M. Fulton v. BPOA, State Board of Barber Examiners

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