STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Petitioner,

vs.

CHAND HARRIS,

Respondent.

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) Case No. 07-0107

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RECOMMENDED ORDER

This cause came on for formal proceeding and hearing before

1. Michael Ruff, a duly-designated Administrative Law Judge of the Division of Administrative Hearings. The formal hearing was conducted in Ocala, Florida, on March 26, 2007. The appearances were as follows:

   APPEARANCES

   
   

   For Petitioner: Tiffany A. Harrington, Esquire

   Department of Business and Professional Regulation

   1940 North Monroe Street, Suite 42

   Tallahassee, Florida 32399-2202 For Respondent: No Appearance

   STATEMENT OF THE ISSUES

   
   

   The issues to be resolved in this proceeding concern whether the Respondent owned, operated, maintained, established, or conducted a barbering business and barber shop for purposes

   of the requirements delineated in Section 476.194, Florida Statutes.

   PRELIMINARY STATEMENT

   
   

   This cause arose when an Administrative Complaint was filed by the Department of Business and Professional Regulation (Department) (Agency) on May 22, 2006, alleging violations of Section 476.194, Florida Statutes. Specifically, Section 476.194(1)(e)1., Florida Statutes, and Section 476.194(1)(e)2., Florida Statutes, were alleged to have been violated by the Respondent's owning, operating, maintaining, conducting, establishing, opening, or otherwise having charge of a barber shop not licensed under the provisions of Chapter 476, Florida Statutes, and owning and operating, establishing, etc., such a barber shop establishment in which a person not licensed as a barber was permitted to perform services.

   The Respondent elected to dispute the allegations of the Administrative Complaint and availed himself of the right to a formal proceeding and hearing to resolve disputed issues of material fact. The case was therefore transmitted to the Division of Administrative Hearings in accordance with Section 120.57(1), Florida Statutes, and ultimately to the undersigned Administrative Law Judge.

   The cause came on for hearing as noticed. The Petitioner presented the testimony of one witness; Robert M. Johnson, an

   inspector. The Petitioner also offered six exhibits which were admitted into evidence. The Respondent failed to appear and consequently no evidence was adduced on behalf of the Respondent. In addition, the undersigned took official recognition of Sections 476.194(1)(e)1. and (2)., Florida Statutes (2006). Upon conclusion of the proceeding, a transcript thereof was ordered by the Agency, and counsel for the Department availed herself of the opportunity to submit a Proposed Recommended Order, which has been considered in the rendition of this Recommended Order.

   FINDINGS OF FACT

   
   

   1. The Petitioner is an Agency of the State of Florida charged, as pertinent hereto, with regulating the licensure of barbers, the licensure of barber shop establishments and the practice of barbering, and the operation of barber shops, pursuant to Chapter 476, Florida Statutes (2006).

   2. After investigation the Respondent, Chand Harris, was accused in the Administrative Complaint, with practicing barbering or operating, establishing, opening, or conducting a barber shop operation or business without proper licensure. Although properly served with a copy of the Notice of Hearing at his last known address of record, Mr. Harris failed to appear at the hearing. After waiting an appropriate period of time, the hearing was convened and the taking of evidence was initiated.

      Upon conclusion of the Petitioner's case the Respondent,

      
      

      Mr. Harris, had not yet appeared at the hearing and never did appear at hearing. Consequently, no evidence was adduced on behalf of the Respondent. There has been no communication with the Respondent either before or since the hearing and thus there is no known explanation for his failure to appear at the hearing.

   3. Robert M. Johnson is employed by the Department as an inspector. He has been thus employed for approximately three and one-half years. He has a four-year degree from Baptist College of Florida and is currently enrolled in basic law enforcement courses at Lake City Community College. He also received formal training from the Department upon beginning his employment and attends on-going training sessions. Mr. Johnson performs approximately 1,300 inspections annually.

   4. On November 3, 9, and 17, 2005, Mr. Johnson inspected the premises of a business known as "Trend Setterz."

      Mr. Johnson's investigation established, through his testimony, that the Respondent, Chand Harris, owned and controlled the establishment named Trend Setterz. It is located at 289 Marion Oaks Lane, Ocala, Florida 34473. Trend Setterz was not licensed as a barber shop by the Florida Barbers Board, but was operating as a barber shop. Mr. Johnson observed a substantial number of people having hair cuts performed in the Trend Setterz shop.

   5. During those inspections, Mr. Johnson observed

      
      

      Mr. Giscard Rousseau performing barbering services inside the Trend Setterz establishment. He specifically observed

      Mr. Rousseau cutting hair for compensation. He also overheard Mr. Rousseau telling at least one customer not to pay him in the presence of Mr. Johnson so he could not be accused of barbering for compensation without a license.

   6. Mr. Rousseau was not licensed as a barber by the Florida Barber's Board at the time of the inspections and with regard to the time period represented by the charges in the Administrative Complaint against the shop owner and operator, Mr. Harris. Later, after the pertinent time period represented by the charges in the Administrative Complaint, Mr. Rousseau indeed achieved licensure as a barber by the Florida Barber's Board, on September 12, 2006. That license is current and active through July 31, 2008. Chand Harris, however, as well as Trend Setterz, is not and never has been licensed by the Barber Board respectively as a barber or as a barber shop.

      CONCLUSIONS OF LAW

      
      

   7. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2006).

   8. No appearance or legal challenge was made at hearing concerning the violations alleged in the Administrative

      Complaint. Accordingly, as concluded below they have been established.

   9. Section 476.204(2), Florida Statutes, provides as follows:

      Any person who violates any provision of this section shall be subject to one or more of the following penalties, as determined by the board:

      
      

      1. revocation or suspension of any license or registration issued pursuant to this chapter.

         
         

      2. Issuance of a reprimand or censure.

         
         

      3. Imposition of an administrative fine not to exceed $500.00 for each count or separate offense.

         
         

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

         
         

      5. Refusal to certify to the department an applicant for licensure.

         
         

   10. In accordance with the opinion in Department of Banking and Finance Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996) the Petitioner Agency has the burden of establishing by clear and convincing evidence the allegations against the Respondent set forth by the Administrative Complaint. The decision in Evans Packing Company v. Department of Agriculture and Consumer

       Services, 550 So. 2d 112, 116 f.n. 5, provides as follows concerning the standard of proof:

       That standard as been described as follows:

       
       

       [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts at issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of [sic] conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So.

       2d 797, 800 (Fla. 4th DCA 1983).

       
       

       Additionally, a disciplinary action can only be based upon the offenses actually alleged in the Administrative Complaint in accordance with generally accepted principles of notice pleading. Sternberg v. Department of Regulation, Board of Medical Examiners, 465 So. 2d 1324, 1325 (Fla. 1st DCA 1985).

   11. Section 476.034, Florida Statutes, provides as

       
       

       follows:

       
       

       1. 'Barber' means a person who is licensed to engage in the practice of barbering in this state under the authority of this chapter.

          
          

       2. 'Barbering' means the following practices when done for remuneration and for the public, but not when done for the treatment of disease or physical or mental ailments: shaving, cutting, trimming, coloring, shampooing, arranging, dressing, curling, or waving the hair or beard or applying oils, creams, lotions, or other preparations to the face, scalp, or neck, either by hand or by mechanical appliances.

       3. 'Barber shop' means any place of business wherein the practice of barbering is carried on.

       
       

   12. Section 476.194(1)(e)1., Florida Statutes, provides that:

       [I]t is unlawful for any person to: own, operate, maintain, open, establish, conduct, or have charge of, either alone or with another person or persons, a barber shop which is not licensed under the provisions of this chapter.

       
       

   13. Section 476.194(1)(e)2., Florida Statutes, provides in pertinent part:

       [I]t is unlawful for any person to: own, operate, maintain, open, establish, conduct, or have charge of, either alone or with another person or persons, a barber shop in which a person not licensed as a barber is permitted to perform services.

       
       

   14. There is no question that the evidence adduced, in the form of the documents in evidence and the testimony of

Mr. Johnson, establishes by clear and convincing evidence that the Respondent violated the above statutory provisions. The Respondent thus operated a barber shop, which was not properly licensed, as the owner or the operator. He also permitted a person to practice in that shop who was not properly licensed to perform barbering services, but who was performing such barbering services, as Mr. Johnson's testimony showed without rebuttal. Accordingly, there is no question that the charges in the Administrative Complaint have been established. There has,

however, been no proof of the amount of any investigative or other costs.

RECOMMENDATION

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

RECOMMENDED that a final order be entered by the Florida Department of Business and Profession Regulation, Board of Barbers, finding the Respondent guilty of the charges in the Administrative Complaint and assessing an administrative penalty in the amount of $1,000.00, due and payable to the Barber Board, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days of the date a final order herein is filed with the agency clerk.

DONE AND ENTERED this 7th day of May, 2007, in Tallahassee,

Leon County, Florida.

S

P. MICHAEL RUFF Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with Clerk of the

Division of Administrative Hearings this 7th day of May, 2007.

COPIES FURNISHED:

Tiffany A. Harrington, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

Chand Harris

16330 Southwest 17th Avenue Ocala, Florida 34473

Robyn Barineau, Executive Director Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Ned Luczynski, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 07-000107

Orders for Case No: 07-000107