vs. ) CASE NO. 88-1811
ROY D. REDMAN, )
Respondent. )
This matter came on for hearing in Jacksonville, Florida, before Robert T. Benton II, Hearing Officer of the Division of Administrative Hearings, on June 29, 1988. The Division of Administrative Hearings received the hearing transcript on July 14, 1988. On July 26, 1988, petitioner's proposed recommended order was filed. The attached appendix addresses proposed findings of fact by number.
Respondent Redman appeared pro se. Petitioner was represented by counsel: Tobi C. Pam, Esquire
By administrative complaint dated March 8, 1988, petitioner Department of Professional Regulation (DPR) alleges that respondent was "at all times material
... the owner of ... Don's Sportsman's Barber Shop"; that "[i]nspections on or about July 10, 1987 and December 23, 1987 ... revealed that the Respondent had not met the sanitation standards required by law ... in that excess hair ha[d] accumulated; equipment [wa]s dirty ... [and] unsanitary and bathroom [wa]s dirty"; all in violation of "Rule 21C-19.01, Florida Administrative Code ... [and] Section 476.194(1)(b), Florida Statutes (1985)."
Whether DPR should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
After graduation from the Florida Barber College the year before, respondent Roy Don Redman registered as an apprentice with the Florida Barbers' Sanitary Commission, effective January 12, 1967. Petitioner's Exhibit No. 2. Four days later he began work as a barber, id., and six months after that he started at Walt's Better Barber Shop in Jacksonville. Id.; (T. 67)
On January 9, 1969, Mr. Redman received his master barber's license, originally issued by a predecessor to the Barbers' Board and numbered 18729, his license has been regularly renewed and now bears the designation BB-0018729. Petitioner's Exhibit No. 2.
Some 16 years ago, Mr. Redman acquired Walt's Better Barber Shop from his erstwhile employer, Walter M. Kembro. It was then that he purchased and installed the carpet which covers almost the entire barber shop floor. Only a back room is uncarpeted. (T. 41) Renamed Don's Sportsman's Barber Shop, the barber shop has its own license, No. 85-0001690. Petitioner's Exhibit No. 1.
Jimmy S. Hicks and Glen Lowe work alongside respondent as barbers at Don's Sportsman's Barber Shop. Mr. Hicks started about ten years ago, and Mr. Lowe began approximately nine years ago. At each of the three stations in the barber shop, a rubber mat lies on the floor behind a barber's chair.
Each barber keeps combs, scissors, clippers and similar implements in the metal cabinet which sits on a counter or shelf at each station. When turned on, ultraviolet lights inside these cabinets have an antiseptic effect.
On July 10, 1987, Gail H. Hand, one of two DPR inspectors responsible for barber shops and beauty salons in Duval County, visited Don's Sportsman's Barber Shop. She found the ultraviolet light bulbs unlit. Although the barbers turn those lights on when they begin work, they all go off when the air conditioner kicks in or when three 1500 watt hair dryers are in use.
Around the edges of the mats, and where the carpeted floor meets the vertical face of the "back bar" or abuts the partitions which separate the stations, she found a compact accumulation of "old hair," a quarter to a half inch high and a quarter to a half inch wide, almost as if the joints had been caulked with hair.
Fresher hair, the remnants of several haircuts, lay on the floor near the barber's chairs. She saw little clumps and globs of hair inside the metal cabinets in the corners and underneath the trays on which the barbers kept their tools. In the barber shop bathroom, Ms. Hand smelt a "bad odor," and noted dirty fixtures.
In discussing Ms. Hand's findings, Mr. Redman commented that he had been doing things the same way for 20 years without ever before being accused of unsanitary practices. Not only do the barbers at Don's Sportsman's Barber Shop sweep and vacuum at the end of every work day, they clean up during the day, sometimes as many as five times, depending on breaks in the flow of customers. They do not sweep after each customer, however, if another is waiting, because they do not view this as a feasible business practice.
Frequently the hair they cut is dry, and dry hair is "real flyaway." (T. 51) It accumulates in the air conditioning filter. Mr. Hicks coughs it up sometimes. (T. 41) So it is not surprising that it accumulates at the edges of the carpet in the barbers' stations. Between sweepings, the barbers use hair dryers to blow hair off the barber's chairs and toward the "back bar." Because they stand on the mats as they work, the barbers grind hair on the mats' perimeters into the carpet, as they shift their weight and move about, cutting hair.
In December of 1987, when she returned for a re-inspection, Ms. Hand again found unlit ultraviolet light bulbs, and a dirty, malodorous bathroom. The extent and distribution of hair were essentially the same, except that hair had also been tracked into the bathroom.
Friday before the hearing, Ms. Hand inspected a third time, this time in the company of Russ Huling, a DPR investigator. Again the ultraviolet lights were off, and old, compacted hair was visible around the mats and along the station walls. The sink in the bathroom was not in working order, and Mr. Redman's dog had the run of the premises.
CONCLUSIONS OF LAW
The Barbers' Board has "the power to revoke or suspend [respondent's] license ... or to reprimand, censure ... or otherwise discipline," Section 476.214(1), Florida Statutes (1987), respondent, if the evidence demonstrates that he has committed "any of the offenses described in s. 476.194," Section 476.214(1), Florida Statutes (1987), which include "willful or repeated violations of this act or of any of the rules of the board." Section 476.194(1), Florida Statutes (1987).
The administrative complaint alleges that respondent violated Section 476.194(1)(b), Florida Statutes (1987), by violating Rule 21C-19.01, Florida Administrative Code, but this rule was repealed effective April 27, 1986. The "sanitation standards required by law" to which the administrative complaint refers are now found in Rule 21C-19.011, Florida Administrative Code, most recently amended effective May 10, 1988. An amendment effective December 28, 1986, resulted in the version of this rule that was in effect during the inspector's first two visits.
License revocation proceedings have been said to be "'penal' in nature." State ex rel. Vining vs. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973); Kozerowitz vs. Florida Real Estate Commission, 289 So.2d
391 (Flab 1974); Bach vs. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979)(reh. den. 1980). Strict procedural protections apply in disciplinary cases, and the prosecuting agency's burden is to prove its case clearly and convincingly. Ferris vs. Turlington, 510 So.2d 292 (Fla. 1987).
See Addington vs. Texas, 441 U.S. 426 (1979); Ferris vs. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986); Anheuser-Busch, Inc. vs. Department of Business Regulation,
393 So.2d 1177 (Fla. 1st DCA 1981); Walker vs. State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid vs. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2nd DCA 1966). A licensee's breach of duty justifies revocation only if the duty has a "substantial basis," Bowling vs. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981) in the evidence, unless applicable statutes and rules create a clear duty, which the evidence shows has been breached.
Among the strict procedural requirements that agencies seeking to discipline licensees must observe is the requirement to give adequate notice of the offenses alleged as a basis for the action. "[C]harges respecting revocation of a license must be 'particularly and specifically stated.'" Davis
v. Department of Professional Regulation, 457 So.2d 1074, 1076 (Fla. 1st DCA 1984)(quoting Bowling v. Department of Insurance, 394 So.2d 165, 171 (Fla. 1st DCA 1981). But "the failure ... to cite the accurate statutory reference ... [is not fatal where a licensee is] informed accurately of the conduct on which the charge was based." Maravel v. Department of Professional Regulation, Board of Medical Examiners, 498 So.2d 481 (Fla. 1st DCA 1986)(reh. den. 1987).
Particularly since, at the hearing in the present case (T. 17), petitioner's counsel referred by number to a subpart of the rule in effect between December 28, 1986, and May 10, 1988, it does not appear that respondent has been prejudiced. Cf. Nelson Richard Advertising v. Department of Transportation, 513 So.2d 181 (Fla. 1st DCA 1987).
In petitioner's proposed recommended order, four subsections of Rule 21C-19.011, Florida Administrative Code, as it existed before May 10, 1988, are invoked. They provide:
(2) Each barbershop shall take reasonable steps to insure that it is maintained and operated in a safe and sanitary manner. Such steps shall include but not be limited to the following:
* * *
(b) Provisions for safe and unobstructed human passage in the premises; removal of garbage and refuse; removal of excessive hair from floor; and safe storage or removal of flammable materials;
* * *
(e) Maintenance of all equipment used to perform barbering services on the premises in a safe and sanitary condition, including the regular application of cleaners and bacterial agents;
* * *
All equipment used in barbershops such as razors, scissors, tweezers, combs, rubber discs, or parts of vibrators used on patrons shall be free from hair, cleansed and:
Immersed in 1:1000 solution of Quaternary ammonium compound or equivalent for one to five minutes, or;
Placed in an ultra-violet ray sterilizing cabinet bactericidal 2536A radiation for a period of 15 minutes, or for a period as recommended by the manufacturers of such radiation lamp, sufficient to equal the germicidal and organism destruction of a 2 percent carbolic acid solution, or its equivalent, or;
Cleansed and prepared for use by any other method that shall be the equivalent in germicidal or organism, destructive effect, as provided in subsection (9)(a) above.
After complying with any of the above requirements, the razor, scissors, tweezers, combs, rubber discs or parts of vibrators should then be placed and kept in a clean, closed cabinet until next ready for use.
* * *
All bathroom and plumbing fixtures must be maintained in a clean and sanitary condition at all times and shall comply with provisions of Chapters 10D-9 and 10D-10, Florida Administrative Code (F.A.C.). A potable water system in compliance with Chapter 17-22, F.A.C., shall be provided.
Styling stations, styling bars, back bars, dresserettes, or working stations must be kept clean at all times to the sight and touch. All drawers and shelves of the above being used for the storage of rollers, brushes, combs, pins, nets, and equipment must have proper sanitation, and shall not be used for storage of nonrelated barbering equipment or supplies. One drawer or cabinet may be designated for storage of personal items.
Never pleaded and never adverted to even after the hearing was Rule 21C- 19.011(16), Florida Administrative Code, as it is now numbered, which proscribes "animals or pets ... inside a barbershop."
Since May 10, 1988, not even assiduous "use of an ultraviolet ray sanitizing cabinet, by itself, is ... sufficient." Rule 21C-19.011(11)(c), Florida Administrative Code. Except for this change, the substance of the rule, as it existed before May 10, 1988, has remained unchanged. Although an "administrative rule ... is presumed to operate prospectively in the absence of express language to the contrary," Jordan v. Department of Professional Regulation, 522 So.2d 450, 45 (Fla. 1st DCA 1988), the substantial restatement of an old ground in a new rule authorizes disciplinary action on the preexisting ground. See Department of Highway Safety and Motor Vehicles v. Morea, 491 So.2d 1210 (Fla. 1st DCA 1986); Drury v. Harding, 461 So.2d 104, 108 (Fla. 1984); and Solloway v. Department of Professional Regulation, 421 So.2d 573 (3rd DCA 1982) rev. den. 430 So.2d 452 (Fla. 1983), in which newly enacted statutes restated disciplinary grounds set out in earlier, repealed statutes.
The evidence clearly shows that respondent Redman and his colleagues repeatedly, although not willfully, failed to turn on ultraviolet lights designed to sanitize hair cutting tools. That respondent failed to employ any alternative or equivalent sanitization technique in his shop was not clearly and convincingly proven, however. But petitioner has clearly and convincingly proven that respondent "had not met the sanitation standards required by law ... in that excess hair ha[d] accumulated .. and [the] bathroom [wa]s dirty," on July 10, 1987, and again on December 23, 1987. Although only two lapses might be characterized as "repeated," the evidence here established an ongoing
problem, at least as regards the hair embedded in the 16-year-old carpet. At hearing, respondent conceded the time had come to remove the carpet.
That the Barbers' Board suspend respondent's license for ten (10) days, but stay the suspension for thirty (30) days, and thereafter, if respondent has removed all carpet in Don's Sportsman's Barber Shop within ten (10) feet of a barber's chair no later than thirty (30) days after the final order is entered.
DONE AND ENTERED this 19th day of August, 1988, in Tallahassee, Florida.
ROBERT T. BENTON, II
Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1811
Petitioner's proposed findings of fact Nos. 1 through 13 have been adopted, in substance, insofar as material.
Tobi C. Pam, Esquire Department of Professional
Roy D. Redman 1814 Dean Road
Lawrence A. Gonzalez, Secretary Department of Professional Regulation
Bruce D. Lamb General Counsel
