132 DOS 93
Issued: November 12, 1993
STATE OF NEW YORK
DEPARTMENT OF STATE
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DIVISION OF LICENSING SERVICES,
Complainant,
-against-
DECISION
DAVID RYLES,
Barber and Owner of
CLIPPING GROUNDS,
Barber Shop,
Respondent.
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Administrative Law Tribunal
65 Court Street, Part 5, Buffalo, N.Y. 14202.
Held: September 22, 1993.
Before: Felix Neals, Administrative Law Judge.
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The respondent, Mr. David Ryles, 196 Genesee Street, Rochester, N.Y. 14611, was represented by Mr. Calvin Syms, 147 Carriage Street, Rochester, N.Y. 14608.
The complainant, the Division of Licensing Services, was represented by Mr. William Schmitz, Supervising License Investigator, 270 Broadway, New York, N.Y. 10007.
ISSUE
This matter was brought pursuant to the provisions of General Business Law, §442, to determine if the respondent: (1) Permitted an unregistered apprentice to act as an apprentice, a violation of the provisions of General Business Law, §444; and (2) employed more than one apprentice to engage in the practice of barbering in a barber shop attended by one licensed barber, a violation of the provisions of 19 New York Codes, Rules and Regulations, §165.2.
FACTS
On November 13, 1992, Mr. George Monroe, an investigator of the Division of Licensing Services, inspected the premises of the barber shop, Clipping Grounds, and observed the following: (1) Mr. Corey Minton cutting the hair of the head of a male customer. Posted in the barber shop was an apprentice's certificate of registration which had expired on June 25, 1992. (2) Two registered apprentice barbers, Mr. Anthony Jackson and Mr. Anthony Lane, each cutting the hair of the head of a male customer in the barber shop with only one master barber, Mr. Kenneth Townsend, then present in the barber shop. At the time of inspection, the respondent, Mr. David Ryles, was (and is currently) licensed both as a barber and as owner of the barber shop, Clipping Grounds.
The respondent's representative, Mr. Syms, admitted the charges of the complaint and asserted the defense: (1) That the respondent was unaware of the law relating the limitation of the number of apprentice barbers allowed to be simultaneously employed to engage in the practice of barbering in a barber shop to the number of licensed barbers in attendance in that barber shop.
In response to the respondent's contention of unawareness of the law, the State offered into evidence the office copy of a notice of violation issued to the respondent on October 15, 1992. That notice, signed by the respondent, cites three violations of law; the first violation of law cited states: "3 apprentice barbers working in the shop with only 2 master barbers in the shop. Only 1 apprentice can work in the shop per 3 master barbers in the shop per section 165.2."
As a defense to the allegations of permitting an apprentice to engage in the practice of barbering with an expired apprentice registration posted, the respondent contends that at the time of the investigator's inspection an application for renewal of the apprentice's certificate of registration was pending with the Division of Licensing Services. Evidence was not offered in support of that contention.
The respondent testified that the barber shop is currently operated in compliance with law.
OPINION
The provisions of 19 New York Codes, Rules and Regulations, §165.2, prohibit an owner of a barber shop from employing more than one apprentice in a barber shop in which three or less licensed barbers are in attendance. The respondent knew or should have known of that regulation that governs the practice of barbering. First, the respondent had the means of knowledge through the prior notice of violation dated October 15, 1992, served on and signed by the respondent, which states the regulation and cites a violation of that rule. Second, a licensee is charged with knowing the law that imposes a duty upon the licensee. A licensed barber is presumed to know the licensing law since the provisions of General Business Law, Article 28, do not connote a voluntary, intentional violation of a known legal duty, and proof of knowledge of the statutory obligations and prohibitions prescribed therein is not necessary to establish a violation either of the licensing law or of the rules and regulations thereunder promulgated.
The respondent's position is meritless that he is allowed by law to employ as an apprentice barber a person whose application for renewal of the certificate of registration is pending with the Division of Licensing Services. A person is forbidden to engage in the practice of barbering as an apprentice barber unless registered pursuant to the provisions of General Business Law, Article 28 (General Business Law, §432). The certificate of registration of the apprentice barber expired on June 29, 1992. The violation of law was discovered during an inspection by the Division of Licensing Services on November 13, 1992, more than four months after the date of expiration. Mr. Minton, the apprentice, had ample time in which to renew his certificate of registration with the Division of Licensing Services.
CONCLUSION OF LAW
The substantial evidence establishes that the respondent: (1) Permitted an unregistered apprentice to act as an apprentice in the barber shop, Clipping Grounds, in violation of the provisions of General Business Law, §444; and (2) employed two apprentices in a barber shop attended by only one licensed barber, a violation of the provisions of 19 New York Codes, Rules and Regulations, §165.2.
DETERMINATION
IT IS DETERMINED, according to the foregoing and pursuant to the provisions of General Business Law, §441, that the respondent violated the provisions of General Business Law, §432, and the provisions of 19 New York Codes, Rules and Regulations, §165.2.
IT IS FURTHER DETERMINED, according to the foregoing and pursuant to the provisions of General Business Law, §441, that the respondent shall pay a fine of $300 to the Division of Licensing Services on or before January 1, 1994, or in the event the fine is not timely paid, any license issued to the respondent pursuant to the provisions of General Business Law, Article 28, shall be suspended for a one-month duration of time, beginning January 1, 1994, and ending January 31, 1994.
From the testimony and evidence presented at the hearing, the above findings of fact, opinion, conclusion of law, and determination are made, and the adoption of this decision is recommended.
Felix Neals
Administrative Law Judge
Concur and So Ordered on: GAIL S. SHAFFER
11/12/93 Secretary of State
By:
James N. Baldwin Executive Deputy Secretary of State