Not So CLEAR Cut Cases

Members of the Real Estate Council of Alberta (RECA) and senior staff attended the Council on Licensure, Enforcement and Regulation (CLEAR) Annual Educational Conference in September. CLEAR is a resource for professional regulators and is a neutral forum to encourage and provide for sharing best practices.

What’s really interesting is that despite the different occupations and different locations – a lot of the issues that regulators encounter are the same.

The presentation, “Top 10 Cases Regulators Need to Know,” put on by Bernard LeBlanc, Marc Spector and Amigo Wade, was a highlight for many conference attendees. Sometimes a professional regulatory body will make a decision and the licensee affected by that decision will appeal to a higher authority – such as the court. Sometimes the regulator’s decision stands, but sometimes it doesn’t. In the following cases, do you agree with the final decision?

Michael Barletta v. The City of Norwalk, Connecticut

• Was convicted of dealing narcotics in 2006 and served a three year sentence
• Applied for a licence as a precious metal dealer in 2009
• The licence was denied because of a state law barring convicted felons from holding a licence as a precious metals dealer

Should an individual with a past criminal record be prohibited from receiving a professional licence?

Answer: No. Barletta appealed an original decision and it was found that he indeed should be licensed. The judge ruled that since there was no rational connection between his drug conviction and the precious metal industry, it was unconstitutional for him to be denied a licence.

Kelly v. Ontario

The College of Physicians and Surgeons wanted to use a hard drive containing child pornography, which the police illegally obtained, in Kelly’s disciplinary hearing.
Criminal charges were withdrawn because police had used an invalid warrant to obtain the hard drive – but the College still wanted to use the hard drive in its disciplinary proceedings

Should illegally obtained evidence be admissible at a regulator’s discipline hearing?

Answer: The Court would not order the destruction of the hard drive because it could be admissible in the disciplinary hearing. The Court held it was for the College’s own Discipline Committee to decide whether the evidence should be admitted.

Marc A Hagen, DDS, v. Iowa Dental Board

• Was initially issued his dental licence in 1996.
• Dental licences expire on August 31 in even numbered years in Iowa
• The Iowa Dental Board allows a six-day grace period after August 31 for renewals to be processed
• Hagen claims he mailed his renewal on August 30
• The Board had no record of receiving it and therefore found him to be engaging in unlicensed practice
• Hagen challenged the ruling in court

Should an industry professional with a lapsed license be charged with engaging in unlicensed practice if the industry professional believed the licence had been validly renewed and can produce evidence supporting that belief?

Answer: The Iowa Dental Board was only required to find that Hagen engaged in the practice of dentistry after failing to renew his licence. The Board was not required to find that Hagen knew he failed to renew his licence. Hagen violated the law whether he knew it or not.