Opinion
No. 1646 C.D. 2011
05-07-2012
Lynda Dieu Phan, Petitioner v. Bureau of Professional and Occupational Affairs, State Board of Cosmetology, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Lynda Dieu Phan (Phan) appeals from the final adjudication and order of the State Board of Cosmetology (Board) which permanently revoked her nail technology and cosmetology licenses.
On December 10, 2008, a Criminal Indictment was filed in the United States District Court for the Middle District of Pennsylvania charging Phan with conspiracy to forcibly obtain the labor and services of another by threats of serious harm to and physical restraint against the other; knowingly trafficking with respect to involuntary servitude and forced labor; and with marriage fraud for the purpose of evading United States immigration laws. A Superseding Felony Information (Information) was subsequently filed on September 15, 2009.
18 U.S.C. §§1589, 1594. Phan's co-conspirators/defendants were her brother, Justin Phan, and Duc Cao Nguyen (Nguyen), the father of her two children.
18 U.S.C. §§1590,1594.
18 U.S.C. §1325(c).
According to the Information, Phan traveled to Vietnam in 2000 to recruit A.V. and T.V. (Victims) to work in her nail salons. Under the auspices of Phan, the Victims gained citizenship in the United States by entering into "sham" marriages with her brother and Nguyen. Phan then forced A.V. and T.V. to work at her nail salon without remuneration.
On October 6, 2009, Phan pled guilty to the charges set forth in the Information and she was adjudged guilty of Trafficking with Respect to Forced Labor, Conspiracy, and Marriage Fraud.
On February 11, 2010, Phan was sentenced to imprisonment for ninety days, followed by one-year probation, and a 270-day house arrest, and to pay an assessment of $100, restitution to Victims in the amount of $300,000, and the forfeiture of all property rights to $134,682 in seized currency, a 2008 Toyota Highlander vehicle, and the contents of two TD Bank accounts.
On June 8, 2010, the Commonwealth of Pennsylvania Bureau of Professional and Occupational Affairs (Bureau) filed a Notice and Order to Show Cause, pursuant to Section 9124 of the Criminal History Record Information Act (Act), why the Board should not suspend, revoke, or otherwise restrict Phan's licenses. Phan admitted the conviction but requested an opportunity to present "mitigating" evidence. A formal hearing was held before a Hearing Examiner on November 1, 2010.
Section 9124(c) of the Act provides:
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 reasons:18 Pa.C.S. §9124(c)(1).
(1) When the applicant has been convicted of a felony.
Before the Hearing Examiner, Phan's attorney argued that the U.S. Attorney's Office "seemed to recognize that there were mitigating factors in this case." Hearing Transcript, November 1, 2010 (H.T.), at 7; Reproduced Record (R.R.) at 61a. He stated that the evidence would show that the offenses were not "as serious as some of the newspaper reports indicated" and that Phan was merely "attempting to help two distant relatives come from Vietnam to this country to work." H.T. at 8-9; R.R. at 62a-63a. He further argued:
It was clearly improper how they [Victims] were brought here under the scheme of marriage to individuals that they were not really going to live with and be married to. But it was not a case involving involuntary servitude, or at least involuntary servitude to a degree that it merits severe penalties set forth under the law. So it's in mitigation.H.T. at 9; R.R. at 63a.
Phan testified that she brought the Victims to the U.S. because they were "poor" and she wanted them to "get a new life for themselves as well as the family." H.T. at 15; R.R. at 69a. She said she "spent a lot" to get them citizenship. H.T. at 16; R.R. at 70a. She paid for their nail technology licenses and they lived in her home, rent-free. The Victims worked in Phan's nail salon and were paid on a 50% commission.
Phan's counsel introduced a "Statement Regarding Acceptance of Responsibility and Apology to A.V and T.V." H.T. at 38; R.R. at 92a. In that Statement, Phan admitted that upon reviewing the Victims' statements and documents from the investigation, including a Diary kept by T.V., that "both of these women were taken advantage of and exploited by me by working long hours with few vacation days and being required to do chores such as cooking and cleaning in the various places where they lived with me." She apologized for "improperly bringing [them] into the United States and for mentally exploiting them while they were living and working with me." Statement Regarding Acceptance of Responsibility and Apology, November 15, 2009, at 1. She admitted that, although she did not physically force the Victims to work for her, she "mentally" forced them, and she "pled guilty to the serious charges" and paid restitution "to accept responsibility for what she had done." Id.
On March 3, 2011, the Hearing Examiner issued a proposed adjudication and order which found that Phan was subject to disciplinary action and recommended a two-year suspension. Neither party filed exceptions.
On March 9, 2011, the Board issued its Notice of Intent to Review the proposed adjudication and order. The Board deliberated on April 4, 2011. On August 10, 2011, the Board issued its Final Adjudication and Order.
Considering the seriousness of the violations and Phan's guilty plea, the Board concluded that revocation was necessary:
First, the Board finds the felony itself abhorrent. The crime of conspiracy to forcibly obtain labor, traffic with respect to involuntary servitude, and enter into marriage for the purpose of evading immigration law, is unacceptable for any individual, let alone for a professional licensee of the Commonwealth. [Phan's] evidence of mitigation does not overcome the weight of the felony conviction. Despite [Phan's] argument that the federal prosecutor and court saw this offense as relatively benign, the Board nevertheless sees a federal felony conviction that resulted in incarceration, probation, and massive forfeitures of property traced to the offense to compensate the victims. [Phan] pled guilty to conspiring to forcibly obtain labor and commit marriage fraud. The underlying criminal conviction may not be challenged in a subsequent professional disciplinary proceeding. The Board believes that it is compelled to act in the public interest by revoking.
Second, as a result of the offense, [Phan] was able to involve the victims in the profession of cosmetology as nail technicians licensed by this Board. The Board finds a criminal scheme that utilizes the Board's licensing program to be unacceptable. The Board believes that the protection of the public-workers in the industry, as well as customers who unwittingly are subjected to the work of practitioners under these conditions - demands that the Board revoke [Phan's] licenses. Revocation will prevent [Phan] from acting in this fashion again, and will serve as a deterrent to others from committing similar violations.
Third, the Board believes that a licensee willing to commit these offenses might be willing to commit others. The Board will not abide that possibility. The Board considers these crimes to be grave and to render the person who commits them an unacceptable risk for future practice.
Fourth, [Phan] has damaged the reputation and confidence of the public in the profession. The Board is not ignorant of the fact that many of its licensees are recent immigrants to this country. Thus, the crimes that give rise to this matter bring particular suspicion and
disrepute to the industry and profession. The public must have confidence that the licensees rendering service are neither committing these crimes nor the victims of them.Final Adjudication and Order, August 10, 2011, at 12-13 (citations omitted).
On appeal, Phan contends that the Board misunderstood the legal significance of her Guilty Plea which led it to disregard her mitigating evidence. She contends that the Board mistakenly presumed that her Guilty Plea to one count of conspiracy was conclusive evidence that she engaged in a "horrendous fact pattern of forced labor and involuntary servitude which could not be rebutted by mitigating factors." Phan claims that her Guilty Plea was intended to admit guilt only as to the crime of marriage fraud and that her guilty plea to conspiracy "in no way established she was guilty of involuntary servitude or forced labor either factually or legally." She claims that the Board erred when it failed to recognize that she was, in reality, only convicted of conspiracy to commit marriage fraud based on her "lenient" sentence.
This Court's standard of review is limited to determining whether constitutional rights were violated, an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. LT Int'l Beauty Sch., Inc. v. Bureau of Prof'l and Occupational Affairs State Board of Cosmetology, 13 A.3d 1004 (Pa. Cmwlth. 2011). When the Court reviews an administrative order, the prevailing party is entitled to every inference which can logically be drawn from the evidence when reviewed in a light most favorable to the prevailing party. Herzog v. Department of Environmental Resources, 645 A.2d 1381 (Pa. Cmwlth. 1994). Even where a penalty assigned by the Board appears by the Court to be too harsh, this Court will not overturn such a decision as long as it is in accordance with the law. Zook v. State Board of Dentistry, 683 A.2d 713 (Pa. Cmwlth. 1996). Where the penalty is reasonable it must be upheld. Yurick v. Department of State, Bureau of Prof'l and Occupational Affairs, Board of Osteopathic Examiners, 402 A.2d 290 (Pa. Cmwlth. 1979).
Like the Board, this Court finds the argument specious. There is nothing in the federal court documents which indicates that Phan pled guilty only to conspiracy to commit marriage fraud, or that the government "did not have proof" that she abused the Victims. Phan pled guilty to conspiracy to commit all three offenses forced labor trafficking, forced labor and marriage fraud.
The guilty plea proceeding is the process by which the defendant admits that he/she committed the actions outlined in the factual basis for the plea. Here, Phan entered a guilty plea; ipso facto, she admitted to the details of the crimes outlined in the Information. Commonwealth v. Morrison, 878 A.2d 102 (Pa. Super. 2005). Neither the Board nor this Court may postulate, based on the so-called leniency of the punishment, that she meant only to plead guilty to conspiracy to commit marriage fraud. As the Board correctly observed Phan's convictions may not be challenged in a subsequent professional licensure proceeding. Burnworth v. State Board of Vehicle Manufacturers, Dealers and Sales Persons, 589 A.2d 294 (Pa. Cmwlth. 1991).
In her next issue, Phan argues that the Board's finding that the Victims were "forced to work without remuneration" was without support in the record. She claims "there was absolutely no evidence presented at the hearing indicating that any type of forced labor, involuntary servitude or lack of remuneration was involved in this case." She contends that the evidence established that the Victims received "more than adequate remuneration in the form of salary, tips, room and board, travel expenses, and paid legal fees."
Substantial evidence to support a finding of fact is such relevant evidence that one of reasonable mind might accept as adequate to support a conclusion. Taterka v. Pennsylvania State Board of Medicine, 882 A.2d 1040 (Pa. Cmwlth. 2006).
Again, this argument amounts to a collateral attack on the underlying guilty plea. A voluntary plea of guilty, when accepted and entered by the court, is the equivalent of a conviction and a verdict of guilty by a jury. Commonwealth ex rel. Hough v. Maroney, 425 Pa. 411, 229 A.2d 913 (1967). It admits the facts pleaded in the indictment so as to obviate the necessity for corroborating evidence. Thus, when an accused pleads guilty to an indictment charging her with a crime(s), she admits that the crime(s) were committed and that she is the perpetrator thereof. Commonwealth v. Dilinger, 440 Pa. 336, 269 A.2d 505 (1970). Contrary to Phan's argument the Guilty Plea conclusively establishes that Phan committed each element of the offenses.
Furthermore, this Court feels constrained to point out that, contrary to Phan's argument, the record before the Hearing Examiner indeed contains evidence in the form of her admission in the "Statement Regarding Acceptance of Responsibility and Apology to A.V and T.V." wherein Phan admitted that the Victims were "taken advantage of," "mentally exploited" and that she "mentally" forced them to work for her. Statement Regarding Acceptance of Responsibility and Apology, November 15, 2009, at 1.
In any event, this Court wholly agrees with the Board that conviction of conspiracy to forcibly obtain labor, traffic with respect to involuntary servitude and enter into marriage for the purpose of evading immigration laws each, in and of itself, would be grounds for revocation. --------
In her last issue, Phan asserts that the Board abused its discretion when it refused to consider her "undisputed" mitigating evidence and imposed the most drastic of penalties. Again, this Court must disagree.
The Board is charged with the responsibility and authority to oversee the profession and to regulate and license professionals to protect the public. Barran v. State Board of Medicine, 670 A.2d 765 (Pa. Cmwlth. 1996). However, this Court is required to correct abuses of discretion in a manner or degree of penalties imposed. Foose v. State Board of Vehicle Manufactures, Dealers and Salespersons, 578 A.2d 1355 (Pa. Cmwlth. 1990).
Here, the Board carefully considered all of the evidence regarding the nature of the offenses, the mitigating testimony and imposed the maximum sanction authorized. The Board did not abuse its discretion. The Board was profoundly concerned that Phan was an unacceptable risk for future violations. Given the gravity of the crimes, the fact that the crimes involved the Board's licensing program, and the fact that Phan damaged the reputation and confidence of the public in the profession, the Board felt it was compelled to act in the public interest by revoking, and that revocation would serve as a deterrent and prevent Phan from acting in that manner again. Not one of these concerns is unfounded.
In Storch v. State Board of Vehicle Manufacturers, Dealers and Salespersons, 572 A.2d 819 (Pa. Cmwlth. 1990), the petitioner argued that the Board abused its discretion when it revoked his license for odometer tampering. He argued that the Board of Vehicle Manufacturers, Dealers and Salespersons failed to consider his mitigating evidence that he voluntarily ceased his illegal conduct, fully cooperated with authorities and paid all criminal penalties. This Court rejected his argument and held that the Board of Vehicle Manufacturers, Dealers and Salespersons had no obligation to impose a lesser sanction based on the mitigating evidence and that it was within the board's discretion to give greater weight to the seriousness of the petitioner's violations "mindful of its obligation to protect consumers from fraudulent, unethical behavior in the industry." Storch, 572 A.2d at 822.
This case is different from Ake v. Bureau of Professional and Occupational Affairs, 974 A.2d 514 (Pa. Cmwlth. 2009), upon which Phan relies in support of her argument that the Board erred by imposing the most drastic of penalties. In Ake, Kevin Ake (Ake), a certified public accountant, was convicted of harassment. Ake testified before the Accountancy Board that he never had any past trouble, and that he left the offensive phone message after he was removed from an organization. The Board of Accountancy rejected his mitigating evidence and revoked his license to practice public accounting. On appeal, Ake argued that the Accountancy Board abused its discretion by imposing the maximum penalty of revocation and was excessive under the circumstances. This Court agreed that the Accountancy Board abused its discretion by imposing the most drastic available sanction because "complete revocation of a CPA's credentials should be a sanction reserved for the worst offenders." Ake, 974 A.2d at 522.
In contrast to Ake, Phan's convictions involved the exploitation of vulnerable persons who were removed from their homeland, brought to this country in violation of immigration laws and forced to work for Phan for little or no remuneration. Phan's convictions resulted in massive civil forfeitures, 90-days jail time, one-year probation and home confinement for 270 days. Unlike in Ake, the Board was rightfully influenced by the gravity of the convictions and penalties and not by Phan's self-serving attempts to explain or justify her actions.
Because this Court finds Phan's arguments to be wholly without merit, the Order of the Board is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 7th day of May, 2012, the order of the State Board of Cosmetology in the above-captioned matter is hereby affirmed.
/s/_________
BERNARD L. McGINLEY, Judge