Findings Of Fact Albert Ackerstein is a currently licensed barber holding license number BB 0009065, and was so licensed at all times relevant to this proceeding. Albert's Barber Shop is a currently licensed barber shop holding license number BS 0001976, and was so licensed at all times relevant. Mario Burchianti was hired by Albert Ackerstein as a barber in 1977 when he held a current valid barber license and continued to work as a barber in Albert's Barber Shop until November, 1980, when he was dismissed for not having a current valid barber license. Mario Burchianti's barber license expired in 1978 due to his failure to renew. In order to obtain a new barber's license, he took the barber exam in September, 1980 and passed said barber exam in December, 1980. A license check performed by the Department of Professional Regulation in July, 1980 revealed one violation: Mr. Burchianti was unlicensed. A follow up license check performed by the Department in September, 1980, revealed the same violation. Mr. Ackerstein, who was unaware of the violation, became aware of the problem through the Department in October or November, 1980 and thereupon dismissed Mr. Burchianti. Petitioner's follow up investigation conducted in August, 1981 revealed no violation of any kind.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a final order fining each Respondent one hundred dollars. DONE and ENTERED this 28th day of April, 1982 at Tallahassee, Florida. R. T. CARPENTER, 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 April, 1982. COPIES FURNISHED: Drucilla E. Bell, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Adam Kurlander, Esquire Zedeck and Kurlander Post Office Box 600429 North Miami Beach, Florida 33162 Samuel R. Shorstein Secretary Old Courthouse Square Building 130 North Monroe Street Tallahassee, Florida 32301 Myrtle Aase Executive Director Board of Barbers Old Courthouse Square Building 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Respondent's license as a barber in the State of Florida should be suspended, revoked, or otherwise disciplined for alleged violations of Chapter 476, Florida Statutes, as set forth in the Administrative Complaint dated November 13, 1987.
Findings Of Fact Petitioner is the state agency charged with licensing barbers, regulating licensure status, and enforcing the practice standards of licensed barbers within the powers granted by the Legislature in Chapter 476, Florida Statutes. At all times material to these proceedings, the Respondent Hernandez was a licensed barber in Florida, having been issued license number B 0013840. This license became inactive on June 19, 1987. The Respondent conducted business in a barbershop named Herbie's Barbershop which was located at 5810 Park Boulevard, Pinellas Park, Florida. The business was located in the same building as the Respondent's living quarters. His residence address was 5810 Park Boulevard, Pinellas Park, Florida. Originally, the building was designed to allow the Respondent to gain entry into his living quarters through the barbershop. After a fire, which occurred in the residential portion of the building in 1983 or 1984, the Respondent was required to place a fireproof wall between the shop and his living quarters. Once the fireproof wall was installed, the passage through the barbershop to the Respondent's residence was removed. A separate entrance in back of the building had to be used to gain access to the residence. The fireproof wall was installed and in use just prior to November 1985. D.M., a child, was employed by the Respondent in his barbershop for a period of five or six months during the year 1985. In addition to cleaning the barbershop and working the cash register, D.M. assisted in the cleaning and rehabilitation of the residence after the fire. During her employment, D.M. was fourteen years of age, just getting ready to turn fifteen. As her birthdate is November 16, 1971, a reasonable inference exists that her employment period was between June 1985 and November 16, 1985. During the term of her employment, while working in the Respondent's residence, the Respondent unsuccessfully attempted to grab D.M.'s left breast. She hit him, walked away, and informed another person who was in the barbershop of Respondent's misconduct. At no time during her deposition testimony did D.M. state that the Respondent cupped her right breast with his hand, squeezed it, and asked her if he could repeat this once or twice a week. On or about September 23, 1986, the Respondent was adjudicated guilty on two counts of sexual battery on a child less than twelve years of age in Pinellas County, Florida. The child, L.W., accused the Respondent of trying to put his finger down her vagina. The events allegedly occurred within the living quarters which were segregated and completely independent from the barbershop at the time of alleged incidents in December 1985. The child had arrived at Respondent's residence in order to obtain the address of a family that had previously resided there with the Respondent. The child's presence at Respondent's home was unrelated to Respondent's business activities. When the Respondent was convicted of sexual battery on the child L.W., he pleaded nolo contendere to charges involving D.M., D.Z., and R.Y. The charges involved the improper touching of the children on their genitals in Respondent's living quarters. The pleas were made with the express reservation of the right to appeal the denial of Respondent's Motion for Discharge under the speedy trial rule. Upon appeal, the trial court's denial of the discharge was reversed and the case was remanded for discharge of the Respondent on the charges involving D.M., D.Z., and R.Y. The Respondent entered the pleas solely for the purpose of obtaining his discharge. His appeal involved the mere calculation of 175 days of incarceration without a waiver of the Speedy Trial Rule.
Recommendation Based upon the foregoing, it is RECOMMENDED: That all of the charges set forth in the Amended Administrative Complaint filed November 16, 1987, be dismissed. DONE and ENTERED this 25th day of October, 1989, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 25th day of October, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-2759 Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #2. Accepted. See HO #3. Accepted. Accepted. See HO #3. Rejected. See HO #3. Rejected. Contrary to facts established at hearing through Respondent's testimony. Conjecture and improper conclusion. Accepted. See HO #4. Rejected. Outside the scope of the pleadings. Irrelevant. Rejected. Contrary to fact. See HO #5. Rejected. Outside the scope of the pleadings. Irrelevant. Rejected. Outside scope of the pleadings, vague. Conclusionary. Inadmissible hearsay. Accepted. Accepted. Accepted. Rejected. Outside scope of pleadings. Irrelevant. Rejected. Arrest irrelevant. Accepted. See HO #6 and #7. Accepted. See HO #7. Accepted. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #2 and #3. Arrest irrelevant. The rest of the second paragraph is accepted. See HO #7. The rest of Respondent's proposed findings are rejected as irrelevant to these proceedings except for the statements surrounding the fireproof wall (See HO #3) and the factual finding that the incidents involving the molestation of children, as alleged by the children all took place within the residence and not the barbershop. See HO #5 - #7. COPIES FURNISHED: Cynthia Gelmine, Esquire Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Calvin C. Campbell, Qualified Representative Glades Correctional Institute 500 Orange Avenue Circle, B123 Belle Glade, Florida 33430-5222 Herbert Hernandez Glades Correctional Institute 500 Orange Avenue Circle Belle Glade, Florida 33430-5222 Myrtle Aase, Executive Director Barbers Board Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times relevant hereto, Denver Owens was licensed as a barber in this state and has been so licensed for 26 years. Although Owens has worked in barbershops for most of the last 26 years, he never owned a shop until he opened this barbershop in Apopka some two years ago. At the time he opened the shop he obtained an occupational license which, with his current barber's license, he thought was all he needed to operate a one-man shop. On April 26, 1984, an inspector with the Department of Professional Regulation saw the barber's sign on the site not on her records and entered the shop to inspect. The only discrepancy which is material to the issues here is that no registration had been issued for the barbershop. When questioned by the inspector, Owens readily acknowledged that he had not applied for registration for a shop because he was unaware such registration was required. The following day Owens submitted an application to register his shop and obtained registration dated May 4, 1984. When told the Department proposed to assess a fine of $250 against him for operating without a shop license, Owens requested a hearing, the file was forwarded to the Division of Administrative Hearings, and this hearing ensued.
Findings Of Fact The Petitioner holds a license to practice barbering which expired on July 31, 1978. At the time of the expiration of Petitioner's license Section 476.154, Florida Statutes was in effect which permitted licensees who retired from the practice of barbering to have their licenses restored upon the payment of a required restoration fee. Pursuant to Rule 21C-7.01, Florida Administrative Code, "retirement was defined to require written notification to the Barber Board and acknowledgement by the Board of said retirement. Rule 21C-7.01, Florida Administrative Code was promulated in conjunction with Rule 21C-7.02, Florida Administrative Code. rule 21c-7.02, Florida Administrative Code, encountered difficulties when questions were raised by the staff of the Joint Administrative Procedures Committee concerning the statutory authority of the Board to enact the rule. Both rules were filed with the Secretary of State on October 23, 1978, but never published in response to a request by the Board. Subsequent to the filing of the rules, the Board attempted to resolve the conflict between the Committee and the board over the rule. As a result of the Board's inability to resolve the conflict, the rules were repealed in June, 1980 without having been published in the Florida Administrative Code. At the time of the expiration of his license, Petitioner was of the belief that if he retired he could have his license reinstated upon payment of a restoration fee. The Petitioner did not notify the Board of his retirement nor did he receive notification from the Board that subsequent changes in Chapter 476, Florida Statutes would be interpreted by the Board to require reexamination of barbers holding expired licenses. The Petitioner has been a practicing barber for approximately 20 years and desires to again actively pursue his profession.
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 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 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.
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.
Findings Of Fact Antonio Castellano has been a master barber for more than 30 years and has been continuously licensed as a barber in Florida since 1970 (Exhibit 1). The International Inn Barber Shop is located on the ground floor of the International Inn at 3705 Henderson Boulevard, Tampa, Florida, which is owned by William A. Watson. There are three barber chairs in this shop, and all fixtures in the barber shop are owned by Watson. The barber shop has been licensed by Watson since 1982. The last license issued to Watson for this shop was issued December 4, 1986 to expire September 30, 1988 (Exhibit 3). Since 1982, Watson has hired barbers to operate the shop on commission. However, this has not proved satisfactory, and Watson concluded to lease the shop and have the lessee responsible for the various licenses required. In carrying out this plan, a LEASE (Exhibit 5) was entered into between Watson and Respondent on July 31, 1987, which provided Castellano would be totally responsible for the operation of this shop and would obtain the necessary city and state licenses required. The lease commenced August 1, 1987. This barber shop was inspected on or about November 18, 1987, by Judy Denchfield, an inspector from the Department of Professional Regulation. When told by Respondent that he was the lessor, Denchfield, without looking at the lease and aware that the shop license issued to Watson was posted in the shop and had not expired, assumed Respondent was the owner of the shop for licensing purposes and cited Respondent for violating Sections 476.204(1)(b) and 476.194(1)(e)1, Florida Statutes. These proceedings duly followed.
