Judges: K. N. AYERS
Agency: Department of Business and Professional Regulation
Latest Update: Apr. 27, 1988
Summary: Respondent found duly licensed
88-0737.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
REGULATION, )
)
Petitioner, )
)
vs. ) CASE NO. 88-0737
)
ANTHONY CASTELLANO, ) d/b/a INTERNATIONAL INN BARBER ) SHOP, )
)
Respondent. )
)
RECOMMENDED ORDER
The Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above-styled cause on April 6, 1988, at Tampa, Florida.
APPEARANCES
For Petitioner: Errol H. Powell, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
For Respondent: J. Thomas Wright, Esquire
2508 West Tampa Bay Boulevard Tampa, Florida 3367
By Administrative Complaint filed February 1, 1988, the Department of Professional Regulation (DPR), Petitioner, seeks to revoke, suspend or otherwise discipline the license of Antonio Castellano, Respondent, as a licensed barber. As grounds therefor, it is alleged that Respondent is the owner of the International Inn Barber Shop, which he has operated without a valid license for some three months prior to November 18, 1987. At the hearing, Petitioner called three witnesses, including the Respondent, Respondent testified in his own behalf and called one witness previously called by Petitioner, and five exhibits were admitted into evidence.
Proposed findings have been submitted by Petitioner. Treatment accorded those proposed findings are contained in the Appendix attached hereto and made a part hereof.
FINDINGS OF FACT
Antonio Castellano has been a master barber for more than 30 years and has been continuously licensed as a barber in Florida since 1970 (Exhibit 1).
The International Inn Barber Shop is located on the ground floor of the International Inn at 3705 Henderson Boulevard, Tampa, Florida, which is owned by William A. Watson. There are three barber chairs in this shop, and all fixtures in the barber shop are owned by Watson. The barber shop has been licensed by Watson since 1982. The last license issued to Watson for this shop was issued December 4, 1986 to expire September 30, 1988 (Exhibit 3).
Since 1982, Watson has hired barbers to operate the shop on commission. However, this has not proved satisfactory, and Watson concluded to lease the shop and have the lessee responsible for the various licenses required.
In carrying out this plan, a LEASE (Exhibit 5) was entered into between Watson and Respondent on July 31, 1987, which provided Castellano would be totally responsible for the operation of this shop and would obtain the necessary city and state licenses required. The lease commenced August 1, 1987.
This barber shop was inspected on or about November 18, 1987, by Judy Denchfield, an inspector from the Department of Professional Regulation. When told by Respondent that he was the lessor, Denchfield, without looking at the lease and aware that the shop license issued to Watson was posted in the shop and had not expired, assumed Respondent was the owner of the shop for licensing purposes and cited Respondent for violating Sections 476.204(1)(b) and 476.194(1)(e)1, Florida Statutes. These proceedings duly followed.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Section 476.194(1)(e), Florida Statutes, provides it is unlawful for any person to own, operate, maintain, open, establish, conduct, or have charge of a barbershop which is not licensed under the provisions of this chapter.
Section 476.204(1)(b), Florida Statutes, makes it unlawful for any person to operate any barbershop unless it has been duly licensed as provided in this chapter.
Section 476.184, Florida Statutes, provides generally that no barbershop shall be permitted to operate without a license issued by the department which establishes inspection procedures to insure the proposed shop meets all health and safety requirements and provides for periodic inspection of all barbershops.
License revocation proceedings are penal in nature. State ex rel Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973). Accordingly, such statutes are strictly construed. Brown v. Watson, 156 So.
327 (Fla. 1934); Gardiner v. Fla. Dept. of Pollution Control, 300 So.2d 75 (Fla. 1st DCA 1974).
Further, in these proceedings the Petitioner has the burden of proving the allegations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
At the time the inspector visited the International Inn Barber Shop, the shop had a valid and current license. William Watson was the owner of the shop and all fixtures therein. Respondent had a lease which provided for rental payments contingent on the number of chairs utilized. The lease could be
terminated on fifteen days notice, but required the lessee to obtain all licenses required to meet existing laws.
Strictly construing Sections 476.184, 476.194 and 476.204 leads to the conclusion that the International Inn Barber Shop was duly licensed on November 18, 1987, and that Respondent was not in violation of any provision of Chapter 476, Florida Statutes. It is
RECOMMENDED that a Final Order be issued dismissing all charges against Antonio Castellano.
Entered this 27th day of April, 1988, in Tallahassee, Florida.
K. N. AYERS 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 27th day of April, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0737
Treatment Accorded Proposed Findings Submitted By Petitioner
Included in HO #1.
Included in HO #2.
Included in HO #2.
Included in HO #2.
Accepted.
Included in HO #3.
Included in HO #3.
Included in HO #4.
Accepted.
Included in HO #4.
Included in HO #4.
Included in HO #5.
First sentence rejected as a conclusion.
Accepted.
COPIES FURNISHED:
Errol H. Powell, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32399-0760
J. Thomas Wright, Esquire 2508 Tampa Bay Boulevard Suite A
Tampa, Florida 33607
Myrtle Aase Executive Director Barber's Board
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
William O'Neil General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Docket for Case No: 88-000737
Orders for Case No: 88-000737
