Richardson v. Board of Cosmetology & Barbering
69 A.3d 353
| Del. | 2013Background
- Richardson, a Delaware cosmetologist, leased space at Trilogy to his wife who lacked a valid Nail Technician license during 2010; her expired license period occurred after a 2010-12-31 Temporary Permit and before she obtained a valid license on 2011-03-09.
- Richardson was charged with knowingly permitting an unlicensed person to work in his shop, under 24 Del. C. § 5113(a)(7).
- A Hearing Officer conducted the disciplinary hearing; the Officer recommended one year probation, a $750 fine, and a 90-day Cosmetology license suspension.
- The Board adopted the Hearing Officer’s findings and recommendations; the Superior Court affirmed.
- Richardson appealed raising five claims: incomplete record for review, improper appointment of the Hearing Officer, failure to consider exceptions, misalignment of license suspension with the Shop License violation, and lack of statutory authority for the Hearing Officer.
- The Delaware Supreme Court reversed and remanded for on-the-record reconsideration, holding the Hearing Officer had authority but the Board failed to create a complete appellate record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board’s record is sufficient for appellate review | Richardson argues the Board failed to create a complete record. | Board asserts the Hearing Officer record suffices; Board’s record was adequate. | Remanded for on-the-record proceedings and reconsideration. |
| Whether the Hearing Officer was properly appointed to conduct the hearing | Appointing authority under APA required Board designation as its ‘subordinate.’ | § 8735(v)(l) authorizes Hearing Officer to conduct hearings and bind findings. | No separate APA appointment required; Hearing Officer properly empowered. |
| Whether the Board properly considered Richardson's exceptions to the Hearing Officer’s recommendations | Board failed to consider exceptions in the September 26 meeting. | Record shows exceptions were filed; Board could review on written record. | Remand required to review exceptions on the record. |
| Whether suspending the Cosmetology license was proper for a Shop License violation | The violation concerns only Shop License; Cosmetology license punishment is improper. | § 5113(a)(7) applies to unlicensed practice relationships and can support suspension. | Board has authority to suspend; remand allowed for possible modification. |
| Whether the Hearing Officer lacked statutory authority to conduct licensing hearings | Argues lack of statutory basis for hearings involving suspensions. | APA broadly covers case decisions including suspensions. | Abandoned at oral argument; no further consideration necessary. |
Key Cases Cited
- Delaware Bd. of Nursing v. Gillespie, 41 A.3d 423 (Del. 2012) (statutory construction and agency review principles)
- Delaware Bay Surgical Serv. v. Swier, 900 A.2d 646 (Del. 2006) (application of in pari materia and agency decision review)
- Watson v. Burgan, 610 A.2d 1364 (Del. 1992) (appellate review standards for agency actions)
- State Farm Mut. Auto. Ins. Co. v. Wagamon, 541 A.2d 557 (Del. 1988) (administrative record sufficiency and review)
- LeVan v. Independence Mall, Inc., 940 A.2d 929 (Del. 2007) (interpretation and agency record considerations)
- Spielberg v. State, 558 A.2d 291 (Del. 1989) (general principles of administrative proceedings)