Fulton v. Bureau of Professional & Occupational Affairs, State Board of Barber Examiners ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Marvin Fulton, :
:
Petitioner :
:
v. : No. 196 C.D. 2017
: Submitted: July 21, 2017
Bureau of Professional and :
Occupational Affairs, State Board :
of Barber Examiners, :
:
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE JULIA K. HEARTHWAY, Judge1
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION BY
SENIOR JUDGE COLINS FILED: September 12, 2017
Marvin Fulton (Petitioner) petitions, pro se, for review of an order of
the State Board of Barber Examiners (Board) under the Barber License Law2
denying reinstatement of his barber manager license. For the reasons set forth
below, we reverse and remand this matter to the Board for further proceedings.
Petitioner was licensed by the Board as a barber in 1985 and as a
barber manager in 1992. (Certified Record Item (R. Item) 7, 2016 Board Order
Adopting Hearing Examiner’s Proposed Adjudication and Order (2016 Board
Order), Findings of Fact (F.F.) ¶¶1-2.) In 2002, the Board placed Petitioner’s
1
This decision was reached before Judge Hearthway’s service with the Court ended on
September 1, 2017.
2
Act of June 19, 1931, P.L. 589, as amended, 63 P.S. §§ 551-567.
barber manager license on probation as the result of a 1996 federal drug
conviction. (Id. F.F. ¶3.) That period of probation expired prior to the events at
issue in this appeal. (R. Item 3, Hearing Transcript (H.T.) at 24.) In 2003, the
Board issued Petitioner a barber shop license. (R. Item 7, 2016 Board Order, F.F.
¶4.)
In 2009, Petitioner was convicted in the Court of Common Pleas of
York County of two felonies and one misdemeanor, possession of a controlled
substance with intent to deliver, delivery of a controlled substance, and possession
of a controlled substance in violation of Sections 13(a)(30) and (32) of the
Controlled Substance, Drug, Device and Cosmetic Act,3 and was sentenced to
seven to twenty years in prison. (R. Item 7, 2016 Board Order, F.F. ¶¶9-10.)
These convictions arose out of a sale and seizure of cocaine in August 2008. (R.
Item 3, Board Ex. 1, 2010 Board Order Adopting Hearing Examiner’s Proposed
Adjudication and Order (2010 Board Order), F.F. ¶¶10-11, 14.) On December 30,
2010, the Board revoked Petitioner’s barber manager license, barber license and
barber shop license based on those convictions.4 (R. Item 7, 2016 Board Order,
F.F. ¶12; R. Item 3, Board Ex. 1, 2010 Board Order.)
Petitioner was paroled on September 16, 2015. (R. Item 7, 2016
Board Order, F.F. ¶14.) On January 31, 2016, Petitioner filed a Reinstatement
Application for Professional Licensure by Examination with the Board seeking to
take the barber manager examination and obtain reinstatement of his barber
3
Act of April 14, 1972, P.L. 233, § 13(a)(30), (32), as amended, 35 P.S. § 780-113(a)(30), (32).
4
Petitioner’s barber license had become inactive in 1994 and his barber manager and barber
shop licenses had become inactive or expired in April 2010, but the licenses could be reactivated,
prior to the revocation, upon the filing of certain documents and payment of fees. (R. Item 7,
2016 Board Order, F.F. ¶¶1-2, 5-6; R. Item 3, Board Ex. 1, 2010 Board Order, F.F. ¶¶2, 4, 7.)
2
manager license. (Id., F.F. ¶18; R. Item 3, Board Ex. 1, Petitioner’s Reinstatement
Application.) In this application, Petitioner disclosed his convictions and the
revocation of his licenses. (R. Item 3, Board Ex. 1, Petitioner’s Reinstatement
Application.) On April 28, 2016, the Board ordered that Petitioner’s reinstatement
application be treated as a petition for reinstatement of his barber manager license
and delegated it to a hearing examiner.
At the hearing on June 17, 2016, Petitioner, who was 58 years old,
testified that since his release from prison, he has been employed by a church
doing maintenance and custodial work and that he lives with and helps care for his
mother, who has diabetes. (R. Item 3, H.T. at 17-19, 40-41, 44.) Petitioner
admitted that he had used cocaine in the past and that he committed the drug
crimes for which he was convicted. (Id. at 19-20, 23-24, 46.) Petitioner
introduced documents showing his successful completion of an alcohol and drug
abuse program and other programs in prison and testified that he is subject to
alcohol and drug testing on his parole, has passed all alcohol and drug tests, and is
current on all fines that he has been ordered to pay. (Id. at 20-23, 26-39, 46; R.
Item 3, Applicant Ex. 1.) Petitioner testified that he did not have definite plans as
to where he would work as a barber, but that if he was licensed, he intended to
work temporarily for another barber and ultimately open his own barbershop and
that he wanted to get his license because barbering is “what I do.” (R. Item 3, H.T.
at 37-39, 43-44.)
The Board’s 2010 Order revoking Petitioner’s licenses and records of
the charges of which Petitioner was convicted in 2009 were also introduced in
evidence. (R. Item 3, H.T. at 12-15.) The records of the criminal charges showed
that cocaine was found at the address at which Petitioner resided. (R. Item 3,
3
Board Ex. 1, Police Criminal Complaints.) That address was the same building
where Petitioner’s barbershop was located, but Petitioner testified that he resided
in a separate apartment upstairs from the barbershop and that the search that found
the cocaine was a search of his apartment, not the barbershop, and he denied that
any drug activity occurred in the barbershop. (R. Item 3, H.T. at 18-20, 38, 48.)
The documentary evidence introduced at the hearing concerning the criminal
convictions did not reference a barbershop or business and simply stated the
address, without any indication whether the location where the cocaine was found
was the barbershop or Petitioner’s residence. (R. Item 3, Board Ex. 1, Police
Criminal Complaints.) There was no other evidence introduced at the hearing
concerning the location of the sale of cocaine for which Petitioner was convicted
and no evidence was introduced that Petitioner ever sold cocaine from the
barbershop.
On October 20, 2016, the hearing examiner issued a Proposed
Adjudication and Order setting forth findings of fact and concluding that the
Petitioner should not be able to obtain a barber license. In his Proposed
Adjudication and Order, the hearing examiner found credible Petitioner’s
testimony concerning his work since his release from prison, his care for his
mother and his compliance with the conditions of his release from prison. (R. Item
4, Hearing Examiner’s Proposed Adjudication and Order, F.F. ¶15 & Discussion at
13.) The hearing examiner, however, concluded that Petitioner’s drug convictions
showed unfitness to practice barbering, stating that the 2009 convictions involved
cocaine found on “the premises of Petitioner’s barber shop” and that “[t]here is no
dispute that Petitioner’s convictions were based, at least in part, on conduct that
occurred in his barber shop.” (Id., F.F. ¶11 & Discussion at 11.) Given those
4
determinations, the hearing examiner concluded that Petitioner was required to
show that he was rehabilitated and found that Petitioner had shown insufficient
evidence of community and religious activities and participation in drug and
alcohol programs outside of prison to establish that he had made “substantial
personal progress in rehabilitation” and overcome the fact that he had twice
engaged in drug trafficking. (Id., F.F. ¶17 & Discussion at 13.) On December 23,
2016, the Board issued its Final Adjudication and Order in this matter adopting the
hearing examiner’s Proposed Adjudication and Order as its final order and denying
Petitioner’s application for reinstatement of licensure as a barber. This appeal
followed.
Our review is limited to determining whether the Board’s necessary
findings of fact are supported by substantial evidence in the record and whether the
Board committed an error of law or constitutional violation. Kirkpatrick v. Bureau
of Professional and Occupational Affairs, State Board of Barber Examiners, 117
A.3d 1286, 1289 n.8 (Pa. Cmwlth. 2015). Petitioner argues that the Board’s
finding that his drug convictions were related to his barbershop is not supported by
the evidence before it. We agree.
The only evidence connecting Petitioner’s convictions to his
barbershop or work as a barber were charging documents stating that cocaine was
found at an address that contained two separate premises, Petitioner’s barbershop
and Petitioner’s residence. Nothing in the record showed that cocaine was found
in the barbershop. To the contrary, the documents from the criminal case merely
stated the address and also state that the same address is the address at which
Petitioner “lives.” (R. Item 3, Board Ex. 1, Police Criminal Complaints.) The
Board’s records show that the address referenced in the criminal records included
5
both the barbershop address and Petitioner’s residence address. (R. Item 3, Board
Ex. 1, 2010 Board Order, F.F. ¶¶5, 9.) Petitioner testified that his residence was
separate from the barbershop. (R. Item 3, H.T. at 18, 48.) Moreover, the Barber
License Law required that his residence be distinct and separate from his barber
shop. See Section 10 of the Barber License Law, 63 P.S. § 560 (prohibiting use of
a barber shop as sleeping quarters or for residential purposes). Given Petitioner’s
uncontradicted testimony that the drugs were found in his residence (R. Item 3,
H.T. at 19-20, 48) and the complete absence of any other evidence as to which of
the separate premises was involved or that both were involved, the Board’s
conclusion that Petitioner’s drug activity occurred at or involved his barbershop is
not supported by substantial evidence in the record. See U.S. National Bank
Association v. United Hands Community Land Trust, 129 A.3d 627, 632-37 (Pa.
Cmwlth. 2015) (evidence supporting only suspicion or conjecture does not
constitute substantial evidence); Barnes v. Department of Justice, 452 A.2d 593,
595 (Pa. Cmwlth. 1982) (same).5
5
The Board’s 2010 Order revoking Petitioner’s licenses is likewise not sufficient to support a
finding here that Petitioner’s drug offenses occurred in or involved his barbershop. The only
factual findings that the Board made in its 2010 Order were that the cocaine was found at the
address where both Petitioner’s barbershop and residence were located, without any
determination as to whether the barbershop or only the residence was involved. (R. Item 3,
Board Ex. 1, 2010 Board Order, F.F. ¶¶11, 14, Conclusion of Law (C.L.) ¶5 & Discussion at 9.)
Although the Board also stated that this fact was sufficient to establish a nexus between the
barbershop and Petitioner’s misdemeanor conviction (Id., C.L. ¶5 & Discussion at 9) and
Petitioner did not appeal the 2010 Order, that does not bar him from disputing that his
convictions were connected to the barbershop in this proceeding. Collateral estoppel applies
only where the determination in the prior proceeding was essential to the judgment. Liberty
Mutual Insurance Co. v. Bureau of Workers’ Compensation, Fee Review Hearing Office (Kepko,
D.O.), 37 A.3d 1264, 1269 n.12 (Pa. Cmwlth. 2012); In re Private Road in Union Township, 611
A.2d 1362, 1364-65 (Pa. Cmwlth. 1992). Proof that Petitioner’s 2009 convictions were related
to his barbershop was unnecessary to the 2010 Order because the Board based the revocation on
his felony convictions, which, as discussed below, are grounds for license revocation without a
(Footnote continued on next page…)
6
Absent a valid finding that Petitioner’s 1996 or 2009 convictions were
related to his barbershop or barbering work, the Board’s refusal to permit
Petitioner to take the barber manager examination and seek licensure cannot stand.
The Board’s decision was based on those convictions and the conclusion that the
2009 convictions were connected to Petitioner’s barbershop; it denied his petition
because it found that those convictions showed unfitness to practice barbering and
that Petitioner had not shown that he was sufficiently rehabilitated to permit him to
obtain a barber’s license in light of those convictions.
Two statutes govern whether reinstatement of a barber’s license may
be denied or revoked based on a criminal conviction unrelated to the license, the
Barber License Law and Section 9124 of the Criminal History Record Information
Act (CHRIA), 18 Pa. C.S. § 9124. The interpretation of these statutes is a question
of law over which this Court exercises de novo review. Kirkpatrick, 117 A.3d at
1290. We conclude that neither of these statutes permits the Board to deny an
application for licensure as a barber or reinstatement of a revoked barber’s license
based on a criminal conviction without any evidence that the conviction relates to
or is based on conduct that has some effect on the applicant’s work as a barber or
use of his barber license.
The Barber License Law does not provide for denial of licensure or
revocation of a license for criminal activity unrelated to the practice of barbering.
Sections 3 and 9 of the Barber License Law, 63 P.S. §§ 553, 559; Kirkpatrick, 117
A.3d at 1289-94. The Barber License Law requires only that applicants be at least
16 years old, have at least an eighth grade education, have a specified amount of
(continued…)
relationship between the crime and professional license. (R. Item 3, Board Ex. 1, 2010 Board
Order, Discussion at 9-10.)
7
barber training and experience, and pass the applicable barber examinations and
does not require that applicants demonstrate that they are of good moral character
or restrict licensure based on prior criminal convictions. 63 P.S. § 553(a), (c).6
6
Section 3 of the Barber License Law provides that the requirements for a barber’s license and
barber manager are as follows:
(a) Each applicant for a barber’s license shall, as a condition precedent to
obtaining a license, take the barber’s license examination and score a passing
grade. Prior to taking the examination the applicant shall be at least sixteen
years of age, have completed the eighth grade or its equivalent and have
completed a barbering study and training period of at least one thousand two
hundred fifty (1250) hours and not less than nine months either in a licensed
barber school under the instruction of a licensed teacher, or in a licensed barber
shop under the instruction of a licensed teacher. A notarized application for a
license as a barber shall be made in such form as the board shall prescribe. The
application shall also be accompanied by a notarized statement, from either the
licensed barber school the applicant attended or the licensed barber-teacher in
the licensed barber shop in which the applicant studied and trained, that the
student has completed the study and training period required in this subsection.
At the time of filing the application and accompanying notarized statements, the
applicant shall pay to the department an examination fee to be determined by
regulation and shall present himself or herself at the next examination of
applicants as provided in section 6. The board shall not have the power to
require a photograph as part of an application for a barber’s license.
* * *
(c) Each applicant for a manager-barber’s license shall, as a condition precedent
to obtaining a license, take the manager-barber’s license examination and score
a passing grade. Prior to taking the examination, the applicant shall have
completed the eighth grade or its equivalent and actively engaged in the practice
of barbering, as a licensed barber, for one or more years. The board shall
properly notify every licensed barber that if he or she has been actively engaged
in the practice of barbering he or she shall, upon filing an application therefor
prior to January 1, 1981, be licensed as a manager-barber without examination.
A notarized application for a license as a manager-barber shall be made in such
form as the board shall prescribe. The application shall be accompanied by a
notarized statement, from either the owner or manager of the licensed barber
shop or shared shop as set forth in section 15-A.3 in which the applicant has
been employed, that the applicant has been actively engaged in the practice of
barbering, as a licensed barber, for one or more years. The board shall not have
the power to require a photograph as part of an application for a manager-
barber’s license. At the time of filing the application and accompanying
notarized statement, the applicant shall pay to the department an examination
(Footnote continued on next page…)
8
This statutory language stands in sharp contrast to licensure statutes for other
professions, which impose specific requirements that the applicant be of good
moral character or permit the denial of licensure based on criminal convictions.7
(continued…)
fee to be determined by regulation and shall present himself or herself at the
next examination of applicants as provided in section 6.
63 P.S. § 553(a), (c).
7
Compare, e.g., Section 4.2(b)(2) of the CPA Law, Act of May 26, 1947, P.L. 318, added by the
Act of July 9, 2008, P.L. 954, as amended, 63 P.S. § 9.4b(b) (“Before an individual may take the
examination, the board shall be satisfied that the individual: … (2) is of good moral character”);
Section 4.1(a)(4) of the Dental Law, Act of May 1, 1933, P.L. 216, added by the Act of
December 20, 1985, P.L. 513, as amended, 63 P.S. § 123.1(a)(4) (authorizing refusal of a license
to any dentist or dental hygienist who has “been found guilty of a crime or misdemeanor
involving moral turpitude or ... a felony”); Sections 6(a) and (c) of the Professional Nursing Law,
Act of May 22, 1951, P.L. 317, as amended, 63 P.S. § 216(a), (c) (“Every applicant, to be
eligible for examination for licensure as a registered nurse, shall furnish evidence satisfactory to
the Board that he or she is of good moral character;” “The Board shall not issue a license or
certificate to an applicant who has been convicted of a felonious act prohibited by the act of
April 14, 1972 (P.L. 233, No. 64), known as ‘The Controlled Substance, Drug, Device and
Cosmetic Act,’ or convicted of a felony relating to a controlled substance in a court of law of the
United States or any other state, territory or country unless: (1) at least ten (10) years have
elapsed from the date of conviction [and] (2) the applicant satisfactorily demonstrates to the
Board that he has made significant progress in personal rehabilitation …”); Section 3(a) of the
Pharmacy Act, Act of September 27, 1961, P.L. 1700, as amended, 63 P.S. § 390-3(a) (“The
State Board of Pharmacy may license as a pharmacist any person who has filed an application
therefor … and who-- … (2) Has satisfied the board that he is of good moral and professional
character … [and] (6) Has not been convicted of a felonious act prohibited by the act of April 14,
1972 (P.L. 233, No. 64), known as ‘The Controlled Substance, Drug, Device and Cosmetic Act,’
or convicted of a felony relating to a controlled substance in a court of law of the United States
or any other state, territory or country unless: (i) at least ten years have elapsed from the date of
conviction [and] (ii) the applicant satisfactorily demonstrates to the board that he has made
significant progress in personal rehabilitation …”); Section 22(b) of the Medical Practice Act of
1985, Act of December 20, 1985, P.L. 457, as amended, 63 P.S. § 422.22(b) (“The board shall
not issue a license or certificate to an applicant unless the applicant establishes … that the
applicant … is of good moral character … [and] shall not issue a license or certificate to an
applicant who has been convicted of a felony under the act of April 14, 1972 (P.L. 233, No. 64),
known as The Controlled Substance, Drug, Device and Cosmetic Act, or of an offense under the
laws of another jurisdiction which, if committed in this Commonwealth, would be a felony under
The Controlled Substance, Drug, Device and Cosmetic Act, unless: (1) at least ten years have
elapsed from the date of conviction [and] (2) the applicant satisfactorily demonstrates to the
board that he has made significant progress in personal rehabilitation …”).
9
Indeed, consistent with the absence in the Barber License Law of character and
criminal history restrictions, the Department of Corrections (DOC) has established
a barber and barber manager training program for inmates serving substantial
prison sentences to allow such inmates to learn the vocational skill of barbering
and obtain a license to practice that vocation. DOC Administrative Directive 807
§§ 1(B), 2.
Section 9 of the Barber License Law, governing suspension,
revocation and reinstatement of barber licenses, permits revocation or suspension
only for conduct related to the licensee’s practice of barbering. 63 P.S. § 559(a);8
Kirkpatrick, 117 A.3d at 1289-94. While the grounds for suspension or revocation
8
Section 9(a) of the Barber License Law provides:
The board may suspend or revoke any license granted by the department under
this act to any person who (1) habitually indulges in the use of alcohol,
narcotics, or other stimulants to such an extent as, in the opinion of the board,
incapacitates such person from the duties of a barber; (2) has or imparts any
contagious or infectious disease to any recipient of such person’s services as a
barber; (3) performs work in an unsanitary or filthy manner or place of business;
(4) who is grossly incompetent; (5) engages in unethical or dishonest practice or
conduct, or violates any of the provisions of this act, or any rules or regulations
of the board; (6) employs an unlicensed person; (7) charges tuition to a student
in a licensed barber shop; or (8) fails to submit to an inspection of his or her
shop during hours of the shop. Before any such license 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 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. Any person whose license has been so suspended
may, on application, have the same reissued to him or her upon satisfactory
showing that the disqualification has ceased. Any person whose license was
suspended for having or imparting any contagious or infectious disease shall not
have his or her license reissued for a period of at least one year, and then only
after the person has submitted to the board a notarized statement from a licensed
physician that he or she is free from contagious or infectious disease.
63 P.S. § 559(a).
10
include “engag[ing] in unethical or dishonest practice or conduct,” 63 P.S. §
559(a)(5), this Court held in Kirkpatrick that the unethical or dishonest practice or
conduct must relate to the practice of barbering to be grounds for suspension or
revocation and that a criminal conviction unrelated to the licensee’s work as a
barber is not grounds for discipline under the Barber License Law. 117 A.3d at
1289-94. Section 9 further provides that a barber whose license has been
suspended “may, on application, have the same reissued to him or her upon
satisfactory showing that the disqualification has ceased,” but that the Board “shall
not reinstate the license of a person to practice as a barber which has been revoked
and such person shall be required to apply for a license after a five-year period in
accordance with section 3 [63 P.S. § 553] if he desires to practice at any time after
such revocation.” 63 P.S. § 559(a), (b).
Unlike the Barber License Law, Section 9124(c) of CHRIA permits a
licensing board to revoke or suspend a professional license on the ground that the
licensee has been convicted of a felony, with no requirement that the crime relate
to the profession in question. 18 Pa. C.S. § 9124(c)(1).9 The power to revoke a
professional license under CHRIA is in addition to the authority of a licensing
board to take disciplinary action under its own licensing statute and conviction of a
9
Section 9124(c) of CHRIA provides that
[b]oards, 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.
(2) Where the applicant has been convicted of a misdemeanor which relates to
the trade, occupation or profession for which the license, certificate, registration
or permit is sought.
18 Pa. C.S. § 9124(c).
11
felony is therefore a sufficient ground for license revocation, even where the felony
does not fall within the grounds for disciplinary action under the licensing statute
in question. Cannizzaro v. Department of State, Bureau of Professional and
Occupational Affairs, 564 A.2d 564, 566-67 (Pa. Cmwlth. 1989). Section
9124(b)(5) of CHRIA, however, prohibits licensing agencies from using
“[c]onvictions which do not relate to the applicant’s suitability for the license,
certificate, registration or permit” in the “consideration of an application for a
license, certificate, registration or permit.” 18 Pa. C.S. § 9124(b)(5). Section
9124(b)(5) of CHRIA applies only to applications for licensure and does not
restrict a licensing board’s power to suspend or revoke a professional license.
Gangewere v. State Architects Licensure Board, 512 A.2d 1301, 1305-06 (Pa.
Cmwlth. 1986).
Here, the issue before the Board was Petitioner’s application for
reinstatement, not the Board’s authority to revoke a license. Because the Board
revoked Petitioner’s barber licenses in 2010, he was required to satisfy the
qualifications of an initial applicant to obtain a barber license. 63 P.S. § 559(b).
Petitioner’s application for reinstatement was therefore an application for a license.
Given the absence of any requirements or prohibitions in the Barber License Law
concerning moral character, criminal convictions or conduct unrelated to
barbering, a criminal conviction does “not relate to the applicant’s suitability for” a
barber license unless it involved or was based on conduct connected to the
applicant’s barbering practice or barbering activities. Section 9124 of CHRIA
therefore does not permit the denial of Petitioner’s application for reinstatement
based on Petitioner’s history of criminal convictions or a failure to show sufficient
12
rehabilitation unless there is a showing that either the 1996 or 2009 convictions
were related to Petitioner’s barbershop or barbering work.
The Board argues that drug convictions should be grounds for denial
of reinstatement, regardless of their relationship to the applicant’s work as a
barber, because barbershops are neighborhood or community gathering places.
This argument does not alter our analysis for two reasons.
First, this argument is inconsistent with the statutory language of the
Barber License Law. As is discussed above, in contrast to other professional
licensure statutes, the legislature in the Barber License Law did not include
character or criminal convictions as factors relevant to licensure and limited the
misconduct for which a license could be suspended or revoked to conduct
involving barbering work. 63 P.S. §§ 553, 559; Kirkpatrick, 117 A.3d at 1289-94.
If the legislature had viewed drug convictions as inherently relevant to barbering, it
could have provided that such convictions are grounds for denial of a license, as it
did in the Professional Nursing Law, the Pharmacy Act, and the Medical Practice
Act of 1985. See 63 P.S. § 216(c); 63 P.S. § 390-3(a)(6); 63 P.S. § 422.22(b).
Second, unlike the professions of nursing, pharmacy and medicine,
where the legislature chose to make drug convictions disqualifying, barbering
involves no access to restricted substances. The possibility of drug sales through a
barbershop and of adverse effect on the community invoked by the Board arises
from the fact that a barbershop is a commercial establishment, not from the nature
of barbering as a licensed profession, and would be equally present in other
commercial establishments, such as corner grocery or convenience stores, that are
not subject to professional licensure requirements.
13
In sum, the Board’s finding that Petitioner’s 2009 drug convictions
were related to his barbershop is not supported by substantial evidence and absent
a connection to Petitioner’s practice of barbering, such criminal convictions are not
grounds for denial of a barber license. Accordingly, we reverse the order of the
Board. Because the scope of the hearing and evidence introduced may have been
affected by the erroneous assumption that a connection between Petitioner’s
convictions and his work as a barber was not required, we remand this matter to
the Board for further proceedings at which additional evidence concerning the
location of the drug activity on which the 2009 convictions were based may be
introduced by the Board or the Petitioner. Absent introduction of further evidence
and a finding based on such evidence that the 2009 convictions were connected to
Petitioner’s barbershop or barbering work, the Board shall permit Petitioner to
apply for licensure and obtain a barber’s license or barber manager’s license if he
satisfies the requirements of Section 3 of the Barber License Law.
____________________________________
JAMES GARDNER COLINS, Senior Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Marvin Fulton, :
:
Petitioner :
:
v. : No. 196 C.D. 2017
:
Bureau of Professional and :
Occupational Affairs, State Board :
of Barber Examiners, :
:
Respondent :
ORDER
AND NOW, this 12th day of September, 2017, the order of the State
Board of Barber Examiners in the above matter is REVERSED. This matter is
REMANDED to the State Board of Barber Examiners for further proceedings
consistent with this opinion.
Jurisdiction relinquished.
____________________________________
JAMES GARDNER COLINS, Senior Judge