Judges: SHARYN L. SMITH
Agency: Department of Business and Professional Regulation
Latest Update: Dec. 08, 1980
Summary: Adoption of retirement clause in new law did not operate retroactively. Let Petitioner pay reinstatment fee and be relicensed despite noncompliance with new statute.
80-0773.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DONALD MCDONALD, )
)
Petitioner, )
)
) CASE NO. 80-773
) DEPARTMENT OF PROFESSIONAL )
REGULATION, Barbers' Board, )
)
Respondent. )
)
RECOMMENDED ORDER
This cause was scheduled for hearing on July 24, 1980, in New Part Richey, Florida. By agreement of the parties, the hearing was waived and the parties presented argument on the legal issue of whether the Petitioner is required to sit for reexamination by the Barbers' Board in order to obtain relicensure as a barber. The parties were represented as follows:
APPEARANCES
For Petitioner: Donald McDonald
248 Moog Road
New Port Richey, Florida 33552
For Respondent: Drucilla E. Bell, Esquire
Assistant General Counsel
Department of Professional Regulation Tallahassee, Florida 32301
Post-hearing legal memoranda have been submitted by the Respondent. The parties agree that the facts in this case are essentially not in dispute.
FINDINGS OF FACT
The Petitioner holds a license to practice barbering which expired on July 31, 1978.
At the time of the expiration of Petitioner's license Section 476.154, Florida Statutes was in effect which permitted licensees who retired from the practice of barbering to have their licenses restored upon the payment of a required restoration fee.
Pursuant to Rule 21C-7.01, Florida Administrative Code, "retirement was defined to require written notification to the Barber Board and acknowledgement by the Board of said retirement.
Rule 21C-7.01, Florida Administrative Code was promulated in conjunction with Rule 21C-7.02, Florida Administrative Code. rule 21c-7.02, Florida Administrative Code, encountered difficulties when questions were raised
by the staff of the Joint Administrative Procedures Committee concerning the statutory authority of the Board to enact the rule.
Both rules were filed with the Secretary of State on October 23, 1978, but never published in response to a request by the Board. Subsequent to the filing of the rules, the Board attempted to resolve the conflict between the Committee and the board over the rule.
As a result of the Board's inability to resolve the conflict, the rules were repealed in June, 1980 without having been published in the Florida Administrative Code.
At the time of the expiration of his license, Petitioner was of the belief that if he retired he could have his license reinstated upon payment of a restoration fee.
The Petitioner did not notify the Board of his retirement nor did he receive notification from the Board that subsequent changes in Chapter 476, Florida Statutes would be interpreted by the Board to require reexamination of barbers holding expired licenses.
The Petitioner has been a practicing barber for approximately 20 years and desires to again actively pursue his profession.
CONCLUSIONS OF LAW
The 1977 Barber Practice Act, provides at 476.13, Florida Statutes, as follows:
Every registered barber teacher, registered barber, and registered apprentice who continues in active practice or service shall annually, during the period of June 1 though July 31 of such year, renew his certi- ficate of registration and pay the required fee. Every certificate of
registration which has not been renewed during the months of June and July in any one year shall expire August 1
in that year. A registered barber or registered apprentice whose certificate of registration has expired may have his certificate restored immediately upon payment of the restoration fee.
Any registered barber who retires from the practice of barbering for not more than 5 years may renew his certificate of registration upon the payment of the required restoration fee. Any registered practitioner under this chapter who retires from the teaching or practice of barbering may renew
his certificate of registratation upon payment of required restoration fee. (e.s.)
This law was repealed effective July 1, 1978. See Section 3, Chapter 76-168. Section 476.154, Florida Statutes, which was in effect when Petitioners license expired, provides:
Each licensed barber who continues in active practice or service shall,
during the period July 1 through July31 of each even numbered year, renew his license and pay the required fee. Each license which has not been renewed during the month of July in any even numbered
year shall expire on August 1 of that year. Any practitioner licensed under this act who retires from the practice of barbering may renew his license upon payment of
the required restoration fee. (e.s.)
Although Section 476.154, Florida Statutes permitted renewal of a license upon the payment of a restoration fee in the case of a barber who elects to retire, Barber Board rules defined "retirement to require notification to the Board of such intent. See Rule 21C-7.01(1), Florida Administrative code. However, since this rule was filed after the expiration date of Petitioners license and the rule does not appear to operate retroactively, nothing in the law required the Petitioner to notify the Board in writing of his retirement on July 31, 1978.
Additionally, Section 476.254, Florida Statutes states in pertinent part:
Notwithstanding any other provision of
this act, each licensed barber or registered barbers assistant who was duly licensed or registered as such by this state on June 30, 1978, shall be entitled to continue to hold such license without reexamination and such license shall be re newed and held hence- forth in accordance with the provisions of this act.
The 1978 act in effect when Petitioners license expired provided at Section 476.154, Florida Statutes, for renewal upon payment of a required restoration fee. The required restoration fee is established by rule pursuant to Section 476.084, Florida Statutes.
Therefore, it is RECOMMENDED that Petitioner be relicensed as a barber upon payment of the required restoration fee.
DONE and ORDERED this 28th day of October, 1980, in Tallahassee, Florida.
SHARYN L. SMITH
Hearing Officer
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1980.
COPIES FURNISHED:
Donald McDonald
248 Moog Road
New Port Richey, Florida 33552
Drucilla E. Bell, Esquire Barbers' Board, Department of
Professional Regulation 2009 Apalachee Parkway
Tallahassee, Florida 32301
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL REGULATION
DONALD McDONALD,
Petitioner,
vs. CASE NO. 80-773
DEPARTMENT OF PROFESSIONAL REGULATION & BARBER BOARD,
Respondent.
/
FINAL ORDER
This matter concerns a dispute between the Agency and Donald McDonald regarding the conditions under which he would be issued a new barber license. The Hearing Officer of the Administrative Hearings has conducted a formal proceeding in this matter and has submitted a Recommended Order and considering other argument, it is ORDERED that the findings of fact are adopted as this Agencys finding of fact. I is ORDERED that the conclusions of law are adopted as this Agency's conclusion of law except that the 4th paragraph is hereby amended to read:
"The 1978 Act in effect when a Petitiioner's license expired provided at Section 476.154, Florida Statutes, for renewal of his license from retirement status upon payment of a required restoration fee. The required res-
toration fee is established by Rule pursuant to Section 476.084, Florida Statutes."
It is further ORDERED that the recommendation of the Hearing Officer is adopted as this Agencys recommendation.
DONE and ORDERED this 26th day of November, 1980.
Nancy Kelley Wittenberg, Secretary DEPARTMENT OF PROFESSIONAL REGULATION
2009 Apalachee Parkway, Oakland Bldg. Tallahassee, Florida 32301
Copies provided to:
Drucilla E. Bell Assistant General counsel
Department of Professional Regulation 2009 Apalachee Parkway
Tallahassee, Florida
Donald McDonald
248 Moog Road
New Port Richey, Florida 33552
Sharyn L. Smith, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
Docket for Case No: 80-000773
Orders for Case No: 80-000773
| Issue Date |
Document |
Summary |
|
Nov. 26, 1980 |
Agency Final Order
|
|
|
Oct. 28, 1980 |
Recommended Order
|
Adoption of retirement clause in new law did not operate retroactively. Let Petitioner pay reinstatment fee and be relicensed despite noncompliance with new statute.
|
