This week’s Commonwealth Court decisions in two companion cases, Packet v. Bureau of Professional and Occupational Affairs, are really important. The cases are instructive on what not to do when you receive notice of a pending disciplinary action from your licensing board.Packer and Murphy received notices of disciplinary action against their licenses stemming from convictions under the Drug Act. In accordance with 63 P. S. 225.1(b) or 63 P.S. § 225.2 a violation of the Controlled Substance, Drug, Device and Cosmetic Act (Drug Act), 35 P. S. 780–113 (a)(12), the Board sought to automatically suspend their professional licenses. Packer and Murphy, after their guilty pleas and properly answering the criminal contact question on their bi-annual renewal, failed to respond to these notices.Section 15.1(b) of the Administrative Law was added in 1985, mandates that the Board automatically suspend licenses under certain circumstances prior to a hearing. Of relevance to the circumstance now before the Patrick Court, Section 15.1(b) of the Law provides, in part:
(b) A license issued under this act shall automatically be suspended upon the legal commitment to an institution because of mental incompetency from any cause . . . , conviction of a felony under the [Drug Act,] or conviction of an offense under the laws of another jurisdiction, which, if committed in Pennsylvania, would be a felony under [the Drug Act]. . . . Automatic suspension under  this subsection shall not be stayed pending any appeal of a conviction. Restoration of such license shall be made as hereinafter provided in the case of revocation or suspension of such license.
After sending the suspension notices and providing due process, disciplinary counsel, with no respondent present, entered the certified convictions in the Board hearing record. The Board issued its order automatically suspending each license was a 10 year reinstatement requirement. The automatic license suspension provision applies specifically to Drug Act violations and not other felony violation. Packer and Murphy assumed there was no defense to the license disciplinary action. That is incorrect.Hearing officers and the licensing boards are open to mitigation evidence, reasonable explanations that do not contest the guilty plea, and in the past, at times, have been flexible in their disciplinary conclusions. By not responding to any disciplinary action, Packer and Murphy failed to provide the Board with evidence upon which it could issued any less than the full automatic suspension.On appeal, the only issue of which Packer and Murphy could complain, having presented no evidence below, is that the Board’s actions are illegal. Each argued that the ten year automatic suspension was illegal due to the disparate disciplinary actions typically taken in these cases. Previously, the Board would either issue a suspension or revocation, and stay the disciplinary revocation for three years and reinstatement would be possible sooner in conjunction with PHMP enrollment. The Board did not do that in these cases.The Board acknowledged its inconsistently application of the automatic suspension requirement involving those convicted of felonies under the Drug Act. “Certainly there are instances where the prosecution division of the Department of State, BPO entered into consent agreements with certain licensees that reinstated their license to probationary status prior to the 10 years from the date of the conviction. The Packer and Murphy court, regardless of this concession, concluded that licensing boards can change its practices and policies in the application of appropriate law. Such practice does not change the law. Thus, the court authorized the Board to utilize its discretion in the application of its governing law and that changing its prior enforcement practices regarding automatic suspension did not change the law itself.The Commonwealth Court stated that due judicial deference to administrative boards was required in how they interpret their own regulations, allowing those boards flexibility in the application of interpreting of its regulatory authority. Changing boards changing enforcement policy and practice was consistent with the law and the legislative background.In these case, a clear signal is being sent to all practitioners and licensees: the new enforcement regimen is being enacted. A red flag is now raised suggesting that every single disciplinary action must be met with a request for hearing and mitigation evidence to be presented. Every licensee must take full advantage of their ability to have a hearing, demand due process rights, and present all potential mitigation evidence to secure a reduced discipline either in agreement or based upon evidence before a hearing officer or Board. You have nothing to loose because if you don’t they are going to revoke your license.The new enforcement atmosphere at every licensing board and in the prosecutor’s office, as depicted by this case, compels every licensee to take every step necessary to protect their license. There is no lost cause. The boards are now indicating they will prosecute every case to the fullest, seeking the worst or greatest disciplinary action in every undefended license in case. Every single professional possesses mitigation evidence that is compelling, personal, and should be brought to the attention of either the prosecutor or the board.Please call me to discuss your case and how I would defend you.