STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF BARBERS, )

)

Petitioner, )

)

vs. ) CASE NO. 86-3678

)

DONALD H. KIRKBY, )

d/b/a/ MR. K'S GROOM ROOM, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, W. Matthew Stevenson, held a formal hearing in this cause on November 10, 1986, in West Palm Beach, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Lisa M. Bassett, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Donald H. Kirkby, pro se

88 East Blue Heron Boulevard Riviera Beach, Florida 33404

The issue for determination at the final hearing was whether the Respondent committed various violations of the "Barber's Act," Chapter 476, Florida Statutes, as alleged in the Administrative Complaint.

PROCEDURAL BACKGROUND

By Administrative Complaint dated July 21, 1986, the Petitioner charged that Respondent violated the sanitation rules of the Barber's Board as contained in Chapter 21C-22, Florida Administrative Code, and Section 476.194(2), Florida Statutes. The Respondent disputed the allegations of fact contained in the Administrative Complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes, before a Hearing Officer appointed by the Division of Administrative Hearings.

At the final hearing, the Petitioner presented the testimony of one witness. In addition, Petitioner's Exhibits 1 through 6 were duly offered and admitted into evidence. The Respondent testified in his own behalf and presented the testimony of one additional witness. The Respondent's Exhibits 1(a), (d), (e), (f), (g) and 2 were duly offered and admitted into evidence.

The Petitioner submitted posthearing Proposed Findings of Fact. A ruling has been made on each Proposed Finding of Fact in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact:

1. The Respondent, Donald H. Kirkby, is and has been at all times material hereto, a licensed barber in the State of Florida, having been issued License No. BB0018162 on September 16, 1965.

   
   

2. The Respondent is and has been at all times material hereto, licensed to operate a barber shop in the State of Florida, having been issued License No. BS0006701.

   
   

3. The Respondent owns and operates a barber shop which operates under the trade name, Mr. K's Groom Room, located at 88 East Blue Heron Boulevard, Riviera Beach, Florida.

   
   

4. On April 27, 1984, Jean Robinson, an inspector for DPR, visited Mr. K's Groom Room for the purpose of performing an inspection. During the inspection, Ms. Robinson noted several conditions which she believed to be sanitation violations. Because there had been an organizational change in the manner in which barber shops were inspected, and because barber shops went uninspected for a period of approximately three years, Ms. Robinson chose not to note the violations on a departmental inspection form but explained the Barber Board sanitation rules and requirements to the Respondent, left Respondent a copy of the sanitation rules and instructed Respondent to post the rules.

   
   

5. On April 17, 1985, Ms. Robinson once again visited Mr. K's Groom Room for the purpose of performing an inspection.

   
   

6. During the inspection, Ms. Robinson noticed several deficiencies and violations. At the conclusion of her inspection, Ms. Robinson completed an "inspection form" wherein she specified the deficiencies and violations which she noticed. Ms. Robinson indicated that on the form that implements were being used from one patron to another without hair being removed, improper implement sanitation procedures were used and current rules of sanitation were not properly posted for the public. Both Ms. Robinson and the Respondent signed the inspection form.

   
   

7. On February 18, 1986, Ms. Robinson returned to Mr. K's Groom Room to conduct a reinspection. While there, Ms. Robinson noticed that proper implement sanitation procedures were not being used. In particular, Ms. Robinson observed Paul Poma, one of Respondent's barber employees, use hair cutting implements on a customer that he had used on a previous customer without cleaning or sanitizing them in any way. Although Mr. Poma had an ultraviolet ray sanitizing device at his station, it was not being used. When Ms. Robinson inspected the sterilizer by flicking the on/off switch, the machine did not come on, even though the electrical plug was properly placed in the wall socket.

   
   

8. Ms. Robinson further observed the Respondent use hair cutting implements on a new customer that he had used on a previous customer without sanitizing or cleaning the implements.

9. During the inspection, Ms. Robinson looked around for the licenses, but could not find them. When Ms. Robinson asked Respondent where the licenses were, he pointed to a table in the corner of the shop. Ms. Robinson went over to the table but still did not see the licenses. The Respondent then went over to the table moved some magazines and telephone books around and pointed to the licenses, which were beneath a glass covered tabletop.

   
   

10. Ms. Robinson looked around for the sanitation rules and noticed that they were posted on a wall but were partially obstructed from public view by other papers and announcements which were posted adjacent to them.

    
    

11. At the conclusion of her inspection, Ms. Robinson completed another inspection form listing the violations and deficiencies observed.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to these proceedings pursuant to Section 120.57(1), Florida Statutes.

    
    

13. The Petitioner is the State agency charged with the regulation of barbers in the State of Florida. Section 476.024, Florida Statutes (1983) aptly states that:

    
    

    "The Legislature recognizes that barbering is potentially dangerous to the public in that barbers work in close proximity to patrons, thus risking transmission of disease and vermin, apply various caustic chemical agents to the hair and scalp of patrons, and employ instruments which could harm patrons if improperly used. Therefore it is deemed necessary in the interest of public health, safety, and welfare to regulate the practice of barbering in this State."

    
    

14. Rule Chapter 21C-22, Florida Administrative Code, establishes and codifies the sanitation rules of the Barber's Board. The pertinent rules applicable to this case are as follows: 1. Rule 21C-22.01, F.A.C.:

    
    

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

(b) Provisions for safe and unobstructed human passage into the premises; removal of garbage and refuse;

* * *

(e) 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

* * *

(8) All equipment used in barber shops, 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 cuaternary ammonia compound or equivalent for one to five minutes, or

2. Placed in an ultraviolet ray sterilizing cabinet bactericidal 25368 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 two percent carbolic acid solution, or its equivalent.

* * *

2. Chapter 21C-22.02:

22C-22.02 Posting of sanitation, health and safety rules required. The owner or manager of every barber shop shall keep a copy of the rules of sanitation, health and safety adopted by the board posted in a conspicuous place in each barber shop for the information and guidance of the persons employed therein and the public generally.

In addition, Section 476.184(3), Florida Statutes, provides that: "Each barber shop shall display, in a

conspicuous place, the barber shop

registration certificate and each individual licensee's certificate.

" Section 476.194(2), Florida Statutes (1983) provides that it is unlawful for any person to engage in willful or repeated violations of Chapter 476 or of any of the rules adopted by the Board.

The Administrative Complaint charges that:

"The Respondent had not met the sanitation standards required by law and that the Respondent had not kept said requirements in full force in that the following violations were observed: 1) Implements being used from one patron to the next without hair being removed; 2) Improper sanitation procedures;

3) One station used no sanitation procedures at all; 4) Current sanitation rules not posted; 5) Shop and personal licenses not properly displayed."

As discussed in the Findings of Fact herein, the factual allegations alleged in the Administrative Complaint were established by clear and convincing evidence. Therefore, the Respondent is guilty of a violation of Section 476.194(2), Florida Statutes (1983)(now codified at Section 476.194(1)(b) , Florida Statutes (1985)).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is:

RECOMMENDED that the Respondent's license be placed on probation for a period of six (6) months and that an administrative fine of $500 be assessed.

DONE and ORDERED this 29th day of December, 1986 in Tallahassee, Florida.

W. MATTHEW STEVENSON 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 29th day of December, 1986.

APPENDIX TO RECOMMENDED ORDER

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. Adopted in Findings of Fact 1 and 2. 2. Adopted in substance in Findings of Fact 4, 5 and 7. 3. Adopted in substance in Findings of Fact 4. 4. Adopted in substance in Findings of Fact 4. 5. Adopted in substance in Findings of Fact 6. 6. Adopted in substance in Findings of Fact 6.

1. Adopted in substance in Findings of Fact 7.

2. Partially adopted in Findings of Fact 7, 8, 9, 10 and 11. Although Ms. Robinson observed a great deal of hair on the floor,

   that point was not alleged in the Administrative Complaint.

3. Adopted in substances in Finding of Fact 7.

4. Adopted in substance in Finding of Fact 7.

5. Rejected as subordinate.

6. Rejected as subordinate.

7. Rejected as subordinate.

8. Rejected as a recitation of testimony.

9. Rejected as a recitation of testimony.

10. Adopted in substance in Finding of Fact 6.

COPIES FURNISHED:

Lisa M. Bassett, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Donald H. Kirkby

88 East Blue Heron Boulevard Riviera Beach, Florida 33404

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Wings S. Benton, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Myrtle Aase, Executive Director Barbers Board

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 86-003678

Orders for Case No: 86-003678