STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 92-3025

)

OCIE PHILLIPS, SR., d/b/a ) PHILLIPS AND SONS BARBER SHOP, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Boca Raton, Florida on July 23, 1992 before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Christopher L. Hinson, CLA

E. Renee Alsobrook, Esquire Department of Professional

Regulation

1940 North Monroe Street Tallahassee, FL 32312

For the Respondent: Ocie Phillips, Sr., pro se

739 Hammondville Rd. Pompano Beach, FL 33060

STATEMENT OF THE ISSUES

The issue for consideration in this matter is whether Respondent's license as a barber in Florida should be disciplined because of the matters set out in the Administrative Complaint filed herein.

PRELIMINARY MATTERS

By three Count Administrative Complaint filed in this case on February 26, 1992, Petitioner, Department of Professional Regulation, on behalf of the Barber's Board, seeks to discipline Respondent's license as a barber in this state because, it is alleged, an inspection conducted on October 14, 1991 indicated several incidents of Respondent's failure to comply with the sanitation standards required by law in this state, (Section 476.204(1)(i), Florida Statutes); Respondent engaged in repeated violations of that chapter of the statute, (Section 476.204(1)(h), Florida Statutes); and Respondent violated a Final Order of the Barber's Board, (Section 476.204(1)(i), Florida Statutes). Respondent denied the allegations and requested formal hearing, and on May 15, 1992, the matter was forwarded to the Division of Administrative Hearings for

appointment of a Hearing Officer. Thereafter, by Notice of Hearing dated June 5, 1992, entered after receipt of the parties' response to the Initial Order entered herein, the undersigned set the matter for hearing in Boca Raton on June 23, 1992 at which time it was heard as scheduled.

At the hearing, Petitioner introduced the testimony of Leonard Baldwin, an investigator for the Department of Professional Regulation, and Ocie Phillips, Sr., the Respondent. Petitioner also introduced Petitioner's Exhibits 1 through

8. Respondent testified in his own behalf and introduced the testimony of his sons, Ocie Phillips, Jr. and Kenneth Phillips. Respondent also introduced Respondent's Exhibit A. The Hearing Officer called Louis Morganstern, an investigator for the Department, who was made available to both parties for questioning.

Prior to the introduction of any evidence for either party, the Petitioner voluntarily dismissed Count III of the Administrative Complaint relating to the allegation that Respondent violated a Final Order of the Barber's Board.

Petitioner also requested that the Hearing Officer officially recognize all statutes and rules of the Board which are pertinent to the issues herein.

A transcript of the proceedings was furnished. Subsequent to the hearing, Petitioner submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Petitioner, Barber's Board, was the state agency responsible for the licensing of barbers and the regulation of the barbering profession in Florida. The Respondent, Ocie Phillips, Sr., and his sons, Ocie Phillips, Jr. and Kenneth Phillips, were all licensed as barbers in this state.

   
   

2. On October 14, 1992, Leonard Baldwin, an inspector with the Department of Professional Regulation with responsibility for inspecting barber shops in Florida, entered Respondent's shop to conduct a routine, un-announced inspection. Only Kenneth Phillips was present at the time. During his inspection of Respondent's shop, Mr. Baldwin reportedly found several violations of the states sanitation standards applicable to Barber shops. These included:

   
   

   1. garbage was not kept in a clean closed container/receptacle.

      
      

   2. equipment was not maintained in a safe/ sanitary manner.

      
      

   3. cleaners/bacterial agents were not being regularly used.

      
      

   4. there was not one sink (lavatory) per two barber chairs.

      
      

   5. combs/brushes were not sanitized after each patron.

      
      

   6. wet sanitizers were not being utilized on the premises.

   7. all equipment was not kept free of hair, or cleansed, or sanitized.

      
      

   8. All cleansed/sanitized equipment was not being stored in a clean closed cabinet or container, and

      
      

   9. work areas/drawers for equipment storage only were not kept clean/sanitized.

      
      

3. Mr. Baldwin also noted that the entire shop needed dusting and cleaning; the sinks were dirty; combs and brushes were being kept out on the back bar without sanitizing, as was other equipment; the display overhead needed cleaning; and the walls had clothes hanging on them. Mr. Phillips denies all of the allegations made by Mr. Baldwin. He and his sons all contend that the shop stays clean. He claims that the last inspector, Mr. Morganstern, who inspected on February 11, 1992, found no sanitary deficiencies at all.

   
   

4. This shop and the Respondent were the subject of two prior disciplinary actions taken by the department for un-sanitary conditions discovered in inspections in January and May, 1991. As a result of the former, Mr. Phillips paid a fine of $500.00 and his license was suspended for 30 days, (stayed). As to the latter, he again paid a fine of $500.00. After paying these two fines, he claims, he determined he could not afford to pay any more and made a decided effort to have his shop conform to the state standards.

   
   

5. Mr. Morganstern was the inspector in each of these two prior cases and he suggested that Mr. Phillips install new cabinets with space for storage in them. This was done at an expense of several thousand dollars. After the cabinets were complete, Mr. Baldwin conducted his inspection and charged Respondent with many of the same deficiencies previously identified by Mr. Morganstern.

   
   

6. Mr. Baldwin claims that to the best of his recollection, the cabinets had not been installed by the time of his inspection, but he cannot be sure. Mr. Phillips and Kenneth both claim it was done before the inspection. Neither party is sure, however, and it is found that Petitioner has not established by clear and convincing evidence that the required cabinetry had not been done at

   the time of the inspection. Mr. Baldwin is also alleged to have orally observed on the October 14 visit that the shop looked "OK" but still was not right.

   Respondent presented a video recording of the interior of the shop which shows the new cabinets and sinks. It also shows storage space for towels and equipment.

   
   

7. Kenneth Phillips, the only person in the shop when Mr. Baldwin came in to conduct his inspection before the shop was open on a Monday morning, claims he had not had a chance to clean the shop before Baldwin's arrival. He had been in church all the previous day, (Sunday), and had planned to do all that before the shop was opened for business. He had taken an AIDS prevention course previously and had learned there that it was important to sterilize instruments to prevent the spread of the disease. Nonetheless, Mr. Baldwin observed during his visit that the barbering utensils were scattered around and not in sterilizers, and his experience as a licensed barber, who has done this type of inspection for many years, tells him that the un-sanitary condition of the Respondent's shop was not a recent occurrence but had existed for some time. It is found, therefore, that sanitizers were not being used properly at the time of the inspection nor was garbage being properly stored as reflected on inspection

   form items 0210, 0215, 0216, 0224, 0225, and 0226. The remaining items, which are related to the construction of the storage cabinets, have not been proven to be violations.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

   
   

9. Section 476.204(1), Florida Statutes, makes it unlawful for any person

   to:

   
   

   1. Violate any provision of s. 476.194, s. 476.214, or s. 455.227(1),

      
      

      and

      
      

   2. Violate or refuse to comply with any provision of this chapter or chapter 455 or a rule or final order of the board.

   
   

10. Section 476.194(1)(b), Florida Statutes, makes it unlawful for any

    person to:

    
    

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

    
    

11. Section 475.214(1), Florida Statutes, authorizes the board to discipline the license of any license holder for:

    
    

    (c) Commission of any of the offenses described in s. 476.194.

    
    

12. Rule 21C-19.011, F.A.C. provides:

    
    

    (2) Each barbershop and each barber shall take reasonable steps to insure that the shop and individual service area, respectively is maintained and operated in a safe and sanitary manner. Such steps shall include

    the following:

    
    

    * * *

    
    

    (b) ...removal of garbage and refuse;....

    All garbage must be kept in a closed container or receptacle.

    
    

    * * *

    
    

    (e) Maintenance of all equipment used to perform barbering services on the premises in a safe and sanitary condition, including the regular application of cleansers and bacterial agents;

    1. The use of a brush, comb, or other barbering tool on more than one patron without being sanitized is prohibited.

       
       

    2. All barbershops shall be equipped with wet sanitizers....

       
       

    3. All barbering tools used in barbershops such as razors, scissors, tweezers, combs, rubber discs, or parts of vibrators shall be free from hair, cleaned and:

    
    

    (a) immersed in a [bactericide for a stated time or otherwise sanitized]

    
    

    (15) Styling stations, ... back bars, or

    working stations must be kept clean at all times to sight and touch. All drawers and shelves of the above being used for the storage of ...combs, ...and equipment must have proper sanitation ....

    
    

13. The burden of proof in this matter rests upon the Petitioner which must establish its allegations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

14. Petitioner has failed to show by evidence to that degree that at the time of Mr. Baldwin's October 14, 1991 inspection, the required storage cabinets had not been erected and were not being used for the storage of the requisite items.

    
    

15. However, several of the cited deficiencies had no relation to the storage cabinet. For example, the regular use of cleaners/bacterial agents, (0216); the sanitizing of combs and brushes after each patron, (224); the use of wet sanitizers, (0225); keeping all equipment free of hair, cleansed and sanitized, (0226); keeping all work areas or drawers for equipment storage clean and sanitized. These deficiencies were established by clear and convincing evidence. They are not only violations in and of themselves, as alleged in Count I, but because of the two prior disciplinary actions taken against the Respondent, constitute repeated violations of the statute and rules of the Board, as alleged in Count II of the Administrative Complaint. Count III was voluntarily dismissed by the Petitioner.

    
    

16. The purpose of the rules and statutes enforced herein is primarily to insure the public is protected from the incompetent practice of barbering, to protect the public safety, to educate the license holder, and to correct inappropriate conduct on his part. Punishment of the offender is not the primary purpose. Mr. Morganstern's testimony reveals that when he visited the Respondent's facility some four months after the inspection in issue, he found none of the inappropriate conditions discovered by Mr. Baldwin. It would appear, then, that the purpose of the inspection has been accomplished and that Respondent has adopted the proper sanitation standards for the operation of a barber shop. The imposition of additional fines would, therefore, appear to serve no purpose.

17. Section 476.204(2), Florida Statutes, authorizes the board to impose one or more of several stipulated penalties on any person who violates any provision of the statute. This includes:

    
    

    (d) Placement on probation for a period of time and subject to such reasonable conditions as the board may specify.

    
    

18. Respondent should be placed on probation under such reasonable conditions as the board may deem appropriate for a time sufficient to satisfy the board that the Respondent's compliance with standards is a permanent and lasting development.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that a Final Order be entered in this case directing that the barber's license of Respondent, Ocie Phillips, Sr., be placed on probation for such a period and under such reasonable conditions as the board may deem appropriate.

RECOMMENDED this 28 day of August, 1992, in Tallahassee, Florida.

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28 day of August, 1992.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-3025

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact Submitted by the parties to this case.

FOR THE PETITIONER:

1. - 3. Accepted and incorporated herein.

   1. Accepted and incorporated herein except that the word "the" before the work "sanitation" be changed to reflect "some."

   2. Accepted.

   3. Not a Finding of Fact but a recitation of testimony.

   4. Accepted.

   5. Not a Finding of Fact but a restatement of

      testimony.

   6. First sentence accepted. Second sentence rejected as not a Findings of Fact but a comment on the credibility of the evidence.

   7. Not a Finding of Fact but a comment on the credibility of the evidence.

   8. Accepted only as showing prior disciplinary record of the witnesses.

   9. & 13. Accepted and incorporater herein.

14. Not a Finding of Fact but a comment on the credibility of Respondent.

COPIES FURNISHED:

Christopher L. Hinson, CLA

E. Renee Alsobrook, Esquire Department of Professional

Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Ocie Phillips, Sr.

661 Northwest 15th Manor Pompano Beach, Florida 33060

Jack McRay General Counsel

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Kaye Howerton Executive Director Barber's Board

DPR

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 92-003025

Orders for Case No: 92-003025