STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BARBERS' BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 89-2558

)

JEAN MENE d/b/a PALOMA )

DE ST. LOUIS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Jane C. Hayman, held a formal hearing in the above- styled case on July 13, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0729 For Respondent: No Appearance

STATEMENT OF THE ISSUES

Whether the Respondent committed the offenses set forth in the administrative complaint file din this case and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

By administrative complaint dated March 23, 1989, Petitioner charged that Respondent violated the provisions of Chapter 476, Florida Statutes. The gravamen of Petitioner's charges is the assertion that Respondent operated an unlicensed barbershop, practiced barbering without a license to do so, and employed a practitioner who engaged in the practice of barbering without a license to do so.

At the hearing, Petitioner called one witness and offered two exhibits which were admitted into evidence. Respondent did not appear nor was he represented.

A transcript of the hearing was not ordered, and the parties were granted leave until July 24, 1989, to file proposed findings of fact. Neither party elected to file proposed findings of fact.

FINDINGS OF FACT

1. At all times material hereto, Respondent, Jean Mene, was not a licensed barber in the State of Florida nor was the barbershop which he owned and operated licensed.

   
   

2. On or around November 18, 1989, Respondent was observed in the practice of barbering. At that time, he admitted that he did not hold a valid license to barber and that the barbershop in which he worked was not validly licensed. An application for licensure was offered to him by an inspector for Petitioner, but Respondent refused the offer. An employee in Respondent's shop, who was engaged in barbering, also did not have a license to barber.

   
   

3. Over the ensuing eight months, Respondent continued his unlicensed practice, operated his unlicensed shop and employed an unlicensed practitioner.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings had jurisdiction over the parties to and the subject matter of these proceedings.

   
   

5. Section 476.194(1)(a), (c) and (e)1, Florida Statutes, states the following:

   
   

   1. It is unlawful for any person to:

      (a) Engage in the practice of barbering without an active license as a barber issued pursuant to the provisions of this act by the department.

      * * *

      (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:

      1. Which is not licensed under the provisions of this chapter. . . .

      
      

6. Section 476.204(1)(a), (c) and (h), Florida Statutes, states that:

   
   

   1. It is unlawful for any person to:

      (a) Hold himself out as a barber or barbering instructor unless duly licensed as provided in this chapter.

      * * *

      (c) Permit an employed person to practice barbering unless duly licensed as provided in this chapter.

      * * *

      (h) Violate any provision of s. 476.194, s. 476.214, or s. 455.227(1).

      
      

7. Under existing law, the burden is on Petitioner to demonstrate by clear and convincing evidence that Respondent violated the provisions of Section 476.194(a), (c) and (e)1, Florida Statutes, and the provision of Section

   476.204(a), (c) and (h), Florida Statutes. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). Here, Petitioner sustained its burden.

   
   

8. In arriving at an appropriate penalty in the instant case, consideration has been given to the disciplinary guidelines set forth in Rule 21C-21.001, Florida Administrative Code, and to the aggravating and mitigating circumstances listed in Rule 21C-21.002, Florida Administrative Code. Based on a balancing of such guidelines, an appropriate penalty in the instant case is found to be the imposition of an administrative fine of $1,500.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered imposing on Respondent an administrative fine of $1,500.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of July 1989.

JANE C. HAYMAN

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 27th day of July, 1989.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Professional Regulation Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0729

Jean D. Mene

223 Northeast 82 Street Miami, Florida 33138

Myrtle Aase, Executive Director Barbers' Board

Department of Professional Regulation Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0729

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BARBERS' BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 0109129

) DOAH CASE NO. 89-2558

JEAN MENE d/b/a PALOMA ) LICENSE NO. unlicensed

DE ST. LOUIS, )

)

Respondent. )

)

FINAL ORDER

THIS MATTER came before the Barbers' Board pursuant to Section 120.657(1)(b)(9), Florida Statutes, on August 28, 1989, in Orlando, 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 Charles Tunnicliff. The Respondent was neither present nor was represented by counsel

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

1. The hearing officer's findings of fact are hereby approved and adopted in toto.

   
   

2. There is competent, substantial evidence to support the hearing officer's findings of fact.

CONCLUSIONS OF LAW

1. The Board has jurisdiction over this matter pursuant to the provisions of Section 120.57(1), and Chapter 476, Florida Statutes.

   
   

2. The hearing officer's conclusions of law, are hereby approved and adopted in toto.

   
   

3. There is competent substantial evidence to support the Board's findings and conclusions.

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

The Board shall impose an administrative fine of one thousand five hundred dollars ($1,500.00) against the Respondent which fine shall be paid by the Respondent to the Executive Director of the Board within 30 days of imposition of same by Final Order of the Board. Failure to pay said fine will result in Respondent's license being suspended until such time as the fine is paid.

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 North 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 6th day of November, 1989.

BARBERS' BOARD

MYRTLE S. 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 JEAN MENE D/B/A PALOMA DE ST. LOUIS, 223 Northeast 82 Street, Miami, Florida 33138, and by hand delivery/United States Mail to the Board Clerk, Department of Professional Regulation and its counsel, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0750, on or before 5:00 p.m., this 6th day of November, 1989.

/s/ Ruby Warner

Docket for Case No: 89-002558

Orders for Case No: 89-002558