THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

INTRODUCED BY TOMLINSON, RAFFERTY, O'PAKE AND FERLO, JANUARY 30, 2009

REFERRED TO CONSUMER PROTECTION AND PROFESSIONAL LICENSURE, JANUARY 30, 2009  

AN ACT

Amending the act of July 2, 1993 (P.L.345, No.48), entitled "An

act empowering the General Counsel or his designee to issue

subpoenas for certain licensing board activities; providing

for hearing examiners in the Bureau of Professional and

Occupational Affairs; providing additional powers to the

Commissioner of Professional and Occupational Affairs; and

further providing for civil penalties and license

suspension," further providing for civil penalties; and

making related repeals.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Section 5 of the act of July 2, 1993 (P.L.345,

No.48) entitled "An act empowering the General Counsel or his

designee to issue subpoenas for certain licensing board

activities; providing for hearing examiners in the Bureau of

Professional and Occupational Affairs; providing additional

powers to the Commissioner of Professional and Occupational

Affairs; and further providing for civil penalties and license

suspension," is amended to read:

Section 5.  Civil penalties.

(a)  Authorization.--The Commissioner of Professional and

Occupational Affairs, after consultation with the licensing

boards and 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 any provision of their respective acts

or regulations relating to the conduct or operation of a

business or facility licensed by such licensing boards and

commissions. The schedule of penalties shall not be applicable

to disciplinary matters under the jurisdiction of a licensing

board or commission unless that licensing board or commission

has approved the schedule. The schedule of penalties, guidelines

for their imposition and procedures for appeal shall be

published in the Pennsylvania Bulletin, provided that the

commissioner shall, within two years of such publication,

promulgate a regulation setting forth the schedule of penalties,

guidelines and procedures. Any such penalty shall not exceed the

sum of $1,000 per violation. Duly authorized agents of the

bureau shall have the power and authority to issue citations and

impose penalties for any such violations. Any such penalty

imposed may be appealed to a hearing examiner or the licensing

board or commission pursuant to the regulations promulgated

under section 3(b). If the appeal is initially to a hearing

examiner, the relevant licensing board or 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 3(d). All proceedings shall be conducted in

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

administrative law and procedure).

(b)  Additional powers.--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 acts, boards and 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 any

licensee, registrant, certificate holder [or], permit holder

or unlicensed person who violates a lawful disciplinary order

of the board.

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

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

licensee, registrant, certificate holder [or], permit holder

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 [$1,000] 

$10,000 per violation on any corporation, partnership,

institution, association or sole proprietorship which aids

and abets any individual in the unlicensed practice of a

profession. This penalty shall not, however, be levied

against any 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 any licensee, registrant, certificate holder,

permit holder or unlicensed person who violates any provision

of the applicable licensing act or board regulation.

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

violation of the disciplinary provisions administered by a

licensing board or commission in a disciplinary proceeding

pending before the board or commission for final

determination, as part of the sanction, the costs of

investigation underlying that disciplinary action. The cost

of investigation shall not include any associated legal fees

or any cost of prosecution.

(c)  Restrictions.--Any decisions rendered by a licensing

board or commission on any exceptions to the decision of a

hearing examiner or on any application for review in accordance

with section 3(d) to impose a civil penalty pursuant to this

section shall require the same number of votes required for the

licensing board or commission to impose a civil penalty under

any other act. Nothing in this section shall be construed to

restrict the powers and duties under any other act of a

licensing board or commission in disciplinary matters, except

that a licensing board or commission may not impose a civil

penalty under any other act for the same violation for which a

civil penalty has been imposed pursuant to this section.

(d)  Status of civil penalty.--Any civil penalty imposed

pursuant to this section or imposed by any licensing board or

commission under any other act shall be a judgment in favor of

the Bureau of Professional and Occupational Affairs upon the

person or the property of the person upon whom the civil penalty

is imposed. The Attorney General shall be responsible for

enforcing such judgments in courts of competent jurisdiction in

accordance with the provisions of 42 Pa.C.S. (relating to

judiciary and judicial procedure).

(e)  Definition.--As used in this section, the term

"unlicensed practice" means:

(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; or

(2)  representing to the public or any 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.

Section 2.  The following provisions are repealed insofar as

they are inconsistent with the amendment of section 5 of the

act:

(1)  Section 15(b.3) of the act of June 19, 1931 (P.L.

589, No.202), referred to as the Barbers' License Law.

(2)  Section 10.1 of the act of May 1, 1933 (P.L.216, No.

76), known as The Dental Law.

(3)  Section 20(c.2) of the act of May 3, 1933 (P.L.242,

No.86), referred to as the Cosmetology Law.

(4)  Section 11(b) of the act of May 23, 1945 (P.L.913,

No.367), known as the Engineer, Land Surveyor and Geologist

Registration Law.

(5)  Section 16(c) of the act of May 26, 1947 (P.L.318,

No.140), known as the CPA Law.

(6)  Section 13(b) of the act of May 22, 1951 (P.L.317,

No.69), known as The Professional Nursing Law.

(7)  Section 17(b) of the act of January 14, 1952 (1951

P.L.1898, No.522), known as the Funeral Director Law.

(8)  Section 13(b) of the act of March 2, 1956 (1955 P.L.

1206, No.375), known as the Podiatry Practice Act.

(9)  Section 15(b) of the act of March 2, 1956 (1955 P.L.

1211, No.376), known as the Practical Nurse Law.

(10)  Section 8(15.1) of the act of September 27, 1961

(P.L.1700, No.699), known as the Pharmacy Act.

(11)  Section 11(b) of the act of January 24, 1966 (1965

P.L.1527, No.535), known as the Landscape Architects'

Registration Law.

(12)  Section 11(b) of the act of June 22, 1970 (P.L.378,

No.122), known as the Nursing Home Administrators License

Act.

(13)  Section 11(b) of the act of March 23, 1972 (P.L.

136, No.52), known as the Professional Psychologists Practice

Act.

(14)  Section 28(c) of the act of December 27, 1974 (P.L.

995, No.326), known as the Veterinary Medicine Practice Act.

(15)  Section 12(c) of the act of October 10, 1975 (P.L.

383, No.110), known as the Physical Therapy Practice Act.

(16)  Section 305 of the act of February 19, 1980 (P.L.

15, No.9), known as the Real Estate Licensing and

Registration Act.

(17)  Section 8(c) of the act of June 6, 1980 (P.L.197,

No.57), known as the Optometric Practice and Licensure Act.

(18)  Section 20(d) of the act of December 14, 1982 (P.L.

1227, No.281), known as the Architects Licensure Law.

(19)  Section 28(c) of the act of December 22, 1983 (P.L.

306, No.84), known as the Board of Vehicles Act.

(20)  Section 29(b) of the act of December 22, 1983 (P.L.

327, No.85), known as the Auctioneer and Auction Licensing

Act.

(21)  Section 703 of the act of December 16, 1986 (P.L.

1646, No.188), known as the Chiropractic Practice Act.

(22)  Section 17(b) of the act of July 9, 1987 (P.L.220,

No.39), known as the Social Workers, Marriage and Family

Therapists and Professional Counselors Act.

(23)  Section 15(b) of the act of July 10, 1990 (P.L.404,

No.98), known as the Real Estate Appraisers Certification

Act.

(24)  Section 908 of the act of March 20, 2002 (P.L.154,

No.13), known as the Medical Care Availability and Reduction

of Error (Mcare) Act.

Section 3.  This act shall apply to violations which take

place on or after the effective date of this section.

Section 4.  This act shall take effect in 60 days.