STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BARBER5' BOARD )

)

Petitioner, )

)

vs. ) CASE NO. 89-4561

)

PASTOR MURILLO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings, on December 18, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: Cynthia Gelmine, Esquire

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0750 For Respondent: No appearance

STATEMENT OF THE ISSUES

The issue in this case is whether the Barbers' Board should discipline Respondent (a licensed barber) for permitting the use of his barber's license by an unlicensed barber in violation of Section 476.204(1)(d) and 476.204(2), Florida Statutes (1987).

PRELIMINARY STATEMENT

On July 14, 1989, the Department of Professional Regulation (Petitioner) filed an Administrative Complaint before the Barbers' Board against Pastor Murillo charging him with violations of Sections 476.204(1)(d) and 476.204(2), Florida Statutes. By an Election of Rights form dated July 25, 1989, Respondent acknowledged receipt of the Administrative Complaint, disputed the allegations of fact, and requested a formal hearing pursuant to Section 120.57, Florida Statutes. Other than the Election of Rights form, no correspondence or responsive pleadings appear in the record on behalf of Respondent.

The formal hearing in this case was originally scheduled for October 27, 1989. However, pursuant to a timely Motion for Continuance filed by Petitioner, this matter was rescheduled for 2:30 p.m. on December 18, 1989 at the Dade County Courthouse in Miami, Florida. That date was one of several days that the

parties had agreed were mutually acceptable dates for hearing according to Petitioner's Motion to Reschedule Hearing.

Due notice was given of the rescheduled final hearing in this matter. The parties were notified of the hearing date by Notice of Hearing dated November 17, 1989. The Notice of Hearing was sent to Respondent at the address listed on the Election of Rights form. Neither the Petitioner nor the Division of Administrative Hearings have been advised of any change in address by the Petitioner. Prior to and at the commencement of the hearing, the Hearing Officer and counsel for the Petitioner attempted to contact Respondent without success.

The final hearing was scheduled to convene at 2:30 p.m. on December 18, 1989. The Hearing Officer, court reporter and counsel for Petitioner were present at that time. The Respondent failed to appear. After waiting approximately 25 minutes and after unsuccessfully attempting to reach Respondent, the hearing was called to order. The Petitioner called two witnesses. The first witness was Michael David Cushen, who was an inspector employed by Petitioner at the time of the alleged violations. Petitioner's second witness was Hugh Frances Fitzpatrick, an investigator supervisor with Petitioner. The Petitioner offered two exhibits into evidence both of which were accepted. Petitioner's first exhibit was a copy of the Respondent's licensure file. The second exhibit was a certification from the custodian of records for the Barbers' Board indicating that a barbers' license had never been issued to Sergio Ponce. At Petitioner's request, official recognition has been taken of Chapters 455 and 476 and Section 20.30, Florida Statutes.

At the conclusion of the hearing, counsel for Petitioner advised that no transcript would be provided and that Petitioner was waiving its right to file a proposed recommended order. No post-hearing proposals have been received by either party.

FINDINGS OF FACT

1. Respondent, Pastor Murillo, holds a valid Florida barber's license, license number BB-0016106 which was last renewed on September 16, 1988.

   
   

2. At all times pertinent to this proceeding, Respondent's brother, Felix Murillo, was the owner of the Sabal Palm Barber Shop (the "Shop").

   
   

3. On or about April 24, 1989, an inspector for the Petitioner visited the Shop and observed an unidentified individual cutting hair. The inspector requested to see the license for the individual and that individual promptly left the scene. The unidentified individual was 30 - 40 years old and had a mustache. The owner of the shop, Felix Murillo, told the investigator that the unidentified individual was the Respondent Pastor Murillo, his brother, and showed the investigator Respondent's license. The investigator told Felix that Respondent should report to the Petitioner's office the next day with his license.

   
   

4. The next day, Respondent appeared at the office of Petitioner and contended that he was the unidentified person in the Shop the previous day. However, Respondent is in his mid to late sixties and does not have a mustache. The investigator challenged Respondent's contention that he was in the Shop. Ultimately, Respondent admitted that he was not in the Shop the previous day and that he had let an unlicensed individual, Sergio Ponce, use his license under Felix's direction.

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1), Florida Sta~utes.

   
   

6. The Petitioner has the burden to prove, by clear and convincing evidence, the violation of Chapter 476, Florida Statutes, alleged in the Administrative Complaint filed against Respondent. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

7. The Administrative Complaint charges Respondent with violating Section 476.204(1)(d), Florida Statutes, which makes it unlawful for any person to "present as his own the license of another."

   
   

8. The Barbers' Board is authorized by Section 476.204(2), Florida Statutes to take disciplinary action against any licensee who is in violation of this provision. However, Petitioner has not sustained its burden of proof in this case because the evidence did not show that Respondent violated Section 476.204(1)(d). Respondent did not `present as his own the license of another." While he apparently acquiesced in the use of his license by another, such conduct does not fall within the prohibitions of Section 476.204(1)(d). Therefore, it is

RECOMMENDED that a Final Order be issued dismissing the Administrative Complaint filed against Respondent, Pastor Murillo.

DONE and ORDERED this 13th day of March, 1990, in Tallahassee, Florida.

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 13th day of March, 1990.

COPIES FURNISHED:

Cynthia Gelmine, Esquire Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Pastor Murillo

4211 S.W. 32nd Street Hollywood, Florida 33023

Kenneth D. Easely General Counsel

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Myrtle Aase Executive Director

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Docket for Case No: 89-004561

Orders for Case No: 89-004561