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 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
The Issue The issue in the proceeding is whether Respondent, Felix Robaina, violated provisions of the "Barbers' Act", Chapter 476, Florida Statutes, by operating a barbershop without a current active barbershop license. Background and Procedural Matters This proceeding commenced with an Administrative Complaint by Petitioner on September 18, 1985, and by Respondent, Robaina's timely request for a formal hearing. At the hearing Petitioner presented its evidence through the testimony of investigator, Jean Robinson, Felix Robaina and three exhibits. Respondent submitted one exhibit. All exhibits were admitted without objection. By stipulation of the parties, Vivian Lerma served as translator for Mr. Robaina. She was placed under oath for this purpose in accordance with Section 90.606, Florida Statutes. The parties have submitted Proposed Recommended Orders with proposed findings of fact and conclusions of law. These have been considered and, where appropriate, have been incorporated into this Recommended Order. Specific rulings on each proposed finding of fact are found in the Appendix attached hereto.
Findings Of Fact Felix Robaina was born in Cuba and came to the United States in May, 1980. He cannot read, write or speak English and understands English very little. He took the barber's exam in Spanish and has been continually licensed as a barber by the Florida Barber's Board since June, 1983. On July 15, 1983, he opened his shop, Chosen Barber Shop, in Belle Glade, Florida. The shop had previously been owned by Antonio Garcia but was closed when Mr. Garcia died in 1982 or early 1983. Mr. Robaina has continually worked alone in the shop since he opened it and regular hours are 9 am to 7 pm, Tuesdays through Saturdays. Jean Robinson, an investigator for the Department of Professional Regulation, noticed that the shop was reopened on a trip through the area and on June 1, 1985, she conducted an inspection. She found Mr. Robaina's barber license and occupational licenses were displayed on the wall. With a customer serving as interpreter, Jean Robinson asked Mr. Robaina for his shop license. de was confused and showed her the occupational license. Ms. Robinson explained the requirement of the law regarding a separate shop license and left an application for. Respondent, Robaina, promptly applied for a shop license, and has held license number BS0008668-since July 1985. Although part of the Barber exam course includes the legal requirement for licensing, Mr. Robaina said he did not know his shop required a separate license until Ms. Robinson visited and informed him. She confirmed that his confusion when she asked for the license was consistent with that ignorance. According to Ms. Robinson people commonly feel that the occupational license is all that is needed for a shop. Between July 1983 and July 1985, Felix Robaina operated his barbershop without a shop license.
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
Findings Of Fact Victor Bosciglio and Marioe Guerra are not and never have been parties Respondent before the Division of Administrative Hearings, since no election of a Section 120.57(1) hearing has ever been filed by either of them. Respondent Robert L. Perez, Jr. is and at all times material has been the holder of a Florida barber license. At all times material hereto Perez was one of the owners of a barbershop called, "Tiffany's Hair Designers," hereafter, "Tiffany's." Tiffany's was originally owned by Perez, Bosciglio, and Guerra. The three initially applied for and obtained a barbershop license for establishment of Tiffany's in a house located at 1205 Hillsborough Avenue in Tampa, Florida, in December, 1980. Although there is some suggestion in Ms. Denchfield's testimony that barbershop license applications are normally accompanied by a proposed floor plan, neither application nor the license itself for Tiffany's was offered in evidence and so no condition of non-expansion or evidence of any other condition for granting the initial barbershop license has been established. The original Tiffany's Hair Designers was located in the house at that address and had ten ""stations" for shampoos, cuts, etc. Sometime in October 1984, the trio converted a loft area above what previously had been a freestanding building housing a downstairs garage and located at the same street address as the house. After the conversion, the loft accommodated 4 additional barber "stations." The house and garage are technically separate buildings which share a common street address, driveway, and parking area. They are on the same electric, water, and telephone bills and occupy a single parcel of land. The going through the original house building which continues to shelter the original 10 barber stations. The two buildings are operated as a single business entity, Tiffany's Hair Designers. At all times material, Tiffany's original barbershop license remained in full force and effect. It is unclear whether a series of DPR inspectors regularly inspected the two portions of Tiffany's between October 1984 and October 1985. Petitioner wishes the inference to be made that there may have been a legitimate gap in inspection schedule so that no inspector was aware of the loft conversion until October 1985. Respondent desires the inference to be drawn that a series of inspections of both portions of Tiffany's during this time period turned out favorably and no inspector found any violation by way of the three owners' failure to notify the Barber's Board of the loft conversion and failure to apply for a new barbershop license during that year. There is no conclusive proof to establish either theory. Ms. Denchfield was not the local inspector during this period, and Mr. Perez was not regularly on the premises since he was working at another shop during most of this period but it seems entirely clear that inspectors for the state were allowed complete and total access to both buildings, the loft was certainly not hidden from view, and no sanitation violations were discovered in either building. A routine inspection in October, 1985 resulted in the administrative complaint herein. Neither this inspection nor a subsequent one in March 1986 revealed any sanitary violations in either building. The parties concur that the purpose of initial and subsequent inspections of licensed barbershops is to protect consumers by ensuring adequate sanitary conditions. Inspector Denchfield found in March 1986 that the loft has all the equipment necessary under statutes and rules she administers to qualify as a separate shop without reliance on the main building. Perez knew that he was required to apply for a barbershop license to open a new shop or to relocate a shop "down the street," i.e. from one address to another, but he was initially under the belief that because the converted loft was located on the same parcel of land with the main building that a second barbershop license was not mandated. The Administrative Complaint was served in January, 1986. Respondent Perez purchased the entire premises and business venture by buying out Bosciglio and Guerra in January 1986, and immediately applied for a new barbershop license which would cover both portions of Tiffany's. It is admitted that prior to this new application no one affirmatively notified the Barber's Board of a new building or obtained a separate license for the loft building.
Recommendation That the Barber's Board enter a final order dismissing the Administrative Complaint as against Robert L. Perez Jr., and if it has not already done so, dispose of the charges against Marioe Guerra, Jr. and Victor Bosciglio in accord with Section 120.57(2), Florida Statutes. DONE and ORDERED this 18th day of July, 1986, in Tallahassee Florida 32301. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1986.
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
The Issue Whether Respondent Vernon C. Linton's license number 20365 should be revoked, annulled, withdrawn or suspended for teaching or attempting to teach barbering at a registered barber school without a certificate of registration as a registered barber teacher or a registered barber intern teacher issued by the Florida Barber's Sanitary Commission in violation of Section 476.01(2), F.S. Whether Respondent Leonard Nicholson's license number 18832 should be revoked, annulled, withdrawn or suspended for violation of Section 476.01(4), for operating a school of barbering without providing the required supervision, direction and management as the registered barber teacher of the school.
Findings Of Fact Upon stipulation of the parties the hearing of these two dockets, docket number 76-1031, Florida State Board of Barber's Sanitary Commission, Complainant, versus Vernon C. Linton, and docket number 76-1079, Florida State Board of Barber's Sanitary Commission versus Leonard Nicholson were consolidated and heard simultaneously On two occasions, one on the 20th day of March, 1976 and the other on the 23rd day of March, 1976, Mr. C. L. Jones, Inspector for the Florida Barber's Sanitary Commission entered the American School of Barber Styling, located at the Tallahassee Mall, Tallahassee, Florida, and found that the school, owned and operated by Respondent Leonard Nicholson, was being used by the Respondent, Vernon C. Linton, for the instruction of a student in the art of barbering. Mr. Leonard Nicholson holds a certificate as a registered barber teacher, but was not present on either March 20th or March 23rd at the time of the inspection Respondent Vernon C. Linton did not at that time hold a certificate as a registered barber teacher or registered barber intern teacher. Mr. Linton was issued a license as a qualified registered barber intern teacher subsequent to the inspection.
The Issue Whether Respondent violated Section 476.01(5), Florida Statutes, by employing persons to work as barbers who were unlicensed as barbers. Whether Respondent's license should be revoked, annulled, withdrawn or suspended for such alleged violation.
Findings Of Fact A notice of violation was served on Respondent, owner of the University Plaza Barber and Style Salon, charging him with violating Section 476.01(6), Florida Statutes, which statute prohibits any person to hire or employ any person to practice barbering without a valid certificate of registration. The Administrative Complaint served on Respondent charges Respondent: "You have employed unlicensed barbers or apprentices to work as barbers in your shop". The Respondent had people working in his shop not registered as barbers but who were registered as cosmetologists and who were working as cosmetologists. Respondent operates a single shop registered as a barber shop and as a registered cosmetologist shop. He is a licensed barber and a licensed master cosmetologist. At the time of the notice of violation the sign in the front of the shop indicated only barber shop. At the time of hearing the sign indicated barber and beauty salon retain center. At the time of the violation notice Respondent did not have a partition in his shop that separated the barber shop from the area in which the cosmetologists worked. At the time of hearing a partition was in existence. Respondent presently has two barber chairs in one partitioned-off area and an area in which six licensed cosmetologists work. Each partitioned area has a separate door but the shop itself has one door leading into a waiting room.
