Garner v. Bureau of Professional & Occupational Affairs, State Board of Optometry , 2014 Pa. Commw. LEXIS 391 ( 2014 )


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  •                  IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Dr. J.C. Garner, O.D.,                       :
    Petitioner                :
    v.                                    :
    :
    Bureau of Professional and                   :
    Occupational Affairs, State                  :
    Board of Optometry,                          :      No. 1938 C.D. 2013
    Respondent                :      Submitted: June 27, 2014
    BEFORE:        HONORABLE DAN PELLEGRINI, President Judge
    HONORABLE ROBERT SIMPSON, Judge
    HONORABLE ANNE E. COVEY, Judge
    OPINION BY
    JUDGE COVEY                                         FILED: July 30, 2014
    Dr. J.C. Garner, O.D. (Garner) petitions this Court for review of the
    Department of State, Bureau of Professional and Occupational Affairs, State Board of
    Optometry’s (Board) September 26, 2013 order suspending his license under Section
    7 of the Optometric Practice and Licensure Act (Optometry Act),1 issuing a public
    reprimand and imposing a $2,500.00 civil penalty. The issues for this Court’s review
    are: (1) whether the Board erred by concluding that Garner’s conviction was for
    crimes involving moral turpitude; (2) whether the Criminal History Record
    Information Act (CHRIA)2 limits the Board’s consideration to crimes related to the
    practice of optometry; and, (3) whether the Board’s penalty constituted an abuse of
    discretion. Upon review, we affirm.
    The facts in this case are undisputed. Garner has held a license to
    practice optometry in the Commonwealth of Pennsylvania (License No. OEG001105)
    1
    Act of June 6, 1980, P.L. 197, as amended, 63 P.S. § 244.7.
    2
    18 Pa.C.S. §§ 9101-9183.
    since 1988. Garner allowed his license to become inactive as of November 30, 2006
    in order to pursue other career paths.3 In 2006, he began working as a freight train
    conductor for Norfolk Southern Railroad. In 2009, he was elected as a Pennsylvania
    State Constable in South Hanover Township, Dauphin County.
    On April 14, 2011, a Dauphin County jury found Garner guilty of three
    counts of official oppression and two counts of impersonating a public servant.
    These convictions stemmed from Garner stopping female motorists, presenting a
    badge and demanding their personal information.                 The crimes are classified as
    second-degree misdemeanors. On June 29, 2011, Garner was sentenced, inter alia, to
    two months of work release, 250 hours of community service and three years of
    probation.4
    On June 1, 2012, the Board issued an Order to Show Cause against
    Garner alleging that it was authorized to suspend or revoke his license or impose a
    civil penalty under Section 7(a)(5) of the Optometry Act “in that [Garner] was
    convicted of a crime involving moral turpitude.” Certified Record (C.R.) Item 1,
    Order to Show Cause at ¶ 15. On June 29, 2012, Garner admitted his convictions, but
    “[d]enied in the strongest terms that [he] was convicted of a crime involving moral
    turpitude.” C.R. Item 2, Ans. to Complaint & New Matter at ¶ 15. After several
    continuances, a Board hearing was held on March 21, 2013. On September 26, 2013,
    the Board issued a Final Adjudication and Order indefinitely suspending Garner’s
    license for not less than three years, issuing a public reprimand and imposing a civil
    penalty of $2,500.00. Garner appealed to this Court.5
    3
    According to Section 5(d) of the Optometry Act, 63 P.S. § 244.5(d), prior to this
    disciplinary action, in order to reactivate his license, Garner merely had to pay the necessary fees
    and show that he satisfactorily completed his interim continuing education requirements.
    4
    Garner contends that he appealed his conviction to the Superior Court (M.D.A. 1355-2011)
    and that his appeal is still pending. See Certified Record Item 2, Ans. to Complaint & New Matter
    at ¶¶ 26, 28-29.
    5
    “Our scope of review of appeals from adjudications by the Board is limited to determining
    whether constitutional rights were violated, whether an error of law was committed or whether
    2
    Garner first argues that the Board erred by concluding that his
    convictions were for crimes involving moral turpitude. We disagree. Section 4(a) of
    the Optometry Act requires that the Board’s licensees must be “of good moral
    character.” 63 P.S. § 244.4(a). Section 7 of the Optometry Act also states, in
    relevant part:
    (a) The [B]oard shall have the power to refuse, revoke, limit
    or suspend a license, or take other corrective action
    authorized hereunder against an optometrist licensed to
    practice optometry in this Commonwealth for any or all of
    the following reasons:
    ....
    (5) Conviction of a felony or a crime involving moral
    turpitude. Conviction shall include a finding or verdict of
    guilt, an admission of guilt or a plea of nolo contendere.
    63 P.S. § 244.7 (emphasis added).
    “Moral turpitude” is not defined in the Optometry Act. However, this
    Court has held that the term is not unconstitutionally vague and “is capable of being
    defined as evidenced by court decisions which determine that certain offenses are
    crimes involving moral turpitude.” Foose v. State Bd. of Vehicle Mfrs., Dealers &
    Salespersons, 
    578 A.2d 1355
    , 1357 (Pa. Cmwlth. 1990). In Moretti v. State Board of
    Pharmacy, 
    277 A.2d 516
    (Pa. Cmwlth. 1971), this Court defined “moral turpitude” as
    “anything done knowingly contrary to justice, [h]onesty, or good morals.”6 
    Id. at 518
    (quotation marks omitted). A “[d]etermination of whether a crime involves moral
    turpitude turns on the elements of the crime, not on an independent examination of
    necessary findings of fact are supported by substantial evidence.” Rand v. Pennsylvania State Bd.
    of Optometry, 
    762 A.2d 392
    , 394 n.2 (Pa. Cmwlth. 2000).
    6
    The Moretti Court’s definition has been repeatedly upheld. See Sklar v. Dep’t of Health,
    
    798 A.2d 268
    (Pa. Cmwlth. 2002); Krystal Jeep Eagle, Inc. v. Bureau of Prof’l & Occupational
    Affairs, 
    725 A.2d 846
    (Pa. Cmwlth. 1999); Foose.
    3
    the details of the behavior underlying the crime.”7 Startzel v. Dep’t of Educ., 
    562 A.2d 1005
    , 1007 (Pa. Cmwlth. 1989). The Foose Court explained:
    [A licensing b]oard is empowered to interpret the intention
    of the legislature when the words of [its licensing a]ct are
    not explicit. Section 21(c)(8) of the Statutory Construction
    Act of 1972, 1 Pa. C.S. § 1921(c)(8). The construction of
    the [licensing a]ct given by the [licensing b]oard, as the one
    charged with its administration and execution, entitled it to
    great weight which should not be disregarded unless clearly
    erroneous. We may not invalidate the [licensing b]oard’s
    interpretation of [its licensing a]ct unless it is found to be so
    unreasonable as to be an expression of whim instead of an
    exercise of judgment.
    
    Foose, 578 A.2d at 1357
    (citation omitted).
    In the instant case, the Board’s decision reveals that the Board examined
    the Act’s good moral character requirement and its authorization to impose penalties
    on licensees convicted of crimes involving moral turpitude. The Board’s decision
    also shows that the Board analyzed the elements of the crimes for which Garner was
    convicted. Based upon Moretti and its progeny, the Board determined that since
    Garner’s crimes involved fraud and dishonesty, they constituted crimes of moral
    turpitude for which he was subject to discipline under Section 7(a)(5) of the Act.
    In Gombach v. Department of State, Bureau of Commissions, Elections
    & Legislation, 
    692 A.2d 1127
    (Pa. Cmwlth. 1997), this Court explained:
    Although good moral character was not defined by the
    General Assembly, . . . the phrase has been made
    constitutionally certain by our courts in terms of a person
    lacking ‘moral turpitude.’ Good moral character is defined,
    in part, as including ‘an absence of proven conduct or acts
    which have been historically considered as manifestation of
    7
    Thus, Garner’s contentions that the District Attorney “would never make the [plea bargain]
    offer on a case involving alleged moral turpitude,” and that his convictions resulted from his
    counsel’s failure to object to certain jury instructions and from the victims’ misunderstanding of his
    constable powers rather than him deceiving or misleading anyone, are irrelevant. See Garner Br. at
    9, 14.
    4
    moral turpitude.’ BLACK’S LAW DICTIONARY, 693 (6th
    ed.1990). Our courts have defined moral turpitude as
    ‘anything done knowingly contrary to justice, honesty or
    good morals.’ Foose . . . (quoting Moretti . . .). From these
    definitions it is apparent that the two phrases, good moral
    character and moral turpitude, are often used together or to
    define each other.
    
    Id. at 1130.
    Pertaining to moral turpitude, the Moretti Court held:
    Unquestionably the most helpful definition yet offered was
    given in the case of Jordan v. De George, [
    341 U.S. 223
    ,
    232 (1951)], wherein it was stated:
    Whatever else the phrase ‘crime involving moral
    turpitude’ may mean in peripheral cases, the
    decided cases make it plain that crimes in which
    fraud was an ingredient have always been
    regarded as involving moral turpitude. * * *
    Fraud is the touchstone by which this case should be
    judged.     The phrase ‘crime involving moral
    turpitude’ has without exception been construed to
    embrace fraudulent conduct.
    
    Moretti, 277 A.2d at 519
    (emphasis added). This Court has also held:
    With respect to ‘fraud,’ a term not defined, Section 1903(a)
    of the Statutory Construction Act of 1972 advises that
    where a word is not defined in the statute but the word has
    acquired a peculiar and appropriate meaning, it shall be
    construed according to such peculiar and appropriate
    meaning for definition. 1 Pa.C.S. § 1903(a). ‘Fraud’
    certainly has acquired a peculiar and appropriate meaning in
    the law. We turn to Black’s Law Dictionary 594 (5th ed.
    1979) for a definition and find one that is sufficiently
    simple and broad to answer our purpose: ‘[a]ny kind of
    artifice employed by one person to deceive another.’
    Chatham Racquet Club v. Commonwealth, 
    561 A.2d 354
    , 357 (Pa. Cmwlth. 1989)
    (quoting Commonwealth v. Nat’l Apartment Leasing Co., 
    529 A.2d 1157
    , 1160-61
    (Pa. Cmwlth. 1987)).     “Fraud” is defined in the Ninth Edition of Black’s Law
    5
    Dictionary (2004) as “[a] knowing misrepresentation of the truth or concealment of a
    material fact to induce another to act to his or her detriment.” 
    Id. at 731.
                  Here, Garner was convicted for official oppression and impersonating a
    public servant. Section 5301 of the Crimes Code specifies as to official oppression:
    A person acting or purporting to act in an official capacity
    or taking advantage of such actual or purported
    capacity commits a misdemeanor of the second degree if,
    knowing that his conduct is illegal, he:
    (1) subjects another to arrest, detention, search, seizure,
    mistreatment, dispossession, assessment, lien or other
    infringement of personal or property rights; or
    (2) denies or impedes another in the exercise or enjoyment
    of any right, privilege, power or immunity.
    18 Pa.C.S. § 5301 (emphasis added). Relative to impersonating a public servant,
    Section 4912 of the Crimes Codes provides: “A person commits a misdemeanor of
    the second degree if he falsely pretends to hold a position in the public service with
    intent to induce another to submit to such pretended official authority or otherwise
    to act in reliance upon that pretense to his prejudice.” 18 Pa.C.S. § 4912 (emphasis
    added). Because the elements of the crimes for which Garner was convicted clearly
    involve misrepresentation or concealment to induce others to act to their detriment,
    we hold that they include fraudulent conduct and, therefore, constitute crimes
    involving moral turpitude. Thus, the law supports the Board’s determination that
    Garner’s conviction was for crimes involving moral turpitude.
    Garner also contends that CHRIA limits the Board’s consideration to
    crimes related to the practice of optometry. We disagree. Section 7(a)(5) of the
    Optometry Act authorizes the Board to suspend Garner’s license based on “a crime
    involving moral turpitude.”8 63 P.S. § 244.7(a)(5). Section 9124(c) of CHRIA
    8
    Similarly, Section 23.62(e) of the Board’s Regulations, 49 Pa. Code § 23.62(e), does not
    require that a licensee’s conduct relate to his or her practice. Section 23.62(e) of the Board’s
    6
    empowers a licensing board to suspend a license for misdemeanor convictions only
    when they relate to the licensed profession, as follows:
    Boards,    commissions      or     departments  of    the
    Commonwealth authorized to license, certify, register or
    permit the practice of trades, occupations or professions
    may refuse to grant or renew, or may suspend or revoke
    any license, certificate, registration or permit for the
    following causes:
    (1) Where the applicant has been convicted of a felony.
    (2) Where the applicant has been convicted of a
    misdemeanor which relates to the trade, occupation or
    profession for which the license, certificate, registration or
    permit is sought.
    18 Pa.C.S. § 9124(c) (emphasis added). Whether Section 9124(c) of CHRIA limits
    Section 7(a)(5) of the Optometry Act such that the Board may suspend Garner’s
    license only if his misdemeanor crimes relate to the practice of optometry appears to
    be an issue of first impression.
    However, Section 9124(c)(2) of CHRIA is inapplicable to this case.
    CHRIA’s general purpose is to control the collection, maintenance, dissemination or
    receipt of criminal history record information. See 18 Pa.C.S. § 9103. Accordingly,
    “Section 9124(c) [of CHRIA] does not by its own terms grant authority to the Board
    to suspend or revoke [a professional] license.” Cannizzaro v. Dep’t of State, Bureau
    of Prof’l & Occupational Affairs, 
    564 A.2d 564
    , 567 (Pa. Cmwlth. 1989) (quoting
    Gangewere v. Pennsylvania State Architects Licensure Bd., 
    512 A.2d 1301
    , 1305 (Pa.
    Cmwlth. 1986)). Historically, licensing boards have implicated either its licensing
    statute or CHRIA, or both, when sanctioning their members. Where a licensing
    statute does not specify that a licensee’s conduct must be related to the licensed
    Regulations states: “Licensed optometrists may not engage in unethical or illegal practices or
    conduct which fails to conform to the acceptable and prevailing standards of optometric practice, or
    violates [s]tate or [f]ederal laws.” (Emphasis added).
    7
    profession, this Court has declined to impose such a requirement. Vogelman v. State
    Bd. of Funeral Dirs., 
    550 A.2d 1367
    (Pa. Cmwlth. 1988).
    Here, the Board referenced in its Order to Show Cause that “[t]his action
    is brought pursuant to the [Optometry Act], 63 P.S. § 244.1 et seq., and/or [CHRIA],
    18 Pa.C.S. §§ 9101-9183.” C.R. Item 1, Order to Show Cause at 1. The Board
    ultimately held that Garner “is subject to discipline of his license under [S]ection
    7(a)(5) of the [Optometry] Act . . . in that [Garner] was convicted of a crime
    involving moral turpitude.” Board Op. at 11. Because the Board did not rely upon
    Section 9124(c)(2) of CHRIA in Garner’s case, but rather acted solely pursuant to its
    authority in Section 7(a)(5) of the Optometry Act, the crimes for which Garner was
    sanctioned were not required to be related to the practice of optometry.9
    9
    Even if the Board had reviewed Garner’s license under Section 9124(c)(2) of CHRIA, it
    does not appear that the Board’s reliance upon a court’s certified conviction documents to suspend
    Garner’s license necessarily implicates CHRIA. CHRIA applies only to “[c]riminal history record
    information,” which is defined as:
    Information collected by criminal justice agencies concerning
    individuals, and arising from the initiation of a criminal proceeding,
    consisting of identifiable descriptions, dates and notations of arrests,
    indictments, informations or other formal criminal charges and any
    dispositions arising therefrom. The term does not include
    intelligence information, investigative information or treatment
    information, including medical and psychological information, or
    information and records specified in [S]ection 9104 (relating to
    scope).
    18 Pa.C.S. § 9102 (emphasis added). Section 9104(a) of CHRIA states, in pertinent part:
    Except for the provisions of Subchapter B (relating to completeness
    and accuracy), Subchapter D (relating to security) and Subchapter F
    (relating to individual right of access and review), nothing in this
    chapter shall be construed to apply to:
    ....
    (2) Any documents, records or indices prepared or maintained by or
    filed in any court of this Commonwealth, including but not limited
    to the minor judiciary.
    8
    Lastly, Garner maintains that the Board abused its discretion by
    imposing a penalty that was too harsh, particularly since his license was inactive at
    the time of his crimes, and where the District Attorney (DA) felt that his crimes were
    “innocuous enough that the DA made a plea-bargain offer . . . .”10 Garner Br. at 18.
    We disagree.
    This Court has held that the professional license renewal requirement
    “neither serves as a statute of limitations nor requires the licensing agency to make a
    periodic determination of the licensee’s qualifications.”11 
    Gangewere, 512 A.2d at 1306
    . Because the Board’s reactivation process would not require a determination of
    Garner’s specific qualifications to practice, he could merely pay a fee and submit
    proof of his continuing education to reactivate his license at any time. Thus, although
    Garner’s license was inactive at the time of the crimes for which the Board
    sanctioned him, since Garner maintained a property interest in his license that he
    could revive at any time, the Board retained the jurisdiction and authority to suspend
    his license. Nicoletti v. State Bd. of Vehicle Mfrs., Dealers & Salespersons, 
    706 A.2d 891
    (Pa. Cmwlth. 1988); see also Ullo v. State Bd. of Nurse Exam’rs, 
    398 A.2d 764
    (Pa. Cmwlth. 1979).12
    18 Pa.C.S. § 9104(a) (emphasis added). Arguably, certified records of Garner’s conviction from the
    Dauphin County Common Pleas Court do not constitute criminal history record information subject
    to CHRIA’s limitations.
    10
    Garner’s counsel contended that the DA and the trial judge would have dismissed the
    charges if Garner had accepted the plea bargain which, inter alia, precluded him from running for
    public office for 15 years, but he refused to agree to such a condition. Reproduced Record, Notes of
    Testimony, March 21, 2013 at 85; see also Garner Br. at 9.
    11
    Rather, “the purpose of periodic renewals of professional or occupational licenses is to
    raise revenues and to provide a current list of those people authorized to practice the profession or
    occupation within the Commonwealth[.]” 
    Gangewere, 512 A.2d at 1306
    .
    12
    Although Gangewere, Nicoletti and Ullo involved license renewals as opposed to license
    reactivations, we find the processes to be sufficiently similar to guide us under the instant
    circumstances.
    9
    Moreover, pursuant to Section 7(a)(5) of the Optometry Act, once
    Garner was convicted of a crime involving moral turpitude, the Board was authorized
    to sanction him. With complete independence from the DA’s plea bargain, the Board
    was clearly authorized by the Optometry Act and what we refer to as the Licensing
    Boards and Commissions Law13 with the discretion to fashion such penalties for
    Garner’s misconduct.
    Section 7(b) of the Optometry Act provides:
    When the [B]oard finds that the license of a person may be
    refused, revoked or suspended the [B]oard may:
    (1) Refuse, revoke or suspend a license.
    (2) Administer a public reprimand.
    (3) Limit or otherwise restrict the licensee’s practice under
    this act.
    (4) Suspend any enforcement under this subsection and
    place an optometrist on probation, with the right to vacate
    the probationary order and impose the enforcement.
    (5) Require a licensee to submit to the care, counseling or
    treatment of a physician or a psychologist designated by the
    board.
    (6) Restore or reissue, in its discretion, a suspended license
    to practice optometry and impose any disciplinary or
    corrective measure which it might originally have imposed.
    63 P.S. § 244.7(b) (emphasis added). Section 8(c) of the Optometry Act, as amended
    by Section 5(b) of the Licensing Boards and Commissions Law, authorized the
    Board:
    In addition to the disciplinary powers and duties of the
    boards and commissions within the Bureau of Professional
    and Occupational Affairs under their respective practice
    13
    Act of July 2, 1993, P.L. 345, as amended, 63 P.S. §§ 2201-2207.
    10
    acts, boards and commissions shall have the power,
    respectively:
    ....
    (4) To levy a civil penalty of not more than $10,000[.00]
    per violation on any licensee, registrant, certificate holder,
    permit holder or unlicensed person who violates any
    provision of the applicable licensing act or board regulation.
    63 P.S. § 2205(b) (emphasis added).14 Further,
    [t]his Court may not substitute its own judgment for that of
    the Board and, absent a flagrant abuse of discretion, will not
    interfere in discretionary matters of the Board. Our review
    of the record reveals that the Board’s decision to suspend
    [and otherwise sanction Garner’s] license was arrived at
    only after careful deliberation, is supported by the evidence
    in the record and is within the Board’s authority. We
    conclude, therefore, that the Board’s action . . . was not an
    abuse of discretion.
    
    Gangewere, 512 A.2d at 1306
    -07 (citation omitted).
    Based on the foregoing, the Board’s order is affirmed.
    ___________________________
    ANNE E. COVEY, Judge
    14
    Section 8(c) of the Optometry Act, 63 P.S. § 244.8(c), was repealed insofar as it was
    inconsistent with Section 5 of the Licensing Boards and Commissions Law, which was amended by
    Section 1 of the Act of July 17, 2009, P.L. 95, as amended, 63 P.S. § 2205 (effective for violations
    that occurred after September 15, 2009).
    11
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Dr. J.C. Garner, O.D.,                :
    Petitioner         :
    v.                             :
    :
    Bureau of Professional and            :
    Occupational Affairs, State           :
    Board of Optometry,                   :      No. 1938 C.D. 2013
    Respondent         :
    ORDER
    AND NOW, this 30th day of July, 2014, the Department of State, Bureau
    of Professional and Occupational Affairs, State Board of Optometry’s September 26,
    2013 final adjudication and order is affirmed.
    ___________________________
    ANNE E. COVEY, Judge