STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL REGULATION, ) BARBERS' BOARD, )

)

Petitioner, )

)

v. ) CASE NO. 89-1518

) ROY D. REDMAN, d/b/a DON'S SPORTSMAN ) BARBER SHOP, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on August 14, 1989, in Jacksonville, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Charles F. Tunnicliff

Chief Attorney

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Roy D. Redman, Pro Se

1814 Dean Road

Jacksonville, Florida 32216 STATEMENT OF THE ISSUES

The issue is whether the license to own a barbershop and the license to practice barbering held by the Respondent, Roy D. Redman, should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.

PRELIMINARY STATEMENT

The Petitioner, Department of Professional Regulation, Barbers' Board, (DPR), presented the testimony of Eileen K. Thomas, James R. Cooksey, and Gail

1. Hand. Petitioner's Exhibits 1 and 2 were admitted in evidence. Redman presented his own testimony and that of Jimmy Hicks and Glen Lowe. Respondent's Exhibit 1 was admitted in evidence.

   
   

   The transcript of the proceeding was filed on August 22, 1989. The parties were to have filed proposed findings of fact and conclusions of law within 10 days of the filing of the transcript. DPR filed its proposed findings of fact and conclusions of law on September 1, 1989. Redman failed to file a proposed

   order. All proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. Redman is licensed to own a barbershop in the state of Florida, holding license No. BS-0001690 for Don's Sportsman Barber Shop at 1814 Dean Road, Jacksonville, Florida.

      
      

   2. Redman is licensed to practice barbering in the state of Florida, holding license No. BB-0018729.

      
      

   3. On November 25, 1988, Eileen Thomas, an inspector for DPR, made a routine inspection of Don's Sportsman Barber Shop.

      
      

   4. During the inspection, Ms. Thomas found an excessive amount of hair on the shop's floor and baseboards, around the barbering stations and chairs, and in the shampoo bowls. An extremely large amount of hair was found accumulated in the ultraviolet sanitizing cabinets; also, at least one of these cabinets was not closed.

      
      

   5. Ms. Thomas found that a grey-white buildup covered the black shampoo bowls and their faucets and that the shampoo bowls had hair in them.

      
      

   6. Ms. Thomas found that dust and grime was accumulated on the baseboards and on the containers of shampoo and tonic.

      
      

   7. Further, the clean towels were stored in an open container under a chair in the shampoo area and a bird was being kept in a cage in an opened room adjacent to the shampoo area.

      
      

   8. DPR presented testimony regarding inspections performed on May 23 and July 19, 1989. The Administrative Complaint contains no allegations of fact regarding these subsequent inspections and Redman was not charged with any violation for these inspections. Hence testimony regarding these subsequent inspections is irrelevant and no findings of fact are or can be made from this testimony.

      
      

   9. Jimmy Hicks and Glen Lowe are barbers who work in Redman's shop. They acknowledged that they do not sweep up the hair on the floor after each customer.

      
      

   10. Lowe acknowledged that there is hair in at least one of the shop's Barbercyde containers.

       
       

   11. Hicks acknowledged that he may leave brushes lying out instead of being in a closed clean container.

       
       

   12. Redman stated that he had kept a bird in the back room of the shop until this inspection, at which time he removed the bird.

       
       

   13. Redman also acknowledged that the doors to the ultraviolet sanitizing cabinets are not always closed and that the sinks in his barbershop contains a tremendous amount of buildup from the minerals in the water.

   14. Redman recognized that clean towels were kept in an open box under the shampoo chair until after this inspection, at which time he moved them to a closed container.

       
       

   15. When Redman and the other barbers in his shop sweep hair up from the floor, they place it in a box in the back room of the barbershop.

       
       

   16. Redman has been previously disciplined by the Barbers' Board in Case No. 0092898 (DOAH Case No. 88-1811) for failure to meet the sanitary requirements for a barbershop. That Final Order incorporated the Recommended Order wherein it was noted that Redman had a dog on the premises and that a rule prohibited pets in a barbershop.

       
       

       CONCLUSIONS OF LAW

       
       

   17. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.

       
       

   18. The Administrative Complaint specifically charges Redman with violations of Rule 21C-19.01, Florida Administrative Code, and Section 476.194(1)(b), Florida Statutes, arising out of the inspection performed on November 25, 1988. It contains no allegations regarding any other inspection. There is no Rule 21C-19.01. It was repealed in 1986. Rule 21C-19.011 relates to barbershop requirements and it can only be assumed that the citation in the Administrative Complaint is a typographical error or an oversight.

       
       

   19. It is well recognized that agencies seeking to discipline licensees must 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). However, "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." Marvel v. Department of Professional Regulation, Board of Medical Examiners, 498 So.2d 481 (Fla. 1st DCA 1986) (reh. den. 1987). With this in mind, it is concluded that the failure to cite the correct rule provision is not fatal to this case, because Redman clearly knew and understood the violations alleged. However, the agency is precluded from relying on any inspections not specifically alleged in the Administrative Complaint because Redman was not informed accurately of the conduct on which the charge is based.

       
       

   20. Section 476.194(1)(b) provides that it is unlawful for any person to engage in "willful or repeated violations of this act or of any of the rules adopted by the board."

       
       

   21. Rule 21C-19.011 states in relevant part:

       
       

       (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 the following:

       * * *

       (b) Provisions for ... removal of excessive hair from floor ...

       * * *

       (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;

       * * *

       (5) All towels and linens used in the practice of barbering therein are to be kept in a closed container or compartment;

       * * *

       (11) All barbering tools used in barbershops ... shall be free from hair, cleansed and:

       * * *

       (d) After complying with ... the above requirements, the [barbering tools] shall then be placed and kept in a clean, closed cabinet or container until ready for use. Storage in an ultraviolet ray sanitizing cabinet is preferred.

       * * *

       1. All bathroom and plumbing fixtures must be maintained in a clean and sanitary condition at all times ...

          * * *

       2. Styling stations ... or working stations must be kept clean at all times to the sight and touch...

       3. No animals or pets shall be permitted inside a barbershop...

       
       

   22. DPR has the burden of proving the allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292, 294 (Fla. 1987). DPR has proven that Redman violated Rule 21C-19.011(2), (5), (11), (14), (15), and (16) based on the conditions found on November 25, 1988. These violations are willful. In light of the findings in the previous case (DOAH Case No. 88-1811), it must also be concluded that the violations are repeated. Hence, Section 476.194 has also been violated.

       
       

   23. Because Redman has had similar problems in the past, his failure to maintain his barbershop in a sanitary condition which comports with the rule requirements is deemed to be an aggravating factor.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Barbers' Board,

enter a Final Order and therein

1. Find Roy D. Redman guilty of the violations alleged in the Administrative Complaint; and

   
   

2. Assess an administrative fine of $500.00 against Roy D. Redman.

DONE and ENTERED this 21st day of September, 1989, in Tallahassee, Florida.

DIANE K. KIESLING

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 21st day of September, 1989.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1518

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation

1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-7(1-7); 16- 20(9-13); 21(13); 24(14); and 25(15).

2. Proposed findings of fact 8-15, 22, and 23 are rejected as being irrelevant to any charges contained in the Administrative Complaint.

3. Proposed finding of fact 26 is unnecessary.

COPIES FURNISHED:

Charles F. Tunnicliff Chief Attorney

Department of Professional Regulation 1940 North Monroe Street

Suite 60

Tallahassee, FL 32399-0792

Roy D. Redman 1814 Dean Road

Jacksonville, FL 32216

Kenneth E. Easley General Counsel

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Myrtle Aase Executive Director Barbers' Board

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Docket for Case No: 89-001518

Orders for Case No: 89-001518