STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Petitioner,

vs.

DAVID BLAKE,

Respondent.

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) Case No. 06-1431

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case before Carolyn S. Holifield, Administrative Law Judge of the Division of Administrative Hearings, on June 28, 2006, by video teleconference at sites in Orlando and Tallahassee, Florida.

APPEARANCES

For Petitioner: Nicole M. Webb, Certified Law Clerk

Charles Tunnicliff, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202 For Respondent: (No appearance)

STATEMENT OF THE ISSUES

Whether Respondent, David Blake (Respondent), violated Subsection 476.194(1)(a), Florida Statutes (2005), by engaging in the practice of barbering without a license, and, if so, what disciplinary action should be imposed.

PRELIMINARY STATEMENT

On or about March 12, 2006, Petitioner, the Department of Business and Professional Regulation (Department), issued an Administrative Complaint against Respondent. The Administrative Complaint alleged that Respondent engaged in the practice of barbering without a license in violation of Subsection 476.194(1)(a), Florida Statutes (2005). Respondent timely requested a formal hearing, and the matter was forwarded to the Division of Administrative Hearings on April 20, 2006, for assignment of an Administrative Law Judge to conduct the hearing.

At hearing, the Department presented the testimony of Michelle Peterson, an investigator specialist with the Department. The Department's Exhibits 1 through 4 were received into evidence. As noted above, Respondent did not appear at hearing and no testimony or exhibits were offered on his behalf.

At the request of the Department, the Administrative Law Judge took official recognition of Subsection 476.194(1)(a), Florida Statutes (2005).

A Transcript of the hearing was filed on July 12, 2006.

The Department filed its Proposed Recommended Order on July 20, 2006. As of the date of this Recommended Order, Respondent has not filed a proposed recommended order.

FINDINGS OF FACT

1. At all times material hereto, Respondent was not licensed as a barber by the Department's Board of Barbers for the State of Florida.

2. Respondent's last known address of record was 4144 Geranium Lane, Apartment 102, Sanford, Florida 32771.

3. The Division of Administrative Hearings mailed the Notice of Hearing in this case to Respondent on May 10, 2006, at his address of record. That notice was not returned to the Division of Administrative Hearings.

4. At all times material hereto, the barbershop named Just Blaze Barbershop, located at 2451 East Semoran Boulevard, Apopka, Florida, was licensed by the Florida Board of Barbers.

5. Michelle Peterson is and, at all times relevant to this proceeding, has been employed by the Department as an investigator specialist. Ms. Peterson's job responsibilities include conducting inspections of barbershops.

6. On October 8, 2005, the Department, through its employee, Ms. Peterson, inspected the premises of Just Blaze Barbershop. During the inspection, Ms. Peterson observed Respondent performing barbering services on a customer. Specifically, Respondent was cutting a customer's hair.

7. At Ms. Peterson's direction, another Department inspector who was at the inspection took a photograph of Respondent while he was cutting the person's hair.

8. During the inspection, Ms. Peterson issued a Uniform Disciplinary Citation to Respondent for the unlicensed activity. The citation was signed by both Ms. Peterson and Respondent.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2005).

10. The Department has jurisdiction over Respondent pursuant to Chapters 455, 476, and 477, Florida Statutes (2005).

11. Subsection 476.194(1), Florida Statutes (2005), enumerates acts that are prohibited under Chapter 476, Florida Statutes (2005), which establishes the regulatory scheme for barbering. That subsection provides, in pertinent part, the following:

    Prohibited acts.--

    
    

    1. It is unlawful for any person to:

       
       

       (a) Engage in the practice of barbering without an active license as a barber issued pursuant to the provisions of this act by the department.

12. Section 476.204, Florida Statutes (2005), establishes penalties for engaging in any of the acts enumerated therein and for violations of various statutory provisions, including Section 476.194, Florida Statutes (2005).

13. Section 476.204, Florida Statutes (2005), provides in pertinent part the following:

    1. It is unlawful for any person to:

       
       

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       (h) Violate any provision of s. 455.227(1), s. 476.194, or s. 476.214.

       
       

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    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.

          
          

14. Here, the Department alleges that Respondent committed acts prohibited by Subsection 476.194(1)(a), Florida Statutes (2005), and seeks to impose an administrative fine. Accordingly, the burden is on the Department to establish the

    facts upon which its allegations of misconduct are based by clear and convincing evidence. Department of Banking and

    Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996).

15. The Department has met its burden of proof in this case.

16. The Department proved by clear and convincing evidence that Respondent engaged in the practice of barbering without an active license issued by the Department.

RECOMMENDATION

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

RECOMMENDED that Petitioner, Department of Business and Professional Regulation, enter a final order (1) finding that Respondent, David Blake, engaged the unlicensed practice of barbering, an act proscribed by Subsections 476.194(1)(a), Florida Statutes (2005), and (2) imposing an administrative fine of $500.00 for the violation.

DONE AND ENTERED this 1st day of August, 2006, in Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 2006.

COPIES FURNISHED:

Nicole M. Webb, Certified Law Clerk Charles Tunnicliff, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

David Blake

4144 Geranium Lane, No. 102

Sanford, Florida 32771

John Washington, Hearing Officer Office of the General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Josefina Tamayo, General Counsel Department of Business and

Professional Regulation Northwood Centre

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: 06-001431

Orders for Case No: 06-001431