               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Shawneen N. Bentley,                          :
                 Petitioner                   :
                                              :
                   v.                         : No. 648 C.D. 2017
                                              : Argued: December 4, 2017
Bureau of Professional and                    :
Occupational Affairs, State                   :
Board of Cosmetology,                         :
                   Respondent                 :

BEFORE:            HONORABLE MARY HANNAH LEAVITT, President Judge
                   HONORABLE RENÉE COHN JUBELIRER, Judge
                   HONORABLE J. WESLEY OLER, JR., Senior Judge

OPINION
BY PRESIDENT JUDGE LEAVITT                                  FILED: February 28, 2018

                   Shawneen Bentley (Bentley) petitions for review of an adjudication of
the State Board of Cosmetology (Board) suspending her cosmetology license as a
result of her felony convictions.          Bentley contends that the Board erred by
disregarding her mitigating evidence and abused its discretion by suspending her
license for three years for convictions that were totally unrelated to her licensed
conduct.
                   Bentley is licensed by the Board and is employed as a full-time
hairstylist at Regis SmartStyle. On February 29, 2016, the Board issued an order to
Bentley to show cause why her cosmetology license should not be suspended or
revoked in light of her felony convictions in 2013 and 2014. The order to show
cause was issued under Section 9124(c)(1) of the Criminal History Record
Information Act (CHRIA), 18 Pa. C.S. §9124(c)(1).1 Bentley filed an answer that
admitted the fact of her convictions but asserted that mitigating circumstances


1
    The full text is recited, infra.
warranted that she be allowed to continue to work in her profession. Specifically,
her answer explained that she had served a prison sentence for her crimes; had
truthfully disclosed the convictions; needed her license to maintain gainful
employment; had never been the subject of any complaints or disciplinary actions
related to her license; had turned her life around; and needed her license in order to
support her family. Reproduced Record at 100a (R.R. __). A formal hearing was
held on December 8, 2016.
             At the hearing, the Bureau of Professional and Occupational Affairs
(Bureau) introduced certified records of Bentley’s felony convictions for forgery;
delivery or possession of controlled substances with intent to manufacture or deliver;
aggravated assault; escape; and fleeing or attempting to elude a police officer. Notes
of Testimony, 12/8/2016, at 7 (N.T. __); R.R. 110a. The Bureau presented no other
evidence.
             Bentley testified that she was 27 years old and has been a licensed
cosmetologist since August 2007. Since obtaining her license, she has worked at
various places as a hair stylist. At the time of the hearing, she had been working at
Regis SmartStyle for one year and three months, following her release from prison.
             Bentley explained the circumstances surrounding her criminal
convictions. She stated that at the time she had three young children and was not
working as a cosmetologist or at any job. She was living with her children’s father,
who sold crack cocaine. Bentley began using OxyContin and also selling drugs. She
received a two to four-year sentence in state prison for the above-listed convictions.
While in prison, Bentley took classes in anger management and worked in
maintenance. After serving two years, Bentley was paroled. Within two weeks of
her parole, Bentley was hired as a hair stylist at Regis SmartStyle.


                                          2
              Bentley testified that she took “full responsibility for what [she] did[.]”
N.T. 27; R.R. 130a. She stated:

              I don’t do drugs, I don’t drink…. The person that I’ve become
              today I’ve worked really hard for. And I wouldn’t give it up for
              anything. I love my job. I need my job…. I love to do hair. I
              mean, not only do I love it, but that’s how I provide for my
              children.

N.T. 28; R.R. 131a. She testified that she has a support system with her mom, her
boyfriend, and her friends at work. Bentley asked for a “second chance to prove to
everybody that [she was] not going to follow down th[e] same path.” N.T. 30; R.R
133a.
              Kimberly Libengood, the manager of the Regis SmartStyle salon,
testified on behalf of Bentley. She testified that Bentley was the “top stylist at the
salon.”   N.T. 40; R.R. 143a.       Libengood testified that Bentley was reliable,
explaining:

              [s]he shows up when she doesn’t need to…. She has filled in for
              me. You know, whenever the girls are struggling with something
              at work, she is always jumping in to help them. You know, her
              clients, whenever they are leaving, they love her to death. You
              know, she really works hard at everything she does. Everything
              that she does with color, cuts, everything, it’s to the best of her
              ability. That’s one of the things I love about her. Anything I ask
              [Bentley] to do, it’s done. You know, there is [sic] no questions
              asked, she just does it. She really does love what she does.

N.T. 40-41; R.R. 143a-44a.
              Finally, Ryan Marich, Bentley’s boyfriend, testified. He met Bentley
after her release from prison and, upon learning of her criminal history, found it
difficult to reconcile with the individual he knows. Marich lives with Bentley, and


                                            3
they have a three-month-old son.        Marich described Bentley as a “wonderful
mother.” N.T. 44; R.R. 147a. He also stated that she has passion for her job,
explaining that she

             take[s] time to go to the stores just to look at scissors for cutting
             hair. She’s always talking about her work.

Id. Marich described Bentley as having a good reputation, noting that the “neighbors
like her [and his] parents love her.” N.T. 47; R.R. 150a.
             At the close of the evidence, the Bureau requested a two-month active
suspension of Bentley’s license. Bentley objected to the proposal, arguing that in
light of her changed life, the Bureau’s proposed punishment was not warranted. She
had paid for her crime with imprisonment. Depriving her of her ability to make a
living was inappropriate because her crimes had nothing to do with her professional
work.
             In her proposed adjudication, the hearing examiner made 11 findings
of fact relating to Bentley’s mitigating evidence. She fully credited the testimony of
Bentley’s witnesses based on their demeanor. She noted that Bentley “cannot erase
her past; all she can do is move forward, make positive choices and earn back her
respect to her children, her family and society.” Proposed Adjudication, 1/9/2017,
at 12-13; R.R. 263a-64a. The hearing examiner concluded that Bentley deserved a
second chance “[b]ased upon the genuine remorse shown by [Bentley] during her
testimony, her maturity, her current support system, and the stability that [Bentley]
now has with her work and family[.]” Proposed Adjudication, 1/9/2017, at 13; R.R.
264a.
             The hearing examiner rejected the Department’s recommendation for a
two-month active suspension because it “would disrupt [Bentley’s] stability and

                                           4
thwart her ability to make a living and support her children.”                         Proposed
Adjudication, 1/9/2017, at 15; R.R. 266a. The hearing examiner recommended,
instead, that Bentley’s license be suspended, with the suspension stayed until the
completion of her parole. Id. The hearing examiner believed that this sanction
would “safeguard the public and help to ensure that [Bentley] remains committed to
the lawful life she now leads.” Id.
               Thereafter, the Board issued a notice of its intent to review the hearing
examiner’s proposed adjudication and order. Neither party filed a brief. Following
its deliberations, on May 4, 2017, the Board issued its final adjudication. Therein,
it adopted all of the hearing examiner’s proposed findings of fact with the exception
of any of the 11 findings of fact on Bentley’s mitigating evidence. The Board
described Bentley’s evidence of mitigation as “modest” but otherwise gave it no
consideration. Board Adjudication, 5/4/2017, at 12-13; R.R. 287a-88a. The Board
ordered a three-year suspension of Bentley’s license effective June 5, 2017, with the
opportunity to request a probationary reinstatement of her license on June 4, 2018.
Bentley petitioned for this Court’s review.2
               On appeal, Bentley raises two issues. First, Bentley argues that the
Board capriciously disregarded her mitigating evidence and the hearing examiner’s
findings thereon. Second, Bentley contends that the Board abused its discretion by
suspending her license.3 The three-year suspension was manifestly unreasonable,

2
  This Court’s review of a licensing board’s disciplinary sanction determines “whether there has
been a manifest and flagrant abuse of discretion or a purely arbitrary execution of the agency’s
duties or functions.” Goldberger v. State Board of Accountancy, 833 A.2d 815, 817 n.1 (Pa.
Cmwlth. 2003) (quoting Slawek v. State Board of Medical Education and Licensure, 586 A.2d
362, 365 (Pa. 1991)).
3
  A professional licensing board exercises “considerable discretion in policing its licensees.” Ake
v. Bureau of Professional and Occupational Affairs, State Board of Accountancy, 974 A.2d 514,


                                                5
because the convictions bore no relationship to the practice of cosmetology and were
remote in time.
               In her first issue, Bentley asserts that the Board capriciously
disregarded her mitigating evidence. It refused to adopt the hearing examiner’s 11
findings of fact on mitigation even though his findings were not contradicted by any
contrary evidence. Further, the Board offered no explanation for simply ignoring
this important part of the record.
               A capricious disregard of the evidence occurs “when there is a willful
and deliberate disregard of competent testimony and relevant evidence which one of
ordinary intelligence could not possibly have avoided in reaching a result.” Station
Square Gaming L.P. v. Pennsylvania Gaming Control Board, 927 A.2d 232, 237
(Pa. 2007) (internal quotations omitted). Where there is strong critical evidence that
contradicts contrary evidence, the adjudicator must provide an explanation as to how
it made its determination. Stated otherwise, “[t]he ultimate question is whether an
adjudicator has failed to give a proper explanation of overwhelming critical
evidence.” Balshy v. Pennsylvania State Police, 988 A.2d 813, 836 (Pa. Cmwlth.
2010) (quoting Grenell v. State Civil Service Commission, 923 A.2d 533, 538 (Pa.
Cmwlth. 2007)).        Bentley argues that her overwhelming mitigating evidence
contradicted the Board’s conclusion that Bentley’s license should be suspended for
three years.


519 (Pa. Cmwlth. 2009). The weight to be given to evidence of mitigating circumstances is a
matter of agency discretion. Burnworth v. State Board of Vehicle Manufacturers, Dealers and
Salespersons, 589 A.2d 294, 296 (Pa. Cmwlth. 1991). This Court, however, “is required to correct
abuses of discretion in manner or degree of penalties imposed.” Ake, 974 A.2d at 519 (internal
quotation omitted); see also Phan v. Bureau of Professional and Occupational Affairs, State Board
of Cosmetology, (Pa. Cmwlth., No. 1646 C.D. 2011, filed May 7, 2012), slip op. at 9 (unreported)
(citing Foose v. State Board of Vehicle Manufacturers, Dealers and Salespersons, 578 A.2d 1355
(Pa. Cmwlth. 1990)).
                                               6
            The hearing examiner made the following specific findings on
Bentley’s mitigating evidence:

            17. [Bentley] was nearing 19 years of age when she received
            her license to practice as a cosmetologist in PA. []

            18. After receiving her license, [Bentley’s] first job cutting
            hair was for Head Hunters in Hopewell, PA, where she worked
            for approximately one and a half years, until she became
            pregnant with her second child. []

                                    ***

            21. [Bentley’s] last employment prior to her incarceration was
            at Katera’s Kove in Beaver Falls, Pennsylvania, a dementia care
            facility. []

                                    ***
            28. Marich did not know [Bentley] prior to her release from
            prison; when he first learned about all of her criminal charges, he
            thought she was “messing with him” because she is the “rock” in
            their house. []

            29. [Bentley] is well liked by her neighbors, and Marich’s
            family all support her. []

            30. Marich has no history of drug or alcohol abuse; they do
            not keep beer in their refrigerator. []

                                    ***
            35. Libengood has nothing but accolades to say about
            [Bentley’s] work and her work ethic and authored a letter dated
            December 2, 2016 in support of [Bentley], which [Libengood]
            adopted at length during her testimony. []

            36. [Bentley] takes full responsibility for what she has done,
            and demonstrated sincere remorse for her actions during her
            testimony. []


                                          7
             37. [Bentley’s] support system includes her mom, who is like
             her best friend now, Marich, her work and her work friends who
             all are aware of everything that she has been through. []

             38. [Bentley] is confident that she is a different person today
             than when she went to prison and that she will never engage in
             any like behavior again. []

             39. [Bentley] realizes it is a privilege to have a license to
             practice cosmetology in the Commonwealth and asks for a
             second chance to prove that she will not [go] down that same
             path. []

Proposed Adjudication, 1/9/2017, at 6-8; R.R. 257a-59a. None of these findings
were adopted by the Board. Nor did the Board explain if it disagreed with these
findings or why it did not adopt them.
             A professional licensing board may use a hearing examiner to take
evidence, but the ultimate fact finder is the board.       Pellizzeri v. Bureau of
Professional and Occupational Affairs, 856 A.2d 297, 301 (Pa. Cmwlth. 2004). An
administrative agency is not required to adopt the hearing examiner’s proposed
findings of fact. See Bucks County Public Intermediate Unit No. 22 v. Department
of Education, 529 A.2d 1201 (Pa. Cmwlth. 1987) (Secretary of Education not bound
by findings of fact proposed by a hearing examiner). In short, the Board was not
required to adopt all of the hearing examiner’s proposed findings of fact.
             However, in reaching its decision, the Board must review the entire
record and consider all evidence, including evidence of mitigating circumstances.
See Markel v. Bureau of Professional and Occupational Affairs, State Board of
Vehicle Manufacturers, Dealers and Salespersons, (Pa. Cmwlth., No. 1800 C.D.
2013, filed May 8, 2014) (unreported). Here, the Board’s adjudication recited that
it “reviewed the entire record.” Board Adjudication, 5/4/2017, at 2 n.2; R.R. 277a.
However, this conclusory recital cannot be reconciled with the Board’s adjudication,
                                         8
which does not address the hearing examiner’s extensive findings on and discussion
of Bentley’s mitigating evidence.
              Before the Board can suspend a cosmetologist’s license, it must give
the person notice of the charges and the opportunity for a hearing. See Section 13(a)
of the Beauty Culture Law, 63 P.S. §519(a).4 The purpose of the hearing is to allow
licensees an opportunity to “defend against the allegations in the Order to Show
Cause or to present evidence in mitigation of any penalty which may be imposed
upon [them] or any of [their] licenses, certifications, registrations, permits or other
authorizations to practice [cosmetology].” Order to Show Cause, 2/29/2016, at 5-6;
R.R. 6a-7a (emphasis added). Where a licensee presents mitigating evidence, the
Board must consider that evidence. See Nguyen v. Bureau of Professional and
Occupational Affairs, State Board of Cosmetology, 53 A.3d 100, 109 (Pa. Cmwlth.
2012) (when imposing discipline, Board must compare mitigating evidence of
record to seriousness of misconduct). The procedures in the Beauty Culture Law
apply even though the substantive basis for the Bureau’s enforcement action was
CHRIA.
              The Board suspended Bentley’s license under Section 9124(c)(1) of
CHRIA, which states as follows:



4
  Act of May 3, 1933, P.L. 242, as amended, 63 P.S. §§507-527. Section 13(a) states, in relevant
part:
        Before any licenses shall be suspended or revoked for any of the reasons contained
        in this section, the holder thereof shall have notice in writing of the charge or
        charges against him or her and shall, at a day specified in said notice, be given a
        public hearing before a duly authorized representative of the board with a full
        opportunity to produce testimony in his or her behalf and to confront the witnesses
        against him or her….
63 P.S. §519(a).
                                               9
                 (c) State action authorized.--Boards, commissions or
                 departments of the Commonwealth authorized to license, certify,
                 register or permit the practice of trades, occupations or
                 professions may refuse to grant or renew, or may suspend or
                 revoke any license, certificate, registration or permit for the
                 following causes:
                        (1) Where the applicant has been convicted of a
                        felony.

18 Pa. C.S. §9124(c)(1) (emphasis added). CHRIA is a general statute that applies
to every Pennsylvania licensing agency. The statute by which Bentley holds a
license is the Beauty Culture Law, and it authorizes a license suspension only for
misconduct related to the practice of cosmetology. Section 13(a) states, in relevant
part, as follows:

                 (a) The board shall have the power to refuse, revoke, refuse to
                 renew or suspend licenses, upon due hearing, on proof of
                 violation of any provisions of this act, or the rules and
                 regulations established by the board under this act, or for gross
                 incompetency or dishonest or unethical practices, or for failing
                 to submit to an inspection of a licensee’s salon during the
                 business hours of the salon ….

63 P.S. §519(a) (emphasis added).              This has been construed to mean that a
cosmetologist’s “license can be revoked ‘for gross incompetency or dishonest or
unethical practices’ but, like the [Barber License] Law,[5] does not include any
reference to revocation for criminal convictions.”                   Kirkpatrick v. Bureau of
Professional and Occupational Affairs, State Board of Barber Examiners, 117 A.3d
1286, 1293 (Pa. Cmwlth. 2015) (internal quotation omitted).
                 The absence of criminal history restrictions in the Beauty Culture Law
has allowed the Pennsylvania Department of Corrections, in conjunction with the

5
    Act of June 19, 2931, P.L. 589, as amended, 63 P.S. §§551-567.
                                                10
Board, to offer a cosmetology program to eligible inmates. Upon successful
completion of this program, the inmates are eligible for state licensure.                       See
Department of Corrections’ Inmate Grooming and Barber/Cosmetology Programs
Procedures Manual, Policy Number DC-ADM 807, Section 2(A)(3) (effective July
15, 2016).6
               CHRIA is a general law that authorizes, but does not require, an agency
to suspend a license upon the licensee’s felony conviction.7 CHRIA does not
provide standards for the exercise of the agency’s discretion under Section
9124(c)(1). By contrast, the specific, and more relevant statute, is the Beauty Culture
Law, and it does not authorize any discipline for criminal convictions unrelated to
the practice of the profession. This makes a licensee’s evidence of mitigating
circumstances critical where presented.




6
  It states:
         The barber/cosmetology programs are registered programs. Students who
         successfully complete the programs are eligible for state licensure in three
         categories: barber, barber-manager, and cosmetology. The barber/cosmetology
         programs provide vocational skills as part of an overall goal of inmates returning
         to the community as employable, law-abiding citizens.
Department of Corrections’ Inmate Grooming and Barber/Cosmetology Programs Procedures
Manual, Policy Number DC-ADM 807, Section 2(A)(3).
7
  The Board’s regulation authorizes it to suspend Bentley’s license for a violation of the Controlled
Substance, Drug, Device and Cosmetic Act (Drug Act), Act of April 14, 1972, P.L. 233, as
amended, 35 P.S. §§780-101 - 780-144. That regulation states as follows:
       The license of a licensee who has pled guilty or nolo contendere to, or has been
       convicted of, a felony under [the Drug Act], or a similar State or Federal law, shall
       be subject to suspension or revocation under section 13 of the act (63 P. S. § 519).
49 Pa. Code §7.98. The Board did not cite the above-quoted regulation in either its Order to Show
Cause or its adjudication. The sole legal basis for the Board’s Order to Show Cause was Section
9124(c)(1) of CHRIA.


                                                11
               Here, the Board did not take any steps to sanction Bentley immediately
upon her conviction. Instead, it waited for over a year after her release from prison
to take any action, from which it had the discretion to forbear. The Board’s
capricious disregard of Bentley’s mitigation evidence constitutes a violation of its
responsibility to review, with care, such evidence.
               Accordingly, we vacate the Board’s adjudication and remand this
matter to the Board to consider Bentley’s evidence of mitigation.8

                                         ______________________________________
                                         MARY HANNAH LEAVITT, President Judge




8
  In light of this Court’s disposition, we need not address Bentley’s second issue, i.e., that the
Board abused its discretion by actively suspending her license because her conviction bore no
relationship to the practice of cosmetology and she had reformed her life. As noted above, the
Beauty Culture Law does not authorize discipline for criminal convictions unrelated to the
profession. Thus, in exercising its discretion under Section 9124(c)(1) of CHRIA, the Board
should have related its sanction to the regulation of the cosmetology profession in a specific, not
conclusory, fashion. The Board was not created to replicate the work of those engaged in criminal
law enforcement.
                                               12
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Shawneen N. Bentley,                     :
                 Petitioner              :
                                         :
            v.                           : No. 648 C.D. 2017
                                         :
Bureau of Professional and               :
Occupational Affairs, State              :
Board of Cosmetology,                    :
                   Respondent            :


                                   ORDER


            AND NOW, this 28th day of February, 2018, the May 4, 2017, order of
the Bureau of Professional and Occupational Affairs, State Board of Cosmetology
(Board) is VACATED and this case is REMANDED to the Board for further
proceedings consistent with the accompanying opinion.
            Jurisdiction relinquished.

                                  ______________________________________
                                  MARY HANNAH LEAVITT, President Judge
