Regular Session 2019-2020 Senate Bill 0637 P.N. 1392

PRIOR PRINTER'S NOS. 780, 1344

PRINTER'S NO. 1392

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.

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

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.

in subsection (e), boards, commissions or departments of the

Commonwealth authorized to license, certify, register or permit

the practice of trades, occupations or professions may refuse to

grant or renew, or may suspend or revoke any license,

certificate, registration or permit for the following causes:

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(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

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

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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

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

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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

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

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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,

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

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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.

(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

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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

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,

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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

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

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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

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

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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

felony under 'The Controlled Substance, Drug, Device and

Cosmetic Act,' unless:

(1) at least ten years have elapsed from the

date of conviction;

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(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

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:

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(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

(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.

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