Sunday, May 06, 2018

employment - prof. license - suspension - evidence in mitigation - ex parte evidence


Abruzzese v. State Board of Cosmetology – Cmwlth. Court – reported decision – April 156, 2018


Held:  Indefinite suspension of cosmetologist’s license because of a single-count felony conviction was improper, under the following circumstances:

            - prior to the suspension, claimant applied for and was granted a license,
            - claimant’s application included information about her criminal conviction
            - the Board’s only evidence was three documents relating to the criminal case – no testimony
            - claimant presented substantial evidence in mitigation to a hearing examiner
            - hearing examiner recommended suspension of license, but immediate stay of suspension, along with 2-years probation
            - Board reversed hearing examiner, ordered indefinite suspension, without consideration of mitigating evidence or hearing examiner’s decision
            - Board abused its discretion in rejecting recommendation of hearing examiner.

Improper consideration of ex parte evidence
Board improperly found that patrons of cosmetology salon were in a “vulnerable state while receiving services” – during which time they were separated from their personal belongings, including possible controlled substances prescribed by their treating physician.  There was “zero evidence” of this in the case record.   “Board members may not fill the gaps in the evidentiary record by using their personal knowledge. Yi v. State Board of Veterinary Medicine, 960 A.2d 864, 869 (Pa. Cmwlth. 2008) (holding that the personal knowledge of board members is not a substitute for record evidence). Board members must rely only upon the evidence of record in rendering an adjudication. It is a requirement of due process that an agency base “its adjudication on evidence admitted at the hearing and not on matters that are not in evidence.” Campbell v. Bureau of Professional and Occupational Affairs, State Board of Medicine (Pa. Cmwlth., No. 44 C.D. 2014, filed July 8, 2014), slip op. at 7 (unreported). We hold that the Board erred as a matter of law and abused its discretion by assuming facts not in evidence when it rejected the recommendation of both the Bureau and the hearing examiner.”

Mitigation evidence – abuse of discretion in failing to consider – improper to require written evidence to support testimony
            -The Board erred failing to consider that it had granted applicant a limited license, with the knowledge that she had a criminal conviction.  Limited license requires “good moral character.”
            - The Board improperly discounted testimony of claimant and her relatives, which it found, without evidentiary support, was biased.
            - There is no requirement that testimony be supported by documents, which are not preferable to oral statements.  “Written documents are not preferable to oral statements, as the Board mistakenly believes. There is no such evidentiary principle. See Commonwealth ex rel. Park v. Joyce, 175 A. 422, 424 (Pa. 1934) (“[T]here is no rule preferring written to oral statements.”). A document needs to be produced only where the contents of the writing are at issue. . . .The best evidence rule does not apply where the matter to be proved exists independently of the writing. . . . Whether Licensee assisted law enforcement and participates in ongoing therapy are facts that exist independent of written documentation that might also be probative. The Board incorrectly invoked the best evidence rule, which requires the submission of documents only where the contents of those documents are at issue. This was palpable error on the part of the Board.”

>