RODGERS, Senior Judge.1
Markell D. Boulis, D.C., petitions for review of an order of the State Board of Chiropractic (Board) suspending Boulis’s license to practice chiropractic.2 We affirm.
Boulis was granted a license to practice chiropractic in Pennsylvania on November 12, 1991. In September of 1991, the state of Georgia charged Boulis with trafficking cocaine and with possession of cocaine with intent to distribute. On December 1,1993, a jury impaneled by the Superior Court of Cobb County, Georgia (Ga. Superior Court) found Boulis guilty of possession of cocaine with intent to distribute and not guilty of trafficking cocaine. On December 20, 1993, the Ga. Superior Court sentenced Boulis to prison for thirty years with five years to be served and twenty-five years on probation and assessed a fine of $50,000. Boulis then petitioned the Ga. Superior Court to modify his sentence under Georgia’s Probation for First Offender Act (Ga. First Offender Act).3
[647]*647At the January 21, 1994, re-sentencing hearing, Boulis stated, “It was my cocaine. I purchased it, and I was going to distribute it.” Subsequently, the Ga. Superior Court granted Boulis first offender status under the Ga. First Offender Act. As a result of this status, the Ga. Superior Court modified its December 30,1993, sentence, declared that no judgment of guilt would be imposed at that time and deferred further proceedings. The amended sentence requires Boulis to serve the twenty-five year probation under the Ga. First Offender Program, conditioned upon payment of a $100,000 penalty, a $50,000 surcharge, and twelve months confinement in the Cobb County jail. That twelvemonth imprisonment was suspended upon Boulis’s payment of $200,000 to the Marietta-Cobb-Smyma Narcotics Unit, six months confinement and his payment of the costs of that confinement in Allekiski Pavilions Diversion Center located in Pennsylvania. The record does not indicate whether Boulis has completed the six-month period at Allekiski Pavilions; Boulis currently is serving his twenty-five year probation.
On August 16, 1994, the Board issued a Notice and Order of Automatic Suspension automatically suspending Boulis’s license to practice chiropractic pursuant to Section 506(e) of the Chiropractic Practice Act (Chiropractic Act),4 based upon his Georgia felony conviction. Subsequently, Boul-is filed a petition for review with this Court, challenging his license suspension. Boulis also requested a stay of his suspension, which the Board granted on October 6,1994. On that same day, counsel for the Board and Boulis filed a joint application with this Court seeking remand to the Board for a hearing, which this Court granted. On January 12, 1995, a formal hearing was held before the Board for the purpose of determining whether a “conviction” existed that mandated the automatic suspension of Boulis’s license.
On March 31, 1998, the Board issued a decision and order suspending Boulis’s chiropractic license. In its decision, the Board found that the December 1, 1993, and December 20, 1993, court proceedings and orders, and Boulis’s statements at his January 21, 1994, re-sentencing hearing in Georgia for possession of cocaine with intent to distribute, each constitutes a felony drug “conviction” warranting the automatic suspension of Boulis’s license under Section 506(e) of the Chiropractic Act. The Board concluded that, had Boulis committed this crime in Pennsylvania, it would be a felony under Section 13 of Pennsylvania’s Controlled Substance, Drug, Device and Cosmetic Act,5 and thus, Section 506(e) of the Chiropractic Act authorized the Board to automatically suspend Boulis’s license. Accordingly, the Board suspended Boulis’s license to practice chiropractic, effective April 30, 1998. Boulis challenged the suspension by filing a petition for review of the order with this Court.6
Boulis asserts that, because Section 506(e) of the Chiropractic Act states that one’s license shall automatically be suspended upon “conviction of an offense under the laws of another jurisdiction,” the [648]*648Board was required to look to Georgia law to determine whether Boulis had been “convicted.” Boulis argues he had no judgment, admission of guilt or plea of guilty or nolo contendré in Georgia because he was granted first offender status pursuant to the Ga. First Offender Act and so was not convicted under Georgia law.
We note, however, that Boulis’s conviction existed as a judgment prior to his first offender sentence and remains in effect in Georgia until Boulis fulfills the terms of his probation.7 In Pennsylvania, probation without a verdict is a conviction for which a license is properly suspended. Horvat v. Department of State, 128 Pa.Cmwlth. 546, 563 A.2d 1308 (1989). Boulis is licensed to practice his profession here. It is the conditions set forth in Section 506(e) of the Chiropractic Act that control when his license should be granted, suspended or revoked. That section does not require that the conviction exist at the time of the automatic suspension, only that it did exist at some time.
Boulis’s statements at his re-sentencing hearing that it was his cocaine, he purchased it, and was going to distribute it are significant. These statements are sufficient to uphold his license suspension under Section 506(e) of the Chiropractic Act, as they constitute admissions of guilt.
Boulis next makes several arguments asserting that his due process rights were violated. We address each below.
First, Boulis argues the Board did not provide an impartial panel. The Chiropractic Act requires that five members of the State Board of Chiropractic be licensed to practice chiropractic in Pennsylvania and have been engaged in the full-time practice of it here for at least five years before their appointment. Section 301(a)(4) of the Chiropractic Act, 63 P.S. § 625.301(a)(4). This Court has affirmed the need for Boulis to show that the Board’s chiropractor members receive a pecuniary benefit great enough to create an impermissible personal interest on their part. Reisinger v. State Board of Medical Education and Licensure, 41 Pa.Cmwlth. 553, 399 A.2d 1160 (1979). Boulis has not shown the required pecuniary benefit or any bias, and we conclude Boulis’s Board panel was impartial.
Boulis next alleges that the Board commingled its adjudicatory and prosecutorial functions by allowing the person who represented the Board in the first remand application to then sit on the Board as well as act as hearing examiner. Here, however, Boulis’s allegations are incorrect. Counsel for the Board does not sit on the Board and adjudicate or prosecute cases. Counsel’s role is to provide legal advice, conduct hearings, make evidentiary rulings in the hearing, and represent the Board when its decision is appealed. Lily-Penn Food Stores, Inc. v. Milk Marketing Board, 84 Pa.Cmwlth. 585, 481 A.2d 683 (1984). Advocacy of the Board’s decision in this Court does not constitute impermissible commingling of functions or a decision to prosecute. Neither the Board’s counsel, nor the Board itself, combined adjudicative functions or participated in the decision to prosecute.
Free access — add to your briefcase to read the full text and ask questions with AI
RODGERS, Senior Judge.1
Markell D. Boulis, D.C., petitions for review of an order of the State Board of Chiropractic (Board) suspending Boulis’s license to practice chiropractic.2 We affirm.
Boulis was granted a license to practice chiropractic in Pennsylvania on November 12, 1991. In September of 1991, the state of Georgia charged Boulis with trafficking cocaine and with possession of cocaine with intent to distribute. On December 1,1993, a jury impaneled by the Superior Court of Cobb County, Georgia (Ga. Superior Court) found Boulis guilty of possession of cocaine with intent to distribute and not guilty of trafficking cocaine. On December 20, 1993, the Ga. Superior Court sentenced Boulis to prison for thirty years with five years to be served and twenty-five years on probation and assessed a fine of $50,000. Boulis then petitioned the Ga. Superior Court to modify his sentence under Georgia’s Probation for First Offender Act (Ga. First Offender Act).3
[647]*647At the January 21, 1994, re-sentencing hearing, Boulis stated, “It was my cocaine. I purchased it, and I was going to distribute it.” Subsequently, the Ga. Superior Court granted Boulis first offender status under the Ga. First Offender Act. As a result of this status, the Ga. Superior Court modified its December 30,1993, sentence, declared that no judgment of guilt would be imposed at that time and deferred further proceedings. The amended sentence requires Boulis to serve the twenty-five year probation under the Ga. First Offender Program, conditioned upon payment of a $100,000 penalty, a $50,000 surcharge, and twelve months confinement in the Cobb County jail. That twelvemonth imprisonment was suspended upon Boulis’s payment of $200,000 to the Marietta-Cobb-Smyma Narcotics Unit, six months confinement and his payment of the costs of that confinement in Allekiski Pavilions Diversion Center located in Pennsylvania. The record does not indicate whether Boulis has completed the six-month period at Allekiski Pavilions; Boulis currently is serving his twenty-five year probation.
On August 16, 1994, the Board issued a Notice and Order of Automatic Suspension automatically suspending Boulis’s license to practice chiropractic pursuant to Section 506(e) of the Chiropractic Practice Act (Chiropractic Act),4 based upon his Georgia felony conviction. Subsequently, Boul-is filed a petition for review with this Court, challenging his license suspension. Boulis also requested a stay of his suspension, which the Board granted on October 6,1994. On that same day, counsel for the Board and Boulis filed a joint application with this Court seeking remand to the Board for a hearing, which this Court granted. On January 12, 1995, a formal hearing was held before the Board for the purpose of determining whether a “conviction” existed that mandated the automatic suspension of Boulis’s license.
On March 31, 1998, the Board issued a decision and order suspending Boulis’s chiropractic license. In its decision, the Board found that the December 1, 1993, and December 20, 1993, court proceedings and orders, and Boulis’s statements at his January 21, 1994, re-sentencing hearing in Georgia for possession of cocaine with intent to distribute, each constitutes a felony drug “conviction” warranting the automatic suspension of Boulis’s license under Section 506(e) of the Chiropractic Act. The Board concluded that, had Boulis committed this crime in Pennsylvania, it would be a felony under Section 13 of Pennsylvania’s Controlled Substance, Drug, Device and Cosmetic Act,5 and thus, Section 506(e) of the Chiropractic Act authorized the Board to automatically suspend Boulis’s license. Accordingly, the Board suspended Boulis’s license to practice chiropractic, effective April 30, 1998. Boulis challenged the suspension by filing a petition for review of the order with this Court.6
Boulis asserts that, because Section 506(e) of the Chiropractic Act states that one’s license shall automatically be suspended upon “conviction of an offense under the laws of another jurisdiction,” the [648]*648Board was required to look to Georgia law to determine whether Boulis had been “convicted.” Boulis argues he had no judgment, admission of guilt or plea of guilty or nolo contendré in Georgia because he was granted first offender status pursuant to the Ga. First Offender Act and so was not convicted under Georgia law.
We note, however, that Boulis’s conviction existed as a judgment prior to his first offender sentence and remains in effect in Georgia until Boulis fulfills the terms of his probation.7 In Pennsylvania, probation without a verdict is a conviction for which a license is properly suspended. Horvat v. Department of State, 128 Pa.Cmwlth. 546, 563 A.2d 1308 (1989). Boulis is licensed to practice his profession here. It is the conditions set forth in Section 506(e) of the Chiropractic Act that control when his license should be granted, suspended or revoked. That section does not require that the conviction exist at the time of the automatic suspension, only that it did exist at some time.
Boulis’s statements at his re-sentencing hearing that it was his cocaine, he purchased it, and was going to distribute it are significant. These statements are sufficient to uphold his license suspension under Section 506(e) of the Chiropractic Act, as they constitute admissions of guilt.
Boulis next makes several arguments asserting that his due process rights were violated. We address each below.
First, Boulis argues the Board did not provide an impartial panel. The Chiropractic Act requires that five members of the State Board of Chiropractic be licensed to practice chiropractic in Pennsylvania and have been engaged in the full-time practice of it here for at least five years before their appointment. Section 301(a)(4) of the Chiropractic Act, 63 P.S. § 625.301(a)(4). This Court has affirmed the need for Boulis to show that the Board’s chiropractor members receive a pecuniary benefit great enough to create an impermissible personal interest on their part. Reisinger v. State Board of Medical Education and Licensure, 41 Pa.Cmwlth. 553, 399 A.2d 1160 (1979). Boulis has not shown the required pecuniary benefit or any bias, and we conclude Boulis’s Board panel was impartial.
Boulis next alleges that the Board commingled its adjudicatory and prosecutorial functions by allowing the person who represented the Board in the first remand application to then sit on the Board as well as act as hearing examiner. Here, however, Boulis’s allegations are incorrect. Counsel for the Board does not sit on the Board and adjudicate or prosecute cases. Counsel’s role is to provide legal advice, conduct hearings, make evidentiary rulings in the hearing, and represent the Board when its decision is appealed. Lily-Penn Food Stores, Inc. v. Milk Marketing Board, 84 Pa.Cmwlth. 585, 481 A.2d 683 (1984). Advocacy of the Board’s decision in this Court does not constitute impermissible commingling of functions or a decision to prosecute. Neither the Board’s counsel, nor the Board itself, combined adjudicative functions or participated in the decision to prosecute. Lyness v. State Board of Medicine, 529 Pa. 535, 605 A.2d 1204 (1992).
Boulis’s third due process argument alleges that the Board violated his rights when it first suspended his license in August 1994 without a hearing and, even though a hearing eventually occurred, that due process violation was not cured. This Court has, however, established that a professional license may be automatically suspended without prior notice and a hearing. Firman v. Department of State, [649]*649State Board of Medicine, 697 A.2d 291 (Pa.Cmwlth.1997), petition for allowance of appeal denied, 550 Pa. 722, 706 A.2d 1215 (1998). Here, when the Board was alerted to the fact that the issue of Boulis’s conviction was unsettled, it participated with him in the joint petition for remand. Further, once the Board established Boul-is’s conviction, the statute mandated an automatic suspension of his license.
Boulis also complains that he did not receive notice or an opportunity to be heard when the Board, now comprised of some new members, approved the adjudication and order and removed the stay on his suspension in March 1998. The Board counters that this Court has allowed a process whereby Board members may adjudicate a case without being at the hearing as long as they review the record. Cavanaugh v. Fayette County Zoning Hearing Board, 700 A.2d 1353 (Pa.Cmwlth.1997). The Board deliberated on the record made at the hearing and approved the adjudication and order at a regularly scheduled public meeting in executive session.
Boulis asserts next that the thirty-eight-month delay between his hearing and the date his license was suspended has prejudiced him and is a violation of his due process. The Board responds that Boulis did not ask the Board for reconsideration or a stay pending this appeal. Laches is an affirmative defense in a disciplinary action and must be proven by the party asserting it. Weinberg v. State Board of Examiners of Public Accountants, 509 Pa. 143, 501 A.2d 239 (1985). The mere passage of time does not meet Boulis’s burden of proof or demonstrate a lack of due diligence by the Board. Kindle v. State Board of Nurse Examiners, 512 Pa. 44, 515 A.2d 1342 (1986). The Board’s decision to suspend Boulis’s license was a sound exercise of its discretion and, in the absence of bad faith, fraud, capricious action or abuse of power, is not renewable by this Court. Slawek v. State Board of Medical Education and Licensure, 526 Pa. 316, 586 A.2d 362 (1991).
Finally, Boulis argues that his license suspension by the Board violated the Double Jeopardy Clause.8 However, double jeopardy does not apply to administrative licensure proceedings. Hvdson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) (subsequent criminal prosecution for conduct that had earlier resulted in occupational debarment not barred by the Double Jeopardy Clause because earlier proceedings civil, not criminal, in nature); Nicoletti v. State Board of Vehicle Manufacturers, Dealers and Salespersons, 706 A.2d 891 (Pa.Cmwlth.1998) (revocation of license purely remedial civil penalty and does not implicate the Double Jeopardy Clause). The automatic suspension provision here is remedial and the Board correctly carried out its mandate to protect the public when Boulis was convicted of an offense that would be a felony under the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act.
Accordingly, the Board’s order suspending Boulis’s license to practice chiropractic is affirmed.
ORDER
AND NOW, this 14th day of April, 1999, the order of the State Board of Chiropractic, dated March 31, 1998, at Docket No. 0110-MISC-94, File No. 94-43-00958, is hereby affirmed.