The collateral consequences of any criminal conviction on a professional license are profound. Hard work in school and licensing exams could be wasted. Your future earning capacity and livelihood could be affected.
These cases begin with a call or meeting with either a local police detective or investigator for the respective state licensing board. Sometimes you may receive a letter asking for you or your family member to contact the investigator.
Thereafter, all investigators' patterns of approaching the licensee are the same:
- Calling for an informal conversation.
- Appearing at your home late in the day.
- Seeking a non-confrontational conversation.
- If any admissions are secured, suggesting that the Board will be in contact and that you should retain counsel.
- If you deny the allegations or fabricate a story, adding an obstruction charge. This conduct is a separate basis for the pending disciplinary action.
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At Hark and Hark, we are extremely protective of our clients who need professional license defense. In fact, we preemptively advise all clients that if they are contacted by any investigating authority, they should not talk or answer questions, identify Richard Hark as counsel, and ask for a meeting at more convenient time. We will then immediately contact the investigator to stop any direct contact with you, the subject of the investigation.
We then extensively interview you, the client, timely respond to all investigative queries, determine if pre-arrest cooperation is in the best interest, coordinate any imminent surrender, and timely respond to administrative licensure filings. Choosing appropriate and experienced counsel is paramount.
Good Moral Character? Moral Turpitude?
What is moral turpitude? What is good moral character? These questions arise in cases contesting a disciplinary action based upon a conviction of a misdemeanor or felony and in applications for reinstatement of a professional license after revocation.
How does one prove that they are both a person of moral character and posses the moral turpitude that warrants either reinstatement or no disciplinary action?
Every licensing scheme possesses a provision allowing that licensing board to revoke or cancel a license when a licensee is found guilty of a felony charge, or any felony or misdemeanor offense in conjunction with the practice of that license, or found guilty of conduct involving moral turpitude by court of competent jurisdiction or a jury. Moral turpitude is not defined in any of the licensing acts.
The Pennsylvania Supreme Court routinely defines moral turpitude to mean anything done knowingly contrary to justice, honesty, or good morals. The terms good moral character and the lack of moral turpitude are used interchangeably to define each other in many cases.
'Fraud' certainly has acquired a peculiar and appropriate meaning in the law. Black's Law Dictionary 594 (5th ed. 1979) defines fraud as any kind of artifice employed by one person to deceive another.
In a March 2015 case, an individual convicted of 3rd degree murder, who served 10 years of a 10 year sentence, sought reinstatement of his podiatric license. He presented character witnesses, proof of some rehabilitative efforts, and efforts to maintain up-to-date on podiatric medicine continuing education requirements. The board rejected his application for reinstatement, concluding he had not presented sufficient evidence of rehabilitation and did not present sufficient remorse. Long v. Bureau of Prof'l & Occupational Affairs, 2015 Pa. Commw. LEXIS 130, (Pa. Commw. Ct. 2015).
Many cases state that the petitioner seeking reinstatement carries the burden of proof in establishing that they meet all of the licensure requirements for reinstatement. The pivotal issue on these types of cases, both for reinstatement and contesting disciplinary action, is what efforts were made by the licensee to rehabilitate their character such that they now or still possess good moral character to be trusted to hold a license at the time of reinstatement or disciplinary action. Garner v. Bureau of Prof'l & Occupational Affairs, 97 A.3d 437, 440, 2014 Pa. Commw. LEXIS 391, 5-7, 2014 WL 3734280 (Pa. Commw. Ct. 2014)
In reviewing the evidence a petitioner presents demonstrating good moral character, character witnesses, post jail release behavior, and the delay in time between criminal event and application for reinstatement are not enough. Proof of sufficient rehabilitation does not just include attending victim counseling, religious services, and paying restitution.
Krichmar v. State Board of Vehicle Manufacturers, Dealers and Salespersons, 850 A.2d 861, 864 (Pa. Cmwlth. 2004), requires clear and credible expressions or evidence of remorse and corrective community action. Lack of remorse itself is a sufficient basis to deny reinstatement. Storch v. State Board of Vehicle Manufacturers, Dealers and Salespersons, 751 A.2d 263, 264 (Pa. Cmwlth. 2000).
Shallow and unimposing claims of entitlement to reinstatement that show little remorse for the victim of the crime will not carry the day. Licensing boards look for individuals to rehabilitate their character through established patterns of behavior that are honorable, trustworthy and consistent with the communities' current ethical standards that show an absence of moral turpitude.
The "determination of whether a crime involves moral turpitude turns on the elements of the crime, not on an independent examination of the details of the behavior underlying the crime." In other words, licensing boards will not re-litigate the facts underlying the criminal conviction.
Character witnesses must base their conclusions of an applicant's credibility upon factual interaction and consensus amongst a large group of individuals. Bringing to a hearing just the respondent/applicant's immediate social or family circle will not carry the day. Employment-related job evaluations and supervisors and coworkers who may provide the Board with significant and weighty testimony about the applicant's established pattern of honorable and trustworthy behavior consistent with current community ethical standards is a priority in the evidence presented.
BELOW IS A GENERAL LIST OF THE PENNSYLVANIA PROFESSIONS, THE CORRESPONDING GOVERNING BOARD LINK, AND THE DISCIPLINARY SECTION THAT DEFINES THE CONDUCT THAT MAY RESULT IN A LICENSE SUSPENSION ACTION
License must be refused for any drug felony conviction in the last 10 years. License may be refused for any other drug felony or any misdemeanor relating to a health profession. 63 P.S. Sections 422.22, 422.41.
Within the Physician Group, there are many types of Doctors, including, Dentists, Pharmacists, Chiropractors, and Osteopaths.
Dentist: Here the same standard of conduct applies. License must be refused for any drug felony conviction in the last 10 years. License may be refused for any other drug felony or any misdemeanor relating to a health profession.
Chiropractor: License must be refused for any drug felony conviction in the last 10 years. License may be refused for any other drug felony or any misdemeanor relating to a health profession. 63 P.S. Sections 422.22, 422.41.
Osteopath: License may be refused for conviction of any felony, drug felony, crime of moral turpitude or any crime related to the practice of osteopathic medicine. 63 P.S. Sections 271.14, 271.15.
Pharmacists: License may be refused for conviction of any felony, drug felony, crime of moral turpitude or any crime related to the practice of osteopathic medicine. Revocation of a pharmacist's license for a violation of 49 Pa. Code § 27.18.
Optometrist: License must be suspended for a drug felony conviction. License may be revoked for any felony or crime of moral turpitude. 63 P.S. Section 244.7.
Nurse (Registered Nurse and Licensed Practical Nurse) License must be refused for any drug felony conviction in the last 10 years. License may be refused for any other felony or crime of moral turpitude. 63 P.S. Sections 216(c), 24(a)(5)(RNs); 63 P.S. Sections 655, 666(a)(5)(LPNs).
Nursing Home/Home Health Care/Other Workers in Long-Term Care Facilities: May never be hired if convicted of homicide, aggravated assault, kidnapping, rape, robbery, burglary, arson, theft (including two misdemeanors), or various sex crimes, concealing death of child, endangering welfare of child, pornography, or felony drugs. 35 P.S. Section 10225.503(a)(Older Adults Protective Services Act, or OAPSA).
Occupational Therapist: License may be refused or revoked for conviction of any crime having a direct bearing on fitness to be an OT. 63 P.S. Section 1516.
Physical Therapist/Athletic Trainer: License must be refused for conviction of any drug felony in the last 10 years. 63 P.S. Section 1306.
Physician's Assistant: License may be refused for any felony conviction. 63 P.S. Section 271.15(b).
Podiatrist: License may be refused, suspended or revoked for conviction in connection with the practice of podiatric medicine or involving moral turpitude. 63 P.S. Section 42.16.
Psychologist: License must be refused for any drug felony conviction in the last 10 years. License may be refused for any other felony or misdemeanor in the practice of psychology. 63 P.S. Sections 1206, 1208.