STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 85-3514

)

FELIX ROBAINA, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled case was held in Belle Glade, Florida, on June 11, 1986, before Mary Clark, Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:

APPEARANCES

For Petitioner: Jane Shaeffer, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Sid Garcia, Esquire

Florida Rural Legal Services, Inc.

572 Southwest Second Street Belle Glade, Florida 33430

ISSUE

The issue in the proceeding is whether Respondent, Felix Robaina, violated provisions of the "Barbers' Act", Chapter 476, Florida Statutes, by operating a barbershop without a current active barbershop license.

Background and Procedural Matters

This proceeding commenced with an Administrative Complaint by Petitioner on September 18, 1985, and by Respondent, Robaina's timely request for a formal hearing.

At the hearing Petitioner presented its evidence through the testimony of investigator, Jean Robinson, Felix Robaina and three exhibits. Respondent submitted one exhibit. All exhibits were admitted without objection. By stipulation of the parties, Vivian Lerma served as translator for Mr. Robaina. She was placed under oath for this purpose in accordance with Section 90.606, Florida Statutes.

The parties have submitted Proposed Recommended Orders with proposed findings of fact and conclusions of law. These have been considered and, where appropriate, have been incorporated into this Recommended Order. Specific rulings on each proposed finding of fact are found in the Appendix attached hereto.

FINDINGS OF FACT

1. Felix Robaina was born in Cuba and came to the United States in May, 1980. He cannot read, write or speak English and understands English very little.

   
   

2. He took the barber's exam in Spanish and has been continually licensed as a barber by the Florida Barber's Board since June, 1983.

   
   

3. On July 15, 1983, he opened his shop, Chosen Barber Shop, in Belle Glade, Florida. The shop had previously been owned by Antonio Garcia but was closed when Mr. Garcia died in 1982 or early 1983. Mr. Robaina has continually worked alone in the shop since he opened it and regular hours are 9 am to 7 pm, Tuesdays through Saturdays.

   
   

4. Jean Robinson, an investigator for the Department of Professional Regulation, noticed that the shop was reopened on a trip through the area and on June 1, 1985, she conducted an inspection. She found Mr. Robaina's barber license and occupational licenses were displayed on the wall. With a customer serving as interpreter, Jean Robinson asked Mr. Robaina for his shop license. de was confused and showed her the occupational license. Ms. Robinson explained the requirement of the law regarding a separate shop license and left an application for.

   
   

5. Respondent, Robaina, promptly applied for a shop license, and has held license number BS0008668-since July 1985.

   
   

6. Although part of the Barber exam course includes the legal requirement for licensing, Mr. Robaina said he did not know his shop required a separate license until Ms. Robinson visited and informed him. She confirmed that his confusion when she

   asked for the license was consistent with that ignorance. According to Ms. Robinson people commonly feel that the occupational license is all that is needed for a shop.

   
   

7. Between July 1983 and July 1985, Felix Robaina operated his barbershop without a shop license.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceedings. Section 120.57(1), Florida Statutes, Section 455.225(4) Florida Statutes and Section 476.244 Florida Statutes.

   
   

9. Felix Robaina is charged with violations of sections

   476.184 Florida Statutes (1983) and 476.194(2) Florida Statutes (1983), which provide in pertinent part:

   
   

   476.184 Barbershop registration; requirements: fees; license display. (1) Each person, whether as owner, manager, or agent, who opens a barbershop in this state, shall, prior to opening such barbershop, file with the department the name and address of the owner of the barbershop and the city or town and the street address at which it is located, together with the appropriate fee, on forms provided by the department. . . .

   * * *

   
   

   476.194 Prohibited acts. It is unlawful for any person to:

   
   

   * * *

   
   

   (2) Engage in willful or repeated violations of this act or of any of the rules adopted by the board. (emphasis added)

   
   

   * * *

   
   

10. The Barber's Board has the authority to discipline a license holder for the commission of any of the offenses described in section 476.194 F.S. Section 476.214(1)(c) Florida Statutes (1983).

    
    

11. Failure to obtain a barbershop license is a "violation of this act" prohibited in Section 476.194(2) Florida Statutes (1983) only if the violation is "willful or repeated.

    
    

12. Mr. Robaina's failure to get the shop license was not willful. He had a common misunderstanding of the requirements of the law and as soon as he learned of the requirement he obtained the license.

13. DPR argues that every day that the shop was operated without a license is a separate violation, therefore the two years without a license constitute repeated violations. No authority is cited for this proposition and the statute does not say this.

    
    

14. The statute at issue is a penal statute and must be strictly construed. No conduct is to be regarded as included in it that is not reasonably prescribed by it, and any ambiguities must be construed in favor of the licensee. Lester v Department of Professional Regulation, 348 So. 2nd 923, 925 (Fla. App. 1st DCA 1977)

    
    

15. When the legislature intends to create a continuing violation, it appears to do so directly by providing a separate penalty for each day. See, for example, Sections 403.086(2) and 403.161(3), Florida Statutes with regard to sewage disposal facilities and pollution permit violations.

    
    

16. Felix Robaina's offense was not repeated. It is therefore,

RECOMMENDED:

That a Final Order be entered finding Felix Robaina not guilty of the violation alleged and dismissing the Administrative Complaint.

MARY W. CLARK, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of August, 1986.

COPIES FURNISHED:

Jane Shaeffer, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Sid Garcia, Esquire

Florida Rural Legal Services, Inc.

572 Southwest Second Street Belle Glade, Florida 33430

APPENDIX

Specific rulings on proposed findings of fact submitted by Petitioner:

1. Adopted in substance in Paragraph 2.

   
   

2. and 3. Adopted in Paragraph 3.

1. Adopted in Paragraph 7.

   
   

2. Adopted in Paragraph 3.

   
   

3. Adopted in Paragraph 1.

   
   

4. Adopted in Paragraph 2.

   
   

5. Rejected as immaterial.

   
   

6. Adopted in Paragraph 6.

   
   

7. and 11. Rejected as immaterial.

Specific rulings on Proposed Findings of Fact Submitted

by Respondent:

1. Adopted in Paragraph 3.

   
   

2. Adopted in Paragraph 2.

   
   

3. Adopted in Paragraph 7.

   
   

4. Rejected as cumulative and immaterial.

   
   

5. and 6. Adopted in Paragraph 1.

1. Adopted in Paragraph 6.

   
   

2. Rejected as irrelevant.

   
   

3. Adopted in substance in Paragraph 6.

   
   

4. Adopted in Paragraph 5.

Docket for Case No: 85-003514

Orders for Case No: 85-003514