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.
The Issue Whether the Master Barber Certificate and the City Barber Shop Certificate of Registration held by the Respondent W. R. Griffis should be revoked, annulled, withdrawn or suspended.
Findings Of Fact An Administrative Complaint was filed on the 22nd day of November, 1976, by P. W. Barker, Executive Director, Florida Barber Sanitary Commission, alleging: That Respondent allowed a dog in the barber shop in violation of Section 476.22(1)(g), Florida Statutes. The Respondent's shop had dirty floors in violation of Section 476.22(1)(h), Florida Statutes. The laboratories were dirty in violation of Section 476.22(1)(i), Florida Statutes. The supply storage room was dirty in violation of Section 476.22(1)(j). The shop was being operated with dirty neck dusters in violation of Section 476.22(1)(1)(6) and (8). Inspector Gordon N. Patterson, an employee of the Florida Barber Sanitary Commission had warned the Respondent on previous occasions that he must clean up his shop. The Administrative Complaint alleged that during the period July, August and September, 1976, the Respondent had been drinking intoxicating beverages and had performed unsatisfactory haircuts on customers as a result of this drinking. An affidavit of the Chief of Police confirms the allegations. At the hearing the Respondent admitted that he does drink, but that he never goes to the barber shop until several days after he has been drinking. The Respondent admitted that he had been ill and that his shop floors, laboratories and storage room had been dirty at times but that he intends to and at present is keeping his place very clean. The Respondent denied that he allowed a dog in his shop stating that a dog ran into his shop but was ejected shortly thereafter.
Recommendation Suspend the Master Barber Certificate No. 8195 and Shop Certificate of Registration of the City Barber Shop No. 2096 held by the Respondent for a period of time not to exceed six (6) months. DONE and ORDERED this 19th day of May, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: A. Ronald C. LaFace, Esquire 101 East College Avenue Tallahassee, Florida 32304 P. Wayne Barker, Executive Director Barber Sanitary Commission 108 West Pensacola Tallahassee, Florida 32304 Warren R. Griffis c/o City Barber Shop 127 West Broadway Fort Meade, Florida 33841
The Issue Whether the Barbers' Board should discipline the Respondent (a licensed barber and barbershop) for permitting a person in his employ to practice barbering without a license in violation of Sections 476.204(1)(a) and (h) and 476.194(1)(c), Florida Statutes (1987).
Findings Of Fact Respondent, Bruce Heineman, holds a valid Florida barber license, license number BB-0018489 which was originally issued on May 8, 1968, and has been continuously licensed as a barber since that time. No record of prior disciplinary action appears in Respondent's file. Respondent, Bruce Heineman operates a barbershop under the business name of "Cuttin Corners," located at 3107 South Orlando Drive, #7B, Sanford, Florida 32771. Said barbershop operates under a current valid barbershop license which was originally issued to Respondent on September 9, 1986. Sara Kemmeck, an inspector with the Department, testified that she personally observed an employee of Respondent, Tina Prescott, giving a customer a haircut on August 31, 1988, at his barbership. Upon demand, the employee was unable to produce a valid barbers license. The unrebutted evidence demonstrated that Tina Prescott was engaged in the practice of barbering without a valid license for a minimum of two weeks, while an employee of Respondent. Tina Prescott was issued a cosmetology license on November 7, 1988, license number CL-0174999, which permits her to practice barbering in a licensed barbershop.
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 Respondent committed the violations alleged in the Administrative Complaint, and, if so, what penalties should be imposed on Respondent.
Findings Of Fact Petitioner is the state agency charged with the regulation of barbering and the inspection of barbershops in the state of Florida pursuant to chapter 476, Florida Statutes. At all times material hereto, Archibald was licensed as a barber in the state of Florida under license number BB8890016. At all times material hereto, Fresh Cut Barbershop ("barbershop") was licensed as a barbershop in the state of Florida under license number 1077801. At all times material hereto, Archibald was an owner and operator of the barbershop. On February 9, 2012, the barbershop was located within a shopping plaza at 6574 Northwest Selvitz Road, Port St. Lucie, Florida. On February 9, 2012, a routine inspection of the barbershop was conducted by Ms. Yvonne Grutka, a trained and experienced inspector employed by Petitioner. Ms. Grutka has been employed by Petitioner as an Environmental Health Specialist for approximately 17 years, performing approximately 1,200-1,400 annual inspections. Due to the nature of the allegations of the Administrative Complaint, the physical layout of the barbershop, including the specific locations of the front entrance, work stations, and waiting area, is important to a clear understanding and resolution of the issues. However, insufficient evidence was presented at hearing in this regard. Moreover, insufficient evidence was presented as to the number of barbers who worked at the barbershop (and thus number of personal licenses); the identities of the barbers; where specifically within the barbershop they worked; and whether the barbers who worked at the barbershop were independent contractors or employees of the business. The scant evidence presented at hearing demonstrates that on February 9, 2012, the premises upon which the barbershop was physically located was leased from the owner of the shopping plaza. A separate beauty supply business, which was owned by Archibald's ex-wife, was located at the front of the leased premises. The barbershop was located in a smaller area at the back of the leased premises. Both businesses were accessible to customers through a single entry door at the front of the leased space where the beauty supply store was located. Petitioner failed to clearly and convincingly establish that the barbershop was open for business during the February 9, 2012, inspection. During Ms. Grutka's February 9, 2012, inspection, the only persons present at the barbershop were Archibald and another unidentified barber. No evidence was presented that this "other barber" was affiliated with the barbershop in any way. No physical description of this person or his/her clothing was provided. It could be that this barber was just visiting, and was unaffiliated with the barbershop. No customers were present. The time of commencement and duration of the inspection is unknown. On the date of the February 9, 2012, inspection, the property upon which the barbershop was located was in foreclosure. As a result, Archibald was planning to vacate the premises and move the barbershop to another location. During the inspection, boxes of items were on the floor, and other items were removed from walls, evidencing Archibald's intent to vacate the premises. Archibald was present on the date of the inspection. Archibald testified he is unsure whether the barbershop was open for business on February 9, 2012, because of his intent to vacate the building. On rebuttal, Ms. Grutka did not "recall" whether she "saw boxes or not." When asked specifically whether she recalled Archibald saying that he was in the process of moving, Ms. Grutka merely replied: "No. He may have. I really don't recall."1/ With respect to the allegation regarding the improper display of personal licenses, Ms. Grutka testified on direct examination that during the February 9, 2012, inspection, she did not observe personal licenses posted with both the photograph and lamination. She testified that the licenses had the photograph or the lamination on "it, but one of the items was missing." However, no evidence was presented by Petitioner on direct examination as to the specific location of the alleged lack of personal licenses, or the number or identities of the licensees for which personal licenses were purportedly not properly displayed. It was only on cross-examination that Ms. Grutka referred to Archibald's personal license, at which time she testified merely that she recalled seeing his personal license located in the "back" of the premises. Archibald testified that he believes the license was displayed in the barbershop area, which was located in the "back end" of the building. Importantly, Ms. Grutka never testified specifically that Archibald's license was improperly displayed in any way. In sum, Petitioner failed to prove by clear and convincing evidence that Respondent's personal license, or, for that matter, the personal licenses of any other barbers who worked at the barbershop were improperly displayed. With respect to the issues of the display of the barbershop license, rules of sanitation, and most recent inspection report, Ms. Grutka testified that during the February 9, 2012, inspection, she did not observe a barbershop license displayed visibly within view of the "front door," or the rules of sanitation, health, and safety visibly within view of the "front door" or "waiting area." Nor did Ms. Grutka observe the most recent inspection form prior to the February 9, 2012, inspection displayed within view of the "front entrance" or the "waiting area." According to Ms. Grutka, she did not observe the barbershop license and rules of sanitation, health, and safety, anywhere at the barbershop on the day of the inspection. However, Ms. Grutka's testimony is unreliable and cannot be credited because of insufficient evidence of the physical layout of the premises. In fact, Ms. Grutka testified that she could not recall whether the "waiting area" was in the front of the building, the back of the building, or in both areas. Moreover, Ms. Grutka did not "recall" if the most recent inspection report was posted anywhere else in the barbershop. The unreliability of Ms. Grutka's testimony is further demonstrated through the following exchange, which occurred during Archibald's cross-examination of her: Q: Questions for - - You said you never seen any of our license or anything in the back end? A: Yes, they were up - - not in the back. Your personal licenses I remember, you know, were in the back, but I don't recall the inspection sheet and stuff being moved to the back of the shop " Further undercutting the reliability of Ms. Grutka's testimony is her statement that the rule regarding the display of a barbershop license requires that the license be visibly within view of the front door. Contrary to Ms. Grutka's testimony, rule 61G3-19.009(2) states that "[t]he shop license shall be displayed within view of the front entrance or in the waiting area." Apparently, Ms. Grutka did not even consider whether the license was displayed in the "waiting area," because she could not identify the location of the "waiting area." Moreover, Ms. Grutka testified that she wrote in the report that the shop license was not "anywhere to be found in the shop." However, a review of the inspection report does not support her testimony. In fact, a section within the inspection report titled: "Remarks," was left blank. Nothing was written in the inspection report indicating that the shop license was nowhere in the barbershop. In sum, there is insufficient clear and convincing evidence to conclude that the barbershop license, rules of sanitation, or most recent inspection report were not properly displayed. Finally, during the February 9, 2012, inspection, Ms. Grutka testified she did not observe a recent sticker on the portable fire extinguisher indicating that it had been inspected. According to Ms. Grutka, portable fire extinguishers must be inspected on an annual basis, "as per the Fire Marshall, and they would have a sticker on them indicating that they had been inspected." At hearing, Archibald did not admit to the allegations of the Administrative Complaint. Rather, Archibald persuasively explained that if personal and business licenses and the rules of sanitation and most recent inspection report were not displayed during the February 9, 2012, inspection, it was because the property was in foreclosure, items had been removed from the walls, items were placed in boxes, and he was planning on moving the barbershop to another location. In fact, the barbershop vacated the premises sometime in 2013, and relocated to another shopping plaza. At the conclusion of the February 9, 2012, inspection, Ms. Grutka prepared and signed an inspection report indicating the violations noted in the report, and she informed Archibald of the alleged violations. Archibald acknowledged his receipt of the report. No evidence was presented indicating that a follow-up inspection of the barbershop was ever scheduled or occurred. No citation has ever been issued for the February 9, 2012, inspection. No evidence was presented establishing a prior history of persistent or flagrant violations of the same nature as those alleged in the Administrative Complaint. The evidence at hearing established that even if personal and business licenses, the rules of sanitation, and the most recent inspection report were not properly displayed on the date of the February 9, 2012, inspection, it was an isolated incident.2/ Importantly, the facts adduced at hearing do not clearly and convincingly establish that Archibald personally engaged in any misconduct resulting in the five charges which are the subject of the Administrative Complaint. The evidence failed to establish, clearly and convincingly, that Archibald personally committed, or is personally culpable for, a disciplinary offense which is the subject of the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent not guilty on all counts of the Administrative Complaint. DONE AND ENTERED this 26th day of February, 2014, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 2014.
The Issue Whether Respondent was practicing barbering with an expired license on or about January 13, 1989.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of barbering. Respondent is presently licensed to practice barbering in the State of Florida, having been issued license number BB 0027873 on January 13, 1988. Said license expired on July 31, 1988 and was inactive from that date until January 24, 1989 when it was renewed. It is currently active. Sara Kemmeck, an inspector with the Petitioner, inspected the premises of the barbershop, Hair By Us, located at 500 Barton Boulevard, Rockledge, Florida, on January 13, 1989. She observed the Respondent engaged in the practice of barbering. Upon inspection, Respondent's barber's license had expired on July 31, 1988. Jean I. Branch, owner of the barbershop, testified that she rented Respondent a chair in her shop. She observed Respondent engaged in barbering on a regular basis from December 23, 1988 until the date of the inspection. She saw Respondent's license posted over his chair but had not inspected it. The unrebutted evidence demonstrated that Respondent was engaged in the practice of barbering without a valid active license for a minimum of three weeks, at the end of 1988 and early 1989.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violating Sections 476.194(1)(a) and 476.204(1)(a) and (h), Florida Statutes and that an administrative fine of $300 be assessed. DONE AND ENTERED this 12th day of December, 1989, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 12th day of December, 1989. COPIES FURNISHED: Cynthia Gelmine, Esquire Staff Attorney Charles F. Tunicliff, Esquire Chief Attorney Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jonathan Young 991 Candlewood Lane Cocoa, Florida 32922 Myrtle Aase, Executive Director Barbers' Board Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0769 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
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 is whether Respondent properly determined that Petitioner did not pass the February 2003 Restricted Barber Practical Examination.
Findings Of Fact On or about February 17, 2003, Petitioner completed the Restricted Barber Practical Examination. He received a score of 69 on the examination. A total score of 75 was required to pass the examination. A maximum of 45 points was available on the haircut portion of the test. Petitioner received 28.5 points for that portion. Two examiners, who are licensed barbers, observed Petitioner performing the haircut on a live model. They are not supposed to begin grading and evaluating the haircut until it is complete. Therefore, it was not necessary for the graders to watch every move that Petitioner made during the haircut in order to properly assess his performance. Petitioner specifically challenged the following test sections related to the haircut: (a) the top is even and without holes, C-1; (b) the haircut is proportional, C-4; (c) the sides and back are without holes or steps, C-5; (d) the sideburns are equal in length, C-7; (e) the outlines are even, C-8; and (f) the neckline is properly tapered, C-11. Regarding section C-1, Examiner 106 found that the top of Petitioner's haircut was uneven. Examiner 501 did not find fault with the top of the haircut. As to section C-4, Examiner 106 found that the haircut was proportional. Examiner 501 determined that the haircut was not proportional because the sides were unequal; the left side was shorter than the right side. Examiner 106 did not give Petitioner full credit for C- 5 because the examiner saw holes/steps in the back and the right side of the haircut. Examiner 501 did not observe these problems and give Petitioner full credit for C-5. Examiner 106 did not give Petitioner credit for C-7 because the sideburns were unequal in length, i.e. the right sideburn was shorter than the left sideburn. Examiner 501 did not observe a problem with the sideburns. As to C-8, Examiner 106 determined that the outlines of the haircut were uneven on the left and right sides. Examiner 501 found that the outlines of the haircut were even. Regarding C-11, Examiner 106 found that the neckline was properly tapered. Examiner 501 determined that the neckline was improperly tapered, i.e. uneven. Both examiners have served in that capacity for several years. They have attended annual training sessions in order to review the exam criteria and to facilitate the standardization of the testing process. They are well qualified to act as examiners. The examiners evaluated Petitioner's performance independently. They marked their grade sheets according to what they actually observed about the completed haircut. The scores of the two graders were averaged together to produce a final score. The greater weight of the evidence indicates that the examiners accurately recorded their individual observations regarding Petitioner's performance on the haircut. If one of the examiners did not observe a particular part of the haircut, Petitioner was given credit for that section. The examiners do not have to reach the same conclusion about each section of the test in order for the test results to be valid and reliable. Petitioner did not offer any persuasive evidence to dispute the manner or method by which Respondent accrues and calculates examination points. Petitioner would have failed the test based on either grader's independent scores. Therefore, Petitioner would not have passed the examination even if Respondent had not used one of the grade sheets in calculating Petitioner's final score.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order confirming Petitioner's examination score and dismissing his challenge. DONE AND ENTERED this 16th day of April, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 2004. COPIES FURNISHED: James F. Smith, III 5603 Silverdale Avenue Jacksonville, Florida 32209 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Nancy Campiglia, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Gus Ashoo, Bureau Chief Bureau of Education and Testing Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0791 Julie Malone, Executive Director Board of Barber Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
