Fulton v. Bureau of Professional & Occupational Affairs, State Board of Barber Examiners
169 A.3d 718
| Pa. Commw. Ct. | 2017Background
- Marvin Fulton, a barber (licensed 1985) and barber manager (1992), had prior probation from a 1996 federal drug conviction; he obtained a barbershop license in 2003.
- In 2009 Fulton was convicted of two felonies and a misdemeanor for cocaine offenses arising from an August 2008 seizure at an address that contained both his residence and barbershop; Board revoked his barber, manager, and shop licenses in 2010.
- Fulton was paroled in 2015 and applied in January 2016 to reinstate/take the barber manager exam, disclosing the convictions and revocation.
- At the 2016 hearing Fulton admitted past drug use and the convictions, presented evidence of rehabilitation (programs, parole testing, employment, family support), and testified the drugs were found in his separate residence upstairs, not the barbershop.
- The hearing examiner and Board denied reinstatement, finding the 2009 convictions involved the barbershop and that Fulton failed to show sufficient rehabilitation; Fulton appealed to the Commonwealth Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Board had substantial evidence that Fulton’s 2009 convictions were connected to his barbershop | Fulton: charging documents and his testimony show drugs were found in his residence, not the shop; no evidence ties convictions to barbering | Board: cocaine was found at the address of his barber shop; barbershop nexus supports denial | Court: No — record lacks substantial evidence that drug activity occurred in or involved the barbershop; Board’s finding unsupported |
| Whether Barber License Law allows denial of license for convictions unrelated to barbering | Fulton: Barber License Law does not condition licensure on moral character or unrelated convictions | Board: drug convictions justify denial because barbershops are community gathering places and convictions reflect unfitness | Court: Statute does not permit denial for crimes unrelated to barbering; licensing criteria do not include character or unrelated criminal conduct |
| Applicability of CHRIA (18 Pa. C.S. § 9124) to deny reinstatement | Fulton: CHRIA bars use of convictions that do not relate to applicant’s suitability for license in considering applications | Board: CHRIA allows revocation for felony convictions and supports discipline based on felonies | Court: Section 9124(b)(5) prohibits using unrelated convictions to deny an application; CHRIA’s revocation power is separate but does not authorize denying an application absent a demonstrated relationship to the profession |
| Remedy and scope of remand | Fulton: Board should be required to allow license application unless nexus proven | Board: denial appropriate unless Board proves otherwise | Court: Reversed Board order; remand for further proceedings to allow either side to introduce evidence on whether convictions were linked to the barbershop; absent such proof Fulton must be permitted to apply and be licensed if he meets statutory requirements |
Key Cases Cited
- Kirkpatrick v. Bureau of Professional and Occupational Affairs, State Board of Barber Examiners, 117 A.3d 1286 (Pa. Cmwlth. 2015) (statutory scope of Barber License Law discipline limited to conduct related to barbering)
- U.S. Nat’l Bank Ass’n v. United Hands Community Land Trust, 129 A.3d 627 (Pa. Cmwlth. 2015) (evidence that supports only suspicion or conjecture is not substantial evidence)
- Barnes v. Dep’t of Justice, 452 A.2d 593 (Pa. Cmwlth. 1982) (same — suspicion/conjecture insufficient)
- Cannizzaro v. Dep’t of State, Bureau of Professional and Occupational Affairs, 564 A.2d 564 (Pa. Cmwlth. 1989) (CHRIA permits revocation for felony conviction independent of licensing statute)
- Gangewere v. State Architects Licensure Bd., 512 A.2d 1301 (Pa. Cmwlth. 1986) (distinguishing CHRIA limits on application consideration from CHRIA-authorized revocation)
- Liberty Mut. Ins. Co. v. Bureau of Workers’ Compensation, Fee Review Hearing Office (Kepko, D.O.), 37 A.3d 1264 (Pa. Cmwlth. 2012) (collateral estoppel requires the prior determination to be essential to judgment)
- In re Private Road in Union Twp., 611 A.2d 1362 (Pa. Cmwlth. 1992) (collateral estoppel principles)