Abruzzese v. Bureau of Prof'l & Occupational Affairs

185 A.3d 446

Rosemarie ABRUZZESE, Petitioner

v.BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS, STATE BOARD OF COSMETOLOGY, Respondent

No. 1121 C.D. 2017

Commonwealth Court of Pennsylvania.

Argued March 8, 2018

Decided April 16, 2018

James R. Lloyd, III, Philadelphia, for petitioner.

Ariel O'Malley, Assistant Counsel, Harrisburg, for respondent.

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE DAN PELLEGRINI, Senior Judge

OPINION BY PRESIDENT JUDGE LEAVITT

Rosemarie Abruzzese (Licensee) petitions for review of an adjudication of the State Board of Cosmetology suspending her esthetician's license for an indefinite period of time because of her single-count felony conviction. Licensee contends that the Board erred and abused its discretion. She argues that the Board considered facts not in the record; did not properly address her mitigating evidence; and could not articulate how its sanction for her misconduct, which occurred before she was first licensed, advances a public interest that the Board was created to advance.

Background

The State Board of Cosmetology (Board) has issued Licensee a limited license to "engage in the practice of esthetics only." Section 5 of the act commonly known as the Beauty Culture Law, Act of May 3, 1933, P.L. 242, as amended , 63 P.S. § 511. "Esthetics" is defined as

the practice of massaging the face, applying cosmetic preparations, antiseptics, tonics, lotions or creams to the face, removing superfluous hair by tweezers, depilatories or waxes and the dyeing of eyelashes and eyebrows.

Section 1 of the Beauty Culture Law, 63 P.S. § 507.

On June 9, 2016, the Bureau of Professional and Occupational Affairs (Bureau) issued Licensee an Order to Show Cause why her esthetician's license should not be suspended or revoked as a result of her 2015 conviction for possession of controlled substances with intent to deliver. The Bureau initiated its enforcement action under authority of the Criminal History Record Information Act (CHRIA), which authorizes any Commonwealth agency to suspend or revoke a license where "the applicant has been convicted of a felony." 18 Pa. C.S. § 9124(c)(1). In her answer, Licensee admitted her plea of nolo contendere and asserted mitigating circumstances. A formal hearing was held on January 19, 2017.

At the hearing, the Bureau introduced three documents: its order to show cause; Licensee's answer thereto; and a certified copy of Licensee's single-count felony conviction and sentencing order. Notes of Testimony, 1/19/2017, at 12–14 (N.T. __); Reproduced Record at 12–14 (R.R. __). The Bureau presented no other evidence.

Licensee presented evidence to explain her felony conviction and show what steps she has taken to warrant her continued licensing. Her evidence was unrebutted, and the facts she established are not in dispute.

Licensee is a 31–year–old single mother. She has been a licensed esthetician since June 2015 and is presently employed as a laser technician at Laser Derm Skin Care Center and European Wax Center. She is solely responsible for the financial support of her two children, ages 10 and 5.

Licensee testified about the circumstances surrounding her criminal conviction. Licensee explained that she began using drugs in college. Then, in 2012 she sustained injuries in an automobile accident, for which she was prescribed pain medication. As a consequence, she developed an addiction and began selling her prescribed medications in order to purchase other drugs. In June 2014, Licensee sold five strips of Suboxone¹ to an undercover detective. In January 2015, she was arrested for possession of a controlled substance with intent to deliver² and incarcerated for 24 hours.

Following her arrest, Licensee cooperated with law enforcement in the investigation and arrest of a physician who was improperly prescribing controlled substances to his patients, including Licensee. She also entered a 30–day detoxification and drug rehabilitation program. On September 21, 2015, Licensee pled nolo contendere to possession of a controlled substance with intent to deliver and was sentenced to five years of probation and the payment of court costs in the amount of $2,238. Licensee testified that she has not used opiates since February 12, 2015, when she completed her 30–day rehabilitation. Since then, Licensee has been attending Narcotics Anonymous (NA) and Alcoholics Anonymous (AA) meetings. She regularly sees a therapist.

In June 2015, while her criminal charges were pending, Licensee applied for a limited license as an esthetician. On her application, she disclosed her arrest and the pending criminal charges. In addition, she contacted the State Board of Cosmetology to inquire whether she even had "a shot" at getting a license because of the pending criminal charges and was told "absolutely." N.T. 46; R.R. 46.

Licensee testified that she was "not going to take [her] life or this chance or anything for granted anymore." N.T. 51; R.R. 51. She has a support system and has taken significant steps to maintain sobriety, to which she is committed. In support of her ability to keep this commitment, Licensee presented 15 letters written by family members, friends, clients and her current employers. In addition, three family members testified on her behalf.

Her sister, Danielle Abruzzese, testified that she has observed significant personal growth and change in Licensee. She described Licensee as "accountable ... reliable ... [and] there for her children." N.T. 16; R.R. 16. She testified that Licensee was "the most dedicated person ... to her career[,] loves what she does[, and is] absolutely fabulous at it." N.T. 16–17; R.R. 16–17. Danielle Abruzzese testified that Licensee has a good reputation and gives back to the community by speaking at AA meetings, which gives "strength and hope" to persons struggling with addiction. N.T. 20; R.R. 20.

Licensee's mother, Terese Abruzzese, testified. She attributed Licensee's drug use to the 2012 car accident, after which Licensee developed a dependency upon the pain medication she was prescribed. Licensee's mother noted that during the period of Licensee's drug dependency, she did not steal money. Licensee's mother testified that Licensee deserved a second chance because "she loves ... [the] profession" and is "living clean and living well every single day." N.T., 27, 29; R.R. 27, 29. As a registered nurse, Licensee's mother acknowledged that there was always a chance of relapse, but explained:

[W]hat I've read, and I've read extensively on the issue of addiction and the disease, there are certain things that really eliminate or really modify those chances of relapse. And they are a strong support system, working the program, and having a spiritual relationship with God. And [Licensee's] very solid there. So with those things in place, I think the chances of relapse are low.

N.T. 32; R.R. 32.

Licensee's mother testified that since the arrest, Licensee has been giving back to the community in different ways. She buys toys and donates clothes to help others in need. She explained that Licensee will

give[ ] people rides. Somebody can't get a ride to a [NA or AA] meeting ... she's the one that takes them, makes sure they get there. She's on the phone with them if they're having a crisis.

N.T. 31; R.R. 31.

Tom Abruzzese, Licensee's father, testified that Licensee has worked very hard to change her life. He confirmed that Licensee actively participates in the recovery program and gives talks on addiction and recovery.

The hearing examiner credited Licensee's testimony and that of her family members, which was offered to show that Licensee "has achieved significant personal growth and rehabilitation since having committed her crime and, as a result, is not likely to revert to using or selling drugs." Proposed Adjudication, 4/5/2017, at 9. The hearing examiner found that Licensee's witnesses "attested to the dramatic transformation [Licensee] has undertaken in terms of the growth she has experienced since her arrest and completion of drug treatment." Id. The hearing examiner observed, nevertheless, that Licensee's abstinence, which began in February of 2015, was not one of long duration. Further, her sentence of probation did not end until 2020. Given her history of drug abuse, the hearing examiner questioned Licensee's

ability to live a life free from drug use and criminal behavior. In particular, the record fails to contain sufficient substantive mitigating evidence through the presentation of expert testimony or similar authority to significantly eliminate concerns about [Licensee's] ability to safely practice the profession.

Id. at 10. Consistent with these observations, the hearing examiner rejected Licensee's request that the Board refrain from the imposition of any sanction or discipline.

Instead, the hearing examiner accepted the Bureau's recommendation that Licensee's license be suspended but with the suspension immediately stayed, so that she could continue to work. The hearing examiner found that the Bureau's proposed discipline would protect the public and would deter Licensee from repeating her criminal conduct. The hearing examiner believed that a period of two years probation was appropriate given "the recent nature of [Licensee's] conduct and concerns over her effect on public safety." Id.

Thereafter, the Board issued a notice of its intent to review the hearing examiner's proposed adjudication. Neither party filed a brief. On July 14, 2017, the Board issued a final adjudication that indefinitely suspended Licensee's license effective August 14, 2017, with the opportunity to request a probationary reinstatement of her license on August 14, 2018. The Board explained that it was concerned about the "vulnerable state" of patrons who are often separated from "their personal belongings while receiving various services within a salon." Final Adjudication, 7/14/2017, at 9. Licensee petitioned for this Court's review.³

On...