Bentley v. State Board of Cosmetology –
Cmwlth. Court – February 28, 2018
Held:
Decision of Board suspending cosmetologist’s license for three years
reversed and case remanded, with directions to the Board to consider the
unrebutted evidence in mitigation that she presented.
Employee has been licensed since
2007. In 2013 and 2014, she was
convicted of felony drug offenses, for which she served two years in
prison. She disclosed the convictions to
the Board. She was re-employed within a
couple of months after her release.
A year after her release, the Board
directed her to show cause why her license shouldn’t be suspended. Her current employer offered strong
supportive evidence. The Board relied
solely on the criminal records. The
hearing examiner found her credible and entered eleven (11) findings about the
mitigating evidence. The Board did not
adopt any of the findings, stating only that the mitigating evidence was “modest”
and otherwise giving it no consideration.
The Board did not explain if it
disagreed with the mitigation findings or why it did not adopt them.
A
professional licensing board may use a hearing examiner to take evidence, but
the ultimate fact finder is the board. Pellizzeri v. Bureau of Professional and
Occupational Affairs, 856 A.2d 297, 301 (Pa. Cmwlth. 2004). An administrative
agency is not required to adopt the hearing examiner’s proposed findings of
fact. See Bucks County Public Intermediate Unit No. 22 v. Department of
Education, 529 A.2d 1201 (Pa. Cmwlth. 1987). However, in reaching its decision,
the Board must review the entire record and consider all evidence, including
evidence of mitigating circumstances. See Markel v. Bureau of Professional and
Occupational Affairs, State Board of Vehicle Manufacturers, Dealers and
Salespersons, (Pa. Cmwlth., No. 1800 C.D. 2013, filed May 8, 2014)
(unreported). Here, the Board’s adjudication recited that it “reviewed the
entire record,” but its “conclusory recital cannot be reconciled with the
Board’s adjudication, which does not address the hearing examiner’s extensive
findings on and discussion of the
mitigating evidence.”
Before
the Board can suspend a cosmetologist’s license, it must give the person notice
of the charges and the opportunity for a hearing. See Section 13(a) of the
Beauty Culture Law, 63 P.S. §519(a). 4 The purpose of the hearing is to allow
licensees an opportunity to “defend against the allegations in the Order to
Show Cause or to present evidence in mitigation of any penalty which may be
imposed upon [them] or any of [their] licenses, certifications, registrations,
permits or other authorizations to practice [cosmetology].” Order to Show
Cause, 2/29/2016, at 5-6; R.R. 6a-7a (emphasis added). Where a licensee
presents mitigating evidence, the Board must consider that evidence. See Nguyen
v. Bureau of Professional and Occupational Affairs, State Board of Cosmetology,
53 A.3d 100, 109 (Pa. Cmwlth. 2012) (when imposing discipline, Board must
compare mitigating evidence of record to seriousness of misconduct). The
procedures in the Beauty Culture Law apply even though the substantive basis
for the Bureau’s enforcement action was CHRIA. The Board suspended Bentley’s
license under Section 9124(c)(1) of Criminal History Record Information Act
(CHRIA), 18 Pa. C.S. §9121 et seq. , which is a general statute that applies to
every Pennsylvania licensing agency.
By
contrast, the statute by which the employee holds a license is the Beauty
Culture Law, and it authorizes a license suspension only for misconduct
related to the practice of cosmetology. 63
P.S. §519(a) (emphasis added). This has been construed to mean that a
cosmetologist’s “license can be revoked ‘for gross incompetency or dishonest or
unethical practices’ but, like the [Barber License] Law, does not include any
reference to revocation for criminal convictions.” Kirkpatrick v. Bureau of
Professional and Occupational Affairs, State Board of Barber Examiners, 117
A.3d 1286, 1293 (Pa. Cmwlth. 2015) (internal quotation omitted).
CHRIA
is a general law that authorizes, but does not require, an agency to suspend a
license upon the licensee’s felony conviction. CHRIA does not provide standards
for the exercise of the agency’s discretion under Section 9124(c)(1). By
contrast, the specific, and more relevant statute, is the Beauty Culture Law,
and it does not authorize any discipline for criminal convictions unrelated to
the practice of the profession. This makes a licensee’s evidence of mitigating
circumstances critical where presented.
Here,
the Board did not take any steps to sanction the employee immediately upon her
conviction. Instead, it waited for over a year after her release from prison to
take any action, from which it had the discretion to forbear. The Board’s
capricious disregard of the mitigation evidence constitutes a violation of its
responsibility to review, with care, such evidence. Accordingly, the court vacated the Board’s
adjudication and remanded the case tothe Board to consider the evidence of
mitigation.
