STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BARBERS' BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2270

)

MARY E. SMITH, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Miami, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, James E. Bradwell, on September 30, 1983. The parties were afforded leave through October 10, 1983, to submit memoranda supportive of their positions.

Petitioner's counsel has submitted a proposed Recommended Order which was considered by me in preparation of this Recommended Order. 1/

APPEARANCES

For Petitioner: Theodore R. Gay, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: No appearance 2/

BACKGROUND

On May 2, 1983, Petitioner filed a one-count administrative complaint alleging that Respondent had been operating a barbershop without a current active barbershop license. On May 18, 1983, Respondent executed an Election of Rights form in which she disputed the allegations of fact contained in the administrative complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At the hearing, Petitioner presented Steven Granowitz, an inspector employed by the Petitioner to ensure compliance with the Department's licensure and sanitation rules and regulations. Petitioner introduced Exhibits 1 through 7, all of which were received in evidence at the hearing.

FINDINGS OF FACT

Based upon my observation of the Petitioner's witness and his demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant findings of fact:

1. During times material herein, Respondent was a licensed barber and the holder of license number BB 0006222. (Petitioner's Exhibits 1 and 2)

   
   

2. During November of 1982, Petitioner's inspector, Steven Granowitz, made a routine inspection of barbershops with delinquent licenses. During the course of these routine inspections, Inspector Granowitz inspected the Broadway Barbershop which was being operated by the Respondent, Mary E. Smith. During the course of his inspection, Inspector Granowitz identified himself and asked to inspect the Respondent's current-active barber's license. Initially, Respondent related to Inspector Granowitz that her license had either been stolen or misplaced and that she could not keep track of the license. During the course of Inspector Granowitz's inspection, there were approximately four customers present and Inspector Granowitz's observation led him to believe that the Respondent had been continuously operating the barbershop without a license. It is so found.

   
   

3. An examination of the documentary evidence introduced reveals that during 1979 Florida barbershop license number BS 0005766 was issued to the Respondent to operate the Broadway Barbershop located at 1133 NW 3rd Avenue, Miami, Florida. (Petitioner's Exhibit 3) The Respondent did not timely renew Florida barbershop license number BS 0005766. (See Petitioner's Exhibit 4) Following the inspection during November 30, 1982, by Inspector Granowitz, Respondent applied for a new barbershop license for the Broadway Barbershop and on December 13, 1982, Florida barbershop license number BA 0005766 was issued to the Respondent for the Broadway Barbershop. (Testimony of Granowitz and Petitioner's Exhibits 5, 6 and 7).

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

   
   

5. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

6. During times material, the Respondent was the holder of a Florida barbershop license and, as such, was subject to the disciplinary guides of Chapters 476, Florida Statutes, and Rule Chapter 21C, Florida Administrative Code.

   
   

7. The Respondent's barbershop license number BS 0005766 was subject to a biennial renewal requirement and the first renewal deadline thereunder for said license was July 31, 1980. Section 476.184, Florida Statutes, and Rule 21C- 19.03, Florida Administrative Code.

   
   

8. Respondent's failure to renew Florida barbershop license number BA 0005766 on or before July 31, 1980, resulted in that license being delinquent and of no force and effect. Respondent's operation of the Broadway barbershop on November 30, 1982, and during other times when no current active license existed for her shop constitutes a violation of Section 476.184(1), Florida Statutes, and a derivative violation of Section 476.194(2), Florida Statutes, as alleged. Based thereon, adequate basis exists for disciplinary action against Respondent as contemplated by Section 476.214(1)(c), Florida Statutes, as alleged in the administrative complaint filed herein.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED that the Barbers' Board impose an administrative fine of

$500.00 on Respondent.

DONE AND ENTERED this 8th day of February 1984 in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of February 1984.

ENDNOTES

1/ To the extent that the Petitioner's proposed findings, etc., are not incorporated in this Recommended Order, said proposed findings, etc., were deemed either irrelevant, immaterial, or not otherwise supported by record evidence.

2/ Although properly noticed, the Respondent, or a representative on her behalf, did not appear at the hearing. The hearing proceeded as scheduled.

COPIES FURNISHED:

Theodore R. Gay, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mary E. Sims

1133 Northwest 3rd Avenue Miami, Florida 33136

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-002270

Orders for Case No: 83-002270