Another Appeals Court Reverses a Pennsylvania Licensing Board Disciplinary Decision

In April 2018 a Pennsylvania appellate court issued a decision in Abruzzese v BPOA, --- A.3d --- (2018). This case is one of three Spring 2018 cases reversing a Pennsylvania licensing board arbitrary disciplinary decision. I've written about the other two cases,  .

Abruzzese is a cosmetologist. The Board sought to indefinitely suspended her license due to a single felony conviction. Abruzzese's license was subject to discipline due to a 2015 felony Drug Act conviction. Her license was also subject to discipline as a result of the Criminal History Reporting Information Act ("CHRIA). Unlike medical profession licensees, the Beauty and Culture Law does not include provisions requiring any license suspension for a Pennsylvania Drug Act violation.

At the hearing she presented a support system for maintaining her surprisingly, 15 letters of recommendation, and family members testified as to her personal growth reliability and dedication to her family and sober living.

 

Abruzzese presented the following mitigation evidence:

1) her history of drug use;

2) the circumstances surrounding her criminal conviction,

3) a 2012 complex automobile accident for which she sustained significant and life-changing injuries that resulted in an addiction to drugs,

4) the financial issues causing her to sell five strips of Suboxone to an undercover cop,

5) her cooperation with law-enforcement in the investigation and arrest of a physician improperly prescribing controlled substances,

6) her 30-day detox and drug rehabilitation treatment and NA and AA enrollment, and

7) a no contest plea on her criminal charges for which she received 5 years probation.

The hearing examiner issued a proposed adjudication suspending her license, but stayed the suspension in favor of two years of probation. The hearing examiner found that the probationary license would protect the public and deter Abruzzese from repeating any criminal conduct. The hearing examiner believed that a period of two years probation was appropriate given the recent nature of Abruzzese's rehabilitation, evidence of mitigation, and properly balanced public safety.

The Cosmetology Board rejected this mitigation evidence. The Cosmetology Board did not want Abruzzese to be a cosmetologist any longer. The board indefinitely suspended Abruzzese's license with the opportunity to request probationary reinstatement in 12 months. The Cosmetology Board explained "it was concerned about the vulnerable state of patrons who are often separated from their belongings while receiving various services with in a salon." There was no evidence of this in the hearing record.

On appeal Abruzzese argued the Board abused its discretion, was arbitrary and capricious in its disciplinary decision , did not consider her mitigation evidence, considered facts not in the record, and did not articulate how the Board sanction was relevant to the public interest. The court first reviewed CHRIA and the Beauty Culture Law to conclude there is no provision allowing for revocation of a license based upon criminal conviction.

Section 13A of the Beauty Culture Law states:"The board shall have the power to refuse, revoke, refused to renew or suspended licenses, pond do hearing, on proof of violation of any provisions of this act, or the rules and regulations a stab wish by the board under this act, or for gross incompetence he or dishonest or unethical practices, or for failing to submit to an inspection of a licensee's salon during business hours.

In reviewing Abruzzese's case and prior case law, Kirkpatrick v BPOA, the Court highlighted the unique omission in the Beauty Culture Law. The Beauty Culture Law allows Pennsylvania Department of Corrections, in conjunction with the Board of Cosmetology, to offer cosmetology training to eligible inmates. Obviously these inmates possess criminal convictions. The public policy is to allow to enable those released from jail with a criminal record to secure employment upon release from jail

The court, and relying upon the Bentley reverses the Cosmetology Board. The Court determines the Cosmetology Board abuses its discretion and capriciously disregardes Abruzzese's mitigation evidence. Similar to Levengood, this Commonwealth Court panel of judges did not like the Cosmetology Board ignoring Abruzzese's hard earned mitigation evidence.

The court highlighted the Cosmetology prosecutor's failure to cross-examine Abruzzese's witnesses, contest her employment evidence, or submit evidence contradicting Abruzzese's treatment, recovery, or police cooperation. The appeals court determined the Cosmetology Board relied on evidence not in the record and its unfounded rejection of Abruzzese's recovery. The Court admonished this and every other Board that presented oral testimony is far superior to documentary evidence. The Court also admonishes that the best evidence rule only applies where the matter to proved does exist independently of a writing. When a licensee testifies and the evidence of which she testifies is uncontradicted and uncontested, there is no basis fora licensing board to reject that testimony.

The appellate court went on to conclude that the Cosmetology Board action was arbitrary and capricious because it disregards properly admitted, admissible, and uncontradicted evidence. Abruzzese's counsel exposed the Board's deficient decision to the Commonwealth Court. The Commonwealth Court was so taken aback by the BPOA prosecutor's limited prosecution but grossly disproportionate Board disciplinary action.  The Court not only reversed the board decision, but ordered the Cosmetology Board to except the hearing officer's recommendation of probation.

A license once issued is very difficult to lose. Stripping a hard-working and earned Pennsylvania professional license should be a decision of last resort. In a long line of cases the courts have slowly begun to understand that employment reduces crime, drug use, mental health issues, domestic violence, and promote stability in childrens lives.  A licensee, working hard and earning their living should not be cast out on the street for prior criminal conduct both disclosed and not related to the use of their license.

In Bentley and Levengood versus PPOA the Commonwealth Court is raising its voice and employing its authority to preserve employment and engage in the public policy discussions of our day. These public policy discussions focus around rehabilitation and the lack of value in extreme continuing collateral consequences of criminal conduct.

In Levengood the court stated that it is the board of probation and parole To provide criminal probation supervisio to provide criminal probation supervision upon release from prison. In the same breath, the Court states it is not for Board to excessively discipline licensees who are on probation.  Let the licensees work, earn a living, pay taxes, and enjoy life.

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