STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 86-0833

) ROBERT L. PEREZ, JR., MARIOE ) GUERRA, JR., VICTOR BOSCIGLIO, ) d/b/a TIFFANY'S HAIR DESIGNERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice this cause came on for final formal hearing before Ella Jane P. Davis, duly assigned hearing officer of the Division of Administrative Hearings on April 29, 1986, in Tampa, Florida.

APPEARANCES

For Petitioner: Jane H. Shaeffer Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Jesse V. Dominquez Esquire Robert L. 209 Brush Street

Perez Jr. Tampa, Florida

Victor Bosciglio &

Marioe Guerra Jr.: No appearance

By Administrative Complaint embracing a single count dated December 24, 1985 and filed with the Division of Administrative Hearings in March 1986, the Petitioner seeks to reprimand, restrict, fined suspend and/or revoke the barber licenses of Robert L. Perez, Jr., Marioe Guerra, Jr., and Victor Bosciglio, d/b/a Tiffany's Hair Designers for violation of Sections 476.184, 476.194(2), and 476.214(1)(c) Florida Statutes. At formal hearing, Mr. Jesse V. Dominguez, Esquire, appearing on behalf of Robert L. Perez, Jr., indicated he did not also represent Marioe Guerra, Jr. and Victor Bosciglio. Although notice of formal hearing had been served by a prior hearing officer upon Respondents Guerra and Bosciglio, there was no showing at the time of hearing that Respondents Marioe Guerra, Jr. and Victor Bosciglio had ever filed an Election of Rights requesting a formal administrative hearing pursuant to Section 120.57(1) Florida Statutes. Accordingly, the Respondents Guerra and Bosciglio were severed and Petitioner proceeded against Respondent Perez d/b/a Tiffany's Hair Designers.

By an after-filed exhibit, "Proof of Service and Election of Rights," Petitioner has established that service of the initial Administrative Complaint was made upon all three Respondents by certified mail and that only Respondent Robert L. Perez Jr. individually elected formal proceedings.

In support of the charges against Respondent Perez, Petitioner presented the oral testimony of Judith Denchfield and Respondent. Respondent also testified in his own behalf. No exhibits were offered or admitted in evidence at formal hearing. Transcript of formal hearing was provided by Petitioner and each party has filed proposed findings of fact and conclusions of law 1/

By oral stipulation upon the record, the parties have waived the filing of an Appendix to contain specific rulings as to each proposed finding of fact in strict compliance with Section 120.59(2). However, their respective proposals have been carefully considered in the formulation of this recommended order and are adopted whenever possible or otherwise modified to conform to the competent substantial evidence in the record as a whole. Where neither adopted nor modified, a proposed finding has been rejected as immaterial, subordinate, unnecessary, or contrary to the weight of the competent substantial evidence in the record as a whole.

FINDINGS OF FACT

1. Victor Bosciglio and Marioe Guerra are not and never have been parties Respondent before the Division of Administrative Hearings, since no election of a Section 120.57(1) hearing has ever been filed by either of them.

   
   

2. Respondent Robert L. Perez, Jr. is and at all times material has been the holder of a Florida barber license. At all times material hereto Perez was one of the owners of a barbershop called, "Tiffany's Hair Designers," hereafter, "Tiffany's."

   
   

3. Tiffany's was originally owned by Perez, Bosciglio, and Guerra. The three initially applied for and obtained a barbershop license for establishment of Tiffany's in a house located at 1205 Hillsborough Avenue in Tampa, Florida, in December, 1980. Although there is some suggestion in Ms. Denchfield's testimony that barbershop license applications are normally accompanied by a proposed floor plan, neither application nor the license itself for Tiffany's was offered in evidence and so no condition of non-expansion or evidence of any other condition for granting the initial barbershop license has been established.

   
   

4. The original Tiffany's Hair Designers was located in the house at that address and had ten ""stations" for shampoos, cuts, etc. Sometime in October 1984, the trio converted a loft area above what previously had been a freestanding building housing a downstairs garage and located at the same street address as the house. After the conversion, the loft accommodated 4 additional barber "stations." The house and garage are technically separate buildings which share a common street address, driveway, and parking area. They are on the same electric, water, and telephone bills and occupy a single parcel of land. The going through the original house building which continues to shelter the original 10 barber stations. The two buildings are operated as a single business entity, Tiffany's Hair Designers. At all times material, Tiffany's original barbershop license remained in full force and effect.

   
   

5. It is unclear whether a series of DPR inspectors regularly inspected the two portions of Tiffany's between October 1984 and October 1985. Petitioner

   wishes the inference to be made that there may have been a legitimate gap in inspection schedule so that no inspector was aware of the loft conversion until October 1985. Respondent desires the inference to be drawn that a series of inspections of both portions of Tiffany's during this time period turned out favorably and no inspector found any violation by way of the three owners' failure to notify the Barber's Board of the loft conversion and failure to apply for a new barbershop license during that year. There is no conclusive proof to establish either theory. Ms. Denchfield was not the local inspector during this period, and Mr. Perez was not regularly on the premises since he was working at another shop during most of this period but it seems entirely clear that inspectors for the state were allowed complete and total access to both buildings, the loft was certainly not hidden from view, and no sanitation violations were discovered in either building.

   
   

6. A routine inspection in October, 1985 resulted in the administrative complaint herein. Neither this inspection nor a subsequent one in March 1986 revealed any sanitary violations in either building.

   
   

7. The parties concur that the purpose of initial and subsequent inspections of licensed barbershops is to protect consumers by ensuring adequate sanitary conditions. Inspector Denchfield found in March 1986 that the loft has all the equipment necessary under statutes and rules she administers to qualify as a separate shop without reliance on the main building.

   
   

8. Perez knew that he was required to apply for a barbershop license to open a new shop or to relocate a shop "down the street," i.e. from one address to another, but he was initially under the belief that because the converted loft was located on the same parcel of land with the main building that a second barbershop license was not mandated.

   
   

9. The Administrative Complaint was served in January, 1986. Respondent Perez purchased the entire premises and business venture by buying out Bosciglio and Guerra in January 1986, and immediately applied for a new barbershop license which would cover both portions of Tiffany's. It is admitted that prior to this new application no one affirmatively notified the Barber's Board of a new building or obtained a separate license for the loft building.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of Robert L. Perez Jr. and the subject matter of this cause.

    
    

11. Victor Bosciglio and Marioe Guerra have waived formal hearing pursuant to Section 120.57(1) and are not now and never have been before the Division of Administrative Hearings.

    
    

12. It is Petitioner's contention that at the time Perez, Bosciglio, and Guerra opened up the four additional stations in the garage loft behind the original shop, they should have applied for a second license because the four new stations are in a free standing separate building and because that loft now has all the equipment required of a new freestanding shop.

    
    

13. The somewhat cryptic charging portion of the administrative complaint herein reads:

    
    

    "4. "Based on the foregoing allegations, the Respondents

    are guilty of violating Section 476.184, Florida Statutes, which prohibits the operation of a barbershop without a current active barbershop license. This in turn constitutes the violation of Section 476.194(2), Florida Statutes, and as such

    constitutes grounds for disciplinary action against the Respondents

    by the Barbers' Board pursuant to Section 476.214(1)(c) Florida Statutes, as the violation of Section 476.194 Florida Statutes."

    
    

    Petitioner asserts in its Amended Proposed Findings of Fact and Conclusions of Law that it filed the complaint using the numbering of the 1983 Statutes, when it is apparent from the operative date of October 1985 that the 1985 statutes should have been used. No objection or assertion of prejudice was interposed by Respondent Perez. In the 1985 statutes, the numbering remains the same except that former Section 476.194(2) is now codified as Section 476.194(1)(e)1. It is concluded that Respondent had adequate notice of the actual charges and has conducted his defense accordingly.

    
    

14. Therefore, the operative statutes applicable in this cause are as set out in 1985 as follows:

    
    

    476.214 Grounds for

    suspending, revoking, or refusing to grant license or certificate.

    1. The board shall have the power to revoke or suspend any license, registration card, or certificate of registration issued pursuant to this act, or to reprimand, censure, deny subsequent licensure of, or to reprimand, or otherwise discipline any holder of a license, registration card, or certificate of registration issued pursuant to this act,

       for any of the following causes:

       1. Gross malpractice or gross incompetency in the practice of barbering;

       2. Practice by a person knowingly having an infectious or contagious disease; or

       3. Commission of any of the offenses described in Section 476.194.

    2. The board shall adopt rules relating to suspension or revocation of licenses or certificate of registration

       under this section pursuant to the provisions of Chapter 120.

    3. The board shall keep a record of its disciplinary proceedings against holders of licenses or certificates of registration issued pursuant to this act.

    
    

    Section 476.194 Prohibited acts.-

    (1) It is unlawful for any person to:

    * * *

    1. Own, operate, maintain, open, establish, conduct, or have charge of, either alone or with another person or persons, a barbershop:

       1. Which is not licensed under the provisions of this chapter; . . .

    
    

    478.184 Barbershop licensure; requirements; fee; inspection; license display.

    1. No barbershop shall be permitted to operate without a license issued by the department.

    2. The board shall adopt rules governing the licensure and operation of a barbershop and its facilities, personnel, safety and sanitary requirements, and the license

       application and granting process.

    3. Any person, firm, or corporation desiring to operate a barbershop in the state shall submit to the department an application upon forms provided by the department and accompanied by any relevant information requested by the department and by an application fee.

    4. Upon receiving the application, the department may cause an investigation to

       be made of the proposed barbershop.

    5. When an applicant fails to meet all the requirements provided in this section, the department shall deny the application in writing and shall list the specific requirements not met. No

       applicant denied licensure because of failure to meet the requirements of this section shall be precluded from reapplying for licensure.

    6. When the department determines that the proposed barbershop meets the requirements set forth in this section, the department shall grant the license upon such conditions as it deems proper and upon payment of the original licensing fee.

    7. No license for operation of a barbershop may be transferred from the name of the original licensee to another. It may be transferred

       from one location to another only upon approval by the department, which approval shall not be unreasonably withheld.

    8. Renewal of license registration for barbershops shall be accomplished pursuant to rules adopted by the board. The board is further authorized to adopt rules governing delinquent renewal of licenses and may impose

       penalty fees for delinquent renewal.

    9. The board is authorized to adopt rules governing the periodic inspection of barbershops licensed under this chapter.

    10. Each barbershop shall display, in a conspicuous place, the barbershop license and each individual licensee's

    certificate. (Emphasis supplied)

    
    

15. No conditions on the original barbershop license pursuant to subsection (6) were established. The phrase "transferred from one location to another" in subsection (7) is more suggestive of prohibiting a barbershop licensee from abandoning one address for another than it is suggestive of an intent to prohibit a mere expansion of business at the same address. Regardless of the meaning of this phrase, Board approval of such a transfer of location is not to be unreasonably withheld.

    
    

16. Petitioner argues that Rules 21C-15 through 21C-27 F.A.C. should be applied to interpret these statutes. No violation of any of these rules is charged in the administrative complaint and the undersigned has not been asked to take official recognition of them. Of these rules cited in Petitioner's proposals, the only two rules which might have some relevance to these proceedings are Rule 21C-19.01 and 19.02, which provide as follows:

    21C-19.01 Barbershop Registration.

    1. Prior to opening a barbershop the owner must:

       1. Submit an application on forms provided by the Department of Professional Regulation;

       2. Pay the required fee as outlined in Rule 21C-20.03.

    2. Upon completion of the above requirements, a two year license will be issued in even numbered-years, and a one year license in odd-numbered years.

    3. A current barbershop registration certificate shall be displayed for public viewing in a conspicuous place at all times.

    4. Current licenses for all barbers, cosmetologists, or barber assistants employed in the shop shall be displayed

       for public viewing in a conspicuous place at all times.

       
       

       21C-19.02 Transfer of Location or Ownership of Barbershop.

       1. Prior to opening a shop which has transferred ownership the shop must:

          1. File a new application on forms prescribed by the Department of Professional Regulation;

          2. Pay the appropriate fee as outlined in Rule 21C-20.04;

          3. Surrender the old license with applications;

          4. Be issued a new barbershop license as outlined in Rule 21C-19.01;

       2. Transfer of location or change of address other than transfer of ownership shall be filed with the Department of Professional Regulation on the proper forms within ten (10) days;

          1. A new application and fee will be required for this change;

          2. License shall accompany change request for correction. (Emphasis supplied)

17. If anything, these rules suggest that the word transfer, as used in the statute, has previously been interpreted by the agency administering that statute, that is, the Barber's Board, as meaning that the same owner or owners (barbershop licensee or licensees) may not abandon one location previously occupied by a barbershop and set up their shop in a different location, or that

    they may not change their shop's location from one address to another without filing either notification or a new application with the Board. If the Board desired to require a new license application whenever a licensee expands at a single location, it could have clearly said so in these rules in effect from 1984 until April 27, 1986. However, it should be noted that these particular rules were repealed April 27, 1986, two days prior to formal hearing herein.

    
    

18. 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 with the licensing statutes. Unless punishment serves that purpose it should not be applied. While it is a legal maxim that everyone is presumed to know the law and is held responsible for violations thereof, Perez' interpretation was certainly reasonable at the time of the conversion of the loft and immediately thereafter. He immediately applied for a new license when ownership changed hands and when the administrative complaint made him aware that the Board now viewed two buildings at the same address as two locations or two shops.

    
    

19. Having considered all of the foregoing, it remains that penal statutes must be narrowly construed with every benefit of the doubt being assigned to the Respondent. See Vining v. Florida Real Estate Commission 281 So.2d 486 (Fla. 1983) and its progeny.

    
    

20. Here, Respondent Perez complied with the clear reading of the statute by reapplying for a barbershop license when ownership transferred. His initial understanding concerning new applications being needed for a relocation to a new address was not out of line with the rules then in effect. The consumers have been protected by consistently favorable sanitary inspection results at all points in the process. Petitioner has not sustained its burden of proof to establish by clear and convincing evidence a violation of any of the statutes by which it has charged Respondent Perez and therefore its request for a $500 fine need not be addressed.

RECOMMENDATION

That the Barber's Board enter a final order dismissing the Administrative Complaint as against Robert L. Perez Jr., and if it has not already done so, dispose of the charges against Marioe Guerra, Jr. and Victor Bosciglio in accord with Section 120.57(2), Florida Statutes.

DONE and ORDERED this 18th day of July, 1986, in Tallahassee Florida 32301.

ELLA JANE P. DAVIS

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 18th day of July, 1986.

ENDNOTE

1/ Petitioner, without leave of the undersigned and without reciting acquiescence therein by Respondent, late-filed Amended Proposed Findings of Fact and Conclusions of Law. There being no timely response in opposition to this procedure, the amendments have likewise been considered.

COPIES FURNISHED:

Jesse V. Dominquez, Esquire

209 Brush Street Tampa, Florida

Jane H. Shaeffer, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee Florida 32301

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, General Counsel Department of Professional

Regulation

130 North Monroe Street Tallahassee Florida 32301

Myrtle Aase, Executive Director Barber's Board

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 86-000833

Orders for Case No: 86-000833