you that’s what we do.

Ron Foster: 24:57

If you looked at a breakdown of all of the cases that come into our agency, which is, let me tell you I probably should have said that earlier maybe 20 to 25,000 a year and we open maybe 11 to 13,000 a year. That’s a lot of cases. The majority of the cases that end up in an order. They end up in an agreed order. That means we were able to work in good faith with you or your client or the unrepresented person, if that may be the case to get to a negotiated settlement.

Ron Foster: 25:33

And then the next largest category is those defaults where people just ignore us and the very small percentage actually go through the SOA process, where you have to go to a contested case. And those contested cases, by the way, they are complicated and they go to SOA and at our agency SOA is not the final decision maker on a case. They make a recommendation for proposal for a decision. So that recommendation, with that PFD, goes back to the commission for a final decision. And that’s something that needs to be presented to the commission. And my prosecutor is there and if you’ve got an attorney, your attorney is there, but if you don’t have an attorney, then you’re the one sitting in the hot seat trying to present something to a commission and that’s not something everyone does every day.

Troy Beaulieu: 26:18

Yeah, no, I definitely think there’s a lot of ins and outs to the process where it can be helpful to get legal counsel and just get get good advice on where you’re at and what your options are, Like you said. I really appreciate that.

Ron Foster: 26:34

You know, as I said, with complainants, and you know the individuals that are filing. I probably didn’t even explain what some of these names I’m throwing around are, but the complainants are the ones that are filing the complaints with us. On occasion, some of those folks are represented by attorneys too. Right, it just depends upon the nature of the violation. So you could have multiple parties in a situation that are on a case that we’re working with the client. It could be the client that’s the complainant. It could be the client that’s the respondent. There’s even been times where there’s third parties that are involved in cases that are not actually a party to the case, but they’re interested in the outcome of the case. So it is very important to stay engaged and to get the representation you need when it’s appropriate.

Cimone Murphree: 27:24

Agreed Well. Thank you so much for spending your afternoon with us and sharing your knowledge and some great takeaways that license holders can apply to empower their license and profession.

Narrator: 27:38

Know your Regulator the podcast that inspires you to engage.