The Issue Whether the Respondent's license as a mental health counselor should be revoked, suspended or otherwise disciplined based on the allegation contained in the Second Amended Administrative Complaint.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, the Respondent was licensed as a mental health counselor in the State of Florida, having been issued license number MH 0001282. The Respondent was awarded the degree Doctor of Philosophy with an area of specialization in Counseling Psychology from The Union Graduate School, The Union For Experimenting Colleges and Universities. Subsequently, the Respondent completed course work and training in, among others, the areas of psychological testing and neuropsychological examinations. The Respondent has never been licensed as a psychologist in the State of Florida under Chapter 490, Florida Statutes. However, the Respondent was allowed to practice what was commonly referred to as psychology without a license as long as the Respondent did not use the word "psychologist" or related terms in his advertising or professional activities. At all times material to this proceeding the Respondent was a member of the Florida Psychological Practitioners Association (FPPA), a private nonprofit association of psychologists, and the American Psychological Practitioners Association (APPA), a private nonprofit association of psychologists. In a promotional or advertisement letter dated October 8, 1990, the Respondent advises attorneys who specialize in personal injury cases of his services for a "regimen of rehabilitation, on an OUTPATIENT basis, for individuals with various cognitive deficits such as attention and concentration memory disorders". In the course of advising these attorneys of his services, the Respondent indicates that he has provided "neuropsychological examinations" for clients of certain attorneys and would provide "neuropsychological examinations" in performing this "regimen of rehabilitation" if one had not already been administered. On this letter appear: (a) the seal of the FPPA and the seal of the APPA; (b) the words "Board Certified Psychological Services" at the top of the letter; and (c) the words "Board Certified, Clinical Psychology, APPA" in the signature block of the letter below the signature of the Respondent. Neither the letters "LMHC" nor the words "licensed mental health counselor" appear on this letter. In a letter dated November 19, 1990, to the Department's employee, Denise Love, Complaint Analyst, the Respondent responds to an earlier letter from Love concerning a complaint. On this letter appear: (a) the seal of the FPPA and the seal of the APPA; (b) the words "Board Certified Psychological Services" at the top of the letter; and (c) the words "Board Certified, Clinical Psychology, APPA" appear in the signature block below the Respondent's signature. Neither the letters "LMHC" nor the words "licensed mental health counselor" appear on this letter. On a promotional or advertisement letter dated January 10, 1991, containing basically the same message as the October 8, 1990, letter referred to in Finding of Fact 5 above, appear: (a) the seal of the FPPA and the seal of the APPA; (b) the words "Board Certified Psychological Services" on the top of the letter; and (c) the words "Fl. Lic. #XA0001479; #MH0001282" and "Division of Workers Compensation Rehabilitation Services Provider" in the signature block below the Respondent's signature. There was no evidence as to what Florida License #XA0001479 refers to, but Florida License #MH001282 refers to Respondent's license as a mental health counselor. Neither the letters "LMHC" nor the words "licensed mental health counselor" appear on this letter. There is sufficient evidence to show that at all times material to this proceeding, the Respondent was: (a) qualified to perform psychological services, including neuropsychological examinations and psychological testing; (b) not prohibited by statute or rule from offering or performing psychological services, including neuropsychological examinations and psychological testing; Board Certified in Clinical Psychology by the APPA; (d) a member of the FPPA or APPA; and (e) authorized by the FPPA or the APPA to display the seal of each of these respective organizations on his stationery. The letters "LMHC" or the words "licensed mental health counselor" do not appear on the Respondent's business card obtained by Michelle Hampton from Respondent's office while serving papers on the Respondent around February 8, 1991. However, the words "Florida License: #MH0001282" do appear on the card. The letters "LMHC" or the words "licensed mental health counselor" do not appear on either the Respondent's letter of April 8, 1991, to Denise Love, or on the Respondent's business card enclosed with the letter. However, the words "Florida License: #MH 0001282 do appear on both the Respondent's letter and business card. Neither the letters "LMHC" nor the words "licensed mental health counselor" appear on the Respondent's letter of October 21, 1991, to Michelle Hampton. However, the words "Psychotherapist & Examiner" and "Florida License: #MH0001282" do appear on the Respondent's letter in the signature block below the Respondent's signature. There was sufficient evidence to show that Respondent was qualified, by training and experience, to hold himself out as a psychotherapist. Section 491.0149(3), Florida Statutes, which requires a licensed mental health counselor to include the use of the words "licensed mental health counselor" or the letters "LMHC" on all promotional material, including cards, brochures, stationery, advertisements, and signs naming the licensee went into effect on October 1, 1990. Respondent did not become aware of Section 491.0149(3), Florida Statutes, until sometime around January, 1991, and, at that time, it was the Respondent's understanding that the requirement of that section would be met by placing his mental health counseling license's number on all promotional materials. Thereafter, Respondent placed his mental health counseling license's number on all promotional material. By letter addressed to the Respondent, referencing the Department's Case #9014778, dated October 10, 1991, Michelle Hampton advised the Respondent that the Department's attorney had requested that Hampton obtain additional information concerning Respondent's credentials, such as the continuing education courses and the college courses completed by Respondent, that would enable the Respondent to administer, and to score, psychological tests. The letter did not cite any statutory authority for requiring this information or the penalty for failure of the Respondent to furnish this information. There was insufficient evidence to show that the Department had made an earlier request of the Respondent on September 10, 1991, to furnish information concerning the Respondent's credentials, such as the continuing education courses and college courses completed, that would enable the Respondent to administer, and to score, psychological tests, notwithstanding the testimony of Michelle Hampton to the contrary which lacks credibility. By letter dated October 21, 1991, the Respondent responded within 30 days to Hampton's letter of October 10, 1991. As explained in the Respondent's letter, the Respondent considered the request in Hampton's October 10, 1991, letter as being: (a) not relevant to Case #9014778 which involved an allegation that Respondent had utilized a title reserved for those licensed under Chapter 490, Florida Statutes; (b) inappropriate; and (c) harassment. Although, the Respondent did not furnish the requested information at that time, the Respondent did not refuse to furnish the information in his reply to Hampton's letter. The Department's Case #9014778 was opened as result of a complaint filed by Susan B. Filskov, apparently involving an alleged violation of Chapter 490, Florida Statutes, and was subsequently closed along with several other cases involving complaints filed by other individuals against the Respondent. The Department made no further attempt to: (a) obtain this information from the Respondent; (b) explain to the Respondent how the information was relevant to the investigation; (c) explain the Department's need for obtaining the information; or (d) point out that the Respondent was statutorily required to furnish relevant information upon request of the Department. There is sufficient evidence to show that Respondent's conduct in regards to the Department's request for information concerning his credentials did not violate Section 491. 009(2)(o), Florida Statutes. Prior to October 1, 1992, no statutory limits on the practice of psychology or the allied fields (Chapter 491, Florida Statutes, specifically mental health counseling) existed in the State of Florida, apart from the limits on the use of the term "psychologist" and related terms described in Section 490.012, Florida Statutes, and Section 491.012, Florida Statutes, unless a person was a licensed psychologist or licensed in one of the allied fields under Chapter 491, Florida Statutes. The restriction on the use the terms referred to in Finding of Fact 20 by those persons not licensed under Chapters 490 and 491, Florida Statutes, was challenged in federal court. On January 3, 1992, in the case of Abramson v Gonzalez, 949 F.2d 1567 (11th Cir. 1992), the court issued an opinion finding that the Psychological Services Act [Chapter 490, Florida Statutes (1991)], and Chapter 491, Florida Statutes (1991), placed an unconstitutional burden on commercial speech and remanded for proceedings not inconsistent with the opinion. Included as plaintiffs/appellants in this case were several practicing psychologists, clinical social workers, therapists, and the FPPA, of which Respondent was a member. The defendant/appellees were The Florida Department of Professional Regulation, the members of the Florida Board of Psychological Examiners, and the members of the Florida Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling. On August 26, 1992, after remand on January 3, 1992, by the United States Circuit Court of Appeals, the United States District Court, Middle District of Florida, Orlando Division, in the Case styled as Abramson et al. and Florida Psychological Practitioners Association vs. Larry Gonzalez, et al., Case No. 81-735-Civ-Orl-19, entered a Stipulated Order of Permanent Injunction enjoining the defendants from enforcing against any plaintiff, or any member of plaintiff Florida Psychological Practitioners Association, the provisions of Section 490.012, Florida Statutes, and from otherwise attempting to require any plaintiff, or member of plaintiff Florida Psychological Practitioners Association, to refrain from holding themselves out by any title or description incorporating the words, or permutations of the words, "psychologist", "psychology", "psychological", psychodiagnostic", "school psychologist, or "psychotherapy", or from describing any test or report as "psychological" so long as that person was permitted under the laws of the State of Florida to practice as a psychologist. The injunction also enjoined the defendants from enforcing the provisions of Section 490.012(3), or the provisions of Section 491.012(4) or (5), Florida Statutes, with regard to Section 491.012(3), Florida Statutes, and from attempting to require any plaintiff,or any member of plaintiff Florida Psychological Practitioners Association, to refrain from holding themselves out by any title or description incorporating the words, or permutations of the words, "mental health counselor", "psychotherapist", psychotherapy", "mental health therapist", or "mental health consultant", so long as that person was permitted under the laws of the State of Florida to practice as a mental health counselor. There are like provisions enjoining the defendants as to "clinical social workers" and "marriage and family therapist" which are not pertinent here. Likewise, any plaintiff or plaintiff member of the Florida Psychological Practitioners Association were enjoined from the use of any term or title which implies or connotes that such individual holds a license issued under the provisions of Chapter 490 or 491, Florida Statutes, unless that individual is the holder of a valid license issued pursuant to either Chapter 490 or 491, Florida Statutes. There is insufficient evidence to show that the Respondent's use of the words "Board Certified Psychological Services", "Board Certified, Clinical Psychology ", "neuropsychological examinations", "psychotherapist" or the use of the "FPPA" and "APPA" seals on stationery that Respondent used for promotional, advertisement or other business purposes: (a) was false, deceptive or misleading advertisement; or (b) that Respondent was making misleading, deceptive, untrue, or fraudulent representations in the practice of mental health counseling, notwithstanding the testimony of Ellen Bolves to the contrary, which lacks credibility. There is insufficient evidence to show that Respondent's failure to include the letters "LMHC" or the words "licensed mental health counselor" on all promotional material was to create false, deceptive, or misleading advertising, or for the purpose of making misleading, deceptive, untrue, or fraudulent representations in the practice of mental health counseling, notwithstanding the testimony of Ellen Bolves to the contrary, which lacks credibility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board enter a final order dismissing Count I, Count II and Count IV. It is further recommended, after consideration of Rule 61F4-5.001, Florida Administrative Code, Disciplinary Guidelines, and the primary purpose of regulating any profession being to protect the health, safety and welfare of the public and not the generation of revenue, that the Board issue a letter of reprimand to the Respondent for the violation set forth in Count III of the Second Amended Administrative Complaint. DONE AND ENTERED this 10th day of June, 1994, in Tallahassee, Florida. WILLIAM R. CAVE 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 10th day of June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6917 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 in this case. Petitioner, Department's Proposed Findings of Fact: The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1,3); 2(5); 3(6); 4(7); 5(9); 6(10); 7(11); 10(16); and 12(11,12). Proposed findings of fact 11, 13, 14 and 16 are unnecessary in that they present matters previously presented in other proposed findings of fact which have been adopted. However, should there be any matter that was not previously adopted then such matters are hereby adopted. Proposed findings of fact 8, 9, 15, 17, 18, 19, 20 and 21 are not supported by competent substantial evidence in the record. Additionally, proposed findings of fact 17 - 20 also present argument which should be presented in the Conclusions of Law. Respondent, Harris' Proposed Findings of Fact: 1. The Respondent's proposed findings of fact are so intermingled with argument and other matters not considered findings of fact that I do not intend to respond to each one. However, those matters that are clearly findings of fact are adopted in Findings of Fact 1 through 24. The balance are rejected as being argument, conclusions of law, matters that should be covered in the preliminary statement, or not material or relevant. COPIES FURNISHED: Charles Faircloth, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Ste. 60 Tallahassee, Florida 32399-0792 Robert Watrous, Esquire 27 S. Orange Avenue Sarasota, Florida 34236 Jack McRay General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry Dover Executive Director Board of Clinical Social Work, Marriage & Family Therapy & Mental Health Counseling 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Felix Robaina is a "prevailing small business party", as provided in section 57.111 F.S.. On March 12, 1987, the Barber's Board filed its Final Order approving and adopting the Hearing Officer's Recommended Order that Felix Robaina be found not guilty of the violations alleged and dismissing the Administrative Complaint. An application for award of attorney's fees and costs was timely filed with the Division of Administrative Hearings on March 25, 1987. The parties have stipulated that the time spent by Mr. Robaina's attorney, Isidro Garcia, 19.25 hours, and hourly rate claimed, $100.00, are reasonable. Costs were expended in the amount of $67.35, reflecting the cost of a copy of the transcript and expenses of mailing.
Findings Of Fact Respondent is comprised of 12 physicians and three members of the public. Respondent carries out the provisions of Chapter 458, Florida Statutes (the "Medical Practice Act"). Respondent's primary purpose is to ensure that physicians who practice medicine in the state meet the minimum requirements for safe practice and to prohibit the practice of medicine by those who are incompetent or unsafe. Respondent is not an employer for the purposes of this proceeding. Respondent does not employ anyone, does not serve as an employment agency or job training service, and is not a labor organization or trade association. Petitioner is a Cuban born, foreign trained individual who is seeking licensure by endorsement. Respondent graduated from the University of Camaguey, a Cuban medical school. Background When Petitioner initially applied for licensure on October 26, 1983, the University of Camaguey was not listed in the World Health Organization World Directory Of Medical Schools. The University of Camaguey was listed in a subsequent edition published after Petitioner was denied licensure in 1983. Petitioner, received a valid certificate from the Educational Commission on Foreign Medical Graduates on August 16, 1984. Respondent denied Petitioner's initial application for licensure on the ground that Petitioner failed to show that he possessed a valid certificate from the Educational Commission on Foreign Medical Graduates. A formal hearing was conducted on August 29, 1984, by Hearing Officer R.T. Carpenter, in Case No. 84- 2684. The Recommended Order issued on October 3, 1984, found that Petitioner had graduated from a recognized medical school and had obtained a valid certificate. Respondent was to consider the Recommended Order at its regularly scheduled meeting on February 3, 1985. In July, 1984, Petitioner was working at a medical clinic when a patient suffered a cardiac arrest while being administered anesthesia by Petitioner. Petitioner was charged with a felony violation of practicing medicine without a license. Petitioner entered into a plea bargain agreement in the criminal case in which Petitioner withdrew his application for licensure, entered a plea of nolo contendere, and was placed on probation. Respondent permitted Petitioner to withdraw his application for licensure and took no action on the application. Respondent satisfactorily completed his criminal probation and re- applied for licensure on January 27, 1987. Respondent denied the application on June 7, 1987, on the grounds that the criminal conviction rendered Petitioner morally unfit to practice medicine, that Petitioner had not demonstrated he could practice medicine with skill and safety, and that Petitioner had not graduated from an accredited medical school. A formal hearing was conducted on January 5, 1989, by Hearing Officer Linda M. Rigot, in Case No. 88-0270. A Recommended Order was issued on March 30, 1989, finding that Petitioner had graduated from an accredited medical school, that Petitioner had been rehabilitated, and that Petitioner should be licensed to practice medicine. Before Respondent considered the Recommended Order in Case No. 88-0270, Petitioner was charged with practicing medicine without a license in the field of plastic surgery. A subsequent formal hearing was conducted by Hearing Officer Rigot on December 21, 1990. The Supplemental Recommended Order issued on March 6, 1991, found that Petitioner had knowingly practiced medicine without a license in April, 1989, and that Petitioner was not rehabilitated from his prior conviction. The Supplemental Recommended Order recommended that Respondent deny Petitioner's application for licensure. Respondent adopted the Supplemental Recommended Order in a Final Order issued on May 24, 1991, which is currently pending appeal. No Unlawful Discrimination Respondent did not unlawfully discriminate against Petitioner in denying Petitioner's licensure application. Respondent did not act with any bias or animus against Petitioner. Respondent's denial of Petitioner's licensure application was based upon Petitioner's failure to satisfy applicable statutory criteria for licensure, his commission of acts constituting violations of the Medical Practice Act, and his failure to demonstrate rehabilitation and good moral character. From 1987-1991, Respondent has certified 10,963 applicants for licensure as physicians by endorsement. Approximately 3,479, or 31.7 percent, were foreign-trained applicants.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued denying Petitioner's claim of unlawful discrimination. DONE AND ENTERED this 14th day of January, 1993, at Tallahassee, Florida. DANIEL S. MANRY 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 14th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-1021 Petitioner did not submit proposed findings of fact. Respondent's Proposed Findings of Fact 1. Accepted in finding 1. 2. Accepted in finding 2. 3. Accepted in finding 10 4. Rejected as conclusion of law. 5. Accepted in finding 4. 6. Accepted in finding 5. 7. Accepted in finding 7. 8. Accepted in finding 9. 9.-10. Accepted in finding 10. 11. Rejected as irrelevant and immaterial. 12. Accepted in finding 11 13. Rejected as irrelevant and immaterial. COPIES FURNISHED: Marcelino D. Mata 158 East 47th Street Hialeah, Florida 33013 Ann Cocheu Assistant Attorney General Department of Legal Affairs PL01, The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth, Executive Director Department of Professional Regulation/Board of Medicine 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792
The Issue The issues in this case are whether Respondent was adjudicated guilty of a crime which directly relates to the practice of contracting or the ability to practice contracting, or failed to report his guilty plea to a crime in writing to the Construction Industry Licensing Board within 30 days, in violation of sections 489.129(1)(b) and 455.227(1)(t), Florida Statutes,1/ as alleged in the Administrative Complaint; and, if so, what is the appropriate sanction.
Findings Of Fact The Department is the state agency charged with regulating the practice of contracting pursuant to section 20.165 and chapters 455 and 489, Florida Statutes. The Board is charged with final agency action with respect to contractors pursuant to chapter 489. The practice of contracting is regulated by the State of Florida in the interest of the public health, safety, and welfare. Mr. Walk is licensed as a certified residential contractor in the State of Florida, having been issued license number CRC 1327370. He was subject to regulation by the Department at the time of the actions alleged in the Administrative Complaint. Mr. Walk's license allows him to construct, remodel, repair, or make improvements to one-family, two-family, or three- family residences. Such residential structures may reasonably be expected to have children residing in them. A state-licensed residential contractor is trusted by homeowners, allowed into their homes, and into contact with their children. On March 15, 2016, Mr. Walk pled guilty to three counts of possession, control, or intentionally viewing a sexual performance by a child in Case Number 2015CF009085AMB in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida. As Mr. Walk testified at hearing, he did not know any of the people in the photographs, he did not take any of the pictures. He "clicked" on child pornography pictures and dragged them into his computer file. The crimes to which Mr. Walk pled guilty affect the public health, safety, and welfare, and directly relate to the practice of contracting or the ability to practice residential contracting. Mr. Walk testified that at the time he signed the guilty plea, he had not seen his son in six months, his attorney at the time did not explain much to him, and the details of the plea agreement were still being worked out. He testified that his main goal was to go home to be with his son. Mr. Walk testified that later, through discussions with his wife and a new attorney, he considered withdrawing his guilty plea, but ultimately he did not do so. On or about November 18, 2016, Mr. Walk was adjudicated guilty of three counts of possession, control, or intentionally viewing a sexual performance by a child in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida. On or about December 19, 2016, Mr. Walk reported his guilty plea to three counts of possession, control, or intentionally viewing a sexual performance by a child to Petitioner via a Criminal Self-Reporting Document. On or about December 27, 2016, Petitioner received Mr. Walk's Criminal Self•Reporting Document. An Order of Sex Offender Probation was issued against Mr. Walk in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, on or about February 3, 2017. Mr. Walk was required to register as a sex offender. As a result of Mr. Walk's conviction, he served 18 months in state prison. He is currently serving ten years of sex offender probation and attending sex offender therapy once a week. He must wear a GPS monitor at all times, must keep a log whenever he drives a vehicle, and must pay $23,226.50 for his supervision and other financial obligations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order finding Christopher Michael Walk in violation of section 489.129(1)(b), Florida Statutes, and revoking his license as a certified residential contractor. DONE AND ENTERED this 18th day of October, 2018, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 18th day of October, 2018.
The Issue The issues are as follows: (a) whether a proposed amendment to Florida Administrative Code Rule 64B14-3.001(12) constitutes an invalid exercise of delegated legislative authority in violation of Sections 120.52(8)(b) and/or 120.52(8)(c), Florida Statutes (2005); and (b) whether Petitioners are entitled to attorneys' fees pursuant to Section 120.595(2), Florida Statutes (2005).
Findings Of Fact This matter arises from Respondent's proposed amendment (the proposed rule) to Florida Administrative Code Rule 64B14- 3.001(12), which defines the term "direct supervision" for purposes of Part XIV, Chapter 468, Florida Statutes (the O&P practice act.) Respondent advertised the text of the proposed rule in Volume 31, Number 35, September 2, 2005, of the Florida Administrative Weekly. The proposed rule states as follows in relevant part: (12) Direct Supervision means: supervision while the qualified supervisor is on the premises. The licensed orthotist, prosthetist, orthotist/prosthetist, or pedorthist will provide a physical evaluation of each patient's orthotic and or prosthetic needs and may delegate appropriate duties to support personnel. However, the licensed practitioner shall physically evaluate the effectiveness, appropriateness and fit of all devices within the scope of the licensed practitioner's licensure practice requirements, including those repaired devices in which the repairs affect the fit, physical structure or biomechanical function of the device, on every patient, prior to patient use of the device; For the purpose of replacement of worn or broken components which do not in any way alter the fit, physical structure or biomechanical functioning of the existing device, direct supervision of support personnel providing repairs to orthoses or prostheses means the aforementioned repair must be approved by the appropriately licensed practitioner prior to beginning of repairs. The responsible licensed practitioner must at all times be accessible by two way communication, enabling the supervisor to respond to questions relating to the repair. * * * Specific Authority 468.802, F.S. Law Implemented 468.802, 468.803, 468.807, 468.808, 468.809, F.S. History--New 10-21- 99, Amended 2-19-04, 5-5-04. Respondent conducted a final public hearing regarding the proposed rule on November 18, 2005. Petitioners filed a petition challenging the proposed rule within 10 days after the final public hearing. Petitioners would be substantially affected by the proposed rule. The parties stipulate to the citation of official notices and other matters published in Florida Administrative Weekly.
Findings Of Fact Larry F. Plogg, presently holds an active cosmetology license issued by Petitioner, License No. CL-0125370, for the period September 1, 1982, through June 30, 1984. On May 11, 1982, Plogg began employment as a cosmetologist in a salon operated by Shear Pleasure, Inc., in Jacksonville, Duval County, Florida. This employment has been ongoing and continues to the present. Shear Pleasure, Inc., is the holder of License No. CE0027634, issued by Petitioner. Plogg's licensure was by the process of endorsement, in that Plogg had acted as a licensed cosmetologist in the State of Georgia prior to his employment in Jacksonville, Florida. On the date that Plogg was employed, Fontaine LeMaistre, owner of the Respondent salon, contacted Charles Coats, an investigator with Petitioner and inquired of him on the subject of Plogg's ability to assume his duties as a cosmetologist, pending the receipt of the Florida license by endorsement. Coats indicated that Plogg could begin his duties by posting an indication of the payment of fees for the issuance of the license, assuming that the application for license was otherwise proper. As contemplated by Coats, the posting of the indication of fee payment would serve as a temporary verification of pending licensure for purposes of any inspection of the salon on the question of employee licensure. Plogg had mailed a money order in the amount of thirty-five dollars ($35.00) to Petitioner to obtain his license. The date of this money order was May 10, 1982. Sometime in July, 1982, Plogg contacted the Petitioner to ascertain the status of his license request, having not received his Florida license. he was told that nothing had been filed in furtherance of his licensure by endorsement and that he should send another application together with necessary money. In complying with the instruction, Plogg filed another application form together with another money order on August 13, 1982. Between August 13, 1982, and August 27, 1982, an inspection was made by an unidentified employee of the Petitioner. At that time, Plogg had copies of the original money order of May 10, 1982, and the subsequent money order of August 13, 1982, together with his Georgia license posted for inspection. Notwithstanding Coats' prior assurance, the indication of licensure was questioned by the inspector and apparently the absence of a Florida license being posted at Plogg's work station led to the promotion of the present Administrative Complaint. Out of the circumstance of the inspection, Plogg became concerned about the status of his license request and spoke, by telephone, with Petitioner's employee in Tallahassee, Florida, and was told that he needed to submit another thirty-five dollars ($35.00) to gain licensure, in view of an increase in the fee requirement for licensure by endorsement. This was complied with by forwarding a money order on August 27, 1982, in the amount of thirty-five dollars ($35.00), leading to the aforementioned licensure by endorsement on September 1, 1982.
