STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BARBERS' BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 86-3758

)

DAVID R. YOUNG, )

d/b/a MY BARBER SHOP, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on November 12, 1986, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Lisa M. Bassett, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: David R. Young, pro se

187 Tequesta Drive Tequesta, Florida 33469

BACKGROUND

By administrative complaint filed on June 4, 1986, petitioner, Department of Professional Regulation, Barbers' Board, has charged that respondent, David

1. Young, d/b/a My Barber Shop, had violated Rules 21C-22.01(1)(e) and (8), Florida Administrative Code, and Subsection 476.194(2), Florida Statutes (1985). Generally, petitioner has alleged that on July 11, 1985 and February 12, 1986, its inspector found that implements were not cleaned after use on each customer, implements were not stored in covered, sanitized areas, and ultra-violet lights were not being used correctly to effect sanitation.

   
   

   Respondent disputed the allegations and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes (1985). The matter was referred to the Division of Administrative Hearing by petitioner on September 24, 1986, with a request that a Hearing Officer be assigned to conduct a final hearing. By notice of hearing dated October 15, 1986, the final hearing was scheduled for October 31, 1986, in West Palm Beach, Florida. At the request of petitioner, the matter was rescheduled to November 12, 1986, at the same location.

   
   

   At final hearing, petitioner presented the testimony of Jean Robinson, an agency inspector, and offered petitioner's exhibits 1-6. All were received into

   evidence. Respondent testified on his own behalf and offered respondent's exhibits 1 and 2. Both were received into evidence.

   
   

   The transcript of hearing was filed on December 4, 1986. Proposed findings of fact and conclusions of law were filed by petitioner on December 15, 1986. A ruling on each proposed finding of fact has been made in the Appendix attached to this order.

   
   

   At issue is whether respondent's barbershop license should be disciplined for the alleged violations set forth in the administrative complaint.

   
   

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

   
   

   FINDINGS OF FACT

   
   

   1. At all times relevant hereto, respondent, Daniel R. Young, operated My Barber Shop at 17 Tequesta Drive, Tequesta, Florida. Young was issued barbershop license number BS 0006466 by petitioner, Department of Professional Regulation, Florida Barbers' Board, in 1978, and has operated the shop continuously since that time.

      
      

   2. Petitioner is required to conduct annual inspections of barber shops to ensure that such barber shops are in compliance with applicable sanitation regulations, and that services are being provided by licensed personnel. Accordingly, an agency inspector (J. Robinson) visited respondent's shop on July 11, 1985 and February 12, 1986, for the purpose of conducting a routine annual inspection. An inspection report from each visit has been received into evidence as petitioner's exhibits 5 and 6.

      
      

   3. Agency regulations (Rule 21C-22.01, F.A.C.) require that implements used by a barber in cutting hair, such as combs, brushes, razors and scissors, be washed or cleaned, wiped free of hair, and then sanitized before being used on another customer. This requires first washing the implement in a detergent or wiping it with alcohol, and then sanitizing the same under one of several methods prescribed in the rule. These methods include the use of formaldehyde tablets, a quarternary ammonia solution (barbicide), and an ultra-violet light. After being sanitized, the implements must be placed and kept in a "clean, closed cabinet until next ready for use". A closed cabinet is one that is shut tightly on all four sides so that the implements inside are protected from hair that has been cut.

      
      

   4. If an ultra-violet light is used, Subsection (8)(b) of the same agency rule, requires that the implements be sanitized in the following manner:

      
      

      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.

      
      

      However, subsection (8)(c) provides the following alternative:

      
      

      (c) Cleansed and prepared for use by any other method that shall be the equivalent in

      germicidal or organism destructive effort, as provided in subsection (8)(a) above.

      
      

   5. During the course of Robinson's inspection on July 11, 1985, she cited respondent for three violations of agency rules. These included (a) "implements not cleaned after use on each customer", (b) "implements not stored in covered, sanitized area", and (c) "ultra-violet light not being used correctly to effect sanitation". After the inspection was completed, Robinson met with respondent a few weeks later to discuss the violations. a repeat inspection was conducted by Robinson on February 12, 1986. She found the previously cited violations uncorrected. The issuance of an administrative complaint followed.

      
      

   6. At the time of the inspections, respondent's shop had five stations (chairs). There were a total of three wells in the counter which was located behind the chairs. Each well was shaped in a square design approximately 18" to 20" by 18" to 20" and was eight inches deep. At the top of the rear ledge (lip) of the two wells were ultra-violet lights covered with a shade. A photographic depiction of the same is found in petitioner's exhibit 3. One well had no

      ultra-violet light. While observing the employees, Robinson noted that after cutting a customer's hair, they were not first wiped clean with alcohol. The employees were then placing the used implements at the front of the well, or almost a foot away from the ultra-violet light. According to the inspector, this distance, when coupled with the fact that the lights had shades over them, was too far from the light's rays to permit adequate sanitation. This opinion was based upon a telephone conversation with a product specialist for North American Lighting. It was further based upon the supposition that Young used a type A light as referred to in the rule. Since the wells were not covered, hair from the customer then receiving a haircut was dropping into the well where the implements were being sanitized. One employee (S. Littleford) had no ultra- violet light at her station, and was supposed to be using a barbicide in lieu of a light to sterilize her implements. However, she did not sanitize her cutting implements in any manner between customers.

      
      

   7. Respondent attributed the violations to a "misinterpretation of rules and regulations". He pointed out that he has had the same type of equipment for ten years and has never before been cited for a violation. Young uses a type C ultra-violet light which is permissible under the agency rule so long as it "is the equivalent in germicidal or organism destructive effect" as is provided in subsection (8)(a) of the rule. Young contends the type C light is superior to the bactericidal type A light referred to in the rule, and that a proper amount of light was emitted to sanitize the implements even though they were placed almost a foot away from the covered light. This contention was based upon a telephone conversation with a technical support employee of General Electric Company, and technical literature forwarded by that person to Young. Respondent has subsequently removed the shades and repositioned the ultra-violet lights in the wells so that they are closer to the front.

      
      

      CONCLUSIONS OF LAW

      
      

   8. The Division of administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1985).

      
      

   9. Respondent is charged with violating Rule 21C- 22.01(1) and (8), Florida Administrative Code, in three respects. That rule reads in relevant part as follows:

      1. 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:

         * * *

         (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;

         * * *

         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 radia- tion 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.

         * * *

         
         

         First, Young is charged with violating Rule 21C-22.01(1)(e) by having failed to maintain all barbering equipment in a safe and sanitary condition. Next, he is charged with violating subsection (8)(b) by having failed to place all cutting implements under an ultra-violet light in a proper manner for such time as is necessary to sanitize them. Finally, he is charged with violating subsection (8)(d) by failing to place certain cutting implements in a "clean, closed cabinet" after sanitation. Petitioner also contends that the foregoing violations constitute a violation of Subsection 476.194(1)(b), Florida Statutes (1985), which proscribes a licensee from engaging in "willful or repeated violations... of any of the rules adopted by the board".

         
         

   10. The evidence clearly and convincingly demonstrates that Young has violated Rule 21C-22.01(8)(d) by failing to place razors, scissors and combs in a "clean, closed cabinet" after being sanitized. Young's argument that his three-sided wells conform to this requirement is unavailing since the plain thrust of the rule is that they be "closed". By contravening this requirement, Young has also violated Rule 21C-22.01(1)(e) which requires that barbering services be performed "in a safe and sanitary condition". Finally, the testimony is sharply in dispute as to whether Young's type C ultra-violet light

       was an acceptable "equivalent" method of sanitizing the implements. Since neither Robinson or Young was an expert in this technical area, and both relied on hearsay declarations to support their contentions, it is concluded that there is insufficient evidence of record to support the charge that Young was not sanitizing implements in a proper manner. Therefore, this portion of the charges must fail. Since the foregoing does not equate to a "willful or repeated violation of ... rules adopted by the board" within the meaning of Subsection 476.194(1)(b), this charge must also fail.

       
       

   11. Given the nature of the violations, and respondent's heretofore unblemished record, a $500 administrative fine is appropriate.

RECOMMENDATION

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

That respondent be found guilty of violating Rule 21C- 22.01(1)(e) and (8)(d), Florida Administrative Code, and that he be fined $500, to be paid within thirty days after a Final Order is rendered in this proceeding. The remaining charge should be dismissed.

DONE AND ORDERED this 18th day of December, 1986, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 18th day of December, 1986.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2581

Petitioner:

1. Covered in finding of fact 1.

2. Covered in finding of fact 2.

3. Covered in finding of fact 5.

4. Covered in finding of fact 3.

5. Partially covered in finding of fact 6. The remainder has been rejected as being irrelevant since Robinson did not testify that implements were piled-up, or scissor blades unexposed, or the implements were not turned over.

6. Covered in finding of fact 6.

7. Rejected as being unnecessary.

8. Covered in finding of fact 6.

9. Covered in finding of fact 6.

10. Covered in finding of fact 5.

11. Rejected as being unnecessary.

12. Rejected as being hearsay.

13. Rejected as being irrelevant.

14. Rejected as being irrelevant.

15. Covered in finding of fact 6.

16. Covered in finding of fact 3.

17. Covered in finding of fact 7.

18. Rejected as being unnecessary.

19. Covered in finding of fact 7.

20. Covered in finding of fact 7.

COPIES FURNISHED:

Lisa M. Bassett, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

David R. Young

187 Tequesta Drive Tequesta, Florida 33469

Myrtle Aase, Executive Director Florida Barbers' Board

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 86-003758

Orders for Case No: 86-003758