STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

v. ) CASE NO. 85-2270

) ROSANNE M. GONZALES d/b/a ) TAMARAC BARBER SHOP, )

)

Respondent. )

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

)

Petitioner, )

)

v. ) CASE NO. 85-2271

) GERONIMO NAVARRO GONZALES ) a/k/a JUAN NAVARRO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above cases before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on October 8, 1985, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Theodore R. Gay, Esquire

Southeast Financial Center

200 South Biscayne Boulevard, Suite 4310 Miami, Florida 33131-2355

For Respondents: Stephen R. Jacob, Esquire

800 Northwest Cypress Creek Road Suite 502

Fort Lauderdale, Florida 33309

BACKGROUND

By administrative complaint filed on June 5, 1985, petitioner, Department of Professional Regulation, Florida Barbers' Board, has charged that respondent, Rosanne M. Gonzales d/b/a Tamarac Barber Shop, a licensed barbershop, had violated certain provisions within Chapter 476, Florida Statutes. In brief, it is alleged that respondent, who operated a barbershop in Tamarac, Florida, had employed an unlicensed individual to practice barbering in her shop since approximately May, 1983.

Petitioner alleges that this violates Subsection 476.194(3), Florida Statutes, which prohibits the employment of a person to practice barbering without a license, and Subsection 476.241(1) (c), Florida Statutes, which makes it unlawful to violate any provision in Section 476.194, Florida Statutes. This complaint was assigned Case No. 85-2270. By administrative complaint filed on June 5, 1985, petitioner has also charged respondent, Geronimo Navarro Gonzales, with violating Subsections 476.194(1) and 476.214(1)(c), Florida Statutes, by practicing barbering since May, 1983 without a current active license. This complaint was assigned Case No. 85-2271.

Respondents disputed the allegations and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. The matters were referred by petitioner to the Division of Administrative Hearings on July 8, 1985, with a request that a Hearing Officer be assigned to conduct a hearing. By notice of hearing dated August 9, 1985, a consolidated final hearing in the two matters was scheduled on October 8, 1985 in Fort Lauderdale, Florida.

At final hearing, petitioner presented the testimony of Lucille Markowitz, an agency investigator, and Bryant M. Sharp, an agency investigative manager, and offered petitioner's Exhibits 1 through 10. All were received in evidence.

Respondents testified on their own behalf and presented the testimony of John H. Dudley, a friend of Geronimo Gonzales.

The transcript of hearing was filed on October 23, 1985. Proposed findings of fact and conclusions of law were filed by petitioner and respondent on November 4 and 7, 1985, respectively. A ruling on each proposed finding of fact has been made in the Appendix attached to this Recommended Order.

The issue herein is whether respondents should be disciplined for the alleged violations set forth in the two administrative complaints.

Based on all of the evidence, the following facts are determined:

FINDINGS OF FACT

1. Respondent, Rosanne M. Gonzales (Rosanne), is the holder of License Number BS 0007763 issued by petitioner, Department of Professional Regulation, Florida Barbers' Board. She operates a barbershop under the trade name "Tamarac Barber Shop" at 7403 Northwest 57th Street, Tamarac, Florida. Respondent, Geronimo Navarro Gonzales (Geronimo), is the husband of Rosanne, and practices barbering at the Tamarac Barber Shop.

   
   

2. Responding to a complaint filed by a former employee of Tamarac Barber Shop, an investigator visited that shop on November 27, 1984. The investigator found Geronimo cutting a customer's hair. When asked to produce his license, Geronimo handed the investigator a license reflecting the name "Juan Navarro" and License Number BB 0020347. The license also contained Geronimo and Rosanne's current home address in Plantation, Florida. When asked why the name on the license did not match his own name, Geronimo replied that he had been using the name "Juan Navarro" on the license to avoid detection by his former wife. The photograph on the license did not appear to be Geronimo, but Rosanne initially claimed Geronimo had been very ill and had lost a great deal of weight. Geronimo later explained that he had taken the barber examination in 1970 under the assumed name of Juan Navarro and had held the license for some fifteen years in that name. However, Geronimo acknowledged he had never had his name legally changed to Juan Navarro.

   
   

3. An examination of agency records in Tallahassee revealed that a Juan Navarro was indeed issued barber license number BB 0020347 in June, 1970. According to the application, that individual was born in Cuba on September 9, 1936. When Geronimo produced a birth certificate and driver's license reflecting he was born on June 11, 1937 in Puerto Rico, it prompted further investigation by the Board, and resulted in the issuance of these complaints.

   
   

4. According to Geronimo, he has been a barber for some thirty years. He originally barbered in New York State where he had a license, and then moved to Florida approximately fifteen or more years ago. At that time, he had just divorced his former wife, and was attempting to evade her detection. Because of this, he applied for licensure with the Barbers' Board using the name "Juan Navarro." He stated he took the barbers' practical and written examination (in Spanish) in April, 1970 in Jacksonville under this assumed name and received a passing grade. His visit to Jacksonville was corroborated by a friend

   who accompanied him to the test. He also claimed the Board mailed him a license in June, 1970, and that he has been paying the license renewal fees since that time. Although during the investigative stage the Gonzales denied sending the Board a letter advising that Juan Navarro now resided at the same address in Plantation as did the Gonzales, Rosanne acknowledged at final hearing that she had done so on behalf of her husband.

   
   

5. The Board's official records show that only one Juan Navarro has ever been issued a license, and it is the one in the possession of Geronimo. When Geronimo reviewed the records at final hearing, he stated the person in the photograph attached to Juan Navarro's original application was not he and the signature on the application was not his own. Geronimo also stated that the copy of the New York license contained in his records was his old license from New York State, but that the man in the photograph attached thereto was a different person. Board investigators have never learned the identity or whereabouts of the man whose picture is on license number BB 0020347, or the Juan Navarro who prepared the original application for licensure.

   
   

6. Rosanne testified her husband presented a license before he began barbering in her shop in May, 1983, and she relied upon this as a condition to hiring him. She indicated he is an indispensable asset to her business, and expressed a desire that he be allowed to continue in the barbering profession.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

8. Subsection 476.214(1)(c), Florida Statutes, authorizes the Board to discipline a licensee for the following reason:

   
   

   1. Commission of any of the offenses described in s .476.194.

      
      

      Subsections 476.194(1) and (3), Florida Statutes, make it unlawful for any person to:

      
      

      1. Engage in the practice of barbering without a license as a barber or barber's

         assistant issued pursuant to the provisions of this act by the department.

         
         

         * * *

         
         

         (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.

         
         

         It is alleged in Case No. 85-2270 that Rosanne violated Subsection 476.214(1)(c) by hiring and using an unlicensed person (her husband) as proscribed by Subsection 476.194(3). The complaint in Case No. 85-2271 alleges that Geronimo violated Subsection 476.194(1) by engaging in the practice of barbering without a license.

         
         

9. Initially, it is noted that the prohibited acts enumerated in Section 476.194 apply to any person (rather than just licensees), and under Section 476.204 the Board is empowered to impose up to a $500.00 civil penalty on any person who violates the provisions of Section 476.194. Therefore, an action may lie against Geronimo irrespective of whether he holds a valid license.

10 The evidence discloses that while Geronimo physically possesses a current barber's license, it is not in his legal name, and the application for that license was made by a different individual whose whereabouts are now unknown. In order to hold a valid license, one must possess a license "issued pursuant to the provisions of this act." This requires that such a license not be obtained "by fraudulent misrepresentations." See Subsection 476.194(4), F.S. Though Geronimo's original intentions are not clear, at best he secured the license improperly by using a fictitious name, and at worst he obtained it through fraudulent means. Accordingly, the license he now possesses was not issued pursuant to the provisions of Chapter 476, and he is guilty of violating Subsection 476.194(1), Florida Statutes, by engaging in the practice of barbering without a license.1 Similarly, Rosanne is guilty of violating Subsection 476.214(1)(c), Florida Statutes, by committing an offense described in Section 476.194, namely, hiring a person who does not hold a "valid" license.

1. In its proposed order petitioner suggests a $500.00 civil penalty be imposed upon each respondent. However, since Rosanne relied upon Geronimo's supposedly valid license as a

   condition to his employment, a reprimand is more appropriate for Rosanne.

   
   

2. Finally, Geromino is not authorized to engage in his livelihood until he obtains a valid license. Through somewhat bizarre and unexplained circumstances he physically possesses the license of another person and has apparently done so for many years without complaint. In this regard, he may attempt to pursue a change of name on license number BB 0020347 if the Board has authority to do so, or to have a new license issued after satisfying all statutory criteria. Short of this, he has no valid license by which to continue his profession at this time.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that both respondents be found guilty as charged in the administrative complaints, that Tamarac Barber Shop be given a public reprimand, and that Geronimo Navarro Gonzales be assessed a $500.00 civil penalty.

DONE and ORDERED this 19th day of November, 1985, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, FL 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1985.

COPIES FURNISHED:

Theodore R. Gay, Esq.

Suite 4310, Southeast Financial Center

200 S. Biscayne Blvd.

Miami, FL 33131-2355

Stephen R. Jacob, Esq.

800 N.W. Cypress Creek Rd., Suite 502C Ft. Lauderdale, FL 33309

ENDNOTE

1/ Geronimo could not have violated Section 476.214 as charged in the complaint, since that section deals exclusively with licensees, and not with the broad category of "persons."

APPENDIX

Petitioner:

1. Proposed findings of fact 1-7 have been substantially adopted in this Recommended Order.

Respondents:

1. Proposed finding 1 has been substantially adopted. However, the last sentence has been rejected as being contrary to the weight of the evidence.

2. Proposed findings 2-5 have been substantially adopted in this Recommended Order.

Docket for Case No: 85-002270

Orders for Case No: 85-002270