STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, ) BOARD OF BARBERS, )

)

Petitioner, )

)

vs. ) Case No. 97-0562

) OLGA GIBB, OWNER, AND OLGA'S ) BEAUTY & BARBER SHOP, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held by the Division of Administrative Hearings before Administrative Law Judge, Daniel M. Kilbride, in Orlando, Florida, on July 18, 1997. The following appearances were entered:

APPEARANCES

For Petitioner: James E. Manning, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792

For Respondent: Olga Gibb, pro se

Olga’s Beauty and Barber Shop 1236 Avenue D

Fort Pierce, Florida 34950 STATEMENT OF THE ISSUE

Whether disciplinary action should be taken against Respondent’s barbershop license, based on violations of

s. 476.194(1)(c), Florida Statutes, as alleged in the Administrative Complaint.

PRELIMINARY STATEMENT

Respondent is the owner of the barbershop which was inspected on two separate occasions: April 20, 1996, and May 23, 1996. Thereafter, a citation was issued to the Respondent. The Respondent timely disputed the citation. On or about August 14, 1996, the Petitioner filed a one-count Administrative Complaint against the Respondent alleging a violation of 476.194(1)(c), Florida Statutes, for employing an unlicensed individual to perform barbering services. The Respondent requested a formal hearing in this matter. This matter was referred to the Division of Administrative Hearings on January 29, 1997.

At the hearing, the Petitioner presented the testimony of Leonard Baldwin, an inspector for the Petitioner, and five exhibits were admitted into evidence. The Respondent testified on her behalf, offered the testimony of one witness and no exhibits.

The Administrative Law Judge took official notice of Chapters 476 and 477, Florida Statutes, and Chapter 61G-3, Florida Administrative Code, which governs the practice of barbering.

A transcript of the proceedings was prepared and filed on August 4, 1997. Petitioner filed its proposed recommendation order on August 15, 1997. Respondent has not filed proposed findings of fact as of the date of this order.

FINDINGS OF FACT

1. Respondent is and has been at all times material hereto, a licensed cosmetologist in the State of Florida, having been issued license number CL-0135324.

2. Respondent is and has been at all times material hereto, the owner and operator of a barbershop which operates under the name Olga’s Beauty and Barber Shop. It has been issued license number BS-0009349 and is located in Ft. Pierce, Florida.

3. Leonard Baldwin is an inspector for the Department of Business and Professional Regulation. As part of his statutory duties, he conducts routine inspections of barbershops.

4. As part of his statutory duties, he conducted a routine inspection of Olga’s Beauty and Barber Shop on April 20, 1996.

5. During the course of that inspection, Olga’s Beauty and Barber Shop was open for the business of performing barbering services to members of the public. The time of inspection was approximately 11:30 a.m.

6. He observed an elderly man getting out of the barber’s chair with a fresh haircut. The customer paid Respondent for the service. The person behind the chair was given a tip.

7. He also observed a man, subsequently identified as Javon Stewart, Respondent’s husband, standing behind the chair and placing the clippers in a drawer. The clippers were later determined to be warm.

8. Javon Steward is not licensed to cut hair in Florida.

9. During the course of the inspection, Mr. Baldwin prepared and presented a “Cease and Desist Agreement” to Javon Stewart.

10. Javon Stewart signed the Cease and Desist Agreement and agreed not to engage in the practice of barbering until and unless he was licensed.

11. On May 23, 1996, a reinspection was conducted. During the course of that inspection, Baldwin observed a customer seated in a barber chair inside the barbershop. He saw Javon Stewart with a pair of clippers in his hand standing directly behind the seated customer using the clippers on the customer’s neck.

12. He observed the person “finishing up his customer, cleaning off the bottom of his neck.”

13. The phrase “cleaning off the bottom of a neck” is a barbering term that refers to a person using a set of hair clippers to cut or trim a person’s hair from the back hairline to below the collar line. In this instance, “cleaning off” actually means “cutting or trimming” the hair.

14. During the course of the second inspection, Baldwin observed the customer getting out of the chair, paying the Respondent for the haircut and giving Stewart a tip.

15. Javon Stewart then put the clippers into a drawer.

    
    

16. Baldwin immediately walked over to the drawer where the hair clippers were placed and picked them up. The clippers were warm, having just been used.

    
    

    CONCLUSIONS OF LAW

    
    

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

18. Pursuant to section 476.194(1)(c), Florida Statutes, it is unlawful for any person to employ an unlicensed individual to engage in barbering services. Such activity constitutes a prohibited act within the meaning of the statute.

19. Section 476.204, Florida Statutes, provides for a penalty for engaging in any of the prohibited acts outlined in 476.194, Florida Statutes. Specifically, section 476.204(1)(c), Florida Statutes, provides for a penalty for any person to permit an employed person to practice barbering unless duly licensed as provided in this chapter.

20. Section 476.204(2), Florida Statutes, states that 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.

    
    

21. In a disciplinary action such as this proceeding, the burden is on the Petitioner to establish the facts upon which its

    allegations of misconduct are based. The Petitioner must prove its allegations by clear and convincing evidence. Ferris vs.

    Turlington 570 So. 2d 292 (Fla. 1987).

    
    

22. The Petitioner has proven by clear and convincing evidence that the Respondent violated Section 476.194(1)(c), Florida Statutes by employing Javon Stewart, an unlicensed individual, to engage in barbering services.

23. The evidence submitted by the Respondent was not persuasive and did not rebut the clear and convincing evidence that was submitted by the Petitioner.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Respondent be found guilty of violating Section 476.194(1)(c), Florida Statutes, by employing an unlicensed individual to engage in barbering services.

It is further recommended that the Respondent be fined

$500.00 (five hundred dollars) and issued a Cease and Desist Order.

RECOMMENDED this 8th day of September, 1997, at Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1997.

COPIES FURNISHED:

James E. Manning, Esquire Department of Business and

Professional Regulation Board of Barbers

1940 North Monroe Street Tallahassee, Florida 32399-0792

Ms. Olga Gibb

Olga’s Beauty & Barber Shop 1236 Avenue D

Fort Pierce, Florida 34950

Lynda L. Goodgame General Counsel

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Joe Baker Executive Director Board of Barbers

Department of Business and 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 within 15 days from the date of 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: 97-000562

Orders for Case No: 97-000562