Nguyen v. Bureau of Professional & Occupational Affairs, State Board of Cosmetology
2012 Pa. Commw. LEXIS 200
| Pa. Commw. Ct. | 2012Background
- Nguyen petitions for review of the Board's final Adjudication revoking his nail technologist license.
- Nguyen pled guilty in 2009 to a single felony count of marriage fraud in the federal case; Count II involved forfeiture of listed property.
- The Board relied on CHRIA to suspend/revoke based on Nguyen's felony conviction, initiating with an Order to Show Cause.
- Phan, Nguyen’s co-defendant, pled guilty to broader crimes, including conspiracy related to trafficking and forced labor, and Phan’s statement of apology was introduced in the Board proceeding.
- At the hearing, Phan testified; Nguyen did not testify; the Bureau introduced exhibits from the federal case and related materials.
- The hearing officer proposed a one-year suspension for Nguyen, but the Board ultimately revoked Nguyen’s license along with Phan’s, basing its decision in part on Phan’s conduct and statements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board properly interpreted Phan's convictions as imputable to Nguyen. | Nguyen argues Phan's broader crimes cannot be imputed to him from the pleadings. | Board contends Phan's conduct is related and may inform Nguyen's discipline under CHRIA. | Board erred by imputing Phan's broader crimes to Nguyen; remand for reconsideration. |
| Whether the Board exceeded the scope of the CHRIA charge against Nguyen by relying on Phan’s conduct. | Order to Show Cause did not charge Nguyen with Phan’s crimes; evidence should be limited to Nguyen’s own plea. | Board may consider related conduct under CHRIA where facts overlap with Nguyen’s plea. | Board exceeded scope by basing discipline on Phan’s crimes; remand required. |
| Whether the Board properly weighed mitigation against Nguyen’s felony conviction. | Mitigating evidence should be weighed against the seriousness of Nguyen’s single conviction. | Board may accord greater weight to the seriousness of the criminal conduct in a public interest revocation. | Remand to reassess mitigation in light of the narrowed basis for discipline. |
Key Cases Cited
- Commonwealth v. Morrison, 878 A.2d 102 (Pa. Super. 2005) (guilty plea admissions may encompass facts underlying the charge)
- Bethea-Tumani v. Bureau of Prof'l and Occupational Affairs, 993 A.2d 921 (Pa. Cmwlth. 2010) (abuse of discretion in CHRIA disciplinary sanctions reviewed)
- Schwalm v. Pa. Sec. Comm’n, 965 A.2d 326 (Pa. Cmwlth. 2009) (Board's scope and scope-based review principles)
- Ake v. Bureau of Prof'l and Occupational Affairs, 974 A.2d 514 (Pa. Cmwlth. 2009) (standards governing review of disciplinary actions)