The Issue Whether the Respondent committed the offenses set forth in the administrative complaint file din this case and, if so, what disciplinary action should be taken.
Findings Of Fact At all times material hereto, Respondent, Jean Mene, was not a licensed barber in the State of Florida nor was the barbershop which he owned and operated licensed. On or around November 18, 1989, Respondent was observed in the practice of barbering. At that time, he admitted that he did not hold a valid license to barber and that the barbershop in which he worked was not validly licensed. An application for licensure was offered to him by an inspector for Petitioner, but Respondent refused the offer. An employee in Respondent's shop, who was engaged in barbering, also did not have a license to barber. Over the ensuing eight months, Respondent continued his unlicensed practice, operated his unlicensed shop and employed an unlicensed practitioner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered imposing on Respondent an administrative fine of $1,500. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of July 1989. JANE C. HAYMAN 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 27th day of July, 1989. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0729 Jean D. Mene 223 Northeast 82 Street Miami, Florida 33138 Myrtle Aase, Executive Director Barbers' Board Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0729 =================================================================
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.
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 Respondent's licenses, as a barber and for a barbershop in the State of Florida, should be suspended, revoked or otherwise disciplined for alleged violation of Chapter 476, Florida Statutes; violation of Section 476.204(1)(i), Florida Statutes, and Rule 21C-19.012, Florida Administrative Code, by failing to meet the minimum standards in the operation of a barbershop, as follows: Garbage not kept in closed container (Rule 21C-19.011(2)(b). Equipment not kept clean and sanitary (Rule 21C- 19.011(2)(e). Equipment not stored in clean, closed containers or cabinets (Rule 21C-19.011(11)(d).
Findings Of Fact The Respondent is a licensed barber and barbershop owner in the State of Florida, license numbers BB 19606 and BS8827. The Respondent is the owner of Ribault Barbershop, 6712 Van Gundy Road, Jacksonville, Florida 32208. (P-2; T- 8) On July 26, 1990, Gail Hand, a DPR inspector, inspected the Respondent's barbershop. At that time, she found the shelves, fixtures and counter tops at the barber stations were coated with black dust, dirt and hair, which, over time, had been scattered throughout the barbershop. In addition, the Respondent had two (2) combs, a pick and four (4) clipper attachments which were coated with a scum or a dark residue in a dirty liquid in a tray on the counter top. (P-3; T-8-9, 30) During the aforementioned inspection, Ms. Hand also found that the barbering equipment in the Respondent's barbershop, such as combs, brushes and picks, were not stored in a closed container. The Respondent had combs, clipper attachments, scissors, a brush and a pick on the counter top. Ms. Hand found no closed cabinet for storing tools. The Respondent indicated that he was unaware of this requirement. (P-3; T-9-10, 23 and 59) During this inspection, Ms. Hand noted the garbage was not kept in a closed container as required by Board rule. (P-3; T-10-11, 58). The fact that the Respondent's bathroom had an objectionable odor and that the Respondent failed to post the previous inspection sheet were not charged as violations. (P-3; T-10-12, 17-18, 20-21, 37) Ms. Linda Mantovani, another DPR inspector "informally" reinspected the Respondent's barbershop prior to Christmas of 1990. Ms. Mantovani checked the deficiencies Ms. Hand had noted in July of 1990. She found that the Respondent's barbershop still had no closed cabinet for storage of tools. Ms. Mantovani reviewed the inspection report with the Respondent and discussed his correction of the continuing violations. The windowsills and fans were cleaned, and the garbage was kept in a closed container. (T-38, 40-42, 46-47, 50-51)
Recommendation Regarding the last charge, the Respondent indicated that he had received conflicting guidance on this requirement from prior inspectors. It appeared that there may be some confusion about this requirement; however, after the initial inspection, the Respondent clearly was on notice. Because of the Respondent's interest and candor regarding the events and because some of the deficiencies were corrected, the fine proposed by the Department is reduced to $100 per violation. Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the Florida Board of Barbers enter a Final Order finding the Respondent guilty as charged in the Administrative Complaint and imposing a $300.00 administrative fine. DONE AND ENTERED this 11th day of April, 1991, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1991. COPIES FURNISHED: Myrtle Aase, Executive Director Barbers Board Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esq. General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Laura P. Gaffney, Esq. Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Michael Herrington 6712 Van Gundy Road Jacksonville, FL 32208
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.
