Findings Of Fact Respondent, Antonio V. Mallo, is a certified general contractor in Florida and has been issued license number CGC004868, issued as an individual. (Exhibit 1, TR 21.) During times material hereto, Respondent was a certified general contractor in Florida practicing under the subject reference license as an individual. On October 26, 1984, Robert Golden contracted with Magic Eye Remodeling for the construction of an addition to his home situated at 19701 Northeast 12th Court, North Miami, Florida for the sum of $36,000. The contract price included the cost for labor and materials for a "turn key" job. (Testimony of Robert Golden and Jose Garcia, TR 25, 110, Exhibit 3 and TR 24.) As stated, the contract called for the construction of the entire project including air conditioning, electrical work, tile and bathroom fixtures. (Testimony of Jose Garcia, Exhibit 3, TR 112.) Magic Eye Remodelers was not licensed to perform contracting in Florida. Luis Valido, president of Magic Eye, and Jose Garcia, an employee of Magic Eye, negotiated and signed the contract with Magic Eye and Golden. (Testimony of Garcia and Golden, TR 21, 22 and 112, Exhibits 1 and 2.) Although Valido and Garcia had discussions with Respondent at the time Magic Eye was negotiating a contract with Golden, Respondent was not signatory to the Golden-Magic Eye Contract. (Testimony of Robert Golden, TR 34.) On November 6, 1984, Respondent obtained building permit number 84-01- 123-3 from Metropolitan-Dade County for the subject work at the Golden residence. (Exhibit 4, TR 28.) Construction commenced at the Golden residence and progressed slowly until approximately April 4, 1985 when owner Golden observed Magic Eye (its employees) preparing to leave the job. During that time, Garcia informed Golden that they had misused the construction funds advanced and could not finish the project. During that discussion, Magic Eye offered to complete the job if Golden would pay for the necessary supplies. Golden agreed to pay for the supplies. (Testimony of Robert Golden, TR 32.) During mid April, 1985, Golden contacted Michael O'Connor, Dade County code enforcement officer about his problems with Magic Eye and Respondent. O'Connor informed Golden to contact the contractor who obtained the permit, i.e., Respondent. Subsequent to that conversation and prior to June 4, 1985, Respondent was contacted by Golden. He visited Golden's home and worked on the construction project with Luis Valido. (Testimony of Robert Golden, TR 38.) This was the first contact between Golden and Respondent and the first time Respondent visited the construction site. In this regard, Golden was employed in a capacity whereby he did work early morning and late evening hours and spent all of his daytime hours on the construction site. (Testimony of Robert Golden and Jose Garcia, TR 34 and 125.) On or about June 3, 1985, all work at the project ceased and the Respondent informed Golden that Valido did not want to work there anymore since he wasn't making any money. (Testimony of Golden) Golden thereafter reported the problem to Michael O'Connor and Bob Wolfe, an investigator with the Department of Professional Regulation. O'Connor thereafter informed Respondent that unless he could produce a contract between himself and Golden, criminal charges would be filed by the State's attorney's office. (Testimony of Mike O'Connor, TR 166.) While at Michael O'Connor's office to sign the complaint with Petitioner, Golden was contacted by Respondent who advised that he would contract to complete the project. (Testimony of Golden, TR 40.) On or about June 12, 1985, Golden and Respondent negotiated a contract to complete the work for the sum of $39,882 of which a credit for $38,383 was given for work already performed by Magic Eye. As contracted, Respondent would receive $1500, fifty percent of which would be paid at the beginning of the tiling work and the remainder at completion of the project. Respondent performed plumbing and metal overhang work at the site after the contract was signed. (Testimony of Robert Golden, TR 41, 48 and Exhibit 6.) On July 10, 1985, Respondent notified Golden he was leaving the job because Golden failed to sign a change order to the contract and make payment as per the contract of June 12, 1985. At that time, or subsequent thereto, Respondent had not submitted a change order to the contract to Golden. Additionally, no payment was due Respondent under the June 12, 1985 contract for the tile was not ordered until September, 1985. (Testimony of Robert Golden, TR 54 and Bob Wolfe, TR 99, Exhibit 8.) When Respondent left the Golden project, the construction was sixty percent completed. Golden completed the project under an owner-builder permit. The total cost for the project was $62,804. (TR 65, 66 and Exhibit 11.) During the hearing, Respondent raised a question as to the validity of Petitioner's Exhibit number 6, claiming in essence that it had been tampered with by Golden. An examination of all the evidence introduced herein reveals that the agreement (contract) between Respondent and Golden (Petitioner's Exhibit 6) was valid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Respondent be assessed an administrative fine of $1,000. It is further recommended that Respondent's certified general contractor's license number CGC004868 be suspended for a period of two years. Provided however that Respondent make restitution to Robert Golden in the amount of $5,000, it is then recommended that the suspension be abated with Respondent's suspension reverting to a like term of probation. RECOMMENDED this 19th day of August, 1986, in Tallahassee, Florida. JAMES E. BRADWELL 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 19th day of August, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NUMBER 86-1458 Petitioner's Proposed Recommended Order Paragraph 22. Incorporated as modified. COPIES FURNISHED: Ray Shope, Esquire 130 North Monroe Street Department of Professional Regulation Tallahassee, Florida 32301 Mr. Antonio Mallo 1256 San Miguel Avenue Coral Gables, Florida 33134 Mr. Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings Slocum Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Respondent Hagen violated Chapter 484, Florida Statutes, and Rule 21P-4.01, Florida Administrative Code, by allowing his license to be used by an unlicensed person to engage in the occupation of dispensing optician without his presence and direct supervision. Whether the license of Respondent Hagen should be revoked, annulled, withdrawn or suspended for violation of Chapter 484, Florida Statutes, and Rule 21P-4.01, Florida Administrative Code.
Findings Of Fact Respondent Wayne L. Hagen, the licensed optician in the Pearl Vision Center, Tyson Square Mall, St. Petersburg, Florida, holds License No. 180, a license in good standing, issued by the Florida Board of Dispensing Opticians pursuant to Chapter 484, Florida Statutes. The Board in formal meeting on March 28, 1975, directed Mr. Allen R. Smith, Jr., a coordinator for the Department of Professional and Occupational Regulations, Division of Occupations, to file the subject Administrative Complaint against Respondent Hagen. The charge in the Complaint is the violation of Rule 21P-4.01, Florida Administrative Code, in that an unlicensed person engaged in "dispensing optical goods while Mr. Hagen was absence for the premises". Respondent received a copy of the Administrative Complaint, Explanation and Election of Rights containing notice that said Complaint was mailed the 29th day of April, 1975. Respondent had no notice by certified mail or actual notice of these proceedings or an opportunity to show that he had complied with all lawful requirement for the retention of his license, prior to the receipt of the Administrative Complaint, Explanation and Election of Rights. Petitioner admitted that no notice prior to the mailing of the Administrative Complaint, Explanation and Election of Rights was sent to Respondent giving notice of the facts or conduct which are delineated in the Administrative Complaint, Explanation and Election of Rights. Petitioner admitted that prior to the initiation of the Administrative Procedures Act in former proceedings the Board had given notice of receipt of Complaints against licensees. Respondent Hagen had posted in the office of Pearl Vision Center signs indicating that no fittings or adjustments would be made while Respondent was off duty. The unlicensed employee of Respondent, Lynda Vickers, performed acts in violation of the Rules and Regulations of the Board without the knowledge or permission of Respondent and was discharged prior to the filing of the Complaint against Respondent. Respondent did not allow his license to be used by an unlicensed person to engage in the trade or occupation of dispensing optician without his presense and direct supervision. Respondent through his attorney moved to dismiss the Complaint on the grounds that the Board of Dispensing Opticians failed to give him prior notice and and an opportunity to rectify in accordance with the requirements of the licensing statute, Section 120.60(4), Florida Statutes.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, respondent Patrick Gallagher was a licensed optician in Florida, having been issued license number D00001006. From approximately March of 1979 until December of 1981, except for the months of June and July, 1981, respondent was employed as a licensed optician for Union Optical in Tampa, Florida. Prior to May, 1981, respondent worked full time. When he returned to Union Optical in late July or August, 1981, he worked only three days a week. Another optician, Bobby Prohenza, was employed at Union Optical on a part-time basis in June and July of 1981. Rose Ochs, the manager and/or supervisor of Union Optical in Tampa is not now, and has never been, licensed as an optician in the State of Florida. Having received a complaint from Bobbie Prohenza against Union Optical and Rose Ochs, petitioner's investigator, Wayne Lopez, went to Union Optical on December 3, 1981, to investigate unlicensed opticianry activities. The only employee on the premises was Rose Ochs. While on the premises, Mr. Lopez observed Ms. Ochs handing a glasses case and glasses to a customer. Investigator Lopez, identifying himself to Ms. Ochs as a long , distance truck driver asked her if she could duplicate his existing prescription "glasses"" into "sunglasses." When Ms. Ochs refused to do so without a written prescription, Lopez told her he would obtain one. The investigator obtained a duplicate prescription from his personal physician and returned to Union Optical a few hours later. He handed the written prescription to Ms. Ochs and she took his eyeglasses and put them on a lensometer to see if the two prescriptions were the same. Mr. Lopez and Ms. Ochs then sat at a table across from one another and she began taking measurements with a small ruler across the bridge of his nose. She then wrote some numbers on a piece of paper and attached that paper to the prescription. Investigator Lopez, attempted to leave a deposit with Ms. Ochs, but was told he could pay for the glasses when he returned some weeks later. When Mr. Lopez departed from the Union Optical premises, he observed a Florida opticianry license hanging over the entrance door, which license was issued to respondent Patrick Gallagher. After learning of respondent's address, Mr. Lopez went to respondent's residence on December 3rd, identified himself as an investigator with the Department of Professional Regulation and told respondent that he wanted to discuss with him the operation of Union Optical. Respondent worked at Union Optical 24 hours a week on Mondays, Tuesdays and Fridays. While he knew the store was open on his days off, respondent had been assured that opticianry work would not be performed on those days. It was the respondent's understanding that when he was not on the premises, the only business which would be transacted was the selling of non-prescription items, glass care items and cleaning solutions. Respondent was aware that Rose Ochs would receive written prescriptions in his absence and would, on occasion, transfer or copy the prescriptions onto an invoice which went to an independent laboratory. He was also aware that Ms. Ochs occasionally assisted customers in the selection of a frame for their lenses and quoted prices to customers in his absence. Respondent did not suspect that Ms. Ochs took pupillary distance measurements or used the lensometer when he was not on the premises. He does not believe that Ms. Ochs has sufficient knowledge or experience to properly operate the lensometer. Respondent was not present at Union Optical on December 3, 1981, when Investigator Lopez was on the premises. When Mr. Lopez described to him the events which had transpired at Union Optical on that date, some one-half hour after their occurrence, respondent was surprised to hear that Ms. Ochs had performed the functions of operating the lensometer and taking pupillary distances. Respondent had no managerial control over the premises of Union Optical or Rose Ochs.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint charging respondent with a violation of Section 484.014(1)(n), Florida Statutes, be DISMISSED. Respectfully submitted and entered this 16th day of May, 1983, in Tallahassee, Florida. DIANE D. TREMOR 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 16th day of May, 1983. COPIES FURNISHED: Jerry Frances Carter, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Paul W. Lambert, Esquire Slepin, Slepin, Lambert & Waas 1115 East Park Avenue Tallahassee, Florida 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Varn Executive Director Board of Opticianry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Tommy J. Dorsey is licensed as a dentist by the Petitioner and was so licensed at all times relevant hereto. During the period August-September 1978 to June-July 1979 Priscilla Mae Young was employed by Respondent as a dental assistant. Miss Young worked part- time for Respondent while doing her internship at Southern College and, upon graduation as a dental assistant, she worked full time for Respondent until she was fired in July 1979. Miss Young was not licensed as a dental hygienist or otherwise by the Petitioner during the time she worked for Respondent. During most of the time Miss Young worked for Respondent, Respondent also employed Errol A. Cherry, a licensed dentist, on a part-time basis (two and one-half days per week). While Dr. Cherry worked for Respondent, he dated Miss Young occasionally but they split up before Miss Young departed Respondent's employ in July 1979. Miss Young testified that she and the other unlicensed assistants took all impressions for dentures and partial dentures during the time she was employed by Respondent. She also testified she performed other services for Respondent, such as removing sutures, signing prescriptions, and taking and developing X-rays, all with Respondent's knowledge and consent and as part of her duties. Evidence respecting these services is disregarded as not encompassed within the Administrative Complaint. Miss Young also testified she discussed these unauthorized functions she was performing with Dr. Cherry and, finally, with Respondent. When she refused to come to work on 5 July 1980, after being denied permission to take that day off by Respondent, Miss Young was fired. Dr. Cherry testified that he never saw Miss Young take impressions, never heard Respondent direct her to do so, or talk to her about performing these services. Respondent's wife, Virgie Dorsey, is a licensed dental hygienist who works in the office primarily as a receptionist. She testified she never saw Miss Young take final dental impressions but believes that on occasion Respondent allowed his assistants to take study impressions. Respondent testified that he never permitted unlicensed personnel to take final impressions or sign his name to prescriptions. He dictated the description of the work desired on these lab prescriptions for the assistant to write down, then he would sign the prescription. Respondent occasionally allowed his assistants to take study impressions. Respondent described Miss Young as very aggressive and one he had to reprimand on three occasions, two of these occasions for signing prescriptions. When she asked for 5 July 1980 off, Respondent told her if she did not come to work that day she would be dismissed. Respondent testified he was relieved to have this excuse to fire Miss Young. Miss Young is a credible witness. On the other hand, the testimony of Respondent and his two other assistants is also credible.
The Issue Whether the allegations of the Administrative Complaint are correct, and if so, what penalty should be imposed.
Findings Of Fact An advertisement in the December 6, 1989 edition of the Beaches Shopping Guide indicated that "sculptured nail" services were available through "Debbie's Designer Nails". The advertisement contained a telephone number. In response to the advertisement, Eileen Thomas, an investigator for the Petitioner, on February 23, 1990, called "Debbie's Designer Nails" at the phone number listed in the advertisement. Ms. Thomas spoke with a woman identified as "Debbie". During the conversation, Debbie informed Ms. Thomas that manicure services were available in either the customer's home or in Debbie's home, at a cost of twelve dollars. Debbie stated that she had been offering her services for approximately three months. At the close of the conversation, Ms. Thomas, using the name "Brenda", made an appointment for a manicure at Debbie's place of business on February 27, 1990. On February 27, 1990, Geraldine Johnson, an employee of the Petitioner, arrived at the Respondent's residence and identified herself as "Brenda". The Respondent performed a manicure on Ms. Johnson, who paid the Respondent thirteen dollars for her services. While the Respondent performed the manicure on Ms. Johnson, another woman arrived at the Respondent's home. The Respondent told Ms. Johnson that the woman had an appointment for nail sculpturing. Before Ms. Johnson left the Respondent's home, the Respondent gave Ms. Johnson ten business cards and requested that Ms. Johnson distribute the cards to potential customers. The cards include the Respondent's name, the name of the business, the slogan "My House or Yours", the telephone number, and the types of manicure services available. The Respondent is not a licensed cosmetologist in the State of Florida. The Respondent's business, "Debbie's Designer Nails", is not licensed as a cosmetology salon in the State of Florida.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Board of Cosmetology enter a Final Order imposing an administrative fine of one thousand dollars on the Respondent. DONE and RECOMMENDED this 4th day of January, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAWM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 1991. APPENDIX CASE NO. 90-4761 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified in the Recommended Order except as follows: 3. The evidence did not establish that the Respondent actually placed the advertisement in the Beaches Shopping Guide. Respondent The Respondent submitted no proposed recommended order. COPIES FURNISHED: Laura P. Gaffney Senior Attorney Department of Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Debbie Holcomb 5856 Wiltshire Street Jacksonville, Florida 32211 Myrtle Aase, Executive Director Board of Cosmetology Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact At all times material, the Respondent Fernando Vargas Natal has been a licensed cosmetologist in the State of Florida, holding license number CL 009034. At all times material, Fahn Hair/Nails has been licensed as a cosmetology salon in the State of Florida, holding license number CE 0053197. At all times material, Samer Mace has been a registered nail specialist in the State of Florida, holding license number FV 0521832. Samer Mace was not licensed as a cosmetologist in the State of Florida at any time material to this case. DPR investigator Sandra McKenzie, using the name "Linda," telephoned Fahn Hair/Nails on November 28, 1990, and made an appointment to have her hair done by Samer Mace at 2:00 p.m. on November 30, 1990. On the appointment books at Fahn Hair/Nails, Samer Mace was listed as "Sam." Upon entering the business premises of Fahn Hair/Nails on November 30, 1990, at approximately 1:45 p.m., DPR investigator Richard Braun observed an appointment for "Linda" for hair services at 2:00 p.m. listed in the appointment book in the column for Sam." Investigator Braun also observed in the appointment book in the column for "Sam," other appointments scheduled that day for manicures, blow drys and washes. When Fernando Vargas Natal was questioned about the allegations concerning Samer Mace's unlicensed cosmetology activities, Mr. Natal admitted to investigator Braun that Samer Mace had been providing hair services to customers at Fahn Hair/Nails. When Samer Mace was questioned about the allegations concerning her unlicensed cosmetology activities, she admitted to investigator Braun that she had been providing hair services to customers while in the employ of the Respondent. Fernando Vargas Natal was aware that, at all times material, Samer Mace was licensed only to perform manicures, and was not licensed to perform hair services.
Recommendation For all of the foregoing reasons, it is recommended that the Board of Cosmetology enter a Final Order in this case concluding that the Respondent has violated Section 477.029(1)(c), Florida Statutes (1989), and imposing an administrative penalty of a fine in the amount of $500.00. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 4th day of September, 1991. MICHAEL M. PARRISH, 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 9th day of September, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-2664 The following are my specific rulings on all proposed findings of fact submitted by all parties. As a preface to the specific findings which follow it is noted that there is conflicting evidence on some of the relevant facts in this case. In resolving those conflicts I have, for the most part, found the testimony presented on behalf of the Petitioner to be more persuasive than the testimony presented on behalf of the Respondent. Findings proposed by Petitioner: The following paragraphs of the findings proposed by the Petitioner are accepted in whole or in substance: 1, 2, 3, 6, 7, 8, 9, 10, 11, and 12. The following paragraphs of the findings proposed by the Petitioner are rejected as subordinate and unnecessary details: 4 and 5. Findings proposed by Respondent: The first sentence of the findings proposed by Respondent is rejected as contrary to the greater weight of the evidence. The second sentence of the findings proposed by Respondent is rejected as not supported by competent substantial evidence and as, in any event, irrelevant. The third sentence of the findings proposed by Respondent (the sentence incorporating the recommendation) is rejected as contrary to the greater weight of the evidence. COPIES FURNISHED: Ms. Myrtle Aase Executive Director Board of Cosmetology Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Mr. Mark E. Harris Paralegal Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Mr. Fernando Vargas Natal Fahn Hair/Nails 11921 South Dixie Highway, Suite 200 Miami, Florida 33156 Mr. Andrew H. Hand Fahn Hair/Nails 11921 South Dixie Highway, Suite 200 Miami, Florida 33156
