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Fulton v. Bureau of Professional and Occupational Affairs

Commonwealth Court of Pennsylvania

September 12, 2017

Marvin Fulton, Petitioner
v.
Bureau of Professional and Occupational Affairs, State Board of Barber Examiners, Respondent

          Submitted: July 21, 2017

          BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE JULIA K. HEARTHWAY, Judge [1] HONORABLE JAMES GARDNER COLINS, Senior Judge

          OPINION

          JAMES GARDNER COLINS, SENIOR JUDGE

         Marvin Fulton (Petitioner) petitions, pro se, for review of an order of the State Board of Barber Examiners (Board) under the Barber License Law[2]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 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 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, 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 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 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]

         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 ...


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