09-000974PL Department Of Business And Professional Regulation, Barbers` Board vs. Elvis O`neil Crooks Status: Closed Recommended Order on Monday, May 11, 2009.

Summary: Unpaid citations became final orders of the Department, not the Barbers` Board, and, therefore, Respondent did not fail to comply with final orders of the Board as charged in the Amended Administrative Complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

BARBERS' BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-0974PL

)

ELVIS O'NEIL CROOKS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot,

the assigned Administrative Law Judge of the Division of

Administrative Hearings, on April 2, 2009, by video

teleconference with sites in Tampa and in Tallahassee, Florida.

APPEARANCES

For Petitioner: Philip F. Monte, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

For Respondent: Elvis O'Neil Crooks, pro se

7117 Wrenwood Circle

Tampa, Florida 33617

STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the

allegations in the Amended Administrative Complaint filed

against him, and, if so, what disciplinary action should be

taken against him, if any.

PRELIMINARY STATEMENT

On October 27, 2008, Petitioner Department of Business and

Professional Regulation filed an Administrative Complaint

against Respondent Elvis O'Neil Crooks, alleging that he had

violated a statute regulating his conduct as a barber.

Respondent timely requested an administrative hearing regarding

the allegations in that Administrative Complaint, and Petitioner

transferred this matter to the Division of Administrative

Hearings to conduct the evidentiary proceeding.

On February 25, 2009, Petitioner requested leave to file an

amended administrative complaint to correct a scrivener's error

and represented that Respondent had no objection. Petitioner's

motion was granted by order entered March 3, 2009, and the

Amended Administrative Complaint filed February 25, 2009, became

the charging document in this cause as of the date of that

Order.

Petitioner presented the testimony of Dana Ewaldt.

Respondent testified on his own behalf. Additionally,

Petitioner's Exhibits numbered 1 and 3-6 were admitted in

evidence.

The Transcript of the final hearing was filed on April 13,

2009. Respondent waived his right to submit a proposed

recommended order, and Petitioner filed its Proposed Recommended

Order on April 21, 2009. Those documents have been considered

in the entry of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been

licensed as a restricted barber and operating under the name of

Miracles in Motion, located in Tampa, Florida.

2. On May 9, 2006, the Department issued a Uniform

Disciplinary Citation against Respondent in case numbered

2006030590 in the amount of $400. The fine, due to be paid by

July 9, has not been paid.

3. On October 13, 2006, the Department issued a Uniform

Disciplinary Citation against Respondent in case numbered

2006058259 in the amount of $250. The fine, due to be paid by

December 24, has not been paid.

4. Also on October 13, 2006, the Department issued a

Uniform Disciplinary Citation against Respondent in case

numbered 2006058271 in the amount of $250. The fine, due to be

paid by December 24, has not been paid.

5. On October 24, 2006, the Department issued a Uniform

Disciplinary Citation against Respondent in case numbered

2006063364 in the amount of $400. The fine, due to be paid by

December 24, has not been paid.

6. Respondent did not dispute the facts contained in these

four Citations. Under the terms of the Citations, they,

therefore, automatically became final orders 30 days after they

were issued. Since Respondent has not paid those fines, he

fails to be in compliance with four final orders of the

Department.

7. The total amount of fines not paid by Respondent

pursuant to the four Citations involved in this proceeding is

$1,300.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction over the subject matter hereof and the parties

hereto. §§ 120.569 and 120.57(1), Fla. Stat.

9. The Amended Administrative Complaint filed in this

cause alleges that Respondent violated Section 476.204(1)(i),

Florida Statutes, by failing to comply with four final orders.

10. In this proceeding, the Department has the burden of

proving its allegations against Respondent by clear and

convincing evidence. Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987). The Department has met its burden factually but failed

to meet its burden legally.

11. Section 476.204(1)(i), Florida Statutes, authorizes

disciplinary action against a licensee who refuses or fails to

comply with a final order of the board. It does not authorize

the Barbers' Board to take disciplinary action against a

licensee who refuses or fails to comply with a final order of

the Department.

12. Although Respondent testified that he paid the fines

in question, he offered no documentary evidence that he did so.

He testified that he only retains business records for one year.

He also testified that he made no attempt to obtain copies of

his cancelled checks from his bank, and, although encouraged to

do so at the conclusion of the final hearing by both the

undersigned and the Department's attorney, submitted no

documentation showing payment through the time that the

Department filed its Proposed Recommended Order.

13. A computer print-out of Respondent's history of

citations provided by the Department and admitted in evidence

without objection reflects that the Department has issued ten

citations to Respondent and that the fines imposed by six of

them have been paid. The six paid citations may well be the

ones that Respondent recalls paying. Accordingly, the evidence

is clear and convincing that Respondent failed to pay the fines

imposed by the four Citations involved in this proceeding.

14. Section 455.224, Florida Statutes, establishes the

authority to issue citations and provides in Subsection (1) that

if the subject of the citation does not dispute the matter in

the citation "with the department" within 30 days after it was

served, the citation becomes a final order. Accordingly, by

operation of law the four Citations issued by the Department in

this case became final orders, but they became final orders of

the Department, not of the Board, since they were issued by the

Department and not by the Board.

15. The determination that the Citations became final

orders of the Department and not of the Board is the only

permissible conclusion because no evidence was offered that the

Board adopted the Department's final orders as its own and

because no statute which automatically converts the Department's

final orders into final orders of the appropriate board has been

found. Further, this is more than a technical nuance because

the underlying statute Respondent is charged with violating in

the Amended Administrative Complaint filed in this cause which

proscribes violating a final order of the Board is strictly

construed. Childers v. Department of Environmental Protection ,

696 So. 2d 962 (Fla. 1st DCA 1997); Rush v. Department of

Professional Regulation, Board of Podiatry , 448 So. 2d 26 (Fla.

1st DCA 1984).

16. Accordingly, the Department has failed to prove by

even a preponderance of the evidence that Respondent is guilty

of violating Section 476.204(1)(i), Florida Statutes, the only

statutory violation alleged in the Amended Administrative

Complaint.

17. Even had the Department proven that Respondent failed

to comply with final orders of the Board, the relief sought by

the Department in this proceeding is not authorized. The

Department seeks in this proceeding that Respondent be

reprimanded, be fined $1,300, and be required to pay costs.

18. The Barbers' Board has established the range of

penalties permissible for violations of the statutes within its

jurisdiction. Florida Administrative Code Rule 61G3-21.001(13)

provides that upon proof that a licensee has violated Section

476.204(1)(i), the Board may impose a fine ranging from $250 to

$500. Interestingly, the Rule attempts to avoid the distinction

between final orders of the Department and final orders of the

Board by characterizing Section 476.204(1)(i), Florida Statutes,

as prohibiting "failing to pay a citation within 30 days or

violating a final order." The notices of legal rights attached

to the Citations involved in this case specifically provide that

Respondent had 60 days to pay each Citation, and Section

476.204(1)(i) limits failure to comply with final orders to only

final orders of the Board.

19. Petitioner has not proven that Respondent violated the

description of the statute contained in the rule. However, even

if Petitioner had proven the statutory violation as described in

the statute, the Amended Administrative Complaint filed in this

cause contains only one count alleging a single violation of

Section 476.204(1)(i) although four Citations were factually

alleged. Accordingly, there can only be, pursuant to the

Board's penalty guidelines Rule, one fine imposed and it must be

in the range of $250 to $500.

20. In its Proposed Recommended Order, the Department

offers no explanation for how it determined that a reprimand and

a $1,300 fine would be an appropriate penalty. Florida

Administrative Code Rule 61G3-21.001(13) does not provide for a

reprimand for a violation of Section 476.204(1)(i), Florida

Statutes. The requested fine of $1,300 is, perhaps

coincidentally, the amount of the unpaid Citations but is far in

excess of the amount of fine allowed by Rule 61G3-21.001(13).

It would appear that the Department is attempting in this

proceeding to enforce its final orders resulting from the unpaid

Citations, but the Division of Administrative Hearings has no

jurisdiction to enforce final orders.

21. As to the Department's desire to have its costs paid

by Respondent, even if the Department had prevailed in this

proceeding, no evidence was offered as to what costs were

expended so that the relevance and reasonableness of each item

of cost could be determined in this Recommended Order.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered finding that

Respondent is not guilty of violating Section 476.204(1)(i),

Florida Statutes, and dismissing the Amended Administrative

Complaint filed against him.

DONE AND ENTERED this 11th day of May, 2009, in

Tallahassee, Leon County, Florida.

S

LINDA M. RIGOT

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of May, 2009.

COPIES FURNISHED:

Robyn Barineau, Executive Director

Barbers' Board

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

Philip F. Monte, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

Elvis O'Neil Crooks

7117 Wrenwood Circle

Tampa, Florida 33617

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.