STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-4139

)

JONATHAN YOUNG, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on November 28, 1989 in Rockledge, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Cynthia Gelmine, Esquire

Staff Attorney

Department of Professional Regulation Northwood Centre

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: No appearance

STATEMENT OF THE ISSUES

Whether Respondent was practicing barbering with an expired license on or about January 13, 1989.

PRELIMINARY STATEMENT

On March 24, 1989, Petitioner filed an Administrative Complaint against Respondent, charging him with practicing barbering without an active current license. Respondent filed an Election of Rights disputing the allegations on June 30, 1989. This matter was referred to the Division of Administrative Hearings on July 24, 1989, and a hearing was scheduled thereafter. Respondent was notified as to the date, time and location of the formal hearing at the address furnished by him to the Petitioner and the Division. The formal hearing was convened one-half hour after the scheduled time for the hearing to commence, after first making diligent inquiry to locate the whereabouts of the Respondent.

However, Respondent could not be located. Petitioner was present and ready to proceed. At the hearing, Petitioner called two witnesses and offered one exhibit in evidence.

Neither party submitted proposed findings of fact.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulating the practice of barbering.

   
   

2. Respondent is presently licensed to practice barbering in the State of Florida, having been issued license number BB 0027873 on January 13, 1988. Said license expired on July 31, 1988 and was inactive from that date until January 24, 1989 when it was renewed. It is currently active.

   
   

3. Sara Kemmeck, an inspector with the Petitioner, inspected the premises of the barbershop, Hair By Us, located at 500 Barton Boulevard, Rockledge, Florida, on January 13, 1989. She observed the Respondent engaged in the practice of barbering. Upon inspection, Respondent's barber's license had expired on July 31, 1988.

   
   

4. Jean I. Branch, owner of the barbershop, testified that she rented Respondent a chair in her shop. She observed Respondent engaged in barbering on a regular basis from December 23, 1988 until the date of the inspection. She saw Respondent's license posted over his chair but had not inspected it.

   
   

5. The unrebutted evidence demonstrated that Respondent was engaged in the practice of barbering without a valid active license for a minimum of three weeks, at the end of 1988 and early 1989.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. 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).

   
   

8. Sections 476.194(1)(a), and 476.204(1)(h), Florida Statutes make it unlawful for any person to engage in the practice of barbering without an active license as a barber issued by the Petitioner.

   
   

9. 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.

   
   

10. Petitioner has clearly sustained its burden of proof in this case, and has established a violation of Sections 476.194(1)(a) and 476.204(1)(a) and (h), Florida Statutes(1987) that Respondent is guilty of engaging in the practice of barbering without an active license as a barber.

11. No testimony in mitigation was offered. However, the evidence did show that Respondent renewed his license on January 24, 1989 and it is currently active. Petitioner made an oral recommendation of a $300 administrative fine.

    
    

12. The Barbers' Board has adopted Disciplinary Guidelines by Rule. The normal penalty range for holding oneself out as a barber while not duly licensed as same is an administrative fine of $250 to $500. Rule 21C-21.001(1), Florida Administrative Code. Respondent does not have a prior disciplinary history.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violating Sections

476.194(1)(a) and 476.204(1)(a) and (h), Florida Statutes and that an administrative fine of $300 be assessed.

DONE AND ENTERED this 12th day of December, 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 12th day of December, 1989.

COPIES FURNISHED:

Cynthia Gelmine, Esquire Staff Attorney

Charles F. Tunicliff, Esquire Chief Attorney

Department of Professional Regulation

Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Jonathan Young

991 Candlewood Lane

Cocoa, Florida 32922

Myrtle Aase, Executive Director Barbers' Board

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0769

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Docket for Case No: 89-004139

Orders for Case No: 89-004139