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Felony drug conviction insufficient to suspend cosmetology license

Credit: Oregon Department of Transportation

Credit: Oregon Department of Transportation

An April 16 decision by Pennsylvania’s Commonwealth Court reversed an indefinite license suspension placed on an esthetician who had been convicted of selling prescription pain medication. The court held that a felony conviction, by itself, was insufficient evidence to suspend a cosmetician in the state (Abruzzese v. Bureau of Professional and Occupational Affairs). The court also found fault with the state cosmetology board’s handling of evidentiary procedures.

In 2015, Rosemarie Abruzzese, a licensed Pennsylvania esthetician, was convicted of possessing prescription painkillers with an intent to deliver; she was sentenced to five years’ probation. The conviction prompted the state’s Bureau of Professional and Occupational Affairs, which had initially granted Abruzzese a license following her arrest but prior to her conviction, to open a disciplinary case.

At a hearing, the Bureau presented evidence of Abruzzese’s conviction to support its case, and Abruzzese presented what she believed to be mitigating evidence, explaining that she was a single mother of two and that she had become addicted to prescription painkillers and began selling her prescription medications to obtain other drugs.

Following her arrest, she explained, she cooperated with law enforcement in an investigation into the doctor who was improperly prescribing her prescription painkillers, entered into a detox and rehabilitation program, and had taken steps to maintain her sobriety in the time since. She also introduced testimony from members of her family, who stated that they had seen improvement and consistency from Abruzzese since she completed her rehabilitation.

Despite the mitigating evidence and a hearing examiner’s recommendation that the Board of Cosmetology only suspend Abruzzese’s license subject an immediate stay which would allow her to practice, the board indefinitely suspended Abruzzese’s license in 2017.

The board stated that its rationale for suspending Abruzzese’s license was that patrons of salons where estheticians work are separated from their belongings, making them vulnerable to theft. Abruzzese appealed, and the case went up to the Commonwealth Court of Pennsylvania.

Abruzzese’s appeal met with success. Judge Mary Hannah Leavitt, writing for the court, noted that Pennsylvania’s Beauty Culture Law does not contain licensing restrictions for criminal convictions unrelated to the profession and that the state’s Criminal History Record Information Act “authorizes, but does not require, an agency to suspend a license upon the licensee’s felony conviction.”

In fact, Judge Leavitt wrote, the lack of mandated penalties for criminal convictions of cosmetology licensees led the state Department of Corrections to set up cosmetology training for inmates, to allow them to obtain licensure after release. Evidence of Abbruzese’s felony conviction was not, by itself, evidence that she was a danger to cosmetology customers.

The court also found fault with the evidentiary procedures applied by the board. Abruzzese argued that the board, by stating that it was suspending her license out of concern for salon patrons who were often separated from their belongings, had acted on evidence not in the record of her case, as the concept of patrons vulnerable to cosmeticians with criminal records was not actually evaluated during her disciplinary hearing.

When prosecuting the case, the Bureau had not produced any evidence of salon operations and the vulnerability of patrons, and, under disciplinary procedures, board members are not allowed to fill in evidentiary gaps with their personal experience or opinions. Thus, the court held, the board had erred when it had considered this factor.

The court also faulted the board’s finding that Abruzzese had not provided sufficient documentation of her rehabilitation and stated rationale that it was unclear whether Abruzzese was safe to practice. The major flaw in this argument, Judge Leavitt explained, was that Abruzzese had not applied for licensure until after her initial arrest.

The board had already evaluated her character and potential for abuse based on her admitted drug history, and had awarded her a license, which it could not now take away because Abruzzese had been convicted on those facts.

“The Board’s argument that it does not know whether it is safe for Licensee to perform service rings hollow,” wrote the judge. “It apparently thought safety was not a concern when it granted her a license with the knowledge of her drug history and arrest.”

Lastly, the court held that the board’s analysis of Abruzzese’s mitigating evidence was flawed. The board had dismissed the testimony of Abruzzese’s family as biased despite the fact that, again, the Bureau had not introduced any evidence of bias at the hearing or rebutted their testimony in any way. And, although the board had complained that Abruzzese had not provided documentary evidence of her cooperation with law enforcement, Judge Leavitt explained that documentation was not necessary to prove that point.

“In this reasoning, the Board has violated an important evidentiary principle,” the judge wrote. “Written documents are not preferable to oral statements, as the Board mistakenly believes. There is no such evidentiary principle.” A rule of evidence cited by the board to require documentary evidence applied only where the contents of such documents are at issue, not when the issue is the existence of facts “independent of written documentation.”

Having rejected its arguments, the court reversed the board’s decision and returned the matter to adopt the lesser penalty of a stayed suspension recommended by the hearing examiner.