Pennsylvania State Board of Auctioneer Examiners has Sole Discretion To Grant Or Refuse License To An Applicant Following His Prior Conviction

The Commonwealth Court of Pennsylvania in Pook v. State Bd. of Auctioneer Exam'rs,735 A.2d 134 held that it is in the sole discretion of State Board of Auctioneer Examiners (“Board”) to grant or refuse to grant a license to an applicant who has been convicted of a felony. The court stated that scope of review in this matter is limited to determining whether Petitioner's constitutional rights were violated, whether the Board committed errors of law, and whether findings of fact are supported by substantial evidence. Id at 137.

In this case, Petitioner (“Petitioner”) applied for an apprentice auctioneer license. However, the Board denied the application based on its discretionary powers under section 28(a) of the Auctioneer and Auction Licensing Act (“Act”). The Board denied the application because the Petitioner’s previous license was revoked on account of his federal conviction under the Sherman Anti-Trust Act, 15 U.S.C.S. § 1, for bid-pooling.

The Petitioner argued that respondent erred by concluding that he did not provide satisfactory proof of his qualifications to be licensed an apprentice auctioneer, and violated his rights as guaranteed by the ‘Equal Protection Clause of the Fourteenth Amendment to the United States Constitution’. Id at 137. Petitioner also argued that, Board erred as matter of law by denying granting license on a conviction which occurred more than five years prior to the filing of application. Id.

Considering all the averments, court found that Petitioner failed to raise the equal protection claim in his appeal to the Board. As a result, the claim is deemed waived for purposes of appeal (Pa.R.A.P. 1551(a); Springfield Township v. Pennsylvania Public Utility Commission, 676 A.2d 304 (Pa. Cmwlth. 1996) and the claim is meritless. Pook 735 A.2d at 137. The court found that in order to state an equal protection claim for unequal or discriminatory enforcement the party claiming such discrimination must show that "persons similarly situated" have not been treated the same that the decisions were made on the basis of an unjustifiable standard such as race, religion, or other arbitrary classification or to prevent the party's exercise of a fundamental right. Id at 138. The court found that Petitioner failed to demonstrate in any way that the Board's actions in this case violated his equal protection rights as guaranteed by the Fourteenth Amendment to the United States Constitution. Id.

Section 28(a) of the Act states that after the revocation of any license, no new license may be issued to the same licensee within a period of at least one year from the date of the revocation nor, except in the sole discretion of the Board and subject to other conditions of this Act, at any time thereafter. Id at 138. Hence the court found that it was within the sole discretion of the Board as to whether or not a new apprentice auctioneer license should issue to the Petitioner. Id. The court found that, though bid-pooling is graded as a felony and relates closely to the practice of auctioneering, the Board appropriately exercised its discretion in denying Petitioner's application pursuant to the provisions of section 28(a) of the Act and of the CHRIA. Id at139-140. The court found that when the words of a statute are clear and unambiguous, the letter of the statute is not to be disregarded under the pretext of pursuing its spirit. Id at 140. Thus the court found that the provisions of sections20(a)(4) and 28 of the Act do not support Petitioner's claims and permits the Board to either temporarily suspend or permanently revoke a license where it determines that the licensee has committed one of the enumerated crimes in the 5 years preceding the issuance of the license. And also precludes the Board from issuing a license to a licensee who has had his license revoked within the preceding year, or who has been convicted of one of the enumerated crimes within the preceding 5 years. After these periods of time have passed, section 28 grants the Board the sole discretion to issue or to refuse to issue a license to a particular applicant. Id at 140-141.

The court found that Board did not rely upon sections 20(a) (4) or 26(a) of the Act in denying Petitioner's license Id at 141. The court found that the Board made reference to these sections merely to support the proposition that Petitioner's conviction for bid-pooling is a like offense to forgery, embezzlement, obtaining money under false pretenses, extortion, and conspiracy to defraud, and is particularly pertinent to the practice of auctioneering and in the adjudication, the Board properly made reference to the discretion and power conferred on it. Id. 

The court observed that, although eight years had passed since the revocation, the seriousness of Petitioner's prior conviction outweighed the character evidence he presented in support of his application. Id at 139. The court rejected Petitioner's argument that respondent erred by concluding that he did not provide satisfactory proof of his qualifications to be licensed an apprentice auctioneer. The court held that it was within the sole discretion of the Board as to whether a new apprentice license should be issued to Petitioner. Id at 138. Therefore, unless there is a proof of bad faith, fraud, capricious action, or abuse of Board's power, the court would not inquire into the wisdom of the Board’s actions. Id at 139 

Based on the above discussions, the Commonwealth court affirmed the Board’s order. Id at 141.