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.”
