13-004589PL Department Of Business And Professional Regulation, Barber&Apos;S Board vs. Andrew Archibald Status: Closed Recommended Order on Wednesday, February 26, 2014.

Summary: Barber's Board failed to clearly and convincingly establish that barber is guilty of the violations alleged in the Administrative Complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

BARBER ' S BOARD ,

Petitioner ,

vs. Case No. 13 - 4589PL

ANDREW ARCHIBALD ,

Respondent .

/

RECOMMENDE D ORDER

This case came before Administrative Law Judge Darren A.

Schwartz for final hearing by video teleconference on January 28,

2014, at sites in Tallahassee and Port St. Lucie, Florida.

APPEARANCES

For Petitioner: Mark Steven Miller, Esquire

Danijela Janjic, Esquire

Department of Business and

Professional Regulation

Suite 86

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent : Andrew Archiba ld , pro se

Building Eight , N umber 101

114 Southwest Peacock Boulevard

Port St. Lucie, Florida 32986

STATEMENT OF THE ISSUE S

Whether Respondent committed the violations alleged in the

Administrative Complaint, and, if so, what penalties should be

imposed on Respondent.

PRELIMINARY STATEMENT

On August 5 , 2013, Petitioner Department of Business and

Professional Regulation , Barber ' s Board ( " Petitioner " ) , issued a

five - count Administrative Complaint against Respondent Andrew

Archibald ( " Archibald " ) . The Administrative Complaint is

predicated upon allegations of the following violations of rules

of the Barber ' s Board : (Count I ) permanently laminated personal

licenses, with an attached photo graph, were not displayed at all

times at the barber ' s place of employment in plain view of the

work station , in violation of Florida Administrative Code Rule

61G3 - 19.009(1) ; (Count II ) failing to display the barbershop ' s

license within view of the front e ntrance or in the waiting area,

in violation of rule 61G3 - 19.009 (2) ; (Count III ) failing to post

the rules of sanitation, health, and safety within view of the

front entrance or in the waiting area, in violation of

rule 61G3 - 19.012(1); (Count IV ) failing to post a copy of the

most recent inspection report within view of the front entrance

or in the waiting area, in violation of rule 61G3 - 19.015(1); and

(Count V ) failing to maintain the barbershop ' s portable fire

extinguishers in compliance with the State F ire Marshal ' s Rules

and Regulations, in violation of rule 61G3 - 19.011(2)(c).

There is no specific allegation that Archibald personally

committed, or is personally culpable for, any of the offenses

which are the subject of the Administrative Complaint.

A rchibald timely filed an Election of Rights form on or

about September 11, 2013. On November 22, 2013 , the matter was

referred to the Division of Administrative Hearings ( " DOAH " ) to

assign an Administrative Law Judge to conduct the final hearing.

This ca se was initially assigned to Administrative Law Judge

John G. Van Laningham, and t he final hearing was set for

January 28, 2014, by video teleconference, with sites in

Tallahassee and Port St. Lucie, Florida. On January 23, 2014,

this matter was transfe rred to the undersigned for all further

proceedings .

The final hearing took place on January 28, 2014, as

scheduled, with both parties present. At hearing, Petitioner

presented the testimony of Yvonne Grutka , a nd offered Exhibits 1 ,

and 4 through 6 , all of w hich were admitted into evidence without

objection. Archibald testified on his own behalf and did not

offer any additional witnesses or exhibits.

The final hearing Transcript was filed on February 11, 2014 .

Petitioner timely filed a P roposed Recomme nded O rder, which w as

given consideration in the preparation of this Recommended Order.

Archibald did not file a proposed recommended order.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2011 Florida Statutes.

FINDING S OF FACT

1. Petitioner is the state agency charged with the

regulation of barbering and the inspection of barbershops in the

state of Florida pursuant to chapter 476, Florida Statutes.

2. At all times material hereto, Archibald was licensed as

a barber in t he state of Florida under license n umber BB8890016.

3. At all times material hereto, Fresh Cut Barbershop

( " barbershop " ) was licensed as a barbershop in the state of

Florida under license n umber 1077801 .

4. At all times material hereto, Archibald was an owner and

operator of the barbershop .

5 . On February 9, 2012, the barbershop was located within a

shopping plaza at 6 574 N orthwest Selvitz Road, Port St. Lucie,

Florida.

6 . On February 9, 2012, a routine inspection of the

barbershop was conducted by Ms. Yvonne Grutka, a trained and

experienced inspector employed by Petitioner . Ms. Grutka has

been employed by Petitioner as an Environmental Health Specialist

for approximately 17 years, perform ing approximately 1 , 200 - 1 , 400

annual inspections.

7. Due to the nature of the allegations of the

Administrative Complaint, t he physical layout of the barbershop,

including the specific location s of the front entrance , work

stations, and waiting area , is important to a clear understanding

and resolution of th e issues. However, insufficient evidence was

presented at hearing in this regard .

8. Moreover, in sufficient evidence was presented as to the

number of barbers who worked at the barbershop (and thus number

of personal licenses) ; the identities of the b arbers ; where

specifically within the barbershop they worked ; and whether the

barbers who worked at the barbershop were independent contractors

or employees of the business.

9 . The scant evidence presented at hearing demonstrates

that on February 9, 201 2, the p remises upon which the barbershop

was physically located was leased from the owner of the shopping

plaza. A separate beauty supply business , which was owned by

Archibald ' s e x - wife, was located at the front of the leased

premises . The barbershop w as located in a smaller area at the

back of the leased premises . Both businesses were accessible to

customers through a single entry door at the front of the leased

space where the beauty supply store was located .

10 . Petitioner failed to clearly and convincingly establish

that the barbershop was open for business during the February 9,

2012, inspection. During Ms. Grutka ' s February 9, 2012,

inspection, the only persons present at the barbershop were

Archibald and another unidentified barber. No evi dence was

presented that this " other barber " was affiliated with the

barbershop in any way. No physical description of this person or

his/her clothing was provided. It could be t hat this barber was

just visiting, and was unaffiliated with the barbershop. N o

customers were present . The time of commencement and duration of

the inspection is unknown .

1 1 . On the date of the February 9, 2012, inspection, the

property upon which the barbershop was located was in

foreclosure. As a result, Archibald was planning to vacate the

premises and move the barbershop to another location. During the

inspection, boxes of items were on the floor, and other items

were removed from walls, evidencing Archibald ' s intent to vacate

the premises.

1 2 . Archibald was present on the date of the inspection .

Archibald testified he is unsure whether the barbershop was open

for business on February 9, 2012 , because of his intent to vacate

the building. On rebuttal, Ms. Grutka did not " recall " whether

she " saw boxes or not. " Whe n asked specifically whether she

recalled Archibald saying that he was in the process of moving,

Ms. Grutka merely replied: " No. He may have. I really don ' t

recall. " 1/

1 3 . With respect to the allegation regarding the improper

display of p ersonal licens es, M s. Grutka testified on direct

examination that during the February 9, 2012, inspection, she did

not observe personal licenses posted with both the photograph and

lamination. She testified that the licenses had the photograph

or the lamination on " it, but one of the items was missing. "

However, n o evidence was presented by Petitioner on direct

examination as to the specific location of the alleged lack of

personal licenses, or the number or identities of the licensees

for which personal licenses were purportedly not properly

displayed.

1 4 . It was only on cross - examination that Ms. Grutka

referred to Archibald's personal license, at which time she

testified merely that she recalled seeing his personal license

located in the " back " of the premises. A rchibald testified that

he believes the license was displayed in the barbershop area,

which was located in the " back end " of the building.

Importantly, Ms. Grutka never testified specifically that

Archibald ' s license was im properly displayed in any way. In sum,

Petitioner failed to prove by clear and convi ncing evidence t hat

Respondent ' s personal license , or , for that matter, the personal

licenses of any other barbers who worked at the barbershop were

i mproperly d isplayed .

1 5 . With respect to the issue s of the display of the

barbershop license, rules of sanitation, and most recent

inspection report , Ms. Grutka testified that during the

February 9, 2012, inspection, she did not observe a barber shop

license displayed visibly within view of the " front doo r, " or the

rules of sanitation, health , and safety visibly within view of

the " front door " or " waiting area. " Nor did Ms. Grutka observe

the most recent inspection form prior to the February 9, 2012,

inspection displayed within view of the " front entrance " or the

" waiting area. " According to Ms. Grutka, she did not observe the

barbershop license and r ules of sanitation, health , and safety,

anywhere at the barbershop on the day of the inspection.

1 6 . However, Ms. Grutka ' s testimony is unreliable and

can not be credited because of insufficient evidence of the

physical layout of the premises . In fact, Ms. Grutka testified

that she could not recall whether the " waiting area " was in the

front of the building, the back of the building, or in both

areas. More over, Ms. Grutka did not " recall " if the most recent

inspection report was posted anywhere else in the barbershop.

The unreliability of Ms. Grutka ' s testimony is further

demonstrated through the following exchange , which occurred

during Archibald ' s cross - examination of her :

Q: Questions for - - You said you never seen any of our

license or anything in the back end ?

A: Yes, they were up - - not in the back. Your personal

licens es I remember, you know, were in the back, but I don ' t

recall the inspecti on sheet and stuff being moved to the

back of the shop . . . . "

17. Further undercutting the reliability of Ms. Grut k a ' s

testimony is her statement that the rule regarding the display of

a barbershop license requires that the license be visibly within

v iew of the front door. Contrary to Ms. Grut k a ' s testimony, rule

61G3 - 19.009(2) states that " [t]he shop license shall be displayed

within view of the front entrance or in the waiting area. "

Apparently, Ms. Grut k a did not even consider whether the license

was displayed in the " waiting area , " because she could not

identify the location of the " waiting area. "

18. Moreover, Ms. Grut k a testified that she wrote in the

report that the shop license was not " anywhere to be found in the

shop. " However, a review of the inspection report does not

support her testimony. In fact, a section within the inspection

report titled : " Remarks , " was left blank. Nothing was written in

the inspection report indicating that the shop license was

nowhere in the barbershop. In sum, there is i nsufficient clear

and convincing evidence to conclud e that the barbershop license ,

rules of sanitation, or most recent inspection report w ere not

properly displayed.

1 9 . Finally, during the February 9, 2012, inspection,

Ms. Grutka tes tified she did not observe a recent sticker on the

portable fire extinguisher indicating that it had been inspected.

According to Ms. Grutka, portable fire extinguishers must be

inspected on an annual basis, " as per the Fire Marshall, and they

would have a sticker on them indicating that they had been

inspected. "

20 . At hearing, Archibald did not admit to the allegations

of the Administrative Complaint. Rather, Archibald persuasively

explained that if personal and business licenses and the rules of

sa nitation and most recent inspection repo r t were not displayed

during the February 9, 2012, inspection, it was because the

property was in foreclosure, items had been removed from the

walls, items were placed in boxes, and he was planning on moving

the barb ershop to another location. In fact , t he barbershop

vacated the premises sometime in 2013, and relocated to another

shopping plaza.

21 . At the conclusion of the February 9, 2012, inspection,

Ms. Grutka prepared and signed an inspection report indicating

the violations noted in the report, and she informed Archibald of

the alleged violations. Archibald acknowledged his receipt of

the report.

22. No evidence was presented indicating that a f ollow - up

inspection of the barbershop was ever scheduled or oc curred . No

citation has ever been issued for the February 9, 2012,

inspection.

23. No evidence was presented establishing a prior history

of persistent or flagrant violations of t he same nature as th ose

alleg ed in t he Administrative Complaint. The evid ence at hearing

established that even if personal and business licenses, the

rules of sanitation, and the most recent inspection report were

not properly displayed on the date of the February 9, 2012,

inspectio n, it was an isolated incident. 2 /

24 . Impo rtantly, t he facts adduced at hearing do not

clearly and convinc ingly establish that Archibald personally

engaged in any misconduct resulting in the five charges which are

the subject of the Administrative Complaint. The evidence failed

to establish, clea rly and convincingly, that Archibald personally

committed, or is personally culpable for, a disciplinary offense

which is the subject of the Administrative Complaint.

CONCLUSIONS OF LAW

2 5 . The Division of Administrative Hearings has personal

and subje ct matter jurisdiction in this proceeding pursuant to

sections 120.569 and 120.57(1), Florida Statutes (2011) .

2 6 . Section 476.204, Florida Statutes (2011) , under which

Archibald has been charged, provides, in pertinent part:

476.204 Penalties. -

(1 ) It is unlawful for any person to:

* * *

(i ) Violate or refuse to comply with any

provision of this chapter or chapter 455 or a

rule or final order of the board.

2 7 . Barber " means a person who is licensed to engage in the

practice of barberi ng in this state " under chapter 476, Florida

Statutes. § 476.034(1) , Fla. Stat. (2011) .

2 8 . Barbershop " means any place of business wherein the

practice of barbering is carried on. " § 476.034(3), Fla. Stat.

(2011).

2 9 . The purpose of the rules a nd statutes governing

barbering and barbershops is to insure that the public is

protected from the incompetent practice of barbering, to protect

the public safety, to educate the license holder, and to correct

inappropriate conduct on his part. § 476.024 , Fla. Stat. (201 1 ).

" However, restrictions should be imposed only to the extent

necessary to protect the public from recognized dangers and in a

manner which will not unreasonably affect the competitive

market. " Id .

30 . Section 476.184, Florida S tatutes (2011) , under which

Archibald has been charged in Counts I and II of the

Administrative Complaint , governs the display of licenses in a

barbershop , and provides, in pertinent part:

476.184 Barbershop licensure; requirements;

fee; inspection; lice nse display. -

* * *

(10) Each barbershop shall display, in a

conspicuous place, the barbershop license and

each individual licensee ' s certificate.

31 . Florida Administrative Code Rule 61G3 - 19.009 , under

which Archibald has been charged in Count s I and II of the

Administrative Complaint , further provides, as follows:

61G3 - 19.009 Display of License.

(1 ) A current personal license shall be

displayed at all times at the barber ' s place

of employment in plain view of the work

station. The license or registration on

display shall be the original certificate or

a duplicative issued by the Department and

shall have attached a 2 " by 2 " photograph

taken within the previous two years of the

individual whose name appears on the

certificate. The certific ate with photograph

attached shall be permanently laminated as of

July 1, 2008.

(2) The shop license shall be displayed

within view of the front entrance or in the

waiting area.

32 . Rule 61G3 - 19.0123 , under which Archibald has been

charged in Co unt III of the Administrative Complaint , governs the

posting of sanitation, health, and safety rules, and provides, as

follows:

61G3 - 19.012 Posting of Sanitation, Health,

and Safety Rules Required.

The owner or manager of every barbershop

shall keep a c opy of the rules of sanitation,

health, and safety adopted by the Board

posted within view of the front entrance or

in the waiting area in each barbershop for

the information and guidance of the persons

employed therein and the public generally.

33 . Rule 61G3 - 19.015(1) , under which Archibald has been

charged in Count IV of the Administrative Complaint , governs the

posting of inspection reports, and provides, as follows:

61G3 - 19.015 Inspections .

(1 ) Inspections conducted by the Department

of Busine ss and Professional Regulation of

barbershops to determine whether such

barbershops are in compliance with the

applicable provisions of Chapter 476, F.S.,

and the rules promulgated thereunder shall be

conducted biennially, effective July 1, 2010,

on a rand om unannounced basis, unless

otherwise practicable. A copy of the

inspection report shall be posted within view

of the front entrance or in the waiting area

of the barbershop for public viewing.

34 . Rule 61G3 - 19.011(2) ( c) , under which Archibald has be en

charged in Count V of the Administrative Complaint , governs the

maintenance of portable fire extinguishers, and provides, as

follows:

61G3 - 19.011 Barbershop Requirements.

(2) Each barbershop and each barber shall

take reasonable steps to in sure that the shop

and indivi dual service area, respectively is

maintained and operated in a safe and

sanitary manner. Such steps shall include

the following:

* * *

(c) Maintenance of portable fire

extinguishers, type, placement and n umber

required needed to protect the public and

property, shall be in compliance with the

State Fire Marshal ' s Rules and Reg ulations,

Chapter 4A - 21, F.A.C.;

3 5 . Due process prohibits an agency from taking

disciplinary action against a licensee based on conduct not

specifically alleged in an administrative complaint. Cottrill v.

Dep ' t of Ins ., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996);

Bridlewood Group Home v. Agency for Persons with Disabilities ,

2013 Fla. App. LEXIS 20108 (Fla. 2nd DCA December 20, 201 3) ;

Kinney v. Dep ' t of State, Div. of Licensing , 501 So. 2d 129 (Fla.

5th DCA 1987) .

3 6 . Moreover, vicarious liability and respondeat superior

principles are inapplicable to this proceeding. To impose

discipline against Archibald ' s license, Petitioner must clearly

and convincingly prove misconduct personal to the licensee.

Brother J. Inc. v. Dep ' t of Bus. and Prof. Regulation, Div. of

Alcoholic Beverages and Tobacco , 962 So. 2d 1037 (Fla. 1st DCA

2007); Pic N ' Save Central Fla., Inc. v. Dep ' t of Bus.

R egulation, Div. of Alcoholic Beverages and Tobacco , 601 So. 2d

245, 249 - 56 (Fla. 1st DCA 1992). This means that a licensee

cannot be punished unless it is established that he personally

committed, or is personally culpable for, a disciplinary offense.

Pe rsonal culpability attaches, for example, when a licensee

knows, or should know, about the misconduct of his employees;

negligently fails to train or supervise employees; negligently

overlooks, condones, or fosters the wrongdoing of employees; or

fails to exercise due diligence in preventing misconduct. Pic N '

Save , 601 So. 2d at 250.

3 7 . Significantly, moreover, to establish a licensee ' s

personal liability in regard to a violation for which discipline

may be imposed, Petitioner must present evidence of the minimum

standards of conduct against which the licensee ' s performance can

be judged. As the court stated in Pic N ' Save :

Proof by clear and convincing evidence of a

licensee ' [s] negligent training or lack of

diligence in supervising its employees

r equires more than merely proving that three

illegal sales occurred on the licensee ' s

premises during a six - month period. The

imposition of personal responsibility on the

licensee for illegal sales by its employees

requires proof of minimum standards of

co nduct, either by adopted rules,

communicated agency policy, or expert

testimony, against which the licensee ' s

alleged misconduct can be judged. Otherwise,

determining when a licensee is to be held

responsible for employee misconduct will

become simply a m atter of personal opinion

held by the hearing officer or the Division

on a case - by - case basis without any firm

standard for uniformity in application or

enforcement.

Id . at 256.

3 8 . In certain cases, the agency ' s proof might be assisted

by the a pplication of a permissible inference. For example, the

fact - finder may infer that the licensee failed to satisfy the

minimum standards of conduct if his employee ' s wrongful actions

were persistent, flagrant, or carried out in a " practiced

manner. " Id . a t 252 - 54. 3/

3 9 . Finally , in a proceeding, such as this one, to suspend,

revoke, or impose other discipline upon a professional license is

penal in nature. State ex rel. Vining v. Fla. Real Estate

Comm ' n , 281 So. 2d 487, 491 (Fla. 1973). Accordingl y, to impose

discipline, Petitioner has the burden of proving by clear and

convincing evidence the allegations set forth in the

A dministrative C omplaint against Archibald . Dep ' t of Banking &

Fin., Div. of Secs. & Investor Prot. v. Osborne Stern & Co ., 670

So. 2d 932, 933 - 34 (Fla. 1996); Ferris v. Turlington , 510 So. 2d

292, 294 - 95 (Fla. 1987). This is a heavy burden. Fla. Bd. Of

Bar Examiners re: J.J.T ., 761 So. 2d 1094, 1095 (Fla. 2000);

Smith v. DHRS , 522 So. 2d 956, 958 (Fla. 1 st DCA 1988).

40 . The " clear and convincing evidence " standard requires

that the evidence be found credible, the facts to which the

witnesses testify must be distinctly remembered, the testimony

must be precise and explicit, and the witnesses must be lacking

in confusion as to the facts in issue. The evidence must be of

such weight that it produces in the mind of the trier of fact a

firm belief or conviction, without hesitancy or ambiguity , as to

the truth of the allegations sought to be established. In re

Davey , 645 So. 2d 3 98, 404 (Fla. 1994); Slomowitz v. Walker , 429

So. 2d 797, 800 (Fla. 4 th DCA 1983).

41 . Applying the foregoing legal principles to the instant

case, the Administrative Complaint should be dismissed on

numerous grounds. First, the Administrative Complai nt does not

sufficiently allege a basis for imposing discipline against

Archibald. Nowhere in the A dministrative Complaint is there any

allegation that Archibald personally committed, or is personally

culpable for, a disciplinary offense which is the subj ect of the

Administrative Complaint. Petitioner did not orally or by

written motion request at the hearing an amendment to the

Administrative Complaint to allow such an allegation. Thus,

Archibald was not p ut on proper notice of the claims against his

pe rsonal license that could potentially result in a finding of

guilt.

42 . Even if the Administrative Complaint sufficiently

alleged facts upon which disciplinary action could be taken

against Archibald ' s license (which it does not) , a s set forth in

the fin dings of fact contained herein, the undersigned has

determined, as a matter of ultimate fact, that Petitioner failed

to establish, by the requisite level of proof, that Archibald is

guilty of the offenses of which he stands accused.

43 . When Ms. Grutka te stified, she failed to testify as to

facts which were distinctly remember ed . Her testimony was not

precise and explicit, but rather general, ambiguous, confusing

and vague in nature. This is understandable because for some

reason not apparent from the ev idence , the Administrative

Complaint wa s not issued until more than one and a half years

after the February 9, 2012 , inspection, and there was no

follow - up inspection. By the time this case went to hearing,

almost two years had elapsed since the inspecti on, and Ms. Grutka

had conducted more than 2 , 000 inspections.

44. As detailed in the findings of fact contained herein,

the evidence adduced at hearing failed to clearly and

convincingly establish that the barbershop was open for business

during the Fe bruary 9, 2012, inspection. The only persons

present during the inspection were Ms. Grutka, Archibald, and an

unidentified barber, whose identity and pu rpose for being at the

premises are unknown. On the date of the inspection, the

property upon which th e barbershop was located was in

foreclosure. The unrebutted evidence established that boxes of

items were on the floor because Arc hibald planned on vacating the

premises.

45 . The purpose of the rules and statutes governing

barbering and barbershops i s not met by subjecting an individual

licensee to discipline for the alleged improper display of items

in a barbershop, where the business is not open for business on

the date of the inspection, and the licensee is packing up items

intending to move the bu siness to another location.

4 6 . Moreover, as detailed in the findings of fact contained

herein, the evidence adduced at hearing failed to clearly and

convincingly establish that Archibald ' s personal license (or

those of any other barbers who worked at the barbershop for that

matter), were improperly displayed; that the business license was

improperly displayed; and that the most recent inspection report

and rules of sanitation, were improperly displayed.

4 7 . Even if Petitioner had submitted clear and con vincing

evidence that other personal licenses (besides Archibald ' s

license) were not properly displayed, and that the barbershop

license, rules of sanitation, and most recent inspection report

were also not properly displayed (which it did not), the

Admini strative Complaint should still be dismissed because, as

detailed in the findings of fact contained herein, the evidence

adduced at hearing failed to clearly and convincingly establish

that Archibald personally committed, or is personally culpable

for, the disciplinary offense. In making these ultimate factual

determinations, the undersigned notes that Petitioner presented

no proof of minimum standards of conduct -- either by adopted

rules, communicated agency policy, or expert testimony -- against

which t he licensee ' s alleged misconduct could be judged.

Instead, the Boar d would have shown merely an isolated instance

of items not being displayed. There is simply no proof

whatsoever that Archibald or any other employee of the barbershop

flagrantly, persist ently, or skillfully (in a " practiced " manner)

improperly displayed the items which are the subject of the

Administrative Complaint.

4 8 . Finally, the undersigned will briefly address Count V

of the Administrative Complaint , and Petitioner ' s assertion that

Archibald is guilty of violating rule 61G3 - 19.011 because the

portable fire extinguisher lacked the requisite recent inspection

sticker. Archibald cannot be found guilty on Count V because

rule 61G3 - 19.011 purports to incorporate a n administrative rule

o f another agency ( c hapter 4A - 21), that no longer exist s.

4 9 . Incorporation by reference occurs when legislation

references material outside of itself and indicates expressly or

by implication that the material should be treated as if it were

fully set forth in the legislation. F. Scott Boyd, Looking Glass

Law: Legislation by Reference in the States , 68 La. L. Rev.

1201, 1210 (2008). The Administrative Procedures Act ( " APA " )

addresses the subject of incorporati on by reference in its

provisions govern ing rulemaking. Section 120.54(1)(i), Florida

Statutes (2011) , provides, in pertinent part, as follows:

(i) 1. A rule may incorporate material by

reference but only as the material exists on

the date the rule is adopted. For purposes

of the rule, chang es in the material are not

effective unless the rule is amended to

incorporate the changes.

2. An agency rule that incorporates by

specific reference another rule of that

agency automatically incorporates subsequent

amendments to the referenced rule un less a

contrary intent is clearly indicated in the

referencing rule. A notice of amendments to

a rule that has been incorporated by specific

reference in other rules of that agency must

explain the effect of those amendments on the

referencing rules.

50 . In the present case, n owhere in rule 61G3 - 19.011 is

there a requirement that portable fire extinguishers be

inspected, and that an inspection sticker be placed on a portable

fire extinguisher. Petitioner seeks to rely on c hapter 4A - 21,

which is purpo rtedly incorporated by reference into rule

61G3 - 19.011. However, c hapter 4A - 21 of the Florida

Administrative Code no longer exist s . Chapter 4A - 21 was not a

rule adopted by the Petitioner, and a t no time was rule

61G3 - 19.011 amended to incorporate any o ther provision of the

Florida Administrative Code . Thus, rule 61G3 - 19.011 provides no

basis for discipline against Archibald ' s personal license. 4/ Even

if it did, Petitioner ' s claim against Archibald would fail for

the same reasons Counts I - IV fail.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered finding

Respondent not guilty on all counts of the Administrative

Complaint.

DONE AND ENTERED this 2 6 th day of February , 20 14, in

Tallahassee, Leon County, Florida.

S

DARREN A. SCHWARTZ

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Fi ling (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 6 th day of February , 2014 .

ENDNOTE S

1/ The undersigned has considered, and rejected, Petitioner ' s

contention that the barbershop " was open f or business as the

lights were on, the door was opened, and there were people

inside. " That lights were on, a door was opened, and there were

people inside does not, clearly and convincingly, establish that

the barbershop was open for business during the inspection,

particularly when the totality of the testimony presented at the

hearing is considered. Moreover, a careful review of page 32 of

the Transcript, upon which Petitioner relies, demonstrates that

the question posed by Petitioner's counsel to Ms. Grutka in

support of Petitioner ' s position was patently leading , further

discounting the weight that should be given to her answer.

2 / Notably, Ms. Grutka conducted a prior inspection of the

barbershop in March 2010, at which time she noted that a porta ble

fire extinguisher was not " maintained in accordance with rule

61G - 19.011(2)(c). " This was the only violation that a Notice of

Noncompliance was issued for at the time of the March 2010,

inspection. When Ms. Grutka returned for a follow - up inspection

after the March 2010, inspection, she did not see that the

violation had been cured so she imposed a $50.00 fine, which was

due to be paid by August 30, 2010. However, the fine for the

fire extinguisher violation was not paid until August 29, 2012.

Ms. G ru tk a testified that the 2010 violation has nothing to do

with the February 9, 2012, inspection. Ms. Grutka also performed

two other inspections of the barbershop prior to the February 9,

2012, inspection. No evidence was presented by Petitioner

demonstr ating that any violations were found during these two

other inspections. Finally, Ms. Grutka performed an inspection

of the barbershop in 2013, after the business moved to a new

location. The only alleged violation in 2013, albeit at a new

location, pert ained to a sink, which is unrelated to any of the

charges which are the subject of the Administrative Complaint.

3/ Petitioner incorrectly contends that Pic N ' Save is

distinguishable because Archibald was not " sanctioned for actions

of his employee, " r ather, " the Department took action against

Archibald based on his own conduct as a barber shop owner and a

licensed barber. " To suggest that Petitioner took action against

Archibald because he is an owner of the barber shop is simply

a nother way of saying that Archibald is vicariously liable or

responsible for the actions of someone else based on a theory of

respondeat superior . To accept Petitioner ' s argument would

render Pic N Save meaningless. Furthermore, as detailed in the

findings of fact, no persu asive clear and convincing evidence was

presented to demonstrate that Archibald personally committed, or

is personally culpable for, a disciplinary offense which is the

subject of the Administrative Complaint, such that he could be

found guilty pursuant to the standards enunciated in Pic N ' Save .

Furthermore, Petitioner ' s reliance on Beshore v. Dep ' t of

Fin. Servs ., 928 So. 2d 411 (Fla. 1st DCA 2006), is misplaced.

In that case, " Appellant direct ly represented an unauthorized

insurer. " Thus, the cl ear and convincing evidence was that the

Appellant personally committed the offense for which he was

charged. In the instant case, no such persuasive clear and

convincing evidence was presented.

Finally, Petitioner mistakenly suggests that Pic N ' Save is

inapplicable to the instant matter because Petitioner has

announced in its Proposed Recommended Order that it seeks only a

monetary penalty against Archibald. The specific type of remedy

sought in a disciplinary proceeding is irrelevant to the

det ermination of whether Pic N ' Save applies or not. Rather, it

is the penal nature of the licens ure disciplinary proceeding

which is controlling . Dias de la Portilla v. Fla. Elections

Comm ' n . , 857 So. 2d 913, 917 - 18 (Fla. 3d DCA 2003).

4/ Furthermore, a reference generally to an entire chapter of the

Florida Administrative Code, such as 4A - 21, is too broad to

inform Archibald of the specific law allegedly violated. Dep't.

of Ins. a nd Treasury v. Nat'l . Fire and Safety Corp., et a l . ,

Case No. 97 - 2921 (Fla . DOAH Dec. 12, 1997) .

COPIES FURNISHED:

Andrew Archibald

Building Eight , N umber 101

114 Southwest Peacock Boulevard

Port St. Lucie, Florida 34986

Mark Steven Miller, Esquire

Danijela Janjic, Esquire

Department of Business

and Professional Regulatio n

Suite 86

1940 North Monroe Street

Tallahassee, Florida 32399

J. Layne Smith, General Counsel

Department of Business

and Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

Robyn Barineau, Executive Directo r

Barber ' s Board

Department of Business

and Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

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.