Friday, March 02, 2018

employment - licensure - cosmetologist - criminal conviction - mitigating evidence

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.