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Kirkpatrick v. Bureau of Professional and Occupational Affairs

Commonwealth Court of Pennsylvania

June 10, 2015

Randy Kirkpatrick, Petitioner
v.
Bureau of Professional and Occupational Affairs, State Board of Barber Examiners, Respondent

Argued: March 9, 2015

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION

COHN JUBELIRER JUDGE

Randy Kirkpatrick (Licensee) petitions for review of the Final Order of the Bureau of Professional and Occupational Affairs, State Board of Barber Examiners (Board), which revoked Licensee's barber and barber manager licenses for unethical conduct pursuant to Section 9(a)(5) of the Barber License Law[1] (Law), as a result of Licensee's plea of nolo contendere to a charge of indecent assault. On appeal Licensee argues, inter alia, that the Board erred in concluding that revocation of Licensee's licenses was the appropriate sanction under Section 9(a)(5) of the Law because the conduct associated with Licensee's nolo contendere plea had no relationship to his practice of barbering.[2]

Licensee holds licenses from the Board to practice as a barber and barber manager.[3] (Proposed Adjudication, Findings of Fact (FOF) ¶ 1; Hr'g Tr. at 7, 14.) On October 3, 2012, Licensee pled nolo contendere to one misdemeanor "count of Indecent Assault, in violation of" Section 3126(a)(7) of the Crimes Code[4] in the court of common pleas. (FOF ¶ 7.) On January 8, 2013, Licensee was sentenced to 24 months of probation, along with other conditions.[5] (FOF ¶ 8.) On the basis of Licensee's nolo contendere plea, an Order to Show Cause was filed on April 26, 2013, seeking disciplinary action against Licensee on the basis that he violated Section 9(a)(5) of the Law, which prohibits unethical conduct.[6] (Proposed Adjudication at 1.)

A hearing was held before a Hearing Examiner, at which Licensee was represented by counsel. The Commonwealth of Pennsylvania (Commonwealth) offered a certified copy of the records from Licensee's criminal proceedings and rested its case. (Hr'g Tr. at 11-12, 19; Ex. C-3.) Licensee testified that he has complied with all of his sentencing terms and was on probation until January of 2015. (Hr'g Tr. at 15.) Licensee agreed that he would post a sign in his shop during the term of his criminal probation that would state that anyone "under the age of 16 must be accompanied by a parent or guardian" and explained that, although he saw twenty-five to forty adult clients per day, he only saw three or four minors each week, who were always accompanied by an adult. (Hr'g Tr. at 14, 16-17.)

The Hearing Examiner issued her Proposed Adjudication on January 7, 2014, dismissing the Order to Show Cause. The Hearing Examiner relied on Eisenberg v. Department of Public Welfare, 516 A.2d 333 (Pa. 1986), for the principle that a "plea of nolo contendere [could] not be used as an admission of the underlying facts" involved in the criminal charge, but could be used for administrative discipline only where the nolo contendere plea was, itself, the operative fact authorizing discipline. (Proposed Adjudication at 7-8 (emphasis in original).) The Hearing Examiner held that "the Law does not contain a provision which authorizes disciplinary action solely on the basis of a criminal conviction, " and that Licensee's plea of nolo contendere could not be relied upon for the fact that he engaged in the underlying activity alleged. (Proposed Adjudication at 7-8.) Noting that the Commonwealth did not present any independent evidence of Licensee's conduct, the Hearing Examiner concluded that the Commonwealth had not met its burden of proof and dismissed the Order to Show Cause.[7] (Proposed Adjudication at 8; Proposed Order.)

The Board notified the parties that it intended to review the matter regardless of whether exceptions to the Proposed Adjudication were filed. (Notice of Intent to Review.) The Commonwealth filed exceptions, challenging the Proposed Adjudication. After reviewing the record, the Board adopted the Hearing Examiner's Findings of Fact, but rejected the Hearing Examiner's conclusion that Licensee did not violate Section 9(a)(5) of the Law. (Final Adjudication at 2.) The Board relied upon State Dental Council and Examining Board v. Friedman, 367 A.2d 363 (Pa. Cmwlth. 1976), for the principle that, while a nolo contendere plea may not generally be relied upon in a civil proceeding, it may be relied upon as an admission of guilt in an administrative disciplinary proceeding. (Final Adjudication at 3-4.) The Board concluded that Licensee's conduct was, by definition, unethical conduct. (Final Adjudication at 4.) The Board stated that, in pleading nolo contendere, Licensee "admit[ted] guilt to the elements of the crime but not to the underlying facts of the case." (Final Adjudication at 4.) The Board explained that "[b]ecause, as he judicially admitted, [Licensee] committed indecent assault, [Licensee] is subject to disciplinary action under [S]ection 9(a)(5) of the" Law. (Final Adjudication at 4.) On the basis of this violation, the Board revoked Licensee's licenses. (Final Order.) Licensee now petitions this Court for review of that Final Order.[8], [9]

Section 9(a) of the Law sets forth the circumstances under which the Board may suspend or revoke a license. 63 P.S. § 559(a). In its entirety, Section 9(a) provides:

(a) 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 ...

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