I routinely write about the overbearing criminal conduct and disciplinary environment that currently exists for Pennsylvania licensees. On May 10, 2018 Commonwealth Court decided Levengood v. BPOA. This cases involves a car salesperson’s license and the excessive discipline this Board handed down. In this case, along with several other recent Commonwealth Court decision, the court rejects as excessive and manafestly unreasonable discipline that goes too far – such as revoking licenses and imposing civil penalties – when the facts do not warrant it.
In 2008 Levengood plead guilty, to rape and related offenses. He was sentenced to 5-10 years in state prison. In 2009, while in custody, Levengood plead guilty to aggravate against a prison guard, receiving five years probation. After his 2014 release from jail, Levengood rehabilitated himself and eventually began working for a distant family member’s car sales and auction business. In 2015, when reactivating his car sales person license Levengood acknowledged these convictions.
The Board reactivated his license but six months later filed disciplinary action. The Board sought to discipline Levengood for his felony convictions, arguing the moral turpitude offenses subjected him to discipline under the Criminal History Information Record Act (CHIRA). As is the usual practice, the State Board of Motor Vehicle Manufacturers, and Sales Persons prosecutor merely introduced into evidence the certified criminal conviction paperwork. Prosecutors do only this and say felony convictions warrant discipline. No witnesses appeared.Disciplinary Environment
First, he admitted the crimes and disclosed the information on his re-activation paperwork. This must be done. Secondly, Levengood’s mitigation evidence included compliance with all terms and conditions of probation. Levengood emphasized his post-prison employment and consistent hard work. Family members testified about Levengood’s awesome car sales/ownership managerial duties, his extensive employment obligations and the import of Levengood’s license to the family owned business.
The hearing officer issued a proposal adjudication, randomly assessing a $7000 civil penalty and an indefinite period of probation until his criminal probation was complete. BPOA and Levengood filed objections. The Board issued a final adjudication, departing from the hearing examiner’s recommendation. The Board raised the fine to the maximum $10,000 and revoked Levengood’s license. The Board claimed the rape and aggravated assault charges indicated Levengood could not be trusted in society and people buying cars needed to be protected from him.What is Moral Turpitude
Levengood appealed, successfully arguing the Board abused its discretion when it imposed the harshest sanctions available, license revocation and a $10,000 fine. Levengood, as I always do, argued the Board’s action was patently unreasonable in light of mitigation evidence and the extensive passage of time between the criminal act and the state board disciplinary action. Importantly, Levengood also emphasized the 2007 criminal act was not related to the use of his sales person’s license. Levengood also argued the Board’s denial of his right to conduct lawful business was not shown to be reasonably related to the state interest protected.
Commonwealth Court agreed with Levengood’s arguments. Levengood, as I always argue, used the case of St. John Vending. This case maintains that the length of time between the criminal conduct and the disciplinary action is a significant factor for the licensing board to consider when imposing discipline. Levengood v. BPOA decision affirms this long-standing legal argument.
Commonwealth court also rules that criminal conduct not related to a license is less of a basis for discipline. Commonwealth Court, in several recent decisions, has declared arbitrary and capricious license revocation and suspensions for criminal conduct not license related.
This appellate court reminds the Boards that they can not disregard mitigation evidence and summarily try to run properly licensed individuals out of business and the profession. The courts are instructing the Boards it is an abuse of its discretion to suspend or revoke a licensees license based upon old convictions for which jail time has been long been served and are in no way related to the licensed conduct.
The court calls the Board’s interpretation of its regulations improper and draconian. The court rejects the Board’s view that revocation is the only proper result when there is an old conviction for rape and aggravaated assault. The court rejects this Board’s moral turpitude interpretation that no licensee can be rehabilitated 5 years after a conviction.
Rehabilitation evidence is important. The Court admonishes this Board that criminal supervision is for the probation department, not a licensing board. A licensee currently on probation and compliant with all probation terms warrants help turning over a new leaf. Board sanctioned continuation of the stigma of a criminal conviction, in this new day and age – absent any factual basis – is an abuse of descretion.
The appellate court concludes Board imposition of the highest possible financial fine, which must be paid before license reinstatement, inappropriately deprives licensees of an ability to earn a living. This an unreasonable deprivation of a property interest. In reviewing CHIRA and Board regulation, the Court concludes the lack of specific standards for the exercise of an agency’s discretion in levying fines renderes the Board unable to justify this fine. In other words, the Court concluded absent specific criteria the fine is highly subjective and therefore an abuse of discretion.
Please call to discuss your criminal conviction related Pennsylvania professional licensing board related discipline.