Submitted: July 21, 2017
BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE JULIA K.
HEARTHWAY, Judge  HONORABLE JAMES GARDNER COLINS, Senior
GARDNER COLINS, SENIOR JUDGE
Fulton (Petitioner) petitions, pro se, for review of
an order of the State Board of Barber Examiners (Board) under
the Barber License Lawdenying reinstatement of his barber manager
license. For the reasons set forth below, we reverse and
remand this matter to the Board for further proceedings.
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 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.)
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,  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. (R. Item 7, 2016 Board Order, F.F.
¶12; R. Item 3, Board Ex. 1, 2010 Board Order.)
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 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
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.)
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, 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.
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 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.
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.
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 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).
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.
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 ...