             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Carson Home Child Care,                :
                Petitioner             :
                                       :   No. 1749 C.D. 2018
            v.                         :
                                       :
Department of Human Services,          :
                 Respondent            :
                                       :
Carson Home Child Care,                :
                Petitioner             :
                                       :   No. 184 C.D. 2019
            v.                         :
                                       :   Submitted: September 6, 2019
Department of Human Services,          :
                 Respondent            :



BEFORE:     HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE ELLEN CEISLER, Judge



OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                    FILED: December 5, 2019


            Carson Home Child Care (Carson), through Imani Simelani (Simelani),
petitions, pro se, for review of the November 26, 2018 order of the Pennsylvania
Department of Human Services (Department), Bureau of Hearings and Appeals
(BHA), adopting the adjudication and recommendation of an administrative law judge
(ALJ), which denied Simelani’s application for a certificate of compliance to operate a
family child care facility.1


                           Factual and Procedural Background
               On May 21, 2018, Carson, through Simelani, filed an application to
operate a family child care facility with the Department’s Office of Child Development
and Early Learning. (Certified Record (C.R.) at 19, 240.) As part of the application
process, Simelani was required to undergo a Federal Bureau of Investigation (FBI)
fingerprint record check, which indicated that he had a criminal record. (C.R. at 25.)
FBI records show that on January 15, 2013, Simelani was convicted in federal court on
a felony charge of conspiracy to sell, distribute, or dispense narcotics and was
sentenced to 39 months’ imprisonment. (C.R. at 31, 149.) By letter mailed on July 25,
2018, the Department notified Simelani that it had denied his application for a
certificate of compliance to operate a family child care facility. (C.R. at 129.) The
Department explained that his criminal history record indicated that he pled guilty to
conspiracy to distribute “crack and cocaine,” a felony. Id. The Department determined
that this felony conviction was also a crime of moral “turpitude/corruptness.” Id. In
support of its decision, the Department stated that it is permitted to deny an application
if the owner/operator has been convicted of a felony or crime of moral
corruptness/turpitude, citing sections 20.71(b)(1)(2) and 3290.12(d)(1)(2) of its
regulations, 55 Pa. Code §20.71(b)(1)(2) and 55 Pa. Code §3290.12(d)(1)(2). Id.




       1
         Simelani also separately appeals from the December 19, 2018 order denying his motion for
reconsideration as untimely, asserting that the request was timely. By order of February 27, 2019,
this Court consolidated both appeals and directed Simelani to address the timeliness of the motion for
reconsideration in his brief.


                                                  2
             On August 14, 2018, Simelani appealed from the Department’s July 25,
2018 decision. (C.R. at 12.) In his appeal, Simelani conceded that he was indeed
convicted of the charge at issue. (C.R. at 14.) The Department held a prehearing
conference on October 2, 2018. (C.R. at 268.) During the conference, Simelani did
not dispute his conviction. (C.R. at 276.) Nonetheless, he argued that the conviction
did not prohibit him from being able to work in child care. Id. A subsequent hearing
was scheduled to determine “whether or not the Department was correct to deny
[Simelani’s] application for the license based on their [sic] felony conviction. . . .”
(C.R. at 278.) However, the hearing never occurred because on October 3, 2018, a
Rule to Show Cause (Rule) was issued against Simelani to show why the case should
not be dismissed, as it appeared that the relief sought could not be granted. (C.R. at
113.) The Rule states that section 20.71(b)(1) of the Department’s regulations, 55 Pa.
Code §20.71(b)(1), authorizes the Department to deny a certificate of compliance if an
applicant has been convicted of a felony. Id. The Rule correctly points out that this
fact was not disputed by Simelani. Id.
             On November 2, 2018, Simelani filed his response to the Rule. (C.R. at
115.) Simelani raised numerous arguments in support of his claim. He alleges, inter
alia, that his constitutional rights of due process and equal protection were violated,
that the crime was not one of moral turpitude or corruptness, and that a bias against
felons exists. (C.R. at 115-16.)
             The Department responded on November 5, 2018, arguing that there is no
material fact in dispute and, therefore, it is entitled to an order upholding its denial of
the certification. (C.R. at 132.) In essence, the Department argued that because the
conviction is undisputed, and its regulations permit denial of a certificate if an applicant




                                             3
is convicted of a felony or a crime of moral turpitude, the law clearly entitled it to relief.
(C.R. 133 - 35.)
              On November 26, 2018, the BHA issued its final adjudication, accepting
the recommendation of the ALJ, which is the subject of the instant appeal. (C.R. at
239.) The ALJ noted that section 20.71(b) of the Department’s regulations, 55 Pa.
Code §20.71(b), permitted the Department to deny a certificate of compliance if an
owner/operator has been convicted of a felony or a crime of moral turpitude. (C.R. at
241.) The ALJ found that Simelani was undisputedly convicted of conspiracy to
distribute crack or cocaine. (C.R. at 242.) Finding that this is a crime of moral
turpitude, that the Department could have denied the certificate for the felony
conviction alone, and that his constitutional rights were not violated, the ALJ upheld
the Department’s decision and recommended dismissal of the action. Id. On December
12, 2018, Simelani filed a request for reconsideration which was denied as untimely on
December 19, 2018. (C.R. at 246-66.)


                                           Discussion
              On appeal,2 Simelani argues that his felony conviction was erroneously
categorized as a crime of moral turpitude. We disagree.
              We begin with the Department’s authority to deny an applicant a
certificate of compliance based on a criminal conviction. Section 20.71(b) of the
Department’s regulations, 55 Pa. Code §20.71(b), allows the Department to deny an
applicant for certain criminal convictions and provides as follows:


       2
         “This Court’s review in an appeal from an order of [BHA] is limited to determining whether
constitutional rights were violated, whether any errors of law were committed and whether any
necessary factual findings are supported by substantial evidence.” Burns v. Department of Human
Services, 190 A.3d 758, 761 n.1 (Pa. Cmwlth. 2018).


                                                4
               (b) The Department will review and may deny, refuse to
               renew or revoke a certificate of compliance if a legal
               entity, owner, operator or staff person:
                      (1) Has been convicted of a felony.
                      (2) Has been convicted of a crime involving child
                      abuse, child neglect, moral turpitude or physical
                      violence.
                      (3) Has serious mental illness which might create a
                      risk to the clients, which shall be determined and
                      documented by a licensed physician or a licensed
                      psychologist.
                      (4) Has evidenced drug or alcohol addiction within
                      the past year, which shall be determined and
                      documented by a licensed physician.
                      (5) Has been named as a perpetrator in an indicated
                      or founded report of child abuse in accordance with
                      the Child Protective Services Law [(CPSL)] ([
                      23 Pa.C.S. §§ 6301– 6386]).
55 Pa. Code §20.71(b) (emphasis added).3 Of course, the use of the word “may”
indicates that this provision is permissive, not mandatory. Nevertheless, it is well



       3
           The ALJ’s decision states, “Further, the regulations at 55 Pa. Code § 20.71(b)(1) and 55 Pa.
Code § 3290.12(d)(1) provide that the Department may deny an owner/operator a certificate of
compliance if they [sic] have been convicted of a felony.” (C.R. at 23.) Although section 3290.12(d)
of the Department’s regulation, 55 Pa. Code §3290.12(d), relates to the renewal or revocation of a
certificate of registration, our analysis is the same as section 20.71. Section 3290.12(d) provides, in
full, as follows:

               (d) The Department will review and may deny, refuse to renew or
               revoke a certificate of registration to an operator if one or more of
               the following applies to an operator, staff person, volunteer or
               another person present at the facility while children are in care.
                       (1) The person is convicted of a felony.
                       (2) The person is convicted of a crime involving child abuse,
                       child neglect, moral corruptness or physical violence.



                                                  5
within the province of the Department to refuse a certificate of compliance if an
owner/operator is a convicted felon or if he has been convicted of a crime involving
moral turpitude. The regulation above unequivocally grants the Department the
authority to deny a certificate of compliance if an applicant has been convicted of a
felony or a crime of moral turpitude. The authority to do so remains unquestioned by
either party. Rather, Simelani questions the classification of the crime as one of moral
turpitude.
             Simelani does not dispute the fact that he was convicted of a felony.
Significantly, on this basis alone, the Department could have rightfully denied his
application under the powers granted to it in the regulations. However, he calls into
question the nature of the crime as one of moral turpitude.
             Simelani points out that his conviction is under “[t]itle [21,] section 841,”
which states as follows:


             (a) Unlawful acts
             Except as authorized by this subchapter, it shall be
             unlawful for any person knowingly or intentionally--
             (1) to manufacture, distribute, or dispense, or possess with
             intent to manufacture, distribute, or dispense, a controlled
             substance; or

                    (3) The person demonstrates a mental illness which creates
                    a risk to children that is determined and documented by a
                    physician or CRNP.
                    (4) The person evidences drug or alcohol addiction within
                    the most recent 12-month period that is determined and
                    documented by a physician or [a Certified Nurse
                    Practitioner] [(]CRNP[)].
                    (5) The person is named in accordance with the CPSL as a
                    perpetrator in an indicated or founded report of child abuse.

55 Pa. Code § 3290.12



                                               6
              (2) to create, distribute, or dispense, or possess with intent
              to distribute or dispense, a counterfeit substance.

21 U.S.C. §841. However, the record clearly indicates that he was convicted of
conspiracy to commit this crime. Thus, the applicable portion of the statute states as
follows, “Any person who attempts or conspires to commit any offense defined in this
subchapter shall be subject to the same penalties as those prescribed for the offense,
the commission of which was the object of the attempt or conspiracy.” 21 U.S.C. §846.
Under federal law, in order to prove a conspiracy, the government must establish the
following, “(1) a shared unity of purpose, (2) an intent to achieve a common goal, and
(3) an agreement to work together toward the goal.” United States v. Iglesias, 535 F.3d
150, 156 (3d Cir. 2002). Conspiracy is a separate crime from the unlawful act
conspired to commit.         U.S. v. Salahuddin, 765 F.3d 329, 341 (3d Cir. 2014);
Commonwealth v. Hoke, 962 A.2d 664, 667 (Pa. 2009) (citing Commonwealth v.
Miller, 364 A.2d 886, 887 (Pa. 1976)). The underlying crime and the conspiracy are
undoubtedly separate crimes. Therefore, the pertinent conviction for this Court to
review is conspiracy, not distributing, manufacturing, or dispensing drugs.4
              We turn to the definition of a crime of moral turpitude. This Court has
repeatedly defined a crime of “moral turpitude” as “anything done knowingly contrary
to justice, [h]onesty, or good morals.”             Garner v. Bureau of Professional and
Occupational Affairs, State Board of Optometry, 97 A.3d 437, 439 (Pa. Cmwlth. 2014).
A crime of moral turpitude is defined by Black’s Law Dictionary as, “Conduct that is
contrary to justice, honesty, or morality; esp., an act that demonstrates depravity. . . .
‘moral turpitude means, in general, shameful wickedness –– so extreme a departure


       4
          Nonetheless, in Foose v. State Board of Vehicle Manufacturers, Dealers and Salespersons,
578 A.2d 1355, 1358 (Pa. Cmwlth. 1990), we found that possession with the intent to distribute is
also a crime of moral turpitude.


                                                7
from ordinary standards of honest, good morals, justice, or ethics as to be shocking to
the moral sense of the community.’” Black’s Law Dictionary (11th ed. 2019). The
“[d]etermination of whether a crime involves moral turpitude turns on the elements of
the crime, not an independent examination of the details of the behavior underlying the
crime.” Startzel v. Department of Education, 562 A.2d 1005, 1007 (Pa. Cmwlth. 1989)
(citing Flickinger v. Department of State, 439 A.2d 235 (Pa. Cmwlth. 1982)).
             In Foose v. State Board of Vehicle Manufacturers, Dealers and
Salespersons, 578 A.2d 1355, 1358 (Pa. Cmwlth. 1990), we found that the crime of
conspiracy to distribute cocaine in violation of 21 U.S.C. §841 was correctly classified
as a crime of moral turpitude. Similarly, in Bowalick v. Commonwealth, 840 A.2d 519
(Pa. Cmwlth. 2004), we concluded that “conspiracy to distribute and possess a
controlled substance constitutes [a] crime[] involving moral turpitude.” Id. at 523
(citing Yurick v. Department of State, Bureau of Professional and Occupational
Affairs, Board of Osteopathic Examiners, 402 A.2d 290, 292 (Pa. Cwmlth. 1979)).
Here, as in Foose and Bowalick, we must view the elements of conspiring to
manufacture, distribute, or dispense drugs as contrary to “good morals.” Furthermore,
the elements of the crime itself, “(1) a shared unity of purpose, (2) an intent to achieve
a common goal, and (3) an agreement to work together toward the goal,” in light of the
underlying crime, would still be viewed as involving moral turpitude and honesty.
Perez, 280 F.3d at 342.

             We emphasize that Simelani does not dispute his felony conviction for
conspiracy to distribute, manufacture, or dispense a controlled substance, which we
have already concluded is a crime of moral turpitude. In light of this conviction, the
Department was within its power to deny the certificate of compliance in accordance




                                            8
with section 20.71(b) of its regulations, and the BHA did not err as a matter of law by
upholding the Department’s decision.
               Although we are cognizant of the efforts by those with prior convictions
to re-enter the work force, we are unable to determine that the BHA abused its
discretion in affirming the denial of Simelani’s application under these circumstances.
               Accordingly, the November 26, 2018, and December 19, 2018 orders of
the BHA are affirmed.5




                                                  ________________________________
                                                  PATRICIA A. McCULLOUGH, Judge




       5
           As mentioned previously, in addition to the November 26, 2018 order, Simelani also
appealed from the December 19, 2018 order denying his motion for reconsideration. See supra
n.1. However, Simelani effectively abandoned his appeal from this order by failing to adequately
address it in his brief, see Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009); Browne v.
Commonwealth, 843 A.2d 429, 435 (Pa. Cmwlth. 2004), thereby depriving this Court with a basis to
either quash or dismiss the appeal. In any event, we will briefly address this appeal on the
merits. Having already determined that Simelani is not entitled to relief in the underlying appeal from
the BHA’s November 16, 2018 order, we similarly (and naturally) conclude that he is not entitled to
relief in the appeal from the order denying reconsideration. In other words, because we have
determined that Simelani is not entitled to relief under the November 26, 2018 order in which he also
asked for reconsideration, we naturally conclude reconsideration of the matter by the BHA would be
a nullity.


                                                  9
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Carson Home Child Care,              :
                Petitioner           :
                                     :    No. 1749 C.D. 2018
            v.                       :
                                     :
Department of Human Services,        :
                 Respondent          :
                                     :
Carson Home Child Care,              :
                Petitioner           :
                                     :    No. 184 C.D. 2019
            v.                       :
                                     :
Department of Human Services,        :
                 Respondent          :


                                  ORDER


            AND NOW, this 5th day of December, 2019, the order of the
Department of Human Services, Bureau of Hearings and Appeals, dated November
26, 2018 is affirmed.



                                         ________________________________
                                         PATRICIA A. McCULLOUGH, Judge
