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A04343
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1477
Session of
2019
INTRODUCED BY DELOZIER, HARRIS, BOBACK, BOYLE, BULLOCK, BURGOS,
CEPHAS, A. DAVIS, T. DAVIS, DELLOSO, DRISCOLL, EVERETT,
FITZGERALD, FRANKEL, FREEMAN, GOODMAN, HANBIDGE, HELM, HILL-
EVANS, KEEFER, KENYATTA, KINSEY, KOSIEROWSKI, MADDEN,
McCLINTON, MULLINS, NEILSON, SANCHEZ, SCHLOSSBERG, SCHWEYER,
SHUSTERMAN, WEBSTER, ZABEL, JONES, GAINEY, MARKOSEK AND
ECKER, MAY 22, 2019
AS REPORTED FROM COMMITTEE ON JUDICIARY, HOUSE OF
REPRESENTATIVE, AS AMENDED, DECEMBER 9, 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.
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 subsections to read:
§ 9124. Use of records by licensing agencies.
(a) State agencies.--[Except as provided by this chapter, a]
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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] only in accordance with this chapter.
Convictions shall not automatically preclude the issuance of a
license, certificate, registration or permit.
(b) Prohibited use of information.--[The] Notwithstanding
any other provision of law concerning licensing, certification,
registration or permitting, 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.] directly relate to the trade, occupation or
profession for which the license, certificate, registration
or permit is sought.
(6) Adjudications of delinquency.
(c) State action authorized.--[Boards,] Notwithstanding any
other provision of law concerning licensing, certification,
registration or permitting, the boards, commissions or
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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:
(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.] based in whole or in part on a
conviction of a crime if all of the following apply:
(1) The applicant has been convicted of a felony or a
misdemeanor which directly relates to the trade, occupation
or profession for which the license, certificate,
registration or permit is sought.
(2) The board, commission or department has conducted an
individualized assessment of the relation of the conviction
to the applicant's overall suitability to engage in the
trade, occupation or profession for which the license,
certificate, registration or permit is sought. An
individualized assessment conducted under this paragraph
shall include a consideration of the particular facts or
circumstances surrounding the offense or criminal conduct,
the length of time since the offense or criminal conduct
occurred and the grade and seriousness of the offense or
criminal conduct.
(c.1) Exception.--A board, commission or department may not
refuse to grant or renew and may not suspend or revoke any
license, certificate, registration or permit under subsection
(c) if the applicant can establish sufficient mitigation or
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rehabilitation and fitness to perform the duties of the trade,
occupation or profession for which the license, certificate,
registration or permit is sought. Where criminal conduct is
directly related to the license, certificate, registration or
permit being sought, the board, commission or department shall
consider relevant proof of any factors that would rebut an
adverse presumption or show rehabilitation, including:
(1) Facts or circumstances regarding the offense or
criminal conduct.
(2) Number of offenses for which the applicant was
convicted.
(3) Increase in age and maturity of the applicant since
the date of the conviction for the offense or release from a
correctional institution.
(4) The applicant's criminal history, or lack thereof,
after the date of the offense or criminal conduct while
engaged in the same or similar trade, occupation or
profession for which the license, certificate, registration
or permit is sought.
(5) Length and consistency of employment history before
and after the date of the offense or criminal conduct.
(6) Participation in education or training activities.
(7) Employment or character references and any other
information regarding fitness for trade, occupation or
profession for which the license, certificate, registration
or permit is sought.
(8) Whether the applicant is bonded under a Federal,
State or local bonding program.
(9) Any other factors to rebut an adverse presumption or
present relevant individual circumstances to show
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rehabilitation.
* * *
(e) Petitions.--An individual with a criminal history record
may petition a board, commission or department at any time,
including before obtaining education or training, for a
preliminary decision on whether the individual's criminal
history record might disqualify the individual from receiving a
license, certificate, registration or permit.
(f) Limitations.--A board, commission or department may only
consider criminal history records and determinations of whether
to grant, deny, suspend, revoke or renew a license, certificate,
registration or permit on the grounds of good moral character, a
crime of moral turpitude, an unethical or dishonest practice or
conduct or other categorical consideration in accordance with
the limitations specified under this section. The provisions of
this section shall supersede any law or regulation of this
Commonwealth to the contrary.
(g) Regulations.--A board, commission or department shall
promulgate regulations regarding the consideration of criminal
history records as part of the determination on whether or not
to grant, deny, suspend, revoke or renew a license, certificate,
registration or permit.
Section 2. This act shall take effect in 60 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:
Section 1. Section 9124(a), (b)(2) and (c) introductory
paragraph of Title 18 of the Pennsylvania Consolidated Statutes
are amended and the section is amended by adding a subsection to
read:
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§ 9124. USE OF RECORDS BY LICENSING AGENCIES.
(A) STATE AGENCIES.--EXCEPT AS PROVIDED BY THIS CHAPTER AND
SPECIFICALLY SUBSECTION (A.1), A BOARD, COMMISSION OR DEPARTMENT
OF THE COMMONWEALTH, WHEN DETERMINING ELIGIBILITY FOR LICENSING,
CERTIFICATION, REGISTRATION OR PERMISSION TO ENGAGE IN A TRADE,
PROFESSION OR OCCUPATION, MAY CONSIDER CONVICTIONS OF THE
APPLICANT OF CRIMES BUT THE CONVICTIONS SHALL NOT PRECLUDE THE
ISSUANCE OF A LICENSE, CERTIFICATE, REGISTRATION OR PERMIT.
(A.1) APPLICATION OF OTHER LAW.--THE FOLLOWING PROVISIONS
SHALL APPLY TO A LICENSING BOARD OR LICENSING COMMISSION UNDER
THE BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS IN THE
DEPARTMENT OF STATE WITH RESPECT TO REFUSING TO ISSUE OR RENEW,
SUSPENDING, REVOKING OR LIMITING A LICENSE, CERTIFICATE,
REGISTRATION OR PERMIT:
(1) 63 PA.C.S. § 3112 (RELATING TO RESTRICTED LICENSES
FOR BARBERS AND COSMETOLOGISTS).
(2) 63 PA.C.S. § 3112.1 (RELATING TO RESTRICTED LICENSES
FOR OTHER OCCUPATIONS).
(3) 63 PA.C.S. § 3113 (RELATING TO SUPPLEMENTARY
PROVISIONS REGARDING consideration of CRIMINAL CONVICTIONS).
(4) 63 PA.C.S. § 3114 (RELATING TO JUVENILE
ADJUDICATIONS).
(5) 63 PA.C.S. § 3115 (RELATING TO PRELIMINARY
DETERMINATIONS BY LICENSING BOARDS AND LICENSING
COMMISSIONS).
(6) 63 PA.C.S. § 3116 (RELATING TO BEST PRACTICES
GUIDE).
(7) 63 PA.C.S. § 3117 (RELATING TO LIST OF CRIMINAL
OFFENSES).
(B) PROHIBITED USE OF INFORMATION.--THE FOLLOWING
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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).
* * *
(c) State action authorized.--[Boards,] Except as provided
in 63 Pa.C.S. § 3113 (relating to consideration of criminal
convictions), 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:
* * *
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.
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3104. REPORTING OF SANCTIONS AND CRIMINAL PROCEEDINGS.
3105. HEARING EXAMINERS.
3106. SUSPENSION.
3107. ADDITIONAL POWERS FOR COMMISSIONER.
3108. CIVIL PENALTIES.
3109. CONFIDENTIALITY OF RECORDS OF LICENSURE BOARDS.
3110. REPORTS.
3111. LICENSURE BY ENDORSEMENT.
3112. RESTRICTED LICENSES FOR BARBERS AND COSMETOLOGISTS.
3112.1. RESTRICTED LICENSES FOR OTHER OCCUPATIONS.
3113. SUPPLEMENTARY PROVISIONS REGARDING CRIMINAL CONVICTIONS.
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
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OF GUILTY OR A PLEA OF NOLO CONTENDERE WITH RESPECT TO A
CRIMINAL OFFENSE OF THIS COMMONWEALTH, OR AN EQUIVALENT CRIME
UNDER THE LAWS OF THIS COMMONWEALTH IN EFFECT AT THE TIME OF THE
COMMISSION OF THE CRIMINAL OFFENSE OR AN EQUIVALENT CRIME IN
ANOTHER JURISDICTION.
"DIRECTLY RELATES." THE NATURE OF THE CRIMINAL CONDUCT FOR
WHICH THE PERSON WAS CONVICTED HAS A DIRECT BEARING ON THE
FITNESS OR ABILITY TO PERFORM ONE OR MORE OF THE DUTIES OR
RESPONSIBILITIES NECESSARILY RELATED TO THE PROFESSION, TRADE OR
OCCUPATION FOR WHICH THE INDIVIDUAL SEEKS LICENSURE.
"DISCIPLINARY MATTER." A MATTER SUBJECT TO A LICENSING
BOARD'S OR LICENSING COMMISSION'S JURISDICTION IN WHICH THE
LICENSING BOARD OR LICENSING COMMISSION HAS THE AUTHORITY TO
REFUSE, SUSPEND, REVOKE OR LIMIT A LICENSE, REGISTRATION,
CERTIFICATE OR PERMIT OR TO IMPOSE A CIVIL PENALTY OR OTHER
DISCIPLINE UNDER AN ACT.
"EXPUNGE" OR "EXPUNGEMENT." REMOVAL OF A DISCIPLINARY
RECORD, ACCOMPLISHED BY:
(1) PERMANENTLY SEALING THE AFFECTED RECORD FROM PUBLIC
ACCESS;
(2) DEEMING THE PROCEEDINGS TO WHICH THE AFFECTED RECORD
REFERS AS NOT HAVING OCCURRED; AND
(3) EXCEPT WITH RESPECT TO ANY SUBSEQUENT APPLICATION
FOR EXPUNGEMENT, AFFORDING THE AFFECTED PARTY THE RIGHT TO
REPRESENT THAT NO RECORD EXISTS REGARDING THE SUBJECT MATTER
OF THE AFFECTED RECORD.
"LICENSEE." A PERSON HOLDING A LICENSE, REGISTRATION,
CERTIFICATE OR PERMIT WITH A LICENSING BOARD OR LICENSING
COMMISSION UNDER THE BUREAU.
"LICENSING BOARD." A DEPARTMENTAL OR ADMINISTRATIVE BOARD
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UNDER THE BUREAU.
"LICENSING COMMISSION." A DEPARTMENTAL OR ADMINISTRATIVE
COMMISSION UNDER THE BUREAU.
"RIGHT-TO-KNOW LAW." T HE ACT OF FEBRUARY 14, 2008 (P.L.6,
NO.3), KNOWN AS THE RIGHT-TO-KNOW LAW.
§ 3103. INVESTIGATORY SUBPOENA POWER.
THE GENERAL COUNSEL OR A DESIGNEE OF THE GENERAL COUNSEL
SHALL HAVE THE POWER AND DUTY TO ISSUE SUBPOENAS UPON
APPLICATION OF AN ATTORNEY RESPONSIBLE FOR REPRESENTING THE
COMMONWEALTH IN DISCIPLINARY MATTERS BEFORE A LICENSING BOARD OR
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.
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(A) DUTY.--A LICENSEE, AS A CONDITION OF LICENSURE,
CERTIFICATION, REGISTRATION OR HOLDING A PERMIT, SHALL PROVIDE
WRITTEN NOTICE OF THE FOLLOWING TO THE APPROPRIATE LICENSING
BOARD OR LICENSING COMMISSION WITHIN 30 DAYS:
(1) A DISCIPLINARY ACTION TAKEN AGAINST THE LICENSEE BY
A LICENSING AGENCY OF ANOTHER JURISDICTION.
(2) A FINDING OR VERDICT OF GUILT, AN ADMISSION OF
GUILT, A PLEA OF NOLO CONTENDERE, PROBATION WITHOUT VERDICT,
A DISPOSITION IN LIEU OF TRIAL OR AN ACCELERATED
REHABILITATIVE DISPOSITION OF A FELONY OR MISDEMEANOR
OFFENSE.
(B) SANCTIONS.--A LICENSING BOARD OR LICENSING COMMISSION
MAY TAKE DISCIPLINARY ACTION AGAINST A LICENSEE WHO VIOLATES
THIS SECTION.
§ 3105. HEARING EXAMINERS.
(A) APPOINTMENT.--
(1) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE
COMMISSIONER, AFTER CONSULTATION WITH THE LICENSING BOARDS
AND LICENSING COMMISSIONS, SHALL APPOINT HEARING EXAMINERS AS
MAY BE NECESSARY TO CONDUCT HEARINGS IN DISCIPLINARY MATTERS
BEFORE A LICENSING BOARD OR LICENSING COMMISSION.
(2) EACH LICENSING BOARD AND LICENSING COMMISSION SHALL
HAVE THE POWER TO DECIDE IF A SPECIFIC DISCIPLINARY MATTER OR
TYPE OF DISCIPLINARY MATTER IS TO BE HEARD BY THE LICENSING
BOARD OR LICENSING COMMISSION ITSELF OR BY A HEARING EXAMINER
APPOINTED UNDER THIS SUBSECTION.
(B) REGULATIONS.--THE COMMISSIONER, AFTER CONSULTATION WITH
THE LICENSING BOARDS AND COMMISSIONS, SHALL HAVE THE POWER TO
PROMULGATE REGULATIONS SPECIFYING THE PROCEDURAL RULES TO BE
FOLLOWED BY HEARING EXAMINERS IN THE CONDUCT OF HEARINGS IN
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DISCIPLINARY MATTERS BEFORE A LICENSING BOARD OR LICENSING
COMMISSION. ALL PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE
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.
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(A) TEMPORARY SUSPENSION.--A LICENSING BOARD OR LICENSING
COMMISSION MAY TEMPORARILY SUSPEND A LICENSE, CERTIFICATE,
REGISTRATION OR PERMIT UNDER CIRCUMSTANCES AS DETERMINED BY THE
LICENSING BOARD OR LICENSING COMMISSION TO BE AN IMMEDIATE AND
CLEAR DANGER TO PUBLIC HEALTH AND SAFETY. THE FOLLOWING APPLY:
(1) THE LICENSING BOARD OR COMMISSION SHALL ISSUE AN
ORDER TO THAT EFFECT WITHOUT A HEARING, BUT UPON DUE NOTICE,
TO THE LICENSEE CONCERNED AT THE LICENSEE'S LAST KNOWN
ADDRESS, WHICH SHALL INCLUDE A WRITTEN STATEMENT OF ALL
ALLEGATIONS AGAINST THE LICENSEE.
(2) AFTER ISSUING THE ORDER UNDER PARAGRAPH (1), THE
LICENSING BOARD OR LICENSING COMMISSION SHALL COMMENCE FORMAL
ACTION TO SUSPEND, REVOKE OR RESTRICT THE LICENSE,
CERTIFICATE, REGISTRATION OR PERMIT OF THE PERSON CONCERNED
AS OTHERWISE PROVIDED FOR BY LAW.
(3) ALL ACTIONS SHALL BE TAKEN PROMPTLY AND WITHOUT
DELAY.
(B) HEARING.--WITHIN 30 DAYS FOLLOWING THE ISSUANCE OF AN
ORDER OF TEMPORARY SUSPENSION, THE LICENSING BOARD OR LICENSING
COMMISSION SHALL CONDUCT OR CAUSE TO BE CONDUCTED A PRELIMINARY
HEARING TO DETERMINE WHETHER THERE IS A PRIMA FACIE CASE
SUPPORTING THE SUSPENSION. THE FOLLOWING APPLY:
(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
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(VII) MAKE A RECORD OF THE PROCEEDINGS.
(2) IF IT IS DETERMINED THAT THERE IS NOT A PRIMA FACIE
CASE, THE SUSPENDED LICENSE, CERTIFICATE, REGISTRATION OR
PERMIT SHALL BE IMMEDIATELY RESTORED.
(3) THE TEMPORARY SUSPENSION SHALL REMAIN IN EFFECT
UNTIL VACATED BY THE LICENSING BOARD OR LICENSING COMMISSION,
BUT IN NO EVENT LONGER THAN 180 DAYS.
(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
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COMMISSION'S RESPECTIVE ACTS OR REGULATIONS RELATING TO THE
CONDUCT OR OPERATION OF A BUSINESS OR FACILITY LICENSED BY
THE LICENSING BOARDS AND LICENSING COMMISSIONS. THE FOLLOWING
APPLY:
(I) THE SCHEDULE OF PENALTIES SHALL NOT BE
APPLICABLE TO DISCIPLINARY MATTERS UNDER THE JURISDICTION
OF A LICENSING BOARD OR LICENSING COMMISSION UNLESS THAT
LICENSING BOARD OR LICENSING COMMISSION HAS APPROVED THE
SCHEDULE.
(II) THE COMMISSION SHALL TRANSMIT NOTICE OF THE
ADOPTION OF THE SCHEDULE OF PENALTIES, GUIDELINES FOR THE
IMPOSITION OF THE SCHEDULE OF PENALTIES AND PROCEDURES
FOR APPEAL TO THE LEGISLATIVE REFERENCE BUREAU FOR
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
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APPLICATIONS FOR REVIEW IN ACCORDANCE WITH SECTION
3105(D).
(VII) ALL PROCEEDINGS SHALL BE CONDUCTED IN
ACCORDANCE WITH THE PROVISIONS OF 2 PA.C.S. (RELATING TO
ADMINISTRATIVE LAW AND PROCEDURE).
(2) THE COMMISSIONER SHALL EXPUNGE THE DISCIPLINARY
RECORD OF A LICENSEE, REGISTRANT, CERTIFICATE HOLDER OR
PERMIT HOLDER IF THE IMPOSITION OF DISCIPLINE WAS FOR A
VIOLATION INVOLVING FAILURE TO COMPLETE CONTINUING EDUCATION
REQUIREMENTS OR PRACTICING FOR SIX MONTHS OR LESS ON A LAPSED
LICENSE, REGISTRATION, CERTIFICATE OR PERMIT, SUBJECT TO THE
FOLLOWING:
(I) THE LICENSEE, REGISTRANT, CERTIFICATE HOLDER OR
PERMIT HOLDER MUST MAKE WRITTEN APPLICATION TO THE
COMMISSIONER FOR EXPUNGEMENT NOT EARLIER THAN FOUR YEARS
FROM THE FINAL DISPOSITION OF THE DISCIPLINARY RECORD.
(II) THE DISCIPLINARY RECORD MUST BE THE ONLY
DISCIPLINARY RECORD THAT THE LICENSEE, REGISTRANT,
CERTIFICATE HOLDER OR PERMIT HOLDER HAS WITH EITHER THE
COMMISSIONER OR A LICENSING BOARD OR LICENSING COMMISSION
UNDER THE COMMISSIONER'S JURISDICTION.
(III) THE LICENSEE, REGISTRANT, CERTIFICATE HOLDER
OR PERMIT HOLDER MUST NOT BE THE SUBJECT OF AN ACTIVE
INVESTIGATION RELATED TO PROFESSIONAL OR OCCUPATIONAL
CONDUCT.
(IV) THE LICENSEE, REGISTRANT, CERTIFICATE HOLDER OR
PERMIT HOLDER MUST NOT BE IN A CURRENT DISCIPLINARY
STATUS, AND ANY FEES OR FINES ASSESSED MUST BE PAID IN
FULL.
(V) THE LICENSEE, REGISTRANT, CERTIFICATE HOLDER OR
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PERMIT HOLDER MUST NOT HAVE HAD A DISCIPLINARY RECORD
PREVIOUSLY EXPUNGED BY THE COMMISSIONER.
(VI) DISCIPLINARY RECORDS INVOLVING IMPOSITION OF
DISCIPLINE FOR VIOLATIONS OTHER THAN THOSE IDENTIFIED IN
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
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INDIVIDUAL IN THE UNLICENSED PRACTICE OF A PROFESSION. THIS
PENALTY SHALL NOT, HOWEVER, BE LEVIED AGAINST A PERSON SOLELY
AS A CONSEQUENCE OF THAT PERSON BEING A PATIENT OR CLIENT OF
THE UNLICENSED INDIVIDUAL.
(4) TO LEVY A CIVIL PENALTY OF NOT MORE THAN $10,000 PER
VIOLATION ON A LICENSEE OR UNLICENSED PERSON WHO VIOLATES A
PROVISION OF THE APPLICABLE LICENSING ACT OR LICENSING BOARD
REGULATION.
(5) TO ASSESS AGAINST THE RESPONDENT DETERMINED TO BE IN
VIOLATION OF THE DISCIPLINARY PROVISIONS ADMINISTERED BY A
LICENSING BOARD OR LICENSING COMMISSION IN A DISCIPLINARY
PROCEEDING PENDING BEFORE THE LICENSING BOARD OR LICENSING
COMMISSION FOR FINAL DETERMINATION, AS PART OF THE SANCTION,
THE COSTS OF INVESTIGATION UNDERLYING THAT DISCIPLINARY
ACTION. THE COST OF INVESTIGATION SHALL NOT INCLUDE THOSE
COSTS INCURRED BY THE LICENSING BOARD OR LICENSING COMMISSION
AFTER THE FILING OF FORMAL ACTIONS OR DISCIPLINARY CHARGES
AGAINST THE RESPONDENT.
(6) TO COLLECT ALL FEES, COSTS, FINES AND PENALTIES
ASSESSED AS A RESULT OF A DISCIPLINARY PROCEEDING BEFORE A
LICENSING BOARD OR LICENSING COMMISSION.
(7) TO DENY, SUSPEND OR REVOKE A LICENSE, REGISTRATION,
CERTIFICATION OR PERMIT FOR FAILURE TO PAY ANY PENALTY, FEE,
INTEREST OR COST ASSESSED AS A RESULT OF A DISCIPLINARY
PROCEEDING BEFORE A LICENSING BOARD OR LICENSING COMMISSION.
(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
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SHALL REQUIRE THE SAME NUMBER OF VOTES REQUIRED FOR THE
LICENSING BOARD OR LICENSING COMMISSION TO IMPOSE A CIVIL
PENALTY UNDER ANY OTHER ACT.
(2) NOTHING IN THIS SECTION SHALL BE CONSTRUED TO
RESTRICT THE POWERS AND DUTIES UNDER ANY OTHER ACT OF A
LICENSING BOARD OR LICENSING COMMISSION IN DISCIPLINARY
MATTERS, EXCEPT THAT A LICENSING BOARD OR LICENSING
COMMISSION MAY NOT IMPOSE A CIVIL PENALTY UNDER ANY OTHER ACT
FOR THE SAME VIOLATION FOR WHICH A CIVIL PENALTY HAS BEEN
IMPOSED UNDER THIS SECTION.
(D) STATUS OF CIVIL PENALTY.--A CIVIL PENALTY, TOGETHER WITH
ANY ASSOCIATED FEE, INTEREST OR COST, IMPOSED UNDER THIS SECTION
OR IMPOSED BY A LICENSING BOARD OR LICENSING COMMISSION UNDER
ANOTHER ACT SHALL BE A JUDGMENT IN FAVOR OF THE BUREAU UPON THE
PERSON OR THE PROPERTY OF THE PERSON, WHETHER REAL OR PERSONAL,
AND INCLUDING ANY AFTER-ACQUIRED PROPERTY, UPON WHOM THE CIVIL
PENALTY IS IMPOSED. THE ATTORNEY GENERAL SHALL BE RESPONSIBLE
FOR ENFORCING THE JUDGMENTS IN COURTS OF COMPETENT JURISDICTION
IN ACCORDANCE WITH 42 PA.C.S. (RELATING TO JUDICIARY AND
JUDICIAL PROCEDURE).
(E) ENTRY OF JUDGMENT.--WITHIN 60 MONTHS OF THE FINAL
DISPOSITION OF A DISCIPLINARY CASE, IF AN UNPAID CIVIL PENALTY,
FEE, INTEREST AND COST OF A LICENSEE TOTAL $1,000 OR MORE, THE
LICENSING BOARD OR LICENSING COMMISSION, OR THE RESPECTIVE AGENT
OF THE LICENSING BOARD OR LICENSING COMMISSION, MAY TRANSMIT A
COPY OF THE FINAL DISPOSITION TO THE PROTHONOTARY OF THE COURT
OF COMMON PLEAS IN THE COUNTY WHERE THE LICENSEE OR PROPERTY OF
THE LICENSEE UPON WHOM THE PENALTY, FEE, INTEREST AND COST ARE
IMPOSED IS LOCATED. THE FOLLOWING APPLY:
(1) THE PROTHONOTARY SHALL ENTER AND DOCKET THE COPY OF
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THE FINAL DISPOSITION WITHOUT REQUIRING PAYMENT OF COSTS AS A
CONDITION PRECEDENT TO THE ENTRY OF THE COPY OF THE FINAL
DISPOSITION.
(2) THE TOTAL OF THE PENALTY, FEE, INTEREST AND COST
SHALL BE ENTERED AS A JUDGMENT UPON THE LICENSEE REGARDLESS
OF WHETHER THE AMOUNT HAS BEEN ORDERED TO BE PAID IN
INSTALLMENTS.
(F) PRIORITY OF LIEN.--A LIEN OBTAINED UNDER THIS SECTION
SHALL MAINTAIN ITS PRIORITY INDEFINITELY, AND NO WRIT OF REVIVAL
NEED BE FILED.
(G) EXECUTION.--A WRIT OF EXECUTION MAY DIRECTLY ISSUE UPON
THE LIEN WITHOUT THE ISSUANCE AND PROSECUTION TO JUDGMENT OF A
WRIT OF SCIRE FACIAS, PROVIDED THAT A NOTICE OF THE FILING AND
THE EFFECT OF THE LIEN BE PROVIDED TO THE LICENSEE NOT LESS THAN
10 DAYS BEFORE THE EXECUTION ON THE LIEN. NOTICE MAY BE SENT BY
REGISTERED MAIL TO THE LAST KNOWN ADDRESS OF THE LICENSEE.
(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
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DISCIPLINARY PROCEEDINGS COMMENCED ON OR AFTER AUGUST 31, 1993.
(K) DEFINITIONS.--AS USED IN THIS SECTION, THE FOLLOWING
WORDS AND PHRASES SHALL HAVE THE MEANINGS GIVEN TO THEM IN THIS
SUBSECTION UNLESS THE CONTEXT CLEARLY INDICATES OTHERWISE:
"UNLICENSED PRACTICE." ANY OF THE FOLLOWING:
(1) PRACTICING A PROFESSION OR OCCUPATION OR OPERATING A
BUSINESS FOR WHICH A LICENSE, REGISTRATION, CERTIFICATE OR
PERMIT IS REQUIRED WITHOUT HOLDING A VALID, UNEXPIRED,
UNREVOKED OR UNSUSPENDED AUTHORITY TO DO SO.
(2) REPRESENTING TO THE PUBLIC OR A PERSON, THROUGH
OFFERINGS, ADVERTISEMENTS OR THE USE OF A TITLE, THAT THE
INDIVIDUAL IS QUALIFIED TO PRACTICE A PROFESSION, OCCUPATION
OR BUSINESS FOR WHICH A LICENSE, REGISTRATION, CERTIFICATE OR
PERMIT IS REQUIRED WITHOUT HOLDING A VALID, UNEXPIRED,
UNREVOKED OR UNSUSPENDED AUTHORITY TO DO SO.
§ 3109. CONFIDENTIALITY OF RECORDS OF LICENSURE BOARDS.
(A) GENERAL RULE.--
(1) ALL RECORDS UNDER SECTION 708(B)(17) OF THE RIGHT-
TO-KNOW LAW, RELATING TO A NONCRIMINAL INVESTIGATION,
INCLUDING PROSECUTORIAL MEMOS AND TRANSCRIPTS OF DEPOSITIONS ,
UNDERTAKEN BY THE BUREAU OF ENFORCEMENT AND INVESTIGATION AND
THE PROSECUTION DIVISION OF THE DEPARTMENT OF STATE, OFFICE
OF CHIEF COUNSEL ON BEHALF OF THE LICENSING BOARDS WITHIN THE
DEPARTMENT OF STATE OR CONCERNING A LICENSURE-RELATED
COMPLAINT FILED WITH THE DEPARTMENT OF STATE SHALL BE
CONFIDENTIAL AND PRIVILEGED.
(2) NO PERSON WHO HAS INVESTIGATED OR HAS ACCESS TO OR
CUSTODY OF DOCUMENTS, MATERIALS OR INFORMATION THAT ARE
CONFIDENTIAL AND PRIVILEGED UNDER THIS SUBSECTION SHALL BE
REQUIRED TO TESTIFY IN A JUDICIAL OR ADMINISTRATIVE
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PROCEEDING UNLESS DIRECTED TO DO SO BY A COURT OF COMPETENT
JURISDICTION WITHOUT THE WRITTEN CONSENT OF THE LICENSING
BOARD THAT REGULATES THE PROFESSION INVOLVED.
(3) THIS SUBSECTION SHALL NOT PRECLUDE OR LIMIT
INTRODUCTION OF THE CONTENTS OF AN INVESTIGATIVE FILE OR
RELATED WITNESS TESTIMONY IN A HEARING OR PROCEEDING HELD
BEFORE THE LICENSING BOARDS WITHIN THE DEPARTMENT OF STATE.
(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
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EMPLOYEE OR AGENT TO ADMINISTRATIVE DISCIPLINE, INCLUDING
DISCHARGE, SUSPENSION OR OTHER FORMAL OR APPROPRIATE
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.
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(5) NUMBER OF CLOSED CASES.
(6) AVERAGE NUMBER OF DAYS TO CLOSE A CASE.
(7) NUMBER OF REVOCATIONS AND SUSPENSIONS.
(8) PERCENTAGE OF REVOCATIONS AND SUSPENSIONS IN
RELATION TO THE TOTAL NUMBER OF LICENSEES.
§ 3111. LICENSURE BY ENDORSEMENT.
(A) GENERAL RULE.--NOTWITHSTANDING ANY EXISTING PROVISIONS
RELATED TO LICENSURE BY ENDORSEMENT OR LICENSURE BY RECIPROCITY
IN AN APPLICABLE LICENSING STATUTE, A LICENSING BOARD OR
LICENSING COMMISSION SHALL ISSUE A LICENSE, CERTIFICATE,
REGISTRATION OR PERMIT TO AN APPLICANT TO ALLOW PRACTICE IN THIS
COMMONWEALTH IF, UPON APPLICATION TO THE LICENSING BOARD OR
LICENSING COMMISSION, THE APPLICANT SATISFIES ALL OF THE
FOLLOWING CONDITIONS:
(1) HOLDS A CURRENT LICENSE, CERTIFICATE, REGISTRATION
OR PERMIT FROM ANOTHER STATE, TERRITORY OR COUNTRY AND THE
LICENSING BOARD OR LICENSING COMMISSION DETERMINES THAT
STATE'S, TERRITORY'S OR COUNTRY'S REQUIREMENTS ARE
SUBSTANTIALLY EQUIVALENT TO OR EXCEED THE REQUIREMENTS
ESTABLISHED IN THIS COMMONWEALTH.
(2) DEMONSTRATES COMPETENCY IN THE PROFESSION OR
OCCUPATION THROUGH METHODS DETERMINED BY THE LICENSING BOARD
OR LICENSING COMMISSION, INCLUDING HAVING COMPLETED
CONTINUING EDUCATION OR HAVING EXPERIENCE IN THE PROFESSION
OR OCCUPATION FOR AT LEAST TWO OF THE FIVE YEARS PRECEDING
THE DATE OF THE APPLICATION UNDER THIS SECTION.
(3) HAS NOT COMMITTED ANY ACT THAT CONSTITUTES GROUNDS
FOR REFUSAL, SUSPENSION OR REVOCATION OF A LICENSE,
CERTIFICATE, REGISTRATION OR PERMIT TO PRACTICE THAT
PROFESSION OR OCCUPATION IN THIS COMMONWEALTH UNLESS THE
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LICENSING BOARD OR LICENSING COMMISSION DETERMINES, IN ITS
DISCRETION, THAT THE ACT SHOULD NOT BE AN IMPEDIMENT TO THE
GRANTING OF A LICENSE, CERTIFICATE, REGISTRATION OR PERMIT TO
PRACTICE IN THIS COMMONWEALTH.
(4) IS IN GOOD STANDING AND HAS NOT BEEN DISCIPLINED BY
THE JURISDICTION THAT ISSUED THE LICENSE, CERTIFICATE,
REGISTRATION OR PERMIT UNLESS THE LICENSING BOARD OR
LICENSING COMMISSION DETERMINES, IN ITS DISCRETION, THAT THE
DISCIPLINE SHOULD NOT BE AN IMPEDIMENT TO THE GRANTING OF A
LICENSE, CERTIFICATE, REGISTRATION OR PERMIT TO PRACTICE IN
THIS COMMONWEALTH.
(5) PAYS ANY FEES ESTABLISHED BY THE LICENSING BOARD OR
LICENSING COMMISSION BY REGULATION.
(B) PROVISIONAL ENDORSEMENT LICENSE.--A LICENSING BOARD OR
LICENSING COMMISSION MAY ISSUE A PROVISIONAL LICENSE,
CERTIFICATE, REGISTRATION OR PERMIT TO AN APPLICANT FOR
LICENSURE BY ENDORSEMENT WHILE THE APPLICANT IS SATISFYING
REMAINING REQUIREMENTS FOR THE LICENSURE BY ENDORSEMENT AS
DETERMINED BY THE LICENSING BOARD OR LICENSING COMMISSION. THE
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
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SUPERSEDE OR REPLACE EXISTING STATUTORY PROVISIONS RELATING TO
LICENSURE BY ENDORSEMENT OR LICENSURE BY RECIPROCITY APPLICABLE
TO LICENSING BOARDS AND LICENSING COMMISSIONS THROUGH THEIR
RESPECTIVE ENABLING STATUTES.
§ 3112. RESTRICTED LICENSES FOR BARBERS AND COSMETOLOGISTS.
(A) SUPPLEMENTARY PROVISIONS.--NOTWITHSTANDING ANY PROVISION
OF LAW TO THE CONTRARY, AS AN ALTERNATIVE TO REFUSING TO ISSUE
OR RENEW, SUSPENDING, REVOKING OR LIMITING A LICENSE AS A RESULT
OF A FINDING THAT AN APPLICANT FOR A BARBER'S LICENSE or a
cosmetology license LACKS THE FITNESS TO ENGAGE IN THE PRACTICE
OF BARBERING UNDER SECTION 3(A) OF THE ACT OF JUNE 19, 1931
(P.L.589, NO. 202), REFERRED TO AS THE BARBERS' LICENSE LAW, OR
THAT AN APPLICANT FOR A COSMETOLOGY LICENSE IS NOT OF GOOD MORAL
CHARACTER UNDER SECTION 4(A) OF THE ACT OF MAY 3, 1933 (P.L.242,
NO.86), REFERRED TO AS THE COSMETOLOGY LAW, DUE TO A CRIMINAL
CONVICTION, OR IS OTHERWISE INELIGIBLE FOR A LICENSE AS A BARBER
OR COSMETOLOGIST AS A RESULT OF A CRIMINAL CONVICTION, THE STATE
BOARD OF BARBER EXAMINERS OR THE STATE BOARD OF COSMETOLOGY MAY
ISSUE A RESTRICTED LICENSE FOR A TERM NOT LESS THAN ONE YEAR AND
NOT MORE THAN TWO YEARS TO AN APPLICANT FOR A LICENSE UNDER THE
BARBERS' LICENSE LAW OR THE COSMETOLOGY LAW. THE FOLLOWING
APPLY:
(1) THE STATE BOARD OF BARBER EXAMINERS OR THE STATE
BOARD OF COSMETOLOGY SHALL DETERMINE THE PERIOD OF TIME
DURING WHICH THE RESPECTIVE APPLICANT SHALL OPERATE UNDER A
RESTRICTED LICENSE.
(2) THE STATE BOARD OF BARBER EXAMINERS OR THE STATE
BOARD OF COSMETOLOGY SHALL NOTIFY THE RESPECTIVE APPLICANT OF
THAT PERIOD OF TIME AND THE CONDITIONS PLACED ON THE
RESTRICTED LICENSE UNDER SUBSECTION (C).
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(B) DEMONSTRATION OF FITNESS.--NOTWITHSTANDING ANY OTHER
PROVISION OF LAW TO THE CONTRARY AND THE INDIVIDUAL'S CRIMINAL
CONVICTIONS, AN APPLICANT FOR A RESTRICTED LICENSE MAY
DEMONSTRATE FITNESS FOR ISSUANCE OF A RESTRICTED LICENSE TO
PRACTICE BARBERING OR COSMETOLOGY BY INTRODUCING EVIDENCE OF THE
FOLLOWING, AS APPLICABLE:
(1) WHILE INCARCERATED, THE INDIVIDUAL MAINTAINED A
RECORD OF GOOD BEHAVIOR, INCLUDING THE SUCCESSFUL COMPLETION
OF ANY REQUIRED REHABILITATIVE PROGRAMMING OFFERED BY A
COUNTY CORRECTIONAL FACILITY OR THE DEPARTMENT OF
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:
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(1) LIMITING THE SCOPE OR LOCATION OF THE RESTRICTED
LICENSE HOLDER'S PRACTICE.
(2) R EQUIRING THE RESTRICTED LICENSE HOLDER TO BE
REASONABLY SUPERVISED DURING BUSINESS HOURS BY A LICENSED
MANAGER-BARBER OR A LICENSEE DESIGNATED IN CHARGE OF THE
BARBER SHOP OR A LICENSED COSMETOLOGY TEACHER OR SALON OWNER
OR DESIGNATED PERSON IN CHARGE OF THE SALON, AS APPLICABLE.
(3) REQUIRING THE RESTRICTED LICENSE HOLDER TO NOTIFY
THE STATE BOARD OF BARBER EXAMINERS OR THE STATE BOARD OF
COSMETOLOGY, AS APPLICABLE, IN WRITING AS SOON AS IS
PRACTICABLE OF A CHANGE IN THE SUPERVISOR SPECIFIED UNDER
PARAGRAPH (2).
(4) REQUIRING THE RESTRICTED LICENSE HOLDER TO ABIDE BY
ANY OTHER CONDITION THAT THE STATE BOARD OF BARBER EXAMINERS
OR THE STATE BOARD OF COSMETOLOGY, AS APPLICABLE, DEEMS
APPROPRIATE.
(D) REVOCATION.--A RESTRICTED LICENSE SHALL BE IMMEDIATELY
REVOKED IF ANY OF THE FOLLOWING OCCURS:
(1) THE RESTRICTED LICENSE HOLDER IS CONVICTED OF AN
OFFENSE GRADED AS A MISDEMEANOR OR FELONY IN THIS
COMMONWEALTH OR A SIMILAR OR EQUIVALENT OFFENSE IN ANOTHER
JURISDICTION FOLLOWING THE RECEIPT OF THE RESTRICTED LICENSE.
(2) T HE RESTRICTED LICENSE HOLDER FAILS TO COMPLY WITH
ANY CONDITION IMPOSED BY THE STATE BOARD OF BARBER EXAMINERS
OR THE STATE BOARD OF COSMETOLOGY AND SPECIFIED UNDER
SUBSECTION (C).
(E) COMPLIANCE.--WITHIN 30 DAYS OF THE CONCLUSION OF THE
TERM OF THE RESTRICTED LICENSE, THE SUPERVISING LICENSED
MANAGER-BARBER OR A LICENSEE DESIGNATED IN CHARGE OF THE BARBER
SHOP OR A LICENSED COSMETOLOGY TEACHER OR SALON OWNER OR
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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
LICENSE HOLDER COMPLIED WITH ALL CONDITIONS IMPOSED UNDER
SUBSECTION (C). IF THE RESTRICTED LICENSE HOLDER MEETS ALL OF
THE OTHER QUALIFICATIONS FOR LICENSURE UNDER THE BARBERS'
LICENSE LAW OR THE COSMETOLOGY LAW, THE STATE BOARD OF BARBER
EXAMINERS OR THE STATE BOARD OF COSMETOLOGY SHALL ISSUE A
LICENSE TO PRACTICE UNDER THE BARBERS' LICENSE LAW OR THE
COSMETOLOGY LAW, AS APPROPRIATE.
(F) CONSTRUCTION.--NOTHING IN THIS SECTION SHALL BE
CONSTRUED TO RESTRICT ANY OF THE OTHER POWERS AND DUTIES OF THE
STATE BOARD OF COSMETOLOGY OR THE STATE BOARD OF BARBER
EXAMINERS.
SECTION 3112.1. RESTRICTED LICENSES FOR OTHER OCCUPATIONS.
(A) OCCUPATIONS OTHER THAN BARBERING AND COSMETOLOGY.--
NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY, IF A
COUNTY CORRECTIONAL FACILITY OR THE DEPARTMENT OF CORRECTIONS
OFFERS TRAINING IN THE OCCUPATION, OTHER THAN BARBERING AND
COSMETOLOGY, WHICH REQUIRES THE ISSUANCE OF A LICENSE,
CERTIFICATE, REGISTRATION OR PERMIT BY THE BUREAU IN ORDER TO
ENGAGE IN THAT OCCUPATION, THE APPLICABLE LICENSING BOARD OR
LICENSING COMMISSION MAY ISSUE A RESTRICTED LICENSE TO AN
APPLICANT AS SPECIFIED IN THIS SECTION AS AN ALTERNATIVE TO
REFUSING TO ISSUE OR RENEW, SUSPENDING, REVOKING OR LIMITING A
LICENSE AS A RESULT OF A FINDING THAT THE APPLICANT FOR A
LICENSE, CERTIFICATE, REGISTRATION OR PERMIT LACKS THE FITNESS
TO ENGAGE IN THE OCCUPATION DUE TO A CRIMINAL CONVICTION OR IS
OTHERWISE INELIGIBLE FOR LICENSURE DUE TO A CRIMINAL CONVICTION.
THE FOLLOWING SHALL APPLY:
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(1) THE APPLICABLE LICENSING BOARD OR COMMISSION SHALL
DETERMINE THE PERIOD OF TIME DURING WHICH THE APPLICANT SHALL
OPERATE UNDER A RESTRICTED LICENSE. THE MINIMUM PERIOD OF
TIME SHALL BE ONE YEAR. THE MAXIMUM PERIOD OF TIME SHALL BE
TWO YEARS.
(2) THE APPLICABLE LICENSING BOARD OR LICENSING
COMMISSION SHALL NOTIFY THE APPLICANT OF THE TIME PERIOD
UNDER PARAGRAPH (1) AND THE CONDITIONS PLACED ON THE
RESTRICTED LICENSE UNDER SUBSECTION (C).
(B) DEMONSTRATION OF FITNESS.--NOTWITHSTANDING ANY OTHER
PROVISION OF LAW TO THE CONTRARY AND THE CRIMINAL CONVICTION, AN
APPLICANT FOR A RESTRICTED LICENSE MAY DEMONSTRATE FITNESS FOR
ISSUANCE OF A RESTRICTED LICENSE TO PRACTICE BY INTRODUCING
EVIDENCE OF THE FOLLOWING:
(1) WHILE INCARCERATED, THE INDIVIDUAL MAINTAINED A
RECORD OF GOOD BEHAVIOR, INCLUDING THE SUCCESSFUL COMPLETION
OF ANY REQUIRED REHABILITATIVE PROGRAMMING OFFERED BY A
COUNTY CORRECTIONAL FACILITY OR THE DEPARTMENT OF
CORRECTIONS.
(2) IF INCARCERATED BY A COUNTY CORRECTIONAL FACILITY OR
THE DEPARTMENT OF CORRECTIONS AND ENROLLED IN A PROGRAM
REGARDING THE OCCUPATION FOR WHICH A RESTRICTED LICENSE IS
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
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