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.
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 The issues in this case are whether Respondent has violated Section 466.028(1)(bb), Florida Statutes, by practicing dentistry without an appropriate, active license to practice dentistry and, if so, what penalty should be imposed for such a violation.
Findings Of Fact Based on the exhibits received in evidence and on the testimony of the witness called at the hearing, I make the following findings of fact. At all times relevant hereto, Respondent, James Wilson, D.D.S., held a dental license, number DN0002819, issued by the State of Florida, Department of Professional Regulation, Board of Dentistry. Respondent was awarded a licensed certificate to practice dentistry in the state of Florida on August 10, 1959, by the Florida State Board of Dental Examiners. Respondent was licensed to practice dentistry in the state of Florida for the 1982/83 biennial period which ended on December 31, 1953. The license of Respondent expired on January 1, 1984. Respondent was advised by Department personnel, on April 23, 1984, that his license was delinquent. Respondent was also advised of the procedures required to renew said delinquent license. Respondent made payment to the Board of Dentistry in the amount of $200 on July 23, 1984, for renewal of his expired license, which payment applied toward the 1984/85 biennial period. The amount of $200 reflects the sum of the renewal charge of $150, plus $50 for his late renewal. Respondent, from the period January 1, 1984, to August 8, 1984, was actively practicing dentistry, during which time his license was expired.
Recommendation Based upon all of the foregoing, it is recommended that the Board of Dentistry enter a Final Order in this case to the following effect: Finding Respondent guilty of a violation of Section 466.028(1)(bb), Florida Statutes, as charged in the Administrative Complaint; Reprimanding Respondent for being guilty of such violation; Imposing an administrative fine in the amount of $250 on Respondent; and Allowing the Respondent 30 days from the date of entry of the final order in this case within which to pay the administrative fine. DONE AND ENTERED this 30th day of September, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 30th day of September, 1986. COPIES FURNISHED: Nancy M. Snurkowski, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Wilson, D.D.S. 3116 Moncrief Road Jacksonville, Florida 32209 James Wilson, D.D.S. 7145 Dostie Drive East Jacksonville, Florida 32209 Wings Slocum Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Pat Guilford, Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
The Issue The issue in this case is whether discipline should be imposed against Respondent for operating on an expired public lodging establishment license, an offense which is deemed by rule to constitute operation without a license.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Lakeside is an apartment building with 19 units located at 1048 Northeast 18 Avenue, Fort Lauderdale, Florida 33304- 2408. The Division issued Lakeside a license, numbered 16- 10553-H, to operate as a public lodging establishment. According to information in the Division's official database, as reproduced in Petitioner's Exhibit 1, 1/ the "current license expiration date [for Lakeside's license] is December 1, 2000." On July 20, 2000, Division employee Robert Shaw conducted a routine inspection of Lakeside and found the apartment complex to be open and operating. On a Lodging Inspection Report that he prepared on that date, 2/ Mr. Shaw noted two minor violations, neither of which is at issue here. On the same form, Mr. Shaw inscribed the date that Lakeside's license would expire, as shown below, in the blank spaces provided for that purpose in a line that read: REMINDER: Your license expires 12 /01 /00 Petitioner's Exhibit 2. Mr. Shaw testified, however, that at the time of this inspection, he did not know whether or not Lakeside was licensed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order dismissing the Administrative Complaint against Lakeside Apartments. DONE AND ENTERED this 24th day of January, 2001, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 24th day of January, 2001.
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 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
