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Fisher v. Commonwealth

Court of Appeals of Kentucky

June 14, 2013

ANTHONY FISHER APPELLANT
v.
COMMONWEALTH OF KENTUCKY, PUBLIC PROTECTION CABINET, DEPARTMENT OF HOUSING, BUILDINGS AND CONSTRUCTION, DIVISION OF PLUMBING APPELLEE

APPEAL FROM FRANKLIN CIRCUIT COURT HONORABLE THOMAS D. WINGATE, JUDGE ACTION NO. 10-CI-01452

BRIEF FOR APPELLANT: Clayton B. Patrick Frankfort, Kentucky.

BRIEF FOR APPELLEE: Dawn Michele Bellis Frankfort, Kentucky.

BEFORE: ACREE, CHIEF JUDGE; MOORE AND TAYLOR, JUDGES.

OPINION

MOORE, JUDGE:

Anthony Fisher appeals the Franklin Circuit Court's order affirming the Department of Housing, Buildings and Construction's (hereinafter "DHBC") decision to revoke his master plumber's license. Because we agree with the result that was reached in this matter, we affirm.

FACTUAL AND PROCEDURAL HISTORY

The issue in this case is the extent of an administrative agency's authority to grant a professional license to a convicted felon.

This case began on October 19, 2009, when DHBC, through its Division of Plumbing, issued Anthony Fisher a master plumber's license. By implication, this license permits an individual to work unsupervised inside of any building, including schools and private residences, regardless of who might be on the premises.[1] A few months afterward, DHBC received an anonymous complaint that Fisher was a sex offender. Upon conducting a brief review of the Kentucky State Police's internet-based sex offender registry, DHBC discovered that Fisher was indeed a sex offender and had been registered as such well prior to the issuance of his master plumber's license. Specifically, it discovered that Fisher had been imprisoned between May 2002 and August 2006 for a period of approximately 50 months after having pled guilty to committing two felony counts of sodomy, and one felony count of incest, against a child less than twelve years of age. For that reason, DHBC sent Fisher a letter on February 23, 2010, stating in relevant part:

This letter is to inform you that the Department of Housing, Buildings and Construction is seeking to revoke your Master plumbing license referenced above pursuant to KRS 318.066.
Violations of KRS 318.040 and KRS 318.064 and your status as a sex offender in the Commonwealth of Kentucky are the basis for the sanction proposed. KRS 318.040(1)(b) requires an applicant for a master plumber's license to, "Be of good moral character;". KRS 318.064(5) states the Department may revoke a plumber's license when the plumber is, "…guilty of such other unprofessional or dishonorable conduct of a character likely to deceive or defraud the public."
Records from the Metcalfe Circuit Court indicate the Court accepted your guilty plea to two counts of sodomy (2nd degree) and one count of incest on July 18, 2003. On August 5, 2003, the Court imposed a final sentence in the case. Because of the conviction on these charges, the Department believes you were not "of good moral character" at the time you applied for a plumbing license in 2009. Further, the Department believes your failure to disclose your prior criminal history was an effort to deceive and defraud the public and this Department. As a result, the Department is seeking to revoke your Master plumbing license.

DHBC's letter further advised Fisher of his right to request a hearing on this matter. Fisher did so; a hearing was held on June 22, 2010; and the focus of this matter became the interplay between KRS 318.040 and KRS 318.064, and whether those statutes provided DHBC with a basis for revoking Fisher's master plumber's license under the circumstances.

As an aside, DHBC's letter highlights one of two problems that would continue throughout the procedural history of this case, namely, that the parties and the various reviewing tribunals ultimately became convinced that this matter turned upon an interpretation of KRS 318 et seq., the statutes that ordinarily govern the plumbing profession in Kentucky. KRS 318.040(1)(b), which provides that an applicant for a master or journeyman plumber's license shall be "of good moral character, " might be understood to mean that an applicant with a prior felony conviction could be rejected, for that reason, on the basis of having bad moral character.[2] Similarly, one or more of the bases for revoking a plumber's license specified in KRS 318.064 might be understood to encompass a prior felony conviction.[3]

However, neither of these statutes imposes a clear duty upon an applicant or licensee to report a prior felony conviction to DHBC; DHBC has never promulgated any regulation to that effect; and, to the extent that a statute in KRS 318 et seq. could supply a basis for granting, denying, renewing, suspending, or revoking a license with regard to individuals convicted of felonies, high misdemeanors, and misdemeanors for which a jail sentence may be imposed (i.e., by characterizing such offenses as evincing a "lack of good moral character, " "unprofessional conduct, " or anything else), those statutes have been superseded by KRS 335B et seq. See KRS 335B.010(4); KRS 335B.060.

In actuality, KRS 335B.020 provides the guiding rule of law in this matter. Fisher's felony convictions of sodomy and incest fall within the category of offenses described in KRS 335B.010(4). Section (1) of KRS 335B.020 generally prohibits DHBC and a wide array of other agencies from licensing any person convicted of those types of offenses:

(1) No person shall be disqualified from public employment, nor shall a person be disqualified from pursuing, practicing, or engaging in any occupation for which a license is required solely because of a prior conviction of a crime, unless the crime for which convicted is one described in KRS 335B.010(4) or otherwise directly relates to the position of employment sought or the occupation for which the license is sought.

(Emphasis added.)

The one exception to this general rule is contained in section ...


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