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A06146
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
637
Session of
2019
INTRODUCED BY DiSANTO, SCHWANK, BAKER, GORDNER, MENSCH, COLLETT,
MARTIN, A. WILLIAMS, PHILLIPS-HILL, FARNESE, LEACH, BREWSTER,
BARTOLOTTA, TARTAGLIONE, K. WARD, KILLION, BLAKE, HAYWOOD AND
IOVINO, MAY 13, 2019
AS AMENDED ON SECOND CONSIDERATION, NOVEMBER 18, 2019
AN ACT
Amending Title 18 (Crimes and Offenses) of the Pennsylvania
Consolidated Statutes, in criminal history record
information, further providing for use of records by
licensing agencies; and making related repeals.
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.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 9124(a), (b) and (c) 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]
Permissible use of information.--
(1) Except as provided in subsection (e), a board,
commission or department of the Commonwealth, when
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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 automatically preclude
the issuance of a license, certificate, registration or
permit.
(2) This subsection shall not apply to the Supreme
Court, or an entity of the Supreme Court, in its capacity to
govern the practice, procedure and conduct of all courts, the
admission to the bar, the practice of law, the administration
of all courts and supervision of all officers of the judicial
branch.
(b) Prohibited use of information.--The following
information shall not be used in consideration of an application
for a license, certificate, registration or permit:
(1) Records of arrest if there is no conviction of a
crime based on the arrest.
(2) Convictions which have been annulled [or], 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).
(3) Convictions of a summary offense.
(4) Convictions for which the individual has received a
pardon from the Governor.
(5) Convictions which do not relate to the applicant's
suitability for the license, certificate, registration or
permit.
(6) Adjudications of delinquency.
(c) State action authorized.--[Boards,] Except as provided
in subsection (e), boards, commissions or departments of the
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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.
* * *
(e) Bureau of Professional and Occupational Affairs.--
(1) A board or commission under the Bureau of
Professional and Occupational Affairs in the Department of
State, when determining eligibility for licensure,
certification, registration or permission to engage in a
profession or occupation, may consider convictions of the
applicant of crimes only in accordance with this section.
Convictions shall not automatically preclude the issuance of
a license, certificate, registration or permit.
(2) Notwithstanding any other provision of law
concerning licensing, certification, registration or
permitting in the various practice acts, in addition to the
restrictions in subsection (b), a board or commission under
the Bureau of Professional and Occupational Affairs shall not
consider a conviction which does not directly relate to the
duties, functions and responsibilities in the practice of the
profession or occupation for which the license, certificate,
registration or permit is sought, unless it is proven by the
prosecutor for the board or commission by a preponderance of
the evidence and based on the individualized assessment
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required by paragraph (3) that the applicant poses an
unacceptable risk to the people with whom the applicant would
interact in the conduct of the profession or occupation.
(3) A board or commission under the Bureau of
Professional and Occupational Affairs may refuse to grant or
renew, or may suspend, revoke or otherwise discipline a
license, certificate, registration or permit of an individual
based in whole or in part on a conviction of a crime if all
of the following apply:
(i) The individual has been convicted of a felony or
misdemeanor which directly relates to the duties,
functions and responsibilities in the practice of the
profession or occupation or which, based on the facts and
circumstances of the particular crime, demonstrates that
the individual poses an unacceptable risk to the people
with whom the individual would interact in the practice
of the profession or occupation.
(ii) The board or commission has conducted an
individualized assessment of the relation of the
conviction to the individual's overall suitability to
engage in the profession or occupation. An individualized
assessment conducted under this subparagraph shall
include a consideration of the particular facts or
circumstances surrounding the crime, the length of time
since the crime occurred and the grade and seriousness of
the crime.
(4) A board or commission under the Bureau of
Professional and Occupational Affairs may not refuse to grant
or renew and may not suspend, revoke or otherwise discipline
a license, certificate, registration or permit under
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paragraph (3) if the individual can present evidence of the
particular facts and circumstances surrounding the crime, and
the individual's overall criminal history record, which
demonstrates that the individual does not pose an
unacceptable risk to people with whom the individual would
interact in the conduct of the profession or occupation, or
AND if the individual can show rehabilitation and fitness to
perform the duties, functions and responsibilities in the
practice of the profession or occupation. Where the crime is
directly related to the duties, functions and
responsibilities in the practice of the profession or
occupation, the board or commission shall consider relevant
proof of any factor that would show that the individual does
not pose an unacceptable risk, demonstrate rehabilitation or
establish fitness to perform the duties of the profession or
occupation, including:
(i) Facts or circumstances regarding the crime.
(ii) Number of offenses for which the individual was
convicted.
(iii) Increase in age and maturity of the individual
since the date of the conviction for the crime or release
from a correctional institution.
(iv) The individual's criminal history, or lack of
criminal history, after the date of the crime while
engaged in the same or similar profession or occupation.
(v) Length and consistency of employment history
before and after the date of the crime.
(vi) Participation in education and training
activities.
(vii) Employment or character references and any
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other information regarding fitness for practice in the
profession or occupation.
(viii) Any other factor that would show the
individual does not pose an unacceptable risk, is capable
of being rehabilitated or is fit to perform the duties of
the profession or occupation.
(5) An applicant with a criminal history who, based on a
review of the regulations published by the board or
commission under paragraph (9) is unable to determine whether
the applicant's criminal record would preclude the issuance
of a license, certificate, registration or permit, may file a
petition for preliminary review with the board or commission
under the Bureau of Professional and Occupational Affairs
seeking a preliminary decision on whether the applicant's
criminal history would disqualify the applicant from
receiving a license, certificate, registration or permit,
subject to the following:
(i) If the petition is filed separately from a
formal application for a license, certificate,
registration or permit, the board or commission shall
issue a preliminary decision within 45 days. The
preliminary decision shall be limited to a declaration of
whether a conviction on the petitioner's criminal history
record falls within the set of convictions that the board
or commission has previously determined may be directly
related to the profession or occupation over which the
board or commission has authority.
(ii) In the event that the board or commission
determines a conviction on the petitioner's criminal
history record is directly related to the duties,
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functions and responsibilities in the practice of the
profession or occupation, the notice of the preliminary
decision shall inform the petitioner that the
determination is not final or binding as to whether the
petitioner qualifies for a license, certificate,
registration or permit, and that the petitioner has the
opportunity to present evidence of the factors specified
in paragraph (4) in connection with any subsequent formal
application for a license, certificate, registration or
permit.
(iii) The board or commission may charge a filing
fee, which shall not exceed $45, to be paid for each
petition for preliminary review filed. On or after
January 1, 2022, the board or commission may establish by
regulation reasonable fees which may not exceed an amount
sufficient to reimburse the board or commission for the
administrative costs associated with processing the
petition for preliminary review. The board or commission
shall make available forms for petitioners to request in
forma pauperis status in connection with a petition. The
board or commission may not unreasonably deny in forma
pauperis status. A petitioner granted in forma pauperis
status shall be permitted to file a petition and receive
a preliminary decision without payment of the filing fee.
(iv) Except for the petitioner filing the petition,
a preliminary decision issued by a board, commission or
the department as a result of a petition for preliminary
review shall have no precedential value and may not be
relied upon by individuals applying for a license,
certificate, registration or permit.
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(6) Each board or commission under the Bureau of
Professional and Occupational Affairs shall provide, on their
publicly accessible Internet website, a standardized form for
an applicant to petition for a preliminary review and shall
issue preliminary decisions upon promulgating final
regulations in accordance with paragraph (9) or within 18
months, whichever is sooner.
(7) A board or commission under the Bureau of
Professional and Occupational Affairs may not consider moral
character to make determinations of whether to grant or
renew, deny, suspend, revoke or otherwise discipline a
license, certificate, registration or permit.
(8) A board or commission under the Bureau of
Professional and Occupational Affairs may only consider
criminal history records and make determinations of whether
to grant or renew, deny, suspend, revoke or otherwise
discipline a license, certificate, registration or permit in
accordance with the limitations under this subsection. A
crime of moral turpitude may only be considered as grounds to
deny, revoke or otherwise discipline a license, certificate,
registration or permit if the board or commission has
determined that a conviction for such crime is directly
related to the duties, functions and responsibilities in the
practice of the profession or occupation . OR THAT THE
INDIVIDUAL POSES AN UNACCEPTABLE RISK TO PEOPLE WITH WHOM THE
INDIVIDUAL WOULD INTERACT IN THE CONDUCT OF THE PROFESSION OR
OCCUPATION. The provisions of this section shall supersede
any law or regulation to the contrary.
(9) Each board or commission under the Bureau of
Professional and Occupational Affairs shall, within 18 months
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from the effective date of this section, promulgate final
regulations, following public notice and comments, regarding
the consideration of criminal history records as part of the
determination of whether to grant, deny, renew, suspend,
revoke or otherwise discipline a license, certificate,
registration or permit. The regulations shall include the
prescribed petition fee, as well as an explanation of the
convictions the board or commission has determined are
directly related to the duties, functions and
responsibilities in the practice of the profession or
occupation regulated by the board or commission.
Section 2. Repeals are as follows:
(1) The General Assembly declares that the repeals under
paragraph (2) are necessary to effectuate the amendment or
addition of 18 Pa.C.S. § 9124(a), (b), (c) and (e).
(2) The following acts and parts of acts are repealed:
(i) The penultimate and last sentence of section
3(c) of the act of May 1, 1933 (P.L.216, No.76), known as
The Dental Law, which read as follows: "The board shall
not issue a license to an applicant who has been
convicted of a felony under the act of April 14, 1972
(P.L.233, No.64), known as 'The Controlled Substance,
Drug, Device and Cosmetic Act,' or of 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,' unless: (1) at
least ten (10) years have elapsed from the date of
conviction, (2) the applicant satisfactorily demonstrates
to the board that he has made significant progress in
personal rehabilitation since the conviction such that
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licensure of the applicant should not be expected to
create a substantial risk of harm to the health and
safety of his patients or the public or a substantial
risk of further criminal violations, and (3) the
applicant otherwise satisfies the qualifications
contained in or authorized by this act. As used in this
section the term 'convicted' shall include a judgment, an
admission of guilt or a plea of nolo contendere."
(ii) Section 10.1(b) of the act of May 23, 1945
(P.L.913, No.367), known as the Engineer, Land Surveyor
and Geologist Registration Law.
(iii) Section 6(c) of the act of May 22, 1951
(P.L.317, No.69), known as The Professional Nursing Law.
(iv) The antepenultimate, penultimate and last
sentence of section 5 of the act of March 2, 1956 (1955
P.L.1211, No.376), known as the Practical Nurse Law,
which read as follows: "The board shall not issue a
license or certificate to an applicant who has been
convicted of a felonious act prohibited by the act of
April 14, 1972 (P.L.233, No.64), known as 'The Controlled
Substance, Drug, Device and Cosmetic Act,' or convicted
of a felony relating to a controlled substance in a court
of law of the United States or any other state, territory
or country unless:
(1) at least ten (10) years have elapsed from
the date of conviction;
(2) the applicant satisfactorily demonstrates to
the board that he has made significant progress in
personal rehabilitation since the conviction such
that licensure of the applicant should not be
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expected to create a substantial risk of harm to the
health and safety of patients or the public or a
substantial risk of further criminal violations; and
(3) the applicant otherwise satisfies the
qualifications contained in or authorized by this
act.
As used in this section the term 'convicted' shall
include a judgment, an admission of guilt or a plea of
nolo contendere. An applicant's statement on the
application declaring the absence of a conviction shall
be deemed satisfactory evidence of the absence of a
conviction, unless the board has some evidence to the
contrary."
(v) Section 3(a)(6) of the act of September 27, 1961
(P.L.1700, No.699), known as the Pharmacy Act.
(vi) Section 6(a)(5) of the act of March 23, 1972
(P.L.136, No.52), known as the Professional Psychologists
Practice Act.
(vii) Section 9(b)(4) of the act of December 27,
1974 (P.L.995, No.326), known as the Veterinary Medicine
Practice Act.
(viii) The penultimate and last sentence of section
6(a) of the act of October 10, 1975 (P.L.383, No.110),
known as the Physical Therapy Practice Act, which read as
follows: "The board shall not issue a license to an
applicant who has been convicted of a felony under the
act of April 14, 1972 (P.L.233, No.64), known as 'The
Controlled Substance, Drug, Device and Cosmetic Act,' or
of an offense under the laws of another jurisdiction
which, if committed in this Commonwealth, would be a
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felony under 'The Controlled Substance, Drug, Device and
Cosmetic Act,' unless:
(1) at least ten years have elapsed from the
date of conviction;
(2) the applicant satisfactorily demonstrates to
the board that he has made significant progress in
personal rehabilitation since the conviction such
that licensure of the applicant should not be
expected to create a substantial risk of harm to the
health and safety of patients or the public or a
substantial risk of further criminal violations; and
(3) the applicant otherwise satisfies the
qualifications contained in or authorized by this
act.
As used in this subsection the term 'convicted' includes
a judgment, an admission of guilt or a plea of nolo
contendere."
(ix) Section 6(c) of the act of October 5, 1978
(P.L.1109, No.261), known as the Osteopathic Medical
Practice Act.
(x) Section 4(d) of the act of June 6, 1980
(P.L.197, No.57), known as the Optometric Practice and
Licensure Act.
(xi) The penultimate and last sentence of section
22(b) of the act of December 20, 1985 (P.L.457, No.112),
known as the Medical Practice Act of 1985, which read as
follows: "The board shall not issue a license or
certificate to an applicant who has been convicted of a
felony under the act of April 14, 1972 (P.L.233, No.64),
known as The Controlled Substance, Drug, Device and
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Cosmetic Act, or of 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, unless:
(1) at least ten years have elapsed from the
date of conviction;
(2) the applicant satisfactorily demonstrates to
the board that he has made significant progress in
personal rehabilitation since the conviction such
that licensure of the applicant should not be
expected to create a substantial risk of harm to the
health and safety of his patients or the public or a
substantial risk of further criminal violations; and
(3) the applicant otherwise satisfies the
qualifications contained in or authorized by this
act.
As used in this section the term 'convicted' shall
include a judgment, an admission of guilt or a plea of
nolo contendere."
(xii) Section 501(a)(7) of the act of December 16,
1986 (P.L.1646, No.188), known as the Chiropractic
Practice Act.
(xiii) Section 7(a)(5), (d)(6), (e)(6), (f)(6) and
(g)(5) 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.
(xiv) Section 502(c)(1) of the act of October 9,
2008 (P.L.1363, No.100), known as the Crane Operator
Licensure Act.
(xv) Section 5(a)(6) of the act of October 9, 2008
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(P.L.1438, No.118), known as the Massage Therapy Law.
(xvi) The provision of any act that is inconsistent
with this act.
Section 3. This act shall take effect in 90 days.
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 consideration of
criminal convictions).
(4) 63 Pa.C.S. § 3114 (relating to juvenile
adjudications).
(5) 63 Pa.C.S. § 3115 (relating to preliminary
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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.
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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. Consideration of 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.
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
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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
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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
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
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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
commission. All proceedings shall be conducted in accordance
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with the provisions of 2 Pa.C.S. (relating to administrative law
and procedure).
(c) Powers.--A hearing examiner shall have the power to:
(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,
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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:
(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
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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.
(c) Restoration.--Restoration of a license, certificate,
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
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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
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).
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(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.
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(vi) Disciplinary records involving imposition of
discipline for violations other than those identified in
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
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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.
(c) Restrictions.--
(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
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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
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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.
(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
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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
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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.
(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
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disciplinary action.
(c) Confidentiality affidavits.--All 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 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.
(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.
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(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
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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
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.
(c) Construction.--Nothing in this section is intended to
supersede or replace existing statutory provisions relating to
licensure by endorsement or licensure by reciprocity applicable
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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 or a
cosmetology license lacks the fitness to engage in the practice
of barbering under the act of June 19, 1931 (P.L.589, No. 202),
referred to as the Barbers' License Law, or in the practice of
cosmetology under 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
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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
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.
(c) Conditions for restricted license.--The State Board of
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
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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
provide written notice to the State Board of Barber Examiners or
the State Board of Cosmetology, as to whether the restricted
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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.
§ 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
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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
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.
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(c) Conditions.--The licensing board or licensing commission
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
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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. Consideration of criminal convictions.
(a) Applicability.--This section shall apply to licensing
boards and licensing commissions notwithstanding the following:
(1) Any other statutory provision to the contrary
regarding the consideration of good moral character, crimes
of moral turpitude or ethical or honest practice with respect
to disqualification of licensure due to criminal conviction.
(2) 18 Pa.C.S. § 9124(c) (relating to use of records by
licensing agencies).
(3) Any other statutory provision that disqualifies an
individual from holding a license, certificate, registration
or permit due to the individual's criminal conviction.
(a.1) Consideration.--A licensing board or licensing
commission may not consider the provisions specified under
subsection (a) in determining whether an individual qualifies
for a license, certificate, registration or permit but instead
shall determine the individual's qualification for a license,
certificate, registration or permit in accordance with the
procedures specified under this section.
(b) Analysis of criminal convictions.--Except as provided in
subsections (d), (e) and (f), a licensing board or a licensing
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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
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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
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).
(c) Individualized assessment.--A licensing board or
licensing commission shall conduct an individualized assessment
of the individual with respect to criminal convictions and
rehabilitation. The licensing board or licensing commission
shall only 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
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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. The licensing board or
licensing commission may show, by a preponderance of the
evidence, that the amount or weight of the controlled substance
involved in a conviction meets the requirements for a drug
trafficking 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
license, registration, certificate or permit by a licensing
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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
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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 50 pounds or at least 51 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 100
grams.
(3) Any of the following, if the aggregate weight of the
compound or mixture of the substance involved is at least 100
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
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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 100
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.
(C) An isomer of methamphetamine or
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 50 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 1,000 tablets,
capsules, caplets or other dosage units or 300 grams.
(7) Fentanyl or a mixture containing fentanyl, if the
aggregate weight of the compound or mixture containing the
fentanyl is 10 grams or more.
(8) Carfentanil or a mixture containing carfentanil, if
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the aggregate weight of the compound or mixture containing
the carfentanil is one gram 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).
(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.
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(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.
An applicant with a criminal history who, based on a review
of the best practices guide published under section 3116
(relating to best practices guide), is unable to determine
whether the applicant's criminal record would preclude the
issuance of a license, certificate, registration or permit, may
file a petition for preliminary review with the licensing board
or licensing commission under the bureau seeking a preliminary
decision on whether the applicant's criminal history would
disqualify the applicant from receiving a license, certificate,
registration or permit, subject to the following:
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(1) If the petition is filed separately from a formal
application for a license, certificate, registration or
permit, the licensing board or licensing commission shall
issue a preliminary decision within 45 days. The preliminary
decision shall be limited to a declaration of whether a
conviction on the petitioner's criminal history record falls
within the set of convictions that the licensing board or
licensing commission has previously determined may be
directly related to the profession or occupation over which
the licensing board or licensing commission has authority.
(2) If the licensing board or licensing commission
determines that a conviction on the petitioner's criminal
history record is directly related to the occupation, trade
or profession, the notice of the preliminary decision shall
inform the petitioner that the determination is not final or
binding as to whether the petitioner qualifies for a license,
certificate, registration or permit, and that the petitioner
has the opportunity to present evidence of the factors
specified in section 3113(c) (relating to consideration of
criminal convictions) in connection with any subsequent
formal application for a license, certificate, registration
or permit. Where appropriate, the notice may also inform the
petitioner that a sexual offense, crime of violence or drug
trafficking offense may prevent licensure in accordance with
section 3113(d), (e) and (f).
(3) The licensing board or licensing commission may
charge a filing fee, which shall not exceed $45, to be paid
for each petition for preliminary review filed on or after
January 1, 2022. The licensing board or licensing commission
may establish by regulation reasonable fees which may not
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exceed an amount sufficient to reimburse the licensing board
or licensing commission for the administrative costs
associated with processing the petition for preliminary
review. The licensing board or licensing commission shall
make available forms for petitioners to request in forma
pauperis status in connection with a petition. The licensing
board or licensing commission may not unreasonably deny in
forma pauperis status. A petitioner granted in forma pauperis
status shall be permitted to file a petition and receive a
preliminary decision without payment of the filing fee.
(4) The determination by the licensing board or
licensing commission shall be binding, subject to:
(i) A review of criminal history record information
submitted during the application process.
(ii) Section 3113.
§ 3116. Best practices guide.
(a) Development of guide.--Within 180 days of the effective
date of this subsection, the Department of State shall, in
collaboration with the licensing boards and licensing
commissions, develop a guide of best practices for an applicant
with a criminal conviction to use when seeking a license,
certificate, registration or permit. The following apply:
(1) The guide shall be published in both English and
Spanish.
(2) The guide shall include, at a minimum, a summary of
the provisions of the following:
(i) Section 3112 (relating to restricted licenses
for barbers and cosmetologists).
(ii) Section 3112.1 (relating to restricted licenses
for other occupations).
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(iii) Section 3113 (relating to consideration of
criminal convictions).
(iv) Section 3114 (relating to juvenile
adjudications).
(v) Section 3115 (relating to p reliminary
determinations by licensing boards and licensing
commissions).
(vi) Section 3117 (relating to list of criminal
offenses).
(b) Publication and distribution.--Within 180 days of the
effective date of this subsection, the Department of State shall
publish the guide under subsection (a) on its publicly
accessible Internet website and shall provide a written copy
upon request. The written copy of the guide shall be provided
without cost to the person requesting the guide.
§ 3117. L ist of criminal offenses.
(a) Duty of commissioner.--After consultation with the
licensing boards and licensing commissions, the commissioner
shall have the power and duty to publish a schedule of criminal
convictions that may constitute grounds to refuse to issue,
suspend or revoke a license, certificate, registration or permit
for each occupation or profession under the respective practice
acts. The following shall apply:
(1) The schedule shall indicate which offenses are those
that the licensing board or licensing commission deems as
directly relating to the occupation, trade or profession.
(2) The schedule shall indicate the licensing board and
licensing commission responsible for licensure of each
occupation or profession.
(3) Within 180 days of the effective date of this
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subsection, the commissioner shall transmit notice of the
completion of the schedule to the Legislative Reference
Bureau for publication in the Pennsylvania Bulletin.
(4) Within two years of the publication under paragraph
(3), the commissioner shall transmit notice of a regulation
to the Legislative Reference Bureau for publication in the
Pennsylvania Bulletin. The regulation shall be subject to the
act of June 25, 1982 (P.L.633, No.181), known as the
Regulatory Review Act.
(5) The commissioner shall submit a regulation to update
the schedule of criminal convictions as often as the
commissioner deems appropriate to reflect new statutory
enactments of the General Assembly affecting the schedule.
(b) Public comment period.--Within 120 days of the
publication of the schedule in the Pennsylvania Bulletin under
subsection (a), the commissioner shall submit initial proposed
regulations to the Independent Regulatory Review Commission
under section 5 of the Regulatory Review Act.
(c) Dissemination.--Within 180 days of the effective date of
this subsection, the schedule of offenses in subsection (a)
shall be provided in writing to each applicant for a license,
certificate, registration or permit issued by a licensing board
or licensing commission as part of the application and shall be
made part of the best practices guide under section 3116
(relating to best practices guide). The following shall apply:
(1) Within 180 days of the effective date of this
subsection, the schedule shall be published on the publicly
accessible Internet website of the Department of State.
(2) The schedule of criminal convictions shall be
published in both English and Spanish.
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(3) Notice that the list of criminal offenses will
change based upon new enactments by the General Assembly
shall be provided on the publicly accessible Internet website
of the Department of State in writing as part of the
application and in the best practices guide.
(d) Application.--The schedule shall be used by the
licensing boards and licensing commissions when:
(1) preparing preliminary determinations under section
3116;
(2) determining which criminal convictions may result in
discipline of a licensee; and
(3) determining whether a criminal conviction may result
in refusing to issue a license, certificate, registration or
permit under section 3113 (relating to consideration of
criminal convictions).
§ 3118. Report to General Assembly.
(a) Report required.--Within two years after the effective
date of this section and every four years thereafter, the
Secretary of the Commonwealth shall issue a written report
regarding the implementation and effectiveness of the following:
(i) Section 3112 (relating to restricted licenses
for barbers and cosmetologists).
(ii) Section 3112.1 (relating to restricted licenses
for other occupations).
(iii) Section 3113 (relating to consideration of
criminal convictions).
(iv) Section 3114 (relating to juvenile
adjudications).
(v) Section 3115 (relating to p reliminary
determinations by licensing boards and licensing
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commissions).
(vi) Section 3116 (relating to best practices
guide).
(vii) Section 3117 (relating to list of criminal
offenses).
(b) Submittal of report.--The report under subsection (a)
shall be submitted to the following:
(1) The President pro tempore of the Senate.
(2) The chairperson and minority chairperson of the
Consumer Protection and Professional Licensure Committee of
the Senate.
(3) The chairperson and minority chairperson of the
Judiciary Committee of the Senate.
(4) The Speaker of the House of Representatives.
(5) The chairperson and minority chairperson of the
Judiciary Committee of the House of Representatives.
(6) The chairperson and minority chairperson of the
Professional Licensure Committee of the House of
Representatives.
(c) Contents of report.--The report under subsection (a)
shall include the following:
(1) T he number of applications for a license,
certificate, registration or permit that each licensing board
and licensing commission receives each year.
(2) The number of applicants with criminal convictions
that submit applications to the State Board of Barber
Examiners and the State Board of Cosmetology, including the
following:
(i) The number of applicants that are issued a
restricted license under section 3112.
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(ii) T he number of applicants that are denied a
restricted license under section 3112 and the reasons for
the denials.
(iii) The number of restricted license holders that
are issued a license to practice under the act of June
19, 1931 (P.L.589, No.202), referred to as the Barbers'
License Law, or the act of May 3, 1933 (P.L.242, No.86),
referred to as the Cosmetology Law, following the
restricted license term.
(iv) The number of restricted licenses that are
revoked during the restricted license term under section
3112(d) and the reasons for the revocations.
(3) The number of applicants that are denied licenses,
certificates, registrations and permits each year by the
licensing boards and licensing commissions as a result of
criminal convictions.
(4) Whether to amend any provision of this chapter.
(d) Public record.--The report under subsection (a) shall be
a public record under the Right-to-Know Law.
Section 3. Repeals are as follows:
(1) The General Assembly declares that the repeal under
paragraph (2) is necessary to effectuate the addition of 63
Pa.C.S. Ch. 31.
(2) The act of July 2, 1993 (P.L.345, No.48), is
repealed.
Section 4. The addition of 63 Pa.C.S. Ch. 31 is a
continuation of the act of July 2, 1993 (P.L.345, No.48). The
following apply:
(1) Except as otherwise provided in 63 Pa.C.S. Ch. 31,
all activities initiated under the act of July 2, 1993
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(P.L.345, No.48), shall continue and remain in full force and
effect and may be completed under 63 Pa.C.S. Ch. 31. Orders,
regulations, rules and decisions which were made under the
act of July 2, 1993 (P.L.345, No.48), and which are in effect
on the effective date of section 3 of this act shall remain
in full force and effect until revoked, vacated or modified
under 63 Pa.C.S. Ch. 31. Contracts, obligations and
collective bargaining agreements entered into under the act
of July 2, 1993 (P.L.345, No.48), are not affected nor
impaired by the repeal of the act of July 2, 1993 (P.L.345,
No.48).
(2) Except as set forth in paragraph (3), any difference
in language between 63 Pa.C.S. Ch. 31 and the act of July 2,
1993 (P.L.345, No.48), is intended only to conform to the
style of the Pennsylvania Consolidated Statutes and is not
intended to change or affect the legislative intent, judicial
construction or administration and implementation of the act
of July 2, 1993 (P.L.345, No.48).
(3) Paragraph (2) does not apply to the addition of the
following provisions:
(i) The definition of "criminal conviction" in 63
Pa.C.S. § 3102.
(ii) 63 Pa.C.S. § 3112.
(iii) 63 Pa.C.S. § 3112.1.
(iv) 63 Pa.C.S. § 3113.
(v) 63 Pa.C.S. § 3114.
(vi) 63 Pa.C.S. § 3115.
(vii) 63 Pa.C.S. § 3116.
(viii) 63 Pa.C.S. § 3117.
(ix) 63 Pa.C.S. § 3118.
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Section 5. The addition of 63 Pa.C.S. §§ 3112, 3112.1, 3113,
3114, 3115, 3116, 3117 and 3118 shall apply to official acts and
matters, including disciplinary matters, related to the issuance
of licenses, certificates, registrations or permits by licensing
boards or licensing commissions beginning on or after 180 days
after the effective date of this section.
Section 6. This act shall take effect as follows:
(1) The addition of 63 Pa.C.S. §§ 3112, 3112.1, 3113,
3114 and 3115 shall take effect in 180 days.
(2) The remainder of this act shall take effect
immediately.
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