STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BARBERS BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 91-0473

)

GARY E. SMITH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on May 29, 1991, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Laura P. Gaffney

Senior Attorney

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Gary E. Smith, pro se

c/o Hair Replacement Systems 2546 North State Road 7

Hollywood, Florida 33021 STATEMENT OF THE ISSUES

At issue in these proceedings is whether respondent, who is not licensed, engaged in the practice of barbering and presented, as his own, the license of another.

PRELIMINARY STATEMENT

By administrative complaint dated December 7, 1990, petitioner charged that respondent, who was not licensed, engaged in the practice of barbering for approximately one year and that, upon inspection, he presented, as his own, his father's license, all in violation of Section 476.204(1)(a), (d) and (f), Florida Statutes. Respondent filed an election of rights, which disputed the allegations of fact contained in the administrative complaint, and requested a formal hearing. Upon receipt of such election, the petitioner referred the matter to the Division of Administrative Hearings for the appointment of a

hearing officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At hearing, petitioner called Leonard Baldwin as a witness, and its exhibits 1A, 1B, 1C, 1D, and 2 were received into evidence. Respondent testified on his own behalf, and called Anthony Ruggiero as a witness.

Respondent's exhibit 1 was received into evidence.

The transcript of hearing was filed June 17, 1991, and the parties were granted leave until June 27, 1991, to file proposed findings of fact.

Petitioner elected to file such proposals, and they have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. At all times material hereto, respondent, Gary E. Smith owned and operated a business known as Hair Replacement Systems, at 2546 North State Road 7, Hollywood, Florida. Such business is located on the premises of, and leases space from, New Breed Hairstyling, a business owned by Vincenzo Clemente, a licensed barber. Respondent is not a licensed barber.

   
   

2. On August 28, 1990, Leonard Baldwin, an inspector employed by petitioner, inspected the premises of New Breed Hairstyling, and observed the respondent, with a client seated in a chair, cutting what appeared to be a client's hair. Upon Mr. Baldwin's request for respondent's license to practice barbering, respondent presented the license of one E.F. Smith, Jr., as his own.

   E.F. Smith, Jr., is a licensed barber in the State of Florida, and the father of respondent.

   
   

3. At hearing, respondent offered proof, which is credited, that he was not cutting the natural hair of the client but, rather, a hairpiece. In this regard, the proof demonstrates that respondent's business consists of the sale and servicing of hairpieces. In the course of that business, respondent takes a plaster-of-Paris cast of a client's head from which the hairpieces are designed, and forwards the cast to a factory where the actual hairpiece is manufactured. Upon receipt of the hairpiece back from the factory, it is placed on the client's head, and respondent trims, cuts and styles it to blend with the client's natural hair. Here, rather than cutting natural hair when observed by Mr. Baldwin, respondent was cutting and styling a hairpiece.

   
   

4. Respondent further testified at hearing that he never cuts or styles a client's natural hair, and has located his business within a licensed barber shop so those services can be performed by licensed people, if necessary. According to respondent, any contact that occurs with a client's natural hair while he is cutting or styling the hairpiece is purely unintentional, and that he does not cut or style a client's natural hair.

   
   

5. While the proof in this case demonstrated that respondent was not cutting natural hair when observed by Mr. Baldwin, the respondent's testimony that he does not style the natural hair of his clients when fitting a hairpiece is inherently improbable. Certainly, if a client has existing hair which the hairpiece is designed to match, the cutting and styling of the hairpiece on the client's head, during a fitting, would necessarily, dependent on the circumstances, result in contact with, and arrangement of, the natural hair. Such finding does not, however, detract from the conclusion, heretofore reached, that on August 28, 1990, respondent was only observed cutting a hairpiece.

6. As to the charge of presenting another's license as his own, respondent responds that such was done to avoid the possibility of charges being filed. In this regard, respondent is aware that some of petitioner's inspectors find his practice of questionable propriety, while he is of the opinion that his services do not constitute barbering.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. Pertinent to this case, Section 476.204, Florida Statutes, provides:

   
   

   1. It is unlawful for any person to:

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

      
      

      (d) Present as his own the license of another.

      
      

      (f) Impersonate any other licenseholder of like or different name.

      
      

   2. Any person who violates any provision of this section shall be subject to one or more of the following penalties, as determined by the board:

      1. Revocation or suspension of any license or registration issued pursuant to this chapter.

      2. Issuance of a reprimand or censure.

      3. Imposition of an administrative fine not to exceed $500 for each count or separate offense.

      4. Placement on probation for a period of time and subject to such reasonable conditions as the board may specify.

      5. Refusal to certify to the department an applicant for licensure.

         
         

9. Section 476.034, Florida Statutes, defines the term "Barbering" to

   mean:

   
   

   . . . any of the following practices when done for remuneration and for the public, but not when done for the treatment of disease or physical or mental ailments: shaving, cutting, trimming,

   coloring, shampooing, arranging, dressing, curling, or waiving the hair or beard. . . .

   
   

10. Here, the proof is clear and convincing that respondent presented as his own the license of another, and thereby sought to impersonate another licenseholder, all in violation of Section 476.204(1)(d) and (f), Florida Statutes. However, as heretofore found in the findings of fact, the proof fails to demonstrate that, on the specific occasion alleged and shown, respondent held himself out to the public as a barber or that he engaged in the practice of barbering, as that term is defined by section 476.034.

    
    

11. In considering an appropriate penalty in the instant case, the guidelines established by Rule 21C-21.001 and Rule 21C-21.002, Florida

Administrative Code, have been considered. In this regard, it is specifically noted that respondent's guilt of violating both section 476.204(1)(d) and (f), arose from a single act, presenting as his own the license of another, and should not be considered as separate offenses.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which finds respondent guilty of

having violated the provisions of Section 476.204(1)(d) and (f), Florida Statutes, and which imposes a civil penalty against him in the sum of five hundred dollars ($500.00). In all other respects, the charges against respondent should be dismissed.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of July 1991.

WILLIAM J. KENDRICK

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 30th day of July 1991.

APPENDIX

Petitioner's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2 & 3. Addressed in paragraph 2.

1. Addressed in paragraphs 2-6.

2. Rejected as not relevant and not supported by competent proof.

Copies furnished:

Laura P. Gaffney Senior Attorney

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Mr. Gary E. Smith

c/o Hair Replacement Systems 2546 North State Road 7

Hollywood, Florida 33021

Myrtle Aase Executive Director Board of Barbers

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Jack McRay General Counsel

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-000473

Orders for Case No: 91-000473