No. 92-212 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

JOEL R. GILPIN, 

Petitioner and Appellant, 

vs 

BOARD OF NURSING, DEPARTMENT 

OF COMMERCE, STATE OF MONTANA, 

Respondent and Respondent. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Thomas C. Honzel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Richard Larson, Chronister, Driscoll & Moreen, 

Helena, Montana 

For Respondent: 

Steven J. Shapiro, Special Assistant Attorney 

General, Department of Commerce, Helena, Montana 

submitted on Briefs: August 13, 1992 

Decided: September 22, 1992 

Filed: 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

This is an appeal of an administrative action of the Montana 

Board of Nursing, which permanently revoked the license of Joel R. 

Gilpin to practice in Montana as a registered professional nurse. 

The District Court for the First Judicial District, Lewis and Clark 

County, affirmed, but it deleted a provision that the revocation is 

permanent. Gilpin appeals to this Court. We affirm. 

The issues are: 

1. Does the Board have jurisdiction to revoke a Montana 

nursing license which expired before revocation? 

2. Did the Board revoke Gilpin's Montana nursing license 

without affording him a proper hearing? 

3. Did the Board properly consider criteria for licensure of 

criminal offenders in revoking Gilpin's nursing license? 

Gilpin was licensed as a registered nurse in Montana from 1980 

through 1990. The Board did not send him a license renewal 

application for 1991, and his license lapsed at the end of 1990. 

In 1987, Gilpin was convicted of two counts of sexual assault 

upon eleven- and twelve-year-old girls. He was sentenced to four 

years' imprisonment on each count, to be served consecutively. In 

June 1988, as a result of his criminal conviction, the Board initiated a license disciplinary proceeding against him. At Gilpin's 

request, the disciplinary proceeding was delayed while he appealed 
his criminal conviction to this Court and pursued a habeas corpus 

action in federal court. 

This Court's opinion affirming Gilpin's criminal conviction 

sets forth the facts underlying the conviction. State v. Gilpin 

(1988), 232 Mont. 56, 756 P.2d 445. That opinion is a public 

record and as such was available to the Board. 

In November 1990, the proceeding before the Board was 

reactivated. The parties submitted the matter on an agreed 

statement of facts. A hearing examiner heard the case and 

submitted findings, conclusions, and a recommended order to the 

Board. After hearing Gilpin's objections orally and receiving them 

in writing, the Board adopted the hearing examiner's findings, 

conclusions, and recommendations. 

Gilpin appealed to the District Court. The court heard the 

parties' arguments and then issued its written memorandum and order 

affirming the decision to revoke Gilpin's license. However, the 

court deleted the provision that the revocation is permanent. 

I 

Does the Board have jurisdiction to revoke a Montana nursing 

license which expired before revocation? 

Gilpin argues that the Board lost jurisdiction over him after 

his nursing license lapsed in 1990. He claims that the Board is 

statutorily empowered to take action only on an application for a 

nursing license or on an issued license, not on an expired license. 
Section 37-8-431(3), MCA, provides that a lapsed nursing 

license may be reinstated by the Board upon satisfactory explanation for the failure to renew the license and upon payment of 

current fees. Section 37-1-141, MCA, provides that a lapsed 

occupational or professional license which is not renewed within 

three years of the most recent renewal date automatically terminates and a new original license must be obtained. 

Because the above statutes give the Board the power to 

reinstate a nursing license for three years after it lapses, we 

conclude that the Board retains jurisdiction over a lapsed nursing 

license for three years following a failure to renew. This action 

took place within three years after Gilpin's license lapsed. We 

hold that the Board had jurisdiction to revoke Gilpin's license. 

I I 

Did the Board revoke Gilpin's Montana nursing license without 

affording him a proper hearing? 

Despite his consent to submit to the hearing examiner an 

agreed set of facts, Gilpin contends that he was entitled to a 

hearing before the Board on the merits of his case. He points out 

that, in the brief submitted to the Board in support of revoking 

his license, various harmful consequences were alleged as possible 

results of halting disciplinary proceedings. Gilpin maintains that 

a hearing should have been held to afford him an opportunity to 

rebut those "allegations of fact." 
The material facts of this case were stipulated--that Gilpin 

stands convicted of sexually molesting two pre-teen girls. The 

results which were forecast if disciplinary proceedings were halted 

did not create material issues of fact. Gilpin was afforded a 

hearing before the Board at which he presented his arguments in 

opposition to the hearing examiner's findings and conclusions. We 

hold that Gilpin's criminal conviction and the facts to which he 

stipulated were a sufficient basis for summary judgment and that 

Gilpin was not entitled to any hearings in addition to those which 

he was given. 

I11 

Did the Board properly consider criteria for licensure of 

criminal offenders in revoking Gilpin's nursing license? 

Gilpin states that there is no indication, in either the 

record in this case or in this Court's decision in his appeal from 

his criminal conviction, of any connection between the conduct on 

which his criminal conviction was based and his nursing practice. 

He points out that the conduct occurred while he was off duty and 

away from his workplace. He quotes the following statutes dealing 

with the licensure of criminal offenders: 

37-1-201. Purpose. It is the public policy of the 

legislature of the state of Montana to encourage and 

contribute to the rehabilitation of criminal offenders 

and to assist them in the assumption of the responsibilities of citizenship. The legislature finds that the 

public is best protected when such offenders are given 

the opportunity to secure employment or to engage in a 
meaningful occupation, while licensure must be conferred 

with prudence to protect the interests of the public. 

37-1-202. Intent and policy. It is the intent of the 

legislature and the declared policy of the state that 

occupational licensure be granted or revoked as a police 

power of the state in its protection of the public 

health, safety, and welfare. 

37-1-203. Conviction not a sole basis for denial. 

Criminal convictions shall not operate as an automatic 

bar to being licensed to enter any occupation in the 

state of Montana. No licensing authority shall refuse to 

license a person solely on the basis of a previous 

criminal conviction; provided, however, where a license 

applicant has been convicted of a criminal offense and 

such criminal offense relates to the public health, 

welfare, and safety as it applies to the occupation for 

which the license is sought, the licensing agency may, 

after investigation, find that the applicant so convicted 

has not been sufficiently rehabilitated as to warrant the 

public trust and deny the issuance of a license. 

37-1-204. Statement of reasons for denial. When a 

licensing agency prohibits an applicant from being 

licensed wholly or partially on the basis of a criminal 

conviction, the agency shall state explicitly in writing 

the reasons for the decision. 

37-1-205. Licensure on completion of supervision. 

Completion of probation or parole supervision without any 

subsequent criminal conviction shall be evidence of 

rehabilitation; provided, however, that the facts 

surrounding the situation that led to the probation or 

parole supervision may be considered as they relate to 

the occupation for which a license is sought and provided 

that nothing herein shall be construed to prohibit 

licensure of a person while he is under state supervision 

if the licensing agency finds insufficient evidence to 

preclude such licensure. 

Under the statutes set forth above, the policy of this State 

is to protect the public health, safety, and welfare. Gilpin cites 

this Court's holding in Mills v. Commissioner of Insurance (1987), 
226 Mont. 387, 736 P.2d 102, that a finding that Mills had been 

convicted of a felony involving moral turpitude (felony theft) was 

an insufficient basis upon which to hold that the conviction was 

related to the public health, welfare, or safety through the 

licensed occupation of insurance sales. Mills, 736 P.2d at 105. 

In the present case, the hearing examiner concluded that " [a] 

crime of sexual assault, especially on two young girls, is, in my 

mind, i~so facto, sufficient grounds for revocation of his 

license." The Board adopted the hearing examiner's further conclusions that, by reason of his criminal conviction of sexually 

assaulting two young girls, Gilpin was guilty of unprofessional 

conduct as a nurse within the meaning of 5 37-8-441 (5) , MCA, and 

was unfit to practice nursing by reason of negligence, habits, or 

other causes, within the meaning of b 37-8-441(2), MCA. 

The District Court noted that even though the sexual assaults 

did not occur while Gilpin was acting as a nurse, the conviction 

for those offenses causes great concern for public health, welfare, 

and safety. The court reasoned that the practice of nursing, by 

its very nature, involves the care of patients and brings the nurse 

into close physical contact with patients, including possible 

contact with intimate body areas of patients who are young, old, 

male, and female. The court stated: 

Because of the nature of the profession of nursing, it is 

reasonable to conclude that the conviction of sexual as- 
sault on a young girl makes one unfit to practice nursing 

within the meaning of S 37-8-441(2), MCA. 

Section 37-1-203, MCA, provides that when a person has been 

convicted of a criminal offense which relates to the public health, 

welfare, and safety , that person shall be granted a professional or 

occupational license only if he or she has been sufficientlv rehabilitated warrant public trust. There is nothing in the 

record to show that Gilpin has been rehabilitated. In fact, he was 

still serving his sentence of imprisonment at the time of the 

hearing before the hearing examiner. In that respect, this case 

may be further distinguished from Mills. All but thirty days of 

Millst prison sentence was suspended and she was not incarcerated 

at the time her case was heard before the licensing agency. 

We hold that, in revoking Gilpin's license, the Board properly 

considered the criteria for licensing criminal defendants. 

We affirm the order of the District Court revoking Gilpints 

license to practice in Montana as a registered professional nurse. 
We concur: 
September 22, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Richard Larson 

Chronister, Driscoll & Moreen 

208 North Montana Avenue 

Helena, MT 59601 

STEVEN J. SHAPIRO 

Special Assistant Attorney General 

Department of Commerce 

11 1 North Jackson 

Helena, MT 59620-0407 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA 

BY: J&kL--