STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BARBER BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1795

)

WILLIE MITCHELL, JR., ) d/b/a MITCHELL'S BARBER SHOP, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case on June 21, 1988 in Tampa, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.

The Department of Professional Regulation (Petitioner) was represented by Ronald Jones, Esquire, and Willie Mitchell, Jr., (Respondent) represented himself.

The issue in this case is whether the Barber Board should take license disciplinary action against Respondent for his alleged operation and maintenance of a barber shop without a current valid shop license. At the hearing, Petitioner introduced two exhibits and Respondent introduced one exhibit. No transcript of the hearing was filed. The Appendix to this Recommended Order contains a ruling on each timely filed proposed finding of fact submitted by the parties.

FINDINGS OF FACT

1. Respondent was issued barber license number BB-0012083 on June 26, 1959, and has been continuously licensed as a barber since that time. No previous disciplinary action has been initiated or taken against Respondent's license.

   
   

2. Barber shop license number BS-0008388 was issued to Respondent on October 10, 1984, but expired on October 1, 1986. A late renewal was issued for Respondent's barber shop license on February 1, 1988, and he currently has a valid barber shop license.

   
   

3. Respondent does not dispute that he operated his barber shop at 1010 Grace Street, Tampa, Florida, between October 1, 1986 and February 1, 1988 while shop license BS-0008388 was expired. He was specifically observed by Petitioner's investigator to be operating said shop without a current valid license on January 23, 1988.

   
   

4. It is the position of Respondent that he sent the renewal fee for his license, but it was either lost in the mail or incorrectly applied to someone else's license. However, no proof was offered by Respondent to support his claim. He testified that he sent his renewal fee by October, 1986, but the check stub he introduced shows a date of June 11, 1987. Additionally, he

   offered no explanation of the discrepancy in his testimony that he never received any notice to renew from Petitioner prior to October, 1986, and his contention that he mailed the renewal fee in a timely manner.

   
   

5. Based upon a review of the evidence, including the witnesses' demeanor, it is found that Respondent failed to apply for renewal of his barber shop license and operated his barber shop without a current valid license from October, 1986 to February, 1988.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes. The Petitioner has the burden to prove, by clear and convincing evidence, the violation of Chapter 476, Florida Statutes, alleged in the Administrative Complaint issued against Respondent. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

7. Sections 476.194(1)(e)1. and 476.204(1)(b), Florida Statutes, make it unlawful for anyone to own, operate or maintain a barber shop which is not licensed, and the Barber Board is authorized by Section 476.214(1)(c) to take disciplinary action against any licensee who is in violation of this provision. Petitioner has clearly sustained its burden of proof in this case, and has established a violation of Sections 476.194(1)(e)1. and 476.204(1)(b), Florida Statutes.

   
   

8. The Barber Board has prescribed a $50 per month fine, with a $500 cap, for operating a barbershop without a license. Rule 21C-21.001(3), Florida Administrative Code. However, the danger to the public number of complaints against the licensee, the length of time a licensee has been licensed, and the effect of any penalty on his livelihood can be considered in mitigation. Rule 21C-21.002(6), (8), (9) and (12), Florida Administrative Code. This is the first complaint in almost thirty years against Respondent, there is no evidence of danger or injury to the public, and Respondent promptly renewed his license after Petitioner's investigator visited his shop on January 23, 1988. Therefore, the minimum fine of $50.00 is recommended.

RECOMMENDATION

Based upon the foregoing, it is recommended that Petitioner impose a $50.00 administrative fine against Respondent for operating a barber shop without a current valid license.

DONE AND ENTERED this 7th day of July, 1988, in Tallahassee, Florida.

DONALD D. CONN

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 7th day of July, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1795

Rulings on Petitioner's Proposed Findings of Fact:

1. Adopted in Finding of Fact 1.

2. Adopted in Finding of Fact 2.

3. Adopted in Finding of Fact 2.

4. Adopted in Finding of Fact 3.

5. Adopted in Finding of Fact 3.

COPIES FURNISHED:

Ronald Jones, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Willie Mitchell, Jr.

1010 Grace Street

Tampa, Florida 33607

Myrtle Aace, Executive Director Barbers 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: 88-001795

Orders for Case No: 88-001795