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
The Issue Whether Respondent, Martin Rosales1/ (Respondent), engaged in the practice of barbering without a license and displayed as his own the barbering license of another, and, if so, what administrative penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent was not licensed as a barber by the Department's Board of Barbers for the State of Florida. John Miranda, during all times relevant to this proceeding, was employed by Petitioner as an inspector. Mr. Miranda's job responsibilities include conducting inspections of barbershops. On September 13, 2014, Petitioner, through its employee, Mr. Miranda, inspected the premises of Sanchez Barbershop/Salon (Barbershop). During the inspection, Mr. Miranda observed, and photographed, Respondent performing barbering services on a customer. Specifically, Respondent was cutting a customer's hair. During the inspection on September 13, 2014, Mr. Miranda briefly exited the barbershop in order to retrieve something from his vehicle. As Mr. Miranda was returning to the shop, he observed Respondent fleeing the premises. Mr. Miranda did not give chase, and Respondent did not return to the Barbershop prior to Mr. Miranda completing the inspection. Upon re-entry to the Barbershop, Mr. Miranda saw, at the work-station where he observed Respondent, a barber’s license displaying Respondent’s photographic image and the name Joseph Garcia. Respondent and Joseph Garcia are not the same person. Respondent publicly displayed the barber’s license of another as if it were his own. Respondent does not challenge the merits of the Administrative Complaint but instead defends against the action on the ground that he is the victim of mistaken identity. According to Respondent, he is not the person appearing in the photographs taken by Mr. Miranda on September 13, 2014. Mr. Miranda testified, without hesitation or reservation, that Respondent is the person that he observed in the Barbershop on September 13, 2014. His certainty as to Respondent’s identity is bolstered by the fact that he had dealings with Respondent prior to September 13, 2014, and, at the time of the inspection, was familiar with Respondent’s appearance. During the final hearing, Mr. Miranda, while sitting approximately five feet from Respondent, affirmed that Respondent is the person that he observed providing barbering services on September 13, 2014. Additionally, the person depicted in the photographs taken during the inspection by Mr. Miranda bears a definite physical resemblance to Respondent. The undersigned is convinced that Respondent is the person that Mr. Miranda observed performing barbering services at the Barbershop on the day in question.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, enter a final order finding that Respondent, Martin Rosales: Engaged in the unlicensed practice of barbering, an act proscribed by section 476.204(1)(a); Displayed as his own the barber’s license of another, an act proscribed by section 476.204(1)(d); and Imposing an administrative fine of $500 payable to Petitioner within 30 calendar days of the effective date of the final order entered in this case. DONE AND ENTERED this 22nd day of May, 2015, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 22nd day of May, 2015.
Findings Of Fact At all times material to the allegations of the Administrative Complaint, the Respondents were duly licensed by the Barbers' Board. Respondent Robert Finley owns A Cut Above Barber Shop. Warren Cervini began work at A Cut Above Barber Shop in 1977. At that time, he was duly licensed by the Board as a barber. Cervini worked at A Cut Above Barber Shop until approximately Easter of 1981. He failed to renew his license prior to July, 1980, at which time his license became inactive by operation of law. Respondent Finley asked Cervini if he had renewed his license, and Cervini told Respondent that he had but had left his license at his home. Cervini did not display his licenses at the shop. After Cervini had left A Cut Above Barber Shop, Respondent Finley reported to the Board that he suspected Cervini was not licensed and was working at an adjoining barber shop. Cervini paid his late fee and was relicensed on May 17, 1981. While at A Cut Above Barber Shop, Cervini was not paid directly by Respondent Finley but paid Respondent a percentage of what he collected. Respondent did not control the mode or method Cervini used to cut hair. Respondent did not set specific hours or days for Cervini to work and did not provide Cervini with any tools or equipment beyond a barber chair. The Respondent never filed a W-2 Form or Form 1099 for Cervini. Warren Cervini was an independent contractor while at A Cut Above Barber Shop.
Recommendation Having found the Respondents, Robert Finley and A Cut Above Barber Shop, guilty, of a technical violation of Section 476.194(3), Florida Statutes, it is recommended that the Barbers' Board give Respondent Finley a letter of reprimand. DONE and RECOMMENDED this 11th day of January, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 11th day of January, 1983. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Steven I. Greenwald, Esquire 150 East Boca Raton Road Boca Raton, Florida 33432 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Myrtle Aase, Executive Director Barbers' Board 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether or not Respondent practiced barbering without a current active license in violation of Sections 476.204(1)(a) and (h), Florida Statutes.
Findings Of Fact Petitioner, Department of Professional Regulation, is the state agency charged with regulating the practice of barbering pursuant to Section 20.30, Florida Statutes and Chapter 476, Florida Statutes. Ricardo Blanco, Respondent herein, during times material hereto, was not licensed to practice barbering in Florida. On September 30, 1988, Steve Yovine, an inspector employed by Petitioner, Board of Barbers, made a routine inspection of Vic's Barber Shop located at 9010 Hickory Circle in Tampa, Florida. At that time, Respondent was practicing barbering and had been so doing since approximately September 29, 1988. 1/ Since Inspector Yovine's inspection of Vic's Barber Shop on September 30, 1988, Respondent has not practiced barbering without a license.
Recommendation Based on the foregoing findings of fact and conclusions - of law, it is RECOMMENDED that: Petitioner enter a Final Order imposing an administrative fine against Respondent in the amount of $100 which shall be payable within 30 days of entry of the Final Order entered herein. 2/ DONE AND ENTERED this 8th day of July, 1989, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 18th day of July, 1989.
The Issue Whether Respondent committed the offenses described in the Administrative Complaint? If so, what penalty should be imposed?
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Respondent is now, and has been since November 26, 1990, licensed to operate the Bailey Unisex Barbershop (Barbershop), a barbershop located at 1412 N.W. 119th Street in Miami, Florida. She acquired the Barbershop from her father, Constantine Bailey. Bailey is a barber. He works for his daughter at the Barbershop. Charles E. Frear is an inspector with the Department. On December 22, 1990, Frear conducted an inspection of the Barbershop. Upon entering the Barbershop, Frear was greeted by Bailey, who told Frear that Respondent was out of town. Bailey appeared to be in charge of the establishment in Respondent's absence. During his inspection, Frear observed Edward Purcell and George Roberts cutting the hair of customers in the Barbershop. Purcell and Roberts were not at the time, nor have they ever been, licensed to practice barbering in the State of Florida. Accordingly, when Frear approached them and asked them to show him their barbering licenses they were unable to do so. The only violations found by Frear during his visit to the Barbershop related to Respondent's employment of these two unlicensed barbers. He noticed on display on the premises a temporary license authorizing Respondent to operate the Barbershop. Furthermore, it appeared to him that all sanitary requirements were being met. Ten days prior to the final hearing in this matter, Frear paid a return visit to the Barbershop. He was again met by Bailey upon entering the establishment. No one else was present in the Barbershop. Frear's inspection of the premises revealed no apparent violations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Barbers' Board enter a final order (1) finding that Respondent committed the violations of law alleged Counts II and III of the instant Administrative Complaint; and (2) imposing upon Respondent an administrative fine in the amount of $750.00 for having committed these violations. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of September, 1991. STUART M. LERNER 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 17th day of September, 1991.
Findings Of Fact Joanne Fletcher answered the telephone the day Eddie Dingler called The Summit Men's Hair Barbershop (Summit I) asking for work. He said he was Roffler- and Sebring-trained and that he held barber's licenses both in Alabama and in Florida. Ms. Fletcher relayed this message to respondent Donald C. Allgood. At the time, Mr. Allgood was half-owner of The Summit IV, and respondent Don Pettis owned the other half. Mr. Allgood had no ownership interest in Summit I, which was licensed to Mr. Pettis. Petitioner's Exhibit No. 3. Mr. Allgood acted as a sort of manager at Summit I the two or three days of the week he spent there, even though he was technically an independent contractor, working on commissions. Respondents had worked with each other for some seven years. The parties stipulated that respondent Donald C. Allgood "is a barber having been issued license number BB 0021833" and that respondent Don Pettis "is a barber having been issued license number BB 0011546." One Monday morning Eddie Dingler appeared in person at Summit I and talked to respondent Allgood about employment. Mr. Allgood called respondent Pettis, then took Dingler to respondent Pettis's house, where Ron Pettis was also present. Dingler told this group that he was licensed both in Florida and in Alabama and that he was conversant with the Roffler and Sebring tonsorial techniques. He was specifically asked whether he had a Florida license, and he answered affirmatively. He was not asked to produce the license certificate itself or the wallet-sized card that licensed barbers are issued. Barbers are under no requirement to carry this card on their persons. Respondent Pettis asked respondent Allgood to observe Dingler cutting hair and to hire him if he cut hair satisfactorily. Dingler was engaged as a barber on a commission basis. He proved to be a highly competent hair stylist, and "excellent barber," from a technical standpoint. Posted in is station at Summit I was what appeared to be a valid Florida barber's license with Dingler's name and photograph: he was wearing eye, glasses and a yellow shirt. Aside from the respondents, five witnesses saw this barber's license, which was counterfeit. Petitioner's Exhibit No. 1. Respondent Pettis remembered noticing a number of plaques on the wall at Dingler's station in Summit I, including something that looked like Dingler's license. Mr. Allgood was unable to say that he had specifically seen Dingler's barber's license at any time before Dingler gathered up his things to leave after being discharged from employment. After Dingler had worked at Summit I for about three months respondent Allgood asked him if he would like to work Mondays (when Summit I was closed at Summit IV. Dingler was Interested and reported for work at Summit IV the following Monday. Michael NcNeill let him in the barbershop ,and noticed what appeared to be an official Florida barber's license among Dingler's effects. After Mr. McNeill had left the Summit IV premises, Dingler allegedly sexually assaulted a 17-year-old patron. When respondent Allgood learned of this, he told victim's father that he would fire Dingler and do what he could to see that Dingler's barber's license was revoked. Dingler was discharged the day after the alleged assault. In discussing the matter with a law enforcement officer, respondent Allgood suggested that the Department of Professional Regulation (DPR) be notified so that proceedings to revoke Dingler's barber's license could be instituted. On November 24, 1980, Mr. Allgood voluntarily presented himself for an interview by Charles Deckert, an investigator for DPR. He assumed Mr. Deckert was developing a case so that action against Dingler could be taken. He learned in the interview for the first time that Dingler had never been licensed in Florida as a barber or a registered barber's assistant, according to DPR's records. In preparing the foregoing findings of fact, petitioner's proposed findings of fact and memorandum of law and respondents' proposed order have been considered, and the proposed statement and findings of fact have been adopted in substance.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner refrain from taking action against respondents on account of this technical violation. DONE AND ENTERED this 28th day of June, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II 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 28th day of June, 1982. COPIES FURNISHED: Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Patricia Grinsted, Esquire Post Office Drawer 915 Shalimar, Florida 32579 Myrtle Aase Executive Director Barbars Board 130 North Monroe Street Tallahassee, Florida 32301 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Based upon the entire record, the following findings of fact are determined: This case involves an appeal by petitioner, Marline Lewis, challenging the score she received on the September 1993 barber licensure examination. The examination is administered by the Department of Business and Professional Regulation on behalf of respondent, the Barbers' Board (Board). According to the examination grade report issued on September 29, 1993, petitioner received a grade of 69 on the practical portion of the examination. The Board requires a grade of at least 74.5 in order to be licensed. The barber examination consists of two parts: written and practical. The practical portion of the examination is in issue here and has five categories: haircut, permanent wave, shampoo, sanitation and technique. As clarified at hearing, petitioner contends that the examiners who assessed her performance did not assign a proper score on the haircut category, and that one examiner improperly gave her no credit on one item of the sanitation category. She also contends that there were conversations between two examiners during the examination that disrupted her concentration, and that other individuals entered the examination room and momentarily congregated around her work area. Petitioner took the practical portion of the examination on the afternoon of September 20, 1993, at Lively Vocational/Technical Center in Tallahassee, Florida. The examination room contained four work areas, one in each corner of the room, with each area having four work stations consisting of a mirror, chair, cabinet, counter and sink. Each candidate was assigned to one of the work stations. When petitioner took the examination, there were fourteen candidates, including herself. Each candidate was required to be accompanied by a model on whom the procedures could be performed. Petitioner brought her husband as a model. Four examiners were assigned the task of grading the fourteen candidates. The room was divided in half for testing purposes, and two examiners graded seven candidates at two work areas while the other two examiners graded the remaining seven candidates. Each set of examiners circulated around their assigned work areas so that they could observe and monitor the skills of the candidates. Thus, it was not possible for an examiner to observe a candidate for every moment during the entire examination. In petitioner's case, her examiners were Roland Bordelon and Jeri Scott, two licensed barber stylists with nine and eleven years experience, respectively, in grading the examination. According to examiner Scott, she always gave the benefit of the doubt to the candidate. On the other hand, examiner Bordelon said he tended to grade more rigidly. Before the examination, all examiners were given standardization training, which was designed to insure that the examiners graded in a "standardized" or consistent fashion. This training included the grading of live models during a simulated or mock examination. In addition, they reviewed a grader's manual which provided criteria and instructions on how to grade the examination. The examiners were told to grade independently of one another, and they were not to confer on the grades to be given a candidate. After the grading was completed, the two grades were compiled, and an overall grade was given the candidate. The haircut category contains nine separate items to be rated by the examiner. A maximum of forty-five points can be attained in this category. The sanitation category contains ten items with a maximum of twenty-five points. The examiner was required to give a "yes" or "no" score on each category, with a "yes" meaning full credit and a "no" meaning zero credit. This rating was then recorded contemporaneously on a scoring sheet. In the event a "no" score was given, the examiner was required to fill in a comments section on the scoring sheet which identified the basis for the negative rating. Finally, if one examiner gave a "yes" and the other a "no," the candidate received one-half credit on the item. In the haircut portion of the test, examiner Bordelon gave a "no" on items B-8, B-9, B-10, B-12, and B-14 while examiner Scott gave a "no" on items B-11, B-12, and B-15. In all other respects, the two were consistent in their grading. Their combined scores resulted in petitioner receiving a total grade of 24 out of 45 points. Petitioner contends that she successfully completed a taper haircut on her model and did not deserve to receive a "no" on so many items. She also questions the consistency of the examiners' grading. The more credible and persuasive evidence, however, is that the items were graded in a fair manner and that a number of deficiencies were noted in her performance. They included sides not proportional, holes in the sides and back, side burns not shaven, holes in the top, blending problems, and uneven outlines. Although the two examiners disagreed on several items, such inconsistencies were not shown to be unreasonable or illogical. Moreover, the scores are averaged to adjust for any potential bias by the examiners. In other words, the averaging process reduces the subjectivity of the examiner's scoring and takes into account the fact that one examiner may grade too leniently or too severe. Therefore, the grade given in the haircut category should not be changed. In the sanitation category of the examination, petitioner contests the "no" grade she received from examiner Bordelon on item B-1. That item requires a candidate to wash her hands before beginning the haircut. Examiner Scott stated that she did not see petitioner wash her hands, but since she did not observe petitioner every moment before the haircut began, she gave her the benefit of the doubt. Examiner Bordelon stated he did not observe petitioner wash her hands and thus gave her a "no." Since petitioner stated that she washed her hands prior to the beginning of the haircut, and examiner Bordelon did not testify that he had petitioner in his eyesight for every moment prior to the time she began cutting hair, it is found that petitioner should be given a "yes" rating on item B-1 and an additional two points. After adjusting her score, her total score is 71, or still less than the required 74.5. Besides her own testimony, petitioner presented the testimony of her former instructor, Terry Collier, who is a licensed barber stylist. Collier suggested that the examiners did not have sufficient experience and training in cutting the hair of African-Americans. From this premise, he drew the conclusion that the examiners likewise were insufficiently trained to judge the merits of a haircut given to a black model. The evidence shows, however, that during the past decade both examiners have graded numerous candidates who used black models. This is confirmed by the fact that approximately one-half of all test candidates and models are black. In addition, both examiners operate barbershops serving African-American clients. Finally, both Collier and the Board's witnesses agreed that subjective judgment calls must be made by the examiners while grading a candidate. Therefore, petitioner's contention regarding the qualifications of the examiners is deemed to be without merit. Finally, petitioner claims she was distracted by conversations between the two examiners during the examination. Both examiners denied discussing the merits of the candidate's skills, but admitted they made have engaged in "small talk" at various times, particularly during the permanent wave part of the examination, a category not in issue here. Also, petitioner stated that four or five unidentified persons came into the examination room during the examination and stood behind her for a few moments. This was confirmed by her husband. Even if these events occurred, however, all candidates would have been subjected to the same testing conditions and thus no candidate would have received an unfair advantage during the examination process. Moreoever, petitioner concedes that during the examination she never complained that she was being distracted. Therefore, petitioner is not entitled to relief on this ground.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Barbers' Board enter a final order changing petitioner's grade on the September 1993 barber stylist examination from 69 to 71. DONE AND ENTERED this 22nd day of June, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER 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 22nd day of June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6792 Petitioner: 1. Partially accepted in finding of fact 2. 2. Partially accepted in finding of fact 3. 3. Rejected as being unnecessary. 4. Partially accepted in finding of fact 7. 5. Partially accepted in finding of fact 6. 6. Partially accepted in finding of fact 1. Partially accepted in findings of fact 1 and 7. Partially accepted in finding of fact 3. 9-11. Partially accepted in finding of fact 4. 12-13. Partially accepted in finding of fact 7. 14-16. Partially accepted in finding of fact 6. 17-24. Partially accepted in finding of fact 7. 25-26. Partially accepted in finding of fact 5. 27-29. Partially accepted in finding of fact 10. 30-31. Partially accepted in finding of fact 7. 32. Rejected as being unnecessary. 33. Partially accepted in finding of fact 7. 34. Partially accepted in finding of fact 9. Respondent: 1. Partially accepted in finding of fact 2. 2. Partially accepted in finding of fact 3. 3. Partially accepted in finding of fact 2. 4. Rejected as being unnecessary. 5. Partially accepted in finding of fact 1. 6. Partially accepted in finding of fact 2. 7. Partially accepted in finding of fact 7. 8. Partially accepted in finding of fact 2. 9. Partially accepted in finding of fact 3. 10. Partially accepted in finding of fact 4. 11. Rejected as being unnecessary. 12. Partially accepted in finding of fact 6. 13-15. Partially accepted in finding of fact 7. 16. Partially accepted in finding of fact 9. 17. Partially accepted in finding of fact 7. 18-22. Partially accepted in finding of fact 10. 23-24. Rejected as being unnecessary. 25-26. Partially accepted in finding of fact 9. 27. Partially accepted in finding of fact 5. 28. Partially accepted in finding of fact 9. 29. Rejected as being unnecessary. 30. Partially accepted in finding of fact 4. 31. Partially accepted in finding of fact 8. NOTE: Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Suzanne Lee, Executive Director Barbers' Board 1940 North Monroe Street Tallahassee, FL 32399-0769 Jack L. McRay, Esquire 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Leatrice E. Williams, Esquire 604 Hogan Street Jacksonville, Florida 32202 W. Frederick Whitson, Esquire 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact Respondent, Rosanne M. Gonzales (Rosanne), is the holder of License Number BS 0007763 issued by petitioner, Department of Professional Regulation, Florida Barbers' Board. She operates a barbershop under the trade name "Tamarac Barber Shop" at 7403 Northwest 57th Street, Tamarac, Florida. Respondent, Geronimo Navarro Gonzales (Geronimo), is the husband of Rosanne, and practices barbering at the Tamarac Barber Shop. Responding to a complaint filed by a former employee of Tamarac Barber Shop, an investigator visited that shop on November 27, 1984. The investigator found Geronimo cutting a customer's hair. When asked to produce his license, Geronimo handed the investigator a license reflecting the name "Juan Navarro" and License Number BB 0020347. The license also contained Geronimo and Rosanne's current home address in Plantation, Florida. When asked why the name on the license did not match his own name, Geronimo replied that he had been using the name "Juan Navarro" on the license to avoid detection by his former wife. The photograph on the license did not appear to be Geronimo, but Rosanne initially claimed Geronimo had been very ill and had lost a great deal of weight. Geronimo later explained that he had taken the barber examination in 1970 under the assumed name of Juan Navarro and had held the license for some fifteen years in that name. However, Geronimo acknowledged he had never had his name legally changed to Juan Navarro. An examination of agency records in Tallahassee revealed that a Juan Navarro was indeed issued barber license number BB 0020347 in June, 1970. According to the application, that individual was born in Cuba on September 9, 1936. When Geronimo produced a birth certificate and driver's license reflecting he was born on June 11, 1937 in Puerto Rico, it prompted further investigation by the Board, and resulted in the issuance of these complaints. According to Geronimo, he has been a barber for some thirty years. He originally barbered in New York State where he had a license, and then moved to Florida approximately fifteen or more years ago. At that time, he had just divorced his former wife, and was attempting to evade her detection. Because of this, he applied for licensure with the Barbers' Board using the name "Juan Navarro." He stated he took the barbers' practical and written examination (in Spanish) in April, 1970 in Jacksonville under this assumed name and received a passing grade. His visit to Jacksonville was corroborated by a friend who accompanied him to the test. He also claimed the Board mailed him a license in June, 1970, and that he has been paying the license renewal fees since that time. Although during the investigative stage the Gonzales denied sending the Board a letter advising that Juan Navarro now resided at the same address in Plantation as did the Gonzales, Rosanne acknowledged at final hearing that she had done so on behalf of her husband. The Board's official records show that only one Juan Navarro has ever been issued a license, and it is the one in the possession of Geronimo. When Geronimo reviewed the records at final hearing, he stated the person in the photograph attached to Juan Navarro's original application was not he and the signature on the application was not his own. Geronimo also stated that the copy of the New York license contained in his records was his old license from New York State, but that the man in the photograph attached thereto was a different person. Board investigators have never learned the identity or whereabouts of the man whose picture is on license number BB 0020347, or the Juan Navarro who prepared the original application for licensure. Rosanne testified her husband presented a license before he began barbering in her shop in May, 1983, and she relied upon this as a condition to hiring him. She indicated he is an indispensable asset to her business, and expressed a desire that he be allowed to continue in the barbering profession.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that both respondents be found guilty as charged in the administrative complaints, that Tamarac Barber Shop be given a public reprimand, and that Geronimo Navarro Gonzales be assessed a $500.00 civil penalty. DONE and ORDERED this 19th day of November, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1985. COPIES FURNISHED: Theodore R. Gay, Esq. Suite 4310, Southeast Financial Center 200 S. Biscayne Blvd. Miami, FL 33131-2355 Stephen R. Jacob, Esq. 800 N.W. Cypress Creek Rd., Suite 502C Ft. Lauderdale, FL 33309
Findings Of Fact On May 5, 1953 Petitioner issued barbershop license number BS0007761 to Respondent for the operation of Mr. S. Haircuttery, a barbershop located at 17846 South Dixie Highway, Miami, Florida. Petitioner's letter to Respondent dated May 5, 1983 states, "All persons employed as barbers or barber assistants are required to have a current and valid license." Respondent has maintained his license and operated Mr. S. Haircuttery, as owner, at all times material hereto. On October 16, 1984 Bettye C. Rogers, an inspector employed by Petitioner, entered Mr. S. Haircuttery to inspect the premises. The barbershop was very clean and sanitary, and had all required equipment. Ms. Rogers observed a person, later identified as Marietta Thompson, cutting a customer's hair. Upon inquiry it was determined that Marietta Thompson was not licensed at the time by the Barbers' Board or the Board of Cosmetology. Respondent admits that Marietta Thompson was not licensed at the time of the inspection. He points out, however, that her employment of four days was immediately terminated, and that she had been referred to him by a cosmetology school as a person who had passed her cosmetology exam and was just waiting to receive her license. Respondent has been licensed as a barber in Florida for approximately twenty years and as a cosmetologist for approximately seven years. During that time he has owned and operated four licensed shops and employed approximately fifteen licensed employees at his shops. The evidence establishes that the incident involving Marietta Thompson is Petitioner's only violation of the applicable licensing laws during the time he has been licensed. Marietta Thompson was employed by Respondent from October 13 to October 16, 1984. In making the above findings of fact, proposed findings submitted by Petitioner pursuant to Section 120.57(1)(b)4, F.S., have been considered. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings have been rejected as subordinate, cumulative, immaterial or unnecessary.
Recommendation Based upon the foregoing, it is recommended that petitioner issue a Final Order which imposes a reprimand against Respondent's barber shop license number BS0007761. DONE and ENTERED this 2nd day of April, 1985 at Tallahassee, Florida. DONALD D. CONN 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 2nd day of April, 1985
The Issue The issue in this case is whether Petitioner should have received a passing grade on the written part of her barber examination.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Nina D. Odom, was a candidate on the April 1997 barber examination. The test is administered by the Bureau of Testing, Department of Business and Professional Regulation (Bureau), while licensure is conferred by Respondent, Barbers' Board (Board). There are two parts to the barber examination, a written portion and a practical portion. On an examination taken more than one year earlier, Petitioner had received a passing grade on the practical part of the examination. For the April 1997 examination, Petitioner received a score of 72 on the written part of the examination. In order to pass that part, a minimum score of 75 is required. Contending that she "wasn't pleased with [her] results," Petitioner requested a formal hearing to challenge her grade. In her letter requesting a hearing, Petitioner contended that the Bureau advised that her "weak area" was "implements," but the questions she failed were not in that subject area. As clarified at hearing, she challenged questions 2, 58, and 63, all multiple choice questions, contending that she should have received credit for her answers. Also, she questioned whether she should be required to pay a $150.00 reexamination fee even if she had already passed the practical part of the examination. Finally, Petitioner complained that she was required to retake both parts of the examination even if she failed only one part. The letter prompted this proceeding. The written portion of the barber examination is not an open book examination. Prior to the examination, however, candidates are given a copy of a "Candidate Information Booklet" (Booklet), which identifies in general terms the contents of the test and the reference materials from which the questions will be drawn. The questions are multiple choice and the correct answers are always taken from one of the reference materials in the Booklet. Because the questions are confidential, and may be used on future examinations, the actual text of the challenged questions will not be repeated here. In this case, Petitioner has contended that she should have been given credit for her answers to questions 2, 58, and Prior to the hearing, the Bureau agreed that Petitioner should have been given credit for question 58. This results in Petitioner's grade being raised to slightly above 73, which is still short of a passing grade. Question 2 tests the candidate's knowledge of a procedure to be used on a client. Petitioner selected an incorrect answer but contended that it was based on information she received from her instructors in 1992 while attending the Hair Design School in Jacksonville, Florida. However, witness Stewart, who helped draft the test questions, established that the correct answer is drawn from a recognized textbook, and that the information Petitioner received during her schooling was in error. Question 63 tests the candidate's knowledge of another procedure which licensed hair stylists must perform. Again, Petitioner selected an incorrect answer. Witness Stewart established that the correct answer was drawn from a recognized textbook cited in the Candidate's Information Booklet, and that Petitioner's answer was incorrect. The Board has promulgated Chapter 61G3-16, Florida Administrative Code, which contains the requirements for examination for licensure, reexamination, and examination review. Rule 61G3-16.001(5), Florida Administrative Code, provides that "[t]here shall be two parts to the examination, a written portion and a practical portion." The evidence shows that Petitioner has successfully completed the practical part of the examination but has failed the written part on four consecutive occasions. Rule 61G3-16.002(1), Florida Administrative Code, provides that "[a]n applicant who fails the state examination for licensure in whole or in part shall be required to pay the reexamination fee as set forth in Rule 61G3-20.007." Therefore, under the terms of the rule, Petitioner is required to pay the reexamination fee of $150.00 even if she passes one part of the two-part examination. Rule 61G3-16.002(2), Florida Administrative Code, provides that "[a]n applicant shall be required to retake only the portion of the examination on which he or she failed to achieve a passing grade. However, an applicant must pass both portions of the examination within a one year period in order to qualify for licensure." Because Petitioner had not passed the practical part of the examination within one year of when she sat on the written part of the examination, she was properly required to retake both parts of the examination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Barbers' Board enter a Final Order denying Petitioner's request for a passing grade on the written portion of the April 1997 barber examination. DONE AND ENTERED this 27th day of May, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1998. COPIES FURNISHED: Nina D. Odom 1230 East 7th Street, Apartment 9 Jacksonville, Florida 32206 R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Joe Baker, Executive Director Barbers' Board 1940 North Monroe Street Tallahassee, Florida 32399-0769 Lynda Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
