63 PA Cons Stat § 3113 (2021)
2021 Pennsylvania Consolidated & Unconsolidated Statutes|Title 63 - PROFESSIONS AND OCCUPATIONS (STATE LICENSED)|Chapter 31 - Powers and Duties|Section 3113 - Consideration of criminal convictions

§ 3113. Consideration of criminal convictions. (a) Applicability.--This section shall apply to licensing boards and licensing commissions notwithstanding the following:  (1) Any other statutory provision to the contrary regarding the consideration of good moral character, crimes of moral turpitude or ethical or honest practice with respect to disqualification of licensure due to criminal conviction.  (2) 18 Pa.C.S. § 9124(c) (relating to use of records by licensing agencies). (3) Any other statutory provision that disqualifies an individual from holding a license, certificate, registration or permit due to the individual's criminal conviction.  (a.1) Consideration.--A licensing board or licensing commission may not consider the provisions specified under subsection (a) in determining whether an individual qualifies for a license, certificate, registration or permit but instead shall determine the individual's qualification for a license, certificate, registration or permit in accordance with the procedures specified under this section.  (b) Analysis of criminal convictions.--Except as provided in subsections (d), (e) and (f), a licensing board or a licensing commission shall engage in a two-stage analysis of the criminal convictions of the applicant. The following shall apply:  (1) The first stage of the analysis shall determine whether the criminal conviction directly relates to the occupation, trade or profession for which the individual seeks licensure by reviewing the schedule of offenses in section 3117 (relating to list of criminal offenses). If the offense is found on the list of offenses that are directly related to the occupation, trade or profession, the licensing board or licensing commission shall then determine whether licensure of the individual would pose a substantial risk to the health and safety of the individual's patients or clients or the public or a substantial risk of further criminal convictions by conducting the individualized assessment specified in subsection (c). There shall be a rebuttable presumption that licensure of the individual with a criminal conviction that directly relates to the occupation, trade or profession would pose a substantial risk to the health and safety of the individual's patients or clients or the public or a substantial risk of further criminal convictions. The individual may rebut the presumption by showing evidence of rehabilitation, as specified in the factors in subsection (c).  (2) If, after reviewing the schedule of offenses in section 3117, the criminal conviction is determined not to be directly related to the occupation, trade or profession, the licensing board or licensing commission shall proceed to the second stage of the analysis of the criminal conviction. During the second stage of the analysis, the licensing board or licensing commission shall determine whether, due to the nature of the criminal conviction, licensure of the individual would pose a substantial risk to the health and safety of the individual's patients or clients or the public or a substantial risk of further criminal convictions. If so, the licensing board or licensing commission shall conduct the individualized assessment specified in subsection (c). The individual may rebut the determination by showing evidence of rehabilitation, as specified in the factors in subsection (c).  (c) Individualized assessment.--A licensing board or licensing commission shall conduct an individualized assessment of the individual with respect to criminal convictions and rehabilitation. The licensing board or licensing commission shall only consider the following factors in order to determine whether the individual meets the requirements for issuance of a license, certificate, registration or permit under subsection (b)(1) or (b)(2):  (1) Whether the criminal conduct for which the individual was convicted involved an act or threat of harm against the individual. For purposes of this paragraph, the term "harm" includes harm to the victim, the personal property of the victim or reputation of the victim.  (2) The facts and circumstances surrounding the criminal conviction. (3) The number of criminal convictions. (4) Increase in age or maturity of the individual since the date of the criminal conviction. (5) The individual's criminal history or lack of criminal history after the date of conviction. (6) Successful completion of education and training activities, including those in a county correctional facility or the Department of Corrections.  (7) References from employers or others, including personnel of the county correctional facility or the Department of Corrections.  (8) Progress in personal rehabilitation since the conviction. (9) Whether the individual meets all other licensing qualifications of the applicable practice act, including any examination requirements.  (10) The individual's criminal history, or lack of criminal history, after the date of the criminal conviction while engaged in the same or similar profession or occupation.  (11) Any other factor deemed relevant to the licensing board or licensing commission regarding the fitness of the individual for licensure.  (d) Sexual offenses.--When determining eligibility for licensure as a health care practitioner, a licensing board or licensing commission may not issue a license, registration, certificate or permit or otherwise allow an individual to practice as a health care practitioner if the individual has been convicted of a sexual offense.  (e) Crimes of violence.--An individual convicted of a crime of violence as defined in 42 Pa.C.S. § 9714 (relating to sentences for second and subsequent offenses) may be granted a license, registration, certificate or permit by a licensing board or licensing commission if all of the following apply:  (1) If the individual was incarcerated, at least three years have elapsed since release from incarceration. The period of three years shall be tolled for a violation of parole.  (2) If the individual is serving a sentence other than a period of confinement in a State or county correctional facility, at least three years have elapsed since imposition of sentence.  (3) The individual has remained conviction-free during the periods specified in paragraph (1) or (2).  (4) The individual demonstrates significant rehabilitation since the criminal conviction. (5) The licensing board or licensing commission determines, by using the factors in subsection (c), except for subsection (c)(8), that licensure of the individual does not pose a substantial risk to the health and safety of the individual's patients or clients or the public or a substantial risk of further criminal convictions.  (f) Drug trafficking.--Notwithstanding any provision of law to the contrary, the provisions of the respective practice acts relating to felony drug convictions under the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act, or a conviction for an offense under the laws of another jurisdiction which, if committed in this Commonwealth, would be a felony under the Controlled Substance, Drug, Device and Cosmetic Act, shall only apply to an individual who has been convicted of a drug trafficking offense. The licensing board or licensing commission may show, by a preponderance of the evidence, that the amount or weight of the controlled substance involved in a conviction meets the requirements for a drug trafficking offense.  (g) Construction.--Nothing in this section shall be construed to restrict any of the other powers and duties of a licensing board or licensing commission in disciplinary or licensure matters.  (h) Public information.--Except for name, address and other identifying information, a determination under this section shall be public information.  (i) Definitions.--As used in this section, the following words and phrases shall have the meanings given to them in this subsection unless the context clearly indicates otherwise:  "Drug trafficking offense." A violation of section 13(a)(14), (30) or (37) of The Controlled Substance, Drug, Device and Cosmetic Act, if the controlled substance or a mixture containing it is:  (1) Marijuana, if the amount of marijuana involved is at least 50 pounds or at least 51 live plants.  (2) A narcotic drug classified in Schedule I or Schedule II under section 4 of The Controlled Substance, Drug, Device and Cosmetic Act, if the aggregate weight of the compound or mixture containing the substance involved is at least 100 grams.  (3) Any of the following, if the aggregate weight of the compound or mixture of the substance involved is at least 100 grams:  (i) Coca leaves. (ii) A salt, compound, derivative or preparation of coca leaves. (iii) A salt, compound, derivative or preparation which is chemically equivalent or identical with any of the substances under subparagraphs (i) and (ii).  (iv) A mixture containing any of the substances under subparagraphs (i) and (ii), except decocainized coca leaves or extracts of coca leaves which do not contain cocaine or ecgonine.  (4) Any of the following, if the aggregate weight of the compound or mixture of the substance involved is at least 100 grams:  (i) Methamphetamine. (ii) Phencyclidine. (iii) A salt, isomer or salt of an isomer of methamphetamine or phencyclidine. (iv) A mixture containing: (A) Methamphetamine or phencyclidine. (B) A salt of methamphetamine or phencyclidine. (C) An isomer of methamphetamine or phencyclidine. (D) A salt of an isomer of methamphetamine or phencyclidine. (5) Heroin or a mixture containing heroin, if the aggregate weight of the compound or mixture containing the heroin is 50 grams or greater.  (6) A mixture containing 3,4-methylenedioxyamphetamine (MDA); 3,4-methylenedioxymethamphetamine (MDMA); 5-methoxy-3,4-methylenedioxyamphetamine (MMDA); 3,4-methylenedioxy-N-ethylamphetamine; N-hydroxy-3,4-methylenedioxyamphetamine when the aggregate weight of the compound or mixture containing the substance involved is at least 1,000 tablets, capsules, caplets or other dosage units or 300 grams.  (7) Fentanyl or a mixture containing fentanyl, if the aggregate weight of the compound or mixture containing the fentanyl is 10 grams or more.  (8) Carfentanil or a mixture containing carfentanil, if the aggregate weight of the compound or mixture containing the carfentanil is one gram or more.  "Healing arts." The science and skill of diagnosis or treatment in any manner whatsoever of disease or any ailment of the human body.  "Health care practitioner." An individual who is authorized to practice some component of the healing arts by a license, certificate, registration or permit issued by a licensing board or licensing commission.  "Sexual offense." An act, conspiracy or solicitation to commit any of the following offenses or an equivalent crime in another jurisdiction:  (1) 18 Pa.C.S. § 2910 (relating to luring a child into a motor vehicle or structure). (2) Any of the offenses enumerated in 18 Pa.C.S. Ch. 30 (relating to human trafficking) if the offense involved sexual servitude.  (3) Any of the offenses enumerated in 18 Pa.C.S. Ch. 31 (relating to sexual offenses). (4) 18 Pa.C.S. § 4302 (relating to incest). (5) 18 Pa.C.S. § 4304(a)(1) (relating to endangering welfare of children) if the offense involved sexual contact with the victim.  (6) 18 Pa.C.S. § 5901 (relating to open lewdness) if the offense involved a minor under 18 years of age.  (7) 18 Pa.C.S. § 5902(b) or (b.1) (relating to prostitution and related offenses). (8) 18 Pa.C.S. § 5903 (relating to obscene and other sexual materials and performances) if the offense involved a minor under 18 years of age.  (9) 18 Pa.C.S. § 6301(a)(1)(i) (relating to corruption of minors) if the offense involved sexual contact with the victim.  (10) 18 Pa.C.S. § 6301(a)(1)(ii). (11) 18 Pa.C.S. § 6312 (relating to sexual abuse of children). (12) 18 Pa.C.S. § 6318 (relating to unlawful contact with minor). (13) 18 Pa.C.S. § 6320 (relating to sexual exploitation of children). (14) 18 Pa.C.S. § 7507.1 (relating to invasion of privacy).   Effective Date. Section 6(1) of Act 53 of 2020 provided that the addition of section 3113 shall take effect in 180 days.  Special Provisions in Appendix. See section 5 of Act 53 of 2020 in the appendix to this title for special provisions relating to applicability.  Cross References. Section 3113 is referred to in sections 3115, 3116, 3117, 3118 of this title; section 9124 of Title 18 (Crimes and Offenses).