The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what penalties should be imposed on Respondent.
Findings Of Fact 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. At all times material hereto, Archibald was licensed as a barber in the state of Florida under license number BB8890016. At all times material hereto, Fresh Cut Barbershop ("barbershop") was licensed as a barbershop in the state of Florida under license number 1077801. At all times material hereto, Archibald was an owner and operator of the barbershop. On February 9, 2012, the barbershop was located within a shopping plaza at 6574 Northwest Selvitz Road, Port St. Lucie, Florida. 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, performing approximately 1,200-1,400 annual inspections. Due to the nature of the allegations of the Administrative Complaint, the physical layout of the barbershop, including the specific locations of the front entrance, work stations, and waiting area, is important to a clear understanding and resolution of the issues. However, insufficient evidence was presented at hearing in this regard. Moreover, insufficient evidence was presented as to the number of barbers who worked at the barbershop (and thus number of personal licenses); the identities of the barbers; where specifically within the barbershop they worked; and whether the barbers who worked at the barbershop were independent contractors or employees of the business. The scant evidence presented at hearing demonstrates that on February 9, 2012, the premises 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 ex-wife, was located at the front of the leased premises. The barbershop was 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. 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 evidence 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 that this barber was just visiting, and was unaffiliated with the barbershop. No customers were present. The time of commencement and duration of the inspection is unknown. 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. 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." When 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/ With respect to the allegation regarding the improper display of personal licenses, Ms. 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, no 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. 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. Archibald 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 improperly displayed in any way. In sum, Petitioner failed to prove by clear and convincing evidence that Respondent's personal license, or, for that matter, the personal licenses of any other barbers who worked at the barbershop were improperly displayed. With respect to the issues 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 barbershop license displayed visibly within view of the "front door," 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 rules of sanitation, health, and safety, anywhere at the barbershop on the day of the inspection. However, Ms. Grutka's testimony is unreliable and cannot 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. Moreover, 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 licenses I remember, you know, were in the back, but I don't recall the inspection sheet and stuff being moved to the back of the shop " Further undercutting the reliability of Ms. Grutka's testimony is her statement that the rule regarding the display of a barbershop license requires that the license be visibly within view of the front door. Contrary to Ms. Grutka'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. Grutka did not even consider whether the license was displayed in the "waiting area," because she could not identify the location of the "waiting area." Moreover, Ms. Grutka 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 insufficient clear and convincing evidence to conclude that the barbershop license, rules of sanitation, or most recent inspection report were not properly displayed. Finally, during the February 9, 2012, inspection, Ms. Grutka testified 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." 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 sanitation and most recent inspection report 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 barbershop to another location. In fact, the barbershop vacated the premises sometime in 2013, and relocated to another shopping plaza. 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. No evidence was presented indicating that a follow-up inspection of the barbershop was ever scheduled or occurred. No citation has ever been issued for the February 9, 2012, inspection. No evidence was presented establishing a prior history of persistent or flagrant violations of the same nature as those alleged in the Administrative Complaint. The evidence 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, inspection, it was an isolated incident.2/ Importantly, the facts adduced at hearing do not clearly and convincingly 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, clearly and convincingly, that Archibald personally committed, or is personally culpable for, a disciplinary offense which is the subject of the Administrative Complaint.
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 26th day of February, 2014, 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 Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 2014.
Findings Of Fact Respondent was issued barber license number BB-0012083 on June 26, 1959, and has been continuously licensed as a barber since that time. No previous disciplinary action has been initiated or taken against Respondent's license. Barber shop license number BS-0008388 was issued to Respondent on October 10, 1984, but expired on October 1, 1986. A late renewal was issued for Respondent's barber shop license on February 1, 1988, and he currently has a valid barber shop license. Respondent does not dispute that he operated his barber shop at 1010 Grace Street, Tampa, Florida, between October 1, 1986 and February 1, 1988 while shop license BS-0008388 was expired. He was specifically observed by Petitioner's investigator to be operating said shop without a current valid license on January 23, 1988. It is the position of Respondent that he sent the renewal fee for his license, but it was either lost in the mail or incorrectly applied to someone else's license. However, no proof was offered by Respondent to support his claim. He testified that he sent his renewal fee by October, 1986, but the check stub he introduced shows a date of June 11, 1987. Additionally, he offered no explanation of the discrepancy in his testimony that he never received any notice to renew from Petitioner prior to October, 1986, and his contention that he mailed the renewal fee in a timely manner. Based upon a review of the evidence, including the witnesses' demeanor, it is found that Respondent failed to apply for renewal of his barber shop license and operated his barber shop without a current valid license from October, 1986 to February, 1988.
Recommendation Based upon the foregoing, it is recommended that Petitioner impose a $50.00 administrative fine against Respondent for operating a barber shop without a current valid license. DONE AND ENTERED this 7th day of July, 1988, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1795 Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 3. COPIES FURNISHED: Ronald Jones, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Willie Mitchell, Jr. 1010 Grace Street Tampa, Florida 33607 Myrtle Aace, Executive Director Barbers Board Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Respondent Michael Harris is a licensed cosmetologist having been issued license number CL 0104278. However, respondent's license has not been current from July 1, 1982 through at least July 24, 1984. Prior to April 13, 1983, respondent acquired and began operating Northwood Barber Shop, a cosmetology salon located at 513 Northwood Road, West Palm Beach, Florida. However, respondent never obtained a cosmetology salon license to operate at the location and did not obtain a barber shop license from the Florida Barbers Board to operate at that location until December 2, 1983. On or about April 13, 1983, respondent was operating Northwood Barber Shop. In addition, on or about April 13, 1983, respondent himself was practicing cosmetology and holding himself to be a cosmetologist without being duly licensed as a cosmetologist. After December 2, 1983, respondent was lawfully operating the Northwood Barber Shop, having been issued a barber shop license by the Florida Barbers Board. However, on June 14, 1984, respondent again was practicing cosmetology and holding himself out to be a cosmetologist without being duly licensed. Respondent did not raise or prove as a defense that he was licensed as a barber by the Florida Barbers Board on either April 13, 1983 or Jun 14, 1984. On the contrary, respondent's admissions to petitioner's inspector on those dates and other occasions affirmatively suggest that respondent was not licensed as a barber.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Board of Cosmetology impose upon respondent Michael Harris an administrative fine in the amount of $500.00. Recommended this 4th day of September, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1984. COPIES FURNISHED: Theodore R. Gay, Esquire Department of Professional Regulation 130 North Monroe 130 North Monroe Street Tallahassee, Florida 32301 Mr. Michael Harris 513 Northwood Road West Palm Beach, Florida 33407 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Myrtle S. Aase, Executive Director Board of Cosmetology 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue for consideration in this matter is whether Respondent's license as a barber in Florida should be disciplined because of the matters set out in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Barber's Board, was the state agency responsible for the licensing of barbers and the regulation of the barbering profession in Florida. The Respondent, Ocie Phillips, Sr., and his sons, Ocie Phillips, Jr. and Kenneth Phillips, were all licensed as barbers in this state. On October 14, 1992, Leonard Baldwin, an inspector with the Department of Professional Regulation with responsibility for inspecting barber shops in Florida, entered Respondent's shop to conduct a routine, un-announced inspection. Only Kenneth Phillips was present at the time. During his inspection of Respondent's shop, Mr. Baldwin reportedly found several violations of the states sanitation standards applicable to Barber shops. These included: garbage was not kept in a clean closed container/receptacle. equipment was not maintained in a safe/ sanitary manner. cleaners/bacterial agents were not being regularly used. there was not one sink (lavatory) per two barber chairs. combs/brushes were not sanitized after each patron. wet sanitizers were not being utilized on the premises. all equipment was not kept free of hair, or cleansed, or sanitized. All cleansed/sanitized equipment was not being stored in a clean closed cabinet or container, and work areas/drawers for equipment storage only were not kept clean/sanitized. Mr. Baldwin also noted that the entire shop needed dusting and cleaning; the sinks were dirty; combs and brushes were being kept out on the back bar without sanitizing, as was other equipment; the display overhead needed cleaning; and the walls had clothes hanging on them. Mr. Phillips denies all of the allegations made by Mr. Baldwin. He and his sons all contend that the shop stays clean. He claims that the last inspector, Mr. Morganstern, who inspected on February 11, 1992, found no sanitary deficiencies at all. This shop and the Respondent were the subject of two prior disciplinary actions taken by the department for un-sanitary conditions discovered in inspections in January and May, 1991. As a result of the former, Mr. Phillips paid a fine of $500.00 and his license was suspended for 30 days, (stayed). As to the latter, he again paid a fine of $500.00. After paying these two fines, he claims, he determined he could not afford to pay any more and made a decided effort to have his shop conform to the state standards. Mr. Morganstern was the inspector in each of these two prior cases and he suggested that Mr. Phillips install new cabinets with space for storage in them. This was done at an expense of several thousand dollars. After the cabinets were complete, Mr. Baldwin conducted his inspection and charged Respondent with many of the same deficiencies previously identified by Mr. Morganstern. Mr. Baldwin claims that to the best of his recollection, the cabinets had not been installed by the time of his inspection, but he cannot be sure. Mr. Phillips and Kenneth both claim it was done before the inspection. Neither party is sure, however, and it is found that Petitioner has not established by clear and convincing evidence that the required cabinetry had not been done at the time of the inspection. Mr. Baldwin is also alleged to have orally observed on the October 14 visit that the shop looked "OK" but still was not right. Respondent presented a video recording of the interior of the shop which shows the new cabinets and sinks. It also shows storage space for towels and equipment. Kenneth Phillips, the only person in the shop when Mr. Baldwin came in to conduct his inspection before the shop was open on a Monday morning, claims he had not had a chance to clean the shop before Baldwin's arrival. He had been in church all the previous day, (Sunday), and had planned to do all that before the shop was opened for business. He had taken an AIDS prevention course previously and had learned there that it was important to sterilize instruments to prevent the spread of the disease. Nonetheless, Mr. Baldwin observed during his visit that the barbering utensils were scattered around and not in sterilizers, and his experience as a licensed barber, who has done this type of inspection for many years, tells him that the un-sanitary condition of the Respondent's shop was not a recent occurrence but had existed for some time. It is found, therefore, that sanitizers were not being used properly at the time of the inspection nor was garbage being properly stored as reflected on inspection form items 0210, 0215, 0216, 0224, 0225, and 0226. The remaining items, which are related to the construction of the storage cabinets, have not been proven to be violations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered in this case directing that the barber's license of Respondent, Ocie Phillips, Sr., be placed on probation for such a period and under such reasonable conditions as the board may deem appropriate. RECOMMENDED this 28 day of August, 1992, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 28 day of August, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-3025 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact Submitted by the parties to this case. FOR THE PETITIONER: - 3. Accepted and incorporated herein. Accepted and incorporated herein except that the word "the" before the work "sanitation" be changed to reflect "some." Accepted. Not a Finding of Fact but a recitation of testimony. Accepted. Not a Finding of Fact but a restatement of testimony. First sentence accepted. Second sentence rejected as not a Findings of Fact but a comment on the credibility of the evidence. Not a Finding of Fact but a comment on the credibility of the evidence. Accepted only as showing prior disciplinary record of the witnesses. & 13. Accepted and incorporater herein. 14. Not a Finding of Fact but a comment on the credibility of Respondent. COPIES FURNISHED: Christopher L. Hinson, CLA E. Renee Alsobrook, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ocie Phillips, Sr. 661 Northwest 15th Manor Pompano Beach, Florida 33060 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kaye Howerton Executive Director Barber's Board DPR 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Paula Joan Thigpen, known also as Paula Thigpen, is licensed by the State of Florida, Barbers' Board, to practice as a barber in the State of Florida. Her license number is BB 0025059. Respondent had been married to one William Mann on two occasions, ending in divorce. In addition, Respondent had worked as a barber in a barbershop owned by her former husband. That shop is located at 465 Kingsley Boulevard, Orange Park, Florida. This arrangement allowed her to act as a manager in fact related to the financial aspects of that barbershop, during Mann's absence. In the summer of 1983, a discussion was entered into between the Respondent and her former husband on the topic of opening a barbershop in Middleburg, Florida. It was contemplated that Mann would own the shop and that the shop would be managed by the Respondent. Should the Respondent leave the community due to the duties of her present husband who was serving in the United States Navy, Respondent and Mann understood that the Respondent would be reimbursed for the money she invested in the shop in Middleburg. It was discussed that the Respondent would be guaranteed a salary at the beginning of the shop operation in Middleburg. Finally, it was discussed that should Mann wish to dispose of his ownership of the Middleburg barbershop, Respondent would pay him for his interest in the shop and become the owner. Both Mann and the Respondent spent money in trying to establish the barbershop in Middleburg, to include equipment, supplies, advertising and other related costs. Respondent also devoted labor to establishing the shop in Middleburg. To this end, space was leased in a building in early September, 1983, with Respondent representing herself to the lessor as a partner with Mann. On September 16, 1993, Mann traveled to Tallahassee and obtained a barbershop license for the Middleburg operation, No. BS 0007886. He listed himself as the owner of the shop and paid a $25 licensing fee. The barbershop license came into the hands of the Respondent following its issuance. This occurred sometime between September 16, 1983, and September 21, 1983. The barbershop in Middleburg opened on September 19, 1983, a week earlier than had been anticipated by Mann. On that same date he contacted the Respondent and indicated that he did not wish to pursue the business venture of opening the barbershop. He stated on that occasion that he felt that it would cost too much money and the he was not in a position to guarantee the salary for the Respondent and another person who would be working in the shop. Mann offered to have the Respondent return to his business in Orange Park, Florida. Respondent declined this opportunity. Discussion was then entered into on the possibility of the Respondent buying out Mann's ownership interest. Mann did not accept that disposition. He simply stated that he wanted the shop closed. There was a further conversation on September 20, 1983, in which Mann indicated his willingness to sell the shop based upon the amount of money he had invested in the equipment and supplies and a fee which he thought he was entitled to based upon the aggravation caused by the venture. On September 21, 1983, Mann appeared at the barbershop in Middleburg and told the Respondent that he no longer wished to sell his ownership of the shop. He told her that he wished to have the shop closed and wanted the license which had been issued for the barbershop. Respondent told him that she did not know where the license was. In fact, she had it at her home. Following this exchange Mann sought the assistance of law enforcement and after discussion between a law enforcement officer and the Respondent and her former husband, Mann left the licensed premises in Middleburg, Florida. He departed in view of the fact that the lease was signed by the Respondent, accepting the officer's suggestion that he leave given the indicia of control which the lease seemed to place in the hands of the Respondent, in the eyes of the officer. Before the September 21, 1983, exchange, Respondent had prepared a document which would settle the transfer of ownership from Mann to her. That document was never executed. Nonetheless, Respondent was of the opinion that she was entitled to the ownership interest in the barbershop and she traveled to Tallahassee, Florida, on that date and sought and obtained a barbershop license for the Middleburg, Florida shop for which an initial license had been issued to Mann. The license issued to Respondent for that barbershop was BS 00078887. In the application for that license she indicated that she was the sole owner of the shop and the equipment in the shop. This request for transfer was not authorized by Mann, the shop license holder. Following the issuance of the barbershop license for the same barbershop in Middleburg, Florida, as had been licensed for the benefit of Mann, her former husband offered to sell her his interest in the shop. This offer was made in January, 1984. The offer was only open for a couple of days and the parties were unable to come to an agreement on the purchase. That sale has yet to occur. Under the circumstances of this case, as shown in the course of the hearing, Mann has remained the owner of the barbershop licensed for the Middleburg, Florida operation. This is a fact understood by the Respondent. Although there have been occasions in which Mann seemed willing to sell his ownership and associated license, that purchase was never consummated.
Recommendation Upon the consideration of the facts found and the conclusions of law reached, it is RECOMMENDED that a Final Order be entered which revokes the barbershop registration No. BS 00078887 issued in the name of Paula Thigpen, imposes a civil penalty in the amount of $500 pursuant to Section 476.204, Florida Statutes, and declines the imposition of further penalties as might be allowed by Section 476.214(1), Florida Statutes, and Section 455.227(1), Florida Statutes. DONE AND ENTERED this 10th day of October 1984 in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of October 1984. COPIES FURNISHED: Theodore R. Gay, Esquire Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 L. J. Arnold, III, Esquire Post Office Drawer "D" Green Cove Springs, Florida 32043 Myrtle Aase, Executive Director Barber's Board Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact At all times relevant hereto, respondent, James Franklin, operated the Atlantic Barber Shop at 641 West Atlantic Avenue, Delray Beach, Florida. Franklin has been issued barber license number BB 0017130 by petitioner, Department of Professional Regulation, Florida Barbers' Board. The Atlantic Barber shop is the holder of barbershop license number BB 0005644 also issued by petitioner. Both licenses were renewed by respondent and are valid through September 30, 1988. Petitioner is required to conduct inspections of barbershops to ensure that such barbershops are in compliance with state law and agency rules. According to Rule 21C-19.015, Florida Administrative Code, an inspection shall be conducted annually on a random unannounced basis. In order to perform an inspection, access to the premises of a licensee is obviously necessary. Respondent's barbershop was last inspected by petitioner on May 24, 1984. Accordingly, an agency inspector (J. Oben) visited respondent's shop on March 11, 1986, for the purpose of conducting a routine annual inspection. Oben made two trips to the shop that day but found it closed each time. She left a business card at the door, and also told the proprietor of a shoe shop next door to have Franklin contact her. Oben returned to respondent's shop on March 12 and 18, 1986, but found the shop closed. Again she left her business card with instructions for Franklin to contact her. After Franklin failed to contact Oben, Oben sent to Franklin, by certified mail, letters on March 21, April 28 and May 12, 1986. Franklin signed for two letters but would not claim the final letter. The letters pointed out Oben's futile efforts to inspect the barbershop, and asked that Franklin promptly contact her. Franklin never responded. The issuance of an administrative complaint followed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the administrative complaint herein be DISMISSED with prejudice. DONE AND ENTERED this 9th day of December, 1986, at Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3719 Petitioner: Covered in finding of fact 1. Covered in finding of fact 1. Covered in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 2. Covered in finding of fact 2. Covered in findings of fact 3 & 4. Covered in findings of fact 3 & 4. Covered in findings of fact 3 & 4. Covered in findings of fact 3 & 4. Covered in findings of fact 3 & 4. Covered in finding of fact 5. Covered in finding of fact 5. Covered in finding of fact 5. Covered in finding of fact 5. Covered in finding of fact 3. Covered in finding of fact 3. Rejected as being unnecessary. Rejected as being unnecessary. Rejected as being unnecessary. Covered in finding of fact 1. Covered in finding of fact 1. COPIES FURNISHED: Lisa M. Bassett, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. James Franklin Atlantic Barbershop 641 West Atlantic Avenue Delray Beach, Florida 33444 Myrtle Aase, Executive Director Florida Barbers' Board 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings Slocum Benton, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Victor Bosciglio and Marioe Guerra are not and never have been parties Respondent before the Division of Administrative Hearings, since no election of a Section 120.57(1) hearing has ever been filed by either of them. Respondent Robert L. Perez, Jr. is and at all times material has been the holder of a Florida barber license. At all times material hereto Perez was one of the owners of a barbershop called, "Tiffany's Hair Designers," hereafter, "Tiffany's." Tiffany's was originally owned by Perez, Bosciglio, and Guerra. The three initially applied for and obtained a barbershop license for establishment of Tiffany's in a house located at 1205 Hillsborough Avenue in Tampa, Florida, in December, 1980. Although there is some suggestion in Ms. Denchfield's testimony that barbershop license applications are normally accompanied by a proposed floor plan, neither application nor the license itself for Tiffany's was offered in evidence and so no condition of non-expansion or evidence of any other condition for granting the initial barbershop license has been established. The original Tiffany's Hair Designers was located in the house at that address and had ten ""stations" for shampoos, cuts, etc. Sometime in October 1984, the trio converted a loft area above what previously had been a freestanding building housing a downstairs garage and located at the same street address as the house. After the conversion, the loft accommodated 4 additional barber "stations." The house and garage are technically separate buildings which share a common street address, driveway, and parking area. They are on the same electric, water, and telephone bills and occupy a single parcel of land. The going through the original house building which continues to shelter the original 10 barber stations. The two buildings are operated as a single business entity, Tiffany's Hair Designers. At all times material, Tiffany's original barbershop license remained in full force and effect. It is unclear whether a series of DPR inspectors regularly inspected the two portions of Tiffany's between October 1984 and October 1985. Petitioner wishes the inference to be made that there may have been a legitimate gap in inspection schedule so that no inspector was aware of the loft conversion until October 1985. Respondent desires the inference to be drawn that a series of inspections of both portions of Tiffany's during this time period turned out favorably and no inspector found any violation by way of the three owners' failure to notify the Barber's Board of the loft conversion and failure to apply for a new barbershop license during that year. There is no conclusive proof to establish either theory. Ms. Denchfield was not the local inspector during this period, and Mr. Perez was not regularly on the premises since he was working at another shop during most of this period but it seems entirely clear that inspectors for the state were allowed complete and total access to both buildings, the loft was certainly not hidden from view, and no sanitation violations were discovered in either building. A routine inspection in October, 1985 resulted in the administrative complaint herein. Neither this inspection nor a subsequent one in March 1986 revealed any sanitary violations in either building. The parties concur that the purpose of initial and subsequent inspections of licensed barbershops is to protect consumers by ensuring adequate sanitary conditions. Inspector Denchfield found in March 1986 that the loft has all the equipment necessary under statutes and rules she administers to qualify as a separate shop without reliance on the main building. Perez knew that he was required to apply for a barbershop license to open a new shop or to relocate a shop "down the street," i.e. from one address to another, but he was initially under the belief that because the converted loft was located on the same parcel of land with the main building that a second barbershop license was not mandated. The Administrative Complaint was served in January, 1986. Respondent Perez purchased the entire premises and business venture by buying out Bosciglio and Guerra in January 1986, and immediately applied for a new barbershop license which would cover both portions of Tiffany's. It is admitted that prior to this new application no one affirmatively notified the Barber's Board of a new building or obtained a separate license for the loft building.
Recommendation That the Barber's Board enter a final order dismissing the Administrative Complaint as against Robert L. Perez Jr., and if it has not already done so, dispose of the charges against Marioe Guerra, Jr. and Victor Bosciglio in accord with Section 120.57(2), Florida Statutes. DONE and ORDERED this 18th day of July, 1986, in Tallahassee Florida 32301. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1986.
The Issue The issue in the proceeding is whether Respondent, Felix Robaina, violated provisions of the "Barbers' Act", Chapter 476, Florida Statutes, by operating a barbershop without a current active barbershop license. Background and Procedural Matters This proceeding commenced with an Administrative Complaint by Petitioner on September 18, 1985, and by Respondent, Robaina's timely request for a formal hearing. At the hearing Petitioner presented its evidence through the testimony of investigator, Jean Robinson, Felix Robaina and three exhibits. Respondent submitted one exhibit. All exhibits were admitted without objection. By stipulation of the parties, Vivian Lerma served as translator for Mr. Robaina. She was placed under oath for this purpose in accordance with Section 90.606, Florida Statutes. The parties have submitted Proposed Recommended Orders with proposed findings of fact and conclusions of law. These have been considered and, where appropriate, have been incorporated into this Recommended Order. Specific rulings on each proposed finding of fact are found in the Appendix attached hereto.
Findings Of Fact Felix Robaina was born in Cuba and came to the United States in May, 1980. He cannot read, write or speak English and understands English very little. He took the barber's exam in Spanish and has been continually licensed as a barber by the Florida Barber's Board since June, 1983. On July 15, 1983, he opened his shop, Chosen Barber Shop, in Belle Glade, Florida. The shop had previously been owned by Antonio Garcia but was closed when Mr. Garcia died in 1982 or early 1983. Mr. Robaina has continually worked alone in the shop since he opened it and regular hours are 9 am to 7 pm, Tuesdays through Saturdays. Jean Robinson, an investigator for the Department of Professional Regulation, noticed that the shop was reopened on a trip through the area and on June 1, 1985, she conducted an inspection. She found Mr. Robaina's barber license and occupational licenses were displayed on the wall. With a customer serving as interpreter, Jean Robinson asked Mr. Robaina for his shop license. de was confused and showed her the occupational license. Ms. Robinson explained the requirement of the law regarding a separate shop license and left an application for. Respondent, Robaina, promptly applied for a shop license, and has held license number BS0008668-since July 1985. Although part of the Barber exam course includes the legal requirement for licensing, Mr. Robaina said he did not know his shop required a separate license until Ms. Robinson visited and informed him. She confirmed that his confusion when she asked for the license was consistent with that ignorance. According to Ms. Robinson people commonly feel that the occupational license is all that is needed for a shop. Between July 1983 and July 1985, Felix Robaina operated his barbershop without a shop license.
