The Criminal History Record Information Act, 18 Pa. C.S. § 9124(c)(1) (CHIRA), requires Pennsylvania’s licensing boards consider criminal convictions disclosed on license applications or which take place after licensure as a reason to discipline active licensees. Different licensing boards apply CHIRA’s rules differently.

It is important to have competent counsel at this hearing.  Counsel should object to inadmissible portions of the certified conviction documents. Objections to hearsay statements in affidavits of probable cause eliminate statements of people not present at the hearing.  The licensee can not cross-examine that witness.   I always have these documents paired down and limited.  My client/licensee’s explanation of the criminal case is the only version of events. Consistent Nguyen v. BPOA, licensees are allowed to explain their role in any multi-defendant criminal case. They may explain a co-defendant’s greater role than their own.During her hearing, through counsel, Bentley presented significant and appropriate mitigation evidence. Mitigation evidence included the delay of the prosecution versus the time of the criminal act; new and abundant family support; full and complete responsibility for the criminal act; the unique set of factors leading up to the criminal charges and her association with her then boyfriend and now co-defendant.  Most importantly, she described her rehabilitation while in state prison. This rehabilitation included anger management, employment/cosmetology training, and new religious faith. She presented reasonable and appropriate community reputation evidence. This evidence corroborated her claim of being rehabilitated, remorseful for her actions, and turning over a new leaf.

The hearing officer suspended Bentley’s license for the balance of her parole (probably not long). The Cosmetology Board, as all boards do, issued a notice of intent to review the hearing officer’s decision.  The Cosmetology Board rejected as modest Bentley’s mitigation evidence. The board suspended Bentley’s cosmetology license for three years based upon the criminal convictions. The Board rejected Bentley’s need for licensure to remain employed, her rehabilitation, and need to support herself.Bentley appealed to the Commonwealth Court.  She claimed the Board abused its discretion when it rejected her mitigation evidence and suspended her license based solely on the criminal convictions.  Bentley alleged that the Board summarily ignored all of her uncontested mitigation evidence, which was not contradicted by any evidence the Commonwealth introduced in the certified criminal conviction. Bentley argued the suspension was manifestly unreasonable because the convictions bore no relation to the practice of cosmetology. Arguing the Board’s conduct capriciously disregarded her mitigation evidence absent explanation was an abuse of discretion.On review the Commonwealth court agreed. Commonwealth Court defines capricious disregard as “when there is a willful and deliberate disregard of competent testimony and relevant evidence which one of ordinarily intelligence could not possibly have avoided in reaching a result. When strong evidence contradicts contrary evidence, the adjudicator must explain the basis for its determination.” Absent a proper explanation why the adjudicator is rejecting overwhelming critical evidence, the board abuses its discretion.As with many of my cases the time delay between criminal event, conviction, and disciplinary action may be five or six years. I argue Board delay which allows the licensee to practice of their profession for three or four years renders mute any board allegation that there is an emergent basis for extensive discipline. Suspension or revocation is not warranted if the board took six years to do it.