King v. Bureau of Prof'l & Occupational Affairs

• Citation: 195 A.3d 315
• Decision Date: 04 October 2018
• Docket Number: No. 68 C.D. 2017,68 C.D. 2017
• Parties: David Andrew KING, Petitioner v. BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS, STATE BOARD OF BARBER EXAMINERS, Respondent
• Court: Commonwealth Court of Pennsylvania

195 A.3d 315

David Andrew KING, Petitioner

v.BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS, STATE BOARD OF BARBER EXAMINERS, Respondent

No. 68 C.D. 2017

Commonwealth Court of Pennsylvania.

Submitted on Briefs February 7, 2018

Decided October 4, 2018

Douglas K. Marsico, Harrisburg, for petitioner.

Dana M. Wucinski, Assistant Counsel, Harrisburg, for respondent.

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H. WOJCIK, Judge

OPINION BY JUDGE WOJCIK

David Andrew King (King) petitions for review of the December 23, 2016 final adjudication and order of the Bureau of Professional and Occupational Affairs, State Board of Barber Examiners (Board) revoking King's licenses to practice as a barber, barber manager, and barber teacher. For the reasons that follow, we reverse.

King was issued a license to practice as a barber in Pennsylvania on March 27, 1986. Reproduced Record (R.R.) at 98a. He was issued a license to practice as a barber manager in Pennsylvania on April 21, 1998. Id.

On May 10, 2007, King was found guilty of one count of involuntary deviate sexual intercourse with a person less than 13 years of age, in violation of what was then Section 3123(a)(6) of the Crimes Code, 18 Pa. C.S. § 3123(a)(6), a first-degree felony.¹ R.R. at 10a-11a. King also was found guilty of one count of indecent assault of a person under 13, one count of indecent exposure, and two counts of corruption of minors, all of which are first-degree misdemeanors. The convictions were based on conduct that occurred on three occasions, between approximately 1998 and 2001, when the victim was between seven and ten years old.² R.R. at 10a-11a, 35a.

King was sentenced to 5 to 10 years of incarceration at a state correctional institution, plus 10 years of probation. The court attached the following conditions to his sentence: lifetime sex offender registration, pursuant to former Section 9795.1(b) of what was commonly referred to as Megan's Law III, 42 Pa. C.S. § 9795.1(b) ;³ a prohibition from being unsupervised around girls under the age of 18; and a requirement that King undergo sex offender evaluation and any recommended treatment, including pharmacological intervention and periodic polygraph testing. Additional conditions required that King: have limited internet connection to prevent access to child pornography; take STD classes;⁴ perform community service; undergo individual counseling or psychiatric treatments as recommended; maintain family responsibilities; and maintain full-time employment. R.R. at 30a-32a.

On July 1, 2008, while incarcerated, King earned his Board-issued barber teacher license. R.R. at 76a-78a. King was released on parole on May 12, 2012. One of the conditions of his parole is that he remain gainfully employed. R.R. at 52a. Within 30 days after his parole release, in June 2012, King was hired by World A Cuts Barber Institute (World A Cuts) in York as an instructor. R.R. at 65a, 76a.

On January 20, 2016, the Board issued an order to show cause, based upon King's 2007 felony conviction, why the Board should not suspend, revoke, or otherwise restrict King's barber licenses, impose a civil penalty, or impose the costs of investigation. R.R. at 1a-6a. The Board's action was brought under Section 9124(c) of the Criminal History Record Information Act (CHRIA), 18 Pa. C.S. § 9124(c), which authorizes the Board to "suspend or revoke any license ... [w]here the applicant has been convicted of a felony." On February 22, 2016, King filed an answer with new matter and a request for a hearing to present evidence in mitigation of any penalty the Board might impose. R.R. at 37a-38a.

A Board Hearing Examiner conducted a hearing on May 18, 2016. The Commonwealth presented certified criminal records of King's conviction, the Board's order to show cause, and King's answer. King testified and offered the testimony of two additional witnesses.

Michael Welsh, King's parole officer, testified on King's behalf. Welsh has worked for the Pennsylvania Board of Probation and Parole for nine years and is assigned to the Sex Offender Unit. He currently supervises a caseload of 110 sex offenders, including King. Welsh testified that he has been King's parole agent since May 12, 2012, and he described King as one of the most compliant offenders under his charge. Welsh explained that being gainfully employed is a condition of King's probation. Additional conditions of King's parole include maintaining weekly participation with Commonwealth Clinical Group, a sex offender treatment program; refraining from the use of drugs and alcohol; and having no contact with the victim or her family. Welsh said he meets with King's counselor and the assistant director at Commonwealth Clinical Group every two weeks and that King is considered a model group attendee. R.R. at 51a-54a.

Patrick Winter, the owner of World A Cuts, testified that the barber school prepares students to meet the state board licensing requirements. He stated that he and the institute's manager reviewed King's application, which reflected his criminal history. He said they met with King twice and discussed the charges with him, and King asked them to give him a chance to be employed. R.R. at 64a-65a.

Winter testified that he hired King in June 2012 and that King has been a good employee. He said that King travels about an hour and a half to get to work each day and has never been late. Winter described King as honest, dedicated, and reliable, adding that King handles significant amounts of cash and manages student tuition and student aid. Winter also said that he gave King a key and a security code because he sometimes relies on King to open and close the business. R.R. at 65a-67a. Winter testified that King's duties as an instructor include classroom instruction and floor supervision of the school's students, who are male and female students age 18 and older. He noted that the barber school students service walk-in customers, some of whom may be under 18 and accompanied by parents. Winter also noted that, with the exception of the bathrooms, the entire school is under 24-hour ADT Security surveillance.⁵ R.R. at 66a-68a.

Winter stated that King is highly qualified, very reliable, a very good teacher, and a valuable employee. He stated that King's criminal conviction does not affect his ability to perform his barber instructor duties and that World A Cuts' business would suffer without him. R.R. at 68a-71a.

King testified that he had been employed at World A Cuts since June 2012. He added that he obtained his barber license in 1985 and has worked as a barber since the age of 18. King explained that, while he was incarcerated, the Department of Corrections afforded him the opportunity to obtain his barber teaching license. R.R. at 76a-78a.

King described his duties at World A Cuts as including theory instruction with textbooks and workbooks and practical instruction with walk-in clients who come in for haircuts. R.R. at 79a.

The Hearing Examiner questioned King about the incidents underlying his criminal charges. The Hearing Examiner specifically noted that King had committed a sexual offense against a minor with whom he had a trusting relationship, and he asked King to comment on those circumstances as they relate to the trust placed in him as an instructor at the barber school. King acknowledged that the three incidents occurred over a period of three years and that the victim was a member of his household and someone with whom he had a trusting relationship. He stated that, at the time, he was $100,000 in debt and under a lot of stress; he described himself as being "in a sick place." R.R. at 85a. He said that he just snapped, adding that he should have sought therapy. King testified that he had learned a lot about himself since then. He stated that while he was incarcerated, he participated in eight months of low intensity therapy, after which he volunteered to participate in months of high intensity therapy, for a total of 20 to 24 months of treatment. R.R. at 84a-87a.

The Hearing Examiner observed that King lives with his mother, is not able to support himself as he once did, and would always have different types of stress in his life. The Hearing Examiner asked King to address how he is better prepared now to handle stress than he was before. King stated that he has learned to identify things to avoid, such as being alone with a minor, and to leave that situation and ask for help. R.R. at 87a. He also confirmed that since he began his employment with World A Cuts, he has never been alone with a minor at work. He explained that students are always present and that minor customers are usually accompanied by their parents. King concluded by stating that if his licenses are revoked, he could no longer work at World A Cuts, and it could take months for him to find gainful employment, which would render him in violation of his parole conditions.

On September 1, 2016, the Hearing Examiner issued a proposed adjudication and order. Certified Record (C.R.) Item 7. After concluding that the Board proved that King is subject to discipline under CHRIA, the Hearing Examiner determined that the "only question remaining is the sanction to be imposed." C.R. Item 7 at 12. She first noted that "[t]he Board has a duty to protect the health and safety of the public." Id. She further noted that "[u]nder professional licensing statutes, including the Barber License Law,⁶ [ ] the Board is charged with the responsibility and authority to oversee the profession and to regulate and license professionals to protect the public health and safety. For these reasons, the Board may impose disciplinary action." Id. (footnote omitted) (citation omitted).

The Hearing Examiner then determined that King had provided substantial mitigation...