STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BARBERS BOARD, )

)

Petitioner, )

)

) CASE NO. 84-2399

)

DENVER OWENS, d/b/a OWENS )

BARBER SHOP, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on October 18, 1984, at Apopka, Florida.

APPEARANCES

For Petitioner: Theodore R. Gay, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Denver Owens, pro se

2435 Palm Hurst Boulevard Apopka, Florida 32703

By Administrative Complaint filed June 11, 1984, the Department of Professional Regulation, Petitioner, seeks to revoke, suspend, or otherwise discipline the license of Denver Owens as a barber. As grounds therefor it is alleged that on or about April 26, 1984, Respondent did not have a license for his barbershop located at 437 McCormick, Apopka, Florida.

At the commencement of the hearing Respondent acknowledged that he has a current license as a barber which he has had continuously for some 26 years and that, on April 26, 1984, his one-man barbershop was not registered with the Barbers' Board. Thereafter, Petitioner called one witness, Respondent testified in his own behalf, and one exhibit was admitted into evidence. There is no dispute regarding the operative facts. Proposed findings submitted by Petitioner, to the extent incorporated herein, are adopted; otherwise, they are rejected as not supported by the evidence, immaterial, or unnecessary to the conclusions reached.

FINDINGS OF FACT

1. At all times relevant hereto, Denver Owens was licensed as a barber in this state and has been so licensed for 26 years.

2. Although Owens has worked in barbershops for most of the last 26 years, he never owned a shop until he opened this barbershop in Apopka some two years ago. At the time he opened the shop he obtained an occupational license which, with his current barber's license, he thought was all he needed to operate a one-man shop.

   
   

3. On April 26, 1984, an inspector with the Department of Professional Regulation saw the barber's sign on the site not on her records and entered the shop to inspect. The only discrepancy which is material to the issues here is that no registration had been issued for the barbershop. When questioned by the inspector, Owens readily acknowledged that he had not applied for registration for a shop because he was unaware such registration was required. The following day Owens submitted an application to register his shop and obtained registration dated May 4, 1984.

   
   

4. When told the Department proposed to assess a fine of $250 against him for operating without a shop license, Owens requested a hearing, the file was forwarded to the Division of Administrative Hearings, and this hearing ensued.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

6. Chapter 476, Florida Statutes, regulates the trade of barbering. The purpose of these regulations is stated in Section 476.024 as follows:

   
   

   The Legislature recognizes that barbering is potentially dangerous to the public in that barbers work in close proximity to patrons thus risking transmission of disease and vermin, apply various caustic chemical agents to the hair and scalp of patrons, and employ

   instruments, which could harm patrons if improperly used. Therefore,

   it is deemed necessary in the interest of public health, safety, and welfare to regulate the practice of barbering in this state. However, restrictions should be imposed

   only to the extent necessary to

   protect the public from these recognized dangers and in a manner which will

   not unreasonably affect the competitive market.

   
   

7. Section 476.184 provides generally that each person who opens a barbershop in this state shall apply to the Barbers Board for registration of the shop, and, upon receipt of the completed form and the fee, the Department shall issue a certificate of registration for a period of two years.

8. Section 476.194 lists prohibited acts and Respondent is charged with violating Subsection (2) thereof, which provides:

   
   

   Engage in willful or repeated violations of this act or of any of the rules adopted by the board.

   
   

9. Section 476.204 provides a civil penalty not to exceed $500 may be assessed for violating any of the provisions of s. 476.194.

   
   

10. From the evidence presented it can hardly be said that Respondent's failure to obtain a registration for his shop was willful. Under canons of statutory construction and the rule of ejusdum generis, it cannot be said the failure to apply for and obtain registration was repeated. Applying the rule of ejusdum generis, "willful" or "repeated" violations certainly imply there must be more than lack of knowledge of the requirement to constitute a violation.

    
    

11. License revocation proceedings are penal in nature. State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1983). Accordingly, statutes authorizing such punishment shall be strictly construed. Applying these principles to an interpretation of Section 476.194(2) leads to the conclusion that a willful or repeated violation is one intended by the perpetrator or a violation other than the first brought to the attention of the perpetrator.

    
    

12. Furthermore, the purpose of regulating the practice of barbering is to protect the public health, safety, and welfare of the residents of this state. The purpose of punishing licensees is to secure compliance of the licensing statutes. Unless punishment serves that purpose, it should not be applied. Respondent immediately applied for, registration when he was made aware of this requirement. While it is a legal maxim that everyone is presumed to know the law and are held responsible for violations thereof, this maxim is not applicable where proof of an intent to violate the law is required. Because the violation alleged requires a willful or repeated failure to register the barbershop to constitute an offense, the Respondent must be found not guilty of this offense. Mere failure to register while unaware of the requirement does not constitute a repeated failure to register.

    
    

13. Inasmuch as there were no issues of material fact, this case should never have been referred to the Division of Administrative Hearings for formal proceedings. Section 120.57(2), Florida Statutes. Respondent requested a hearing and has a right to a hearing before final agency action is taken. This hearing, where no facts are in dispute, is a Section 120.57(2) hearing which can be held by the Board or by one designated by the Board to conduct the hearing and submit a Recommended Order to the Board.

    
    

14. From the foregoing it is concluded that Petitioner failed to prove by clear and convincing evidence that Respondent willfully or repeatedly violated Section 476.194(2), Florida Statutes, as alleged; and, even if a violation of the require ment that all barbershops be registered was proved, the proposed "settlement" of $250 is excessive for this violation under the circumstances here involved. A more appropriate penalty would be $50, which is twice the registration fee that Respondent would have paid had he applied for registration before opening his barbershop. It is

RECOMMENDED that Respondent be issued a letter of admonition for failure to obtain a registration for his barbershop before he opened the shop for business.

ENTERED this 8th day of November, 1984, at Tallahassee, Florida.

K N. AYERS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1984.

COPIES FURNISHED:

Theodore R. Gay, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Denver Owens

2435 Palm Hurst Boulevard Apopka, Florida 32703

Fred M. Roche, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Myrtle Aase, Executive Director Barbers Board

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 84-002399

Orders for Case No: 84-002399