Opinion
No. 727 C.D. 2012
01-30-2013
Gary Michael Barbera, Petitioner v. Bureau of Professional and Occupational Affairs, State Board of Vehicle Manufacturers, Dealers and Salespersons, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Gary Michael Barbera (Petitioner) petitions this Court for review of an order of a hearing examiner (Examiner), who acted on behalf of the State Board of Vehicle Manufacturers, Dealers and Salespersons (Board). The Examiner suspended Petitioner's salesperson license for three years for violation of Section 19(4) of the Board of Vehicles Act (Act) and Section 9124(c)(1) of the Criminal History Record Information Act (CHRIA). For the reasons set forth below, we affirm.
Act of December 22, 1983, P.L. 306, as amended, 63 P.S. § 818.19(4). Section 19(4) of the Act provides:
In addition to any criminal or civil penalties otherwise provided in this act, the board shall have the power to formally reprimand, suspend or revoke any license or refuse to issue or renew any license of an applicant or licensee or a person required to be licensed under this act, if after due notice of and hearing, the person charged is found in violation of or fails to carry out the acts and procedures set forth in this act or is found guilty of committing or attempting to commit any of the acts set forth in section 23 or any of the following acts:(Emphasis added).
. . . .
(4) Being a vehicle dealer or salesperson, having within five years prior to the application for or issuance of a license or while his current license is in force pleaded guilty, entered a plea of nolo contendere or been found guilty in a court of competent jurisdiction in this or any other state or Federal jurisdiction of forgery, embezzlement, obtaining money under false pretenses, extortion, conspiracy to defraud, bribery, odometer tampering or any other crime involving moral turpitude.
18 Pa. C.S. § 9124(c)(1). Section 9124(c)(1) of CHRIA provides:
(c) State action authorized. --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:(Emphasis added).
(1) Where the applicant has been convicted of a felony.
On January 24, 2011, the Department of State (Department) filed with the Board an order to show cause (OSC), alleging that Petitioner was subject to discipline under Section 19(4) of the Act and Section 9124(c) of CHRIA as a consequence of his January 25, 2010 conviction by guilty plea. (Certified Record (C.R.), Item No. 1.) The OSC alleged that Petitioner had pleaded guilty to subscribing false tax returns, which is a felony involving moral turpitude. (Id.) By the OSC, the Department requested that the Board, inter alia, revoke or suspend Petitioner's salesperson license, impose civil penalties, and/or order him to pay for the costs of the investigation. (Id.) Because Petitioner had served as its immediate past chairperson, the Board recused itself from the matter and assigned the matter to a hearing examiner. (C.R., Item No. 3.) During the time period between the filing of the OSC and Petitioner's filing of the answer (several months later), Petitioner's license expired. In his answer to the OSC, Petitioner denied having a current vehicle salesperson license in the Commonwealth of Pennsylvania. (C.R., Item No. 8.) Ultimately, the Examiner conducted a hearing on March 9, 2012, at which neither the Department nor Petitioner offered any testimony. (C.R., Item No. 21; R.R. at 33a-46a.)
Following the hearing, the Examiner issued a final adjudication. In the final adjudication, she found:
1. [Petitioner] was originally issued a license to practice as a vehicle salesperson in the Commonwealth of Pennsylvania, license no. MV063150L, on May 31, 1983. [Record citations omitted.]
2. [Petitioner's] license is presently inactive.
3. At all relevant times, [Petitioner] held a license to practice as a vehicle salesperson in the Commonwealth of Pennsylvania. [Record citations omitted.]
4. [Petitioner's] last known address on file with the Board is . . . Philadelphia, PA 19152. [Record citations omitted.]
5. On or about January 25, 2010, [Petitioner] entered into a Guilty Plea Agreement in the matter United States of America v. Gary Barbera, Criminal No. 10-222, in the United States District Court for the Eastern District of Pennsylvania ("federal criminal matter"), in which [Petitioner] agreed to plead guilty to an indictment or information charging him with one count of Subscribing
False Tax Returns, in violation of 26 U.S.C. § 7206(1), arising from his making and subscribing false federal income tax return for the calendar years 2003 and 2004. [Record citations omitted.](C.R., Item No. 27 at 3-4.) Based on the above-listed findings, the Examiner determined that Petitioner violated Section 19(4) of the Act and Section 9124(c)(1) of CHRIA. Specifically, the Examiner concluded that Petitioner's conviction for subscribing false tax returns, a felony involving moral turpitude, constituted a violation of Section 19(4) of the Act, because the crime occurred while Petitioner's salesperson license was in effect. (Id. at 10-11.) Additionally, she concluded that, as a licensed salesperson who pled guilty to a felony, Petitioner violated Section 9124(c)(1) of CHRIA. (Id. at 11-12.) As a result of Petitioner's violation of the Act and CHRIA, the Examiner suspended Petitioner's salesperson license for three years and conditioned the reinstatement of the license on Petitioner's "proving that he is of good moral character, has been rehabilitated since his offense, and has successfully completed his probation in the federal criminal matter." (Id. at 12-14.)
6. On or about April 14, 2010, a Criminal Information was filed in the federal criminal matter, charging [Petitioner] with one count of Subscribing False Tax Returns, in violation of 26 U.S.C. § 7206(1). [Record citations omitted.]
7. On or about May 6, 2010, the Guilty Plea Agreement in the federal criminal matter was filed in the United States District Court for the Eastern District of Pennsylvania. [Record citations omitted.]
8. On or about November 5, 2010, the Judgment in a Criminal Case was filed in the federal criminal matter against [Petitioner], indicating that [Petitioner] had pled guilty to Count One of the Information, and sentencing [Petitioner] to three years [of] probation, with terms and conditions including home detention for 12 months, restitution of $119,744.55, a fine of $30,000, and a special assessment of $100. [Record citations omitted.]
9. [Petitioner's] conviction in the federal criminal matter is a felony. 26 U.S.C. § 7206.
10. [Petitioner] was served with OSC and all subsequent pleadings, orders and notices filed of record in this matter, attended the hearing with counsel, and filed a post-hearing brief. [Record citations omitted.]
Rejecting Petitioner's mootness argument, the Examiner concluded that because Petitioner retained a property interest in the salesperson license until it was revoked, his expired license was considered as a "current license [that] is in force" for purposes of meting out discipline under Section 19(4) of the Act. (Id. at 9-10.) Also, the Examiner reasoned that the objective of the Act was not to deprive the Board of the authority to discipline licensees who, intentionally or otherwise, allow their salesperson licenses to expire as a result of pleading guilty to a crime involving moral turpitude. (Id.) Otherwise, she reasoned, Petitioner's "license, though inactive, is susceptible to revival, in that he may reactivate that license at any time by paying the renewal fee and filing the appropriate documentation." (Id. at 8.) This appeal followed.
On appeal, Petitioner argues that the Examiner erred in suspending his salesperson license because, during the pendency of the administrative litigation, his salesperson license had expired. Specifically, Petitioner contends that, under Section 19(4) of the Act, the expiration of his salesperson license rendered the Department's action against him moot. As a result, because he had no active license, the Examiner lacked jurisdiction to suspend it. He contends that his expired license could not be considered an active license for purposes of disciplining him for a crime of moral turpitude and related conviction that occurred while his license was in effect.
This Court's review of the Board's order is limited to considering whether substantial evidence supports necessary findings of fact, whether the order is in accordance with existing law, and whether a licensee's constitutional rights were violated. Storch v. State Bd. of Vehicle Mfrs., Dealers and Salespersons, 751 A.2d 263 (Pa. Cmwlth. 2000); 2 Pa. C.S. § 704.
We begin our analysis by discussing the mootness doctrine. Under the mootness doctrine, courts lack jurisdiction if an actual case or controversy is not "extant at all stages of review." Pap's A.M. v. City of Erie, 571 Pa. 375, 389, 818 A.2d 591, 599 (2002). In Mistich v. Pennsylvania Board of Probation and Parole, 863 A.2d 116 (Pa. Cmwlth. 2004), we noted that the requirements for an actual case or controversy include:
(1) a legal controversy that is real and not hypothetical, (2) a legal controversy that affects an individual in a concrete manner so as to provide the factual predicate for a reasoned adjudication, and (3) a legal controversy with sufficiently adverse parties so as to sharpen the issues for judicial resolution.Mistich, 863 A.2d at 119. As our Supreme Court explained in Pap's A.M.:
The cases presenting mootness problems involve litigants who clearly had standing to sue at the outset of the litigation. The problems arise from events occurring after the lawsuit has gotten under way—changes in the facts or in the law—which allegedly deprive the litigants of the necessary stake in the outcome.Pap's A.M., 571 Pa. at 389, 818 A.2d at 599-600. It is well settled that the courts "do not render decisions in the abstract or offer purely advisory opinions." Pittsburgh Palisades Park, LLC v. Commonwealth, 585 Pa. 196, 203, 888 A.2d 655, 659 (2005). "Although we generally will not decide moot cases, exceptions are made when (1) the conduct complained of is capable of repetition yet evading review, or (2) [the matter] involves questions important to the public interest, or (3) [to do otherwise] will cause one party to suffer some detriment without the Court's decision." Philadelphia Pub. Sch. Notebook v. Sch. Dist. of Philadelphia, 49 A.3d 445, 448-49 (Pa. Cmwlth. 2012).
This Court has long held that owners of expired licenses possess a property interest in their expired licenses sufficient to subject the licensees to discipline under Section 19(4) of the Act because they could renew their licenses at any time "by simply paying the proper licensing fees." Nicoletti v. State Bd. of Vehicle Mfrs., Dealers and Salespersons, 706 A.2d 891, 893 (Pa. Cmwlth. 1998) (reasoning that "because [licensee] had acquired the right to sell and deal in automobiles, he maintained a property interest in his license such that the Board could revoke that right.") Consequently, the property interest in expired licenses survives until it is extinguished by revocation. Id. Indeed, even individuals whose licenses have been suspended have a property interest in them insofar as the licenses are capable of revival. Brown v. State Bd. of Pharmacy, 566 A.2d 913, 915 (Pa. Cmwlth. 1989).
Petitioner, however, argues that the Court should disregard the holding in Nicoletti. Petitioner contends that reliance on Nicoletti to conclude that the Board had authority to suspend Petitioner's license is misplaced. In Nicoletti, this Court held that the licensee had a property interest in his salesperson's license because he could have renewed his license at any time prior to the Board's action by simply paying the proper licensing fees. As a result of the continuing property interest in the license, the Court concluded that a controversy existed sufficient to confer jurisdiction on the Board to suspend the license. Petitioner essentially argues that the Court erred in Nicoletti when it failed to interpret former Section 10(4) of the Act (now Section 19(4) of the Act) as prohibiting the licensee from renewing his license as a result of a conviction. Petitioner argues that had the Court considered Section 10(4) of the Act, it would not have concluded that Petitioner could have renewed his expired license simply by paying a renewal fee. Petitioner further argues that if the licensee in Nicoletti did not have an ability to renew the expired license, then he would not have a property interest in the license, and the Board would lack jurisdiction to impose discipline in connection with the license. Petitioner, therefore, urges the Court to consider the matter now before it without reliance on Nicoletti, because Nicoletti may have been decided without consideration of the applicability of former Section 10(4).
The former Section 10(4) of the Act, 63 P.S. § 818.10(4), relating to grounds for disciplinary proceedings, provided:
The board shall have the power to formally reprimand, suspend or revoke any license or refuse to issue or renew any license of an applicant or licensee or a person required to be licensed under this act, if after due notice of and hearing, the person charged is found in violation of or fails to carry out the acts and procedures set forth in this act or is found guilty of committing or attempting to commit any of the acts set forth in section 23 or any of the following acts:
(Emphasis added.) The former Section 10(4) of the Act was renumbered as Section 19(4) by the Act of April 19, 1996, P.L. 104, as amended.. . . .
(4) Being a vehicle dealer, broker or salesperson, having within three years prior to the application for or issuance of a license or while his current license is in force pleaded guilty, entered a plea of nolo contendere or been found guilty in a court of competent jurisdiction in this or any other state or Federal jurisdiction of forgery, embezzlement, obtaining money under false pretenses, extortion, conspiracy to defraud, bribery, odometer tampering or any other crime involving moral turpitude.
Here, Petitioner asserts that he cannot simply renew his license by paying a restoration fee until the conclusion of the five-year period following his conviction, because Section 19(4) of the Act (which is similar to former Section 10(4) of the Act) prohibits him from renewing his expired license if he was convicted of a crime involving moral turpitude within the last five years. For this reason, Petitioner contends that the Board was without statutory authority to suspend his license.
Incidentally, Petitioner notes that while he received a three-year license suspension, which would conclude on March 20, 2015, the five-year look-back period for purposes of Section 19(4) would not expire until November 5, 2015.
The Board, however, disagrees with Petitioner's interpretation of Section 19(4) of the Act. It argues that the look-back provision of Section 19(4), which looks back "within five years prior to the application for or issuance of a license," pertains to an initial application for licensure and authorizes the Board to refuse to issue a license if the applicant was convicted within the five-year look-back period. The Board asserts that because Petitioner was already licensed at the time of his conviction, the look-back period is not applicable and does not prohibit Petitioner from renewing his license.
We note that the purpose of the renewal requirement of professional licenses neither serves as a statute of limitations nor requires the licensing agency to make a periodic determination of the licensee's qualifications. Gangewere v. Pa. State Architects Licensure Bd., 512 A.2d 1301, 1306 (Pa. Cmwlth. 1986). Moreover, pursuant to Section 6 of the Act, a licensee is required to renew his license biennially by paying a renewal fee and to be "employed with a dealer, manufacturer or distributor which has a current license." Thus, given the provisions of Section 6 and because the process of license renewal does not involve a determination of qualifications, the Court agrees with the general principle set forth in Nicoletti that an individual has a property interest in an expired license, because he may renew the license by merely paying a renewal fee.
63 P.S. § 818.6. --------
As to Section 19(4) of the Act, while we agree with the Board that the five-year look-back provision relates to the "five years prior to the application for or issuance of a license," we disagree with the Board's suggestion that Section 19(4) is inapplicable to situations involving a license renewal. Section 19(4) of the Act is broadly written and gives the Board flexibility to react to a variety of situations, including license renewals. Specifically, Section 19(4) authorizes the Board to "formally reprimand, suspend or revoke any license or refuse to issue or renew any license . . . , if after due notice of a hearing, the person charged . . . is found guilty of committing" a crime involving moral turpitude "while his current license is in force." Section 19(4) of the Act (emphasis added). Thus, Section 19(4) of the Act authorizes the Board to suspend Petitioner's license or refuse to renew his license if it determines, "after due notice of a hearing," that Petitioner committed a crime involving moral turpitude when his license was in force.
But we also disagree with Petitioner that Section 19(4) of the Act prohibits him from renewing his license. To the contrary, Section 19(4) neither prohibits license renewal, nor requires that a license renewal automatically be denied. Rather, Section 19(4) requires the Board to take action, through notice of a hearing, in order to deny a license renewal or impose other discipline. Put another way, Section 19(4) merely identifies behavior that may result in discipline and authorizes the Board to initiate disciplinary proceedings under a variety of circumstances. Section 19(4) does not mandate that the Board take action, and it does not dictate what action, if any, the Board must take. We reject, therefore, Petitioner's argument that Section 19(4) prohibits him from renewing his license.
We reiterate that prior to the Board taking action and actually prevailing, a licensee has a property interest in an existing license or an expired license, which provides the Board with jurisdiction to act. To hold otherwise would allow a licensee to avoid disciplinary action by the Board for a criminal conviction that occurred while his license was active, by simply allowing his license to expire prior to and in anticipation of a disciplinary proceeding.
For the reasons discussed above, we must conclude that Petitioner had a property interest in the expired salesperson license. Indeed, as the Examiner noted, Petitioner could have reactivated his salesperson license "by paying the renewal fee and filing the appropriate documentation." (C.R., Item No. 27 at 8.) Because Petitioner could have renewed his expired license, we conclude that his unrenewed salesperson license was current and in force for purposes of Section 19(4) of the Act. The Examiner, acting on behalf of the Board, therefore, had the authority to suspend Petitioner's salesperson license. Thus, this matter was not moot, because it presented a legal controversy that was real and extant at all stages of review.
Accordingly, we affirm the Examiner's final order.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 30th day of January, 2013, the order of the hearing examiner, acting on behalf of the State Board of Vehicle Manufacturers, Dealers and Salespersons, is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge