STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BARBER'S BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 84-4492

)

JOHN SKWIERC, d/b/a )

MR. S. HAIRCUTTERY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter came on to be heard in Miami, Florida on March 14, 1985 before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:

Petitioners: Theodore R. Gay, Esquire

130 North Monroe Street Tallahassee, Florida 32301

Respondent: John Skwierc, pro se Mr. S. Haircuttery

17846 South Dixie Highway Miami, Florida 33157

The Department of Professional Regulation, Petitioner, has filed an Administrative Complaint before the Barbers' Board charging that Mr. John Skwierc, doing business as Mr. S. Haircuttery, Respondent, employed an unlicensed person to practice barbering in violation of Section 476.194(3), F.S. At the hearing Petitioner introduced seven (7) exhibits and called as a witness Ms. Bettye C. Rogers, an inspector employed with the Department of Professional Regulation. The Respondent introduced two (2) exhibits and testified on his own behalf.

FINDINGS OF FACT

1. On May 5, 1953 Petitioner issued barbershop license number BS0007761 to Respondent for the operation of Mr. S. Haircuttery, a barbershop located at 17846 South Dixie Highway, Miami, Florida. Petitioner's letter to Respondent dated May 5, 1983 states, "All persons employed as barbers or barber assistants are required to have a current and valid license."

   
   

2. Respondent has maintained his license and operated Mr. S. Haircuttery, as owner, at all times material hereto.

   
   

3. On October 16, 1984 Bettye C. Rogers, an inspector employed by Petitioner, entered Mr. S. Haircuttery to inspect the premises. The barbershop was very clean and sanitary, and had all required equipment. Ms. Rogers

   observed a person, later identified as Marietta Thompson, cutting a customer's hair. Upon inquiry it was determined that Marietta Thompson was not licensed at the time by the Barbers' Board or the Board of Cosmetology.

   
   

4. Respondent admits that Marietta Thompson was not licensed at the time of the inspection. He points out, however, that her employment of four days was immediately terminated, and that she had been referred to him by a cosmetology school as a person who had passed her cosmetology exam and was just waiting to receive her license.

   
   

5. Respondent has been licensed as a barber in Florida for approximately twenty years and as a cosmetologist for approximately seven years. During that time he has owned and operated four licensed shops and employed approximately fifteen licensed employees at his shops. The evidence establishes that the incident involving Marietta Thompson is Petitioner's only violation of the applicable licensing laws during the time he has been licensed.

   
   

6. Marietta Thompson was employed by Respondent from October 13 to October 16, 1984.

   
   

7. In making the above findings of fact, proposed findings submitted by Petitioner pursuant to Section 120.57(1)(b)4, F.S., have been considered. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings have been rejected as subordinate, cumulative, immaterial or unnecessary.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to, and subject matter of, these proceedings. Section 120.57(1), F.S.

   
   

9. Section 476.194(3), F.S., states that it is unlawful for any person to "[h]ire or employ any person to engage in the practice of barbering unless such person holds a valid license as a barber or, registered barber assistant." Certain exemptions are provided, including one for persons practicing cosmetology. Section 476.044(4), F.S. The Barbers' Board is authorized to discipline licensees for offenses described in Section 476.194, pursuant to Section 476.214(1)(c), F.S.

   
   

10. The evidence clearly shows a violation of Section 476.194(3) in that Respondent did employ an unlicensed person, Marietta Thompson, for a period of four days during which time she performed barbering services, and the evidence presented does not indicate that any exemption from the licensure requirement applies. Therefore, Petitioner has proved a violation of Chapter 476.

    
    

11. However, the severity of the penalty to be imposed must be measured in view of the limited time during which the violation occurred and also the fact that this is Respondent's first violation in approximately twenty years of licensure.

RECOMMENDATION

Based upon the foregoing, it is recommended that petitioner issue a Final Order which imposes a reprimand against Respondent's barber shop license number BS0007761.

DONE and ENTERED this 2nd day of April, 1985 at Tallahassee, Florida.

DONALD D. CONN

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 2nd day of April, 1985

Docket for Case No: 84-004492

Orders for Case No: 84-004492