COPY COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF STATE BEFORE THE STATE BOARD OF COSMETOLOGY In the Matter of the Application for Licensure as an Esthetician of Amanda A. Spillane, Applicant Docket No. File No. 0905-45-& 15-45-051j) (.Jl ' ,1..- ::-,. ORDER ADOPTING HEARING EXAMINER'S PROPOSED ADJUDICATION AND FINAL ORDER .. c;;, +"" -.I . .. � AND NOW, thislj day of November, 2015, having met and considered the entire record including the July 23, 2015, Proposed Adjudication by Hearing Examiner Marc A. Moyer, and noting that neither party filed exceptions, it is hereby ORDERED that the Proposed Adjudication and Order be adopted as the Final Order of the State Board of Cosmetology in this proceeding. A copy of the Hearing Examiner's Proposed Adjudication and Order is appended hereto as "Appendix A." In accordance with the Hearing Examiner's Proposed Adjudication and Order dated July 23, 2015, it is hereby ORDERED that the application for licensure as an esthetician in the Commonwealth of Pennsylvania of Amanda A. Spillane is DENIED. This denial is without prejudice to apply again upon meeting the requirements of the Cosmetology Law. This order shall take effect immediately: BY ORDER: BUREAU OF PROFESSIONAL AND STATE BOARD OF COSMETOLOGY OCCUPATIONAL AFFAIRS n? win) IAN J. HARLOW, STEPHEN A. WALLIN COMMISSIONER CHAIRPERSON Applicant?s Attorney: Amanda A. Siillane Warminster, PA 18974 Prosecuting Attorney: Glenn P. Masser, Esquire Board Counsel: Ariel E. O?Malley, Esquire Date ofMailing: 30V), I - APPENDIX A RECEIVED JUL 23 2015 Department of State Prothonotary COMMONWEALTH OF DEPARTMENT OF STATE BEFORE THE STATE BOARD OF COSMETOLOGY In the Matter of the Docket No. 0905-45?15 Application for an Esthetician License of Amanda A. Spillane, Applicant File No. 15-45-0523] PROPOSED ADJUDICATION AND ORDER Marc A. Moyer, Esquire Hearing Examiner Commonwealth of OFFICE OF GENERAL COUNSEL Department of State P.O. Box 2649 Harrisburg, PA 17105?2649 A (717) 772-2686 7 2 HISTORY This matter comes before the Hearing Examiner for the Department of State on an appeal by Amanda A. Spillane (hereinafter "Applicant") from the provisional denial of her Application for Professional Licensure by Examination, issued by the State Board of Cosmetology (hereinafter, the "Board") at its May 4, 2015, meeting. Applicant filed her Application for Professional Licensure by Examination with the Board on or about November 18, 2014. When completing her answer to Background Question number 6 on the Application, Applicant disclosed that she had been the subject of criminal convictions. Specifically, Applicant submitted with her Application, among other items, documents from the Court of Common Pleas of Bucks County, Pennsylvania in the matters Commonwealth v. Amanda Spillane, Docket No. CP-09-CR-0000176-2005; CP-09-CR-0000592-2009; CP-09-CR0005178-201O; CP-09-CR-0003852-2010; and CP-09-CR-0005113-2010, indicating that she had entered multiple guilty pleas to various criminal offenses. In particular, the documents submitted by Applicant indicated that she had entered guilty pleas on or about February 24, 2005, to Robbe,y, in violation of 18 Pa.C.S.A. § 3701(a)(l); Conspiracy to Receive Stolen Property, in violation of 18 Pa.C.S.A. § 903(a)(I ); and Simple Assault, in violation of 18 Pa.C.S.A. § 2701(a) at Docket No. CP-09-CR-0000176-2005. Applicant similarly entered guilty pleas to Accidents Involving Death or Personal Injury in violation of 75 Pa.C.S.A. § 3742(a); and Accident Invoh 1ing Damage to Attended Vehicle, in violation of 75 Pa.C.S.A. § 3743(a) on March 23, 2009, at CP-09-CR-0000592-2009. Applicant also submitted documentation at CP-09-CR-0005113-2010, indicating that on October 18, 2010, and on March 23, 2011, she had entered guilty pleas to DUI: Controlled Substance or Metabolite, 2nd Offense, in violation of 75 Pa.C.S.A. § 3802(d)(I ); DUI: Controlled Substance-Impaired Ability, 2nd Offense, in violation of 75 Pa.C.S.A. § 3802(d)(2); and Use and Possession ofDrug Paraphernalia, in violation of 35 Pa.C.S.A. § 780-l 13(a)(32). On March 23, 2011, Applicant entered a guilty plea to Use and Possession ofDrug Paraphernalia, in violation of 35 Pa.C.S.A. § 780-113(a)(32) at Docket No CP-09-CR0003852-2010. That same date, at CP-09-CR-0005178-2010, Applicant pleaded guilty to three (3) counts of Burglary, in violation of 18 Pa.C.S.A. § 3502(a); three (3) counts of Criminal Conspiracy to Commit Burglary, in violation of 18 Pa.C.S.A. § 903(a)(l ); Theft by Unlawful Taking ofMoveable Property, in violation of 18 Pa.C.S.A. § 3921(a); Criminal Conspiracy to Unlawful Taking of Moveable Property, in violation of 18 Pa.C.S.A. § 903(a)(l ); and Fleeing or Attempting to Elude Officer, in violation of 18 Pa.C.S.A. § 75 Pa.C.S.A. § 3733(a). Through its May 7, 2015 correspondence, the Board informed Applicant that she may be unfit for licensure under Section 4 of the Cosmetology Law 1 (the "Act"), 63 P.S. § 5102 , which requires that a license applicant be of "good moral character" at the time of making application. The Board also cited to the Criminal History Record Infonnation Act ("CHRIA") at 18 Pa.C.S.A. § 9124, as authorizing the Board to deny Applicant's Application based upon her felony convictions. Accordingly, the Board informed Applicant that the foregoing criminal convictions suggest that she may not have sufficient good moral character to be licensed by the Board. Applicant filed an appeal with the Board on or about May 15, 2015. The State Board of Cosmetology filed an Order Delegating Case to Hearing Examiner on May 22, 2015. A fonnal administrative hearing was held on June 29, 2015, in Harrisburg, 1 Act of May 3, 1933, P.L. 242, No. 86, as amended, 63 P.S. §§ 507 - 527. The Board's May 7, 2015 correspondence contained a typographical error in the forn1 of the operative section of the Act under which it provisionally denied Applicant's Application. Because Applicant is applying for a temporary license for esthetician, the cited provision should have been 63 P.S. § 511. 2 ,.., Pennsylvania. Applicant appeared, pro se, and presented her case through her own testimony and through the testimony of her father. Glenn P. Masser, Esquire represented the Commonwealth. The Commonwealth admitted into evidence the foregoing criminal records in addition to records pertaining to Applicant's criminal history which Applicant did not submit to the Board as part of her Application. Those records indicate that on May 3, 2005, Applicant pleaded guilty to Possession of a Controlled Substance, in violation of 35 Pa.C.S.A. § 780-113(a)(16) at Docket No. CP-46-CR-0000431-2005. On March 3, 2007, Applicant pleaded guilty to DUI: Controlled Substance- Schedule 2 or 3, in violation of 75 Pa.C.S.A. § 3802(d)(l)(ii); DUI: Controlled Substance-Metabolite, in violation of 75 Pa.C.S.A. § 3802(d)(l)(iii); DUI: Controlled Substance-Impaired Ability, in violation of 75 Pa.C.S.A. § 3802(d)(2); DUI: Controlled Substance- Schedule 1, in violation of 75 Pa.C.S.A. § 3802(d)(l)(i), at Docket No. CP-09-CR0000276-2007. Other documents admitted into evidence by the Commonwealth indicate that on April 1, 2010, Applicant pleaded guilty to Retail Theft, Taking Merchandise, in violation of I 8 Pa.C.S.A. § 3929(a)(l ) at Docket No. CP-09-CR-0002589-2009. Additional documentation admitted by the Commonwealth show that on May 20,2010, Applicant pleaded guilty to Criminal Conspiracy to Engage in Retail Theft, in violation of 18 Pa.C.S.A. § 903(a)( J ); and Retail Theft-Taking Merchandise, in violation of J 8 Pa.C.S.A. § 3929(a)(l) at Docket No. CP54-CR-0001606-2009. Further, on January 26,201 J, Applicant entered a guilty plea to Receiving Stolen Property, in violation of 18 Pa.C.S.A. § 3925(a) at Docket No. CP-09-CR0007416-2010. The Commonwealth made no recommendations regarding Applicant's Application at the conclusion of the hearing. The parties waived the filing of post-hearing briefs, and the record in this matter closed on July 14, 2015 with the ?ling of notes of testimony (hereinafter, FINDINGS OF FACT 1. The Board provisionally denied Applicant?s Application for Professional Licensure by Examination at its May 4, 2015, meeting. (Exhibit 2. By letter dated May 7, 2015, the Board informed Applicant that it had provisionally denied Applicant?s Application, as follows: At its meeting on May 4, 2015, the State Board of Cosmetology (Board) considered your application to sit for the licensure examination. The Board voted to provisionally deny your application. Section 4 of the Cosmetology Law, 63 PS. 510, requires that all individuals be of good moral character at the time of making application. Section 9124 of the Criminal History Record Information Act (CHRIA), 18 9124, authorizes the Board to deny licensure to an applicant who has been convicted of a felony. This authority is discretionary, meaning that the Board may choose to approve an application when appropriate. Your application disclosed that in 2005 you were convicted of robbery and conspiring to receive stolen property, felonies and simple assault and intentional possession of a controlled substance, misdemeanors. Your application further disclosed that in 2009 you were convicted of accidents involving death or personal injury, accident involving damage to an attended vehicle/property, intentional possession of a controlled substance and retail the?, misdemeanors. Your application further disclosed that in 2010 you were convicted of three counts of burglary, three counts of criminal conspiracy to engage in burglary, theft by unlawful taking of movable property, criminal conspiracy to engage in theft by unlaw?ll taking and ?eeing or attempting to elude of?cer, felonies and theft by unlawful taking of moveable property, criminal conspiracy to engage in theft by unlawful taking, DUI: controlled substance (cocaine/opiates) 2nd offense and use/ possession of drug paraphernalia, misdemeanors. Your convictions suggest that you may not be of suf?cient good moral character. If you do not appeal this provisional determination to the BOard within 30 days of the date of this letter, the decision will become final. (Board Exhibit B-1). 3. Applicant filed a timely appeal from the Board's provisional denial of her Application for Professional Licensure by Examination. (Commonwealth Exhibit B-1). 4. Applicant resides with her mother and father at Warminster, PA 18974. (Exhibit B-1; N.T. 20, 47). 5. Applicant has worked at a local McDonalds for approximately two (2) years, and received a wage increase, effective June I, 2015. (Exhibit A-9; N.T. 22). 6. Applicant's overal1 performance has been identified by her evaluating manager as "outstanding". (Exhibit A-9; N.T. 17). 7. On or about February 24, 2005, Applicant was criminally convicted of Robbe,y, in violation of l 8 Pa.C.S.A. § 3701 (a)(l )(Felony); Conspiracy to Receive Stolen Property, in violation of 18 Pa.C.S.A. § 903(a)(l) )(Felony); and Simple Assault, in violation of 18 Pa.C.S.A. § 270l(a) at Docket No. CP-09-CR-0000176-2005. (Exhibit B-1; Exhibit C-1; N.T. 24, 28-29). 8. Applicant's February 24, 2005 criminal convictions involved Applicant stealing a purse from an elderly woman's hand. (N.T. 28-29). 9. On May 3, 2005, Applicant pleaded guilty to Possession of a Controlled Substance, in violation of 35 Pa.CS.A. § 780-113(a)(l 6) at Docket No. CP-46-CR-0000431-2005. (Exhibit C-1; N.T. 24, 29). 10. Applicant used marijuana, Ecstacy, cocaine and alcohol in 2005. (N.T. 29). 11. On March 3, 2007, Applicant pleaded guilty to DUI: Controlled Substance- Schedule 2or 3, in violation of 75 Pa.C.S.A. § 3802(d)(l)(ii); DUI: Controlled Substance-Metabolite, in violation of 75 Pa.C.S.A. § 3802(d)(l )(iii); DUI: Controlled Substance- Impaired Ability, in violation of 75 Pa.C.S.A. § 3802(d)(2); DUI: Controlled Substance- Schedule 1, in violation of 75 Pa.C.S.A. § 3802(d)(l)(i), at Docket No. CP-09-CR-0000276-2007. (Exhibit C-1). 12. On March 23, 2009, Applicant entered guilty pleas to Accidents Involving Death or Personal lnjwy in violation of 75 Pa.C.S.A. § 3742(a); and Accident Involving Damage to Attended Vehicle, in violation of 75 Pa.C.S.A. § 3743(a), at CP-09-CR-0000592-2009. (Exhibit B-1; Exhibit C-1; N.T. 25, 30). 13. On April 1, 20 I 0, Applicant pleaded guilty to Retail Theft, Taking Merchandise, in violation of 18 Pa.C.S.A. § 3929(a)(1) at Docket No. CP-09-CR-0002589-2009. (Exhibit C-1; N.T. 30). 14. Applicant's April l, 2010 criminal conviction for Retail Theft resulted from Applicant stealing beauty products and "a bunch of stuff' because the person with whom she was with infonned her that she could sell the merchandise for drug money. (Exhibit C-1; N.T. 30-31 ). 15. On May 20, 2010, Applicant pleaded guilty to Criminal Conspiracy to Engage in Retail Theft, in violation of 18 Pa.C.S.A. § 903(a)(l ); and Retail Theft-Taking Merchandise, in violation of 18 Pa.C.S.A. § 3929(a)(l) at Docket No. CP-54-CR-0001606-2009. (Exhibit C-1; N.T. 25-26). 16. On October 18, 2010, at Docket No. CP-09-CR-0005113-2010, Applicant entered guilty pleas to DUI: Contro!!ed Substance or Metabolite, 2nd Offense, in violation of 75 Pa.C.S.A. § 3802(d)(l); DUI: Contro!!ed Substance- Impaired Ability, 2nd Offense, in violation of 75 Pa.C.S.A. § 3802(d)(2); and Use and Possessfon of Drug Paraphernalia, in violation of 35 Pa.C.S.A. § 780-l13(a)(32). (Exhibit B-1; Exhibit C-1; N.T. 32). 17. At the time of the arrest leading to her October 18, 2010 criminal conviction, Applicant had heroin and cocaine in her system and a needle in the back seat of her vehicle. (N.T. 32). 18. On January 26, 2011, Applicant entered a guilty plea to Receiving Stolen Property, in violation of 18 Pa.C.S.A. § 3925(a)(Felony), at Docket No. CP-09-CR-0007416-2010. (Exhibit C-1; N.T. 27). 19. On March 23, 2011, Applicant entered a guilty plea to Use and Possession of Drug Paraphernalia, in violation of 35 Pa.C.S.A. § 780-l 13(a)(32) at Docket No CP-09-CR0003852-2010. (Exhibit B-1; Exhibit C-1; N.T. 31). 20. On March 23, 2011, at CP-09-CR-0005178-2010, Applicant pleaded guilty to three (3) counts of Burg/a,y, in violation of 18 Pa.C.S.A. § 3502(a)(Felony); three (3) counts of Criminal Conspiracy to Commit Burgla,y, in violation of 18 Pa.C.S.A. § 903(a)( l )(Felony); Theft by­ Unlav1ful Taking of Moveable Property, in violation of 18 Pa.C.S.A. § 3921(a)(Felony); Criminal Conspiracy to Theft by Unlawful Taking of Moveable Property, in violation of 18 Pa.C.S.A. § 903(a)(l )(Felony); and Fleeing or Attempting to Elude Officer, in violation of 18 Pa.C.S.A. § 75 Pa.C.S.A. § 3733(a)(Felony). (Exhibit B-1; Exhibit C-1; N.T. 31-32). 21. At the time Applicant committed the criminal offenses leading to her March 23, 2011 criminal convictions, Applicant and her boyfriend were on drugs. Applicant assisted her boyfriend by driving a vehicle while her boyfriend robbed houses. She also assisted her boyfriend by driving him to locations where they could sell the stolen items. (Exhibit C-1; N.T. 31-32). 22. Applicant admits that her criminal convictions demonstrated a lack of good moral character. (N.T. 32). ' 23. 32). Applicant attributes her criminal activity to having "a very bad drug problem". (N.T. 17, 24. 18 3701(a). Robbery provides: Offense de?ned-- (1) A person is guilty of robbery if, in the course of committing a theft, he: in?icts serious bodily injury upon another; (ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury; commits or threatens immediately to commit any felony of the ?rst or second degree; (iv) in?icts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury; physically takes or removes property from the person of another by force however slight; or (vi) takes or removes the money of a ?nancial institution without the permission of the ?nancial institution by making a demand of an employee of the ?nancial institution orally or in writing with the intent to deprive the ?nancial institution thereof. 18 3701(a)(l). 25. 18 903. Criminal conspiracy provides, in pertinent part: De?nition of person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he: l) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; Overt act.--No person may be convicted of conspiracy to commit a crime unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired; 18 26. 18 3929. Retail theft, provides in pertinent part: Offense person is guilty of a retail theft if he: 0 (1) takes possession of, carries away, transfers or causes to be carried away or transferred, any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the possession, use or bene?t of such merchandise without paying the full retail value thereof; 18 3929(a)(l). 27. 18 3925. Receiving stolen property, provides, in pertinent part: Offense person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner. 18 Pa.c.s.A. 3925(a). 28. 18 3502. Burglary, provides, in pertinent part: Offense person commits the offense of burglary if, with the intent to commit a crime therein, the person: (1) enters a building or occupied structure, or separately secured or occupied portion thereof that is adapted for overnight accommodations in which at the time of the offense any person is present; (2) enters a building or occupied structure, or separately secured or occupied portion thereof that is adapted for overnight accommodations in which at the time of the offense no person is present; (3) enters a building or occupied structure, or separately secured or occupied portion thereof that is not adapted for overnight accommodations in which at the time of the offense any person is present; or (4) enters a building or occupied structure, or separately secured or occupied portion thereof that is not adapted for overnight accommodations in which at the time of the offense no person is present. 18 3502(a). 29. 18 3921. Theft by unlawful taking or disposition, provides, in pertinent part: Movable property.--A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof. 18 Pa.C.S.A. § 3921(a). 30. Pa.C.S.A. § 3733. Fleeing or attempting to elude police officer, provides, in pertinent part: (a) Offense defined.--Any driver of a motor vehicle who willfully fails or refuses to bring his vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police officer, when given a visual and audible signal to bring the vehicle to a stop, commits an offense as graded in subsection (a.2). *** (a.2) Grading.-- *** (2) An offense under subsection (a) constitutes a felony of the third degree if the driver while fleeing or attempting tO'elude a police officer does any of the following: (i) commits a violation of section 3802 (relating to driving under influence of alcohol or controlled substance); (ii) crosses a State line; or (iii) endangers a law enforcement officer or member of the general public due to the driver engaging in a high-speed chase. Pa.C.S.A. § 3733(a). 31. Applicant's sobriety date was June 29, 2010, the date on which she was first incarcerated at the Bucks County Prison. (N.T. 35, 39, 45 ). 32. Applicant was incarcerated from June 29, 2010, until she was released to a half-way house in November, 2012. (N.T. 38-40). 33. Applicant completed "Wings of Life Drugs and Alcohol Inpatient Treatment Program" on October I, 2012. (Exhibit A-1; N.T. 40). 34. Applicant received in-patient rehabilitation from approximately June, 2012 through 1 r, October,2012, while she was still incarcerated. (Exhibit A-1; N.T. 40). 35. Applicant completed the courses "Thinking for a Change" and "Resocialization" on March 15,2011,while incarcerated. (Exhibit A-2; Exhibit A-3). 36. Applicant completed the course "Time out for Me" on March 16, 2011, while incarcerated. (Exhibit A-4). 37. Applicant completed the Survivor's Support Group on September 11, 2012, while incarcerated. (Exhibit A-5). 38. Applicant completed the course "Seeking Safety" on October 1, 2012, while incarcerated. (Exhibit A-6). 39. Applicant completed the Job Training and Job Readiness Program on February 8, 2013, while residing at the half-way house. (Exhibit A-7). 40. Applicant completed OSHA training on February 6, 2013, while residing at the half-way house. (Exhibit A-8). 41. Applicant was released from the half-way house in July 1, 2013. (N.T. 40). 42. Applicant initially received intensive out-patient therapy, before transitioning to regular out-patient therapy while residing at the half-way house. (N.T. 41). 43. Applicant claims to experience Bipolar Disorder, depression and anxiety, but does not entirely attribute her criminal activities to Bipolar Disorder, depression and anxiety. (N.T. 3537). 44. Applicant c1aims to have been under the treatment of a psychiatrist for Bipolar Disorder for approximately two years, but admitted no medical evidence into the record establishing that she suffers from Bipolar Disorder, depression and anxiety, that she treats for Bipolar Disorder, depression and anxiety, or that her criminal activity resulted from her purported Bipolar 1 ' Disorder, depression and anxiety. (N.T. 35-36, 38-39, 41). 45. Applicant contends that she has "found God" since her incarceration, and that her religious beliefs now make her have a conscience and think before she acts. However, Applicant does not belong to any particular religious organizations and is not involved in any religion-related activities. (N.T. 38). 46. Applicant assisted with feeding the homeless during the five (5) months immediately preceding her release from the half-way house, but no longer does so. Applicant also contributes to various charities. (N.T. 37-38, 42, 44). 47. Applicant is currently on parole until 2020. (N.T. 42-43). 48. Applicant claims to be in compliance with her parole, but did not offer any documentary evidence or testimony from her parole officers at the hearing. (N.T. 43). 49. Applicant's father visited Applicant in prison approximately one hour, every two weeks, for two years. (N.T. 53-54). 50. Applicant graduated from the Bucks County School of Beauty Culture which she attended from August 12, 2013 through September 2, 2014. (Exhibit A-10). 51. Applicant's accomplishments following her release from prison entailed working at McDonalds for approximately two years, completing Beauty Culture school while continuing to work, contributing to charities, refraining from drug use, and avoiding criminal behavior. (Exhibit A-9; Exhibit A-1 O; Exhibit A-11; Exhibit A-12; N.T. 17-18, 35, 3 7-38). 52. Applicant was served with all notices, pleadings, orders, and motions of record in this matter, and she attended the hearing held on May 27, 2015. (Board Records-Official Notice; N.T. 6-70). 53. Applicant declined the opportunity to file a post-hearing brief. (N.T. 70-71). , ,.., CONCLUSIONS OF LAW 1. The Board has jurisdiction in this matter. (Finding of Fact, Nos. 1-3). 2. Applicant has been afforded reasonable notice and an opportunity to be heard in this proceeding. (Findings of Fact, No. 52-53). 3. An applicant for a license to practice as a esthetician has the burden of proof to establish that she meets all of the licensing quali?cations of the Cosmetology Law and the Board?s Regulations, 63 P.S. 507?527; 49 Pa.Code ?7.1 et.seq.; Barron v. State Board of Medicine, 670 A. 2d 765 (Pa. melth. 1996); Commonwealth of Liquor Control Board v. Kayden Corp, 505 A. 2d 393 (Pa. melth. 1986). 4. The burden of proof before an administrative tribunal is a preponderance of the evidence. Lansberty v. Public Utility Conunission, 578 A. 2d 600 (Pa. melth. 1990), app. den, 529 Pa. 654, 602 A. 2d 863 (1992). 5. A preponderance of the evidence is ?such proof as leads the fact-?nder. . . to ?nd that the existence of a contested fact is more probable than its nonexistence,? Sigafoos v. Bd. of Probation and Parole, 503 A. 2d 1076, 1079 (Pa. melth. 1986). 6. An applicant for licensure must submit satisfactory proof that the he/she is of good moral character. 63 P.S. ?51 1. 7. The absence of good moral character is de?ned by the courts of this Commonwealth as a ?person lacking ?moral turpitude? and/or ?an absence of proven conduct or acts which have been historically considered as manifestation of moral turpitude??. Gombacli v. Dep?t of State, Bureau ofCommissions, Elections Legislation, 692 A. 2d 1 127, 1130 (Pa. melth. 1997). 8. ?Moral Turpitude? has been de?ned by the courts of this Commonwealth as ?anything done knowingly contrary to justice, honesty or good morals.? Foose v. State Board of Vehicle Manufacturers, Dealers and Salespersons, 578 A.2d 1355, 1357 (Pa. melth. 1990). 9. The record does not support granting Applicant?s Application for Professional Licensure by Examination because Applicant did not prove by a preponderance of the evidence that she has the good moral character required of an esthetician under Section 4 0f the Law, 63 RS. (Findings of Fact, Nos. 1-52). DISCUSSION Applicant has applied for professional licensure by examination. The Board has the power to provide for, to regulate, and to license persons to engage in the practice of cosmetology, and as an esthetician. 63 RS. 517-519. w, Allen v. State Board of Accountancy, 595 A.2d 771, 773( Pa. melth. 1991 )(af?rming the Commonwealth?s right to regulate and license professions). Moreover, a citizen?s right to engage in a profession is ?subject to the lawful exercise of the state?s police power to protect the public health, safety, welfare and morals? of its citizens through the promulgation of statutes which reasonably regulate occupations.? Medical Society v. Foster, 608 A.2d 633, 637 (Pa.melth. 1992) In determining whether to permit an applicant to sit for the examination, the Board must consider whether the applicant has satis?ed the prerequisites of the licensure process. To that end, the Act at 63 PS. 511 states: 511 Limited licenses An applicant for a limited license shall be at least sixteen years of age, be of good moral character, have completed a tenth grade education or the equivalent thereof and pay the applicable fee to the board. The board shall issue the following limited licenses to quali?ed applicants: (1) Esthetician license, which shall authorize the holder to engage in the practice of esthetics 63 RS. 511 (emphasis added). The Act at 63 RS. 519(a) further states: 519 Powers and duties of board 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, . . . . The Board?s provisional denial of Applicant?s application to sit for the Examination in this case was predicated solely upon its concern that Applicant may not have the required good moral character to sit for the licensure Examination pursuant to the Act at 63 P.S. 5] and the Criminal History Record Information Act in light of her multiple criminal convictions, including felony convictions. As the moving party, Applicant bears the burden of establishing that she meets the quali?cations for licensure under the Act, and that her practice of Esthetics will not present a threat to the public health and safety. Barron v. State Board of Medicine, 670 A. 2d 765, 767- 768 (Pamelth. 1996). Explicit in the Act, is the requirement that Applicant demonstrate that she possesses the requisite moral character. Petitioner must satisfy this burden by a preponderance of the evidence. Lansberiy v. Public Utility Commission, 578 A. 2.d 600, 602 (Pa.melth. 1990), app. den, 529 Pa. 654, 602 A. 2d 863 (1992). A preponderance of the evidence is ?such proof as leads the fact-?nder. . . to ?nd that the existence of a contested fact is more probable than its nonexistence,? Sigafoos v. 11' Bd. of Probation and Parole, 503 A. 2d 1076, 1079 (Pa.Cmwlth. 1986). It has also been described as a "more likely than not standard" or evidence which is sufficient to tip the mythical scales. Agostino v. Township of Collier, 968 A. 2d 258, 269 (Pa.Cmwlth. 2009), app. den., 603 Pa. 677, 982 A.2d 66 (Pa. 2009). Moral Character The general issue presented in this matter is whether Applicant has met the qualifications for licensure and, specifically whether she has addressed the Board's concerns regarding her moral character as set forth in the Board's provisional denial letter. Applicant testified on her own behalf at the hearing and presented the testimony of her father for the purpose of establishing her current good moral character. As set forth above, Applicant must demonstrate that she is of good moral under Section 511 of the Act. The Board's concern is specifically related to the Applicant's repeated felony convictions on eleven (11) criminal counts from 2005 through 2011, and multiple other criminal convictions related to retail theft and drug related offenses. See, Bethea-Tumani v. Bureau of Professional and Occupational Affairs, 993 A.2d 921, 931 (Pa. Cmwlth. 201 0)(licensing board may consider criminal conviction despite remoteness in time based upon an evaluation of the totality of the circumstances). Good moral character is not defined in the Act. However, in Gombach v. Department of Stale, Bureau of Comm 'ns, Elections & Legislation, 692 A. 2d 1127 (Pa.Cmwlth. 1997), the Commonwealth Court explained: Good moral character is defined, in part, as including "an absence of proven conduct or acts which have been historically considered as manifestation of moral turpitude." BLACK'S LAW DICTIONARY, 693 (6th ed. 1990). Our courts have defined moral turpitude as "'anything done knowingly contrary to justice, honesty or good morals."' Foose v. State Board of Vehicle Manufacturers, Dealers and Salespersons, 135 Pa. Cmwlth. 62, 578 A.2d 1355 (Pa. melth. 1990) (quoting Moretti v. State Board of Pharmacy, 2 Pa. melth. 121, 277 A.2d 516 (Pa. melth. 1971)). From these de?nitions it is apparent that the two phrases, good moral character and moral turpitude, are often used together or to de?ne each other. 1d. at 1130-1131. The seminal decision addressing moral turpitude in the context of professional licensing is John Vending v. Department of Revenue, 284 A.2d 834 (Pa.melth. 1972), reversed on other grounds, 453 Pa. 488, 309 A.2d 358 (1973), in which a felony drug offense was found to be a crime of moral turpitude under the Cigarette Tax Act. In that case, the Court noted: Moral turpitude is ?[t]hat element in personal misconduct in the private and social duties which a man owes to his fellow men, or to society in general, which characterizes the act as an act of baseness, Vileness or depravity, and contrary to the accepted and customary rule of right and duty between man and man?. .. ?Moral turpitude is necessarily adaptive; for it is itself de?ned by the state of public morals, and thus ?ts the action to be at all times accommodated to the common sense of the community.? (citations omitted). Id. at 837. In Moretti v. State Board of Pharmacy, 277 A.2d 516, 518 (Pa. melth. 1971), the Commonwealth Court conducted a analysis of what constitutes acts of moral turpitude and summarized moral turpitude as "anything done knowingly contrary to justice, honesty or good morals.? (Emphasis added). Foose v. Commonwealth, State 30?. of Vehicle Mfrs, Dealers and Salespersons, 578 A.2d 1355, 1357 (Pa.melth. 1990) (quoting Moretti v. State Bd. ofPharmacy, 277 A.2d 516 (Pa.melth. 1971). When evaluating whether a person lacks ?good moral character?, courts have de?ned the phrase as a ?person lacking ?moral turpitude.? Gombach v. 08197 of State, Bureau of Commissions, Elections Legislation, 692 A. 2d 1127, 1130 (Pa.melth. 1997). Further, Black?s Law Dictionary de?nes ?good moral character? to mean: 1. A pattern of behavior that is consistent with the community?s current ethical standards and that shows an absence of deceit or morally reprehensible conduct. . . . 2. A pattern of behavior conforming to a profession?s ethical standards and showing an absence of moral turpitude. . . . Black?s Law Dictionary, 714 (8th ed. 2004). The question of whether a crime involves moral turpitude generally turns on the elements of the crime, not on an independent examination of the details of the behavior underlying the crime. Startzel v. Commonwealth, Department of Education, 562 A.2d 1005, 1007 (Pa. melth. 1989), app. den., 574 A.2d 76 (Pa. 1990)(citing lickinger v. Department ofState, 439 A.2d 235 (Pa. melth. 1982). The elements of the crimes for which Applicant experienced felony convictions consist of the following: 18 3701(a). Robbery Offense de?ned." (1) A person is guilty of robbery if, in the course of committing a theft, he: in?icts serious bodily injury upon another; (ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury; commits or threatens immediately to commit any felony of the ?rst or second degree; (iv) in?icts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury; physically takes or removes property from the person of another by force however slight; or (vi) takes or removes the money of a ?nancial institution without the permission of the ?nancial institution by making a demand of an employee of the ?nancial institution orally or in writing with the intent to deprive the ?nancial institution thereof. 18 3701(a)(1). 18 3925. Receiving stolen property: Offense person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner. 18 ?3925(a). 18 3502. Burglary Offense person commits the offense of burglary if, with the intent to commit a crime therein, the person: (1) enters a building or occupied structure, or separately secured or occupied portion thereof that is adapted for overnight accommodations in which at the time of the offense any person is present; (2) enters a building or occupied structure, or separately secured or occupied portion thereof that is adapted for overnight accommodations in which at the time of the offense no person is present; (3) enters a building or occupied structure, or separately secured or occupied portion thereof that is not adapted for overnight accommodations in which at the time of the offense any person is present; or (4) enters a building or occupied structure, or separately secured or occupied portion thereof that is not adapted for overnight accommodations in which at the time of the offense no person is present. 18 ?3502(a). 18 3921. Theft by unlawful taking or disposition Movable property-A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof. 18 3921(a). 3733. Fleeing or attempting to elude police of?cer: Offense driver of a motor vehicle who willfully fails or refuses to bring his vehicle to a stop, or who otherwise ?ees or attempts to elude a pursuing police of?cer, when given a visual and audible signal to 10 bring the vehicle to a stop, commits an offense as graded in subsection (3.2) Grading?- (2) An offense under subsection constitutes a felony of the third degree if the driver while ?eeing or attempting to elude a police of?cer does any of the following: commits a Violation of section 3802 (relating to driving under in?uence of alcohol or controlled substance); (ii) crosses a State line; or endangers a law enforcement of?cer or member of the general public due to the driver engaging in a hi gh-speed chase. 3733(a). 18 903. Criminal conspiracy: (3) De?nition of person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he: l) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; Overt act.--No person may be convicted of conspiracy to commit a crime unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired; 18 As set forth by the plain language of the foregoing statutes, the crimes for which Applicant was convicted are crimes of specific intent. To that end, there is little doubt that the acts giving rise to convictions for Robbery, Burglary, Receipt QfSrolen Property, heft by Unlawful Taking, and Conspiracy constitute the very type of conduct done ?knowingly contrary to justice, honesty or good morals? actionable under law. When considering Applicant?s conviction for Retail Theft, and related crimes, the Commonwealth Court has found that the offense of Retail Theft constitutes a crime of moral turpitude. In Spence, R.N. v. Bureau of Professional and Occupational A?airs, 2010 WL 9513261 (Pa. melth. 2010) at for example, the court explained that theft, in general, is a crime of moral turpitude. Likewise, in Perdue v. Unemployment Compensation Bd. of Review, 369 A.2d 1334, 1335-36 (Pa. melth. 1977), the Commonwealth Court speci?cally found the crime of Retail Theft to fall within the de?nition of a crime of moral turpitude. 10?. Based on this jurisprudence, the nature of the elements of the criminal offenses for which Applicant has been convicted, it is clear that Applicant engaged in acts of moral turpitude which resulted in her criminal convictions. It is well recognized that character is not developed overnight. Instead, it is an attribute that is developed by an individual over time. Black?s Law Dictionary (Sixth Edition 1990) de?nes ?character? as: [t]he aggregate of the moral qualities which belong to and distinguish an individual person; the general result of the one?s distinguishing attributes. That moral predisposition or habit, or aggregate of ethical qualities, which is believed to attach to a person, on the strength of the common opinion and report concerning him. A person?s ?xed disposition or tendency, as evidenced to others by his habits of life, through the manifestation of which his general reputation for the possession of a character, good or otherwise, is obtained. The estimate attached to an individual or thing in the community. The opinion generally entertained of a person derived from the common report of the people who are acquainted with him. Although ?character? and ?reputation? are often used synonymously, the terms are distinguishable. "Character? is what a man is, and ?reputation? is what he is supposed to be in what people say he is. ?Character? depends on attributes possessed, and ?reputation? on attributes which others believe one to possess. The former signi?es reality and the latter merely what is accepted to be reality at present. Evidence ofcharacter takes one ofthree fonns: a) a witness' report ofreputation within a relevant community; b) a witness' opinion based on personal observation; or c) evidence of instances ofconduct that reflect on the actor's character. Leonard Packel & Anne Bowen Poulin, West's Pennsylvania Practice§ 404-1 (4th ed. 2013). Applicant contends that her convictions are not truly indicative ofher current moral character as evidenced by having worked at McDonalds for approximately two years, having completed Beauty Culture school while continuing to work, by having contributed to charities, and by having refrained from drug use and further criminal behavior since being released from prison. However, Applicant has offered little, ifany, demonstrative evidence that she has rehabilitated her moral character since her release from prison. Applicant presented no witnesses who testified to her reputation within the community, and she presented relatively little evidence ofinstances ofparticular conduct that reflect positively on her character. Applicant's father testified to having seen Applicant's behavior change during his visits to see Applicant in prison. However, Applicant's father admitted to only seeing the Applicant for approximately one (1) hour every two weeks. Moreover, such observations were in the control1ed environment ofprison and, therefore, have little probative value. Although Appel1ant's father also testified that he believes his daughter has changed since being incarcerated, he provided little substantive examples ofthat change which reflect on Appellant's moral character. Although Applicant provided some evidence regarding the circumstances surrounding her criminal convictions and the therapy and treatment she received while incarcerated, that information similarly did not directly address the seminal issue before the Board, i.e. Applicant's current moral character. By contrast, the record reflects that Applicant engaged in a pattern of immoral behavior over the span of several years which resulted in her conviction for no fewer than eleven (11) felony counts of criminal violations, in addition to a plethora of other serious crimes over the course of several years. Far from having committed a single act of indiscretion, the number of criminal offenses for which Applicant has been convicted, in conjunction with the seriousness of the crimes, their repeated nature, and the span of time over which Appellant's behavior occurred, has established a moral base line which Applicant can only overcome by demonstrating particular examples of moral rehabilitation. Although Appellant's ability to maintain employment, complete esthetician training, and refrain from committing additional crimes since being released from prison is laudable, such accomplishments do not serve to negate the record of poor moral character Applicant developed over the course of several years so as to establish her current good moral character. Nor does the fact that Applicant purportedly contributes money to charities sufficiently overcome Applicant's repeated acts of moral turpitude or establish that she now possesses good moral character. 3 To the extent Applicant referred to suffering from Bipolar Disorder, AppJicant presented no medical evidence, either through medical testimony or documentation, from which to conclude that her criminal activity was attributed to her Bipolar Disorder, as opposed to moral turpitude. On the contrary, Applicant readily conceded that her criminal conduct was not entirely the result of her Bipolar Disorder. To the extent Applicant repeatedly attributed much of her criminal activities to her drug use, AppJicant similarly failed to offer any evidence of her attempts to seek treatment for her chemical dependency until her incarceration, or that she Applicant failed to provide any details regarding the particular charities to which she contributes, the amount of money she contributes to the charities or the frequency of her contributions. 3 lacked moral culpability for her actions because of her drug use. Despite Applicant's assertion that she has "found god" and,therefore, has been spiritually rehabilitated,Applicant produced no documentation or evidence of particular conduct demonstrating her purported spiritual rehabilitation. Applicant similarly failed to offer any testimony or documentary evidence demonstrating her compliance with her criminal parole and/or to confinn her abstinence from drugs and alcohol. A licensing board may give greater weight to the seriousness of an applicant's criminal convictions than to mitigating evidence. Bethea-Tumani v. Bureau of Professional and Occupational Affairs, 993 A.2d 921,932 (Pa. Cmwlth. 2010) (citing Burnworth v. State Bd. of Vehicle Mf,-s., Dealers and Salespersons, 589 A.2d 294, 297 (Pa. Cmwlth. 1991)). Applicant's lack of preparedness and her failure to present evidence to show that she is a person of good moral character suggests that she does not take the licensure process seriously and/or that she fails to recognize the moral implications of her prior conduct. Although the Hearing Examiner sympathizes with the fact that Applicant was unrepresented during her hearing, a lay person who chooses to represent herself in a legal proceeding must assume the risk that her lack of expertise and legal training may prove to be her undoing. See,i.e., Thomas J. Daly, 111 v. Unemployment Compensation Board ofReview, 631 A.2d 720, 722 (Pa. Cmwlth. 1993)(citing Groch v. Unemployment Compensation Board o_fReview, 472 A.2d 282, 286 (Pa. Cmwlth. 1984). See also. Vann v. Unemployment Compensation Board of RcTie11·, 508 Pa. l 39, 148,494 A.2d 1081,1086 (] 985). Applicant has applied to sit for the Esthetician Examination, subject to satisfying the qualifications for licensure set forth by the Act. Under its enabling legislation, a licensing board is charged with the responsibility and authority to oversee the profession and to regulate and license professionals to protect the public health and safety. See, Barran v. State Board of Medicine, 670 A.2d 765, 767 (Pa. Cmwlth. 1996), app. den., 679 A.2d 230 (Pa. 1996). As the Pennsylvania Commonwealth Court recognized: the Board is essentially a watchdog of the ... profession, empowered to maintain the high standards which the people of this Commonwealth have a right to expect from their [nurses]. These standards are not ethereal but are substantial and practical, dealing as they do with all aspects of professional conduct. Therefore, the Board is entrusted with the power to suspend [or revoke] the privilege of any licensee who has been guilty, inter alia, of a crime or misdemeanor involving moral turpitude. Dwumaah v. State Bd. ofNursing, 2010 WL 9516181 (Pa. Cmwith. 2010) at * 5 ( citing State Board ofDental Counsel & Examining Board v. Friedman, 367 A.2d 363, 366 (Pa. Cmwlth. 1976). In this case, the need for moral character is as necessary for an aspiring esthetician as it is for any other licensed professional in Pennsylvania. Applicant's relatively recent accomplishments are insufficient to demonstrate the rehabilitation of her moral character which has been significantly marred by her repeated and conscious willingness to disregard the ethical requirements of the profession. When balancing the frequency and nature of Applicant's criminal convictions against the mitigating evidence she has offered, this Hearing Examiner finds that Applicant has not sufficiently demonstrated that she currently possesses the good moral character necessary to take the Esthetician Examination and practice the profession. Based upon the foregoing Findings of Fact, Conclusions of Law and Discussion, the following Proposed Order shall be issued: .. ,.,r COMMONWEALTH OF DEPARTMENT OF STATE BEFORE THE STATE BOARD OF COSMETOLOGY In the Matter of the Docket No. 0905-45-15 Application for an Esthetician License of Amanda A. Spillane, Applicant File No. 15?45-0523] PROPOSED ORDER AND NOW, this 23rd day of July, 2015, in accordance with the foregoing Findings of Facts, Conclusions of Law and Discussion, it is hereby ORDERED that the Applicant?s Application for Professional Licensure by Examination is DENIED. The State Board of Cosmetology has announced its intention review this Proposed Report in accordance with 1 Pa. Code By Order- re AfMoycri Es caring Examin Applicant: Amanda A. Spillane Warminster, PA 18974 For the Commonwealth: Glenn P. Masser, Esquire Prosecuting Attorney Department of State PO. Box 69521 Harrisburg, PA 17106-9521 Date of Mailing: 7 [2 NOTICE SERVICE OF PROPOSED REPORT: The foregoing is the proposed reportissued in this matter by a Hearing Examiner for the Department of State, in'aCcordance With the General Rules of Administrative Practice and Procedure at 1 Pa. Code ?35.207. EXCEPTIONS To PROPOSED REPORT: Any participant who wishes to appeal all or part of the Hearing Examiners proposed report to the Board must ?le exceptions in the form of a Brief on Exceptions with the Prothonotary of the Department of State within 30 days after the date of mailing shown on this proposed report in accordance with the General Rules of Administrative Practice and Procedure at 1 Pa. Code The Brief on Exceptions shall contain a short statement of the case, a summary of the appealing party's position, the grounds for ?ling exceptions to the proposed report, and the argument in support of the appealing party?s position with citations to the record and legal authority. The appealing party may also include proposed ?ndings of fact and conclusions of law. In the event any participant ?les exceptions, the Board may substitute its ?ndings for those of the Hearing Examiner, and /or may impose a greater or lesser sanction than that imposed by the Hearing Examiner without regard to the relief requested or the position argued by any party, and without hearing additional argument or facing additional evidence. Failure to ?le a Brief on Ercepnons within the time allowed under the General Rules of Administrative Practice and Procedure at 1 Pa. Code shall constitute a waiver of all objections to the proposed report. FILING AND SERVICES: An original and three (3) copies of the Brief on Evcepobns shall be ?led with: Prothonotary 2601 North Third Street P. O. Box 2649 Harrisburg, PA 17105-2649 Copies of the Brief on Exceptions must also be served on all participants to the proceeding. Briefs on Exceptions must be received for ?ling by the Prothonotary within the time limits speci?ed herein. Date of receipt by the Of?ce of Prothonotary and not'date of deposit in the mail is determinative. NOTICE The attached Final Order represents the ?nal agency decision in this matter. It may be appealed to the Commonwealth Court of by the ?ling of a Petition fer Review with that Court within 30 days after the entry of the order in accordance with the Rules of Appellate Procedure. See Chapter 15 of the Rules of Appellate Procedure entitled ?Judicial Review of Governmental Determinations,? Pa, R.A.P 1501 1561. Please note: An order is entered on the date it is mailed. If you take an appeal to the Commonwealth Court, you must serve the Board with a copy of your Petition for Review. The agency contact for receiving service of such an appeal is: Board Counsel PO. Box 69523 Harrisburg, PA 1 7106-9523 The name of the individual Board Counsel is identi?ed on the Final Order. - I. it' "5 -. Ill: '1 COMMONWEALTH OF OFFICE OF GENERAL COUNSEL Ariel E. O?Malley Assistant Counsel November 4 "2015 Amanda A. Spillane Warminster, PA 18974 Re: ORDER ADOPTING HEARING PROPOSED ADJUDICATION AND ORDER In the Matter of Application for Licensure as an Esthetician of Amanda A. Spillane Docket 0. 0905-45-15 File No. 15-45?0523] Dear Ms. Spillane: Enclosed please ?nd a copy of an Order issued in the above-referenced matter. Very truly yours, any Ariel E. State Board of Cosmetology AEO Enclosure cc: Kelly Diller, Administrator State Board of Cosmetology DEPARTMENT OF OF CHIEF COUNSEL 2601 North 3rd Street/PO. Box PA 17106-9523 PHONE: 717-783-72001FAX: 717-787-0251!