Judges: JAMES E. BRADWELL
Agency: Department of Business and Professional Regulation
Latest Update: Dec. 09, 1986
Summary: Barber shop owner found not guilty of failing to allow agency to inspect premises.
86-3719.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BARBERS' BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 86-3719
) JAMES FRANKLIN, d/b/a ATLANTIC ) BARBERSHOP, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on October 14, 1986, in Fort Lauderdale, Florida.
APPEARANCES
For Petitioner: Lisa A. Bassett, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: No Appearance
BACKGROUND
By Administrative complaint filed on August 19, 1986, petitioner, Department of Professional Regulation, Barbers' Board, has charged that respondent, James Franklin, d/b/a Atlantic Barber Shop, licensed by petitioner as a barber and barbershop, had violated Rule 21C-19.015, Florida Administrative Code, and Subsection 476.184(9), Florida Statutes (1985). Generally, petitioner has alleged that on March 12 and 18, 1986, petitioner attempted to inspect respondent's barbershop in Delray Beach, Florida, but found it closed.
According to the complaint, this constituted a violation of the foregoing rule and statute.
Respondent disputed the allegations and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes (1985). The matter was referred to the Division of Administrative Hearings by petitioner on September 24, 1986, with a request that a Hearing Officer be assigned to conduct a final hearing. By notice of hearing dated October 1, 1986, the final hearing was scheduled for October 14, 1986, in Fort Lauderdale, Florida.
At final hearing, petitioner presented the testimony of Jo H. Oben and Leonard Baldwin, both agency inspectors, and offered petitioner's exhibits 1-3. All were received into evidence. There was no appearance by respondent.
The transcript of hearing was filed on October 23, 1986. Proposed findings of fact and conclusions of law were filed by petitioner on November 3, 1986. A ruling on each proposed finding of fact has been made in the Appendix attached to this order.
At issue herein is whether respondent's barber and barbershop licenses should be disciplined for the alleged violations set forth in the administrative complaint.
Based upon all of the evidence, the following facts are determined:
FINDINGS OF FACT
At all times relevant hereto, respondent, James Franklin, operated the Atlantic Barber Shop at 641 West Atlantic Avenue, Delray Beach, Florida. Franklin has been issued barber license number BB 0017130 by petitioner, Department of Professional Regulation, Florida Barbers' Board. The Atlantic Barber shop is the holder of barbershop license number BB 0005644 also issued by petitioner. Both licenses were renewed by respondent and are valid through September 30, 1988.
Petitioner is required to conduct inspections of barbershops to ensure that such barbershops are in compliance with state law and agency rules. According to Rule 21C-19.015, Florida Administrative Code, an inspection shall be conducted annually on a random unannounced basis. In order to perform an inspection, access to the premises of a licensee is obviously necessary.
Respondent's barbershop was last inspected by petitioner on May 24, 1984. Accordingly, an agency inspector (J. Oben) visited respondent's shop on March 11, 1986, for the purpose of conducting a routine annual inspection. Oben made two trips to the shop that day but found it closed each time. She left a business card at the door, and also told the proprietor of a shoe shop next door to have Franklin contact her.
Oben returned to respondent's shop on March 12 and 18, 1986, but found the shop closed. Again she left her business card with instructions for Franklin to contact her.
After Franklin failed to contact Oben, Oben sent to Franklin, by certified mail, letters on March 21, April 28 and May 12, 1986. Franklin signed for two letters but would not claim the final letter. The letters pointed out Oben's futile efforts to inspect the barbershop, and asked that Franklin promptly contact her. Franklin never responded. The issuance of an administrative complaint followed.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1985).
Subsection 476.184(9), Florida Statutes (1985), empowers the Barbers' Board to do the following:
(9) The board is authorized to adopt rules governing the periodic inspection of barbershops licensed under this chapter.
Pursuant to the foregoing statute, petitioner has promulgated Rule 21C-19.015, Florida Administrative Code, which provides as follows:
Inspections conducted by the Department of Professional Regulation of barbershops to determine whether such barbershops are in compliance with the applicable provisions of Chapter 476, F.S., and the rules promulgated thereunder shall be conducted annually on a random unannounced basis, unless otherwise practicable.
Other relevant statutory provisions cited in the administrative complaint are Subsections 476.194(1)(b), 476.204(1)(h) and (i), and 476.214(1)(c), Florida Statutes (1985). These statutes make it unlawful to (a) engage in willful violations of a rule or statute (Section 476.194(1)(b), F.S.), (b) violate any provision of Sections 476.194, 476.214 or 455.227(1)(Section 476.204(1)(h), F.S.), (c) violate or refuse to comply with any provision of Chapter 476 or agency rule (Section 476.204(1)(i), F.S.), and (d) commit any offense in Section 476.194 (Section 476.214(1)(c), F.S.).
The agency contends that by refusing to allow access to his premises, Franklin has repeatedly and willfully violated Rule 21C-19.015, F.A.C. But that rule merely requires that the agency conduct an inspection of each barbershop at least once a year unless otherwise practicable. It contains no provision that makes it unlawful for a licensee to refuse access to his premises for that purpose. If petitioner wishes to proscribe such conduct, it can easily amend its rule to do so. However, until the conduct in question is prohibited by rule or statute, Franklin may not be charged with repeatedly and willfully violating an agency rule. Since the statutory violations are dependent upon Rule 21C-
having been violated, all other charges must also fail. Therefore, the administrative complaint should be dismissed.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the administrative complaint herein be DISMISSED with
prejudice.
DONE AND ENTERED this 9th day of December, 1986, at Tallahassee, Florida.
DONALD R. ALEXANDER
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1986.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3719
Petitioner:
Covered in finding of fact 1.
Covered in finding of fact 1.
Covered in finding of fact 1.
Covered in finding of fact 2.
Covered in finding of fact 2.
Covered in finding of fact 2.
Covered in findings of fact 3 & 4.
Covered in findings of fact 3 & 4.
Covered in findings of fact 3 & 4.
Covered in findings of fact 3 & 4.
Covered in findings of fact 3 & 4.
Covered in finding of fact 5.
Covered in finding of fact 5.
Covered in finding of fact 5.
Covered in finding of fact 5.
Covered in finding of fact 3.
Covered in finding of fact 3.
Rejected as being unnecessary.
Rejected as being unnecessary.
Rejected as being unnecessary.
Covered in finding of fact 1.
Covered in finding of fact 1.
COPIES FURNISHED:
Lisa M. Bassett, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Mr. James Franklin Atlantic Barbershop
641 West Atlantic Avenue Delray Beach, Florida 33444
Myrtle Aase, Executive Director Florida Barbers' Board
130 North Monroe Street Tallahassee, Florida 32301
Mr. Fred Roche, Secretary Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Wings Slocum Benton, General Counsel Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Docket for Case No: 86-003719
Orders for Case No: 86-003719
| Issue Date |
Document |
Summary |
|
Mar. 12, 1987 |
Agency Final Order
|
|
|
Dec. 09, 1986 |
Recommended Order
|
Barber shop owner found not guilty of failing to allow agency to inspect premises.
|
