STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-1555

)

ROBERT FINLEY and A CUT )

ABOVE BARBER SHOP, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the formal hearing in this case was held on December 3, 1982, in West Palm Beach, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was presented on an Administrative Complaint filed by the Barbers' Board against Robert Finley and A Cut Above Barber Shop, which alleged that Respondents violated Section 476.194(3), Florida Statutes, by hiring or employing Warren Cervini to engage in the practice of barbering while Cervini did not hold a valid license as a barber.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondents: Steven I. Greenwald, Esquire

150 East Boca Raton Road Boca Raton, Florida 33432

The Board alleges that the Respondents hired or employed Warren Cervini to engage in cutting hair at A Cut Above Barber Shop, and that Cervini was unlicensed from July, 1980, until May, 1981. The Respondents do not controvert that Cervini engaged in the practice of barbering or that Cervini was not licensed from July, 1980, until May, 1981. The Respondents assert that Cervini was not hired or employed within the meaning of Section 476.194(3), Florida Statutes, because he was an independent contractor. The Board does not controvert Cervini's status as an independent contractor based upon the facts adduced at hearing.

The issues are as follow:

1. Is an independent contractor hired or employed within the meaning of Section 476.194(3), Florida Statutes?

2. Is a licensee responsible for requiring an independent contractor to produce proof of licensure from time to time to ensure said independent contractor maintains a valid license?

FINDINGS OF FACT

1. At all times material to the allegations of the Administrative Complaint, the Respondents were duly licensed by the Barbers' Board.

   
   

2. Respondent Robert Finley owns A Cut Above Barber Shop.

   
   

3. Warren Cervini began work at A Cut Above Barber Shop in 1977. At that time, he was duly licensed by the Board as a barber. Cervini worked at A Cut Above Barber Shop until approximately Easter of 1981. He failed to renew his license prior to July, 1980, at which time his license became inactive by operation of law.

   
   

4. Respondent Finley asked Cervini if he had renewed his license, and Cervini told Respondent that he had but had left his license at his home. Cervini did not display his licenses at the shop.

   
   

5. After Cervini had left A Cut Above Barber Shop, Respondent Finley reported to the Board that he suspected Cervini was not licensed and was working at an adjoining barber shop.

   
   

6. Cervini paid his late fee and was relicensed on May 17, 1981.

   
   

7. While at A Cut Above Barber Shop, Cervini was not paid directly by Respondent Finley but paid Respondent a percentage of what he collected. Respondent did not control the mode or method Cervini used to cut hair. Respondent did not set specific hours or days for Cervini to work and did not provide Cervini with any tools or equipment beyond a barber chair. The Respondent never filed a W-2 Form or Form 1099 for Cervini.

   
   

8. Warren Cervini was an independent contractor while at A Cut Above Barber Shop.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings hams authority to hear this case and enter this Recommended Order pursuant to Section 120.57(1), Florida Statutes. The Barbers' Board has jurisdiction over the Respondents, Robert Finley and A Cut Above Barber Shop pursuant to Chapter 476, Florida Statutes.

   
   

10. Section 476.194, Florida Statutes, provides in pertinent part as follows:

    
    

    It is unlawful for any person to:

    
    

    (3) Hire 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.

    
    

11. Webster's New Collegiate Dictionary, 1976 edition, defines the verb "hire" in the context of its use in Section 476.194(3), Florida Statutes, as "to

    engage the personal services of for a set sum." The verb "employ" is defined by the same reference as it is used in Section 476.194(3), supra, as follows:

    
    

    1 c (1): to use or engage the services of (2): to provide with a job that pays wages or a salary

    
    

12. Respondent Finley "used" the services of Cervini in staffing his shop, although Cervini was an independent contractor. Section 476.194(3), Florida Statutes, is applicable to Respondent Finley, who employed Cervini within the meaning of this statute. Therefore, Respondent had the obligation upon engaging Cervini to ensure he had a valid license and thereafter to require him to produce proof of valid licensure from time to time. The facts reveal that Respondent suspected Cervini was not licensed. The Respondent should have satisfied his suspicions by requiring Cervini to produce his license. By failing to confirm his suspicion before Cervini left his shop, Respondent violated Section 476.194(3), Florida Statutes, as alleged.

    
    

13. It is noted that Warren Cervini, who was the real culprit in this case, was permitted to renew his license upon payment of a late fee as provided by statute. The fact that the statute provides for reactivating a license after less than one year upon payment of a late fee reflects the minimal legislative concern with late renewals. As this relates to violations of Section 476.194(3), Florida Statutes, the ability of the "unlicensed" person is not at issue, and the danger to the public is minimal if it exists at all. The Respondent's violation of Section 476.194(3), Florida Statutes, was a technical violation relating to lack of diligence in ensuring that Cervini maintained a valid license.

RECOMMENDATION

Having found the Respondents, Robert Finley and A Cut Above Barber Shop, guilty, of a technical violation of Section 476.194(3), Florida Statutes, it is recommended that the Barbers' Board give Respondent Finley a letter of reprimand.

DONE and RECOMMENDED this 11th day of January, 1983, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 11th day of January, 1983.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Steven I. Greenwald, Esquire

150 East Boca Raton Road Boca Raton, Florida 33432

Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Myrtle Aase, Executive Director Barbers' Board

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-001555

Orders for Case No: 82-001555