Northampton County’s 1861 Court Room!!

Finding the diamond in the rough. That describes my recent drive to the Northampton County Courthouse. As my law practice takes me from the Philadelphia’s suburban counties to northeastern Pennsylvania, I routinely travel on the Pennsylvania Turnpike and its Northeast extension.
The drive this July week was rough. The weather forecast proved accurate; rain and fog through the Lehigh Valley. It was raining so hard, I missed my exit off Rt 476E at Rt 22 E. I drove an additional 20 miles each direction, turning around in Jim Thorpe. (I love the Carbon County Courthouse – see my other blogs – but I was not going there today.)
 I was uncharacteristically late, arriving at 9:25 am for a 9:00 am hearing.  I was otherwise safe.  The judge was extremely gracious and polite. The case was handled quickly.  Opposing counsel – a local assistant district attorney – offered a tour of the courthouse as I expressed my appreciation for our hearing taking place in the old courthouse, courtroom 3, as compared to the new 2004 building.
The county website states, “The original court house was built in  1764. Nearly a century later and after the courthouse had experienced a number of historical events, which included being used as a barracks by Revolutionary troops, a group of citizens petitioned for a new County Courthouse at a different location. On August 23, 1860, the County Commissioners decided to accept land offered at a price of $1.00 that was located several blocks west of the original facility.   A new brick structure was later built on a steep hill at a cost of $53,000. The first term of court was held in the new facility on June 18, 1861.  Since then, two additional wings were constructed to accommodate the growth of Northampton County and satisfy the judicial needs of the expanded population.  The second part of the courthouse was built in 1978 and the third in 2004. “
I was interested in the 1861 building and court room 1.  Finished at the out set of the Civil War.   Wow!! A majestic legal theater, refurbished in 1978 to match the import to the community when the courthouse was built. Original woodwork, plaster, and paint are renewed. County Commissioners rightfully chose to not clutter the court room with of a phalanx of computer cables, microphones, and other modern day accoutrements that clutter some other county courtrooms in which I practice.
The pictures below reveal the courtroom’s grand entrance, judicial bench, and the jury box of the times. The remarkable woodwork and attention to detail immediately reveals itself. The artisans of Pennsylvania’s counties knew their work would be on display at every important and public event of the times. The honor and respect they earned working for their local government on the most important building in the county.

Road Riding in the Counties

My personal and business travel is taking me to more counties throughout the Commonwealth of Pennsylvania than ever before. The local courthouse houses in the county seats are really interesting for me. The court houses — arenas of legal combat — are throw backs to more glorious days when the local big trial was the event of the year.
In the past I took for granted these architectural gems that are spread throughout the various townships and boroughs within which I practice.   Now, I seek out and explore the courthouses. Whether by car or bike, I am having fun.
This spring I bought myself a road bike. I ride ferociously around the eastern part of Pennsylvania. I have the pleasure of routinely riding through Philadelphia,  Conshohocken, Norristown, and Valley Forge Park. All are within 5-15 miles of my house.  Sometimes I ride from my house to Philadelphia and back.
A recent Saturday took me on a further ride — from West Chester to the City of Lancaster. The road ride began in West Chester and ended in Lancaster County, behind the Court House. We departed West Chester through its southern rolling-hills of Brandywine Township. We followed Brandywine Creek through East Bradford Township, Downingtown  to West Fallowfield Township. One word — marvelous.
After 90 minutes the group ride, with me at the back of the pack, entered Lancaster County. I was greeted by signs for farm fresh brown eggs, personally constructed homes, garages, sheds, and wonderful antique tractors.
Tractors, tractors, tractors. But not your ordinary tractors.  These were green, yellow and red tractors, pulled by horses. The drawn mowing tractors were hard at work, gas free, mowing lawns and fields. Some tractors were too tired to work, gathering rust. There was no worry about rubber tires rotting. Metal wheels needed no repairs.
The morning aromas changed with each turn in the road. Pungent cow, horse, pig dung awoke my sinuses.  Crushed wild blackberries and dripping vines of honeysuckles permeated homesteads. The morning dew clung to grass blades and tree branches through the Brandywine Creek bike route. Entering Lancaster and riding down Duke Street brought with it fresh bakery smells and the Lancaster County brewing Company.
In each county seat, I look for a small coffee shop. Lancaster’s Prince Street Café did not disappoint. The fresh cappuccino after a 50 mile ride awakened all of my exhausted senses. Orange juice and fresh eggs on a croissant made me even happier. The pictures below reflects the quaintness of the café and the wonderful effort the bakers and barista’s gave the Saturday morning breakfast crowd.
An unexpected joy came as I began to get ready for my drive home. Just to the west of the Prince Street Café is the Lancaster County Donuts Shop. Homemade donuts and holes are sold with every conceivable topping — as if I was in an ice cream shop — tantalized my taste buds. The sublime chocolate with vanilla cream cheese frosting carried me through the rest of my day.
I could not have been happier. Content and satisfied by a hard work out, great ride with new friends and a bulging stomach.  Blair and Clearfield counties also did not disappoint. I’ll keep you posted.

Pennsylvania Drug Act Charges — Doctors and Nurses — Reputation

My last blog focused on physicians’ criminal Drug Act conduct and reporting responsibilities to the Medical Board.  Whether a physician or professional nurse, the typical triggering event requiring reporting to a professional license board is a charge or conviction for violating Pennsylvania’s Drug Act.  Aside from license impacts, the evidentiary important of such a charge or conviction is profound.

There is a string of cases in Pennsylvania that identify a Drug Act offense as a crime of moral turpitude and crimen falsii.  What are these characterizations and import on your license defense shall be addressed in this blog.

The esteemed Leonard Packel and Anne Poulin, wrote the book Pennsylvania Evidence § 609 (1987 and Supp. 1994).   At the time of publication, the book did not contain drug violations in either category.  In Commonwealth v. Candia, 286 Pa.Super. 282, 428 A.2d 993 (1981), Pa Superior Court stated that Drug Act offenses were not crimen falsi.

There are several federal decisions, one in the Second Circuit Court of Appeals, United States v. Hayes, 553 F.2d 824 (1977), where the court held that importation of cocaine was not clearly crimen falsi, but could be if the particular facts demonstrated that the importation involved false written or oral statements on customs forms.  That court weighed the effect on credibility of various drug violations, stating smuggling “ranks relatively high on the scale of veracity-related crimes, but that mere narcotics possession would be less highly ranked on that same scale.

That court stated impeachment use of a conviction involving dishonesty or false statement refers to allegations particularly focusing on credibility issues, such as those for ‘perjury or subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense.  Each of these cases involves the commission of acts which involve a basic intent element of deceit, untruthfulness, or falsification bearing on the accused’s propensity to testify truthfully.

Pennsylvania has determined a similar list of crimes to constitute crimen falsi.  Included in this list, a recent Superior court decision holds, is writing prescriptions for a controlled substance to oneself, knowing one has a chemical dependency problem. The crime itself involves making a false statement because it necessarily involves the falsification of a prescription by a practitioner representing that it is not for a person who is chemically dependent.  As such, Drug Act prescription violations constitute crimes of crimen falsi and, thus, a crime of moral turpitude.

The import of these cases can not be understated.  The Board will look at any Drug Act conviction as a crime of moral turpitude because it relates in many different ways to the securing, utilizing, or possessing an illegal controlled substance.  Whether such is in the course of the practice or in one private life, a Drug Act violation therefore also becomes a “conduct unbecoming” violation.

Separate and aside from these issues, are the mandatory suspensions of any Drug Act conviction.  Call me to discuss your case.

The Drug Act — Pa Doctors’ Reporting Responsibilities for Arrest, Conviction, and Automatic Suspensions

Every day I read appellate cases that review disciplinary decisions of Pennsylvania’s licensing boards. A recent case discusses physicians’ unique arrest and conviction reporting responsibility to the State Board of Medicine.  Physician’s reporting of arrests versus convictions depends on the crime involved.

Pennsylvania’s MCare’s law regarding malpractice insurance coverage, 40 P.S. § 1303. 903(4), identifies physician’s reporting responsibilities if a professional liability claim is asserted them, disciplinary action taken against them from another jurisdiction, criminal sentencing for any case, and the arrest of a physician in four very limited classes of crimes. These offenses are:

  • following offenses in this Commonwealth or another state:
    • (i)  18 Pa.C.S. Ch. 25 (relating to criminal homicide);
    • (iii)  18 Pa.C.S. Ch. 31 (relating to sexual offenses).
    • (iv)  A violation of the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act.
Physicians’ limited reporting responsibilities means arrests for following offenses does not trigger reporting to the state: domestic violence offenses, DUI’s offenses, theft offenses, or a string of federal related non-drug criminal arrest offenses.   Physicians do have to report arrests alleging a sex offense, homicide, aggravated assault, and a violation under the Drug Act.
Understanding what offenses are Drug Act offenses, not just possession or selling drugs, under The Act that are important.  Drug Act charges include patient record keeping, charting issues, and properly recording and dispensing medications.  Section 780-111 of the Drug Act focuses  on professional prescription, administration, and dispensing of drugs.  Here, the Act states:
  • (a)  Except when dispensed or administered directly to the patient by a practitioner or his authorized agent, other than a pharmacist, to an ultimate user, no controlled substance in Schedule II, may be dispensed without the written prescription of a practitioner, except in emergency situations, as prescribed by the secretary by regulation. No prescription for a controlled substance in Schedule II may be refilled.
  • (b)  Except when dispensed directly by a practitioner, other than a pharmacist, to an ultimate user, no controlled substance in Schedule III or IV, may be dispensed without a written or oral prescription. Such prescriptions shall not be filled or refilled more than six months after the date thereof or be refilled more than five times after the date of the prescription unless renewed by the practitioner.
  • (c)  No controlled substance in Schedule V may be distributed or dispensed for other than a medicinal purpose.
  • (d)  A practitioner may prescribe, administer, or dispense a controlled substance or other drug or device only (i) in good faith in the course of his professional practice, (ii) within the scope of the patient relationship, and (iii) in accordance with treatment principles accepted by a responsible segment of the medical profession. A practitioner may cause a controlled substance, other drug or device or drug to be administered by a professional assistant under his direction and supervision.
  • (d.1)  A practitioner shall not prescribe, administer or dispense any anabolic steroid for the purpose of enhancing a person’s performance in an exercise, sport or game. A practitioner may not prescribe, administer or dispense any anabolic steroid for the purpose of hormonal manipulation intended to increase muscle mass, strength or weight except when medically necessary.
  • (e)  A veterinarian may prescribe, administer, or dispense a controlled substance, other drug or device only (i) in good faith in the course of his professional practice, and (ii) not for use by a human being. He may cause a controlled substance, other drug or device to be administered by a professional assistant under his direction and supervision.
  • (f)  Any drug or device dispensed by a pharmacist pursuant to a prescription order shall bear a label showing (i) the name and address of the pharmacy and any registration number obtained pursuant to any applicable Federal laws, (ii) the name of the patient, or, if the patient is an animal, the name of the owner of the animal and the species of the animal, (iii) the name of the practitioner by whom the prescription order was written, and (iv) the serial number and date of filing of the prescription order. In addition, the following statement shall be required on the label of a controlled substance: “Transfer of this drug to anyone other than the patient for whom it was prescribed is illegal.”

§ 780-112 focuses on records of distribution of controlled substances

  • (a)  Every person who sells or otherwise distributes controlled substances, shall keep records of all purchases or other receipt and sales or other distribution of such substances for two years from the date of purchase or sale. Such records shall include the name and address of the person from whom purchased or otherwise received or to whom sold or otherwise distributed, the date of purchase or receipt or sale or distribution, and the quantity involved: Provided, however, That this subsection shall not apply to a practitioner who dispenses controlled substances to his patients, unless the practitioner is regularly engaged in charging his patients, whether separately or together with charges for other professional services, for substances so dispensed.
  • (b)  Every practitioner licensed by law to administer, dispense or distribute controlled substances shall keep a record of all such substances administered, dispensed or distributed by him, showing the amount administered, dispensed or distributed, the date, the name and address of the patient, and in the case of a veterinarian, the name and address of the owners of the animal to whom such substances are dispensed or distributed. Such record shall be kept for two years from the date of administering, dispensing or distributing such substance and shall be open for inspection by the proper authorities.
  • (c)  Persons registered or licensed to manufacture or distribute or dispense a controlled substance, other drug or device under this act shall keep records and maintain inventories in conformity with the record-keeping, order form and inventory requirements of Federal law and with any additional regulations the secretary issues. Controlled substances in Schedules I and II shall be distributed by a registrant to another registrant only pursuant to an order form.
Violations of either of these two subsections and their itemized list, by either doctors or other health care nurses is dealt with under section § 780-123, revocation of licenses of practitioners.
  • (a)  Any license or registration heretofore issued to any practitioner may either be revoked or suspended by the proper officers or boards having power to issue licenses or registration to any of the foregoing, upon proof that the licensee or registrant is a drug dependent person on the use of any controlled substance, after giving such licensee or registrant reasonable notice and opportunity to be heard.
  • (b)  The appropriate licensing boards in the Department of State are hereby authorized to revoke or suspend the registration or license of any practitioner when such person has pleaded guilty or nolo contendere or has been convicted of a felony under this act or any similar State or Federal law. Before any such revocation or suspension, the licensee or registrant shall be given a hearing before the appropriate board. At such hearing the accused may be represented by counsel and shall be entitled to compulsory attendance of witnesses.
  • (c)  The appropriate licensing boards in the Department of State shall automatically suspend, for a period not to exceed one year, the registration or license of any practitioner when the person has pleaded guilty or nolo contendere or has been convicted of a misdemeanor under this act. The district attorney of each county shall immediately notify the appropriate State licensing board of practitioners subject to the provisions of this section. However, the provisions of such automatic suspension may be stayed by the appropriate State licensing board in those cases where a practitioner has violated the provisions of this act only for the personal use of controlled substances by the practitioner and the practitioner participates in the impaired professional program approved by the appropriate State licensing board for a period of between three and five years, as directed by the appropriate licensing board. If the practitioner fails to comply in all respects with the standards of such a program, the appropriate licensing board shall immediately vacate the stay of the enforcement of the suspension provided for herein. Automatic suspension shall not be stayed pending any appeal of a conviction. Restoration of such license shall be made as in the case of a suspension of license.

35 Pa. Stat. Ann. § 780-123

Case law addressing practitioner’s objections to the emergent and disparate impact Drug Act convictions and their automatic suspensions have on doctors is very clear.   Board discretion and legislative prerogative regarding public safety out weight a physician’s property right in their license.  “Licensed medical practitioners’ unique access to controlled drugs and a physician’s appropriation of this access for illegal purposes presents a danger to the Commonwealth, for which the General Assembly has legitimately and rationally adopted a separate policing device.”  Call me to discuss your case.

Professional Licensing Board’s Discretion and Appellate Case Review

The discretionary decision making process of Pennsylvania’s twenty six professional boards is a huge appellate issue many cases confront.  In a recent case, board discretion is discussed in the context of non-criminal conduct and the Medical Board’s authority to police its own licensees.  The case is Mosuro v. Bureau of Prof’l & Occupational Affairs, 2016 Pa. Commw. Unpub. LEXIS 717 (Commw. Ct. Oct. 13, 2016).

Dr. Mosuro was disciplined in the state of Texas as a result of a medical relationship with a pain management clinic.  Dr. Mosuro was compensated by the owner of the clinic, an Advanced Practical Nurse (“APN”) licensed under Texas law, with a flat fee for each prescription he wrote for a clinic patient. In turn, the APN referred patients to Dr. Mosuro for other treatment.  Upon being investigated by the Texas Medical Board, but with no criminal charges being filed, the doctor enter into a consent agreement acknowledging violations State of Texas  Medical Board laws, rules, codes, and regulations due to his failure to supervise the APN and allowed her to prescribe medications that were non-therapeutic while acting under his prescriptive delegation. Charts were also not adequately documented and prescriptions were not supported by objective medical findings and data.  In sum, he allow his prescriptions to be used in a pill mill.

The Texas Board of Medicine issue the public reprimand and a $10,000 fine. He was also given a prescription prohibition on ordering, prescribing, or dispensing scheduled medication services.  The licensing authorities of Maryland, Tennessee, Alabama, and Virginia imposed similar discipline on Dr. Mosuro ‘s license.

The Commonwealth of Pennsylvania commenced disciplinary proceedings based upon Texas’ disciplinary action, accusing the doctor under 63 P. S. § 422.41 of improper prescribing of controlled substance through his involvement with the pill mill and his failure to properly supervise a nurse practitioner as required under Texas law. Standard of care violations, documentation of medical record violations, and unprofessional conduct were perceived by the Pennsylvania Medical Board as very serious.

After hearing in Pennsylvania, the hearing examiner proposed an Order and Adjudication of a $500 civil penalty and indefinitely suspended Doctor Mosuro license to practice medicine in the Commonwealth of Pennsylvania. Upon review, the Pennsylvania Medical Board excepted the hearing examiner’s Findings of Fact and Conclusions of Law but rejected the recommended order. Rather, the Medical Board ordered a public reprimand on Dr. Mosuro ‘s permanent licensing record, a $5000 civil penalty, and an indefinite suspension of his license to practice medicine and surgery in the Commonwealth of Pennsylvania. Reinstatement may be sought upon compliance with the Texas Board order and his Texas medical license being reinstated to unrestricted status.  This totaled over $15,000 in fine for a doctor unable to practice medicine.  This Board issued this order even though Dr. Mosuro did not have an active Pennsylvania medical license, was not practicing in the Commonwealth of Pennsylvania, and was disciplined by many other jurisdictions as a result of the same conduct.  PENNSYLVANIA’S DISCIPLINE WAS THE HARSHEST OF ALL JURISDICTIONS.
Dr. Mosuro appealed to the Commonwealth Court.  The scope of the Commonwealth Court appeal is limited to determining whether the findings of fact are supported by substantial evidence and whether the board committed errors of law or constitutional violations.” Blair v. Bureau of Prof’l & Occupational Affairs, State Bd. of Nursing, 72 A.3d 742, 750 (Pa. Cmwlth. 2013).  In review of the record, the appellate court concludes  the Medical Board’s extensive discipline based solely upon the opioid prescription drug abuse crisis is proper. The Board restates with approval the Pennsylvania Medical Board citation to recent Pennsylvania legislative findings regarding human suffering associated with addiction and how its epidemic has reached families throughout the Commonwealth.
The Medical Board and the Commonwealth Court use this case as a example of how to ensure public safety from medical practitioners who use their medical licenses to create “rogue pain management clinics” in Pennsylvania. Citing statistics that Pennsylvania ranks seventh in the nation for drug overdoses from prescription pain killers and the role of pill mills in the overdose epidemic, the Court approves the Medical Board utilizing these facts to “engage in its purpose under the medical practices act of safe guarding the public health and welfare”.

The Court did not address the Board’s role of insuring individual penalties to individual licensees be based upon their case facts. The Court affirms Board citation to broad policy language that the prescription overdose epidemic cannot be ignored. The Commonwealth Court concludes that when as now there is a “current threat to public health and welfare when assessing whether a Board carries out its statutory mandate in a purely arbitrary and capricious manner”, the Medical Board is properly carrying out its broader policy mandate of stopping pill mills during this great opioid epidemic.  Such is sufficient factual and legal reasoning to discipline even an in-active medical licensee.

 The Commonwealth Court limited its inquiry into the “wisdom of the board,” not reviewing the administrative decision of the Medical Board with an eye towards substituting it’s judgment of what is reasonable for that of the agency whose decision is being reviewed. The court let stand the Pennsylvania Medical Board’s perceptions of the seriousness of the doctor’s Texas discipline, how such is also a violation of Pennsylvania’s medical licensing scheme, and the Board’s broad policy reasons for its discipline.
In sum, Commonwealth Court concludes that “the board did not abuse its discretion by taking strong action to protect the safety and welfare of citizens by suspending Dr. Mosuro’s license instead of imposing conditions on his license similar to those of the Texas Board.” Dr. Mosuro’s violation is very serious. In determining that the Board did not abuse its discretion, the Court states “even if we disagreed with the severity of the sanction and thought the Texas Board’s decision was more appropriate, the sanction must be upheld because proper review is not whether it’s order is reasonable, but whether it was made in accordance with law.”  Facilitating and conspiring to engage in operation of a “pill mill”, the Court and the Medical Board conclude, is not in accordance with law and, therefore, the suspension of the medical license is within the confines of the Board’s regulatory authority.

Call me to discuss your out of state disciplinary action and Pennsylvania’s pending disciplinary action.

JNET, Criminal Charges, and What to Do Next

The summer is over. All the fun in the sun in done. Now, back to work. But for professional licensees who had some criminal justice interactions over the summer that have been put off, ignored, or quietly resolved, these issues need attention again. This is because by now, or soon to your mailbox, you will receive notice from your professional licensing board of their knowledge of your criminal charges.

Fifteen months ago, when the Nursing Board changed its regulations to require 30-day reporting of criminal charges (not conviction), the Board needed to begin the process of making sure its licensees were timely reporting criminal charges. While the Nursing Board may have already been a subscriber to JNET, it stepped up surveillance of every licensee. What does this mean?

The Nursing Board, and every other Board, became a daily recipients of JNET computer searches results of its licensees’ criminal interactions. JNET is now an integral part of every licensing Board’s investigatory process. The Boards are subscribers to JNET to receive daily notice of any positive hit of licensee’s criminal charges through a computer algorithm search of its queried database.  AND BELIEVE ME, THE BOARDS ARE GETTING NOTICES EVERY DAY.  IN TURN, THIS MEANS THAT THE BOARDS ARE ASSIGNING THE NEW CASES TO THE PHMP, VRP, AND/OR PROSECUTORS, TO INVESTIGATE AND IF NECESSARY, FILE ORDERS TO SHOW CAUSE, PETITIONS FOR MENTAL AND PHYSICAL EVALUATIONS, OR FILE DISCIPLINARY CHARGES.

What is JNET – From the JNET WEBSITE it reads

JNET is the Pennsylvania Justice Network. The Pennsylvania Justice Network (JNET) is an integrated, secure justice portal providing an online environment for authorized users and systems to access public safety and criminal justice information. JNET is the Commonwealth’s primary public safety integration service provider. JNET is a result of a collaborative effort of municipal, county, state, bordering states and federal justice agencies to build a secure integrated justice system. While each agency maintains ownership and control of their data, JNET allows authorized criminal justice and public safety professionals to securely and safely access information from multiple providers through one interface.

The Pennsylvania Justice Network (JNET) is the Commonwealth’s primary public safety and criminal justice information broker. JNET’s integrated justice portal provides a common online environment for authorized users to access public safety and criminal justice information. This critical information comes from various contributing municipal, county, state, and federal agencies. One-time data entry has improved the effectiveness of participating agencies, and has significantly improved data accuracy throughout the Commonwealth’s criminal justice system. Information entered into a records management system at the onset of an investigation can now follow the offender throughout their criminal justice tract. As offenders pass through the gateway of justice all the way to post-sentencing supervision, offender information flows in concert with the offender’s progression.

JNET allows users to subscribe to real-time event messages for comparison against offender watch-lists. When an event message is published, it is compared against watch-list records and the subscriber is automatically notified via email. When a significant event such as an arrest, disposition, want, warrant, state parole violation, PennDOT change of address or death occurs, users are alerted to check secure JNET for detailed event information.

The licensing boards know of any criminal charge, public drunkenness, disorderly conduct , DUI, drug charges, and more withing 24-48 hours of fingerprinting and processing in ANY STATE IN THE COUNTRY. Reporting your criminal interaction timely and completely is important. Failing to report is a separate disciplinary event from the criminal offense.

Responding to “Letters of Concern”, VRP enrollment letter, understanding what VRP, PNAP, PHMP case workers can and will do once you begin talking with them is pivotal to saving your license. Read my web site and other blogs. Attorneys handling criminal cases do not understand this professional licensing scheme, the evaluation consequences, and the prosecution attorney’s role is to protect the public .

Call me to discuss the letter in your hand, the petition sitting on your desk, or ask the questions you have after speaking to a VRP case worker who just told you to have your boss call them so you can keep working!!!!

Network Investigative Techniques, Federal Criminal Search Tools, and Your 4Th Amendment Rights

My involvement for twenty five years in federal criminal matters has resulted in me handing many different Motions to Suppress. Recently, in the context of Federal internet criminal investigations, I have gained extensive experience fighting the new federal investigative techniques, (“NIT”) that reveal personal identity and location data.

Once such case involves the Government’s use of an NIT or Network Investigative Technique. The NIT is a malware program placed on a computer server that launches itself into each computer accessing that server to engage in alleged criminal activity.  The accessing computers utilize the TOR network for anonymity purposes.  Upon accessing specific areas of the server, the malware on the server then sends to the activating computer (in another state typically inside a person’s home) a code instruction to search, secure, and transmit back to the server the user’s IP address. Thereafter, search warrants secure the personal identification and location information of the accessing computer owner.

I have filed motions to suppress this search technique.  The Government bears the burden of showing, under the Fourth Amendment, the reasonableness of each individual act constituting a search or seizure. The burden of proof is by a preponderance of the evidence. The court is presented with the choice of two tracks of analysis. Does the court choose to evaluate these defendants’ constitutional rights affected by the NIT Warrant under the:
1) Reasonable expectation of privacy test set forth in United States v. Katz, 389 U.S. 347 (1967); or
2) The property-based Fourth Amendment test set forth in United States v. Jones, 565 U.S. ___, 132 S. Ct. 945 (2012). There, the court exclusively applied the property-based approach to determine whether a search occurs when the Government physically occupies private property of another for the purposes obtaining information. This approach keeps easy cases easy.

  1. PROPERTY-BASED FOURTH AMENDMENT PROTECTIONS

The court must choose the property-based search analysis set forth in JonesJones holds that surveillance on a person through electronic means without a warrant constitutes a trespass and may be an unconstitutional invasion of privacy. 132 S.Ct. at 953–54. Even though Jones involved warrantless global positioning system (“GPS”) searching, the analysis applies because the NIT warrant is illegal. Jones makes clear the constitutional nature of computer searches, especially in the privacy of one’s home.

Florida v. Jardines, 569 U.S. 1 (2013), follows Jones’ property – based Fourth Amendment jurisprudence.  The Jardines court held that a warrantless dog sniffing through the front door of Jardines’ home constitutes an unconstitutional search of a constitutionally protected area.  In Jardines, as here, “the officers learn what they learned only by physically intruding on Jardines’ property to gather evidence.”  This search activity is enough to establish that a search occurred. These cases stand for the proposition that the “Fourth Amendment, at its very core, stands for the right of a man to retreat into his home and there be free from unreasonable Government intrusion.” Jardines, supra.

There is no evaluation or discussion of an expectation of privacy under the property-based Fourth Amendment jurisprudence after JonesJardines, 569 U.S. at *9.  The court recognizes a simplistic procedure.  If the Government goes on the property of another, (trespassing or not) it needs a warrant due to Fourth Amendment’s constitutional property rights. These NIT cases, the Government understood this legal necessity and secured the NIT warrant. However, the NIT warrant was illegal.

  1. The Constitutional Character of the NIT Search is Per Se Prejudicial

In today’s society, disclosing an Internet Protocol (“IP”) address is, in essence, disclosing protected location privacy. Similar to Jones‘ GPS coordinates in tracking devices or cellular telephones, location data reveals a great deal about a person.  As such, cases discussing governmental activity and search techniques that reveal a defendant/target’s location are relevant to the court’s analysis of prejudice and the constitutional level of protections in these motions to suppress.

United States v. Maynard, 615 F.3d 544, 562 (D. C. Cir. 2010), affirmed, United States v. Jones, supra, stands for this proposition. Analogizing IP address location data to cellular telephones, Justice Alito writes that “society’s expectations have been that police agency and others will not secretly monitor and catalog every single movement of an individual’s car for a very long period of time.” Jones at 945.

Thereafter, in Riley v. California, ___ U.S. ___, 134 S. Ct. 2473 (2014), the Supreme Court following Jones, specifically references location privacy as a reason to limit police searches of cellular telephones incident to arrest.  The Riley Court determines that due to the wealth of information electronic devices “contain and all they may reveal, they hold for many Americans the privacies of life.” Riley at 2494–95.

Riley even states, “The fact that an arrestee has diminished privacy interests does not mean that the Fourth Amendment falls out of the picture entirely. Not every search “is acceptable solely because a person is in custody.” Maryland v. King, 569 U. S. ___, ___ (2013) (slip op., at 26). To the contrary, when “privacy-related concerns are weighty enough” a “search may require a warrant, notwithstanding the diminished expectations of privacy of the arrestee.” Ibid. One such example, of course, is Chimel. Chimel refused to “characteriz[e] the invasion of privacy that results from a top-to-bottom search of a man’s house as ‘minor.’” 395 U. S., at 766–767, n. 12. Because a search of the arrestee’s entire house was a substantial invasion beyond the arrest itself, the Court concluded that a warrant was required.” Riley, supra.  Cellular telephones and home computers are simultaneously offices and personal diaries containing the most intimate details of our lives. United States v. Cotterman, 709 F. 3d. 952, 964 (9th Cir.. 2013).  Several circuits recognize these facts, uniformly requiring a warrant prior to searching a computer. United States v. Paton, 573F.3-D 859 (9th Cir. 2009); United States v. Andrus, 483 F.3d 711, 718 (10th Cir. 2007).

The Eastern District of Pennsylvania addresses surveillance issues of GPS warrants in United States v. Ortiz, 878 F. Supp. 2d. 515 (E.D.Pa. 2012). In the Court’s discussion of location data and the privacy issues, it concludes that the Government’s warrantless surveillance technique “produces location data while inside the garage of a home or other Fourth Amendment protected place”, potentially yielding information that the Supreme Court specifically found in United States v. Karo, 468 U.S. 705 (1984), is protected by the Fourth Amendment.

An unreasonable search within the meaning of the Fourth Amendment occurs where, without a warrant, the Government surreptitiously employs an electronic device to obtain information it could not have obtained by observation from outside the curtilage of the house. The beeper tells the agent that a particular article is actually    located at a specific time in the private residence and is in the possession of the person or persons whose residence is being watched.  Even if visual surveillance has revealed that the article to which the beeper is attached  has entered the house, the later monitoring not only verifies the officers about observations but also establishes that the article remains on the premises. United States v. Karo 468 US at 715.

Ortiz at ___.

Review of these controlling Supreme Court cases and their emphasis on the data produced through cutting edge surveillance techniques (including an NIT) on electronic mediums (cellular telephones and home computers) render’s applicable the Fourth Amendment privacy protections afforded to Jones, Jardines, and Riley.

  1. Expectation of Privacy in an IP address

An expectation of privacy in location data that IP addresses reveal is both objectively and subjectively reasonable based upon people using the TOR network and how the Government secures those person’s IP address.  The Government typically argues that because these defendants may have initially disseminated their IP address through an internet service provider (“ISP”), they have no expectation of privacy in an IP address.  This is factually wrong.

  1. Third Party Doctrine

The case of Smith v. Maryland, 442 U.S. 735 (1979), addresses warrantless access to information possessed by a third-party. This is the third-party doctrine set forth in United States v. Jones, 132 S. Ct. at 957.  Third party dissemination and reduced expectation of privacy has no applicability here because of the NIT’s mechanism of search and how Government secures that defendant’s IP address from his computer, not a third-party ISP. The court requires factual testimony on this issue.

United States v. Stanley, 753 F.3d 114 (3d. Cir. 2014), specifically addresses the no expectation of privacy of IP addresses when a defendant uses his neighbor’s wireless router without permission. The Government found Stanley’s computer’s wireless signal piggy backing illegally on his neighbor’s unsecured wireless router. Such unauthorized use of the neighbor’s IP address through which a third-party provider secures individual media access control (“MAC”) addresses of moochers of other people’s wireless routers. The Court found this fact alone reveals that Stanley had no expectation of privacy in his IP or MAC address. Stanley‘s finding that there is not an expectation of privacy in an IP address is not binding here as such is not the basis of the Government’s investigation in this case.

These defendants’ IP addresses are not disclosed anywhere throughout the use of the TOR or his third party ISP.  Declaration, Special Agent Daniel Alfin, document no. 74-1, filed June 1, 2016, U.S. v. Matish, 4:16-cr-00016, attached hereto at Exhibit 3.  This declaration makes clear that the NIT did not secure any other defendant’s, IP address from a third-party ISP or through the TOR network. Rather, the NIT searched for and secured the accessor’s IP address SOLELY from their own computer programming.

The NIT transferred directly to the Government from that defendant’s computer, his IP address not through the ISP.  The Government must acknowledge this fact in response to court’s inquiry of how the NIT worked in Matish. The Government bluntly concedes that but for the IP address, it could not locate these defendants.  These IP address would have been unknown.  The accessing defendants’ personal location data is collected from the accessing computer. See Exhibit 3, Alfins’ declaration, ¶¶ 22 and 25; Exhibit 2, Alfin’s May 19, 2016 Testimony, page 13-17, 21–26.  Alfin makes clear this factual point.

Once put to the test in a Motion to Compel Discovery, Alfin’s testimony is in stark contrast to the NIT Affiant Special Agent Douglas Macfarlane’s affidavit stating that the NIT instructions “are designed to cause the user’s ‘activating’ computer to transmit certain information to a computer controlled by or known to the government,” including the “activating” computer’s actual IP address. See Affidavit in Support of Application for Search Warrant, at ¶ 33.   The NIT would deploy “each time that any user or administrator log[ged] into Playpen by entering a username and password.” (Id., Ex. 1 ¶ 36.) The FBI could then link a username and its corresponding activity on the site with an IP address. (Id., Ex. 1 ¶ 37.)  This is factually wrong when compared to Alfin’s declaration and testimony regarding how the NIT worked its search functions performed when an accessing computer logged onto the Playpen Website.

The Government was less than candid with the tribunal by not advising it that the NIT would send a computer search and seizure program to the user’s home computer and then send back to the FBI computer an IP address.  The FBI was not linking a username and corresponding activity to an IP address. Further, the record is unclear if the Government told  the Magistrate that it was concurrently filing a Title III warrant.  This would have disclosed both its strategic use of a magistrate to issue the NIT Warrant and its seizure gathering mechanism of electronic information for which it required Article III judicial authorization.

The NIT that accessed these defendants’ computers operates in the computer memory locations, retrieved information, and then leaves the computer. The same situation is presented when the Government comes into your house, searches your house, and then leaves. The Government is required to advise you of the search (giving you the search warrant) and then leaves you an inventory of items seized. None of that was done in this occasion.  Jones, Riley, Jardines affirm this constitutional requirement to which Rule 41(B) codifies into a procedure implementing the Fourth Amendment’s warrant provision.

As such, the question is not whether there’s a reasonable expectation of privacy in an Internet IP address (as Werdene concluded there was not), but does a person have a reasonable expectation of privacy in the area where the search (his home) occurred and in the information seized (his location).   Rakas v. Illinois, 439 U.S. 128 (1978). Darby and Matish conclude yes.  This court must choose the property-based Fourth Amendment analysis and afford these deendants the constitutional protections because the NIT searches a home-based computer.

Call me to discuss your NIT, Playpen based federal government internet criminal matter.

Participate In Your Professional License Defense

Occasionally my daily review of Commonwealth Court decisions discussing professional licensing board cases reveal remarkable decisions. This happened again this week. I came across a decision discussing a professional who chose to represent himself. Unfortunately, the individual had no comprehension the legal mess he was creating for himself by not employing an attorney.

Stubbornness and disgust towards the regulatory process of a licensing disciplinary action creates a blindness in unrepresented parties. These professionals almost always fail in their both legal obligations to comply with the professional licensing board procedures and hearing regulations while representing of themselves at these hearing. This weeks case is another example of this unfortunate circumstance.

Dr. Mohammed Ali Hammad received notice of an investigation and a request to inspect his medical office. The notice required Dr. Hammad to allow a Veterinarian Board professional conduct investigator to visit his office to conduct a visual inspection of medical records and office administration. Dr. Hammad refused unless he was given a copy of the formal complaint and the name of the patient who initiated the investigation. This is not permitted. All complaints are confidential in the investigatory stage. While the investigator may read the complaint, a formal copy of the complaint and the name of the complainant is not disclosed.

Each licensing scheme has similar investigatory authority requiring licensees to allow, without subpoena or formal court process, an inspection and copying of medical or other business records. Each professional board’s regulations have long established their authority to conduct investigations of their licensees through a board investigator. The investigator closed the file and notified the legal prosecution department of Dr. Hammad’s refusal to allow the office investigation consistent with the Veterinary Board rules and procedures.

The failure to comply with the basic investigation requests creates a separate cause for discipline distinct from the underlying basis of the investigation. Dr. Hammad’s refusal to allow the inspection or produce medical records escalated the cause of his eventual discipline. This case discusses the discipline against Dr. Hammad’s solely for this stupid refusal to comply with the investigation.

In a prior 2013 disciplinary petition for some insignificant issue Dr. Hammad did file an answer to the case, object to the delegation of the case to a hearing examiner, and request a formal board hearing. However, Dr. Hammad did not appear at the prior board hearing. The state proceeded with that prior discipline case without him. There the hearing examiner proposed order and adjudication found Dr. Hammad violated Veterinary Board rules. That proposed adjudication immediately suspended Dr. Hammad’s Veterinary license. The board excepted the proposed adjudication, entered a final order, to which Dr. Hammond did not appeal.

Dr. Hammond nonetheless continued to practice veterinary medicine. This case then arose when an investigatory contacted him to conduct an office visit. Here, he was specifically cited for not allowing the inspection and for failing to honor the prior Veterinary Board order. Having failed to go to the hearing again, the discipline this time was not suspending, but revoking Dr. Hammad’s license to practice veterinary medicine and ordering him to pay a $20,000 civil penalty. This time the doctor appealed to the Commonwealth Court.

The appeals court had no patience for the doctor’s argument. Claims of due process violation’s fell on deaf years. The court cites long-standing procedures that notice of hearing prior to imposition of sanctions is the sole procedural due process required. Finding that Dr. Hammad received notice and “failed to appear to engage in the process he was due does not amount to an error in the process or to a violation of his rights. ”

Dr. Hammad’s objections to Veterinary Board process and authority to discipline are also summarily swept aside. Suggesting the Board did not have authority to fine him for wasting it’s time and investigatory expenses are quickly dispensed. The board did have pity on him and reduce the civil fine from $20,000 to $15,000. Nonetheless the appeals court strenuously affirms each and every licensing board’s authority to investigate, seek licensee compliance, and enforce their rules of discipline on their licensees.

This case is another example of how important it is to have an attorney at the inception of every single professional license investigation or disciplinary matter. Timely responding to petitions and requests for hearings are not enough. Licensees do not know the administrative rules and procedural safeguards to ensure protection of their professional license and therefore their livelihood. Difficult financial times do not give rise to wholesale abandonment of one’s license. Giving up should never be the ultimate decision in any case.

Pennsylvania Drug Act Convictions and Collateral Consequent Automatic Suspensions

The complexities of representing licensed professionals in criminal matters always surprises me even though I have handled complex federal and state criminal matters for over twenty years. To effectively represent the licensed practitioner in a criminal case counsel must fully understand the collateral consequences of a criminal conviction under the Pennsylvania Drug Act, 35 P.S. § 780–113 (a). Two provisions of the Drug Act, 35 P.S. §§ 780–123 (b) &(c), are especially important to licensed professionals.

The Drug Act § 113(a) lists thirty six illegal actions involving drugs, prescriptions, record keeping, and other pharmaceutical issues. Section 780- 113(b) identifies which of those thirty six offenses are either felonies or misdemeanors and their respective jail penalties. Drug Act sections 780-123(b)&(c) identify a separate penalty solely targeting the licensed practitioner who is convicted of, or pleads guilty to, either a misdemeanor or felony offense set forth in 35 P.S. § 780-113(a).

When representing the licensed practitioner, 35 P.S. § 780-123(b) & (c) dictates the priority of negotiating a guilty plea to a non-Drug Act offense. An initial goal is to avoid any Drug Act criminal charge and/or conviction. A secondary goal on cases involving drugs is to secure misdemeanor graded Drug Act violations over felonies.

The importance of Drug Act convictions is set forth in § 780–123(a), (b)&(c). Subsections (a) and (b) authorize the practitioner’s licensing board to revoke or suspend the practitioner’s license upon a conviction of any criminal offense, with reasonable notice and an opportunity to be heard. The disciplinary process commences with a Rule to Show Cause and hearings scheduled in the future. The practitioner’s licenses remains active and unimpaired during these proceedings.

Under § 780-123(c), the licensing board shall, upon petition, automatically suspend the professional’s license. This occurs without notice to the practitioner and allows only for a penalty/ mitigation hearing. The automatic suspension penalty is not to exceed one year for the practitioner who pleads guilty, nolo contendere, or has been convicted of a misdemeanor under the Drug Act.

Subsection 780-123(c), was established to allow for automatic suspension of the practitioner who pleads guilty to possessing a controlled substance or paraphernalia. The person is a drug user whom the legislature does not want practicing their profession in a drug impaired manner. This is a simple understanding of the Drug Act’s purpose. The automatic suspension may be stopped only if the Drug Act conviction is for personal use of a controlled substance and the practitioner agrees to participate for 3-5 years in the PHMP impaired professional program. If the impaired professional does not comply in all respects with the PHMP program, the stay of any suspension under section subsection 35 P.S. §780-123(c) will be vacated.

What most attorneys do not understand is that §780-123(c) also applies to the practitioner convicted of any type of record keeping mistake, patient charting errors, or failure to conform to a standard of practice that is charged as a violation of the Drug Act. This is the kicker. If there is a guilty plea to any of the enumerated, but less known subsections of 780–113(a) — for example – (a)21 refusing to make entries in a medical record as required or – (a)28 providing false or incorrect or omitting any material information on a medical report, the practitioner’s Board shall automatically suspend, but not revoke, a practitioner’s license for up to one year for each count of each guilty plea. This action is the same even though no drug use, theft, diversion, and/or impairment is alleged, charged, or upon which a conviction is secured.

Under the §780-123(c) suspension process, the practitioner will not be afforded a due process hearing prior to the Board action suspending the license. The practitioner will be given notice of the suspension and then must petition for a hearing on the appropriateness of the already determined discipline. During this time, the practitioner must not practice their licensed profession.

The practitioner should file a petition to lift the automatic stay, setting forth the basis that the automatic suspension provisions of 35 P.S. §780–123(c) are not applicable. The practitioner must also ask for an expedited mitigation hearing. Here, the practitioner stipulates to the criminal conviction and the application of the automatic suspension under the Drug Act. Then, the practitioner must, through able counsel, put into the record extensive character and employment history evidence and explain the criminal offense. The practitioner must effectively argue why the Board’s exercise of its discretion and its term of automatic suspension, typically the maximum allowed, is abusive and not appropriate.

Case law requires the licensing board explain a decision of a maximum discipline. Typically this is hard for the Board to do and requires a modification of the trigger finger, snap maximum suspension decision. When the Drug Act conviction does not involve any personal use of narcotics and there is no evidence of a drug or alcohol addiction causing an impairment (see my other blogs about the PHMP), compelling reasons to reduce a maximum suspension are always present. This is when practitioners need competent legal counsel that is uniquely aware of the inter-relationship between Drug Act convictions and licensing boards’ administrative cases.

A recent case in which I became involved, after conviction, presents an extreme example of a criminal defense attorney who incorrectly advised a practitioner to plead guilty to misdemeanor Drug Act violations that involved record keeping and medical charting issues. Apparently, counsel also was unaware of the legal burdens and complexities of a criminal charting error or medical record forgery prosecution, which is typically what these secondary Drug Act misdemeanor cases are, counsel negotiated misdemeanor guilty pleas. Unfortunately, the attorney did not know and did not advise the practitioner that her guilty pleas would result in three consecutive automatic license suspensions.

Due to the snail’s pace of licensing disciplinary process, it took two years after the guilty pleas for the Board to commence the disciplinary process and automatically suspend the license. Due to this delay in time, the practitioner could not seek to withdraw her guilty plea due to ineffective counsel. Counsel and client were apparently scared by charged but specious felony forgery offenses. The attorney must have thought he/she did a great job by securing guilty plea offers to misdemeanors with probation.

However, my experience handling these types of pre-criminal charge investigations is that extensive meetings with state board investigators and Bureau of Narcotics Enforcement officers typically eliminate the filing of criminal charges. This avoids any licensing matter. Usually, charting errors and PYXIS drug dispensing mistakes are not criminal offenses. Counsel was unaware of this, never secured these meetings, and thought they won the case with probation and misdemeanors. WRONG!!! The entire case was handled incorrectly, all to the practitioner’s detriment and license loss.

Attorneys who dabbled in criminal law and do not handle administrative licensing matters, will unknowingly commit malpractice in advising a practitioner to plead guilty to misdemeanor Drug Act violations for probation. In many cases, the Commonwealth cannot prove criminal intent. These cases should not be brought and experienced counsel should fight them. An attorney who is unaware of the automatic license suspension provision of the Drug Act should not represent any licensed practitioner. Unfortunately this case is another example of why competent and capable counsel is necessary to handle both criminal and civil legal matters for licensed practitioners who become entangled in the criminal process. Please call or email to discuss your case.

Practice and Non-Practice Related Unethical Conduct

A fertile area of Commonwealth of Pennsylvania professional license prosecutions are those stemming from licensees convicted of unethical criminal conduct. Disciplinary action originates from several types of criminal conduct. The first realm is crimes of moral turpitude – theft offenses –  involving or not a professional license. The second area focuses on crimes that involve the drug act and medical fraud.  The third strand of cases  involves general criminal behavior – DUI’s — not related to the practice of the license.  The final area is general unethical criminal conduct related or not to the practice of one’s license.

The recent decision of Kirkpatrick v. The Bureau Of Professional And Occupational Affairs focuses on a criminal conviction of a sex offense not involving the license.  The prosecutor sought disciplinary action alleging the criminal conviction based upon a no contest plea to a misdemeanor sex offense violated the ethics clause of the Barber’s regulatory scheme.  No argument was made that this was a crime of moral turpitude!

Kirkpatrick was prosecuted by the State Board of Barber Examiners. The ethics clause in that scheme is slightly different than those in Pennsylvania’s twenty six other disciplinary schemes. The Barber rules state that the Board may “suspend or revoke a license if a person engages in unethical or dishonest practice or conduct, or violate any of the provisions of this act, or any rules or regulations of the board.” This limits an ethics based disciplinary action to only license related conduct.

Kirkatrick plead no contest to one misdemeanor count of indecent assault – not work related.  Procedurally, at the Board hearing the prosecution moved the no contest plea into the record, no facts thereof, and rested its case. Kirkpatrick testified as to his compliance with the probation and presented legal argument maintaining that the no contest plea was not sufficient evidence for the Board to rely upon to support a finding that he engaged in unethical conduct while practicing.

Unique to this case is that the prosecution sought discipline solely based upon the unethical conduct clause of the Board regulations. As such, the prosecutors had to prove that the ethical conduct, the criminal conviction, was related to the practice as a barber. The Commonwealth did not present any independent evidence of Kirkpatrick’s criminal conduct. As is typical, the prosecutor simply moved in the certified criminal record from the county court.

In reviewing the evidence and the case law, the hearing officer concluded the Commonwealth did not meet its burden of proof that Kirkpatrick engaged in unethical conduct relating to the practice of his license and therefore dismissed the prosecution. Timely briefs were filed and the State Board of Barber Examiners rejected the hearing officer’s proposed adjudication. Rather, the Board found that the elements of the offense to which respondent plead no contest sufficiently met the ethics clause in its regulatory scheme and revoked his license.

On appeal to the Commonwealth Court respondent claimed the Board committed an error of law. This allowed the Commonwealth Court to engage in a de novo or complete, review of the record rather than being deferential to the professional board’s imposed discipline. This significant legal strategy changed the way the Commonwealth Court was allowed to review the of Barber Board’s decision. This legal maneuver stripped the Board of its deferential decision making process. Claiming an error of law opened the legal door for the Commonwealth Court to review and interpret the statute itself rather than defer to the Board’s interpretation.

In so doing, the appellate court found that the regulatory scheme allowing discipline for unethical conduct only applied to those acts engaged in while utilizing the license. The Court rejected the prosecution’s expensive interpretation of any unethical conduct not related to the use of one’s license. It was nice to see the court objectively evaluating the statutory scheme and reigning in broad prosecutorial interpretations of its ability to discipline a licensee.

Significantly, the Barber licensing scheme is different from that of CPAs, dentists, podiatrists, nurses, and doctors, that allow for discipline based upon a conviction, plea, or some finding of guilt for unethical conduct not practice related. The appellate court reviewed each of these licensing board’s statutory provisions that authorize suspension or revocation based upon a conviction of, or guilty or no contest plea to, a particular type crime. The Court found the Barber statute did not include the same disciplinary action for non-practice conduct.

Finally, the board took to task the Barber Board’s expansive interpretation of its disciplinary authority under its regulatory scheme absent legislative guidance of specific or established standards set forth in its regulatory provisions. The court noted that the Barber Act did not set forth specific conduct or standards, found in other statutes, that could constitute the basis for discipline under the unethical or dishonest practice or conduct clause of its Act.  The court worried about the Barber Board’s expansive interpretation of its ability to exercise its discretion without legislative guidance. The court concluded that absent clear legislative instruction similar to other regulatory disciplinary schemes, the Barber Board’s power grab was improper because the legislature could not have intended to grant it such unlimited discretion in imposing discipline for any non-practice related conduct.

Call me discuss your disciplinary case.

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