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Garner v. Bureau of Prof'l & Occupational Affairs

Commonwealth Court of Pennsylvania

July 30, 2014

Dr. J.C. Garner, O.D., Petitioner
v.
Bureau of Professional and Occupational Affairs, State Board of Optometry, Respondent

Submitted June 27, 2014.

Appealed from No. 1017-52-12. State Agency: Bureau of Professional and Occupational Affairs.

Ronald L. Clever, Allentown, for Petitioner.

Sabina I. Howell, Assistant Counsel, Harrisburg, for Respondent.

BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE ANNE E. COVEY, Judge. OPINION BY JUDGE COVEY.

OPINION

Page 438

COVEY, JUDGE.

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) 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,

Page 439

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]

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, 135 Pa.Cmwlth. 62, 578 A.2d 1355, 1357 (Pa. Cmwlth. 1990). In Moretti v. State Board of Pharmacy, 2 Pa.Cmwlth. 121, 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

Page 440

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 the details of the behavior underlying the crime." [7]Startzel v. Dep't of Educ., 128 Pa.Cmwlth. 110, 562 A.2d ...


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