STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

BARBERS BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7365

)

MICHAEL HERRINGTON, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in the above-styled matter was heard pursuant to notice by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on March 19, 1991, in Jacksonville, Florida.

APPEARANCES

FOR PETITIONER: Laura P. Gaffney, Esquire

Department of Professional Regulation Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

FOR RESPONDENT: Michael Herrington, pro se

6712 Van Gundy Road Jacksonville, Florida 32208

STATEMENT OF THE ISSUES

Whether the Respondent's licenses, as a barber and for a barbershop in the State of Florida, should be suspended, revoked or otherwise disciplined for alleged violation of Chapter 476, Florida Statutes; violation of Section 476.204(1)(i), Florida Statutes, and Rule 21C-19.012, Florida Administrative Code, by failing to meet the minimum standards in the operation of a barbershop, as follows:

1. Garbage not kept in closed container (Rule 21C-19.011(2)(b).

   
   

2. Equipment not kept clean and sanitary (Rule 21C- 19.011(2)(e).

   
   

3. Equipment not stored in clean, closed containers or cabinets

(Rule 21C-19.011(11)(d).

PRELIMINARY STATEMENT

The Petitioner called Gail H. Hand and Linda Mantovani as witnesses. The Petitioner introduced the following exhibits:

1. (Certificate of licensure and application file for Michael Herrington, barber's license number BB 19606).

   
   

2. (Certificate of licensure and application file for Ribault Barbershop, license number BS 8827).

   
   

3. (July 26, 1990 DPR inspection form for Ribault Barbershop).

4. (July 25, 1990 DPR inspection form for Ribault Barbershop). P-5 (The Respondent's responses to the Petitioner's Request for

Admissions).

P-6 (Rule 21C-21.001, Florida Administrative Code, Barbers' Board Disciplinary Guidelines).

The Respondent testified on his own behalf.

The Petitioner filed proposed findings of fact and conclusions of law, which were read, considered and adopted.

FINDINGS OF FACT

1. The Respondent is a licensed barber and barbershop owner in the State of Florida, license numbers BB 19606 and BS8827. The Respondent is the owner of Ribault Barbershop, 6712 Van Gundy Road, Jacksonville, Florida 32208. (P-2; T- 8)

   
   

2. On July 26, 1990, Gail Hand, a DPR inspector, inspected the Respondent's barbershop. At that time, she found the shelves, fixtures and counter tops at the barber stations were coated with black dust, dirt and hair, which, over time, had been scattered throughout the barbershop. In addition, the Respondent had two (2) combs, a pick and four (4) clipper attachments which were coated with a scum or a dark residue in a dirty liquid in a tray on the counter top. (P-3; T-8-9, 30)

   
   

3. During the aforementioned inspection, Ms. Hand also found that the barbering equipment in the Respondent's barbershop, such as combs, brushes and picks, were not stored in a closed container. The Respondent had combs, clipper attachments, scissors, a brush and a pick on the counter top. Ms. Hand found no closed cabinet for storing tools. The Respondent indicated that he was unaware of this requirement. (P-3; T-9-10, 23 and 59)

   
   

4. During this inspection, Ms. Hand noted the garbage was not kept in a closed container as required by Board rule. (P-3; T-10-11, 58).

   
   

5. The fact that the Respondent's bathroom had an objectionable odor and that the Respondent failed to post the previous inspection sheet were not charged as violations. (P-3; T-10-12, 17-18, 20-21, 37)

6. Ms. Linda Mantovani, another DPR inspector "informally" reinspected the Respondent's barbershop prior to Christmas of 1990. Ms. Mantovani checked the deficiencies Ms. Hand had noted in July of 1990. She found that the Respondent's barbershop still had no closed cabinet for storage of tools. Ms. Mantovani reviewed the inspection report with the Respondent and discussed his correction of the continuing violations. The windowsills and fans were cleaned, and the garbage was kept in a closed container. (T-38, 40-42, 46-47, 50-51)

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof, pursuant to Section 120.57(1), Florida Statutes (1989).

   
   

8. The Respondent, as a licensed barber and barbershop owner in the State of Florida at all times material hereto, is subject to the Petitioner's jurisdiction, pursuant to Chapter 476, Florida Statutes.

   
   

9. The Respondent was not charged for objectionable odors in the bathroom or failure to post the latest inspection document. The facts presented were, therefore, not considered.

   
   

10. The Respondent is guilty of violating Section 476.204(1)(i) , Florida Statutes, by violating Rule 21C-19.011, Florida Administrative Code, by:

    
    

    1. Failing to keep garbage in a closed container (Rule 21C-19.011(2)(b).

       
       

    2. Failing to keep equipment clean and sanitary (Rule 21C-19.011(2)(e).

       
       

    3. Failing to store equipment in clean, closed containers (Rule 21C-19.011(11)(d).

RECOMMENDATION

Regarding the last charge, the Respondent indicated that he had received conflicting guidance on this requirement from prior inspectors. It appeared that there may be some confusion about this requirement; however, after the initial inspection, the Respondent clearly was on notice. Because of the Respondent's interest and candor regarding the events and because some of the deficiencies were corrected, the fine proposed by the Department is reduced to

$100 per violation.

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore,

RECOMMENDED that the Florida Board of Barbers enter a Final Order finding the Respondent guilty as charged in the Administrative Complaint and imposing a

$300.00 administrative fine.

DONE AND ENTERED this 11th day of April, 1991, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1991.

COPIES FURNISHED:

Myrtle Aase, Executive Director Barbers Board

Department of Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, FL 32399-0792

Jack McRay, Esq.

General Counsel

Department of Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, FL 32399-0792

Laura P. Gaffney, Esq.

Department of Professional Regulation Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

Michael Herrington 6712 Van Gundy Road Jacksonville, FL 32208

Docket for Case No: 90-007365

Orders for Case No: 90-007365