PRIOR PRINTER'S NO. 192 PRINTER'S NO. 2373
No. 147 Session of 2007
INTRODUCED BY TOMLINSON, RAFFERTY AND FERLO, MARCH 5, 2007
SENATOR TOMLINSON, CONSUMER PROTECTION AND PROFESSIONAL
LICENSURE, AS AMENDED, SEPTEMBER 17, 2008
AN ACT
1 Amending the act of July 2, 1993 (P.L.345, No.48), entitled "An
2 act empowering the General Counsel or his designee to issue
3 subpoenas for certain licensing board activities; providing
4 for hearing examiners in the Bureau of Professional and
5 Occupational Affairs; providing additional powers to the
6 Commissioner of Professional and Occupational Affairs; and
7 further providing for civil penalties and license
8 suspension," providing for inspectors and for <--
9 responsibilities for licensees; and further providing for
10 civil penalties; AND MAKING RELATED REPEALS. <--
11 The General Assembly of the Commonwealth of Pennsylvania
12 hereby enacts as follows:
13 Section 1. The act of July 2, 1993 (P.L.345, No.48), <--
14 entitled "An act empowering the General Counsel or his designee
15 to issue subpoenas for certain licensing board activities;
16 providing for hearing examiners in the Bureau of Professional
17 and Occupational Affairs; providing additional powers to the
18 Commissioner of Professional and Occupational Affairs; and
19 further providing for civil penalties and license suspension,"
20 is amended by adding sections to read:
21 Section 3.1. Inspectors.
22 Notwithstanding any other provision of law, the Commissioner
1 of Professional and Occupational Affairs, after consultation
2 with the licensing boards and commissions, shall hire or
3 contract with inspectors as may be necessary to conduct
4 inspections of licensed facilities as required by the licensing
5 act. Each licensing act may require that the inspector be a
6 licensee but further criteria shall be set by the Commissioner
7 of Professional and Occupational Affairs in consultation with
8 the licensing boards and shall be published in the Pennsylvania
9 Bulletin.
10 Section 4.1. Responsibilities for licensees.
11 Licensees shall, within a reasonable time, provide
12 information requested by the Commissioner of Professional and
13 Occupational Affairs or their respective licensing boards as a
14 result of a formal complaint which would indicate a violation of
15 a licensee's licensing act.
16 Section 2. Section 5(a) of the act is amended to read:
17 Section 5. Civil penalties.
18 (a) Authorization.--The Commissioner of Professional and
19 Occupational Affairs, after consultation with the licensing
20 boards and commissions, shall have the power to adopt a schedule
21 of civil penalties for operating without a current, registered,
22 unsuspended and unrevoked license, registration, certificate or
23 permit and for violating any provision of their respective acts
24 or regulations relating to the conduct or operation of a
25 business or facility licensed by such licensing boards and
26 commissions. The schedule of penalties shall not be applicable
27 to disciplinary matters under the jurisdiction of a licensing
28 board or commission unless that licensing board or commission
29 has approved the schedule. The schedule of penalties, guidelines
30 for their imposition and procedures for appeal shall be
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1 published in the Pennsylvania Bulletin, provided that the
2 commissioner shall, within two years of such publication,
3 promulgate a regulation setting forth the schedule of penalties,
4 guidelines and procedures. Any such penalty shall not exceed the
5 sum of [$1,000] $10,000. Duly authorized agents of the bureau
6 shall have the power and authority to issue citations and impose
7 penalties for any such violations. Any such penalty imposed may
8 be appealed to a hearing examiner or the licensing board or
9 commission pursuant to the regulations promulgated under section
10 3(b). If the appeal is initially to a hearing examiner, the
11 relevant licensing board or commission shall render a decision
12 on any exceptions to the decision of the hearing examiner or on
13 any applications for review in accordance with section 3(d). All
14 proceedings shall be conducted in accordance with the provisions
15 of 2 Pa.C.S. (relating to administrative law and procedure).
16 * * *
17 Section 3. This act shall take effect in 60 days.
18 SECTION 1. SECTION 5 OF THE ACT OF JULY 2, 1993 (P.L.345, <--
19 NO.48) ENTITLED "AN ACT EMPOWERING THE GENERAL COUNSEL OR HIS
20 DESIGNEE TO ISSUE SUBPOENAS FOR CERTAIN LICENSING BOARD
21 ACTIVITIES; PROVIDING FOR HEARING EXAMINERS IN THE BUREAU OF
22 PROFESSIONAL AND OCCUPATIONAL AFFAIRS; PROVIDING ADDITIONAL
23 POWERS TO THE COMMISSIONER OF PROFESSIONAL AND OCCUPATIONAL
24 AFFAIRS; AND FURTHER PROVIDING FOR CIVIL PENALTIES AND LICENSE
25 SUSPENSION," IS AMENDED TO READ:
26 SECTION 5. CIVIL PENALTIES.
27 (A) AUTHORIZATION.--THE COMMISSIONER OF PROFESSIONAL AND
28 OCCUPATIONAL AFFAIRS, AFTER CONSULTATION WITH THE LICENSING
29 BOARDS AND COMMISSIONS, SHALL HAVE THE POWER TO ADOPT A SCHEDULE
30 OF CIVIL PENALTIES FOR OPERATING WITHOUT A CURRENT, REGISTERED,
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1 UNSUSPENDED AND UNREVOKED LICENSE, REGISTRATION, CERTIFICATE OR
2 PERMIT AND FOR VIOLATING ANY PROVISION OF THEIR RESPECTIVE ACTS
3 OR REGULATIONS RELATING TO THE CONDUCT OR OPERATION OF A
4 BUSINESS OR FACILITY LICENSED BY SUCH LICENSING BOARDS AND
5 COMMISSIONS. THE SCHEDULE OF PENALTIES SHALL NOT BE APPLICABLE
6 TO DISCIPLINARY MATTERS UNDER THE JURISDICTION OF A LICENSING
7 BOARD OR COMMISSION UNLESS THAT LICENSING BOARD OR COMMISSION
8 HAS APPROVED THE SCHEDULE. THE SCHEDULE OF PENALTIES, GUIDELINES
9 FOR THEIR IMPOSITION AND PROCEDURES FOR APPEAL SHALL BE
10 PUBLISHED IN THE PENNSYLVANIA BULLETIN, PROVIDED THAT THE
11 COMMISSIONER SHALL, WITHIN TWO YEARS OF SUCH PUBLICATION,
12 PROMULGATE A REGULATION SETTING FORTH THE SCHEDULE OF PENALTIES,
13 GUIDELINES AND PROCEDURES. ANY SUCH PENALTY SHALL NOT EXCEED THE
14 SUM OF $1,000 PER VIOLATION. DULY AUTHORIZED AGENTS OF THE
15 BUREAU SHALL HAVE THE POWER AND AUTHORITY TO ISSUE CITATIONS AND
16 IMPOSE PENALTIES FOR ANY SUCH VIOLATIONS. ANY SUCH PENALTY
17 IMPOSED MAY BE APPEALED TO A HEARING EXAMINER OR THE LICENSING
18 BOARD OR COMMISSION PURSUANT TO THE REGULATIONS PROMULGATED
19 UNDER SECTION 3(B). IF THE APPEAL IS INITIALLY TO A HEARING
20 EXAMINER, THE RELEVANT LICENSING BOARD OR COMMISSION SHALL
21 RENDER A DECISION ON ANY EXCEPTIONS TO THE DECISION OF THE
22 HEARING EXAMINER OR ON ANY APPLICATIONS FOR REVIEW IN ACCORDANCE
23 WITH SECTION 3(D). ALL PROCEEDINGS SHALL BE CONDUCTED IN
24 ACCORDANCE WITH THE PROVISIONS OF 2 PA.C.S. (RELATING TO
25 ADMINISTRATIVE LAW AND PROCEDURE).
26 (B) ADDITIONAL POWERS.--IN ADDITION TO THE DISCIPLINARY
27 POWERS AND DUTIES OF THE BOARDS AND COMMISSIONS WITHIN THE
28 BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS UNDER THEIR
29 RESPECTIVE PRACTICE ACTS, BOARDS AND COMMISSIONS SHALL HAVE THE
30 POWER, RESPECTIVELY:
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1 (1) TO IMPOSE DISCIPLINE, INCLUDING, BUT NOT LIMITED TO,
2 A CIVIL PENALTY OF UP TO $10,000 PER VIOLATION ON ANY
3 LICENSEE, REGISTRANT, CERTIFICATE HOLDER [OR], PERMIT HOLDER
4 OR UNLICENSED PERSON WHO VIOLATES A LAWFUL DISCIPLINARY ORDER
5 OF THE BOARD.
6 (2) TO IMPOSE DISCIPLINE, INCLUDING, BUT NOT LIMITED TO,
7 A CIVIL PENALTY OF UP TO $10,000 PER VIOLATION ON ANY
8 LICENSEE, REGISTRANT, CERTIFICATE HOLDER [OR], PERMIT HOLDER
9 OR UNLICENSED PERSON WHO AIDS AND ABETS THE UNLICENSED
10 PRACTICE OF A PROFESSION, OCCUPATION OR BUSINESS.
11 (3) TO LEVY A CIVIL PENALTY OF NOT MORE THAN [$1,000]
12 $10,000 PER VIOLATION ON ANY CORPORATION, PARTNERSHIP,
13 INSTITUTION, ASSOCIATION OR SOLE PROPRIETORSHIP WHICH AIDS
14 AND ABETS ANY INDIVIDUAL IN THE UNLICENSED PRACTICE OF A
15 PROFESSION. THIS PENALTY SHALL NOT, HOWEVER, BE LEVIED
16 AGAINST ANY PERSON SOLELY AS A CONSEQUENCE OF THAT PERSON
17 BEING A PATIENT OR CLIENT OF THE UNLICENSED INDIVIDUAL.
18 (4) TO LEVY A CIVIL PENALTY OF NOT MORE THAN $10,000 PER
19 VIOLATION ON ANY LICENSEE, REGISTRANT, CERTIFICATE HOLDER,
20 PERMIT HOLDER OR UNLICENSED PERSON WHO VIOLATES ANY PROVISION
21 OF THE APPLICABLE LICENSING ACT OR BOARD REGULATION.
22 (5) TO ASSESS AGAINST THE RESPONDENT DETERMINED TO BE IN
23 VIOLATION OF THE DISCIPLINARY PROVISIONS ADMINISTERED BY A
24 LICENSING BOARD OR COMMISSION IN A DISCIPLINARY PROCEEDING
25 PENDING BEFORE THE BOARD OR COMMISSION FOR FINAL
26 DETERMINATION, AS PART OF THE SANCTION, THE COSTS OF
27 INVESTIGATION UNDERLYING THAT DISCIPLINARY ACTION. THE COST
28 OF INVESTIGATION SHALL NOT INCLUDE ANY ASSOCIATED LEGAL FEES
29 OR ANY COST OF PROSECUTION.
30 (C) RESTRICTIONS.--ANY DECISIONS RENDERED BY A LICENSING
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1 BOARD OR COMMISSION ON ANY EXCEPTIONS TO THE DECISION OF A
2 HEARING EXAMINER OR ON ANY APPLICATION FOR REVIEW IN ACCORDANCE
3 WITH SECTION 3(D) TO IMPOSE A CIVIL PENALTY PURSUANT TO THIS
4 SECTION SHALL REQUIRE THE SAME NUMBER OF VOTES REQUIRED FOR THE
5 LICENSING BOARD OR COMMISSION TO IMPOSE A CIVIL PENALTY UNDER
6 ANY OTHER ACT. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO
7 RESTRICT THE POWERS AND DUTIES UNDER ANY OTHER ACT OF A
8 LICENSING BOARD OR COMMISSION IN DISCIPLINARY MATTERS, EXCEPT
9 THAT A LICENSING BOARD OR COMMISSION MAY NOT IMPOSE A CIVIL
10 PENALTY UNDER ANY OTHER ACT FOR THE SAME VIOLATION FOR WHICH A
11 CIVIL PENALTY HAS BEEN IMPOSED PURSUANT TO THIS SECTION.
12 (D) STATUS OF CIVIL PENALTY.--ANY CIVIL PENALTY IMPOSED
13 PURSUANT TO THIS SECTION OR IMPOSED BY ANY LICENSING BOARD OR
14 COMMISSION UNDER ANY OTHER ACT SHALL BE A JUDGMENT IN FAVOR OF
15 THE BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS UPON THE
16 PERSON OR THE PROPERTY OF THE PERSON UPON WHOM THE CIVIL PENALTY
17 IS IMPOSED. THE ATTORNEY GENERAL SHALL BE RESPONSIBLE FOR
18 ENFORCING SUCH JUDGMENTS IN COURTS OF COMPETENT JURISDICTION IN
19 ACCORDANCE WITH THE PROVISIONS OF 42 PA.C.S. (RELATING TO
20 JUDICIARY AND JUDICIAL PROCEDURE).
21 (E) DEFINITION.--AS USED IN THIS SECTION, THE TERM
22 "UNLICENSED PRACTICE" MEANS:
23 (1) PRACTICING A PROFESSION OR OCCUPATION OR OPERATING A
24 BUSINESS FOR WHICH A LICENSE, REGISTRATION, CERTIFICATE OR
25 PERMIT IS REQUIRED WITHOUT HOLDING A VALID, UNEXPIRED,
26 UNREVOKED OR UNSUSPENDED AUTHORITY TO DO SO; OR
27 (2) REPRESENTING TO THE PUBLIC OR ANY PERSON, THROUGH
28 OFFERINGS, ADVERTISEMENTS OR THE USE OF A TITLE, THAT THE
29 INDIVIDUAL IS QUALIFIED TO PRACTICE A PROFESSION, OCCUPATION
30 OR BUSINESS FOR WHICH A LICENSE, REGISTRATION, CERTIFICATE OR
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1 PERMIT IS REQUIRED WITHOUT HOLDING A VALID, UNEXPIRED,
2 UNREVOKED OR UNSUSPENDED AUTHORITY TO DO SO.
3 SECTION 2. THE FOLLOWING PROVISIONS ARE REPEALED INSOFAR AS
4 THEY ARE INCONSISTENT WITH THE AMENDMENT OF SECTION 5 OF THE
5 ACT:
6 (1) SECTION 15(B.3) OF THE ACT OF JUNE 19, 1931
7 (P.L.589, NO.202), REFERRED TO AS THE BARBERS' LICENSE LAW.
8 (2) SECTION 10.1 OF THE ACT OF MAY 1, 1933 (P.L.216,
9 NO.76), KNOWN AS THE DENTAL LAW.
10 (3) SECTION 20(C.2) OF THE ACT OF MAY 3, 1933 (P.L.242,
11 NO.86), REFERRED TO AS THE COSMETOLOGY LAW.
12 (4) SECTION 11(B) OF THE ACT OF MAY 23, 1945 (P.L.913,
13 NO.367), KNOWN AS THE ENGINEER, LAND SURVEYOR AND GEOLOGIST
14 REGISTRATION LAW.
15 (5) SECTION 16(C) OF THE ACT OF MAY 26, 1947 (P.L.318,
16 NO.140), KNOWN AS THE CPA LAW.
17 (6) SECTION 13(B) OF THE ACT OF MAY 22, 1951 (P.L.317,
18 NO.69), KNOWN AS THE PROFESSIONAL NURSING LAW.
19 (7) SECTION 17(B) OF THE ACT OF JANUARY 14, 1952 (1951
20 P.L.1898, NO.522), KNOWN AS THE FUNERAL DIRECTOR LAW.
21 (8) SECTION 13(B) OF THE ACT OF MARCH 2, 1956 (1955
22 P.L.1206, NO.375), KNOWN AS THE PODIATRY PRACTICE ACT.
23 (9) SECTION 15(B) OF THE ACT OF MARCH 2, 1956 (1955
24 P.L.1211, NO.376), KNOWN AS THE PRACTICAL NURSE LAW.
25 (10) SECTION 8(15.1) OF THE ACT OF SEPTEMBER 27, 1961
26 (P.L.1700, NO.699), KNOWN AS THE PHARMACY ACT.
27 (11) SECTION 11(B) OF THE ACT OF JANUARY 24, 1966 (1965
28 P.L.1527, NO.535), KNOWN AS THE LANDSCAPE ARCHITECTS'
29 REGISTRATION LAW.
30 (12) SECTION 11(B) OF THE ACT OF JUNE 22, 1970 (P.L.378,
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1 NO.122), KNOWN AS THE NURSING HOME ADMINISTRATORS LICENSE
2 ACT.
3 (13) SECTION 11(B) OF THE ACT OF MARCH 23, 1972
4 (P.L.136, NO.52), KNOWN AS THE PROFESSIONAL PSYCHOLOGISTS
5 PRACTICE ACT.
6 (14) SECTION 28(C) OF THE ACT OF DECEMBER 27, 1974
7 (P.L.995, NO.326), KNOWN AS THE VETERINARY MEDICINE PRACTICE
8 ACT.
9 (15) SECTION 12(C) OF THE ACT OF OCTOBER 10, 1975
10 (P.L.383, NO.110), KNOWN AS THE PHYSICAL THERAPY PRACTICE
11 ACT.
12 (16) SECTION 305 OF THE ACT OF FEBRUARY 19, 1980
13 (P.L.15, NO.9), KNOWN AS THE REAL ESTATE LICENSING AND
14 REGISTRATION ACT.
15 (17) SECTION 8(C) OF THE ACT OF JUNE 6, 1980 (P.L.197,
16 NO.57), KNOWN AS THE OPTOMETRIC PRACTICE AND LICENSURE ACT.
17 (18) SECTION 20(D) OF THE ACT OF DECEMBER 14, 1982
18 (P.L.1227, NO.281), KNOWN AS THE ARCHITECTS LICENSURE LAW.
19 (19) SECTION 28(C) OF THE ACT OF DECEMBER 22, 1983
20 (P.L.306, NO.84), KNOWN AS THE BOARD OF VEHICLES ACT.
21 (20) SECTION 29(B) OF THE ACT OF DECEMBER 22, 1983
22 (P.L.327, NO.85), KNOWN AS THE AUCTIONEER AND AUCTION
23 LICENSING ACT.
24 (21) SECTION 703 OF THE ACT OF DECEMBER 16, 1986
25 (P.L.1646, NO.188), KNOWN AS THE CHIROPRACTIC PRACTICE ACT.
26 (22) SECTION 17(B) OF THE ACT OF JULY 9, 1987 (P.L.220,
27 NO.39), KNOWN AS THE SOCIAL WORKERS, MARRIAGE AND FAMILY
28 THERAPISTS AND PROFESSIONAL COUNSELORS ACT.
29 (23) SECTION 15(B) OF THE ACT OF JULY 10, 1990 (P.L.404,
30 NO.98), KNOWN AS THE REAL ESTATE APPRAISERS CERTIFICATION
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1 ACT.
2 (24) SECTION 908 OF THE ACT OF MARCH 20, 2002 (P.L.154,
3 NO.13), KNOWN AS THE MEDICAL CARE AVAILABILITY AND REDUCTION
4 OF ERROR (MCARE) ACT.
5 SECTION 3. THIS ACT SHALL APPLY TO VIOLATIONS WHICH TAKE
6 PLACE ON OR AFTER THE EFFECTIVE DATE OF THIS SECTION.
7 SECTION 4. THIS ACT SHALL TAKE EFFECT IN 60 DAYS.
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