Amendment 4177 to House Bill 1477 P.N. 1860, Regular Session 2019-2020

H1477B1860A04177 SFR:JSL 12/05/19 #90 A04177

AMENDMENTS TO HOUSE BILL NO. 1477

Sponsor: REPRESENTATIVE KAUFFMAN

Printer's No. 1860

Amend Bill, page 1, lines 1 through 4, by striking out all of

said lines and inserting

Amending Titles 18 (Crimes and Offenses) and 63 (Professions and

Occupations (State Licensed)) of the Pennsylvania

Consolidated Statutes, in criminal history record

information, further providing for use of records by

licensing agencies; providing for preliminary provisions and

for Bureau of Professional and Occupational Affairs;

consolidating the provisions of Act 48 of 1993; and making a

related repeal.

Amend Bill, page 1, lines 7 through 17; pages 2 through 4,

lines 1 through 30; page 5, lines 1 through 17; by striking out

all of said lines on said pages and inserting

Section 1. Section 9124(a) and (b)(2) of Title 18 of the

Pennsylvania Consolidated Statutes are amended and the section

is amended by adding a subsection to read:

§ 9124. Use of records by licensing agencies.

(a) State agencies.--Except as provided by this chapter and

specifically subsection (a.1), a board, commission or department

of the Commonwealth, when determining eligibility for licensing,

certification, registration or permission to engage in a trade,

profession or occupation, may consider convictions of the

applicant of crimes but the convictions shall not preclude the

issuance of a license, certificate, registration or permit.

(a.1) Application of other law.--The following provisions

shall apply to a licensing board or licensing commission under

the Bureau of Professional and Occupational Affairs in the

Department of State with respect to refusing to issue or renew,

suspending, revoking or limiting a license, certificate,

registration or permit:

(1) 63 Pa.C.S. § 3112 (relating to restricted licenses

for barbers and cosmetologists).

(2) 63 Pa.C.S. § 3112.1 (relating to restricted licenses

for other occupations).

(3) 63 Pa.C.S. § 3113 (relating to supplementary

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provisions regarding criminal convictions).

(4) 63 Pa.C.S. § 3114 (relating to juvenile

adjudications).

(5) 63 Pa.C.S. § 3115 (relating to preliminary

determinations by licensing boards and licensing

commissions).

(6) 63 Pa.C.S. § 3116 (relating to best practices

guide).

(7) 63 Pa.C.S. § 3117 (relating to list of criminal

offenses).

(b) Prohibited use of information.--The following

information shall not be used in consideration of an application

for a license, certificate, registration or permit:

* * *

(2) Convictions which have been annulled [or expunged.],

expunged or subject to limited access under sections 9122.1

(relating to petition for limited access) and 9122.2

(relating to clean slate limited access).

* * *

Section 2. Title 63 is amended by adding parts to read:

PART I

PRELIMINARY PROVISIONS

(Reserved)

PART II

BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS

Chapter

31. Powers and Duties

CHAPTER 31

POWERS AND DUTIES

Sec.

3101. Scope of chapter.

3102. Definitions.

3103. Investigatory subpoena power.

3104. Reporting of sanctions and criminal proceedings.

3105. Hearing examiners.

3106. Suspension.

3107. Additional powers for commissioner.

3108. Civil penalties.

3109. Confidentiality of records of licensure boards.

3110. Reports.

3111. Licensure by endorsement.

3112. Restricted licenses for barbers and cosmetologists.

3112.1. Restricted licenses for other occupations.

3113. Supplementary provisions regarding criminal convictions.

3114. Juvenile adjudications.

3115. Preliminary determinations by licensing boards and

licensing commissions.

3116. Best practices guide.

3117. List of criminal offenses.

3118. Report to General Assembly.

§ 3101. Scope of chapter.

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This chapter relates to the powers and duties of the General

Counsel, the Bureau of Professional and Occupational Affairs and

licensing boards and licensing commissions.

§ 3102. Definitions.

The following words and phrases when used in this chapter

shall have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Bureau." The Bureau of Professional and Occupational

Affairs in the Department of State.

"Commissioner." The commissioner of the bureau.

"Criminal conviction." Includes a finding of guilty, a plea

of guilty or a plea of nolo contendere with respect to a

criminal offense of this Commonwealth, or an equivalent crime

under the laws of this Commonwealth in effect at the time of the

commission of the criminal offense or an equivalent crime in

another jurisdiction.

"Directly relates." The nature of the criminal conduct for

which the person was convicted has a direct bearing on the

fitness or ability to perform one or more of the duties or

responsibilities necessarily related to the profession, trade or

occupation for which the individual seeks licensure.

"Disciplinary matter." A matter subject to a licensing

board's or licensing commission's jurisdiction in which the

licensing board or licensing commission has the authority to

refuse, suspend, revoke or limit a license, registration,

certificate or permit or to impose a civil penalty or other

discipline under an act.

"Expunge" or "expungement." Removal of a disciplinary

record, accomplished by:

(1) permanently sealing the affected record from public

access;

(2) deeming the proceedings to which the affected record

refers as not having occurred; and

(3) except with respect to any subsequent application

for expungement, affording the affected party the right to

represent that no record exists regarding the subject matter

of the affected record.

"Licensee." A person holding a license, registration,

certificate or permit with a licensing board or licensing

commission under the bureau.

"Licensing board." A departmental or administrative board

under the bureau.

"Licensing commission." A departmental or administrative

commission under the bureau.

"Right-to-Know Law." T he act of February 14, 2008 (P.L.6,

No.3), known as the Right-to-Know Law.

§ 3103. Investigatory subpoena power.

The General Counsel or a designee of the General Counsel

shall have the power and duty to issue subpoenas upon

application of an attorney responsible for representing the

Commonwealth in disciplinary matters before a licensing board or

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licensing commission for the purpose of investigating alleged

violations of the disciplinary provisions administered by a

licensing board or licensing commission. The following apply:

(1) If disclosure is subject to a privilege provided by

law, patient or client records may not be subpoenaed without

the consent of the patient or client or without order of a

court of competent jurisdiction showing that the records are

reasonably necessary for the conduct of the investigation.

(2) The court may impose such limitation on the scope of

the subpoena as may be necessary to prevent unnecessary

intrusion into patient or client confidential information.

(3) The attorney responsible for representing the

Commonwealth in disciplinary matters before a licensing board

or licensing commission is authorized to apply to

Commonwealth Court to enforce the subpoenas.

(4) Nothing in this section shall be construed to excuse

a person from producing documents and records as requested by

a licensing board or licensing commission under any other

provision of law.

§ 3104. Reporting of sanctions and criminal proceedings.

(a) Duty.--A licensee, as a condition of licensure,

certification, registration or holding a permit, shall provide

written notice of the following to the appropriate licensing

board or licensing commission within 30 days:

(1) A disciplinary action taken against the licensee by

a licensing agency of another jurisdiction.

(2) A finding or verdict of guilt, an admission of

guilt, a plea of nolo contendere, probation without verdict,

a disposition in lieu of trial or an Accelerated

Rehabilitative Disposition of a felony or misdemeanor

offense.

(b) Sanctions.--A licensing board or licensing commission

may take disciplinary action against a licensee who violates

this section.

§ 3105. Hearing examiners.

(a) Appointment.--

(1) Notwithstanding any other provision of law, the

commissioner, after consultation with the licensing boards

and licensing commissions, shall appoint hearing examiners as

may be necessary to conduct hearings in disciplinary matters

before a licensing board or licensing commission.

(2) Each licensing board and licensing commission shall

have the power to decide if a specific disciplinary matter or

type of disciplinary matter is to be heard by the licensing

board or licensing commission itself or by a hearing examiner

appointed under this subsection.

(b) Regulations.--The commissioner, after consultation with

the licensing boards and commissions, shall have the power to

promulgate regulations specifying the procedural rules to be

followed by hearing examiners in the conduct of hearings in

disciplinary matters before a licensing board or licensing

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commission. All proceedings shall be conducted in accordance

with the provisions of 2 Pa.C.S. (relating to administrative law

and procedure).

(1) Conduct hearings in accordance with applicable

statutes, rules and regulations.

(2) Issue subpoenas requiring the attendance and

testimony of individuals or the production of pertinent

records or other papers by persons who, in the opinion of the

hearing examiner, have information relevant to any matters

pending before the hearing examiner and to issue decisions.

(d) Time periods.--

(1) In all disciplinary matters before a licensing board

or licensing commission, hearings shall commence within 90

days after the date on which an answer is filed.

(2) A continuance granted prior to the commencement of

the hearing shall toll the 90-day requirement by the period

of the continuance.

(3) A decision shall be rendered within 180 days after

the record is closed.

(4) The licensing board or licensing commission shall

render a final adjudication or decision on any exceptions to

the decision of a hearing examiner or any applications for

review within 90 days of the filing of the exceptions or

applications, provided that a board or commission may

delegate to a hearing examiner the authority to render a

final adjudication or decision in such cases as deemed

appropriate.

§ 3106. Suspension.

(a) Temporary suspension.--A licensing board or licensing

commission may temporarily suspend a license, certificate,

registration or permit under circumstances as determined by the

licensing board or licensing commission to be an immediate and

clear danger to public health and safety. The following apply:

(1) The licensing board or commission shall issue an

order to that effect without a hearing, but upon due notice,

to the licensee concerned at the licensee's last known

address, which shall include a written statement of all

allegations against the licensee.

(2) After issuing the order under paragraph (1), the

licensing board or licensing commission shall commence formal

action to suspend, revoke or restrict the license,

certificate, registration or permit of the person concerned

as otherwise provided for by law.

(3) All actions shall be taken promptly and without

delay.

(b) Hearing.--Within 30 days following the issuance of an

order of temporary suspension, the licensing board or licensing

commission shall conduct or cause to be conducted a preliminary

hearing to determine whether there is a prima facie case

supporting the suspension. The following apply:

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(1) The licensee whose license, certificate,

registration or permit has been temporarily suspended may:

(i) be present at the preliminary hearing;

(ii) be represented by counsel;

(iii) cross-examine witnesses;

(iv) inspect physical evidence;

(v) call witnesses;

(vi) offer evidence and testimony; and

(vii) make a record of the proceedings.

(2) If it is determined that there is not a prima facie

case, the suspended license, certificate, registration or

permit shall be immediately restored.

(3) The temporary suspension shall remain in effect

until vacated by the licensing board or licensing commission,

but in no event longer than 180 days.

registration or permit shall be made as provided by law in the

case of revocation or suspension of the license, certificate,

registration or permit.

§ 3107. Additional powers for commissioner.

(a) Membership on boards and commissions.--In addition to

the powers and duties imposed under law, the commissioner or a

designee of the commissioner shall be a member of each of the

licensing boards and licensing commissions except the State

Board of Certified Real Estate Appraisers and the Navigation

Commission for the Delaware River and its Navigable Tributaries.

(b) Designee of Secretary of the Commonwealth.--The

commissioner or a designee of the commissioner may serve as the

designee of the Secretary of the Commonwealth on the Navigation

Commission for the Delaware River and its Navigable Tributaries.

§ 3108. Civil penalties.

(a) Authorization.--

(1) The commissioner, after consultation with the

licensing boards and licensing commissions, shall have the

power to adopt a schedule of civil penalties for operating

without a current, registered, unsuspended and unrevoked

license, registration, certificate or permit and for

violating a provision of the licensing board's or licensing

commission's respective acts or regulations relating to the

conduct or operation of a business or facility licensed by

the licensing boards and licensing commissions. The following

apply:

(i) The schedule of penalties shall not be

applicable to disciplinary matters under the jurisdiction

of a licensing board or licensing commission unless that

licensing board or licensing commission has approved the

schedule.

(ii) The commission shall transmit notice of the

adoption of the schedule of penalties, guidelines for the

imposition of the schedule of penalties and procedures

for appeal to the Legislative Reference Bureau for

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publication in the Pennsylvania Bulletin. The

commissioner shall, within two years of the publication

of the notice, promulgate a regulation specifying the

schedule of penalties, guidelines and procedures.

(iii) A penalty shall not exceed the sum of $1,000

per violation.

(iv) Duly authorized agents of the bureau shall have

the power and authority to issue citations and impose

penalties for violations.

(v) A penalty imposed may be appealed to a hearing

examiner or the licensing board or licensing commission

pursuant to the regulations promulgated under section

3105(b) (relating to hearing examiners).

(vi) If the appeal is initially to a hearing

examiner, the relevant licensing board or licensing

commission shall render a decision on any exceptions to

the decision of the hearing examiner or on any

applications for review in accordance with section

3105(d).

(vii) All proceedings shall be conducted in

accordance with the provisions of 2 Pa.C.S. (relating to

administrative law and procedure).

(2) The commissioner shall expunge the disciplinary

record of a licensee, registrant, certificate holder or

permit holder if the imposition of discipline was for a

violation involving failure to complete continuing education

requirements or practicing for six months or less on a lapsed

license, registration, certificate or permit, subject to the

following:

(i) The licensee, registrant, certificate holder or

permit holder must make written application to the

commissioner for expungement not earlier than four years

from the final disposition of the disciplinary record.

(ii) The disciplinary record must be the only

disciplinary record that the licensee, registrant,

certificate holder or permit holder has with either the

commissioner or a licensing board or licensing commission

under the commissioner's jurisdiction.

(iii) The licensee, registrant, certificate holder

or permit holder must not be the subject of an active

investigation related to professional or occupational

conduct.

(iv) The licensee, registrant, certificate holder or

permit holder must not be in a current disciplinary

status, and any fees or fines assessed must be paid in

full.

(v) The licensee, registrant, certificate holder or

permit holder must not have had a disciplinary record

previously expunged by the commissioner.

(vi) Disciplinary records involving imposition of

discipline for violations other than those identified in

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this paragraph shall not be eligible for expungement.

(vii) The licensee, registrant, certificate holder

or permit holder shall pay all costs associated with the

expungement as established by the commissioner by

regulation.

(3) Nothing in this subsection shall prohibit a

licensing board or licensing commission from using previous

discipline for any regulatory purpose or from releasing

records of previous discipline upon request from law

enforcement or other governmental body as permitted by law.

(b) Additional powers.--In addition to the disciplinary

powers and duties of the licensing boards and licensing

commissions within the bureau under their respective practice

acts, licensing boards and licensing commissions shall have the

power, respectively:

(1) To impose discipline, including, but not limited to,

a civil penalty of up to $10,000 per violation on a licensee

or unlicensed person who violates a lawful disciplinary order

of the licensing board.

(2) To impose discipline, including, but not limited to,

a civil penalty of up to $10,000 per violation on a licensee

or unlicensed person who aids and abets the unlicensed

practice of a profession, occupation or business.

(3) To levy a civil penalty of not more than $10,000 per

violation on a corporation, partnership, institution,

association or sole proprietorship which aids and abets an

individual in the unlicensed practice of a profession. This

penalty shall not, however, be levied against a person solely

as a consequence of that person being a patient or client of

the unlicensed individual.

(4) To levy a civil penalty of not more than $10,000 per

violation on a licensee or unlicensed person who violates a

provision of the applicable licensing act or licensing board

regulation.

(5) To assess against the respondent determined to be in

violation of the disciplinary provisions administered by a

licensing board or licensing commission in a disciplinary

proceeding pending before the licensing board or licensing

commission for final determination, as part of the sanction,

the costs of investigation underlying that disciplinary

action. The cost of investigation shall not include those

costs incurred by the licensing board or licensing commission

after the filing of formal actions or disciplinary charges

against the respondent.

(6) To collect all fees, costs, fines and penalties

assessed as a result of a disciplinary proceeding before a

licensing board or licensing commission.

(7) To deny, suspend or revoke a license, registration,

certification or permit for failure to pay any penalty, fee,

interest or cost assessed as a result of a disciplinary

proceeding before a licensing board or licensing commission.

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(1) Decisions rendered by a licensing board or licensing

commission on any exceptions to the decision of a hearing

examiner or on an application for review in accordance with

section 3105(d) to impose a civil penalty under this section

shall require the same number of votes required for the

licensing board or licensing commission to impose a civil

penalty under any other act.

(2) Nothing in this section shall be construed to

restrict the powers and duties under any other act of a

licensing board or licensing commission in disciplinary

matters, except that a licensing board or licensing

commission may not impose a civil penalty under any other act

for the same violation for which a civil penalty has been

imposed under this section.

(d) Status of civil penalty.--A civil penalty, together with

any associated fee, interest or cost, imposed under this section

or imposed by a licensing board or licensing commission under

another act shall be a judgment in favor of the bureau upon the

person or the property of the person, whether real or personal,

and including any after-acquired property, upon whom the civil

penalty is imposed. The Attorney General shall be responsible

for enforcing the judgments in courts of competent jurisdiction

in accordance with 42 Pa.C.S. (relating to judiciary and

judicial procedure).

(e) Entry of judgment.--Within 60 months of the final

disposition of a disciplinary case, if an unpaid civil penalty,

fee, interest and cost of a licensee total $1,000 or more, the

licensing board or licensing commission, or the respective agent

of the licensing board or licensing commission, may transmit a

copy of the final disposition to the prothonotary of the court

of common pleas in the county where the licensee or property of

the licensee upon whom the penalty, fee, interest and cost are

imposed is located. The following apply:

(1) The prothonotary shall enter and docket the copy of

the final disposition without requiring payment of costs as a

condition precedent to the entry of the copy of the final

disposition.

(2) The total of the penalty, fee, interest and cost

shall be entered as a judgment upon the licensee regardless

of whether the amount has been ordered to be paid in

installments.

(f) Priority of lien.--A lien obtained under this section

shall maintain its priority indefinitely, and no writ of revival

need be filed.

(g) Execution.--A writ of execution may directly issue upon

the lien without the issuance and prosecution to judgment of a

writ of scire facias, provided that a notice of the filing and

the effect of the lien be provided to the licensee not less than

10 days before the execution on the lien. Notice may be sent by

registered mail to the last known address of the licensee.

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(h) Exception to execution.--The lien shall have no effect

upon any stock of goods, wares or merchandise regularly sold or

leased in the ordinary course of business by the licensee

against whom the lien has been entered, unless and until a writ

of execution has been issued and a levy made upon the stock of

goods, wares and merchandise.

(i) Satisfaction.--Once a judgment is paid in full to the

licensing board or licensing commission, or the respective agent

of the licensing board or licensing commission, the licensing

board or licensing commission, or the respective agent of the

licensing board or licensing commission, shall, within 90 days,

notify the prothonotary in writing of receipt of payment in full

and request the judgment be noted as satisfied in full.

(j) Applicability.--This section shall apply only to

disciplinary proceedings commenced on or after August 31, 1993.

(k) Definitions.--As used in this section, the following

words and phrases shall have the meanings given to them in this

subsection unless the context clearly indicates otherwise:

"Unlicensed practice." Any of the following:

(1) Practicing a profession or occupation or operating a

business for which a license, registration, certificate or

permit is required without holding a valid, unexpired,

unrevoked or unsuspended authority to do so.

(2) Representing to the public or a person, through

offerings, advertisements or the use of a title, that the

individual is qualified to practice a profession, occupation

or business for which a license, registration, certificate or

permit is required without holding a valid, unexpired,

unrevoked or unsuspended authority to do so.

§ 3109. Confidentiality of records of licensure boards.

(a) General rule.--

(1) All records under section 708(b)(17) of the Right-

to-Know Law, relating to a noncriminal investigation,

including prosecutorial memos and transcripts of depositions ,

undertaken by the Bureau of Enforcement and Investigation and

the Prosecution Division of the Department of State, Office

of Chief Counsel on behalf of the licensing boards within the

Department of State or concerning a licensure-related

complaint filed with the Department of State shall be

confidential and privileged.

(2) No person who has investigated or has access to or

custody of documents, materials or information that are

confidential and privileged under this subsection shall be

required to testify in a judicial or administrative

proceeding unless directed to do so by a court of competent

jurisdiction without the written consent of the licensing

board that regulates the profession involved.

(3) This subsection shall not preclude or limit

introduction of the contents of an investigative file or

related witness testimony in a hearing or proceeding held

before the licensing boards within the Department of State.

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(4) This section shall not apply to letters to a

licensee or other documents that disclose the final outcome

of an investigation or to final adjudication or orders issued

by the licensure board.

(b) Certain disclosure permitted.--

(1) Except as provided under subsection (a), this

section shall not prevent disclosure of documents, materials

or information pertaining to the status of a license, permit

or certificate issued or prepared by the licensing boards or

the sharing of information with law enforcement authorities

or professional licensure regulatory boards in other

jurisdictions or information relating to a public

disciplinary proceeding or hearing.

(2) Any other disclosure of records under section 708(b)

(17) of the Right-to-Know Law relating to a noncriminal

investigation, including prosecutorial memos and transcripts

of depositions by employees or agents of the Department of

State, Office of Chief Counsel, Bureau of Professional and

Occupational Affairs and the Bureau of Enforcement and

Investigation may be made only in furtherance of an

investigation or prosecution of alleged violations of

applicable licensing statutes, codes or regulations.

(3) Violations of this subsection shall subject the

employee or agent to administrative discipline, including

discharge, suspension or other formal or appropriate

disciplinary action.

the Department of State Office of Chief Counsel, Bureau of

Professional and Occupational Affairs and the Bureau of

Enforcement and Investigation shall execute a confidentiality

affidavit that provides that documents, materials or information

under subsection (a), obtained by employees and agents of the

Department of State, Office of Chief Counsel, Bureau of

Professional and Occupational Affairs and the Bureau of

Enforcement and Investigation shall be considered confidential

and may be disclosed only as permitted under subsections (a) and

(b).

(d) Waiver prohibited.--A licensing board or licensing

commission may not require an applicant to waive any

confidentiality provided for under this section as a condition

for the approval of a license or any other action of the board.

§ 3110. Reports.

Licensing boards and licensing commissions shall submit

annually to the Consumer Protection and Professional Licensure

Committee of the Senate and to the Professional Licensure

Committee of the House of Representatives a report containing

the following:

(1) Description of the types of complaints received.

(2) Status of cases.

(3) Total number of cases and type of disciplinary

action taken.

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(4) Percentage of disciplinary actions in relation to

the total number of licensees.

(5) Number of closed cases.

(6) Average number of days to close a case.

(7) Number of revocations and suspensions.

(8) Percentage of revocations and suspensions in

relation to the total number of licensees.

§ 3111. Licensure by endorsement.

(a) General rule.--Notwithstanding any existing provisions

related to licensure by endorsement or licensure by reciprocity

in an applicable licensing statute, a licensing board or

licensing commission shall issue a license, certificate,

registration or permit to an applicant to allow practice in this

Commonwealth if, upon application to the licensing board or

licensing commission, the applicant satisfies all of the

following conditions:

(1) Holds a current license, certificate, registration

or permit from another state, territory or country and the

licensing board or licensing commission determines that

state's, territory's or country's requirements are

substantially equivalent to or exceed the requirements

established in this Commonwealth.

(2) Demonstrates competency in the profession or

occupation through methods determined by the licensing board

or licensing commission, including having completed

continuing education or having experience in the profession

or occupation for at least two of the five years preceding

the date of the application under this section.

(3) Has not committed any act that constitutes grounds

for refusal, suspension or revocation of a license,

certificate, registration or permit to practice that

profession or occupation in this Commonwealth unless the

licensing board or licensing commission determines, in its

discretion, that the act should not be an impediment to the

granting of a license, certificate, registration or permit to

practice in this Commonwealth.

(4) Is in good standing and has not been disciplined by

the jurisdiction that issued the license, certificate,

registration or permit unless the licensing board or

licensing commission determines, in its discretion, that the

discipline should not be an impediment to the granting of a

license, certificate, registration or permit to practice in

this Commonwealth.

(5) Pays any fees established by the licensing board or

licensing commission by regulation.

(b) Provisional endorsement license.--A licensing board or

licensing commission may issue a provisional license,

certificate, registration or permit to an applicant for

licensure by endorsement while the applicant is satisfying

remaining requirements for the licensure by endorsement as

determined by the licensing board or licensing commission. The

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holder of a provisional endorsement license issued under this

subsection may practice until any of the following occurs:

(1) A license, certificate, registration or permit is

denied by the licensing board or licensing commission under

this section.

(2) The expiration of the provisional endorsement

license as established by the licensing board or licensing

commission by regulation.

(3) The holder of the provisional endorsement license

fails to comply with the terms of the provisional license.

supersede or replace existing statutory provisions relating to

licensure by endorsement or licensure by reciprocity applicable

to licensing boards and licensing commissions through their

respective enabling statutes.

§ 3112. Restricted licenses for barbers and cosmetologists.

(a) Supplementary provisions.--Notwithstanding any provision

of law to the contrary, as an alternative to refusing to issue

or renew, suspending, revoking or limiting a license as a result

of a finding that an applicant for a barber's license lacks the

fitness to engage in the practice of barbering under section

3(a) of the act of June 19, 1931 (P.L.589, No. 202), referred to

as the Barbers' License Law, or that an applicant for a

cosmetology license is not of good moral character under section

4(a) of the act of May 3, 1933 (P.L.242, No.86), referred to as

the Cosmetology Law, due to a criminal conviction, or is

otherwise ineligible for a license as a barber or cosmetologist

as a result of a criminal conviction, the State Board of Barber

Examiners or the State Board of Cosmetology may issue a

restricted license for a term not less than one year and not

more than two years to an applicant for a license under the

Barbers' License Law or the Cosmetology Law. The following

apply:

(1) The State Board of Barber Examiners or the State

Board of Cosmetology shall determine the period of time

during which the respective applicant shall operate under a

restricted license.

(2) The State Board of Barber Examiners or the State

Board of Cosmetology shall notify the respective applicant of

that period of time and the conditions placed on the

restricted license under subsection (c).

(b) Demonstration of fitness.--Notwithstanding any other

provision of law to the contrary and the individual's criminal

convictions, an applicant for a restricted license may

demonstrate fitness for issuance of a restricted license to

practice barbering or cosmetology by introducing evidence of the

following, as applicable:

(1) While incarcerated, the individual maintained a

record of good behavior, including the successful completion

of any required rehabilitative programming offered by a

county correctional facility or the Department of

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Corrections.

(2) If incarcerated by a county correctional facility or

the Department of Corrections and enrolled in a program

regarding barbering or cosmetology, the individual has

successfully completed the requisite education or training

requirements of the program.

(3) The individual has not been found to be in violation

of probation or parole.

(4) The individual has demonstrated a commitment to

living a law-abiding life, which may be established by a

letter of recommendation from the individual's probation

officer, parole officer or appropriate official within the

county correctional facility or the Department of

Corrections, or any other means, at the discretion of the

State Board of Barber Examiners or the State Board of

Cosmetology, as applicable.

Barber Examiners or the State Board of Cosmetology shall impose

conditions on a holder of a restricted license, including any of

the following:

(1) Limiting the scope or location of the restricted

license holder's practice.

(2) R equiring the restricted license holder to be

reasonably supervised during business hours by a licensed

manager-barber or a licensee designated in charge of the

barber shop or a licensed cosmetology teacher or salon owner

or designated person in charge of the salon, as applicable.

(3) Requiring the restricted license holder to notify

the State Board of Barber Examiners or the State Board of

Cosmetology, as applicable, in writing as soon as is

practicable of a change in the supervisor specified under

paragraph (2).

(4) Requiring the restricted license holder to abide by

any other condition that the State Board of Barber Examiners

or the State Board of Cosmetology, as applicable, deems

appropriate.

(d) Revocation.--A restricted license shall be immediately

revoked if any of the following occurs:

(1) The restricted license holder is convicted of an

offense graded as a misdemeanor or felony in this

Commonwealth or a similar or equivalent offense in another

jurisdiction following the receipt of the restricted license.

(2) T he restricted license holder fails to comply with

any condition imposed by the State Board of Barber Examiners

or the State Board of Cosmetology and specified under

subsection (c).

(e) Compliance.--Within 30 days of the conclusion of the

term of the restricted license, the supervising licensed

manager-barber or a licensee designated in charge of the barber

shop or a licensed cosmetology teacher or salon owner or

designated person in charge of the salon, as appropriate, shall

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provide written notice to the State Board of Barber Examiners or

the State Board of Cosmetology, as to whether the restricted

license holder complied with all conditions imposed under

subsection (c). If the restricted license holder meets all of

the other qualifications for licensure under the Barbers'

License Law or the Cosmetology Law, the State Board of Barber

Examiners or the State Board of Cosmetology shall issue a

license to practice under the Barbers' License Law or the

Cosmetology Law, as appropriate.

(f) Construction.--Nothing in this section shall be

construed to restrict any of the other powers and duties of the

State Board of Cosmetology or the State Board of Barber

Examiners.

Section 3112.1. Restricted licenses for other occupations.

(a) Occupations other than barbering and cosmetology.--

Notwithstanding any provision of law to the contrary, if a

county correctional facility or the Department of Corrections

offers training in the occupation, other than barbering and

cosmetology, which requires the issuance of a license,

certificate, registration or permit by the bureau in order to

engage in that occupation, the applicable licensing board or

licensing commission may issue a restricted license to an

applicant as specified in this section as an alternative to

refusing to issue or renew, suspending, revoking or limiting a

license as a result of a finding that the applicant for a

license, certificate, registration or permit lacks the fitness

to engage in the occupation due to a criminal conviction or is

otherwise ineligible for licensure due to a criminal conviction.

The following shall apply:

(1) The applicable licensing board or commission shall

determine the period of time during which the applicant shall

operate under a restricted license. The minimum period of

time shall be one year. The maximum period of time shall be

two years.

(2) The applicable licensing board or licensing

commission shall notify the applicant of the time period

under paragraph (1) and the conditions placed on the

restricted license under subsection (c).

(b) Demonstration of fitness.--Notwithstanding any other

provision of law to the contrary and the criminal conviction, an

applicant for a restricted license may demonstrate fitness for

issuance of a restricted license to practice by introducing

evidence of the following:

(1) While incarcerated, the individual maintained a

record of good behavior, including the successful completion

of any required rehabilitative programming offered by a

county correctional facility or the Department of

Corrections.

(2) If incarcerated by a county correctional facility or

the Department of Corrections and enrolled in a program

regarding the occupation for which a restricted license is

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sought, the applicant successfully completed the requisite

education or training requirements of the program.

(3) The applicant has not been found to be in violation

of probation or parole.

(4) The applicant has demonstrated a commitment to

living a law-abiding life, which may be established by a

letter of recommendation from the applicant's probation

officer, parole officer or appropriate official within the

county correctional facility or the Department of

Corrections, or by any other means, at the discretion of the

licensing board or licensing commission, as applicable.

shall impose conditions on a holder of a restricted license,

including:

(1) Limiting the scope or location of the restricted

license holder's practice.

(2) Requiring the restricted license holder to be

reasonably supervised during business hours by an individual

licensed by the licensing board or licensing commission, as

applicable.

(3) Requiring the restricted license holder to notify

the licensing board or licensing commission, as applicable,

in writing as soon as is practicable of a change in the

supervisor under paragraph (2).

(4) Requiring the restricted license holder to abide by

any other condition the licensing board or licensing

commission, as applicable, deems appropriate.

(d) Revocation.--The restricted license shall be immediately

revoked if any of the following occurs:

(1) The restricted license holder is convicted of an

offense graded as a misdemeanor or felony in this

Commonwealth or a similar or equivalent offense in another

jurisdiction following the receipt of the restricted license.

(2) The restricted license holder fails to comply with

any of the conditions imposed by the licensing board or

licensing commission, as applicable, under subsection (c).

(e) Notice.--Within 30 days of the conclusion of the term of

the restricted license, the licensee supervising the holder of

the restricted license shall provide written notice to the

licensing board or licensing commission, as appropriate, as to

whether the restricted license holder complied with all

conditions imposed by the licensing board or licensing

commission under subsection (c). If the restricted license

holder meets all of the other qualifications for licensure under

the applicable practice act, the licensing board or licensing

commission, as appropriate, shall issue a license to practice

that occupation.

(f) Construction.--Nothing in this section shall be

construed to restrict any of the other powers and duties of the

licensing board or licensing commission, as applicable.

§ 3113. Supplementary provisions regarding criminal

2019/90SFR/HB1477A04177 - 16 -

convictions.

(a) Supplementary provisions.--Except as provided in

sections 3112 (relating to restricted licenses for barbers and

cosmetologists) and 3112.1 (relating to restricted licenses for

other occupations), notwithstanding any provision of law to the

contrary, as an alternative to a licensing board or licensing

commission refusing to issue or renew, suspending, revoking or

limiting a license, certificate, registration or permit under 18

Pa.C.S. § 9124 (relating to use of records by licensing

agencies) or under the practice acts of the licensing board or

licensing commission due to a criminal conviction, the licensing

board or licensing commission may determine that an individual

with a criminal conviction meets the qualifications for a

license, certificate, registration or permit if the individual

meets the requirements of this section.

(b) Analysis of criminal convictions.--Except as provided in

subsections (d), (e) and (f), a licensing board or a licensing

commission shall engage in a two-stage analysis of the criminal

convictions of the applicant. The following shall apply:

(1) The first stage of the analysis shall determine

whether the criminal conviction directly relates to the

occupation, trade or profession for which the individual

seeks licensure by reviewing the schedule of offenses in

section 3117 (relating to list of criminal offenses). If the

offense is found on the list of offenses that are directly

related to the occupation, trade or profession, the licensing

board or licensing commission shall then determine whether

licensure of the individual would pose a substantial risk to

the health and safety of the individual's patients or clients

or the public or a substantial risk of further criminal

convictions by conducting the individualized assessment

specified in subsection (c). There shall be a rebuttable

presumption that licensure of the individual with a criminal

conviction that directly relates to the occupation, trade or

profession would pose a substantial risk to the health and

safety of the individual's patients or clients or the public

or a substantial risk of further criminal convictions. The

individual may rebut the presumption by showing evidence of

rehabilitation, as specified in the factors in subsection

(c).

(2) If, after reviewing the schedule of offenses in

section 3117, the criminal conviction is determined not to be

directly related to the occupation, trade or profession, the

licensing board or licensing commission shall proceed to the

second stage of the analysis of the criminal conviction.

During the second stage of the analysis, the licensing board

or licensing commission shall determine whether, due to the

nature of the criminal conviction, licensure of the

individual would pose a substantial risk to the health and

safety of the individual's patients or clients or the public

or a substantial risk of further criminal convictions by

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conducting the individualized assessment specified in

subsection (c). The individual may rebut the determination by

showing evidence of rehabilitation, as specified in the

factors in subsection (c).

licensing commission shall conduct an individualized assessment

of the individual with respect to criminal convictions and

rehabilitation. The licensing board or licensing commission

shall consider the following factors in order to determine

whether the individual meets the requirements for issuance of a

license, certificate, registration or permit under subsection

(b)(1) or (b)(2):

(1) Whether the criminal conduct for which the

individual was convicted involved an act or threat of harm

against the individual. For purposes of this paragraph, the

term "harm" includes harm to the victim, the personal

property of the victim or reputation of the victim.

(2) The facts and circumstances surrounding the criminal

conviction.

(3) The number of criminal convictions.

(4) Increase in age or maturity of the individual since

the date of the criminal conviction.

(5) The individual's criminal history or lack of

criminal history after the date of conviction.

(6) Successful completion of education and training

activities, including those in a county correctional facility

or the Department of Corrections.

(7) References from employers or others, including

personnel of the county correctional facility or the

Department of Corrections.

(8) Progress in personal rehabilitation since the

conviction.

(9) Whether the individual meets all other licensing

qualifications of the applicable practice act, including any

examination requirements.

(10) The individual's criminal history, or lack of

criminal history, after the date of the criminal conviction

while engaged in the same or similar profession or

occupation.

(11) Any other factor deemed relevant to the licensing

board or licensing commission regarding the fitness of the

individual for licensure.

(d) Sexual offenses.--When determining eligibility for

licensure as a health care practitioner, a licensing board or

licensing commission may not issue a license, registration,

certificate or permit or otherwise allow an individual to

practice as a health care practitioner if the individual has

been convicted of a sexual offense.

(e) Crimes of violence.--An individual convicted of a crime

of violence as defined in 42 Pa.C.S. § 9714 (relating to

sentences for second and subsequent offenses) may be granted a

2019/90SFR/HB1477A04177 - 18 -

license, registration, certificate or permit by a licensing

board or licensing commission if all of the following apply:

(1) If the individual was incarcerated, at least three

years have elapsed since release from incarceration. The

period of three years shall be tolled for a violation of

parole.

(2) If the individual is serving a sentence other than a

period of confinement in a State or county correctional

facility, at least three years have elapsed since imposition

of sentence.

(3) The individual has remained conviction-free during

the periods specified in paragraph (1) or (2).

(4) The individual demonstrates significant

rehabilitation since the criminal conviction.

(5) The licensing board or licensing commission

determines, by using the factors in subsection (c), except

for subsection (c)(8), that licensure of the individual does

not pose a substantial risk to the health and safety of the

individual's patients or clients or the public or a

substantial risk of further criminal convictions.

(f) Drug trafficking.--Notwithstanding any provision of law

to the contrary, the provisions of the respective practice acts

relating to felony drug convictions under the act of April 14,

1972 (P.L.233, No.64), known as The Controlled Substance, Drug,

Device and Cosmetic Act, or a conviction for an offense under

the laws of another jurisdiction which, if committed in this

Commonwealth, would be a felony under the Controlled Substance,

Drug, Device and Cosmetic Act, shall apply to an individual who

has been convicted of a drug trafficking offense.

(g) Construction.--Nothing in this section shall be

construed to restrict any of the other powers and duties of a

licensing board or licensing commission in disciplinary or

licensure matters.

(h) Public information.--Except for name, address and other

identifying information, a determination under this section

shall be public information.

(i) Definitions.--As used in this section, the following

words and phrases shall have the meanings given to them in this

subsection unless the context clearly indicates otherwise:

"Drug trafficking offense." A violation of section 13(a)

(14), (30) or (37) of The Controlled Substance, Drug, Device and

Cosmetic Act, if the controlled substance or a mixture

containing it is:

(1) Marijuana, if the amount of marijuana involved is at

least 10 pounds or at least 21 live plants.

(2) A narcotic drug classified in Schedule I or Schedule

II under section 4 of The Controlled Substance, Drug, Device

and Cosmetic Act, if the aggregate weight of the compound or

mixture containing the substance involved is at least 10

grams.

(3) Any of the following, if the aggregate weight of the

2019/90SFR/HB1477A04177 - 19 -

compound or mixture of the substance involved is at least 10

grams:

(i) Coca leaves.

(ii) A salt, compound, derivative or preparation of

coca leaves.

(iii) A salt, compound, derivative or preparation

which is chemically equivalent or identical with any of

the substances under subparagraphs (i) and (ii).

(iv) A mixture containing any of the substances

under subparagraphs (i) and (ii), except decocainized

coca leaves or extracts of coca leaves which do not

contain cocaine or ecgonine.

(4) Any of the following, if the aggregate weight of the

compound or mixture of the substance involved is at least 10

grams:

(i) Methamphetamine.

(ii) Phencyclidine.

(iii) A salt, isomer or salt of an isomer of

methamphetamine or phencyclidine.

(iv) A mixture containing:

(A) Methamphetamine or phencyclidine.

(B) A salt of methamphetamine or phencyclidine.

phencyclidine.

(D) A salt of an isomer of methamphetamine or

phencyclidine.

(5) Heroin or a mixture containing heroin, if the

aggregate weight of the compound or mixture containing the

heroin is five grams or greater.

(6) A mixture containing 3,4-methylenedioxyamphetamine

(MDA); 3,4-methylenedioxymethamphetamine (MDMA); 5-methoxy-

3,4-methylenedioxyamphetamine (MMDA); 3,4-methylenedioxy-N-

ethylamphetamine; N-hydroxy-3,4-methylenedioxyamphetamine.

when the aggregate weight of the compound or mixture

containing the substance involved is at least 100 tablets,

capsules, caplets or other dosage units or 30 grams.

(7) Fentanyl or a mixture containing fentanyl, if the

aggregate weight of the compound or mixture containing the

fentanyl is five grams or more.

"Healing arts." The science and skill of diagnosis or

treatment in any manner whatsoever of disease or any ailment of

the human body.

"Health care practitioner." An individual who is authorized

to practice some component of the healing arts by a license,

certificate, registration or permit issued by a licensing board

or licensing commission.

"Sexual offense." An act, conspiracy or solicitation to

commit any of the following offenses or an equivalent crime in

another jurisdiction:

(1) 18 Pa.C.S. § 2910 (relating to luring a child into a

motor vehicle or structure).

2019/90SFR/HB1477A04177 - 20 -

(2) Any of the offenses enumerated in 18 Pa.C.S. Ch. 30

(relating to human trafficking) if the offense involved

sexual servitude.

(3) Any of the offenses enumerated in 18 Pa.C.S. Ch. 31

(relating to sexual offenses).

(4) 18 Pa.C.S. § 4302 (relating to incest).

(5) 18 Pa.C.S. § 4304(a)(1) (relating to endangering

welfare of children) if the offense involved sexual contact

with the victim.

(6) 18 Pa.C.S. § 5901 (relating to open lewdness) if the

offense involved a minor under 18 years of age.

(7) 18 Pa.C.S. § 5902(b) or (b.1) (relating to

prostitution and related offenses).

(8) 18 Pa.C.S. § 5903 (relating to obscene and other

sexual materials and performances) if the offense involved a

minor under 18 years of age.

(9) 18 Pa.C.S. § 6301(a)(1)(i) (relating to corruption

of minors) if the offense involved sexual contact with the

victim.

(10) 18 Pa.C.S. § 6301(a)(1)(ii).

(11) 18 Pa.C.S. § 6312 (relating to sexual abuse of

children).

(12) 18 Pa.C.S. § 6318 (relating to unlawful contact

with minor).

(13) 18 Pa.C.S. § 6320 (relating to sexual exploitation

of children).

(14) 18 Pa.C.S. § 7507.1 (relating to invasion of

privacy).

§ 3114. J uvenile adjudications.

Notwithstanding any provision of law to the contrary, when

determining whether an applicant is qualified to be issued a

license, registration, certificate or permit, a licensing board

or licensing commission may not consider the applicant's

juvenile adjudications.

§ 3115. Preliminary determinations by licensing boards and

licensing commissions.

(a) Request for preliminary determination.--An individual

with a criminal conviction may request in writing that a

licensing board or licensing commission provide a preliminary

determination regarding whether the individual's criminal

conviction will likely disqualify the individual from receiving

a license, certificate, registration or permit. The following

apply:

(1) The individual may make the written request at any

time, including prior to obtaining any mandatory education or

training relating to a trade, profession or occupation,

either as part of the application for licensure or separately

from an application for licensure.

(2) The written request shall be submitted on a form

prescribed by the licensing board or licensing commission and

shall include the following information:

2019/90SFR/HB1477A04177 - 21 -