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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