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Board cannot deny license for drug conviction unrelated to practice

A Pennsylvania court overturned a decision by the state's barber board that denied reinstatement of a licensee whose license had been revoked after criminal drug convictions. The court held September 12 that, while the board could revoke a license for a felony conviction, it could not later deny reinstatement based on that conviction unless it was related to the practice of the licensee.

Fulton v. Bureau of Professional and Occupational Affairs)

Marvin Fulton, the licensee, is a licensed barber and barber manager. In 2002, after Fulton was convicted on a drug charge, Pennsylvania’s Board of Barber Examiners placed his license on probation. In 2009, well after his probation had ended, Fulton was again convicted for the possession and sale of cocaine. The board revoked his license in 2010.

After Fulton was paroled in 2015, he petitioned the board to allow him to take the barber manager examination and reinstate his license. The board denied Fulton’s petition on the grounds that Fulton had been twice convicted of drug trafficking, that drugs had been found in his barber shop, and that he had not shown sufficient rehabilitation.

Although Fulton’s charging records did show that cocaine was found at the address of his barbershop, he claimed that the drugs were not found in the shop, but in his apartment, which was in the same building, and the charging papers did not specify in which of the two locations the drugs were found.

Fulton appealed the board’s decision and the case went up to the Commonwealth Court of Pennsylvania.

On appeal, Fulton challenged the decision of the board by arguing that his convictions were unrelated to his barbershop and that the board thus had no authority to use them as the basis for discipline.

The court, in an opinion by Judge James Colins, agreed. Noting that Fulton’s charging documents contained only the information that cocaine was found at an address that contained both Fulton’s barbershop and his apartment, Judge Colins said:

“Given [Fulton]’s uncontradicted testimony that the drugs were found in his residence . . . 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.”

Analyzing Pennsylvania statutes that govern license reinstatement in the face of criminal convictions, the court held that those statutes did not allow the barbering board to deny an applicant “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 requires only that applicants be at least 16 years old, have at least an eighth-grade education, have a specified amount of 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. This statutory language stands in sharp contrast to licensure statutes for other professions.”

In fact, Judge Colins noted, it was because of barbering’s lack of penalty for criminal convictions that the state Department of Corrections established a barber training program for prisoners.

Although the court acknowledged that, under the state’s Criminal History Record Information Act, the board could revoke a license on the ground that a licensee had been convicted of a felony, Judge Colins noted that the issue in the case involved only an application for reinstatement, not the board’s power to revoke.

The board also argued that a drug conviction should be disqualifying for a barbering license, due to the community-gathering-space nature of barber shops, but the court rejected this argument as well, holding that it was inconsistent with the barbering license statute.

Judge Colins also noted that, unlike other professionals-nurses, pharmacists, and physicians-who are subject to denial of a license in the face of drug convictions, barbers do not have 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.”

The court reversed the board’s denial and remanded it for the board to consider whether there was evidence that drugs were found on the premises of Fulton’s barbershop.