STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5141

)

C. R. HIGGINSON, d/b/a )

BONITA SPRINGS BARBER SHOP, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on December 3, 1991, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Laura P. Gaffney, Esq.

1940 North Monroe Street, Suite 60

Tallahassee, FL 32399-0792

For Respondent: J. Stephen Crawford, Esq.

5551 Ridgewood Drive, Suite 201

Naples, FL 33963 STATEMENT OF THE ISSUE

Whether the allegations of the Amended Administrative Complaint are correct and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On August 13, 1991 the Petitioner filed an Amended Administrative Complaint, 1/ which was forwarded to the Division of Administrative Hearings, along with the Respondent's Election of Rights form, dated July 22, 1991, and received on August 14, 1991. The hearing was scheduled and Notice of Hearing provided to both parties. On September 27, 1991, the Petitioner moved to amend the Amended Complaint. Without objection, leave was granted to file the Second Amended Administrative Complaint on October 21, 1991. By Notice of Hearing dated November 5, 1991, the hearing was rescheduled and commenced on December 3, 1991.

The Administrative Complaint alleges that the Respondent failed to comply with various sanitation requirements for barbershops and that one license was not displayed as required.

At hearing, Petitioner presented the testimony of Frank Paolella and offered into evidence exhibits 1-3, which were

admitted. Respondent presented the testimony of Alan Glazier.

A transcript of the hearing was filed on December 20, 1991. Both parties filed proposed recommended orders. The proposed findings of fact are ruled upon as reflected in this Recommended Order, and in the attached Appendix which is hereby made a part of this Recommended Order.

FINDINGS OF FACT

1. C. R. Higginson (hereafter Respondent) is a licensed barber and barbershop owner, holding Florida licenses BB 11355 and BS 8886. Respondent owns and operates the Bonita Springs Barber Shop, located at 26671 Old U.S. 41 S.E., Bonita Springs, Florida 33923.

   
   

2. On April 25, 1991, Frank Paolella, an inspector for the Department of Professional Regulation, entered the

   Respondent's barbershop and performed a routine inspection of the premises for compliance with the rules of the Barber's Board.

   The Respondent was not present during the inspection.

   
   

3. At the time of the inspection, there were a number of persons in and around the premises, however, the inspector

   observed no one sitting in the barber's stations chairs or having their hair cut. The inspector noted several violations of the Board of Barbers requirements.

   
   

4. Three barbers stations contained equipment which was not sanitized and was covered with hair.

5 Five stations contained equipment which had been cleaned and sanitized but which was not stored in a clean cabinet.

1. Six garbage pails located at barber stations were uncovered and contained hair and trash.

   
   

2. One barber's license was not displayed. Prior to

   the inspector's departure, the barber located the license behind his sterilizer cabinet and displayed the document.

   
   

3. The testimony of the Respondent's witness, one of the barber's present at the time of the inspection, directly

   contradicted the testimony of the Petitioner's inspector. The testimony of the Petitioner's inspector is credited and such conflicts have been resolved in Petitioner's favor.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

5. Petitioner has responsibility for disciplinary action taken against licensed barbers. Section 476.214, Florida Statutes. The burden of proof is on the Petitioner to establish

   the truthfulness of the allegations of the Administrative Complaint by clear and convincing evidence. Ferris v.

   Turlington, 510 So.2d 292 (Fla. 1987). In this case the Petitioner has met the burden.

   
   

6. Each barbershop and each barber shall take reasonable steps to insure that the shop and individual service area respectively is maintained and operated in a safe and sanitary manner. Rule 21C-19.011, Florida Administrative Code, sets forth the sanitary requirements for licensed barbershops. Sanitation violations in barbershops result in an administrative fine of

   $50.00 per violation for one or two violations, or an administrative fine of $200.00 to $300.00 for three or more violations. Rule 21C-21.001(11), Florida Administrative Code.

   
   

7. All barbering tools used in barbershops such as razors, scissors, tweezers, combs, rubber discs, or parts of vibrators shall be free from hair cleansed and sanitized in one or several methods set forth as Rule 21C-19.011(11)(a-c), Florida Administrative Code. The evidence establishes that the equipment at three barber stations within the Respondent's shop was not properly clean.

   
   

8. After complying with the sanitization requirements, the razors, scissors, tweezers, combs, rubber discs, or parts of vibrators shall then be placed and kept in a clean, closed cabinet or container until next ready for use. Rule 21C- 19.011(1)(d), Florida Administrative Code. The evidence establishes that five of the cabinets located at stations within the Respondent's shop were open and unclean.

   
   

9. All garbage must be kept in a closed container or receptacle. Rule 21C-19.011(2)(b), Florida Administrative Code. The evidence establishes that six open receptacles containing hair and debris were located within the Respondent's shop.

   
   

10. Each barbershop shall display, in a conspicuous place, the barbershop license and each individual licensee's certificate. Section 476.184(10), Florida Statutes. Failure to display the license in a conspicuous place for public viewing results in an administrative fine of $50.00. Rule 21C- 21.001(12), Florida Administrative Code. The evidence establishes that one barber's license was not displayed upon the inspector's entry, but that after the barber was informed of the missing license, he able to locate the license..

    
    

11. The testimony of the Respondent's witness, a barber present at the inspection, directly contradicted the testimony of the Petitioner's inspector. The inspector testified that there were no customers present at the time of the inspection, but the Respondent's witness testified that there were two or three customers present, and that the unclean equipment had been used to cut said customers hair. The inspector noted the presence of open trash pails containing hair and other debris located next to barber's stations inside the shop, while the Respondent's witness countered that there were covered garbage cans behind the barbershop. As stated previously, the testimony of the

    Petitioner's inspector was more persuasive than that of the Respondent's witness and was credited.

    
    

12. The Respondent asserts that the amendment of the Administrative Complaint at the time of the hearing was a substantial denial of due process and resulted in prejudice to the rights of the Respondent. The amendment corrected a mistaken reference to the "Barbershop Requirements" set forth at Chapter 21C-19.011, Florida Administrative Code, which consists of approximately one full page of rules related to sanitary requirements for barbershops. The amendment did not alter the factual allegations set forth in the complaint against which the Respondent chose to dispute and did not result in any prejudice to the Respondent.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Florida Board of Barbers' enter a Final Order imposing an administrative fine of $350.00 against the Respondent.

DONE and RECOMMENDED this 14th day of January, 1992, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

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 14th day of January, 1992.

ENDNOTES

1/ The files of the Division of Administrative Hearings do not contain an administrative complaint prior to the first amended complaint filed August 13, 1991.

APPENDIX CASE NO. 91-5141

The following constitute rulings on proposed findings of facts submitted by the parties.

Petitioner

The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

4. Rejected, irrelevant and unnecessary. The prior action was resolved through a settlement stipulation which does not include any factual admissions on the part of the Respondent. The violations alleged by the inspector in this case have no relevance to the prior disciplinary action to which a settlement stipulation had been reached (other that by the Respondent's general agreement not to violate Chapters 455 and 476 , Florida Statutes, and related rules.)

Respondent

The Respondent's proposed findings of fact are set forth in numbered paragraphs, however the numbering begins anew four times, resulting in four paragraphs numbered one, four paragraphs numbered two, and so on. For the purposes of indicating rulings on the proposed findings, the numbered paragraphs are designated by page number and are ruled upon as follows:

Page One

1. Rejected, contrary to the credited testimony.

2. Rejected, contrary to the credited testimony. There is no credited testimony that any barbers were actively engaged in performing services at the time of the inspection.

3. Rejected, irrelevant. The evidence establishes that the garbage containers inside the barbershop were open and contained hair and debris.

1. Rejected, cumulative, unnecessary.

2. Rejected, cumulative, unnecessary.

3. Rejected, cumulative, unnecessary.

   
   

   Page Two

   
   

4. Rejected, cumulative, unnecessary.

5. Rejected, cumulative, unnecessary.

6. Rejected, cumulative, unnecessary. Further, the Respondent's witness received a copy of the inspection report at the time of the inspection and did not identify to the inspector any additional operators present in the shop.

1. Rejected, contrary to the credited testimony.

2. Rejected, contrary to the credited testimony. Further, the testimony at most indicates the situation solely at the witness' station, and does not offer any evidence as to the remaining stations.

3. Rejected, contrary to the credited testimony.

4. Rejected, irrelevant. The evidence establishes that garbage containers located inside the barbershop were open and contained, not merely paper, but hair and other debris.

5. Accepted as indicated in the Findings of Fact.

6. Accepted as to the Respondent not being present during the inspection. Rejected as to the presence of another barber not identified on the report. The Respondent's witness received a copy of the inspection report at the time of the inspection and did not identify to the inspector any additional operators present in the shop.

Page Three

1. Rejected, irrelevant. The evidence establishes that garbage containers located inside the barbershop were open and contained, not merely paper, but hair and other debris.

2. Rejected, contrary to the credited testimony. There is no credited testimony that any barbers were actively engaged in performing services at the time of the inspection.

3. Rejected, contrary to the credited testimony.

4. Accepted as to the presence of the license, rejected as to the "customary conspicuous location" of the display of the license, not established by credible evidence.

COPIES FURNISHED:

Kaye Howerton Executive Director

Florida Board of Barbers 1940 North Monroe Street Tallahassee, FL 32399-0792

Jack McRay General Counsel

1940 North Monroe Street Tallahassee, FL 32399-0792

Laura P. Gaffney, Esq. Senior Attorney

1940 North Monroe Street, Suite 60

Tallahassee, FL 32399-0792

J. Stephen Crawford, Esq. Emerson & Crawford, Chartered 5551 Ridgewood Drive, Suite 201 Naples, FL 33963

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 TEN 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: 91-005141

Orders for Case No: 91-005141