STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BARBERS BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3261

)

JACQUELINE FENTON, d/b/a )

BAILEY UNISEX BARBERSHOP, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on August 7, 1991, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Elizabeth Renee Alsobrook, Esquire

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Abe A. Bailey, Esquire

Bailey, Martin & Associates, P.A.

300 N.W. 183rd Street Miami, Florida 33169

STATEMENT OF THE ISSUES

1. Whether Respondent committed the offenses described in the Administrative Complaint?

   
   

2. If so, what penalty should be imposed?

PRELIMINARY STATEMENT

On April 10, 1991, the Department of Professional Regulation (Department) issued an Administrative Complaint alleging that Respondent had violated state law (1) by failing to display in her establishment a barbershop license and the barbering licenses of her employees [Count I], and (2) by permitting two unlicensed persons, Edward Purcell and George Roberts, to practice barbering in her barbershop [Counts II and III]. Respondent denied the allegations of wrongdoing advanced in the complaint and requested a formal hearing. On May 24, 1991, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct the hearing Respondent had requested.

At hearing, the Department presented the testimony of one witness, Charles

1. Frear, one of its inspectors. In addition to presenting Frear's testimony, the Department offered five exhibits into evidence. All five exhibits were admitted by the Hearing Officer. Respondent presented no evidence in her defense.

   
   

   At the close of the evidentiary portion of the hearing, the Hearing Officer announced on the record that post-hearing submittals had to be filed no later than 15 days after the Hearing Officer's receipt of the transcript of the hearing. The hearing transcript was received by the Hearing Officer on August 21, 1991. The Department timely filed a proposed recommended order on September 5, 1991. The Department's proposed recommended order contains proposed findings of fact. These proposed findings of fact have been carefully considered and are specifically addressed in the Appendix to this Recommended Order. To date, Respondent has not filed any post-hearing submittal.

   
   

   FINDINGS OF FACT

   
   

   Based upon the record evidence, the following Findings of Fact are made:

   
   

   1. Respondent is now, and has been since November 26, 1990, licensed to operate the Bailey Unisex Barbershop (Barbershop), a barbershop located at 1412

      N.W. 119th Street in Miami, Florida.

      
      

   2. She acquired the Barbershop from her father, Constantine Bailey. Bailey is a barber. He works for his daughter at the Barbershop.

      
      

   3. Charles E. Frear is an inspector with the Department.

      
      

   4. On December 22, 1990, Frear conducted an inspection of the Barbershop.

      
      

   5. Upon entering the Barbershop, Frear was greeted by Bailey, who told Frear that Respondent was out of town. Bailey appeared to be in charge of the establishment in Respondent's absence.

      
      

   6. During his inspection, Frear observed Edward Purcell and George Roberts cutting the hair of customers in the Barbershop.

      
      

   7. Purcell and Roberts were not at the time, nor have they ever been, licensed to practice barbering in the State of Florida. Accordingly, when Frear approached them and asked them to show him their barbering licenses they were unable to do so.

      
      

   8. The only violations found by Frear during his visit to the Barbershop related to Respondent's employment of these two unlicensed barbers. He noticed on display on the premises a temporary license authorizing Respondent to operate the Barbershop. Furthermore, it appeared to him that all sanitary requirements were being met.

      
      

   9. Ten days prior to the final hearing in this matter, Frear paid a return visit to the Barbershop. He was again met by Bailey upon entering the establishment. No one else was present in the Barbershop. Frear's inspection of the premises revealed no apparent violations.

      
      

      CONCLUSIONS OF LAW

   10. The provisions of the Florida Barbers' Act, which are found in Chapter 476, Florida Statutes, impose certain restrictions upon the practice of barbering in this state.

       
       

   11. "Barbering," as that term is used in Chapter 476, Florida Statutes, "means 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 waving the hair or beard or applying oils, creams, lotions, or other preparations to the face, scalp, or neck, either by hand or by mechanical appliances." Section 476.034(2), Fla. Stat.

       
       

   12. A "barbershop," as that term is used in Chapter 476, Florida Statutes, is "any place of business wherein the practice of barbering is carried on." Section 476.034(3), Fla. Stat.

       
       

   13. Section 476.194(1)(a), Florida Statutes, makes it unlawful for any person to "[e]ngage in the practice of barbering without an active license as a barber issued pursuant to the provisions of this act by the department."

       
       

   14. Pursuant to subsection (1)(c) of Section 476.204, Florida Statutes, it is unlawful for any person to "[p]ermit an employed person to practice barbering unless duly licensed as provided in this chapter."

       
       

   15. Subsection (2) of Section 476.204, Florida Statutes, authorizes the Barbers' Board to impose one or more of the following penalties for any violation of the provisions of Section 476.204(1), Florida Statutes:

       
       

       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.

          
          

   16. Counts II and III of the Administrative Complaint issued in the instant case 1/ allege that Respondent violated Section 476.204(1)(c), Florida Statutes, by permitting two unlicensed persons, Edward Purcell and George Roberts, to practice barbering in her barbershop. The evidence presented at hearing clearly and convincingly establishes Respondent's guilt of these alleged violations. Accordingly, Respondent is subject to one or more of the penalties set forth in Section 476.204(2), Florida Statutes.

       
       

   17. In determining what penalty or penalties should be imposed upon Respondent, it is necessary to consult Chapter 21C-21, Florida Administrative Code, which contains the Barbers' Board's disciplinary guidelines. Cf. Williams

       v. Department of Transportation, 531 So.2d 994, 996 (Fla. 1st DCA 1988)(agency is required to comply with its disciplinary guidelines in taking disciplinary action against its employees).

   18. Florida Administrative Code Rule 21C-21.001 provides in pertinent part as follows:

       
       

       Normal Penalty Ranges. The following guidelines shall be used in disciplinary cases, absent aggravating or mitigating circumstances and subject to the other provisions of this chapter.

       
       

       (3) 476.204(1)(c): Permitting an unlicensed employee to practice barbering. If employee has never been licensed prior to discovery by the Department, $250.00 to $500.00 fine.

       
       

   19. Florida Administrative Code Rule 21C-21.004 provides that where there is more than one violation, "the penalties shall normally be cumulative and consecutive." 2/

       
       

   20. The aggravating and mitigating circumstances referenced in Florida Administrative Code Rule 21C-21.001 are more specifically described in Florida Administrative Code Rule 21C-21.002 as follows:

       
       

       1. Where licensee has relied upon the advice of an attorney/accountant.

          
          

       2. Where the address of the shop or the owner has been changed by the post office through no fault of the shop owner.

          
          

       3. Where the salon or shop owner has relied upon the advice of a prior owner.

          
          

       4. Age or illness.

          
          

       5. The severity of the offense.

          
          

       6. The danger to the public.

          
          

       7. The number of the repetitions of offenses.

          
          

       8. The number of complaints filed against the licensee.

          
          

       9. The length of time licensee has practiced.

          
          

       10. The actual damage, physical or otherwise, to the licensee's customer.

           
           

       11. The deterrent effect of the penalty imposed.

           
           

       12. The effect of the penalty upon the licensee's livelihood.

           
           

       13. Any efforts at rehabilitation.

           
           

       14. Any other mitigating or aggravating circumstances.

   21. Having carefully considered the facts of the instant case in light of the foregoing provisions of Chapter 21C-21, the Hearing Officer finds that an administrative fine in the amount of $750.00 is the appropriate penalty to impose upon Respondent for having committed the violations of state law alleged in Counts II and III of the Administrative Complaint. 3/

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Barbers' Board enter a final order (1) finding that Respondent committed the violations of law alleged Counts II and III of the instant Administrative Complaint; and (2) imposing upon Respondent an administrative fine in the amount of $750.00 for having committed these violations.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of September, 1991.

STUART M. LERNER

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

17th day of September, 1991.

ENDNOTES

1/ In its proposed recommended order, the Department concedes that Respondent is not guilty of Count I of the Administrative Complaint and that therefore Count I should be dismissed. Given the Department's determination not to pursue this count of the Administrative Complaint, any further discussion regarding the matter is unnecessary.

2/ The Department suggests in its proposed recommended order that, absent aggravating circumstances, the "usual" penalty in the instant case would be "a two hundred fifty ($250) to five hundred ($500) dollar administrative fine." This would be true if Respondent was found guilty of only one violation of Section 476.204(1)(c), Florida Statutes. Respondent, however, has been charged with, and the evidence adduced at hearing establishes that she should be found guilty of, two such violations.

3/ In its proposed recommended order, the Department makes the following argument in support of its position that a harsher than "normal" penalty should be imposed upon Respondent in the instant case:

Ownership of Bailey Unisex Barbershop was changed on paper only. Ms. Fenton, as "owner"

of the barbershop has shown no actual concern for the barbershop's compliance with the law. In fact, she has left its management in Mr. Bailey's hands as the "licensed barber" therein, although his license to practice barbering has been revoked for the same violations noted herein. This blatant disregard of the legality of this barbershop's operation is an aggravating factor pursuant to

Rule 21C-21.002(14).

The Hearing Officer disagrees. Were the Board to follow the Department's suggestion and find this alleged "blatant disregard" of the law to be an aggravating circumstance, in effect it would be imposing a penalty upon Respondent for an offense with which she has not been charged, contrary to the requirements of Section 455.225, Florida Statutes, and the dictates of fundamental fairness. The Administrative Complaint issued against Respondent alleges neither that Bailey is an unlicensed barber, nor that Respondent engaged in any misconduct in retaining his services. Indeed, nowhere in the Administrative Complaint is Bailey even mentioned. While it is true that Respondent is subject to disciplinary action if she is guilty of permitting Bailey to practice barbering without a license in violation of Section 476.204(1)(c), Florida Statutes, such disciplinary action may be taken only after an administrative complaint alleging such a violation is issued and successfully prosecuted. Furthermore, if, as the Department contends in its proposed recommended order, Bailey is the real owner of the Barbershop and he was responsible for hiring Purcell and Roberts, Petitioner may initiate disciplinary proceedings against Bailey and seek an enhanced penalty based upon his prior disciplinary record. It would be inappropriate, however, for the Board to take Bailey's disciplinary record into account as an aggravating circumstance in determining what penalty to impose upon Respondent in the instant case.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-3261

The following are the Hearing Officer's specific rulings on the findings of fact proposed by the Department:

1-4. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

1. To the extent that it refers to Bailey as an "unlicensed person," this proposed finding has been rejected because it is irrelevant and immaterial. Otherwise, it has been accepted and incorporated in substance.

2. Accepted and incorporated in substance.

3. First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony; Third, fourth and fifth sentences: Rejected because they are irrelevant and immaterial.

Copies furnished:

Laura P. Gaffney, Esquire Elizabeth Renee Alsobrook, Esquire

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Abe A. Bailey, Esquire

Bailey, Martin & Associates, P.A.

300 N.W. 183rd Street Miami, Florida 33169

Kaye Howerton, Executive Director Barbers' Board

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street

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 OF TIME 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: 91-003261

Orders for Case No: 91-003261