STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BARBERS BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 88-2759

)

HERBERT HERNANDEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing in the above-styled case on September 8, 1989, in Belle Glade, Florida.

APPEARANCES

For Petitioner: Cynthia Gelmine, Esquire

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Calvin C. Campbell,

Qualified Representative Glades Correctional Institute

500 Orange Avenue Circle, B123 Belle Glades, Florida 33430-5222

STATEMENT OF THE ISSUES

Whether Respondent's license as a barber in the State of Florida should be suspended, revoked, or otherwise disciplined for alleged violations of Chapter 476, Florida Statutes, as set forth in the Administrative Complaint dated November 13, 1987.

PRELIMINARY STATEMENT

In an Amended Administrative Complaint dated November 13, 1987, the Petitioner, Department of Professional Regulation (hereinafter the Department), charged Respondent, Herbert Hernandez (hereinafter Hernandez), with a series of violations of Chapter 476, Florida Statutes. Essentially, the Respondent is charged with having sexually molested four children either within his barbershop or in the bedroom of his residence attached to his barbershop. It is alleged that these acts enable the Barbers Board to take action against a licensee for gross incompetency or gross malpractice in the practice of barbering. In addition, it is alleged that the Respondent's convictions on two counts of sexual battery on one of the children enable the Barbers' Board to take action

against Respondent's license because the felonies relate to the practice of his profession.

The Respondent disputed the allegations set forth in the Amended Complaint and timely requested a formal administrative hearing.

During the hearing, the Petitioner submitted eight exhibits. The testimony of one witness was presented through deposition. The Respondent called two witnesses and filed three exhibits. All of the documents were admitted into evidence.

The transcript of the hearing was filed on September 25, 1989. Proposed findings of fact and conclusions of law were timely filed by the parties.

Rulings on the proposed findings of fact are in the Appendix of the Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with licensing barbers, regulating licensure status, and enforcing the practice standards of licensed barbers within the powers granted by the Legislature in Chapter 476, Florida Statutes.

   
   

2. At all times material to these proceedings, the Respondent Hernandez was a licensed barber in Florida, having been issued license number B 0013840. This license became inactive on June 19, 1987.

   
   

3. The Respondent conducted business in a barbershop named Herbie's Barbershop which was located at 5810 Park Boulevard, Pinellas Park, Florida. The business was located in the same building as the Respondent's living quarters. His residence address was 5810 Park Boulevard, Pinellas Park, Florida. Originally, the building was designed to allow the Respondent to gain entry into his living quarters through the barbershop. After a fire, which occurred in the residential portion of the building in 1983 or 1984, the Respondent was required to place a fireproof wall between the shop and his

   living quarters. Once the fireproof wall was installed, the passage through the barbershop to the Respondent's residence was removed. A separate entrance in back of the building had to be used to gain access to the residence. The fireproof wall was installed and in use just prior to November 1985.

   
   

4. D.M., a child, was employed by the Respondent in his barbershop for a period of five or six months during the year 1985. In addition to cleaning the barbershop and working the cash register, D.M. assisted in the cleaning and rehabilitation of the residence after the fire. During her employment, D.M. was fourteen years of age, just getting ready to turn fifteen. As her birthdate is November 16, 1971, a reasonable inference exists that her employment period was between June 1985 and November 16, 1985.

   
   

5. During the term of her employment, while working in the Respondent's residence, the Respondent unsuccessfully attempted to grab D.M.'s left breast. She hit him, walked away, and informed another person who was in the barbershop of Respondent's misconduct. At no time during her deposition testimony did D.M. state that the Respondent cupped her right breast with his hand, squeezed it, and asked her if he could repeat this once or twice a week.

   
   

6. On or about September 23, 1986, the Respondent was adjudicated guilty on two counts of sexual battery on a child less than twelve years of age in

   Pinellas County, Florida. The child, L.W., accused the Respondent of trying to put his finger down her vagina. The events allegedly occurred within the living quarters which were segregated and completely independent from the barbershop at the time of alleged incidents in December 1985. The child had arrived at Respondent's residence in order to obtain the address of a family that had previously resided there with the Respondent. The child's presence at Respondent's home was unrelated to Respondent's business activities.

   
   

7. When the Respondent was convicted of sexual battery on the child L.W., he pleaded nolo contendere to charges involving D.M., D.Z., and R.Y. The charges involved the improper touching of the children on their genitals in Respondent's living quarters. The pleas were made with the express reservation of the right to appeal the denial of Respondent's Motion for Discharge under the speedy trial rule. Upon appeal, the trial court's denial of the discharge was reversed and the case was remanded for discharge of the Respondent on the charges involving D.M., D.Z., and R.Y. The Respondent entered the pleas solely for the purpose of obtaining his discharge. His appeal involved the mere calculation of 175 days of incarceration without a waiver of the Speedy Trial Rule.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. In a proceeding to discipline a professional license, the Department has the burden of proof, and must prove by clear and convincing evidence that the Respondent committed the violations set forth in the Administrative Complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

10. In the Amended Administrative Complaint, the Respondent has been charged with having violated Section 476.214(1)(a), Florida Statutes, by having demonstrated gross malpractice or gross incompetency in the practice of barbering in three separate counts in a four count administrative complaint. In the fourth count, the Respondent has been charged with having violated Section 476.204(1)(h), Florida Statutes, for having been convicted of a felony which relates to the practice of his profession. All four counts involve charges against the Respondent in which he is accused of being involved in illegal activity of a sexual nature with minors.

    
    

11. Count One of the complaint alleges that the Respondent cupped the right breast of a fourteen year old female barbershop employee with his hand, squeezed it, and asked if he could repeat this once or twice a week. The evidence adduced at hearing demonstrated that the Respondent did not approach the child D.M. during the times she was actually employed in work within the barbershop. On one occasion in November 1985, the Respondent unsuccessfully attempted to grab D.M.'s left breast while she was working in the segregated living quarters belonging to the Respondent which were behind the barbershop. As this evidence is significantly different than the allegations set forth in the complaint, the charges in Count One should be dismissed for insufficient evidence. The Respondent's unsuccessful attempt to grab a fourteen year old female's breast within his living quarters does not demonstrate gross incompetency or gross malpractice in the practice of barbering.

    
    

12. Counts Two and Three allege improper touching of two minors by Respondent within his living quarters. These allegations were not proved at

    hearing, and should be dismissed for insufficient evidence. The Petitioner attempted to prove these allegations through the Respondent's admissions that he entered nolo contendere pleas to charges involving the two children D.Z. and

    R.Y. at the time of his conviction on two counts of sexual battery on the child L.W., who was less than twelve years of age. The Respondent sufficiently rebutted Petitioner's conclusion that the pleas were admissions by demonstrating that the purpose of his pleas of nolo contendere was to preserve his opportunity to obtain a discharge under the Speedy Trial Rule. The speedy trial discharge did occur when it was determined by the appellate court that the trial judge erred when he refused to discharge the Respondent on the charges. Accordingly, Counts Two and Three should also be dismissed for insufficient evidence.

    
    

13. Count Four charges the Respondent with having been found guilty of a felony by the Pinellas County Circuit Court of two counts of sexual battery on a child less than twelve years of age while she was in the Respondent's bedroom, which is attached to the barbershop. The records of the conviction were placed into evidence and Respondent admitted that the child L.W. claimed that the alleged incidents took place within his living quarters.

    
    

14. Although the Petitioner was able to prove these facts by clear and convincing evidence, it is unclear how a conviction of the felony which took place in Respondent's residence relates to the Respondent's practice of his profession under Section 476.204(1)(h), Florida Statutes. In the proposed recommended order, the Department asserts that the victim could not have had access to the Respondent's bedroom but for the barbershop. However, the testimony of D.M. and the Respondent demonstrates that the apartment had its own entrance and was separate from the barbershop. In fact, the firewall had been placed between the shop and the living quarters after the fire in the residence in 1983 or 1984. The firewall was in place in November 1985. It was the Respondent's testimony that the child L.W. came to his residence in December 1985 to obtain the address of people who had previously lived in Respondent's residence with him. Such activity does not appear to be related to the barbering profession. Accordingly, Count Four should be dismissed for failure to establish that the felony conviction related to the Respondent's practice of his profession.

RECOMMENDATION

Based upon the foregoing, it is RECOMMENDED:

That all of the charges set forth in the Amended Administrative Complaint filed November 16, 1987, be dismissed.

DONE and ENTERED this 25th day of October, 1989, in Tallahassee, Leon County, Florida.

VERONICA E. DONNELLY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1989.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-2759

Petitioner's proposed findings of fact are addressed as follows:

1. Accepted. See HO #2.

2. Accepted. See HO #3.

3. Accepted.

4. Accepted. See HO #3.

5. Rejected. See HO #3.

6. Rejected. Contrary to facts established at

   hearing through Respondent's testimony. Conjecture and improper conclusion.

7. Accepted. See HO #4.

8. Rejected. Outside the scope of the pleadings. Irrelevant.

9. Rejected. Contrary to fact. See HO #5.

10. Rejected. Outside the scope of the pleadings. Irrelevant.

11. Rejected. Outside scope of the pleadings, vague. Conclusionary. Inadmissible hearsay.

12. Accepted.

13. Accepted.

14. Accepted.

15. Rejected. Outside scope of pleadings. Irrelevant.

16. Rejected. Arrest irrelevant.

17. Accepted. See HO #6 and #7.

18. Accepted. See HO #7.

19. Accepted.

Respondent's proposed findings of fact are addressed as follows:

1. Accepted. See HO #2 and #3.

2. Arrest irrelevant. The rest of the second paragraph is accepted. See HO #7.

3. The rest of Respondent's proposed findings are rejected as irrelevant to these proceedings except for the statements surrounding the fireproof wall (See HO #3) and the factual finding that the incidents involving the molestation

of children, as alleged by the children all took place within the residence and not the barbershop. See HO #5 - #7.

COPIES FURNISHED:

Cynthia Gelmine, Esquire Department of Professional

Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

Calvin C. Campbell, Qualified Representative Glades Correctional Institute

500 Orange Avenue Circle, B123 Belle Glade, Florida 33430-5222

Herbert Hernandez

Glades Correctional Institute

500 Orange Avenue Circle

Belle Glade, Florida 33430-5222

Myrtle Aase, Executive Director Barbers Board

Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Docket for Case No: 88-002759

Orders for Case No: 88-002759