STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

BARBERS BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1866

)

HOWARD'S BARBER SHOP, AND )

JIMMY D. HOWARD, OWNER, )

)

Respondents. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on July 11, 1996, in Orlando, Florida. The parties, their witnesses, and the court reporter attended the formal hearing in Orlando. The undersigned participated by video conference from Tallahassee, Florida.

APPEARANCES

For Petitioner: James E. Manning, Esquire

Department of Business

and Professional Regulation Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Jimmy D. Howard, pro se

1013 South Central Avenue Apopka, Florida 32703-6343

STATEMENT OF THE ISSUES

The issues for determination are whether Respondent violated Section 476.194(1)(c), Florida Statutes (1995), 1/ by hiring an unlicensed person to practice barbering and, if so, what, if any, penalty should be imposed.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on October 13, 1995. Respondent timely requested a formal hearing.

At the formal hearing, Petitioner presented the testimony of one witness and submitted four exhibits for admission in evidence. Respondent testified in his own behalf, presented the testimony of one witness, and submitted no exhibits for admission in evidence.

The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the transcript of the formal hearing filed with the undersigned on July 29, 1996. Neither party timely filed a proposed recommended order ("PRO").

FINDINGS OF FACT

1. Petitioner is the governmental agency responsible for issuing licenses to barbers. Petitioner is also responsible for regulating the practice of barbering on behalf of the state.

   
   

2. Respondent is licensed as a barber. Respondent holds license number BS 0008619.

   
   

3. On or before October 15, 1994, Respondent hired Mr. Eric A. McClenton to practice barbering in Respondent's barber shop. Mr. McClenton is not licensed as a barber. 2/

   
   

4. Respondent hired Mr. McClenton to perform barbering services as an independent contractor. Mr. McClenton paid Respondent $75 monthly for the use of one of the barber chairs in Respondent's shop and paid for his own equipment and supplies.

   
   

5. Mr. McClenton performed barbering services within the meaning of Section 476.034(2). Mr. McClenton cut hair for approximately four months. He cut approximately 100 heads of hair for a fee of $6 or $7 a head.

   
   

6. Respondent knew or should have known that Mr. McClenton was not licensed as a barber. Respondent allowed Mr. McClenton to cut hair before seeing Mr. McClenton's license.

   
   

7. When Respondent hired Mr. McClenton, Respondent asked to see Mr. McClenton's license. Mr. McClenton verbally represented that he was licensed but used various excuses over time to delay or avoid showing his license to Respondent. Mr. McClenton never displayed a license by the chair he operated in Respondent's shop.

   
   

8. Petitioner issued separate citations to Respondent and Mr. McClenton. Petitioner issued a citation to Respondent imposing a fine of $250. Respondent did not pay the fine.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this proceeding. The parties were duly noticed for the formal hearing.

   
   

10. Petitioner has the burden of proof in this proceeding. Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint and the reasonableness of any penalty to be imposed. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

11. Section 476.194(1)(c) makes it unlawful for any person to:

    
    

    . . . Hire or employ any person to engage in the practice of barbering unless such person holds a valid license as a barber.

12. Respondent violated Section 476.194(1)(c). Respondent hired Mr. McClenton to practice barbering. Mr. McClenton performed barbering services without a license. Respondent knew, or should have known, that Mr. McClenton is not a licensed barber.

    
    

13. Section 476.204(2) authorizes various penalties for such a violation. The penalties include probation, a fine not to exceed $500, reprimand, suspension, or revocation of Respondent's license.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty

of violating Section 476.194(1)(c) and imposing an administrative fine of $250.

RECOMMENDED this 14th day of August, 1996, in Tallahassee, Florida.

DANIEL MANRY, 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 14th day of August, 1996.

ENDNOTES

1/ All chapter and section references are to Florida Statutes (1995) unless otherwise stated.

2/ Mr. McClenton completed a course of training as a cosmetologist but failed the barber examination.

COPIES FURNISHED:

Dorothy Faircloth, Executive Director Board of Barbers

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Lynda Goodgame, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

James E. Manning, Esquire Department of Business

and Professional Regulation Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Jimmy D. Howard, pro se 1013 South Central Avenue Apopka, Florida 32703-6343

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 contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 96-001866

Orders for Case No: 96-001866