STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BARBERS' BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 84-0055

)

LAZARO V. LINARES, d/b/a )

MR. LARRY HAIR STUDIO, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case in Miami, Florida, on March 2, 1984, on the Administrative Complaint of Petitioner, Department of Professional Regulation (the Department), against Lazaro V. Linares (Linares) d/b/a Mr. Larry Hair Studio (the Barbershop), Respondent.

APPEARANCES

For Petitioner: Theodore R. Gay, Esquire

Tallahassee, Florida

For Respondent: Lazaro V. Linares, pro se

Miami, Florida

The Department filed an Administrative Complaint against Linares for allegedly:

1. Leaving hair on the floor of the Barbershop;

2. Failing to use or have available for wet sterilizing agent;

3. Failing to sterilize equipment; and

4. Having dirty bathroom fixtures in the Barbershop.

Based on those allegations of fact, the Department charged Linares with having violated Rules 21C-22.01(1)(a), (1)(e), (8) and (10), Florida Administrative Code, and Sections 476.194(2) and 476.214(1)(c), Florida Statutes (1983). The issues are, therefore, whether the allegations are true and, if so, what, if any, discipline should be imposed by the Barbers' Board.

FINDINGS OF FACT

1. Except to the extent they are consistent with these Findings of Fact, the Department's proposed findings of fact are rejected as either not supported by competent, substantial evidence, contrary to the greater weight of the evidence or irrelevant.

2. Linares, a resident of Miami, Florida, has been a licensed barber, having been issued License Number BB 0018163 at least between the dates of July 8, 1983, and March 2, 1984. (The license expires July 31, 1984.) During this time, Linares owned and operated Mr. Larry Hair Studio, located in Miami, under barbershop License Number BS 001515 (which also was in effect on these dates and expires July 31, 1984.)

   
   

3. Linares has been licensed in Florida and has practiced barbering in Florida for 18 years. He has no record of ever before having been disciplined.

   
   

4. When the Department's investigator appeared at the Barbershop for a routine inspection on July 8, 1983, the hair of approximately three or four customers was on the floor of the Barbershop around the two barber chairs in the shop. Linares was sitting in one of the chairs in the customer waiting area.

   No customers were being barbered at the time.

   
   

5. The Barbers' Board has announced a policy that cut hair should be removed or at least be swept aside after every second customer. But there was no competent substantial and persuasive evidence that Linares' failure to do so constituted either a failure to eliminate all fire hazards or a failure to provide for safe and unobstructed human passage in the premises. The Board's policy was communicated to Linares on July 8, 1983.

   
   

6. On July 8, 1983, Linares also had no wet sterilizing agent or any other means of sterilization of equipment available for use and was not sterilizing the equipment he was using.

   
   

7. Finally, a combination of dirt and old soap from use over an extended period of time had accumulated on the bathroom fixtures of the bathroom in the Barbershop.

   
   

8. The Department inspector advised Linares that the conditions just described were violations of the rules governing licensed barbers and that he would return to reinspect the Barbershop between 30 and 90 days later.

   
   

9. The Department inspector returned on August 12, 1983. On his return, there again was hair from approximately four customers on the floor of the shop around the two barber chairs. However, on this occasion, both chairs were in use and there were customers waiting for haircuts.

   
   

10. On August 12, 1983, Linares still was not sterilizing his equipment and had no wet sterilizing agent or other means of sterilization available for use.

    
    

11. Finally, the bathroom fixtures still had an accumulation of dirt and old soap on August 12, 1983.

    
    

    CONCLUSIONS OF LAW

    
    

12. Section 476.214, Florida Statutes (1983), provides in pertinent part:

    
    

    1. The board shall have the power to revoke or suspend any license, registration card, or certificate of registration issued pursuant to this act, or to reprimand, censure, deny subsequent licensure of, or otherwise

       discipline any holder of a license, registration card, or certificate of registration issued pursuant to this act, for any of the following causes:

       * * *

       (c) Commission of any of the offenses described in s. 476.194.

       
       

       Section 476.194, Florida Statutes (1983), provides in pertinent part:

       
       

       476.194 Prohibited acts. -- It is unlawful for any person to:

       * * *

    2. Engage in willful or repeated violations of this act or of any of the rules adopted by the board.

       * * *

       
       

13. Rule 21C-22.01(1), Florida Administrative Code, provides:

    
    

    Each barbershop shall take reasonable steps to insure that it is maintained and operated in a safe and sanitary manner. Such steps shall include but not be limited to the following:

    1. Compliance with all local code requirements and to eliminate all fire hazards and dangerous structural defects;

    2. Provisions for safe and unobstructed human passage in the premises; removal of garbage and refuse; and safe storage or removal of flammable materials;

    3. Maintenance of portable fire extinguishers, type, placement, and number required needed to protect the public and property, shall be in compliance with the State Fire Marshall's [sic] Rules and Regulations, Chapter 4A-21.

    4. Extermination of all vermin, insects, termites, and rodents on the premises;

    5. Maintenance of all equipment used to perform barbering services on the premises in a safe and sanitary condition, including the regular application of cleansers and bactericidal agents;

    6. Assurance that materials furnished for the personal use of the customer, such as towels, are cleaned before reuse.

    
    

    There was no adequate proof that Linares' failure to remove or sweep away clippings after every two customers constituted a violation of either subparagraph (a) or (b) of this rule. And since the Barbers' Board's policy to that effect has not been duly promulgated as a rule, it cannot form the sole basis for concluding that Linares has violated the above-cited rule. Sevens v. Department of Administration, 344 So.2d 290 (Fla. 1st DCA 1977).

14. In addition to subparagraph (e) of Rule 21C-22.01, Florida Administrative Code, paragraph (8) of the rule provides in pertinent part:

    
    

    1. All equipment used in barbershops, such as razors, scissors, tweezers, combs, rubber discs, or parts of vibrators used on patrons shall be free from hair, cleansed and:

       1. Immersed in 1.1000 solution of Quaternary ammonium compound or equivalent for one to five minutes, or

       2. Placed in an ultra-violet ray sterilizing cabinet bactericidal 2536A radiation for a period of 15 minutes, or for a period as recommended by the manufacturers of such radiation lamp, sufficient to equal the germicidal and organism destruction of a

          2 percent carbolic acid solution, or its equivalent, or

       3. Cleaned and prepared for use by any other method that shall be the equivalent in germicidal or organism destructive effect, as provided in subsection (8)(a) above.

       4. After complying with any of the above requirements, the razors, scissors, tweezers, combs, rubber discs or parts of vibrators should then be placed and kept in a clean, closed cabinet until next ready for use.

    
    

    Linares' failure to have appropriate sterilizing agents available and failure to sterilize his equipment constitutes willful or repeated violations of those rules.

    
    

15. Finally, Rule 22C-22.01(10), Florida Administrative Code, provides:

    
    

    (10) All bathroom and plumbing fixtures must be maintained in a clean and sanitary condition at all times and shall comply with provisions of Chapters 10D-9 and 10D-10, Florida Administrative Code, (F.A.C.). A portable water system in compliance with Chapter 17-22, F.A.C., shall be provided in all barber shops. Both hot and cold running water shall be provided.

    
    

    Again, Linares' failure to maintain the bathroom fixtures in the Barbershop in a clean condition constitutes willful or repeated violations of that rule.

    
    

16. Linares' record of no disciplinary action in 18 years as a barber licensed and practicing in Florida deserves some consideration. The discipline imposed in this case should serve in part to place Linares on fair notice that future violations will be dealt with more severely.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Barbers' Board reprimand Respondent, Lazaro V. Linares, d/b/a Mr. Larry Hair Studio, and impose an administrative fine in the amount of one hundred dollars ($100.00).

DONE AND ENTERED this 28th day of March 1984 in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 28th day of March 1984.

COPIES FURNISHED:

Theodore R. Gay, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Lazaro V. Linares 7015 Biscayne Boulevard

Miami, Florida 33138

Myrtle S. Aase, Executive Director Barbers' Board

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred M. Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 84-000055

Orders for Case No: 84-000055