Wednesday, September 14, 2016

professional licenses - suspension/revocation - strict construction of statute

McGrath v. Bureau of Professional and Occup. Affairs – Cmwlth. Court – August 24, 2016


BPOA intepretation of statute to requir 10-year suspension of nursing license overturned, because BPOA failed to follow statutory construction law requiring ambiguities in penal statutes must be strictly construed against the government, Section 1928(b)(1) of the Statutory Construction Act, 1 Pa. C.S. § 1928(b)(1); Richards v. Pennsylvania Board of Probation and Parole, 20 A.3d 596, 600 (Pa. Cmwlth. 2011) (en banc) (discussing the common law rule of lenity).  The Court overruled a contrary decision reached in the case of Packer v. Bureau of Professional and Occupational Affairs, Department of State, State Board of Nursing, 99 A.3d 965 (Pa. Cmwlth. 2014), petition for allowance of appeal denied, 109 A.3d 680 (Pa. 2015).

statutes imposes punishment are penal and must by strictly construed
Where a statute imposes punishment, such as the suspension or revocation of a professional license, for specified acts, such statutes are penal in nature. See Pa. State Real Estate Comm’n v. Keller, 165 A.2d 79, 80 (Pa. 1960). Section 1928(b)(1) of the Statutory Construction Act, 1 Pa. C.S. § 1928(b)(1), requires that penal provisions “shall be strictly construed.” Consistent with this statutory requirement is the rule of lenity, which originated in common law, and provides that:

[a]mbiguities should and will be construed against the government. This principle has its foundation in the rule of lenity that provides that any ambiguity in a criminal statute will be construed in favor of the defendant. The rule of lenity requires a clear and unequivocal warning in language that people generally would understand, as to what actions would expose them to liability for penalties and what the penalties would be. Application of the rule of lenity extends beyond the context of criminal statutes.  penalties would be. Application of the rule of lenity extends beyond the context of criminal statutes.

Richards, 20 A.3d at 600 (emphasis added). “Underpinning the rule of lenity is the fundamental principle of fairness that gives validity to our laws” by providing individuals the clear and unequivocal warning discussed above. Sondergaard v. Dep’t of Transp., Bureau of Driver Licensing, 65 A.3d 994, 997 (Pa. Cmwlth. 2013). “To apply the rule of lenity, it is not enough that a statute is penal it must be ambiguous as well.” Id. at 999.

Statutory provisions that impose punishment, such as the suspension or revocation of a professional license, for specified acts are considered penal in nature. Pa. State Real Estate Comm’n, 165 A.2d at 80. As previously described, the rule of lenity provides that the statute should provide a clear and unequivocal warning in language that people generally would understand, as to what actions would expose them to liability for penalties and what the penalties would be. Additionally, ambiguities should be strictly construed against the government.

Board changed its long-standing statutory interpretation w/o adequate warning
The language of the statute in this cases does not provide “a clear and unequivocal warning . . . that people generally would understand” about the what is to happen for the nurse’s wrongful conduct.  This is particularly troubling where the Board changed its long-standing interpretation of those provisions without providing any formal or informal warning, via regulation or policy guideline, of that change to the licensees over whom the Board exercises authority.   As these provisions are ambiguous and do not provide “a clear and unequivocal warning,” they “should [have been] . . . construed against the government . . . [and] in favor of the [licensee].” Richards, 20 A.3d at 600 (internal quotation omitted). To hold otherwise would violate the “fundamental principle of fairness that gives validity to our laws.” Sondergaard, 65 A.3d at 997.
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