¶27 (concurring in the dissent) — As a result of this court’s decision in Bang D. Nguyen v. Department of Health, 144 Wn.2d 516, 29 P.3d 689 (2001), some of this state’s most vulnerable citizens are now even more at risk for abuse. Alzheimer’s patients like the victim in this case, along with the developmentally disabled, the mentally ill, and the elderly depend for their care on people licensed under chapter 18.88ARCW. Many of these citizens lack the ability to speak out or be heard when they suffer abuse from caregivers. Instead of protecting these vulnerable citizens, the majority of the court tips the balance of protection in favor of the licensee and against these vulnerable citizens. *145As a result of applying Nguyen in this case, the abuse, which the hearing officer found was proved by a preponderance of the evidence, will go without redress.
Madsen, J.*145f 28 Although I signed the majority opinion in Nguyen, I agree with Justice Owens that Nguyen was wrongly decided on the law. And, its application in this case makes clear that it is also harmful and should be overruled.
DISCUSSION
¶29 Addressing first the legal error in Nguyen, this court was incorrect in defining the nature of the interest involved in holding a professional license. In particular, we erroneously concluded that the pursuit of a profession involves a property right as well as a constitutional liberty interest akin to the liberty interests of the criminally accused. As early as 1909, in connection with attorney discipline, this court stated that
[w]hile it is true that the practice of law is a lawful occupation in itself, it is not a natural right or a right guaranteed by the constitution. It is a privilege granted by the state, and may be surrounded with whatever restrictions the legislature may in reason prescribe!,] even to the extent of requiring an attorney, without compensation, to conduct the defense of destitute persons accused of crime.
State ex rel. Mackintosh v. Rossman, 53 Wash. 1, 3, 101 P. 357 (1909) (citations omitted).
¶30 Since 1938, when the United States Supreme Court decided United States v. Carotene Products Co., 304 U.S. 144, 58 S. Ct. 778, 82 L. Ed. 1234 (1938), courts have uniformly held that economic regulations such as professional licensing laws are subject only to rational basis review. Indeed, in Steadman v. Securities & Exchange Commission, 450 U.S. 91, 101 S. Ct. 999, 67 L. Ed. 2d 69 (1981), the Supreme Court implicitly concluded that there was no fundamental constitutional liberty interest at stake in a proceeding to revoke a license to pursue a profession or occupation and hence found *146no due process entitlement to a burden of proof greater than a fair preponderance.
¶31 Although we were determining the level of scrutiny to be applied in a due process challenge, a majority of this court recently pointed out in Amunrud v. Board of Appeals, 158 Wn.2d 208, 143 P.3d 571 (2006), that neither this court nor the United States Supreme Court has characterized the right to pursue a particular profession as a fundamental right. Instead, courts have repeatedly held that the right to employment is a protected interest subject to rational basis review. By analogy, these decisions show that the preponderance standard is appropriate here to protect the interests at stake.
¶32 As the United States Supreme Court recently explained:
[T]he liberty component of the Fourteenth Amendment’s Due Process Clause includes some generalized due process right to choose one’s field of private employment, but a right which is nevertheless subject to reasonable government regulation.
Conn v. Gabbert, 526 U.S. 286, 291-92, 119 S. Ct. 1292, 143 L. Ed. 2d 399 (1999) (emphasis added). And the Supreme Court has made clear that “rational basis review” is the appropriate standard for reviewing such government licensing regulations. Barry v. Barchi, 443 U.S. 55, 61-62, 67-68, 99 S. Ct. 2642, 61 L. Ed. 2d 365 (1979) (applying “rational basis” test in the equal protection and due process context to licenses for horse trainers); see also Medeiros v. Vincent, 431 F.3d 25, 29 n.3 (1st Cir. 2005) (it is “well settled” that there is no fundamental right to pursue a livelihood or occupation, and “legislation or regulation impinging upon such a right therefore is subject only to ‘rational basis’ review, rather than ‘strict scrutiny’ ”); Cornwell v. Cal. Bd. of Barbering & Cosmetology, 962 F. Supp. 1260, 1271-72 (S.D. Cal. 1997) (substantive due process challenges to regulations of occupations are “subjected to rational basis review,” and “[t]he regulation may only be struck down if there is no rational connection between the chai-*147lenged statute and a legitimate government objective”); Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313-14, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976) (no fundamental right to government employment and applying rational basis review to restrictions on government employment); Schware v. Bd. of Bar Exam’rs, 353 U.S. 232, 238, 77 S. Ct. 752, 1 L. Ed. 2d 796 (1957) (no fundamental right to practice law); Nebbia v. New York, 291 U.S. 502, 527-28, 54 S. Ct. 505, 78 L. Ed. 940 (1934) (the right to work in a particular profession or trade is a protected right and subject to rational regulation); Dittman v. California, 191 F.3d 1020, 1031 (9th Cir. 1999) (applying rational basis review to requirements for acupuncture license); Meyers v. Newport Consol. Joint Sch. Dist. No. 56-415, 31 Wn. App. 145, 639 P.2d 853 (1982) (holding that the right to employment is not fundamental and applying rational basis review); In re Revocation of License to Practice Med. & Surgery of Kindschi, 52 Wn.2d 8, 319 P.2d 824 (1958) (applying rational basis review to license revocation).
¶33 Other state courts have reached the same conclusion. See, e.g., In re Revocation of License of Polk, 90 N.J. 550, 562, 570, 449 A.2d 7 (1982) (interest in a professional license deserves protection, but not a fundamental right; such licenses are “ ‘always subject to reasonable regulation in the public interest’ ” (quoting B. Jeselshon, Inc. v. Atlantic City, 70 N.J. 238, 242, 358 A.2d 797 (1976))); Petition of Grimm, 138 N.H. 42, 50, 635 A.2d 456 (1993) (“[t]he right to work in one’s occupation has never been placed on equal footing with fundamental personal rights,” applying rational basis review to licensing regulation for medical doctors).
¶34 In light of these cases, including our recent decision in Amunrud, it is clear that Nguyen is wrong in describing the interest in a professional license as a liberty interest akin to the liberty interests of the criminally accused and wrong in requiring the clear, cogent, and convincing standard to protect that interest. Additionally, requiring a higher standard of proof than the preponderance standard *148is inconsistent with this court’s recognition in Amunrud that under due process, government licensing regulations need pass only rational basis scrutiny.
¶35 The Nguyen court also erred in determining what governmental interest is to be weighed in the balancing test of Mathews v. Eldridge, 424 U.S. 319, 332, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). In Nguyen the court gave great weight to the economic factors involved in providing a predepri-vation hearing but, though acknowledging the government interest in protecting the public, gave this more important interest insufficient weight. As the Wisconsin court persuasively points out, “the state is concerned with the direct and immediate threat to physical health, safety and welfare. The consequences of incompetent or unprofessional care or treatment may be highly injurious, and even fatal.” Gandhi v. State Med. Examining Bd., 168 Wis. 2d 299, 309, 483 N.W.2d 295 (1992) (conducting a Mathews balancing test and concluding that a physician’s interest in his professional license is adequately protected under a preponderance standard). Here, as Justice Owens points out, the legislature has a strong interest in protecting vulnerable adults. Dissent at 160. This case demonstrates why a preponderance standard is not sufficient to protect this interest.
¶36 Finally, although the department has not challenged the hearing officer’s conclusion that the evidence presented did not meet the clear, cogent, and convincing standard, I believe the hearing officer is wrong on this point, based on his findings of fact. In written conclusions of law following the hearing, the examiner stated that the program did not prove the allegations by clear and convincing evidence because, he said,
there are conflicting witness statements whether the Respondent touched Resident A or threw anything at Resident A. Additionally, there was a period of time between the time [sic] the incident in question, and when Resident A’s injury was diagnosed or assessed. Finally the [sic] was evidence to show *149that Resident A was combative and known to kick out on her own.
Clerk’s Papers (CP) at 112 (Conclusion of Law' 4.6).
¶37 The reasons given by the hearing officer for his conclusion are not supported by his findings of fact or by the record. First, although the hearing officer cited conflicting witness statements as a concern, he nevertheless found a violation, and this fact indicates that he resolved the credibility question against the respondent. His implicit resolution of the credibility issue is supported by the record and by his finding of fact showing that the respondent gave two conflicting versions of events, at one point denying kicking the resident and at another point stating that she tripped over the resident’s leg. CP at 109 (Finding of Fact (FOF) 3.8). Second, the hearing examiner is simply wrong in his assertion that a period of time elapsed before the resident was examined. Uncontroverted evidence establishes that witness Rebecca Bristlin took the resident for an immediate assessment and that the resident complained of pain in her ankle and wrist. Exs. 1, 3.
¶38 In addition to these flaws in conclusion of law 4.6, the hearing examiner made the erroneous finding that the injury to the resident’s ankle “was not consistent with the type of repeated trauma described in the incident report.” CP at 110 (FOF 3.12). This finding has no support in the record. Rather, the record demonstrates that the treatment providers who examined and treated the resident proceeded on the belief that the injury resulted from the resident being kicked and that the resident suffered bruising on her leg which worsened to an abscessed condition. It is also significant that the supervising nurse who investigated the incident and interviewed the witnesses reported the incident to the police.
¶39 The evidence here satisfies the preponderance of the evidence standard that should apply. Moreover, the evidence in the record also meets the clear and convincing standard that the majority says must be applied. Therefore, *150I would uphold the sanction imposed in this case under the majority’s analysis as well.