STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF PROFESSIONAL REGULATION, ) BARBERS' BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 82-320

)

DONALD C. ALLGOOD and )

DON PETTIS, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Fort Walton Beach, Florida, before the Division of Administrative Hearings, duly designated Hearing Officer, Robert T. Benton II, on June 16, 1982. The parties were represented by counsel:

APPEARANCES

For Petitioner: Drucilla E. Bell, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondents: Patricia Grinsted, Esquire

Post Office Drawer 915 Shalimar, Florida 32579

By administrative complaint dated September 2, 1981, Petitioner alleged that, respondents, being licensed barbers, "are co-owners of four barbershops in the Fort Walton Beach area . . . [including] the Summit Men's Hair Barbershop located at 295 Racetrack Road . . . and the Summit IV Barbershop . . . [and that] from July 4, 1989 through September 15, 1980, Respondents employed Eddie Dingler, an unlicensed person to perform barbering services in The Summit Men's Hair and The Summit IV barbershops," all in violation of Section 476.194 and "476.214 (1)(c), Florida Statutes (1979)."

After respondent disputed the allegations of the administrative complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes (1981), petitioner requested the assignment of a hearing officer, pursuant to Section 120.57(1)(b)3, Florida Statutes (1981). See Section 120.57(1)(a)1, Florida Statutes (1981).

FINDINGS OF FACT

1. Joanne Fletcher answered the telephone the day Eddie Dingler called The Summit Men's Hair Barbershop (Summit I) asking for work. He said he was

   Roffler- and Sebring-trained and that he held barber's licenses both in Alabama

   and in Florida. Ms. Fletcher relayed this message to respondent Donald C. Allgood.

   
   

2. At the time, Mr. Allgood was half-owner of The Summit IV, and respondent Don Pettis owned the other half. Mr. Allgood had no ownership interest in Summit I, which was licensed to Mr. Pettis. Petitioner's Exhibit No. 3. Mr. Allgood acted as a sort of manager at Summit I the two or three days of the week he spent there, even though he was technically an independent contractor, working on commissions. Respondents had worked with each other for some seven years.

   
   

3. The parties stipulated that respondent Donald C. Allgood "is a barber having been issued license number BB 0021833" and that respondent Don Pettis "is a barber having been issued license number BB 0011546."

   
   

4. One Monday morning Eddie Dingler appeared in person at Summit I and talked to respondent Allgood about employment. Mr. Allgood called respondent Pettis, then took Dingler to respondent Pettis's house, where Ron Pettis was also present. Dingler told this group that he was licensed both in Florida and in Alabama and that he was conversant with the Roffler and Sebring tonsorial techniques. He was specifically asked whether he had a Florida license, and he answered affirmatively. He was not asked to produce the license certificate itself or the wallet-sized card that licensed barbers are issued. Barbers are under no requirement to carry this card on their persons. Respondent Pettis asked respondent Allgood to observe Dingler cutting hair and to hire him if he cut hair satisfactorily.

   
   

5. Dingler was engaged as a barber on a commission basis. He proved to be a highly competent hair stylist, and "excellent barber," from a technical standpoint. Posted in is station at Summit I was what appeared to be a valid Florida barber's license with Dingler's name and photograph: he was wearing eye, glasses and a yellow shirt. Aside from the respondents, five witnesses saw this barber's license, which was counterfeit. Petitioner's Exhibit No. 1. Respondent Pettis remembered noticing a number of plaques on the wall at Dingler's station in Summit I, including something that looked like Dingler's license. Mr. Allgood was unable to say that he had specifically seen Dingler's barber's license at any time before Dingler gathered up his things to leave after being discharged from employment.

   
   

6. After Dingler had worked at Summit I for about three months respondent Allgood asked him if he would like to work Mondays (when Summit I was closed at Summit IV. Dingler was Interested and reported for work at Summit IV the following Monday. Michael NcNeill let him in the barbershop ,and noticed what appeared to be an official Florida barber's license among Dingler's effects. After Mr. McNeill had left the Summit IV premises, Dingler allegedly sexually assaulted a 17-year-old patron.

   
   

7. When respondent Allgood learned of this, he told victim's father that he would fire Dingler and do what he could to see that Dingler's barber's license was revoked. Dingler was discharged the day after the alleged assault. In discussing the matter with a law enforcement officer, respondent Allgood suggested that the Department of Professional Regulation (DPR) be notified so that proceedings to revoke Dingler's barber's license could be instituted.

   
   

8. On November 24, 1980, Mr. Allgood voluntarily presented himself for an interview by Charles Deckert, an investigator for DPR. He assumed Mr. Deckert was developing a case so that action against Dingler could be taken. He learned

   in the interview for the first time that Dingler had never been licensed in Florida as a barber or a registered barber's assistant, according to DPR's records.

   
   

9. In preparing the foregoing findings of fact, petitioner's proposed findings of fact and memorandum of law and respondents' proposed order have been considered, and the proposed statement and findings of fact have been adopted in substance.

   CONCLUSIONS OF LAW

   
   

10. Petitioner has "power to revoke or suspend any [barber's] license . .

    . or to reprimand, censure . . . or otherwise discipline any holder of a license

    . . . for . . . [c]ommission of any of the offenses described in Section 476.194." Section 476.214(1)(c), Florida Statutes (1981). One such offense is to "[h]ire or employ any person to engage in the practice of barbering unless such person holds a valid license as a barber or registered barber's assistant." Section 476.194(3), Florida Statutes (1981).

    
    

11. In a matter as grave as license revocation proceedings, the duty allegedly breached by the licensee must appear clearly from applicable statutes or rules or have a "substantial basis," Bowling v. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981), in the evidence. Disciplinary licensing proceedings like the present case are potentially license revocation proceedings, since the penalty for the infraction alleged lies within the discretion of the disciplining authority, if allegations of misconduct are established at the hearing. Florida Real Estate Commission v. Webb, 367 So.2d

    201 (Fla. 1979). License revocation proceedings have, indeed, been said to be "'penal' in nature." State ex rel. Vining v. Florida Real Estate Commission,

    281 So.2d 487, 491 (Fla. 1973); Kozerowitz v. Florida Real Estate Commission,

    289 So.2d 391 (Fla. 1974); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979)(reh. den. 1980).

    
    

12. The statutory prohibition against hiring unlicensed barbers imposes strict liability on licensees. An administrative imposing responsibility on thoroughbred horse trainers, even for the acts of others who might drug racehorses in a trainer's custody, was upheld against due process challenges in Division of Pari-Mutuel Wagering, Department of Business Regulation v. Caple,

    362 So.2d 1350 (Fla. 1978), in order "[t]o protect the integrity of this unique industry." At 1354. The court stated:

    
    

    We have no doubt that a rule which both conditions a license and establishes

    with specificity reasonable precautionary duties within the competence of the licensee to perform is both reasonable

    and constitutional. Division of Pari-Mutuel Wagering, Department of Business Regulation v. Caple, 362 So.2d 1350, 1354-5 (Fla. 1978).

    
    

    Of course, in the present case nothing short of a telephone call to Tallahassee would have revealed Dingler's deception, and no precautionary duties are specified. Because these proceedings are "penal in nature," however, cases governing strict criminal liability are apposite. The rule in Florida was said to be "well settled" more than 50 years ago:

    
    

    [T]he rule seems well settled that when a statute makes criminal an act not

    malum in se or infamous without requiring the act to be knowingly or willfully done, a criminal or fraudulent intent is not an element of the offense and need not be proven. Mills v. State, 58 Fla. 74, 51 So.

    278; Balsted v. State, 41 N. J. Law, 552, 32 Am. Rep. 247; Haggerty v. St. Louis Ice Manufacturing & Storage Co., 143 Mo. 238,

    44 S. W. 1114, 40 L. R. A. 151, 65 Am. St.

    Rep. 647; State v. Foster, 22 R. 1. 163, 46A

    833, 50 L. R. A. 339; note vol. 11 L. R. A.

    807: 8 R. C. L. 62.

    
    

    Applying this rule of construction, Section 476.194(3), Florida Statutes (1981), would be read to impose strict liability even if it defined a crime rather than describing, as it does, a basis for disciplining a licensed barber.

    
    

13. At the formal hearing, petitioner had the burden to show by clear and convincing evidence that respondent committed the acts alleged in the administrative complaint. Walker v. State, 322 So.2d 612 (Fla. 3 DCA 1974); Reid v. Florida Real Estate Commission 188 So.2d 846 (Fla. 2d DCA 1966). See The Florida Bar v. Rayman, 238 So.2d 594 (Fla. 1970). Petitioner met this burden with proof that respondents employed Dingler in the practice of barbering, while he was not licensed in Florida as a barber or registered barber's assistant. The evidence also showed, however, that these violations of Section 476.194(3), Florida Statutes (1981), were wholly inadvertent.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner refrain from taking action against respondents on account of this technical violation.

DONE AND ENTERED this 28th day of June, 1982, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1982.

COPIES FURNISHED:

Drucilla E. Bell, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Patricia Grinsted, Esquire Post Office Drawer 915 Shalimar, Florida 32579

Myrtle Aase Executive Director Barbars Board

130 North Monroe Street Tallahassee, Florida 32301

Samuel R. Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-000320

Orders for Case No: 82-000320