STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BARBERS' BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 84-2023

) DPR CASE NO. 0042093

PAULA THIGPEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was given and a hearing was conducted before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted in Green Cove Springs, Florida, on August 21, 1984. This Recommended Order is being entered following the receipt and review of proposed recommended orders filed by counsel for the parties. To the extent that those proposals are consistent with the Recommended Order, they have been utilized. Otherwise, the proposals are rejected as being contrary to facts found, or based upon lack of relevancy or materiality.

APPEARANCES

For Petitioner: Theodore R. Gay, Esquire

Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: L. J. Arnold, III, Esquire

Post Office Drawer "D"

Green Cove Springs, Florida 32043

The issues in this matter are as established by Administrative Complaint brought by the State of Florida, Department of Professional Regulation against the Respondent. This complaint contains two counts. One alludes to the fact that the Respondent violated Section 476.194(4), Florida Statutes, in obtaining a license for a barbershop by fraudulent means, which in turn would be a violation of Section 476.214(1)(c), Florida Statutes. The second count is based upon the same factual allegations and accuses the Respondent of being guilty of violating Section 455.227(1)(e), Florida Statutes, again related to obtaining a license by fraud or material misrepresentation of fact.

FINDINGS OF FACT

1. Paula Joan Thigpen, known also as Paula Thigpen, is licensed by the State of Florida, Barbers' Board, to practice as a barber in the State of Florida. Her license number is BB 0025059.

2. Respondent had been married to one William Mann on two occasions, ending in divorce. In addition, Respondent had worked as a barber in a barbershop owned by her former husband. That shop is located at 465 Kingsley Boulevard, Orange Park, Florida. This arrangement allowed her to act as a manager in fact related to the financial aspects of that barbershop, during Mann's absence.

   
   

3. In the summer of 1983, a discussion was entered into between the Respondent and her former husband on the topic of opening a barbershop in Middleburg, Florida. It was contemplated that Mann would own the shop and that the shop would be managed by the Respondent. Should the Respondent leave the community due to the duties of her present husband who was serving in the United States Navy, Respondent and Mann understood that the Respondent would be reimbursed for the money she invested in the shop in Middleburg. It was discussed that the Respondent would be guaranteed a salary at the beginning of the shop operation in Middleburg. Finally, it was discussed that should Mann wish to dispose of his ownership of the Middleburg barbershop, Respondent would pay him for his interest in the shop and become the owner.

   
   

4. Both Mann and the Respondent spent money in trying to establish the barbershop in Middleburg, to include equipment, supplies, advertising and other related costs. Respondent also devoted labor to establishing the shop in Middleburg. To this end, space was leased in a building in early September, 1983, with Respondent representing herself to the lessor as a partner with Mann. On September 16, 1993, Mann traveled to Tallahassee and obtained a barbershop license for the Middleburg operation, No. BS 0007886. He listed himself as the owner of the shop and paid a $25 licensing fee. The barbershop license came into the hands of the Respondent following its issuance. This occurred sometime between September 16, 1983, and September 21, 1983.

   
   

5. The barbershop in Middleburg opened on September 19, 1983, a week earlier than had been anticipated by Mann. On that same date he contacted the Respondent and indicated that he did not wish to pursue the business venture of opening the barbershop. He stated on that occasion that he felt that it would cost too much money and the he was not in a position to guarantee the salary for the Respondent and another person who would be working in the shop. Mann offered to have the Respondent return to his business in Orange Park, Florida. Respondent declined this opportunity. Discussion was then entered into on the possibility of the Respondent buying out Mann's ownership interest. Mann did not accept that disposition. He simply stated that he wanted the shop closed. There was a further conversation on September 20, 1983, in which Mann indicated his willingness to sell the shop based upon the amount of money he had invested in the equipment and supplies and a fee which he thought he was entitled to based upon the aggravation caused by the venture.

   
   

6. On September 21, 1983, Mann appeared at the barbershop in Middleburg and told the Respondent that he no longer wished to sell his ownership of the shop. He told her that he wished to have the shop closed and wanted the license which had been issued for the barbershop. Respondent told him that she did not know where the license was. In fact, she had it at her home. Following this exchange Mann sought the assistance of law enforcement and after discussion between a law enforcement officer and the Respondent and her former husband, Mann left the licensed premises in Middleburg, Florida. He departed in view of the fact that the lease was signed by the Respondent, accepting the officer's suggestion that he leave given the indicia of control which the lease seemed to place in the hands of the Respondent, in the eyes of the officer.

7. Before the September 21, 1983, exchange, Respondent had prepared a document which would settle the transfer of ownership from Mann to her. That document was never executed. Nonetheless, Respondent was of the opinion that she was entitled to the ownership interest in the barbershop and she traveled to Tallahassee, Florida, on that date and sought and obtained a barbershop license for the Middleburg, Florida shop for which an initial license had been issued to Mann. The license issued to Respondent for that barbershop was BS 00078887. In the application for that license she indicated that she was the sole owner of the shop and the equipment in the shop. This request for transfer was not authorized by Mann, the shop license holder.

   
   

8. Following the issuance of the barbershop license for the same barbershop in Middleburg, Florida, as had been licensed for the benefit of Mann, her former husband offered to sell her his interest in the shop. This offer was made in January, 1984. The offer was only open for a couple of days and the parties were unable to come to an agreement on the purchase. That sale has yet to occur.

   
   

9. Under the circumstances of this case, as shown in the course of the hearing, Mann has remained the owner of the barbershop licensed for the Middleburg, Florida operation. This is a fact understood by the Respondent. Although there have been occasions in which Mann seemed willing to sell his ownership and associated license, that purchase was never consummated.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. In the course of the hearing Petitioner offered as its exhibit No. 8, a deposition given by the Respondent. Ruling was reserved on the question of its admission. Having reviewed that deposition it is admitted.

    
    

12. A motion was made to amend the Administrative Complaint to add additional language to paragraph 5 of that Administrative Complaint. There being no objection to that amendment, the amendment is allowed.

    
    

13. Count 1 of the Administrative Complaint charges the Respondent with obtaining the barbershop registration for the Middleburg, Florida barbershop through a fraudulent misrepresentation, in violation of Section 464.194(4), Florida Statutes. The facts as alleged pertain to the claim that the Respondent in the application stated that she was the owner of the barbershop at a time when she knew she was not. That claim through the complaint has been established. In addition to this false or fraudulent misrepresentation pertaining to the question of ownership, Respondent is also accused of having made a false statement or a fraudulent misrepresentation on the question of her claim to ownership of the shop equipment as alluded to in the application. Although Respondent did not own all of the shop equipment, she did have a proprietary interest in some of the equipment and for that reason, no fraud or false statement has been proven related to the claim of ownership of shop equipment as alleged in this count. The violation as established subjects the Respondent to discipline allowed by Section 476.214(1), Florida Statutes, in that it is a commission of an offense alluded to in Section 476.214(1)(c), Florida Statutes, and to a penalty announced in Section 476.204, Florida Statutes.

14. As alluded to in Count 2, the conduct as prohibited in Count 1 also constitutes a violation of Section 455.277 (1)(e), Florida Statutes, related to the obtaining of a license by fraud or material misrepresentation of fact, and subjects the Respondent to the discipline imposed by Section 455.227(1), Florida Statutes, and Section 476.214(1), Florida Statutes.

    
    

15. The violations set forth in Counts 1 and 2 relate to her barbershop registration and her individual barber's license.

RECOMMENDATION

Upon the consideration of the facts found and the conclusions of law reached, it is RECOMMENDED that a Final Order be entered which revokes the barbershop registration No. BS 00078887 issued in the name of Paula Thigpen, imposes a civil penalty in the amount of $500 pursuant to Section 476.204, Florida Statutes, and declines the imposition of further penalties as might be allowed by Section 476.214(1), Florida Statutes, and Section 455.227(1), Florida Statutes.

DONE AND ENTERED this 10th day of October 1984 in Tallahassee, Florida.

CHARLES C. ADAMS

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 10th day of October 1984.

COPIES FURNISHED:

Theodore R. Gay, Esquire Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

L. J. Arnold, III, Esquire Post Office Drawer "D"

Green Cove Springs, Florida 32043

Myrtle Aase, Executive Director Barber's 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: 84-002023

Orders for Case No: 84-002023