STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Petitioner,

vs.

FRANCISCO PORTES,

Respondent.

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) Case No. 05-0771

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case before Carolyn S. Holifield, Administrative Law Judge of the Division of Administrative Hearings, on April 15, 2005, by video teleconference at sites in Orlando and Tallahassee, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

For Respondent: Francisco Portes, pro se

1421 Hart Boulevard

Orlando, Florida 32818 STATEMENT OF THE ISSUES

Whether Respondent, Francisco Portes, violated Subsections 476.194(1)(a), 476.194(1)(e)1., and 476.194(1)(e)2., Florida

Statutes (2003), and, if so, what disciplinary action should be imposed.

PRELIMINARY STATEMENT

On or about January 7, 2005, Petitioner, the Department of Business and Professional Regulation ("Department"), issued a three-count Administrative Complaint against Respondent. Count One of the Administrative Complaint alleged that Respondent engaged in the practice of barbering without an active license in violation of Subsection 476.194(1)(a), Florida Statutes (2003). Count Two of the Administrative Complaint alleged that Respondent owned and operated a barbershop, which was not licensed, in violation of Subsection 476.194(1)(e)1., Florida Statutes (2003). Finally, Count Three of the Administrative Complaint alleged that Respondent owned and operated a barbershop, in which a person not licensed as a barber was permitted to perform services, in violation of Subsection 476.194(1)(e)2., Florida Statutes (2003). Respondent disputed the facts in the Administrative Complaint and requested a formal hearing. The matter was forwarded to the Division of Administrative Hearings on March 2, 2005, for assignment of an Administrative Law Judge to conduct the hearing.

At hearing, the Department presented the testimony of Daniel Hogan, regional program administrator for the Department, and Patrick Hasley, an inspector for the Department. The

Department had seven exhibits received into evidence. Respondent testified on his own behalf and had three exhibits received into evidence.

The Administrative Law Judge took official recognition of Subsections 476.194(1)(a), 476.194(1)(e)1., and 476.194(1)(e)2.,

Florida Statutes (2003).

A Transcript of the hearing was filed on June 10, 2005.

The Department filed its Proposed Recommended Order on June 16, 2005. As of the date of this Recommended Order, Respondent has not filed a proposed recommended order.

FINDINGS OF FACT

1. At all times material hereto, Respondent was unlicensed as a barber by the Department's Barbers' Board of the State of Florida.

2. At all times material hereto, the name of the business located at 1447 North Pine Hills Road, Orlando, Florida (North Pine Hills address), was "Still Keeping It Real." That business was not licensed by Florida Barbers' Board.1/

3. The Department, though its employees, conducted a compliance sweep, and/or inspection, of the facility named "Still Keeping It Real" on February 7, 2004, after Petitioner received information that there was a "possible unlicensed barber shop or cosmetology salon" operating at that location.

4. David Hogan, a regional program administrator with the Department, and two of the Department's employees participated in the compliance sweep and inspection. Mr. Hogan has been employed with the Department for approximately ten years, during which he has attended numerous training sessions provided by the Department. At all times material hereto, Mr. Hogan was certified as an investigator by the Council on Licensure Enforcement and Regulation by Eastern Kentucky University.

5. On February 7, 2004, Mr. Hogan and the two inspectors initially conducted surveillance of the establishment located at the North Pine Hills address from a parking lot across the street from the establishment. There was a sign on the front of the building that said "Michael J's Still Keeping It Real" or "Michael J's Keeping It Real."

6. During the 15 to 20 minutes that Mr. Hogan and the inspectors observed the establishment, there were a number of cars parked in the establishment's parking lot and a number of people were observed coming and going from the establishment. Based on the foregoing observations, Mr. Hogan and the inspectors believed that they had sufficient cause to enter the building.

7. Once inside the establishment, Mr. Hogan conducted an inspection of the premises of "Still Keeping It Real." During the inspection, Mr. Hogan observed approximately four to six

   work stations, all of which had barbering and/or cosmetology implements set up at them. In a separate room at the establishment, there were also two more cosmetology stations.

8. Mr. Hogan conducted an inspection of each of the work stations at the establishment. Although there were individuals at some of the work stations performing various barbering services on customers in the chairs in the work stations, no barber or cosmetology licenses were posted in any of the work stations.

9. Upon request, with one exception, the individuals working at the various work stations would not produce identification. Moreover, none of the individuals working in the work stations produced either a cosmetologist license or barber license issued by the Department.

10. Within five to ten minutes of Mr. Hogan's entering the establishment, all but one of the individuals working there and their customers left the premises. The only remaining individual working in the establishment completed the haircut he was giving his customer. After the haircut was completed, the customer paid the person who cut his hair and then left the establishment.

11. As of February 7, 2004, the date of the inspection, Respondent had owned and operated the business establishment at the North Pine Hills address for approximately three months.

12. The name of the business establishment located at the North Pine Hills address, immediately prior to Respondent's becoming the owner and operator of the business, was "Michael J's Keeping It Real." However, when Respondent took over the business, he named it "Still Keeping It Real."

13. During the February 7, 2004, inspection, Respondent gave Mr. Hogan one of Respondent's business cards. Imprinted on the business card was the name of the business establishment, "Still Keeping It Real"; the address of the business, "1447 N. Pine Hills Road, Orlando, Florida"; and Respondent's name, "Frank Portes." The word "barber" was imprinted on the business card immediately below Respondent's name.

14. Respondent testified that he performed services at "Still Keeping It Real" and that he did not have a barber's license at the time of the inspection.

15. Although not licensed as a barber, Respondent mistakenly believed that because he had completed cosmetology school and registered for the cosmetology examination, he could work under the supervision of someone with a license. Respondent testified that he was working under the supervision of Michael J., the previous owner of the establishment, who, at the time of the inspection, still worked at the establishment. However, at the time of the inspection, Michael J. was not on the premises of the establishment. Furthermore, no evidence was

    presented at this proceeding to establish that Michael J. was licensed as either a barber or cosmetologist by the Department.

16. Under limited circumstances, individuals who have graduated from cosmetology school may cut hair and perform other services included within the statutory definition of cosmetology prior to obtaining their cosmetology license, if they are supervised by a licensed cosmetologist. See §§ 477.013(4) and 477.019(4), Fla. Stat. (2003). However, graduates of cosmetology schools who have failed the cosmetology examination twice may not practice under the supervision provision in Subsection 477.019(4), Florida Statutes (2003).

17. Respondent graduated from cosmetology school about two and a half years ago. After completing cosmetology school, Respondent took the cosmetology licensure examination twice, but failed to pass the examination. Because he was unsuccessful in passing the examination, Respondent planned to go back to cosmetology school for 200 more hours and then re-take the cosmetology licensure examination.

18. A person who is licensed as a cosmetologist or properly working under the supervision of a licensed cosmetologist, may cut hair and perform other services included within the definition of both "barbering" and "cosmetology." (See Subsections 476.034(2) and 477.013(4), Florida Statutes (2003), which reflect that the definition of "cosmetology"

    encompasses many of the services also included in the definition of "barbering.")

19. Respondent was ineligible to provide barbering services under either of the qualifying circumstances described in paragraph 18. First, based on Respondent's testimony, he was not licensed as either a barber or a cosmetologist. Second, despite Respondent's mistaken belief to the contrary, even if it is assumed that Michael J. was licensed and present on the premises at the time of the inspection, Respondent was ineligible to perform services under the supervision of a licensed person pursuant to Subsection 477.019(4), Florida Statutes (2003), because he had failed the licensure examination twice.

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2004).

21. The Department has jurisdiction over Respondent pursuant to Chapters 455, 476, and 477, Florida Statutes (2003).

22. Subsection 476.194(1), Florida Statutes (2003), enumerates acts that are prohibited under Chapter 476, Florida Statutes (2003), which establishes the regulatory scheme for

    barbering. That subsection provides, in pertinent part, the following:

    Prohibited acts.--

    
    

    1. It is unlawful for any person to:

       
       

       (a) Engage in the practice of barbering without an active license as a barber issued pursuant to the provisions of this act by the department.

       
       

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       (e) Own, operate, maintain, open, establish, conduct, or have charge of, either alone or with another person or persons, a barbershop:

       
       

       1. Which is not licensed under the provisions of this chapter; or

          
          

       2. In which a person not licensed as a barber is permitted to perform services.

       
       

23. Section 476.204, Florida Statutes (2003), establishes penalties for engaging in any of the acts enumerated therein and for violations of various statutory provisions, including Section 476.194, Florida Statutes (2003).

24. Section 476.204, Florida Statutes (2003), provides in pertinent part the following:

    1. It is unlawful for any person to:

       
       

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       (h) Violate any provision of s. 455.227(1), s. 476.194, or s. 476.214.

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    2. Any person who violates any provision of this section shall be subject to one or more of the following penalties, as determined by the board:

       
       

       1. Revocation or suspension of any license or registration issued pursuant to this chapter.

          
          

       2. Issuance of a reprimand or censure.

          
          

       3. Imposition of an administrative fine not to exceed $500 for each count or separate offense.

          
          

       4. Placement on probation for a period of time and subject to such reasonable conditions as the board may specify.

          
          

25. Here, the Department alleges that Respondent committed acts prohibited by Section 476.194, Florida Statutes (2003), and seeks to impose administrative fines. Accordingly, the burden is on the Department to establish the facts upon which its allegations of misconduct are based by clear and convincing evidence. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996).

26. The Department has met its burden of proof in this case.

27. The Department proved by clear and convincing evidence that Respondent engaged in the practice of barbering without an active license as a barber issued by the Department. In fact,

    not only was this evidence undisputed, Respondent admitted that he engaged in such practice without a license.

28. The Department proved by clear and convincing evidence that Respondent owned and operated a barbershop, which was not licensed under Chapter 476, Florida Statutes (2003). Respondent did not dispute this evidence and presented no evidence to rebut the clear and convincing evidence presented by the Department.

29. The Department proved by clear and convincing evidence that Respondent owned and operated a barbershop in which a person not licensed as a barber was permitted to perform services. Again, Respondent did not dispute this evidence and failed to present any evidence to rebut the clear and convincing evidence presented by the Department.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Petitioner, the Department of Business and Professional Regulation, enter a final order (1) finding that Respondent, Francisco Portes, engaged in acts proscribed by Subsections 476.194(1)(a), 476.194(1)(e)1., and 476.194(1)(e)2.,

Florida Statutes (2003); and (2) imposing an administrative fine of $500 for each violation for a total of $1,500.

DONE AND ENTERED this 18th day of July, 2005, in Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 2005.

ENDNOTE

1/ Respondent presented evidence that "Still Keeping It Real" was licensed as a cosmetology salon by the Department's Board of Cosmetology. However, the effective date of the license was September 17, 2004, more than seven months after the inspection, which is the subject of this proceeding.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Francisco Portes 1421 Hart Boulevard

Orlando, Florida 32818

John Washington, Hearing Officer Office of the General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Leon Biegalski, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

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.

Docket for Case No: 05-000771

Orders for Case No: 05-000771