Kirkpatrick v. Bureau of Professional & Occupational Affairs, State Board of Barber Examiners
117 A.3d 1286
| Pa. Commw. Ct. | 2015Background
- Licensee Randy Kirkpatrick holds barber and barber manager licenses and challenged a Final Order revoking them.
- Kirkpatrick pled nolo contendere to a misdemeanor indecent assault under 18 Pa. C.S. § 3126(a)(7) and was sentenced to probation in 2013, among other conditions.
- An Order to Show Cause sought disciplinary action under Section 9(a)(5) of the Barber License Law for unethical conduct based on the plea.
- The Hearing Examiner dismissed the Order to Show Cause, relying on Eisenberg to limit nolo contendere pleas as admissions of underlying facts.
- The Board reviewed the matter, adopted the Examiner’s findings, but concluded Kirkpatrick’s conduct violated 9(a)(5) and revoked his licenses.
- The Commonwealth petitioned for review; the court held that 9(a)(5) requires conduct related to the practice of barbering and reversed the Board’s order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does 9(a)(5) authorize discipline for non-barbering conduct? | Kirkpatrick argues conduct unrelated to barbering can support discipline under 9(a)(5). | Commonwealth argues 9(a)(5) covers any unethical conduct by a licensee, not strictly barbering-related. | Ambiguous; must relate to barbering; Board’s revocation reversed. |
Key Cases Cited
- Eisenberg v. Department of Public Welfare, 512 Pa. 181 (1986) (plea of nolo contendere not admission of underlying facts)
- State Dental Council and Examining Board v. Friedman, 27 Pa.Cmwlth. 546 (1976) (nolo contendere may be used as admission in administrative discipline)
- Blumenschein v. Housing Authority of Pittsburgh, 379 Pa. 566 (1954) (deference to board discretion in professional discipline)
- Kistler v. State Ethics Commission, 610 Pa. 516 (2011) (statutory interpretation of agency disciplinary power)
- Ake v. Bureau of Professional and Occupational Affairs, State Board of Accountancy, 974 A.2d 514 (Pa.Cmwlth.2009) (remote or unrelated convictions may not justify discipline)
- Colville v. Allegheny County Retirement Board, 592 Pa. 433 (2007) (statutory intent and ambiguity guiding interpretation)