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.
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)).
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