Multiple License Holders and Multiple Prosecutions

Today I am confronted with the issue of whether a professional possessing multiple licenses, who successfully defends a prosecution against one license,  may be prosecuted by a different Board which regulates a different license for the same infraction. The short answer is yes, and this blog will discuss how, why, and what to do when facing disciplinary action if you hold several licenses.

A professional’s multiple licenses, (Medical & Psychiatry)(Nursing & Automobile Sales)(Hair care and Nursing) for example, are administered by separate and independent boards. The level of discipline hand down by one Board does not bind another Board.  However, the legal predicates in the disciplinary complaint that form the basis for disciplinary action (the rules and what constitutes a violation of those rules) are, essentially, the same under each Board’s establish regulatory scheme.

As such, factual stipulations that satisfy a violation of one Board’s governing regulations will be employed against the licensee in second Board’s prosecutions.  The distinction between disciplinary action versus factual stipulation is important to understand. Agreements as to factual actions or occurrences (criminal acts, diversion, or impairment) are binding facts before one Board that will be used in separate prosecutions by each license Board. The simplest example of this discipline by a PA Board stemming from factual agreements entered into with another state’s professional Board based upon an independent prosecution in that jurisdiction. Pa uses the stipulated facts, but determines the discipline itself. See my other blogs on this issue.

As such, factual agreements and resolving one license issue must include consideration of how any agreed upon facts will affect all licenses held.  Many of my clients hold several licenses (both in state and out of state) as their career took off, they secured new license as a financial latter to climb towards financial independence. Hence, I always have concerns as to what facts and before what Board are agreed in resolving one disciplinary action in light of all licenses (in state or out of state) held.

In one case I have been reading, a licensed vehicle DEALER, participated in an odometer rollback scheme where he purchased high mileage, late model vehicles, which were cosmetically refurbished and the odometers rolled back to correspond with their lower mileage outward appearance. He was prosecuted and entered into a consent decree (1986 decree) with the Commonwealth of Pennsylvania, acting through the Office of Attorney General, resolving a complaint in equity filed against him.

Under the terms of the 1986 decree, the DEALER admitted to participating in the odometer rollback scheme, agreed to abide by the terms of the Consumer Protection Act, the State Odometer Act and the Federal Odometer Act, paid restitution/civil penalty in the amount of $ 25,000.00, agreed to cease business as a motor vehicle dealer in the Commonwealth of Pennsylvania for a period of two and one-half years, and finally agreed that if Petitioner should violate any of the above mentioned statutes, or act as a motor vehicle dealer during the period of prohibition, Petitioner would forfeit all Commonwealth of Pennsylvania licenses as a motor vehicle dealer and salesperson and could never re-apply for or accept any such licenses in the future. Petitioner, however, was permitted to continue to hold a vehicle salesperson’s LICENSE under the 1986 decree.

Two Years later, 1988, a separate Board issued an order to show cause alleging that Petitioner had violated Sections 10(2) and 10(13) of the Board of Vehicles Act, Act of December 22, 1983, P.L. 306, as amended, 63 P.S. §§ 818.10(2) and 818.10(13). The bases for the action of the Board were the actions admitted to by Petitioner in the 1986 decree. Following a hearing, the Board revoked Petitioner’s vehicle salesperson’s license and assessed a civil penalty. The licensee appealed.

The issue before the appellate court was whether the 1986 decree (allowing him to keep his license) prevented the Board from revoking Petitioner’s vehicle salesperson’s license and prevented the Board from imposing a civil penalty. The Court found that the License Board had separate authority than the Dealership Board and the action was permitted.

The Petitioner argued that the Commonwealth of Pennsylvania (Commonwealth) is a monolithic form of government, and that by entering into the 1986 decree, it is forever barred from further action on the same set of facts, unless Petitioner violates the terms of the 1986 consent decree. The Court disagreed, stating that “one need only look at decisions of this court regarding sovereign immunity to learn that the court recognizes a distinction between the Commonwealth and its administrative agencies. Hall v. Acme Markets, Inc., 110 Pa.Commonwealth Ct. 199, 532 A.2d 894 (1987). The Commonwealth itself is absolutely immune from suit, 1 Pa.C.S. § 2310. This absolute immunity has been waived only where any commonwealth agency or employee thereof is a party, and then only with respect to an act within the scope of his or her office or employment. 42 Pa.C.S. § 8501; 42 Pa.C.S. § 8522(a).

In the present case, the court determined that the Automobile Dealers and License Board was not a party to the action in which the 1986 decree was entered, nor did the complaint which began the action charge any violation of the Board of Vehicles Act. Contrary to the assertions of the Petitioner, the 1986 decree had no res judicata effects on the action of the Board. As the supreme court said in Sabatine v. Commonwealth, 497 Pa. 453, 457-458, 442 A.2d 210, 212 (1981):

A consent decree, however, is not a legal determination of matters in controversy; it has the binding force of a legal determination on the parties thereto only. Zampetti v. Cavanaugh, 406 Pa. 259, 265, 176 A.2d 906, 909 (1962). It is a contract binding the parties to the terms thereof, and a court has neither the power nor the authority, absent fraud, accident or mistake, to modify its contents . . . .

The Court determined that the Commonwealth, however, was not a party, to the equity action brought by the Attorney General in the Unfair Trade and Practice Act, and thus was not bound by its resolution. Petitioner, in effect, is seeking to modify the consent decree by adding the Board as a party to the action, and including new charges, i.e. the violations of the Board of Vehicles Act. The Court rejected this argument.

More importantly, the Court held that the legislature has placed the responsibility of administering and enforcing the Board of Vehicles Act upon the Board, not the Office of Attorney General. While Petitioner may have agreed to forego acting as a vehicle DEALER, there was nothing in the 1986 decree to prohibit him from reactivating his vehicle dealer license, if a franchise were available. The Board is the only body authorized to suspend or revoke a license. If we were to accept the arguments of Petitioner, we would be undermining the authority of the Board to administer the Board of Vehicles Act uniformly, and violating the intent of the legislature because they placed such authority in the hands of the Board, not the Office of Attorney General.

The Boards look at each Board as an independent entity charged with a limited enforcement scope, thereby permitting multiple Boards to act after one Board secures factual and legal conclusions that will help all prosecuting attorneys discipline the multiple licensee.

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