15-000951 Department Of Business And Professional Regulation vs. Martin Rosales Status: Closed Recommended Order on Friday, May 22, 2015.

Summary: Petitioner proved that Respondent practiced barbering without a license and presented as his own the barbering license of another. An administrative fine of $500 is recommended.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

Petitioner,

vs. Case No. 15 - 0951

MARTIN ROSALES,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing in this cause was held

by video teleconference between sites in Tampa and Tallahassee,

Florida, on April 24, 2015, before Linzie F. Bogan,

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petition er: Stephen Lowell Johnson, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street , Suite 42

Tallahassee, Florida 32399 - 2202

For Respo ndent: Martin Rosales , pro se

3318 Maple Mex Street

Wimauma, Florida 33598

STATEMENT OF THE ISSUE S

Whether Respondent, Martin Rosales 1/ (Respondent), engaged in

the practice of barbering without a license and dis played as his

own the barbering license of another , and, if so, what

administrative penalty should be imposed.

PRELIMINARY STATEMENT

On or about January 5, 2015, Petitioner, the Department of

Business and Professional Regulation (Petitioner), issued an

Adm inistrative Complaint against Respondent. The Administrative

Complaint alleges that Respondent engaged in the practice of

barbering without a license in violation of section 476.204(1)(a),

Florida Statutes (2014), 2/ and that Respondent, in violation of

se ction 476.204(1)(d), presented as his own the barbering license

of another person. Respondent timely requested a formal hearing,

and the matter was referred to the Division of Administrative

Hearings on February 19, 2015, for assignment of an a dministrati ve

l aw j udge to conduct a disputed - fact hearing.

At the hearing, Petitioner presented the testimony of its

employee John Miranda, who works for Petitioner as an inspector.

PetitionerÓs Exhibits 1 through 8, 10 and 11, were received into

evidence. Respond ent testified and his Exhibit 1 was received

into evidence.

A t ranscript of the final hearing was not filed with the

Division of Administrative Hearings. Petitioner filed its

Proposed Recommended Order on May 14, 2015. As of the date of

this Recommended Order, Respondent has not filed a proposed

recommended order.

FINDING S 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. John Miranda, during all times rel evant to this

p roceeding, was employed by Petitioner as an inspector.

Mr. Miranda's job responsibilities include conducting inspections

of barbershops.

3. On September 13, 2014, Petitioner, through its employee,

Mr. Miranda, inspected the premises of S anchez Barbershop/Salon

(Barbershop). During the inspection, Mr. Miranda observed, and

photographed, Respondent performing barbering services on a

customer. Specifically, Respondent was cutting a customer's hair.

4. During the inspection on September 1 3, 2014,

Mr. Miranda briefly exited the barbershop in order to retrieve

something from his vehicle. As Mr. Miranda was returning to the

shop , he observed Respondent fleeing the premises. Mr. Miranda

did not give chase , and Respondent did not return to t he

Barbershop prior to Mr. Miranda completing the inspection.

5. Upon re - entry to the Barbershop, Mr. Miranda saw , at the

work - station where he observed Respondent, a barberÓs license

displaying RespondentÓs photographic image and the name Joseph

Garcia. Respondent and Joseph Garcia are not the same person.

Respondent publicly displayed the barberÓs license of another as

if it were his own.

6. Respondent does not challenge the merits of the

Administrative Complaint but instead defends against the acti on on

the ground that he is the victim of mistaken identity. According

to Respondent, he is not the person appearing in the photographs

taken by Mr. Miranda on September 13, 2014.

7. Mr. Miranda testified, without hesitation or reservation,

that Respond ent is the person that he observed in the Barbershop

on September 13, 2014. His certainty as to RespondentÓs identity

is bolstered by the fact that he had dealings with Respondent

prior to September 13, 2014, and, at the time of the inspection,

was famili ar with RespondentÓs appearance.

8. During the final hearing, Mr. Miranda, while sitting

approximately five feet from Respondent, affirmed that Respondent

is the person that he observed providing barbering services on

September 13, 2014. Additionally, t he person depicted in the

photographs taken during the inspection by Mr. Miranda bears a

definite physical resemblance to Respondent. The undersigned is

convinced that Respondent is the person that Mr. Miranda observed

performing barbering services at the Barbershop on the day in

question.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has jurisdiction

over the parties to and the subject matter of this proceeding

pursuant to sections 120.569, 120.57(1), and chapters 455 and 476,

Florida Sta tutes.

10. Petitioner, pursuant to section 20.165 and chapters 455

and 476, Florida Statutes, is the state agency charged with the

regulation of barbers and barbershops in the State of Florida.

11. In the instant case, Petitioner alleges that Responden t

committed acts prohibited by 476.204(1)(a) and (d), Florida

Statutes, and seeks to impose an administrative fine.

12. Section 476.204(1)(a) provides that it is unlawful for

any person to Ð[h]old himself or herself out as a barber unless

duly licensed.Ñ

13. Section 476.204(1)(d) provides that it is unlawful for

any person to Ð[p]resent as his or her own the license of

another.Ñ

14. In its Proposed Recommended Order, Petitioner

specifically requests that Respondent be ordered to Ðpay an

administrative penalty in the amount of $500.00.Ñ This proposed

penalty is authorized by section 476.204(2)(c), which provides

that a violation of any provision of section 476.204 shall result

in the Ð[i]mposition of an administrative fine not to exceed $500

for each c ount or separate offense.Ñ

15. Because Petitioner seeks to impose an administrative

penalty, which is a penal sanction, Petitioner has the burden of

proving by clear and convincing evidence the specific allegations

in the Administrative Complaint. See, e.g. , DepÓt of Banking &

Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987); Pou v. DepÓt of Ins. and

Treasurer , 707 So. 2d 941 (Fla. 3d DCA 1998).

16. Clear and convincing evidence Ðrequires more pr oof than

a Òpreponderance of the evidenceÓ but less than Òbeyond and to the

exclusion of a reasonable doubt.ÓÑ In re: Graziano , 696 So. 2d

744, 753 (Fla. 1997).

17. Petitioner has met its burden of proof in this case.

18. Petitioner proved by clear an d convincing evidence that

Respondent engaged in the practice of barbering without a license

issued to him by the Department and that Respondent unlawfully

presented as his own the barberÓs license of another.

19. There is no evidence that Respondent pre viously engaged

in conduct similar to that alleged in the Administrative

Complaint. Accordingly, an administrative fine of $250 for each

count is reasonable and in accordance with statutory guidelines.

RECOMMENDATION

Based on the foregoing Findings of Fa ct and Conclusions of

Law, it is

RECOMMENDED that Petitioner, Department of Business and

Professional Regulation, enter a final order finding that

Respondent, Martin Rosales:

1) Engaged in the unlicensed practice of barbering, an act

proscribed by secti on 476.204(1)(a);

2) Displayed as his own the barberÓs license of another, an

act proscribed by section 476.204(1)(d); and

3) Imposing an administrative fine of $500 payable to

Petitioner within 30 calendar days of the effective date of the

final order entered in this case.

DONE AND ENTERED this 22nd day of May , 2015 , in Tallahassee,

Leon County, Florida.

S

LINZIE F. BOGAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee P arkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of May , 2015 .

ENDNOTE S

1/ The Administrative Complaint lists ÐMartin Ros alesÑ as

Respondent. During the final hearing, Respondent confirmed that

ÐRosalezÑ is the correct spelling of his surname. Given its use

in the caption of the Administrative Complaint, the incorrect

spelling of ÐRosalesÑ will be used herein for purposes of

consistency. It is recommended that the caption of the final

order reflect the correct spelling of RespondentÓs name.

2/ All subsequent references to Florida Statutes will be to 2014,

unless otherwise indicated.

COPIES FURNISHED:

Stephen Lowell J ohnson, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street , Suite 42

Tallahassee, Florida 32399 - 2202

(eServed)

Martin Rosales

3318 Maple Mex Street

Wimauma, Florida 33598

J. Yvette Pressley, Hearing Officer

Departmen t of Business and

Professional Regulation

1940 North Monroe Street , Suite 42

Tallahassee, Florida 32399 - 2202

(eServed)

William N. Spicola, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florid a 32399 - 2202

(eServed)

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.