it’s my pleasure to introduce our next speaker amigo Wade is a well-known figure in the area of professional discipline in the United States mega received his Bachelor of Arts from Cornell University in ithaca new york and his juris doctor from Washington College of Law at the American University in DC since 96 amigo has been a senior attorney principal 50 Virginia Division of legislative services where he serves as legal counsel to the legislative committee on General Laws and technology for the virginia senate prior to this amigo served as the assistant director for investigation and adjudication for the virginia department of Professional and occupational licensure since 92 he has been a senior instructor with the with the clear Council of licensure enforcement and investigate and regulation with the National certified investigator training in CIT which as you all know is the gold standard of professional investigational training amigo has instructed over 80 programs in jurisdictions throughout the United States and Canada and is a regular presenter of workshops webinars and training sessions in a variety of venues so please join me in welcoming amigo wait good afternoon how’s everybody doing great is that just all okay now I know some of y’all are wondering about my name amigo ricotta wait it is as in back speak Spanish because I I don’t and Dave went over a lot of my very you know prestigious credentials but one of the things I always like to say before I start is that my most prestigious one is that I come from a long line of Southern Baptist preachers which means that I tend to get a little out of control in fact you all are going to get out of control my objective today is to kind of approach things from a different perspective first I think it’s really apropos that I now get points for using big lawyer like words it is true I do we have any other lawyers in here yeah I’m a lawyer but I’m in recovery and you all have to come to the meetings too by the way earlier today you are talked about the you know writing rules and regulations I get involved in that and from the legislative standpoint in terms of reviewing those rules and David I think we’re saying that I’m you you never finished because every time legislature goes into session they can monkey around with that plastic that practice act and you have to revise your regulations well what I’m going to be talking about is how judicial review can sometimes serve to affect what you do sometimes you can have a court decision that will be a decision based on how you interpret it your rules and regulations that will make you have to rewrite your regulation sometimes too I’m clarified but what I want to UM do is to sort of set the stage for you from an overall standpoint you know I work with in with a regulatory agency in Virginia for about ten years before i started my job now and i was in the trenches i was an investigative did not supervise investigators you know and then I did investigative hearings and then I did did hearings for final final decisions so you know I just ran the whole gambit and then I was smart enough to get out of it before they realized i didn’t know what i was doing so I went on to draft the legislation that now other people have to I’m deal with but I want you to look at it from the perspective because when I got out of the regulatory arena I began to see that that that people look at what we do is regulate is a little different what I want you to look at is you know from this way in a free society the presumption is that you can do whatever you want to do as long as you don’t adversely affect the rights of others law school professor explain to this way my right to swing my arms stops at your face when you get into the regulatory community what happens is the legislative body has made a decision that this particular activity if people don’t know what they’re doing I’m going to break it down to you in a Southern Baptist way if people don’t know what they’re doing then they can hurt somebody so we need to make sure that before we allow people to enter into that activity they have to have a minimum credentialing and I say that from the standpoint of they didn’t delegate that authority to a regulatory board our job as regulatory entities is to establish emphasis minimum standards of care and standards of practice we love sometimes to establish stand some concerns the practice that would create that that that perfect practitioner but remember the presumption is that the

person has the right to enter into this practice so you know I kind of say that them when I passed the bar exam after I for the second time and I got my license it wasn’t the state saying attention everybody this is the next F lee Bailey this was it was the state saying you know amigo Wade has passed the minimum standards and you would not have want to have been my first clients so so so judicial review comes in when you have been delegated the authority to establish those standards of care and or standards of practice to the minimum and you make a decision and you look at the powers of a regulatory body they have all the powers in terms of they have the legislative power because they promulgated regulations they have the executive power because they investigate those regulations and then they have the judicial power to make a decision about whether the same regulations that they promulgated and they investigated have been violated so judicial review serves to come in as a control and what they’re doing in terms of how what they’re looking at their balancing that right of the individual to enter into that occupation of right and you’re right of course has the regulatory board to protect the public so what I’m going to do today is and we have ten decisions from jurisdictions in the United States and Canada I have four Canadian cases and I really want to thank Bernardo blank and Marc Spector I’m who they’re Canadian lawyers and they picked those cases these are cases that we did I’m at the most recent cleared conference they cover a variety of regulatory bodies everyone from lawyers you can’t have a good discussion about bad practice unless you bring lawyers in there but also nurses medical examiner’s and and even pharmacists and then and we’re looking at ever ever at a variety of regulatory actions you know in terms of you know revocations disciplinary actions now the way I’m going to proceed is i’m going to give you like a brief resin recitation of the facts then I’m going to do a quick session poll now that means that this class everyone has to wake up okay not time to sleep this class is what we call participatory now you have to give me five dollars for user net word in the sentence today what that means is I’m going to give you the facts and tell you what the board did then I’m going to put up a poll question and it’s usable be yes or no and it might be three I’ll let you know how many twists you have and then you have to raise your hand when you want to vote for one there I don’t have the the clickers and stuff but I have one my glasses and then i can calculate inside of my glasses how many people so i’m gonna give you the rough to determine it y’all trust me don’t you I’m a lawyer for Virginia come on now all right let’s let’s look at the first one but but here are the cases if we have a chance and I know we all have time for leisure reading I saw some of us doing it back in the back doing up but not be reading doing my prenup just kidding but if you get a chance to read them because what each of these cases talk about in particularly when we talk about the arm us cases is they really give you a good idea of what the courts are looking at what what are the standards that they’re looking at the standard of review and you find that that one of the strongest things that operates in the regulatory community or the regulatory area is that there’s a presumption that what the agency did was right the court is not retrying it you know and you see in instances where the court is bending over not to second-guessed you know what what the regulatory body has to do is make sure that they’re making a decision based on the facts and they connect those facts to their final decision so that’s what the cases are the sites for them the first case I want to talk about is the probably one of the most famous recent cases the North clown of dental of the Board of dental examiners versus the Federal Trade Commission now I say this is important because it’s not very often that the united states supreme court gets involved in professional and occupational regulations because it is truly a state issue it sounded at the state level but this was a situation where the Supreme Court did get involved and it was because there was a federal law that was involved the Sherman Antitrust Act and basically antitrust laws are there to protect consumers and the idea is that you want the marketplace to be free and open and let the marketplace decide you know who should be able to succeed and fail in business since nineteen forty-three they’ve been a lot of cases that have basically said that state action is immune from federal antitrust laws and I and this includes the establishment of a regulatory body to basically establish licenses because that regulatory body says who can enter into that profession and then it also says how they have to act in that profession and all of those things can affect the the economic side of it well in this case you have the

inventor board that was composed of six of six dentist one hygienist and I’m one public member i think what sort of art is that the that the dental members by it were are elected by members of the dentist community in north carolina which is unusual interview all from jurisdictions where the where the licensed professionals elect the the practitioner members of the aboard it typically as in my jurisdiction the governor appoints the unlicensed members and sometimes it may be you know pursuant to a list that’s provided by the trade association or something like that but i thought that would have made a difference but according to the decision they didn’t really talk about the fact you know that it would have been better if the governor had had appointed them they had been receiving complaints that non dentists were being were engaging in teeth whitening and teeth whitening of course up is you make your teeth white it’s pretty clear it involves the teeth so it’s dental i would argue that um that uh that they didn’t go too far that they they really weren’t going too far afield because ended in the North Carolina Practice Act it says that the removal of stains from the teeth of the practice of dentistry so I don’t think it’s a too much relieved to say that whitening teeth is also the practice of dentistry but at any rate a what they did was after they performed their investigation of the issue going to call it cease and desist letters and I’m Dean touched on that cease-and-desist letters are basically where you’re informing someone who doesn’t have a license that you think that the activity that they’re doing requires a license and y’all better stop now we’re gonna have to do something to you and that’s what they did they issued it to the people who were engaged in teeth whitening the suppliers as well as mall owners because a lot of these situations were you know they were setting up stalls or kiosk in malls and they also contacted the unconference ology board and said hey we think that some of your license is doing this too so they sent out a directive the Federal Trade Commission thought that hey you’ve crossed the line you’ve gone too far you know so that’s why they basically unfiled am case against the board saying that I’m they had violated the antitrust law now first poll question should stay professional licensing boards that include a controlling number of active market participants be subject to federal antitrust laws you can have three choices here first how many of you say yes yes we got some strong regulatory people over there and by the way there we have hidden cameras and them you may be contacted by the government after this yes those that’s how many say no and how many say should be decided on a case-by-case late yeah now then that’s a lawyer answer so I mean I’m going to give you a law license at the end of this and actually see is is is what is what’s right and I’ll give you this beef as possible with it but the Supreme Court said they said basically that while certain forms of state action do have immunity there are three key concepts first when you have the controlling number of active market participants which basically means people who are still actively engaged in the profession then you have to have then they have to be actively supervised by the by the by the state now here’s a problem with the UM case and this is what the dissent said is that it didn’t basically define those three terms where is the controlling number would you say it would be a majority well people people would say yes but what if the three dentist on and when an 11-member board did all of their adjudications what’s an active market participant could you say that hey everyone suspend my practice for the time that I were that I will serve on the board a true public servant could you use professors could you use retired people they didn’t say that and it didn’t also didn’t say what does actively supervise me they gave some factors but they didn’t actually say it what did what the dissent said is that this is a bunch of hooey which is a technical term basically the moment that the state delegated that authority to the board in state action nothing else has to be done so you passed the first when I moved through the other ones more quickly I wish I had time for them for questions because this is a pretty interesting case now the next case is the is Kelly versus the Ontario Ontario College of Physicians and Surgeons this is an interesting case I’m also just about in terms of nomenclature many of the regulatory entities in Canada are called colleges as opposed to boards and whatever else we call them them group of people i think is what they call them in Oklahoma or north cackalacky which is north carolina for those together

basically what happened in this case is the the police have received information that um that a that a doctor had some child pornography on his on his computer get a chance to be the case is pretty interesting because it started in Dallas with a worthy where they looked at these internet addresses and because of that they tracked it to this guy they tended to the police in Ontario they went in through his three search warrant and they took his hard drive as it turned out the search warrant was found to be invalid so they basically gave him back the hard drive but they kept a mirror copy of that hard drive and of course once the what’s the Board found out about it say hey he’s one of our licensees I want to get a copy of that and he went to the court said hey you know this was improperly obtained evidence it shouldn’t be used for anything and of course the onboard say yeah but this is a listen this is an administrative case it’s not a criminal case so we talked about two different things so session poll question number two should illegally obtained evidence be admissible at a regulatory board hearing those you say yes raise your hand all right those you say no raise your hand knows the noes have it and the nose are incorrect that’s just one judge’s opinion you know who didn’t think they are they’re just judges and this is what the court said is that basically you are but if context means everything this was a criminal case and and and what you’re looking at here is an administrative or civil case and the court basically said that we leave it up to the board as to whether it should be admissible and and I think that that would be the same situation here in most of the jurisdictions in the United States criminal protections you know don’t specifically apply to administrative proceedings I think that the same thing will probably have happened here then my you the board could have come to the same result and say when we’re not going to use it if it was improperly obtained what the what the court was saying there is that we’re not going to make that decision for the board now let’s look at the on third case this involves a nurse in the great state of Delaware hear the facts of the UM of the case you had a nurse that was working as a as a supervising shift nurse station nurse at a psychiatric hospital one of the patients came out of their room walked around a bit of a while and just fell out which is a technical term which means you passed out be safe fell out you know below the mason-dixon what she did when she found out about it was she went to that person who was on the floor called out her name a couple of times and she didn’t hear responses she made a decision that since the person was breathing that it wasn’t a medical emergency it was rather a psychiatric situation so she went to get help now mind you when she went to get help the situation went bad and the person died from a pulmonary embolism and the issue in the case was you know basically they said that that she did not was that she was negligent because she did not perform a physical examination of the patient you know and and some of the facts in the case say that one of the reasons that she didn’t was because she was much smaller than the person that fallen the person had a history of acting out and she was afraid because of course you know in this case the practice accent you have to or what the board was saying was that the only way you were really be able to assess that patient was to physically examine them and that’s basically I’m what what what I’m happened now here’s your next poll question and then make this clear also that her argument at the case was that in order for her to be found negligent the board would have to show that her negligence her failure to assess the person the patient actually led to the harm which was the UM death and the board said we don’t have to show that you know and my question to you is survey finding of negligence be required to include evidence that the negligent conduct caused harm those of you who say yes raise your hands okay that’s about 79 those who say no raise your hand and that would be the majority and you are correct this is what the board said them and this is on what’s what’s in what’s important and this is how I think one of the things that we have to make clear when it comes to standards of care standards of practice is that once the regulatory board establishes that standard of care and standard practice does not have to be necessarily tied to what goes on in the civil arena or in

common law or in the common law arena and what the court said is basically that that that the record established that under the board’s rules the nurse had a standard of care had a duty of care and that she breached it and that’s all the to prove they didn’t have to prove that the harm that harm came because of that breach so they are upheld the on Board’s decision and this is also important when it comes to establishing the record it’s very important that that boards including in the record everything that they use to reach a decision because when the case is appealed what the court is looking at they’re not bringing the witnesses in and talking to them or or examining them again they’re looking at the record the transcript of proceedings and they’re looking at the board’s final order and then looking at you know what is the board basing its decision on so in this case the board had sufficient facts all right this is an another Canadian case and it also involves the Ontario College of Physicians and Surgeons I just like saying this this names it sounds like something you would say when you I don’t know on the town on the friday night yeah I didn’t file hey you want to go to the bar yeah I didn’t fire at any rate somebody’s had too much coffee and but having said that and I know it’s some funny it’s sort of a sad case this is a situation where the person was qualified as a family physician you know just a basically a down-home family doctor but at some point the physician decided you know i’m going to specialize in doing some cosmetic surgery and she specifically specialized in doing liposuction and breast augmentation and in this case you had a patient that died after a life for suction procedure and following that death of course it was up from what i understand it was it was you know it was in the news a lot of the investigators for the for the board went out to interview the Miss Yasim far now that board much like many of our agencies they have a regulation that requires you to you know cooperate with the investigation to answer questions you know there is no right against self-incrimination in administrative cases that right applies when police officers are investigating a crime and they’re asking you about it doesn’t apply in the regulatory in fact several of the board with the agencies I used to work for have a habit a separate violation a failure to cooperate with the investigation so you don’t have a right against self-incrimination now what happened in this case was because the licensee had to talk to the to the board she lied on on and on an act in canada called the public inquiries act which is somewhat similar but it basically says that I’m if you have a compelled statement then that statement can’t be used in a later proceeding so what she was saying was that the investigation was separate from the board’s hearing now before I get to that I want to get to poll question number number four everybody ready got your arms ready can a compelled statement obtained during the investigation be used against the regulan in a subsequent board disciplinary hearing those of you who say yes raise your hand oh yeah we got a lot of people that yeah that’s what I’m telling my now for the three of you who have the courage to raise your hands for know those you say no cuz I’m gonna get a run out on a rail and the answer is yes you know it’s against the context this is an administrative proceeding this is an action between the board the regulatory into entity and one of its licensees and that’s exactly what the ahhh what the court said they upheld the violation a compelled statement that’s used during that during the course of the investigation can be used at the disciplinary proceeding because it’s all a part of the same process and that’s what they said and in fact the I’m court said that um that to look at it differently would just tear down the whole regulatory framework I mean if your investigative process was separate from the discipline then the whole process would have to be redone and that’s what the court said in this case it’s all a part of the same proceeding now this is what I like to call it on paper case in it and it and it involves a situation where one of the things that happens when you issue licenses is that they’re not for life you know they have expiration dates and you have to renew that license and many boards had a situation like the Iowa Dental Board had in this situation they are person he was originally licensed in 1996 and in Iowa dental licenses expired every August

31st which basically means that you know you have to get a new license they give a 60 day grace period so there’s a 60-day period of time where you can pay some additional fees and still be licensed after that 60-day period the license has lapsed now that can mean different things in different states in my state if a license lapsed or put this way in my state if your license let’s see if it ended on August a on 31st and you have six months and talk about the port for contractors to to issue to get your license back you have your license on life support you know it’s there you know it’s on life support if you pay additional fees you can be no after that six months period it’s laps which means that the stake has been driven through the heart and there is nothing to renew and that’s what sort of happened in this case after the grace period the on board considers it the license to have lapsed and basically is saying that hey you’re doing unlicensed activity you’re practicing without a am licensed now here’s the kicker in this case and this goes to what’s called mens rea uh you know you know the intent now you all learned a big legal word today you’ll be recharged big-time money for that mens rea which means intent and what he said look um I knew that my license was was about to expire in fact I remember it like it was yesterday it was and then little screen appears it was august the 30th i had gotten a check and he had a copy of the counter check that he had gotten from the unbanked and i remembered because i mailed it i’m on my way to lunch and I of course I ate lunch on that day now the board never received it what actually happened was he kept on trucking along thinking in his mind so he says that he had renewed his license and it wasn’t until several months later the insurance company contacted the on board said hey we’re about to do the insurance for this guy is he licensed and the board said hey no he isn’t his license has expired and laughs and that’s why they they issued or file the UM the position of five the disciplinary action now here is a poll question number five it’s a long where you can tell they lawyer wrote this one should a regular with a lapse license be charged with engaging in unlicensed practice if the regulan believe the license had been validly renewed and can produce evidence supporting that belief hmm those you say yes raise your hand the kinder gentler regulators even the one that raises hand late and and that’s about you may be about thirty percent of you those who say no yes yes you are the regulators you’re the one that when you do your job you do it to action music don’t don’t comment on what the board what the board said in this case actually is um yes it’s sort of a tricky one okay and out and now I’ll tell you why what the court said is is that in an unlicensed activity case or in the case of this situation all the board had to prove with two elements you know and they were one that that Hagan engaged in the packs of dentistry and that he didn’t have a license they didn’t have to prove that he didn’t know he was unlicensed and you found out with a lot of sense of care and standard practice issues you don’t have to prove intent now as we see with the next case sometimes you do have to prove intent if you say things like someone who knowingly or if you see those words or who deliberately if you see that in your regulation then yeah you have to prove intent but typically what our regulations say is you know failure to failure to cooperate with the Board investigation doesn’t say you know really you know Faye to deliberately you know so you know a lot of what we do in our in our area is what’s called strict liability just proved that it happened you don’t have to prove that you knew what you were doing when you up did it and that’s basically what the I’m court said in that case this is the lawyer case and I picked the lawyer case if I’m I’m candidate because I could not find a lawyer case in the United States we just so ethical down here that’s that’s a lie right there so I’m in this case I’m this is sort of an interesting case you had a lawyer who represented a client in a civil action of the class action suit where I’m he was due to receive a pretty big settlement he also represented the same client in a in a child custody issue because he was back in his and his

child custody payments now the the former spouse said huh I see he’s about to come into some money so she went to the court and got the court to say look we think you’re going to get into this into some money if you get a settlement the first fifty thousand dollars of the sediment had to be given to the court to fill out this 02 and pursuant to this to this back child support so what the what the what the lawyer did is basically he established a scheme so that he avoided paying that first fifty thousand dollars of the settlement into the UM in into the court and he was subsequently charged by the on board with conduct unbecoming of a lawyer which is an oxymoron I mentioned sounds like a nice book title the unbecoming of a lawyer and and that conduct they said was by breaching the court order and by counseling and assisting the our client now what he said of course is that um no you can’t because I didn’t think I was doing that I thought I was representing my own client now my question to you is we using that big ten dollar word that you can use it the next cookout and you people think you’re real smart the poll question is is mens rea ax or intent choir to prove the offense of professional misconduct and i’ll even spelled it the canadian way with the sea you see how anyway those who say yes raise raise your hand I think you get one person with two but one person to call one person that raised above died I those you say no yes there’s a third option I should have told you sometimes I got you yeah one person is it yeah I was waiting for I’m gonna say sometimes and the answer is of course sometimes now how many of you who said no would have said sometimes yeah I’m so sure and and that’s sort of what they are what the court says it basically says that the that professional misconduct is generally what’s called a strict liability offense what that means is that just have to prove that it happened unless and that’s where they sometimes comes in if your regulation uses words like intentionally or deliberately thing then you would have to show where you would have to have evidence of intent and you see that in situations where you don’t want someone to be held in violation because they made a good faith mistake I’ll move along very well the next case is another sort of paper case and this involved a medical examiner you got to have a good medical examiner case a lawyer case and the pharmacist case to have a really good discussion about what happens in the regulatory arena now in this case I want to try to get you to attract the effect pads because this is all about time okay you’re in time and space you with Doctor Who okay we’re floating on the waves of time okay in 1995 miss Oni was licensed in Tennessee so you have Tennessee and 2000 see was licensed in New York so she’s moving around all right and Danny were of 2003 she was charged with in Georgia with burglary all right so now go for a little bit October of 2003 it’s time to renew her license they have a question on license application that says since your last registration application are there any criminal charges pending against you in any court she answered no so she didn’t refer to the Georgia charges now fast forward four years it’s August of 2007 the onboard the Tennessee Board issues a letter of reprimand to her for some kind of victim she did so fine November of 2007 her license is up for renewal again this time she answers to the UM to the question since your last light registration application has any licensing authority reprimanded or otherwise discipline you she answered no now because of that and the New York Board found out they revoke the license when the Tennessee Board found out about what the New York Board did they revoke the license and basically what she appealed saying that hey they just rubber-stamp what New York did you know they shouldn’t have been able to revoke my license because New York River they should have been able to revoke my license in Tennessee because New York revoked my license and and the lower court said yeah I think you’re right so

then the agency appealed and I’ll tell you what the decision is as soon as I get your poll question answers this is suspenseful I said something what happened oh no what happened if a professional license is revoked in one state should it automatically revoked in all of the states in which the individual is licensed those of you who say yes raise your hand okay I think I saw one or two people all right those of you who say no raise your hand and it so I’m sorry this is only two choices can I leave me yeah and then the second don’t two choices and those who said no wait raise your hand yes that is and and that is the correct answer and its really really straightforward what the court said and this is where it gets to making sure when you make a decision about someone’s license come that you that you that you do it based on the evidence in particular when you’re talking about license revocation license revocation to the regulan is it is the death penalty it’s the supreme penalty so and what the court said is that you know you can’t simply do it because New York did it we needed to see something in the record to show why you did it in this case it could have been as simple as having a statement we think that the conduct that’s at the base of what New York did supports a finding of you know improper conduct and the practice here and based on that so basically what the court said is we’re going to send it back to you to reconsider sanction they may have come back with the same sanction but they just have to have some information in the record to say why they did what they did so simply rubber stamping it was not appropriate all right the next case which is case number number eight so means this is so bees vs. the College of pharmacists and British Columbia sobeys is the company that basically runs the UM safeway stores and and I’m Canada you all know would say free so the best donuts you know you know but krogers ran him out of Virginia so we don’t have me a Safeway stores in Virginia basically what they are Soviets had but they had one of those customer incentive programs you know what those are where you have to be a member and then you can get you know discount rates if you spend a certain amount of money how may be all a member of a customer incentive or loyalty program I’m I know because my key chain has 20 or more there i’m a member of everyone that i can possibly be a member of and basically what the what the and i’m not lawyer to any of them you know you know whoever has the best sale but i’m basically what the college of pharmacy said is that you know we think when it comes to buying drugs that people shouldn’t be incentivized we’re afraid that people might say hey i’m not gonna get my drugs until the first of the month because i want to use up my wanted to use it to to them started developing my loyalty points so I can you know get some discounts and they say that we just don’t think that’s that’s a good idea so we’re going to establish a dialogue with is a regulation that basically says that incentive programs are prohibited you cannot have a pharmacy cannot have an incentive program form customers now I’m Sobeys basically said no you’re ridiculous that has nothing to do you know you have overstepped your bounds this has nothing to do with public protection in fact you’re hurting the public because you’re making them have to pay more and which brings us to the to the to the next session poll question should pharmacies be permitted to offer customer incentive programs the only two choices I was going to try to trick you and have a third one like the only on thursdays you know those of you who say yes raise your hand that’s because all of you all have a key chain that has 20 those of you say no raise your hand yeah yeah okay I mean what’s even worse is when you go to I could I have one for all the grocery stores in richmond and it’s about 5 i’m at all the major ones when you go then you give the wrong card to the wrong store it’s like they look at you that you cheater I’m sorry I get around you know and what the court said was yes what they said what the Court did basically was they struck the rule down as unreasonable and this gets into the rulemaking authority from the only case I could find it had to do with rulemaking you have the ability you know to establish rules you know stance of care and standards of practice you know but you but the court can sometimes if it is if it is if it is appealed or if it’s if it’s taken to the court they can look to see if your if your rulemaking was reasonable and in this case the court said it was overly broad how can you connect the incentive program or the prohibition on incentive programs to protection of the public and that’s why they and then fact they actually said

that the that the that the rule was actually harmful agreeing with so be saying that it actually you know made some customers pay higher prices so let’s go to the to the next one which is and Ohio State pharmacy case in this case you had a pharmacist who was accused of fondling but fondling am female co-worker he was doing the investigation he lied about what actually happened he said it was consensual with any change his mind and said that it was you know it was a mistake he was actually reaching for pills or something so they actually found them with them with filing the employee lying to them to the investigator and failing to cooperate and what the board said was that we found that action to be grossly immoral which is sort of an unusual standard you know immoral is bad enough I would think you know particularly if you’re Baptist you know but grossly immoral but and basically what what he said is that um what is grossly immoral I mean you have to tell me what grossly immoral is because I’m out there I’m a practitioner I might do something horrible stuff but I don’t know what’s closely amor and that’s basically the the the poll question that I want to ask you is sure they statute or regulation making gross immorality a cause for disciplinary action include a specific definition of gross immorality those of you say yes there’s only two choices those really say yes about happy think those who say no it should be it should be turned back board and that’s basically what the court said many of us have regulations that make it a violation to be engaged in improper or dishonest conduct what is improper conduct and see the unprincipled here is that as a licensee I need to be given some signal of what objectionable you know what the prohibited conduct is I don’t know what’s improper I don’t know what’s closely and more and what the court said here was basically that I’m you can’t say that a statute is it’s unconstitutional because it doesn’t define every relevant statutory provision they even went further they say you can pick up a dictionary and get a definition of what’s grossly a mole of those of those terms together and what they said here and this kind of goes back to what I was saying in terms of when you do your disciplinary actions and when you you know make sure you include in the record why and particularly if you’re dealing with something like gross negligence grossly immoral improper conduct you need to include specific factual basis for that finding because the court is going to want to see it they said basically that when they looked at the FD boards finding there was enough information in the record to support their assertion that it was a conduct that was grossly immoral now we’re at the last ones we may have some time for some for some questions maybe one or two and why might tell a joke not just this one was a I told this one because there are some professions that are regulated at the local level and this is one of those professions things like pawnbrokers precious metal dealers and the issue that comes up when you’re dealing with prom pawnbrokers and precious metal dealers is that sometimes they can get involved with purchasing or fencing or moving around stolen property so there is a very strong Criminal protection issue there in this case mr. boleta was convicted of dealing narcotics in 2006 and he served three years when he got out he up here he applied for a license as a precious metal dealers precious metal dealers are basically they purchase precious metals it can be sometimes so much issa i don’t need this read this wedding ring anymore I rather have the cash you know they could also say I’m going to knock David in his head take his wedding me and take it to a precious metal dealer but basically that’s what they do they they they deal in precious metals the license was denied because of a statute that basically barred issuing a license to anyone who had been convicted of a felony and basically his position was that that’s unconstitutional it’s a violation of the Equal Protection Clause because why are you treating felons different from anyone else you know and

basically that’s the poll question that I want to ask you and this is a three Potter okay now you’ve got the official for Big Finish okay I want everyone to participate okay because I believe that I’m going to get something free if everyone participates in fact that’s how I don’t matter that means a sandwich so uh the question should an individual with a past criminal record be prohibited from receiving a professional license we have three choices here okay first is yes yes yeah yeah I know everybody’s looking for the third one second one is no here’s the big finish and the third one is yes if the previous criminal activity has a connection to the regulated activity oh I’m going to pass out man down and that is what the court said you know basically what it said is that the statute was unconstitutional because there was no rational connection to the life to not issuing their license to the stated objective which is in this case the stated objective was to prevent criminal activity they want to make sure that people that were involved in dealing precious metals did not have a criminal background in this case oh but I said I mean felons in this case they probably could have just you know had some information in the record to say we think that this conduct as a drug dealer somehow relates to not being able to be a up standing upright precious metal dealers but in this case they simply said you’re convicted felon we don’t care about what you were convicted of you are convicted felon and because of that we’re going to that issue to license and the point that we make here or they can be made here remember to you step back out of the trenches that you’re in back there working doing regulatory stuff this is the way that courts look at things they don’t look at things in terms of what your authorities are they look at what i was saying the person the presumption of the person being able to enter into a useful occupation of life and that right of being able to do that can only be limited if there’s a protection of the public interest and that’s what happened in this case as I said if the he still could not be issued the license but what the what the board may have to do in that case is have some information in the record to support their decision and if you have a situation where you have what’s called the presumption of agency regularity which means that the court wants to find in favor of the regulatory body the regulatory body would probably win so with that we have time for just a few questions if if there are any join me we do have time for just a few questions and Greg is going to bring the microphone around please ask questions uh if we don’t get any amigo is threatened to sing so we need your questions you don’t want this thank you for speaking today the question I have is related to from boards that are do not act or the perception that we do not they do not act when the complaint is filed that someone’s performing illegal activity or practicing is unlicensed practitioner is there anything that we can do and I hate to say we’re bringing the court for not acting so for example person there’s a claim that persons not practicing with a license and they come back and say we need corroborating evidence of someone actually saying it and but the person filing the complaint is made that but they haven’t been physically present to see them practicing but they are all the other evidence is mostly there yeah I mean I’m one of the people that you know in this arena who is a proponent of you know that revelatory boards do have a responsibility to go after the license activity because it does two things it hurts the person who plays by the rules it makes that license almost less valuable because someone can do without having the license and you don’t protect Leon public in the agency that I used to work for them i’ll just use one profession as an example I’m contracting had a very big problem of unlicensed activity so a special unit was established of investigators who specifically investigated allegations of unlicensed conduct unlicensed activity now in my jurisdiction and I think this is the case in most us jurisdictions unlicensed activity is a criminal violation you get into a whole nother set you know the standard proof is higher and typically agencies and boards don’t have the ability to prosecute on their own left to take it to the Commerce attorney in that situation of the agency was able to work with the

Commonwealth attorneys and in some cases were able to get a situation where with the commonwealth’s attorney and that jurisdictions they could present the case themselves and that really made it that really calls them change so if they’re not willing to do that would is would it be advised for the person to go straight to the to the legal authority in that for that person lives and operates to file a complaint for possible criminal activity if the board doesn’t want to do that yeah I mean it is a crime that the problem that you’re going to have that that you’re going to deal with and it’s a practical problem I mean it’s the problem we had is that you know there’s nothing that sexy about unlicensed activity I got a murder trial I got a drug trial I’m not going to go after someone who’s not licensed as they I’m contracted so what we did was sort of met the middle ground we did the investigation and gave them a meal already prepared and all they had to do was make a decision when I prosecutor what I’m not prosecute and sometimes you know in the majority of cases they either would prosecute or let the investigator present the charges thanks for asking the question I’ll give you half or whatever David gave me for asking the question you