STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

v. ) CASE NO. 88-4180

)

RAYMOND F. CAY )

d/b/a CAY'S HAIRSTYLIST, )

)

Respondent, )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a public hearing in the above- styled case on January 17, 1989, in Jacksonville, Florida. The issue for determination is whether Respondent's license to practice barbering or license to operate a barbershop in the state of Florida should be revoked, suspended or otherwise disciplined under the facts and circumstances of this case.

APPEARANCES

For Petitioner: E. Rene Alsobrook, Esquire

Department of Profession Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: P. W. Cay

Qualified Representative 1349 Cassat Avenue

Jacksonville, Florida 32205 BACKGROUND

On August 29, 1988, the Petitioner filed a two count Administrative Complaint with the Division of Administrative Hearings dated May 18, 1988, charging Respondent with: (a) employing a barber without a license to practice barbering in the state of Florida in violation of Sections 476.214(1)(c) and 476.194, Florida Statutes, and; (b) failing to meet certain sanitation requirements in violation of Section 476.194, Florida Statutes, and Rule 21C- 19.01, Florida Administrative Code. By order, dated November 7, 1988, amending the Administrative Complaint, Count One was dismissed. On December 9, 1988, the day of the hearing, the Petitioner's Motion To Amend Amended Administrative Complaint was granted wherein Petitioner added the numbers of Respondent's licenses to practice barbering and to operate a barbershop in the state of Florida to the Second Amended Administrative Complaint. By this Second Amended Administrative Complaint, Petitioner seeks to revoke, suspend of otherwise discipline Respondent's license to practice barbering and to operate a

barbershop in the state of Florida. As grounds therefor, Petitioner alleges that Respondent has not met certain sanitation standards required by law in violation of Rule 21C-19.01, Florida Administrative Code and Section 476.194(1)(b), Florida Statutes.

In support of its charges, Petitioner presented the testimony of Gail Hand and Eileen Thomas. Petitioner's exhibits 1, 2, 3, 4, and 5 were received in evidence. Respondent testified on his own behalf and presented the testimony of Bonnie Jarrett and Jennifer Kirkland. Respondent offered no documentary evidence.

Petitioner submitted posthearing Proposed Findings of Fact and Conclusions of Law. A ruling on each of Petitioner's proposed findings of fact has been made as reflected in the Appendix to this Recommended Order. Although Respondent did not expressly waive the filing of posthearing Proposed Findings of Fact and Conclusions of Law, he has not filed any.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. At all times material to this proceeding, Respondent, Raymond F. Cay was licensed as a barber in the state of Florida and licensed to operate a barbershop in the state of Florida, holding license numbers BB00014055 and B50007436, respectively.

   
   

2. At all times material to this proceeding, Respondent was owner of the barbershop, Cay's Hairstylist (Cay's), located at 1349 Cassat Avenue, Jacksonville, Florida 32205.

   
   

3. On April 14, 1987, Petitioner conducted a routine annual inspection of Cay's as required by rule and noted certain deficiencies which if proven could have resulted in Respondent's licenses being revoked, suspended or otherwise disciplined. However, there was insufficient evidence to show that these allegations of deficiencies were ever proven in a formal proceeding or admitted to by Respondent in an informal proceeding under Chapter 120, Florida Statutes. In fact, there was insufficient evidence to show that any disposition had been made by the Petitioner on these alleged deficiencies.

   
   

4. On March 11, 1988, Petitioner again conducted a routine annual inspection of Cay's and again noted certain deficiencies which were the basis of the Second Amended Complaint.

   
   

5. There was insufficient evidence to show that there was excessive hair on floor or that the back of the bars, chairs or furniture were not maintained in a safe and sanitary manner or that the shop and equipment were dirty on March 11, 1988 when the inspector visited Cay's.

   
   

6. Although all of the barbering tools were not totally immersed in a disinfectant solution on March 11, 1988 when the inspector visited Cay's, there was insufficient evidence to show that that portion of the barbering tool (including brushes) which comes in contact with the patrons, was not sufficiently immersed in a proper disinfectant solution to allow proper sanitation.

7. Although there were no sanitary towels in the bathroom on March 11, 1988 when the inspector visited Cay's, there was insufficient evidence to show that the bathroom was dirty.

   
   

8. Sanitation rules were improperly displayed in Cay's on March 11, 1988 when the inspector visited.

   
   

9. The only license not displayed on March 11, 1988 when the inspector visited Cay's was Ms. Delp's, and she was currently on leave and not working even though she was in the shop shampooing her hair on that day.

   
   

10. On November 22, 1988, Petitioner conducted a re-inspection of Cay's and the inspector noted certain deficiencies which if proven could result in Respondent's licenses being revoked, suspended or otherwise disciplined. However, these alleged deficiencies were neither made a part of the Second Amended Administrative Complaint nor was there any evidence that these alleged deficiencies were ever proven or that they formed the basis for any disciplinary action taken by the Petitioner.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

12. The Second Administrative Complaint alleges that Respondent's failure to comply with certain sanitation standards set out in Rule 21C-19.011(2), Florida Administrative Code, is a violation of Section 476.194(1)(b), Florida Statutes, which provides as follows:

    
    

    1. It is unlawful for any person to

       * * *

       (b) Engage in willful or repeated violations of this act or of any of the rules adopted by the board.

       
       

13. Any person who violates any provision of Section 476.194(1)(b), Florida Statutes, is guilty of a misdemeanor of the second degree punishable as provided in Sections 775.082, 775.083 and 775.084, Florida Statutes, or subject to the penalties under Section 476.204(2), Florida Statutes, provided there is an allegation in the administrative complaint charging that person with such a violation under Section 476.204(1)(h), Florida Statutes. However, in the instant case, there is no allegation in the Second Administrative Complaint charging Respondent with a violation of Section 476.194(1)(b), Florida Statutes, under Section 476.204(1)(h), Florida Statutes. Therefore, Respondent is not subject to the penalties imposed under Section 476.204(2), Florida Statutes. Whether or not a person is guilty of a misdemeanor is not within the jurisdiction of this administrative forum.

    
    

14. However, assuming arguendo that Respondent may be subject to the penalties imposed under Section 476.204(2), Florida Statutes, notwithstanding the failure of Petitioner to allege a violation of Section 476.194(1)(b), Florida Statutes, under Section 476.204(1)(h), Florida Statutes, in the Second Amended Administrative Complaint, there has been no showing that Respondent "engaged in willful or repeated violations of" the provisions of Chapter 476, Florida Statutes, or any rule adopted by the Barber's Board (Board), and thereby in violation of Section 476.194(1)(b), Florida Statutes. Petitioner has failed

to sustain its burden in this regard. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (1 DCA Fla. 1977) and Ferris v.

Turlington, 510 So.2d 292 (Fla. 1987).

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore,

RECOMMENDED that the Board enter a Final Order DISMISSING the Second Amended Administrative Complaint filed herein.

RESPECTFULLY submitted and entered this 24th day of March, 1989, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 1989.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-4180

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statute, on all of the Proposed Findings of Fact submitted by Petitioner in this case. Respondent did not submit any Proposed Findings of Fact and Conclusions of Law.

Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. Treated as a conclusion of law rather than a finding of fact. 2.-3. Adopted in Finding of Fact 1.

4. Adopted in Finding of Fact 2.

5.-6. Subordinate to facts actually found in this Recommended Order.

7. Treated as a conclusion of law rather than a finding of fact.

8.-0. Subordinate to facts actually found in this Recommended Order.

1. Adopted in Finding of Fact 4.

2. Subordinate to facts actually found in this Recommended Order.

COPIES FURNISHED:

Myrtle Aase, Executive Director Barber's Board

130 North Monroe Street Tallahassee, Florida 32399-0750

Kenneth Easley, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

E. Renee Alsobrook, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

P. W. Cay, Qualified Representative 1349 Cassat Avenue

Jacksonville, Florida 32205

Raymond F. Cay 1349 Cassat Avenue

Jacksonville, Florida 32205

Docket for Case No: 88-004180

Orders for Case No: 88-004180