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May 20, 1997
New Castle County - Civil Division
Senator Patricia M. Blevins
209 Linden Avenue
Elsmere
Wilmington, DE 19805
Representative Stephanie A. Ulbrich
1018 Summit View Drive
Newark, DE 19713
RE: Effect of Pending Criminal Charges
On the Licensing of Veterinarians
Dear Senator Blevins and Representative Ulbrich:
At the Sunset Committee hearing for the Board of Veterinary
Practice ("Board") on March 10, 1997, the Board inquired whether
legislation was necessary to authorize it to deny a license to a
veterinarian from another state who has any pending criminal
charge. At your request as Co-Chairs of the Sunset Committee, the
Attorney General's Office submits this opinion.
QUESTIONS PRESENTED
1. Can a person be denied a professional license on the ground that there is a pending criminal charge against that person at the time of application for licensure?
2. Does a licensing board have authority to withhold the issuance of a license while a criminal charge is pending, and then grant or deny the license depending on the disposition of the criminal charge?
3. Can a licensing board suspend or revoke a license on the basis of a pending criminal charge that has not resulted in a conviction?
Conclusion
Based on the foregoing legal authorities, we conclude that the
Board can deny an application for a license if it determines that
a criminal indictment against the applicant shows lack of good
moral character necessary for the safe practice of veterinary
medicine. If a license has already been issued, the Board can
temporarily suspend the privilege of practicing veterinary
medicine in order to protect the public safety, but the licensee
has a right to a prompt post-suspension hearing. If the licensee
is ultimately convicted of a felony or other public offense
involving moral turpitude, then the Board has statutory authority
to suspend or revoke a license for that reason.
SUMMARY OF OPINION
The Board's enabling statute authorizes it to deny a license if
the applicant does not demonstrate good moral character. A
pending criminal charge can reflect on moral character. If the
pending criminal charge does not have any bearing on the
applicant's fitness to practice veterinary medicine, then denial
could violate the applicant's substantive due process right to
practice his or her profession.
The Board of Veterinary Medicine does not have authority to
withhold issuance of a license pending the outcome of a criminal
charge. If an applicant insists on a decision one way or the
other, the Board must decide on the merits without delay. The
applicant, however, may agree to voluntarily withdraw the
application or ask the Board to withhold its decision until the
criminal charge is resolved.
The Board has the inherent authority to temporarily suspend the
license of a veterinarian who has been criminally charged for
conduct that could threaten the public safety. Due process
requires the Board to provide a prompt post-suspension hearing,
but the Board does not have to stay its administrative proceeding
pending the outcome of the criminal case. Granting a licensee's
request for a stay may be appropriate, in the Board's discretion,
to ensure fundamental fairness.
1. A State May Condition The Grant
Or Denial Of A Professional License
On Any Ground Reasonably Related
To The Practice Of That Profession.
Section 3308(a) of Title 24 of the Delaware Code provides: "Any
person desiring a license to practice veterinary medicine in this
State shall make written application to the Board. The
application shall show that the applicant is a citizen of the
United States or an applicant for citizenship, a graduate of a
veterinary school, a person of good moral character, and such
other information and proof as the Board may from time to time
require by rule." Section 3309 further provides that "if a
disciplinary proceeding or unresolved complaint is pending"
before a licensing body in another state, "the applicant shall
not be licensed until the proceeding or complaint has been
resolved."
If the Board finds that an applicant is not qualified, it "shall
immediately notify the applicant in writing of such finding and
the grounds therefor. An applicant found unqualified may require
a hearing on the question of his qualification . . . ." 24 Del.
C. Section 3308(b). Section 3314 provides that "in the case of a
person whose application for a license is denied," such hearing
shall be held within ten days "after receipt by the Board of a
written request for a hearing."
The Board does not have authority to create substantive
qualifications for license applicants in addition to those set
forth in Section 3308(a). See Kramer v. State Board of Veterinary
Medical Examiners, La. App., 55 So.2d 93, 94 (1951) ("nowhere in
the act does the Legislature grant unto the Board the authority
to prescribe" the "qualifications to be met by applicants prior
to their application for the examination"). The statute
authorizes the Board by rule to specify only the "information and
proof" necessary to meet the statutory requirements for
licensure.
Three of the statutory conditions for a license (citizenship,
required school degree, disciplinary proceedings in another
state) are objective. The third condition -- "good moral
character" -- is subjective giving the Board discretionary
authority to determine whether an applicant meets that condition.
"[A] person's right to engage in any lawful occupation is
subservient to the legitimate right and duty of the state to
protect the health, safety, and welfare of its citizens through
the valid exercise of its police power. All occupational
licensing emanates from this authority. For the greater good of
the public at large, a state, under its police power, is free to
place certain restrictions upon those who wish to enter or
practice a particular occupation." Linkus v. Maryland State Board
of Heating,Ventilation, Air-Conditioning & Refrigeration
Contractors, Md. Spec. App., 1997 WL 96599, at p. 4 (Feb. 28,
1997) (citation omitted).
A statutory requirement of "good moral character" is common in
state business, professional, and occupational license schemes.
"Generally, the Legislature has authorized particular boards,
after considering the factors enumerated in the relevant
empowering statute, to exercise discretion and consider the
general character of the applicant." Linkus, 1997 WL 96599, at p.
11. For example, a licensing board can "consider prior criminal
convictions as evidence of moral character . . . ." Id. See
Yirenkyi v. District of Columbia Hackers' License Appeal Board,
D.C. App., 520 A.2d 328, 331 (1987) (whatever the term "good
moral character" may mean in other contexts, "it surely excludes
from consideration for a license any person, such as petitioner,
who has been twice convicted of an offense [carrying a pistol
without a license] against the public safety").
"The broad authority of the state to place restrictions upon
those who wish to pursue an occupation is not without limitation,
however. In order to prevent arbitrary and capricious use of this
power, due process and equal protection require that any
regulation of a business must bear a reasonable and rational
relationship to the state's objective." Linkus, 1997 WL 96599, at
p. 4.
In Schware v. Board of Bar Examiners of the State of New Mexico,
353 U.S. 232 (1957), the United States Supreme Court held that a
state cannot exclude a person from any "occupation in a manner or
for reasons that contravene the Due Process Clause or the Equal
Protection Clause of the Fourteenth Amendment." 353 U.S. at 238.
In Schware, the applicant for the state bar was fully qualified
to take the written examination, but was denied the opportunity
because of several previous arrests for civil disobedience, none
of which resulted in a conviction. The Supreme Court held that
denial on that ground violated substantive due process because it
was arbitrary. "The mere fact that a man has been arrested has
very little, if any, probative value in showing that he has
engaged in any misconduct. An arrest shows nothing more than that
someone probably suspected the person apprehended of an offense."
353 U.S. at 241 (footnote omitted). "Arrest, by itself, is not
considered competent evidence either at a criminal or civil trial
to prove that a person did certain prohibited acts." 353 U.S. at
241 n.6 (citing Wigmore on Evidence Section 980a).
In contrast, in Emery v. City of New Orleans, La. App., 473 So.2d
877 (1985), the state court upheld the city's denial of a liquor
license to an applicant who had "several recent arrests and
pending charges for possession of narcotics and stolen property."
473 So.2d at 878. The court found that the nature of those
charges had "a real and substantial relationship to promotion of
orderly and legal distribution of intoxicating beverages. . . .
The requirement of good character and reputation for alcoholic
beverage outlet managers is reasonable and not arbitrary, and we
defer to the municipality's broad discretion in setting the
standard and in determining whether it is met by an applicant who
has an arrest record." Id. at 880-81 (citation omitted).
In Schware, the applicant for the state bar examination was
arrested but "released without formal charges being filed against
him. He was never indicted nor convicted for any offense in
connection with these arrests." 353 U.S. at 241. In Emery, the
applicant for a liquor license had not only been arrested but
also charged with possession of narcotics and stolen property.
There is a qualitative difference between arrest and indictment
for purposes of denying a license. Although an indictment does
not have "evidentiary value," it is far "from being a mere
allegation," and "constitutes a finding by a grand jury that a
basis exists for subjecting the accused to a trial," with
"intermediate restraints upon his freedom . . . ." Trap Rock
Industries, Inc. v. Kohl, N.J. Supr., 284 A.2d 161, 169 (1971),
cert. denied, 405 U.S. 1065 (1972).
The court of appeals in Emery rejected the constitutional
challenge to the licensing statute's requirement of good moral
character as void for vagueness. "The required qualification of
good character and reputation provides an ascertainable standard.
'Good moral character' is a statutory prerequisite for countless
occupations, professions, and positions of civic responsibility.
The term is widely accepted and understood as a concise and
meaningful description of an attribute of a desirable citizen."
473 So.2d at 881. To require the legislature to define all
possible criteria for accepting or rejecting license applicants
"'would undoubtedly have ended in a cumbersome, wordy enactment
which could have added nothing to the inherent meaning of the
words themselves and might well have detracted from their
efficient and effective application.'" Id. (quoting United States
v. Mississippi, 229 F. Supp. 925 (S.D.. Miss. 1964)).(1)
Whether the Board can deny a license based on a criminal
indictment depends upon the nature of the charge. If the charge
has no bearing on the applicant's fitness to practice veterinary
medicine, then a reviewing court could find that denial of the
license application was arbitrary and capricious. Charges
involving a controlled substance would most likely relate to the
applicant's professional fitness (especially in a profession
where prescription privileges attach to the license); a pending
criminal charge for a traffic offense probably would not. See
Mules v. Maryland Racing Commission, Md. Spec. App., 353 A.2d 664
(1976).
Legislation expressly authorizing the Board to deny a license
based on a criminal indictment would diminish the chance of
successful judicial challenge to the denial of a license
application since the Board would not be exercising unfettered
discretion in determining that the indictment indicated bad moral
character. But even a legislative provision would have to bear
some rational relationship to the fitness to practice veterinary
medicine in the State of Delaware. "Numerous decisions have held
a statute can constitutionally bar a person from practicing a
lawful profession only for reasons relating to his fitness or
competence to practice that profession. . . . The authority to
deny . . . a professional license does not contemplate an
identical standard of probity should apply to the different
professionals with their different duties, responsibilities and
degree of contact with the public." Thorpe v. Board of Examiners
in Veterinary Medicine, Cal. App., 104 Cal.App.3d 111, 163
Cal.Rptr. 382, 384 (1980) (smuggling of controlled substance
directly related to fitness to practice veterinary medicine).
Thus, in Yirenkyi, the municipal ordinance only barred licensure
on the basis of indictment for certain crimes which might put the
public safety of passengers at risk, given that cab drivers
"pursue their employment without supervision and maintain direct
and personal contact with the general public." 520 A.2d at 331.
In the context of an application for a professional license, the
requirements of due process are at a minimum. "[A] protected
right in a professional license comes into existence only after a
license has been obtained. An applicant for a license has merely
an expectation of obtaining a property interest. Such an
expectation is not afforded the same protection under the
Fourteenth Amendment as is the property right itself." Walton v.
Board of Examiners of Psychologists, Del. Super., 1991 WL 35716,
at p. 4 (Feb. 21, 1991) (Barron, J.). Accordingly, there is no
constitutional due process right to a hearing when a state board
decides to deny an application for a license. By statute,
however, "in the case of a person whose application for a license
[to practice veterinary medicine] is denied," the applicant has a
right to a hearing within "10 days after receipt by the Board of
a written request for a hearing." 29 Del. C. Section 3314(a).
2. The Board Can Withhold The Issuance Of
A License Only So Long As It Is Examining
The Statutory Criteria For A License.
Section 3308(b) of Title 24 of the Delaware Code provides: "If
the Board determines that the applicant possesses the proper
qualifications, it shall admit the applicant to the next
examination, or, if the applicant is eligible for a license
without examination under Section 3310 of this title, the Board
may forthwith grant him a license." (Emphasis added.)
In Kelley v. Delaware Alcoholic Beverage Control Commission, Del.
Supr., 423 A.2d 507 (1980) (O'Hara, J.), the Alcoholic Beverage
Control Commission imposed a moratorium on new liquor licenses
because of a recent court decision calling into question the
legality of Delaware's licensing scheme. The Superior Court
granted a petition for writ of mandamus to compel the Commission
to act on a pending application. The powers of the Commission
were limited to those expressly given in Title 4 of the Delaware
Code, and "' cannot be extended beyond a strict construction
thereof, except with the approval of the General Assembly.'" 423
A.2d at 510 (quoting 59 Del. Laws c. 107, s. 68). The Commission
conceded that it did not have express authority not to rule on a
license application, but argued that such power was "implicit" in
its "broad grant" of licensing authority. Id. The Superior Court
rejected that argument. "[T]here is nothing in Title 4 expressly
indicating that the Commission has discretion to consider some
such applications but to refuse to consider or act on others."
In Stone and Edwards Insurance Agency, Inc. v. Department of
Insurance, Pa. Cmwlth., 636 A.2d 293, aff'd, Pa. Supr., 648 A.2d
304 (1994), the Pennsylvania Commonwealth Court also granted a
writ of mandamus to compel action on a license application. Under
the Pennsylvania statutory scheme, if the Insurance Department
"is satisfied as to the applicant's worthiness and all other
requirements are met, it must grant a license. Conversely, if it
is not satisfied that the applicant is worthy, the [Department]
will deny the application." 636 A.2d at 302 n.27. But once the
Department concluded its investigation of the applicants' alleged
violations of the state insurance laws, "there is no adequate
remedy for [the license applicants] other than mandamus because
the Department's refusal to take final action of the applications
precludes any appeal. The Insurance Department Act places a duty
on the Department to either grant or deny applications consistent
with its processing, and while the Department does have
discretion in the outcome of the determination, it does not have
the discretion to refuse to process Petitioners' applications."
636 A.2d at 304.
The Board's enabling statute (Title 24, Chapter 33) does not give
the Board authority to withhold the issuance of a license during
the pendency of a criminal charge, or for any other reason.
Indeed, the statute provides that if the statutory criteria are
met, the Board "shall" grant the application "forthwith." If
there is a pending criminal charge, then the Board can exercise
its discretion to deny the license application, but it must
decide one way or the other, if the applicant insists on his or
her right to a hearing. Of course, the applicant can ask the
Board to defer its decision until the outcome of the criminal
case, and thereby waive any right to seek a writ of mandamus.
Alternatively, the applicant may voluntarily elect, with the
Board's consent, to withdraw the application without prejudice
and with the ability to refile after the disposition of the
criminal charge.
3. The Board Cannot Suspend Or Revoke
A License Solely On The Basis Of A
Criminal Charge Unrelated To The
Practice Of Veterinary Medicine.
Title 24, Section 3313 of the Delaware Code sets forth fourteen
statutory grounds for suspending or revoking a veterinary
license, including: "(5) Conviction of a felony or other public
offense involving moral turpitude;" and "(14) Unprofessional
conduct as defined in regulations adopted by the Board." It is
our understanding that the Board has not adopted any regulations
defining "unprofessional conduct" for purposes of suspending or
revoking a license.
In State Board of Medical Examiners v. Weiner, N.J. App., 172
A.2d 661 (1961), the State Board of Medical Examiners temporarily
suspended a doctor's license to practice medicine pending the
outcome of a criminal indictment for manslaughter. Citing the
Supreme Court's decision in Schware, the New Jersey court
observed that "the right to follow one's chosen profession is a
fundamental element of citizenship and one cannot be prevented
from practicing except for valid reasons arrived at in orderly
and fair fashion." 172 A.2d at 675. "Implicit in the licensing
philosophy, of course, and expressly provided in such regulatory
legislation, is the power to revoke or suspend the license when
the behavior of the licensee is found to be inconsistent with
criteria which are stated with reasonable clarity and certainty
and are arguably reflective of the State's interest in
preservation of the public health and welfare." Id. The Board did
not have express statutory authority to suspend a license pending
criminal charges, but the Board had statutory authority to
suspend or revoke a license for conviction of a crime involving
morale turpitude. The Board argued, therefore, that it had
"'incidental authority' to do that which is 'fairly and
reasonably necessary or appropriate' to implementation of the
function expressly authorized by law." Id. at 676.
The court agreed in principle that "[s]uch a power may be implied
from the Board's overall suspension and revocation authority.
Among the considerations persuasive of such a view are the
ever-present need for immediate and preventative action" to
prevent the licensee from endangering "the public welfare prior
to or during the pendency of charges and prior to actual hearing
and disposition." Id. The court, however, held that this implied
power could not be invoked on the basis of a criminal charge
unrelated to the practice of medicine. Although the crime of
manslaughter was "a serious offense against the peace and
dignity" of the state, it had "no direct connection with the
physical capacity or professional methods of the practitioner in
a way that would warrant summary measures in order to shield the
public health." 172 A.2d at 678, 679.
"[W]ith respect to licenses to engage in a business or activity,
it is generally said to be implicit that a suspension may be
ordered pending investigation when the public interest so
requires." Trap Rock Industries, Inc. v. Kohl, N.J. Supr., 284
A.2d 161, 169 (1971), cert. denied, 405 U.S. 1065 (1972) (citing
K. Davis, Administrative Law Treatise Section 7.08, at pp.
438-444 (1958), 1970 Supp. Section 7.08, at pp. 331-33)). The
courts in other states have also held that a regulatory agency
can suspend a license to protect the public safety pending the
outcome of criminal proceedings, so long as the alleged criminal
conduct involved the fitness to hold a license. See, e.g., City
of Indianapolis v. Tabak, Ind. App., 441 N.E.2d 494 (1982)
(second-hand goods dealer's license temporarily suspended pending
criminal charges of receiving stolen property); Karanja v.
Perales, Supr. Ct., 535 N.Y.S.2d 892 (1988) (health care provider
may be suspended "when an accusatory instrument has been filed
which charges a felony related to medical care"). The state,
however, must offer the licensee "an opportunity to explain away
the criminal charges to obviate the temporary suspension." Trap
Rock, 284 A.2d at 171.
The Board of Veteterinary Medicine probably has the inherent
authority to temporarily suspend a license if the licensee is the
subject of a pending criminal charge that relates to his or her
fitness to practice veterinary medicine. Due process requires
that the licensee be given a prompt post-suspension hearing, and
the statute requires a hearing within ten days if the licensee
requests.
At that juncture, the Board must balance the need to protect the
public safety by a continued suspension until the criminal charge
is resolved, against the right of the accused to due process and
the right to earn a living. See Barry v. Barchi, 443 U.S. 55, 66
(1979). (once a temporary suspension has been imposed, the
licensee's "interest in a speedy resolution of the controversy
becomes paramount"). Continued suspension is not justified merely
on the basis of an outstanding indictment. Nor does the Board sit
to decide the merits of the criminal charge. Indeed, the Board
most likely will "know nothing at all about the [criminal] case,"
and "there stands between the licensee and conviction (and hence
final determination of the revocability of his license) a
presumption of innocence which must be overcome by evidence
demonstrating his guilt beyond a reasonable doubt." Weiner, 172
A.2d at 678. The purpose of a hearing is to allow the licensee an
opportunity to explain the criminal charges and to demonstrate
that continued temporary suspension is not necessary to protect
the public safety. Of course, if the licensee is ultimately
convicted of a felony or public offense involving moral
turpitude, then the Board will have statutory grounds to revoke
or suspend a license for a fixed period of time.
Where there are criminal proceedings pending, licensees have
argued that a parallel administrative proceeding will violate
their Fifth Amendment right against self-incrimination. The
United States Supreme Court has rejected that argument because
the licensee can still invoke his Fifth Amendment right not to
testify in the administrative proceeding. "It would stultify
enforcement of federal law to require a governmental agency such
as the [Food and Drug Administration] invariably to choose either
to forgo recommendation of a criminal prosecution once it seeks
civil relief, or to defer civil proceedings pending the ultimate
outcome of a criminal trial. United States v. Kordel, 397 U.S. 1,
11 (1970).
A licensee's Fifth Amendment rights, however, might be violated
if an agency's rules would compel the licensee's testimony or if
his "failure to testify will be held a ground for disbarment or
forfeiture of office." DeVita v. Sills, 422 F.2d 1172, 1177 (3d
Cir. 1979). But there is no constitutional infirmity if the
licensee "can, if he wants, assert the privilege in the
disciplinary proceeding. He has no constitutional right to be
relieved of the burden of that choice." 422 F.2d at 1180.
The courts in Delaware have followed Kordel and DeVita. The
constitutional right against self-incrimination is not violated
if a parallel civil proceeding goes forward at the same time as a
criminal proceeding, even though the defendant in a criminal case
may "be put to the difficult choice of having to assert the
privilege in a related civil case." Insurance Co. of North
America v. Steigler, Del. Super., 300 A.2d 16, 18 (1972) (O'Hara,
J.).
Although not a violation of the Fifth Amendment, an
administrative proceeding to suspend or revoke a license may
still violate due process and fundamental notions of fairness if
criminal charges are also pending against the licensee. In Silver
v. McCamey, 221 F.2d 873 (D.C. Cir. 1955), a licensed taxicab
operator was arrested and charged with two counts of rape. While
the criminal charges were still pending, the Board of Revocation
and Review of Hackers' Identification Licenses ordered him to
show cause why his license should not be revoked because he was
unfit to operate a public vehicle. The D.C. Circuit held that
"due process is not observed if an accused person is subjected,
without his consent, to an administrative hearing on a serious
criminal charge that is pending against him. His necessary
defense in the administrative hearing may disclose his evidence
long in advance of his criminal trial and prejudice his defense
in that trial." 221 F.2d at 874-75. But "nothing prevents the
Board, while a criminal charge is pending, from holding a hearing
and taking action on the question whether, because it is pending,
a license should be temporarily suspended [to protect the
public]." Since temporary suspension of a license does not
involve "a finding of guilt or a permanent loss of employment,
the hearing involved . . . need not require disclosure of
defenses to the criminal charge. Accordingly, temporary
suspension of a license, unlike revocation, pending a serious
criminal charge, need not be inconsistent with due process." Id.
at 875.
If the license hearing goes forward while the criminal charge is
still unresolved, the Board runs the risk of having its action
challenged on constitutional grounds. Although discretionary, the
Board should consider staying its proceeding until the criminal
case is over. "Undoubtedly there are cases in which a court in
the exercise of its discretion should stay . . . a civil action
pending the disposition of a criminal case." De Vita, 422 F.2d at
1181 (citing United States v. Kordel, supra).
In Moss v. State Personnel Commission, 1987 WL 16715 (Del. Supr.,
July 30, 1987) (Stiftel, Pres. J.), the State fired an employee
for conduct that also gave rise to criminal charges for rape. The
State Personnel Commission denied a request for a continuance of
an administrative hearing until after the criminal charges were
resolved. On appeal, the Superior Court held that the Commission
abused its discretion in denying the request for a continuance.
"[T]he fact that a criminal trial was in the offing is not
sufficient reason for a civil trial continuance even though there
could be some possible prejudice to plaintiff." 1987 WL 16715, at
p. 2. But since the criminal charges were scheduled for trial in
the near future, caution and fairness militated in favor of a
stay of the administrative action. This was particularly true
because the employee had already been terminated, and there was
no threat to the safety of other employees at the workplace.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
APPROVED:
_____________________
Michael J. Rich
State Solicitor
cc: The Honorable M. Jane Brady
Attorney General
Keith R. Brady, Esquire
Chief Deputy Attorney General
Elizabeth A. Bacon
Opinion Coordinator
1. The courts in other states have repeatedly upheld "standards
of 'good moral character' and 'professional or occupational
misconduct' against challenges of unconstitutional vagueness." In
the Matter of Hotel & Restaurant Employees & Bartenders Int'l
Union, N.J. App., 496 A.2d 1111, 1128 (1985). See, e.g., Monarski
v. Alexandrides, Supr. Ct., 362 N.Y.S.2d 976, 984 (1974) ("the
prerequisite of a licensee having 'good moral character' is not
unconstitutionally vague"); Broers v. Montana Dep't of Revenue,
Mont. Supr., 773 P.2d 320 (1989); Zemour, Inc. v. State Div. of
Beverage, Fla. App., 347 So.2d 1102 (1977)).