Garner v. Bureau of Professional & Occupational Affairs, State Board of Optometry

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Dr. J.C. Garner, O.D., :

Petitioner :

v. :

:

Bureau of Professional and :

Occupational Affairs, State :

Board of Optometry, : No. 1938 C.D. 2013

Respondent : Submitted: June 27, 2014

BEFORE: HONORABLE DAN PELLEGRINI, President Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE ANNE E. COVEY, Judge

OPINION BY

JUDGE COVEY FILED: July 30, 2014

Dr. J.C. Garner, O.D. (Garner) petitions this Court for review of the

Department of State, Bureau of Professional and Occupational Affairs, State Board of

Optometry’s (Board) September 26, 2013 order suspending his license under Section

7 of the Optometric Practice and Licensure Act (Optometry Act),1 issuing a public

reprimand and imposing a $2,500.00 civil penalty. The issues for this Court’s review

are: (1) whether the Board erred by concluding that Garner’s conviction was for

crimes involving moral turpitude; (2) whether the Criminal History Record

Information Act (CHRIA)2 limits the Board’s consideration to crimes related to the

practice of optometry; and, (3) whether the Board’s penalty constituted an abuse of

discretion. Upon review, we affirm.

The facts in this case are undisputed. Garner has held a license to

practice optometry in the Commonwealth of Pennsylvania (License No. OEG001105)

1

Act of June 6, 1980, P.L. 197, as amended, 63 P.S. § 244.7.

2

18 Pa.C.S. §§ 9101-9183.

since 1988. Garner allowed his license to become inactive as of November 30, 2006

in order to pursue other career paths.3 In 2006, he began working as a freight train

conductor for Norfolk Southern Railroad. In 2009, he was elected as a Pennsylvania

State Constable in South Hanover Township, Dauphin County.

On April 14, 2011, a Dauphin County jury found Garner guilty of three

counts of official oppression and two counts of impersonating a public servant.

These convictions stemmed from Garner stopping female motorists, presenting a

badge and demanding their personal information. The crimes are classified as

second-degree misdemeanors. On June 29, 2011, Garner was sentenced, inter alia, to

two months of work release, 250 hours of community service and three years of

probation.4

On June 1, 2012, the Board issued an Order to Show Cause against

Garner alleging that it was authorized to suspend or revoke his license or impose a

civil penalty under Section 7(a)(5) of the Optometry Act “in that [Garner] was

convicted of a crime involving moral turpitude.” Certified Record (C.R.) Item 1,

Order to Show Cause at ¶ 15. On June 29, 2012, Garner admitted his convictions, but

“[d]enied in the strongest terms that [he] was convicted of a crime involving moral

turpitude.” C.R. Item 2, Ans. to Complaint & New Matter at ¶ 15. After several

continuances, a Board hearing was held on March 21, 2013. On September 26, 2013,

the Board issued a Final Adjudication and Order indefinitely suspending Garner’s

license for not less than three years, issuing a public reprimand and imposing a civil

penalty of $2,500.00. Garner appealed to this Court.5

3

According to Section 5(d) of the Optometry Act, 63 P.S. § 244.5(d), prior to this

disciplinary action, in order to reactivate his license, Garner merely had to pay the necessary fees

and show that he satisfactorily completed his interim continuing education requirements.

4

Garner contends that he appealed his conviction to the Superior Court (M.D.A. 1355-2011)

and that his appeal is still pending. See Certified Record Item 2, Ans. to Complaint & New Matter

at ¶¶ 26, 28-29.

5

“Our scope of review of appeals from adjudications by the Board is limited to determining

whether constitutional rights were violated, whether an error of law was committed or whether

2

Garner first argues that the Board erred by concluding that his

convictions were for crimes involving moral turpitude. We disagree. Section 4(a) of

the Optometry Act requires that the Board’s licensees must be “of good moral

character.” 63 P.S. § 244.4(a). Section 7 of the Optometry Act also states, in

relevant part:

(a) The [B]oard shall have the power to refuse, revoke, limit

or suspend a license, or take other corrective action

authorized hereunder against an optometrist licensed to

practice optometry in this Commonwealth for any or all of

the following reasons:

....

(5) Conviction of a felony or a crime involving moral

turpitude. Conviction shall include a finding or verdict of

guilt, an admission of guilt or a plea of nolo contendere.

63 P.S. § 244.7 (emphasis added).

“Moral turpitude” is not defined in the Optometry Act. However, this

Court has held that the term is not unconstitutionally vague and “is capable of being

defined as evidenced by court decisions which determine that certain offenses are

crimes involving moral turpitude.” Foose v. State Bd. of Vehicle Mfrs., Dealers &

Salespersons, 578 A.2d 1355, 1357 (Pa. Cmwlth. 1990). In Moretti v. State Board of

Pharmacy, 277 A.2d 516 (Pa. Cmwlth. 1971), this Court defined “moral turpitude” as

“anything done knowingly contrary to justice, [h]onesty, or good morals.”6 Id. at 518

(quotation marks omitted). A “[d]etermination of whether a crime involves moral

turpitude turns on the elements of the crime, not on an independent examination of

necessary findings of fact are supported by substantial evidence.” Rand v. Pennsylvania State Bd.

of Optometry, 762 A.2d 392, 394 n.2 (Pa. Cmwlth. 2000).

6

The Moretti Court’s definition has been repeatedly upheld. See Sklar v. Dep’t of Health,

798 A.2d 268 (Pa. Cmwlth. 2002); Krystal Jeep Eagle, Inc. v. Bureau of Prof’l & Occupational

Affairs, 725 A.2d 846 (Pa. Cmwlth. 1999); Foose.

3

the details of the behavior underlying the crime.”7 Startzel v. Dep’t of Educ., 562

A.2d 1005, 1007 (Pa. Cmwlth. 1989). The Foose Court explained:

[A licensing b]oard is empowered to interpret the intention

of the legislature when the words of [its licensing a]ct are

not explicit. Section 21(c)(8) of the Statutory Construction

Act of 1972, 1 Pa. C.S. § 1921(c)(8). The construction of

the [licensing a]ct given by the [licensing b]oard, as the one

charged with its administration and execution, entitled it to

great weight which should not be disregarded unless clearly

erroneous. We may not invalidate the [licensing b]oard’s

interpretation of [its licensing a]ct unless it is found to be so

unreasonable as to be an expression of whim instead of an

exercise of judgment.

Foose, 578 A.2d at 1357 (citation omitted).

In the instant case, the Board’s decision reveals that the Board examined

the Act’s good moral character requirement and its authorization to impose penalties

on licensees convicted of crimes involving moral turpitude. The Board’s decision

also shows that the Board analyzed the elements of the crimes for which Garner was

convicted. Based upon Moretti and its progeny, the Board determined that since

Garner’s crimes involved fraud and dishonesty, they constituted crimes of moral

turpitude for which he was subject to discipline under Section 7(a)(5) of the Act.

In Gombach v. Department of State, Bureau of Commissions, Elections

& Legislation, 692 A.2d 1127 (Pa. Cmwlth. 1997), this Court explained:

Although good moral character was not defined by the

General Assembly, . . . the phrase has been made

constitutionally certain by our courts in terms of a person

lacking ‘moral turpitude.’ Good moral character is defined,

in part, as including ‘an absence of proven conduct or acts

which have been historically considered as manifestation of

7

Thus, Garner’s contentions that the District Attorney “would never make the [plea bargain]

offer on a case involving alleged moral turpitude,” and that his convictions resulted from his

counsel’s failure to object to certain jury instructions and from the victims’ misunderstanding of his

constable powers rather than him deceiving or misleading anyone, are irrelevant. See Garner Br. at

9, 14.

4

moral turpitude.’ BLACK’S LAW DICTIONARY, 693 (6th

ed.1990). Our courts have defined moral turpitude as

‘anything done knowingly contrary to justice, honesty or

good morals.’ Foose . . . (quoting Moretti . . .). From these

definitions it is apparent that the two phrases, good moral

character and moral turpitude, are often used together or to

define each other.

Id. at 1130. Pertaining to moral turpitude, the Moretti Court held:

Unquestionably the most helpful definition yet offered was

given in the case of Jordan v. De George, [341 U.S. 223,

232 (1951)], wherein it was stated:

Whatever else the phrase ‘crime involving moral

turpitude’ may mean in peripheral cases, the

decided cases make it plain that crimes in which

fraud was an ingredient have always been

regarded as involving moral turpitude. * * *

Fraud is the touchstone by which this case should be

judged. The phrase ‘crime involving moral

turpitude’ has without exception been construed to

embrace fraudulent conduct.

Moretti, 277 A.2d at 519 (emphasis added). This Court has also held:

With respect to ‘fraud,’ a term not defined, Section 1903(a)

of the Statutory Construction Act of 1972 advises that

where a word is not defined in the statute but the word has

acquired a peculiar and appropriate meaning, it shall be

construed according to such peculiar and appropriate

meaning for definition. 1 Pa.C.S. § 1903(a). ‘Fraud’

certainly has acquired a peculiar and appropriate meaning in

the law. We turn to Black’s Law Dictionary 594 (5th ed.

1979) for a definition and find one that is sufficiently

simple and broad to answer our purpose: ‘[a]ny kind of

artifice employed by one person to deceive another.’

Chatham Racquet Club v. Commonwealth, 561 A.2d 354, 357 (Pa. Cmwlth. 1989)

(quoting Commonwealth v. Nat’l Apartment Leasing Co., 529 A.2d 1157, 1160-61

(Pa. Cmwlth. 1987)). “Fraud” is defined in the Ninth Edition of Black’s Law

5

Dictionary (2004) as “[a] knowing misrepresentation of the truth or concealment of a

material fact to induce another to act to his or her detriment.” Id. at 731.

Here, Garner was convicted for official oppression and impersonating a

public servant. Section 5301 of the Crimes Code specifies as to official oppression:

A person acting or purporting to act in an official capacity

or taking advantage of such actual or purported

capacity commits a misdemeanor of the second degree if,

knowing that his conduct is illegal, he:

(1) subjects another to arrest, detention, search, seizure,

mistreatment, dispossession, assessment, lien or other

infringement of personal or property rights; or

(2) denies or impedes another in the exercise or enjoyment

of any right, privilege, power or immunity.

18 Pa.C.S. § 5301 (emphasis added). Relative to impersonating a public servant,

Section 4912 of the Crimes Codes provides: “A person commits a misdemeanor of

the second degree if he falsely pretends to hold a position in the public service with

intent to induce another to submit to such pretended official authority or otherwise

to act in reliance upon that pretense to his prejudice.” 18 Pa.C.S. § 4912 (emphasis

added). Because the elements of the crimes for which Garner was convicted clearly

involve misrepresentation or concealment to induce others to act to their detriment,

we hold that they include fraudulent conduct and, therefore, constitute crimes

involving moral turpitude. Thus, the law supports the Board’s determination that

Garner’s conviction was for crimes involving moral turpitude.

Garner also contends that CHRIA limits the Board’s consideration to

crimes related to the practice of optometry. We disagree. Section 7(a)(5) of the

Optometry Act authorizes the Board to suspend Garner’s license based on “a crime

involving moral turpitude.”8 63 P.S. § 244.7(a)(5). Section 9124(c) of CHRIA

8

Similarly, Section 23.62(e) of the Board’s Regulations, 49 Pa. Code § 23.62(e), does not

require that a licensee’s conduct relate to his or her practice. Section 23.62(e) of the Board’s

6

empowers a licensing board to suspend a license for misdemeanor convictions only

when they relate to the licensed profession, as follows:

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:

(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.

18 Pa.C.S. § 9124(c) (emphasis added). Whether Section 9124(c) of CHRIA limits

Section 7(a)(5) of the Optometry Act such that the Board may suspend Garner’s

license only if his misdemeanor crimes relate to the practice of optometry appears to

be an issue of first impression.

However, Section 9124(c)(2) of CHRIA is inapplicable to this case.

CHRIA’s general purpose is to control the collection, maintenance, dissemination or

receipt of criminal history record information. See 18 Pa.C.S. § 9103. Accordingly,

“Section 9124(c) [of CHRIA] does not by its own terms grant authority to the Board

to suspend or revoke [a professional] license.” Cannizzaro v. Dep’t of State, Bureau

of Prof’l & Occupational Affairs, 564 A.2d 564, 567 (Pa. Cmwlth. 1989) (quoting

Gangewere v. Pennsylvania State Architects Licensure Bd., 512 A.2d 1301, 1305 (Pa.

Cmwlth. 1986)). Historically, licensing boards have implicated either its licensing

statute or CHRIA, or both, when sanctioning their members. Where a licensing

statute does not specify that a licensee’s conduct must be related to the licensed

Regulations states: “Licensed optometrists may not engage in unethical or illegal practices or

conduct which fails to conform to the acceptable and prevailing standards of optometric practice, or

violates [s]tate or [f]ederal laws.” (Emphasis added).

7

profession, this Court has declined to impose such a requirement. Vogelman v. State

Bd. of Funeral Dirs., 550 A.2d 1367 (Pa. Cmwlth. 1988).

Here, the Board referenced in its Order to Show Cause that “[t]his action

is brought pursuant to the [Optometry Act], 63 P.S. § 244.1 et seq., and/or [CHRIA],

18 Pa.C.S. §§ 9101-9183.” C.R. Item 1, Order to Show Cause at 1. The Board

ultimately held that Garner “is subject to discipline of his license under [S]ection

7(a)(5) of the [Optometry] Act . . . in that [Garner] was convicted of a crime

involving moral turpitude.” Board Op. at 11. Because the Board did not rely upon

Section 9124(c)(2) of CHRIA in Garner’s case, but rather acted solely pursuant to its

authority in Section 7(a)(5) of the Optometry Act, the crimes for which Garner was

sanctioned were not required to be related to the practice of optometry.9

9

Even if the Board had reviewed Garner’s license under Section 9124(c)(2) of CHRIA, it

does not appear that the Board’s reliance upon a court’s certified conviction documents to suspend

Garner’s license necessarily implicates CHRIA. CHRIA applies only to “[c]riminal history record

information,” which is defined as:

Information collected by criminal justice agencies concerning

individuals, and arising from the initiation of a criminal proceeding,

consisting of identifiable descriptions, dates and notations of arrests,

indictments, informations or other formal criminal charges and any

dispositions arising therefrom. The term does not include

intelligence information, investigative information or treatment

information, including medical and psychological information, or

information and records specified in [S]ection 9104 (relating to

scope).

18 Pa.C.S. § 9102 (emphasis added). Section 9104(a) of CHRIA states, in pertinent part:

Except for the provisions of Subchapter B (relating to completeness

and accuracy), Subchapter D (relating to security) and Subchapter F

(relating to individual right of access and review), nothing in this

chapter shall be construed to apply to:

....

(2) Any documents, records or indices prepared or maintained by or

filed in any court of this Commonwealth, including but not limited

to the minor judiciary.

8

Lastly, Garner maintains that the Board abused its discretion by

imposing a penalty that was too harsh, particularly since his license was inactive at

the time of his crimes, and where the District Attorney (DA) felt that his crimes were

“innocuous enough that the DA made a plea-bargain offer . . . .”10 Garner Br. at 18.

We disagree.

This Court has held that the professional license renewal requirement

“neither serves as a statute of limitations nor requires the licensing agency to make a

periodic determination of the licensee’s qualifications.”11 Gangewere, 512 A.2d at

1306. Because the Board’s reactivation process would not require a determination of

Garner’s specific qualifications to practice, he could merely pay a fee and submit

proof of his continuing education to reactivate his license at any time. Thus, although

Garner’s license was inactive at the time of the crimes for which the Board

sanctioned him, since Garner maintained a property interest in his license that he

could revive at any time, the Board retained the jurisdiction and authority to suspend

his license. Nicoletti v. State Bd. of Vehicle Mfrs., Dealers & Salespersons, 706 A.2d

891 (Pa. Cmwlth. 1988); see also Ullo v. State Bd. of Nurse Exam’rs, 398 A.2d 764

(Pa. Cmwlth. 1979).12

18 Pa.C.S. § 9104(a) (emphasis added). Arguably, certified records of Garner’s conviction from the

Dauphin County Common Pleas Court do not constitute criminal history record information subject

to CHRIA’s limitations.

10

Garner’s counsel contended that the DA and the trial judge would have dismissed the

charges if Garner had accepted the plea bargain which, inter alia, precluded him from running for

public office for 15 years, but he refused to agree to such a condition. Reproduced Record, Notes of

Testimony, March 21, 2013 at 85; see also Garner Br. at 9.

11

Rather, “the purpose of periodic renewals of professional or occupational licenses is to

raise revenues and to provide a current list of those people authorized to practice the profession or

occupation within the Commonwealth[.]” Gangewere, 512 A.2d at 1306.

12

Although Gangewere, Nicoletti and Ullo involved license renewals as opposed to license

reactivations, we find the processes to be sufficiently similar to guide us under the instant

circumstances.

9

Moreover, pursuant to Section 7(a)(5) of the Optometry Act, once

Garner was convicted of a crime involving moral turpitude, the Board was authorized

to sanction him. With complete independence from the DA’s plea bargain, the Board

was clearly authorized by the Optometry Act and what we refer to as the Licensing

Boards and Commissions Law13 with the discretion to fashion such penalties for

Garner’s misconduct.

Section 7(b) of the Optometry Act provides:

When the [B]oard finds that the license of a person may be

refused, revoked or suspended the [B]oard may:

(1) Refuse, revoke or suspend a license.

(2) Administer a public reprimand.

(3) Limit or otherwise restrict the licensee’s practice under

this act.

(4) Suspend any enforcement under this subsection and

place an optometrist on probation, with the right to vacate

the probationary order and impose the enforcement.

(5) Require a licensee to submit to the care, counseling or

treatment of a physician or a psychologist designated by the

board.

(6) Restore or reissue, in its discretion, a suspended license

to practice optometry and impose any disciplinary or

corrective measure which it might originally have imposed.

63 P.S. § 244.7(b) (emphasis added). Section 8(c) of the Optometry Act, as amended

by Section 5(b) of the Licensing Boards and Commissions Law, authorized the

Board:

In addition to the disciplinary powers and duties of the

boards and commissions within the Bureau of Professional

and Occupational Affairs under their respective practice

13

Act of July 2, 1993, P.L. 345, as amended, 63 P.S. §§ 2201-2207.

10

acts, boards and commissions shall have the power,

respectively:

....

(4) To levy a civil penalty of not more than $10,000[.00]

per violation on any licensee, registrant, certificate holder,

permit holder or unlicensed person who violates any

provision of the applicable licensing act or board regulation.

63 P.S. § 2205(b) (emphasis added).14 Further,

[t]his Court may not substitute its own judgment for that of

the Board and, absent a flagrant abuse of discretion, will not

interfere in discretionary matters of the Board. Our review

of the record reveals that the Board’s decision to suspend

[and otherwise sanction Garner’s] license was arrived at

only after careful deliberation, is supported by the evidence

in the record and is within the Board’s authority. We

conclude, therefore, that the Board’s action . . . was not an

abuse of discretion.

Gangewere, 512 A.2d at 1306-07 (citation omitted).

Based on the foregoing, the Board’s order is affirmed.

___________________________

ANNE E. COVEY, Judge

14

Section 8(c) of the Optometry Act, 63 P.S. § 244.8(c), was repealed insofar as it was

inconsistent with Section 5 of the Licensing Boards and Commissions Law, which was amended by

Section 1 of the Act of July 17, 2009, P.L. 95, as amended, 63 P.S. § 2205 (effective for violations

that occurred after September 15, 2009).

11

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Dr. J.C. Garner, O.D., :

Petitioner :

v. :

:

Bureau of Professional and :

Occupational Affairs, State :

Board of Optometry, : No. 1938 C.D. 2013

Respondent :

ORDER

AND NOW, this 30th day of July, 2014, the Department of State, Bureau

of Professional and Occupational Affairs, State Board of Optometry’s September 26,

2013 final adjudication and order is affirmed.

___________________________

ANNE E. COVEY, Judge