Judges: MARY CLARK
Agency: Department of Business and Professional Regulation
Latest Update: Mar. 29, 1988
Summary: The issue for resolution is whether Respondent committed the alleged violation, and, if so, what disciplinary action is appropriate.Hair salon owner found with an employee whose license had expired. Fined $200.
87-5563STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BARBER BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 87-5563
)
HAIR STUDIO 2000, )
)
Respondent. )
)
RECOMMENDED ORDER
Final hearing in the above-styled action was held on February 24, 1988, in Orlando, Florida, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.
The parties were represented as follows:
For Petitioner: Charles F. Tunnicliff, Esquire
Department of Professional Regulations
130 North Monroe Street Tallahassee, Florida 32399-0750
For Respondent: Frank Badalucco
Hair Studio 2000
955 West Lancaster Road Orlando, Florida 32808
BACKGROUND AND PROCEDURAL MATTERS
Petitioner's Administrative complaint dated November 24, 1987, charges that Respondent violated Chapter 476, F.S., by employing an individual who did not hold a current license. Respondent requested a formal hearing on the charge.
At the hearing, Petitioner presented the testimony of a single witness and three exhibits. Respondent testified in his own behalf and presented two exhibits, one of which was withdrawn after the hearing, as it was a duplicate.
No transcript was filed, nor did either party submit proposed orders.
ISSUE
The issue for resolution is whether Respondent committed the alleged violation, and, if so, what disciplinary action is appropriate.
FINDINGS OF FACT
Frank Badalucco is Vice-president and Resident Agent of Fashions Corporation of America, Inc., the corporate owner of Hair Studio 2000. Mr. Badalucco also manages the studio, located in Orlando, Florida.
The facility is licensed as a barbershop under license number BS- 0009172, issued on September 29, 1986.
Fashions Corporation purchased the facility on or about September 15, 1986, from Kathy Wawrizniak. Shortly after the purchase, Frank Badalucco checked the employees to make certain they were properly licensed.
Mabel Marin, one of the employees, told him that her purse had been stolen in December 1985, and that her license was lost. She had a number which she said was her current license number.
Mr. Badalucco told her to take care of getting a duplicate.
On August 6, 1987, Valerie Flowers, an inspector for the Department of Professional Regulation, inspected Hair Studio 2000.
Mabel Marin was styling a patron's hair at a station in the shop. She did not have a license posted at her station, but had a paper with a license number on it. Ms. Marin told the inspector that it was her number and that her license was current. She also said that she had lost her license, but that she was given this number over the telephone.
It is not the policy of the Department to give license numbers over the telephone. When Inspector Flowers checked the records, she found that the number Ms. Marin had posted was actually a number belonging to another licensee in Sunrise, Florida.
Ms. Flowers verified that Mabel Marin had an inactive license.
Ms. Marin insisted that she had renewed her license on time, but that it was not sent to her. She claimed to have a money order to prove this.
Badalucco told Ms. Marin to get the money order and take it to Ms. Flowers office.
Although she made several appointments by telephone, Mabel Marin never brought in her license or proof of application.
At the hearing, Frank Badalucco produced a copy of Ms. Marin's money order in the amount of $70.00, made to the State Board of Cosmetology, and dated January 14, 1986.
He also had a copy of Ms. Marin's license, showing an expiration date, June 30, 1988.
He said that when they checked, they found that the money order had never been cashed. After the inspector filed her complaint, Ms. Marin sent another money order and received her license.
It is apparent that Ms. Marin may have attempted to obtain a duplicate license after her purse was stolen. She never followed through, however, and
the license was not renewed until after the violation was cited by Valerie Flowers. In the meantime, that license had expired and reverted to inactive status on July 1, 1986.
The license was reactivated by payment of a regular renewal fee of $20.00 and reactivation fee of $50.00 on August 26, 1987.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Section 120.57(1) F.S. and 455.225(4) F.S.
The sections of Chapter 476 F.S. which Respondent is charged with violating, provide as follows:
476.194 Prohibited acts.--
(1) It is unlawful for any person to:
* * *
(c) Hire or employ any person to
engage in the practice of barbering unless such person holds a valid license as a barber.
* * *
(e) Own, operate, maintain, open, establish, conduct, or have charge of, either alone or with another person or persons, a barbershop:
* * *
2. In which a person not licensed as a barber is permitted to perform services.
476.204 Penalties.--
It is unlawful for any person to:
* * *
(h) violate any provision of Section 476.194, Section 476.214, or Section 455.227(1).
* * *
Any person who violates any
provision of this section shall be subject to one or more of the following penalties, as determined by the board:
Revocation or suspension of any license or registration issued pursuant to this chapter.
Issuance of a reprimand or censure.
Imposition of an administrative fine not to exceed $500 for each count or separate offense.
Placement on probation for a period of time and subject to such reasonable conditions ad the board may specify.
Refusal to certify to the department an applicant for licensure.
It is uncontroverted that Respondent permitted Ms. Marin to be employed and perform services without a valid current license. Mr. Badalucco's primary defense was that he acquired the violation when he acquired the facility.
It was, nonetheless, his responsibility to determine that his employee was properly licensed.
Lack of severity, lack of actual damage and lack of evidence of prior violations serve as mitigating factors in this case. See Rule 21C-21.0002, F.A.C.
RECOMMENDATION
It is, therefore, RECOMMENDED:
That Respondent be found guilty of the violations, as charged and be required to pay an administrative fine of $200.00.
DONE and RECOMMENDED this 29th day of March, 1988, in Tallahassee, Florida.
MARY CLARK
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 March, 1988.
COPIES FURNISHED:
Charles F. Tunnicliff, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Frank Badalucco Hair Studio 2000
955 West Lancaster Road Orlando, Florida 32809
Myrtle Aase, Executive Director Board of Barbers
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
William O'Neil, Esquire General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION
BARBERS' BOARD
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
vs. CASE NO. 0088521
DOAH CASE NO. 87-5563
HAIR STUDIO 2000,
License No. BS 0009172
Respondent.
/
FINAL ORDER
THIS MATTER came before the Barbers' Board pursuant to Section 120.57(1)(b)(9), Florida Statutes, on May 30, 1988, in Key West, Florida for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference) issued by the hearing officer in the above styled case. The Petitioner was represented by Ronald Jones. The Respondent was duly notified of the hearing and was not present.
Upon consideration of the hearing officer's Recommended Order, and the arguments of the parties and after a review of the complete record in this matter, the Board makes the following findings:
FINDINGS OF FACT
The hearing officer's findings of fact are hereby approved and adopted in toto.
There is competent, substantial evidence to support the hearing officer's findings of fact.
CONCLUSIONS OF LAW
The Board has jurisdiction over this matter pursuant to the provisions of Section 120.57(1), and Chapter 476, Florida Statutes.
The hearing officer's conclusions of law, are hereby approved and adopted in toto.
Respondent is guilty of violating Section 476.194, Florida Statutes.
There is competent substantial evidence to support the Board's findings and conclusions.
WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:
Respondent shall pay an administrative fine in the amount of two hundred dollars ($200) to the Florida Barbers' Board. Said fine shall be paid within thirty (30) days.
To assure payment of the fine, it is further ordered that all of Respondent's licensure to practice barbering shall be suspended with the imposition of the suspension being stayed for thirty (30) days. If the ordered fine is paid within that thirty (30) day period, the suspension imposed shall not take effect. Upon payment of the fine after the thirty (30) days, the suspension imposed shall be lifted. If the licensee does not pay the fine within said period, then immediately upon expiration of the stay, he shall surrender all licenses issued within the purview of the Barbers' Board to the investigator of the Department of Professional Regulation or shall mail same to the Board offices.
Pursuant to Section 120.59, Florida Statutes, the Parties are hereby notified that they may appeal this Order by filing one copy of a Notice of Appeal with the Clerk of the Department of Professional Regulation, 130 N. Monroe Street, Tallahassee, Florida 32301, and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty
(30) days of the effective date of this Order.
This Order shall become effective upon filing with the Clerk of the Department of Professional Regulation.
DONE AND ORDERED this 29th day of July, 1988.
Barbers' Board
Myrtle Aase, Executive Director
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by certified mail to Hair Studio 2000, 955 best Lancaster Road, Orlando, Florida 32809, and by hand delivery/United States mail to the Board Clerk, Department of Professional Regulation and its Counsel, 130 North Monroe Street, Tallahassee, Florida 32301, on or before 5:00 p.m., this 29th day of July, 1988.
Docket for Case No: 87-005563
Orders for Case No: 87-005563
