STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BARBERS' BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 88-5743

)

BRUCE HEINEMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in the above-captioned matter, after due notice, on February 28, 1989, in Orlando, Florida, before Daniel M. Kilbride, the duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire Chief Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: No appearance.

STATEMENT OF THE ISSUES

Whether the Barbers' Board should discipline the Respondent (a licensed barber and barbershop) for permitting a person in his employ to practice barbering without a license in violation of Sections 476.204(1)(a) and (h) and 476.194(1)(c), Florida Statutes (1987).

PRELIMINARY STATEMENT

On October 25, 1988, the Department of Professional Regulation (Petitioner), through its duly authorized attorney, filed an Administrative Complaint before the Barbers' Board against Bruce Heineman, individually and Bruce Heineman d/b/a Cuttin Corners barbershop, charging him with violations of Sections 476.194(1) and 476.204(1)(a) and (h), Florida Statutes which prohibit the practice of barbering without a current active license.

On November 15, 1988, Respondent, Bruce Heineman, acknowledged receipt of the Administrative Complaint, disputed the allegations of fact, and requested a formal hearing, pursuant to Section 120.57(1), Florida Statutes

The formal hearing in this matter was originally scheduled to be heard January 4, 1989. However, pursuant to a timely Motion to continue filed by

Petitioner, this matter was rescheduled for 9:00 a.m., on February 28, 1989, at Suite 109, Room 1, Zora Neal Hurston Building, 400 West Robinson Street, Orlando, Florida.

Each party was notified of the hearing date by Order Granting Continuance dated December 14, 1988.

Counsel for Petitioner represented to the Hearing Officer that he was in personal contact with Respondent subsequent to said date. Respondent represented that there were issues of fact in dispute in this case and that he was aware of the hearing date and would attend.

No correspondence or responsive pleadings appear in the record on behalf of Respondent. However, due notice was given of the final hearing in this matter.

The final hearing was scheduled to convene at 9:00 a.m. on February 28, 1989. The Hearing Officer, court reporter and Petitioner were present. In order to allow time for Respondent to appear the hearing was not convened until 9:35 a.m. At that time the halls were sounded, and the Respondent failed to appear. It appearing that proper notice was given to all parties, the hearing was called to order.

The Department called one witness who is an inspector with the enforcement section of the Department. The Department entered three exhibits in evidence. The first was a copy of the application and license file for a barbershop license issued to Bruce Heineman, d/b/a Cuttin Corners, 3107 South Orlando Drive, Sanford, Florida, in 1986. Said license was current. The second exhibit was the application and license file of Respondent originally issued in 1968.

Said license was current. The third exhibit was the application file for a cosmetology license of said employee. The license application was submitted to the Department on August 16, 1988. A cosmetology license was subsequently issued to said employee on November 7, 1988.

A transcript was not provided and the Petitioner waived its right to submit proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. Respondent, Bruce Heineman, holds a valid Florida barber license, license number BB-0018489 which was originally issued on May 8, 1968, and has been continuously licensed as a barber since that time. No record of prior disciplinary action appears in Respondent's file.

   
   

2. Respondent, Bruce Heineman operates a barbershop under the business name of "Cuttin Corners," located at 3107 South Orlando Drive, #7B, Sanford, Florida 32771.

   
   

3. Said barbershop operates under a current valid barbershop license which was originally issued to Respondent on September 9, 1986.

   
   

4. Sara Kemmeck, an inspector with the Department, testified that she personally observed an employee of Respondent, Tina Prescott, giving a customer a haircut on August 31, 1988, at his barbership. Upon demand, the employee was unable to produce a valid barbers license. The unrebutted evidence demonstrated that Tina Prescott was engaged in the practice of barbering without a valid license for a minimum of two weeks, while an employee of Respondent.

5. Tina Prescott was issued a cosmetology license on November 7, 1988, license number CL-0174999, which permits her to practice barbering in a licensed barbershop.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1), Florida Statutes. The Petitioner has the burden to prove, by clear and convincing evidence, the violation of Chapter 476, Florida Statutes, alleged in the Administrative Complaint issued against Respondent. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

7. Sections 476.194(1)(c) and 476.204(1)(c) , Florida Statutes, make it unlawful for any person to hire or employ a person to practice barbering unless duly licensed.

   
   

8. The Barbers' Board is authorized by Section 476.214(1), Florida Statutes to take disciplinary action against any licensee who is in violation of these provisions. Petitioner has clearly sustained its burden of proof in this case, and has established a violation of Sections 476.194(1)(c) and 476.204(1)(c) and (h), Florida Statutes in that Respondent allowed an unlicensed person to operate as a barber at his barbershop.

   
   

9. At the conclusion of the case, in mitigation, Petitioner represented that under a 1987 amendment to the cosmetology statute (Chapter 477, Florida Statutes), Tina Prescott would have been authorized to practice cosmetology in a licensed beauty salon while awaiting the results of her cosmetology examination and license. Therefore, Respondent may have been confused as to Tina Prescott's status at the time of the inspection. This procedure is not authorized under the barbering statute (Chapter 476, Florida Statutes), however. The Department made an oral recommendation of a $250 administrative fine.

   
   

10. The Barbers' Board has adopted Disciplinary Guidelines by Rule. The normal penalty range for permitting an unlicensed employee to practice barbering when said employee has never been licensed prior to discovery by the Department is an administrative fine of $250 to $500. Rule 21C-21.001(d), Florida Administrative Code.

    
    

11. Considering the mitigating surrounding circumstances, and Respondent's lack of a prior disciplinary history while being a licensed barber for more than twenty years, it is

RECOMMENDED that an administrative fine of $250 be assessed.

DONE and ENTERED this 15th day of March, 1989, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 15th day of March, 1989.

COPIES FURNISHED:

CHARLES F. TUNNICLIFF, ESQUIRE CHIEF ATTORNEY

DEPARTMENT OF PROFESSIONAL REGULATION

130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750

BRUCE HEINEMAN

3107 SOUTH ORLANDO DRIVE, #7B SANFORD, FLORIDA 32771

MYRTLE AASE, EXECUTIVE DIRECTOR BARBERS' BOARD

130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750

KENNETH D. EASLEY, ESQUIRE GENERAL COUNSEL

DEPARTMENT OF PROFESSIONAL REGULATION

130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750

Docket for Case No: 88-005743

Orders for Case No: 88-005743