employment - professional license - past criminal convictions - no relation to profession

Haveman and Spillane v. State Board of Cosmetology – Cmwlth. Court – 12-9-19 – unreported memorandum opinion**

Held: Petitioners have standing to challenge of the good-moral-character requirement of sec. 5 of the Beauty Culture Law.  Their claims are adequately developed and are ripe for consideration. Because Petitioners seek declaratory and injunctive relief on a facial constitutional challenge and are not appealing the Board’s denial of their license applications, the claims are not barred by a failure to exhaust administrative remedies, collateral estoppel, or res judicata and the Petition is not untimely. Finally, Petitioners seek declaratory relief and not damages; thus, their claims are not barred by the two-year statute of limitations. 

Petitioners had prior criminal convictions which, they say, involve conduct unrelated to the cosmetology profession. Petitioners allege a violation of their state substantive due process rights under article I, section 1 of the Pennsylvania Constitution,4 which protects Petitioners’ rights to pursue their chosen occupations free from “arbitrary and irrational legislation.” 

Petitioners assert that the good moral character requirement is facially unconstitutional under article I, section 1 because it lacks a substantial relationship to a legitimate government interest and is unduly oppressive. Petitioners also allege that the good moral character requirement is facially unconstitutional under Pennsylvania’s equal protection guarantee. 

Because Petitioners were treated differently from similarly situated individuals, such as prospective barber licensees, due to the good moral character requirement, Petitioners aver that the requirement is unduly oppressive. Petitioners assert that the good moral character requirement has no substantial or rational relationship to a legitimate government interest to justify this different treatment between similar individuals. 

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**An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

custody - medical marijuana

H.R. and C.A.R. v. C.P. and J.M. – Pa. Superior – reported, precedential – December 18, 2019

http://www.pacourts.us/assets/opinions/Superior/out/J-S54013-19o%20-%2010426343990129499.pdf?cb=1

Held:  The Medical Marijuana Act does not preclude the trial court from making relevant findings concerning the effect of marijuana use, whether medical or recreational, on a parent’s ability to care for his or her child. Indeed, contrary to Father’s assertion, the Medical Marijuana Act expressly reaffirms § 5328(a) as the controlling mechanism for determining a child’s best interest. See 35 P.S. § 10231.2103(c) (“In determining the best interest of a child with respect to custody, the provisions of 23 Pa.C.S. Ch. 53 (relating to child custody) shall apply.”). 

That statutory framework explicitly requires the fact-finder to consider not only a parent’s history of drug and alcohol use but also their mental health and physical conditions. Thus, rather than requiring the court to ignore Father’s marijuana use, the Medical Marijuana Act obligated the trial court to contemplate Father’s physical condition, i.e. the nerve pain he complains of in his right wrist, and his reliance upon medication to subdue that pain. 

By way of comparison, OxyContin®, Vicodin®, codeine, and morphine are legal substances when prescribed by a physician; however, it is beyond cavil that, prior to making a custody determination, § 5328(a) (14) and (15) mandates that a trial court consider how a parent’s legal use of any of these substances impacts his or her child’s best interest. That is precisely the analysis that the trial court performed in the case at bar.