STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF )

PROFESSIONAL REGULATION, BARBERS BOARD, ) DOAH CASE NO. 89-4452

) DPR CASE NO. 0108179

Petitioner, )

vs. ) DOAH CASE NO. 89-4453

) DPR CASE NO. 0097551

ROFFLER HAIR DESIGN COLLEGE, )

) DOAH CASE NO. 89-4454

Respondent. ) DPR CASE NO. 0093417

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above-captioned cases on September 19, 1989, in Room 415, Richard P. Daniel Building, 111 East Coastline Drive, Jacksonville, Florida. The authority for the conduct of this formal hearing is set forth in Section 120.57(1), Florida Statutes. Charles C. Adams was the Hearing Officer in substitution for Robert T. Benton, II, Hearing Officer.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Stewart Arnett Smith, Jr.

5110 University Boulevard West Jacksonville, Florida 32216

STATEMENT OF THE ISSUES

The issues in these cases concern several administrative complaints brought by the State of Florida, Department of Professional Regulation against Respondent. In DOAH Case No. 89-4454/DPR Case No. 0093417, Respondent is alleged to have employed a number of individuals to practice as barber instructors who have not been licensed by the State of Florida. In addition, allegations were placed that Respondent had not met sanitation standards required by law; that barbering students and instructor trainees were not under the constant supervision of a licensed instructor; that insufficient numbers of instructors were provided based upon the preceding months' average daily attendance; that a current inspection rating sheet, as well as a copy of the sanitation rules were not displayed; that a full-time instructor statement of employment was not available; that students/school contracts were not available and that a drinking fountain of bottled water needed to be refilled, as revealed in an inspection of January 7, 1988. In DOAH Case No. 89-4453/DPR Case No.

0097551 pertaining to an inspection of April 8, 1988, Respondent is said to have employed a Calvin Gates to practice as a barber instructor without Gates having been issued a license from the State of Florida. Finally, DOAH Case No. 89- 4452/DPR Case No. 0108179 alleges that by inspection of November 17, 1988, it

was revealed that Joseph Kaufmann had been employed to teach barbering by Respondent and was operating on an expired barber instructor's license, which had expired approximately August 1, 1988.

PRELIMINARY STATEMENT

This Recommended Order is being entered following the receipt and review of the transcript of this hearing which was filed with the Division of Administrative Hearings on September 28, 1989. The exhibits offered have also been examined. The parties have submitted proposed recommended orders which contain suggested fact finding. Respondent filed his proposed recommended order on October 8, 1989, followed by Petitioner's filing of October 17, 1989. The facts that are described in these proposals are discussed in an Appendix to the Recommended Order.

FINDINGS OF FACT

1. Respondent is a licensed barber school in the State of Florida which operated at 5863 University Boulevard W. and 4416 Brentwood Avenue in Jacksonville, Florida, at times significant to these administrative complaints.

   
   

2. On January 7, 1988, Gail Hand, an inspector for Petitioner, inspected the Brentwood Avenue facility. This inspection was a routine quarterly inspection.

   
   

3. The Jacksonville, Florida, operations of the Roffler Hair Design College are 50% owned by Stewart Arnett Smith, Sr. and 50% owned by Stewart Arnett Smith, Jr., his son.

   
   

4. On January 7, 1988, Hand was accompanied in her inspection by Cheryl Baker, whom she understood to be the manager based upon Baker's remarks. In fact, Baker was a secretary; and the actual manager of the facility was an individual named Mattz, who was out ill on this date. Mattz, at that time, was a licensed barber instructor. Neither of the owners were in attendance at the commencement of the inspection. Arnett Smith, Jr. had left to go to his other facility on University Boulevard. He was summoned back to the Brentwood Avenue barber school to participate in the inspection. He arrived approximately 20 to

   40 minutes later.

   
   

5. During the inspection, Velma Chambers was observed by Hand to be seated in a classroom while a student spoke to the class. At this time, Chambers was an instructor trainee. She had entered into a contract with Respondent on May 14, 1987 to be completed by November 14, 1987 pertaining to 600 hours of course instruction directed toward her becoming a barber instructor. Nonetheless, beyond the date of November 14, 1987, she was still at the school in a capacity, which was other than a licensed instructor in Florida, and under these facts is found to have been a barber instructor trainee on this date. In addition, a work schedule for instructors at the facility, be they licensed barber instructors or instructor trainees, showed Chambers to be filling the role of instructor at the school. Although this schedule had not been prepared by the owners, it was provided to Hand by the younger Smith upon his arrival at Brentwood Avenue on the inspection date. Baker had also pointed Chambers out as being one of the instructors in the facility.

   
   

6. Calvin Gates, who was on the floor in the Brentwood Avenue facility, was pointed out by Baker as the instructor on the floor. The floor is where services are given to the public, as distinguished from the classroom, where

   theory is taught. Gates was not a licensed barber instructor in Florida on the date in question. He, too, had entered into a contract to receive course work toward his instructor's license. His contract with Respondent commenced on September 15, 1987 to be consummated on March 15, 1988.

   
   

7. A Dave Dison was found in a room where mannequins are kept and the students are allowed to practice. Dison was pointed out by Baker as being certified for the new students, and Baker commented that Dison's license was at the University Boulevard facility. This is taken to mean that Dison was a licensed barber instructor, whose license was not available at the Brentwood Avenue facility. Having considered the remarks of Baker made to Hand and the testimony of the younger Smith at hearing, it is unclear whether his employment was that of licensed instructor or as instructor trainee waiting a license examination to become a barber instructor. In either case, he had not been licensed by the State of Florida as a barber instructor on the date of the inspection. His name does not appear in the schedule of instructors; but on the date of inspection, he was observed instructing new students using mannequins. According to the investigative report, which comments are credited, the younger Smith admitted to Hand that Dison did not have a Florida license and that Dison had commented to Smith that he, Dison, was having problems with his license in Mississippi. Subsequent to the time of inspection, Dison was dismissed as an employee of Respondent.

   
   

8. Terry B. Collier and Patricia Frances Wilson were shown on the schedule to have instructor duties related to the floor duty for Collier and classroom duty for Wilson. Shirley Johnson was shown as having unspecified duties from 9:00 a.m. to 1:00 p.m. on Thursday. None of these persons were in attendance on the date of inspection, nor did they have barber instructor licenses at that time. It can be fairly inferred that they were considered by Respondent to be instructor trainees. It cannot be fairly inferred that any knowledge which they might impart on some date other than the inspection date would be in a setting in which the ratio of students to licensed instructors was not in keeping with legal requirement or that they were allowed to pursue their duties as trainee instructors without appropriate supervision from licensed instructors. The process of teaching people to become instructors contemplates the opportunity for those persons to also instruct while undergoing their training. To be successful in an allegation of impropriety by Respondent, proof has to be offered that these persons were, on some date, allowed to instruct without appropriate supervision and in a situation in which the ratio of licensed instructors to students was inadequate. That was not shown as it pertains to the three trainee instructors not in attendance at the time of inspection. The fact that the younger Smith told Hand that he thought the instructor trainees could teach students and be counted as part of the required number of instructors does not change this impression.

   
   

9. In addition to Mattz, who was out ill, an individual whose name is Parks was scheduled to work at the Brentwood Avenue facility on the inspection date. Parks was a licensed instructor at the time. He had left the building for some undisclosed reason before the time of the inspection. A Mr. Lewis was also a licensed instructor, who was scheduled to work at the Brentwood Avenue facility on that date; but he was not due in the facility until 1:00 p.m. and had not arrived at the time of the inspection. Although the younger Smith has an instructor's license, he was not performing the function of instructor on the inspection date and was not listed on the schedule of instructors.

   Effectively, this meant that although students were undergoing instruction, that instruction was being provided by persons who were not licensed instructors and under the supervision of licensed instructors.

10. On the date of the inspection, Baker calculated the average daily attendance to be 105 students. She had some difficulty in arriving at this figure. The younger Smith spoke to Hand on January 11, 1988 by telephone in which he suggested that that figure of 105 should be corrected to 56, based upon some mistake made by the secretary. On January 15, 1988, a letter bearing the signature of Cheryl Baker was written concerning the average daily attendance in which it was reported that she had stated the attendance as 90 and that the correct daily attendance should be 59. Whatever the true figure, students were in attendance and they were not receiving instruction from licensed barber instructors.

    
    

11. The inspection also revealed that the current inspection rating sheet and sanitation rules had not been posted or displayed. The explanation by Smith was that the facility had been recently painted and that they had not been put back in their usual place. Hand asked for a copy of the missing inspection rating sheet and sanitation rules but does not recall whether she was shown a copy of these items. The reason why the items pertaining to the current inspection rating sheet and sanitation rules were not produced, based upon Hand's recollection, was that they could not be found.

    
    

12. On April 8, 1988, Hand returned to the Brentwood Avenue facility for further inspection and observed Gates teaching. On that occasion, he was introduced by Mattz as the other instructor on duty, with Mattz being one of the two instructors. Seventeen students were present at that time. Two instructors would have been needed to offer instruction to that many students. The average daily attendance on that date was 72 students. On that date, Gates was not licensed by the State of Florida as a barber instructor.

    
    

13. On a later date, Hand spoke to the younger Smith about the inspection. On this occasion, Smith changed his point of view from the situation in which he had commented at the first inspection of January 17, 1988. In that earlier inspection, he had stated that he thought that trainees could teach students and be counted as the required number of instructors. In the discussion regarding the April 8, 1988 inspection, he indicated that he did not count instructor trainees as instructors and that Hand must have misunderstood his comments during the previous inspection. On the occasion of the inspection of April 8, 1988, Hand was provided confirmation of Gates' employment, which stated that he was employed as an instructor at the school. The younger Smith tried to explain the circumstance with Gates on the basis that Gates had already taken his barber instructor test and that he had been notified that he had failed and that he had to retake the test and had appealed it with success. All of this information is hearsay and not subject to use for fact finding. Regardless of the true situation of Gates' attempt to gain his barber instructor license, he did not have a license on April 8, 1988 and should not have been allowed to instruct and be counted in the census of licensed instructors.

    
    

14. On November 17, 1988, Hand conducted a routine inspection of the University Boulevard West facility. She found Joseph Kaufmann practicing with an expired instructor's license which was displayed. Kaufmann told Hand that he had renewed his license in August of 1988 but that it was returned with a request for an additional $50.00 late fee. Respondent's Exhibit No. 3 admitted into evidence is a form dated August 2, 1988 pertaining to this license and states that the renewal and fee had been postmarked after the expiration date of July 31, 1988. As a consequence, the basic fee of $50.00 was being returned with the expectation that the request for relicensure should be resubmitted with a total amount of $100.00 being paid, $50.00 for the basic license and $50.00

    for a penalty and for reinstatement. Respondent's Exhibit No. 3A admitted into evidence is another form dated December 1, 1988 from Petitioner which states that the renewal and check in the amount of $100.00 was being returned because the request was being processed and the enclosed check was, not required.

    Respondent's Exhibit No. 4 admitted into evidence is a copy of postmarks of August 1, 1988 purportedly from Kaufmann, and November 29, 1988, again, purportedly from Kaufmann. Respondent's Exhibit No. 2 admitted into evidence is a letter from Mr. Tunnicliff, as chief attorney for the Department of Professional Regulation, addressed to Kaufmann, in which it is indicated that any action against Kaufmann was being dismissed associated with the complaint that Kaufmann was practicing with an expired instructor's license. It indicates that although probable cause was believed to exist, that Kaufmann had violated practice standards, in light of the circumstances, it was determined to dismiss the action. This is said to have been based upon the perception that while Kaufmann was practicing with an expired license because of miscommunication between Kaufmann and the Barbers Board, there had been a delay in the renewal of the license.

    
    

15. Respondent was notified by telephone on November 22, 1988 concerning the Kaufmann situation. The younger Smith told Hand in that telephone conversation that Kaufmann had renewed his license and had shown Respondent's representative, the younger Smith, a copy of a money order received. Kaufmann had told Hand that on August 1, 1988, he had resubmitted his basic fee with an additional $50.00. Kaufmann showed Hand a copy of a money order receipt with no date. He did not have any correspondence available that he had received from Petitioner concerning his renewal. Hand checked with the office of the Barbers Board on November 21, 1988 and was told that the license had not been renewed and no money had been received. Kaufmann told Hand on the inspection date that because of some problems with mail, they received his money and sent it back because it was late and said that he owed another $50.00 which coincides with the remarks of Respondent's Exhibit No. 3. By contrast, in the conversation of November 21, 1988 between Hand and the Barbers Board, Hand was being told that the Barbers Board had received no money. The younger Smith, with the indication of a money order being sent by Kaufmann to renew his barber instructor license and a remark that he had sent his money in and that he had not received the license renewal back, assumed that things were acceptable. The younger Smith also took solace in the fact that there are problems at times with license renewals, which have to be rectified. Nonetheless, it is evident that Kaufmann was operating as a licensed instructor on November 17, 1988 without having received his license renewal and under the auspice of a license that was being displayed and clearly showed that it was no longer in effect.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case under the authority of Section 120.57(1), Florida Statutes.

    
    

17. Petitioner has the burden of proving by clear and convincing evidence that the alleged violations in these cases have occurred. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

18. In DOAH Case No. 89-4454/DPR Case No. 0093417, in Counts I through VI, Respondent is alleged to have violated Rule 21C-26.005(1), Florida Administrative Code, pertaining to the requisite number of instructors at schools of barbering based upon the average daily attendance for the preceding month. Given that on January 7, 1988, at the time of inspection, the average

    daily attendance was at least 56 students, three instructors would have been necessary to operate the barber college at the time of inspection. In fact, no licensed instructors were available at that time. Those persons who are identified in Count I through III; namely, Velma M. Chambers, Calvin Gates, and Dave Dison, were not licensed instructors. Consequently, Respondent, on this occasion, has violated that Rule and Sections 476.194(1)(b) and 476.204(1)(i), Florida Statutes, and is subject to the penalty set forth in Section 476.204(2), Florida Statutes, as further implemented by Rule 21C-21.001(13), Florida Administrative Code. Although three counts have been alleged relating to each of the instructors, it is, in essence, only one violation on the one date of inspection. Counts IV through VI are associated with persons who are listed on the work schedule for instructors but who were not in attendance on that date, and their activities do not make Respondent accountable. Those persons are in Counts IV through VI; Terry B. Collier, Shirley Johnson and Patricia Frances Wilson. The range of penalties for this violation are from $250.00 to $500.00. The recommended penalty is a $500.00 fine.

    
    

19. In Count VII, there is another reference to the supervision by licensed instructors and the insufficiency of the number of instructors based upon the preceding months' average daily attendance. This reference is seen as a redundancy for which no further penalty should be imposed. Among the other items set forth in this Count is a reference to meeting sanitation standards which has not been proven. Neither has the matter of the allegation of the failure to have a full-time instructor statement of employment available and student contracts available, as well as a drinking fountain of bottled water type needing to be refilled been proven. What was shown is that the school failed to display the current inspection rating sheet and a copy of the sanitation rules. This violated Rule 21C-26.011, Florida Administrative Code, and thereby violated Sections 476.194(1)(b) and 476.204(1)(i), Florida Statutes, and subjected Respondent to the penalties announced in Section 476.204(2), Florida Statutes, as implemented by Rule 21C-21.001(16), Florida Administrative Code. That latter reference allows the imposition of a $250.00 to $500.00 fine per violation. In this instance, the recommended penalty for failure to display is $250.00.

    
    

20. DOAH Case No. 89-4453/DPR Case No. 0097551 deals with the April 8, 1988 inspection in which Gates, an unlicensed instructor, was there as one of the instructors of the two needed. On that date, 17 students were in attendance; and the average daily attendance was 72. Respondent violated Rule 21C-26.005(1), Florida Administrative Code, and Sections 476.194(1)(b) and 476.204(1)(i), Florida Statutes. Therefore, Respondent is subject to the penalties set forth in Section 476.204(2), Florida Statutes, as implemented by Rules 21C-21.001(13) and 21C-21.002, Florida Administrative Code, the latter provision pertaining to aggravating and mitigating circumstances. This was the second occasion of allowing the operation to proceed without sufficient instructors in attendance; the first occasion being January 7, 1988. Under those circumstances, a $500.00 fine is recommended for the violation of April 8, 1988.

    
    

21. In DOAH Case No. 89-4452/DPR Case No. 0108179, Respondent is said to have violated Section 476.194(1)(a), Florida Statutes, which is a provision that prohibits the engagement of the practice of barbering without an active license. It is also alleged that Respondent violated Section 476.204(1)(a), Florida Statutes, which makes it unlawful for a person to hold himself out as a barber or barber instructor unless duly licensed. In this connection, Respondent is also said to have violated Section 476.204(1)(h), Florida Statutes, which makes it unlawful for a person to violate any of the provisions of Section 476.194.

    As a consequence, Respondent is said to have violated Section 476.204(1)(c), Florida Statutes, which makes it unlawful to permit an employed person to practice barbering unless duly licensed. Only that latter provision pertains to Respondent. The other provisions have to do with the responsibility of Kaufmann in operating without a valid license. Respondent has violated Section 476.204(1)(c), Florida Statutes. Given the situation with Kaufmann, it is recommended, under Section 476.204(2)(b), Florida Statutes, that Respondent receive a written reprimand.

    
    

22. Effective October 1, 1989, regulation of barber colleges has been removed from the State of Florida, Department of Professional Regulation, Barbers Board, and placed with the State Board of Independent Postsecondary Vocational, Technical, Trade and Business Schools. Disposition of this case is left to that latter entity. See Chapter 89-344, Laws of Florida.

RECOMMENDATION

Based upon the consideration of the facts and the Conclusions of Law, it is RECOMMENDED that a Final Order be entered which fines Respondent in the

amount of $1,250.00 and entering a letter of reprimand in the disciplinary file associated with DOAH Case No. 89-4452/DPR Case No. 0108179.

DONE and ORDERED this 31st day of October, 1989, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1989.

APPENDIX TO RECOMMENDED ORDER

IN CASE NOS. 89-4452, 89-4453, 89-4454

The following disposition is made of the proposed facts of the parties: Petitioner's Facts

Paragraphs 1 through 3 are subordinate to facts found.

Paragraph 4 is subordinate to facts found, except for its reference to the inspection date as being April 13, 1988. The inspection date was April 8, 1988.

Paragraph 5 is subordinate to facts found as far as it is stated in the unnumbered page 4. It appears that some of the Proposed Recommended Order is missing to include the balance of the fact finding at an unnumbered page 5.

Respondent's Facts

The facts pertaining to DOAH Case No. 89-4452 are subordinate to facts found.

The facts pertaining to DOAH Case No. 89-4453 are rejected. The documented information related to the Calvin Gates contract, which is Respondent's Exhibit No. 6 admitted into evidence, shows the conclusion of his training on March 15, 1988, before the inspection of April 8, 1988. The relevant fact is that Gates was not a licensed instructor on April 8, 1988.

The comments pertaining to DOAH Case No. 89-4454, which refer to a letter of September 1, 1988 from Robert C. Kent, Esquire, have been taken into account in the fact finding in the Recommended Order.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Professional

Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Stewart Arnett Smith, Jr.

5110 University Boulevard West Jacksonville, Florida 32216

Samuel L. Ferguson, Executive Director Department of Education

State Board of Independent Postsecondary Vocational, Technical Trade and Business Schools

209 Collins Building Tallahassee, Florida 32399-0400

Kenneth E. Easley, Esquire Department of Professional

Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Myrtle Aase, Executive Director Department of Professional

Regulation Barbers Board

1940 North Monroe Street Tallahassee, Florida 32399-0792

Robert C. Kent, Esquire 1532 Atlantic Boulevard Post Office Box 10174 Jacksonville, Florida 32207

Charles S. Ruberg, Esquire Department of Education The Capitol, Suite 1701

Tallahassee, Florida 32399-0400

Docket for Case No: 89-004452

Orders for Case No: 89-004452