Findings Of Fact Respondent, Rosanne M. Gonzales (Rosanne), is the holder of License Number BS 0007763 issued by petitioner, Department of Professional Regulation, Florida Barbers' Board. She operates a barbershop under the trade name "Tamarac Barber Shop" at 7403 Northwest 57th Street, Tamarac, Florida. Respondent, Geronimo Navarro Gonzales (Geronimo), is the husband of Rosanne, and practices barbering at the Tamarac Barber Shop. Responding to a complaint filed by a former employee of Tamarac Barber Shop, an investigator visited that shop on November 27, 1984. The investigator found Geronimo cutting a customer's hair. When asked to produce his license, Geronimo handed the investigator a license reflecting the name "Juan Navarro" and License Number BB 0020347. The license also contained Geronimo and Rosanne's current home address in Plantation, Florida. When asked why the name on the license did not match his own name, Geronimo replied that he had been using the name "Juan Navarro" on the license to avoid detection by his former wife. The photograph on the license did not appear to be Geronimo, but Rosanne initially claimed Geronimo had been very ill and had lost a great deal of weight. Geronimo later explained that he had taken the barber examination in 1970 under the assumed name of Juan Navarro and had held the license for some fifteen years in that name. However, Geronimo acknowledged he had never had his name legally changed to Juan Navarro. An examination of agency records in Tallahassee revealed that a Juan Navarro was indeed issued barber license number BB 0020347 in June, 1970. According to the application, that individual was born in Cuba on September 9, 1936. When Geronimo produced a birth certificate and driver's license reflecting he was born on June 11, 1937 in Puerto Rico, it prompted further investigation by the Board, and resulted in the issuance of these complaints. According to Geronimo, he has been a barber for some thirty years. He originally barbered in New York State where he had a license, and then moved to Florida approximately fifteen or more years ago. At that time, he had just divorced his former wife, and was attempting to evade her detection. Because of this, he applied for licensure with the Barbers' Board using the name "Juan Navarro." He stated he took the barbers' practical and written examination (in Spanish) in April, 1970 in Jacksonville under this assumed name and received a passing grade. His visit to Jacksonville was corroborated by a friend who accompanied him to the test. He also claimed the Board mailed him a license in June, 1970, and that he has been paying the license renewal fees since that time. Although during the investigative stage the Gonzales denied sending the Board a letter advising that Juan Navarro now resided at the same address in Plantation as did the Gonzales, Rosanne acknowledged at final hearing that she had done so on behalf of her husband. The Board's official records show that only one Juan Navarro has ever been issued a license, and it is the one in the possession of Geronimo. When Geronimo reviewed the records at final hearing, he stated the person in the photograph attached to Juan Navarro's original application was not he and the signature on the application was not his own. Geronimo also stated that the copy of the New York license contained in his records was his old license from New York State, but that the man in the photograph attached thereto was a different person. Board investigators have never learned the identity or whereabouts of the man whose picture is on license number BB 0020347, or the Juan Navarro who prepared the original application for licensure. Rosanne testified her husband presented a license before he began barbering in her shop in May, 1983, and she relied upon this as a condition to hiring him. She indicated he is an indispensable asset to her business, and expressed a desire that he be allowed to continue in the barbering profession.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that both respondents be found guilty as charged in the administrative complaints, that Tamarac Barber Shop be given a public reprimand, and that Geronimo Navarro Gonzales be assessed a $500.00 civil penalty. DONE and ORDERED this 19th day of November, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1985. COPIES FURNISHED: Theodore R. Gay, Esq. Suite 4310, Southeast Financial Center 200 S. Biscayne Blvd. Miami, FL 33131-2355 Stephen R. Jacob, Esq. 800 N.W. Cypress Creek Rd., Suite 502C Ft. Lauderdale, FL 33309
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 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.
Findings Of Fact Based upon my observation of the Petitioner's witness and his demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant findings of fact: During times material herein, Respondent was a licensed barber and the holder of license number BB 0006222. (Petitioner's Exhibits 1 and 2) During November of 1982, Petitioner's inspector, Steven Granowitz, made a routine inspection of barbershops with delinquent licenses. During the course of these routine inspections, Inspector Granowitz inspected the Broadway Barbershop which was being operated by the Respondent, Mary E. Smith. During the course of his inspection, Inspector Granowitz identified himself and asked to inspect the Respondent's current-active barber's license. Initially, Respondent related to Inspector Granowitz that her license had either been stolen or misplaced and that she could not keep track of the license. During the course of Inspector Granowitz's inspection, there were approximately four customers present and Inspector Granowitz's observation led him to believe that the Respondent had been continuously operating the barbershop without a license. It is so found. An examination of the documentary evidence introduced reveals that during 1979 Florida barbershop license number BS 0005766 was issued to the Respondent to operate the Broadway Barbershop located at 1133 NW 3rd Avenue, Miami, Florida. (Petitioner's Exhibit 3) The Respondent did not timely renew Florida barbershop license number BS 0005766. (See Petitioner's Exhibit 4) Following the inspection during November 30, 1982, by Inspector Granowitz, Respondent applied for a new barbershop license for the Broadway Barbershop and on December 13, 1982, Florida barbershop license number BA 0005766 was issued to the Respondent for the Broadway Barbershop. (Testimony of Granowitz and Petitioner's Exhibits 5, 6 and 7).
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED that the Barbers' Board impose an administrative fine of $500.00 on Respondent. DONE AND ENTERED this 8th day of February 1984 in Tallahassee, Florida. JAMES E. BRADWELL 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 8th day of February 1984.
The Issue The issues to be resolved in this proceeding concern whether the Respondent owned, operated, maintained, established, or conducted a barbering business and barber shop for purposes of the requirements delineated in Section 476.194, Florida Statutes.
Findings Of Fact The Petitioner is an Agency of the State of Florida charged, as pertinent hereto, with regulating the licensure of barbers, the licensure of barber shop establishments and the practice of barbering, and the operation of barber shops, pursuant to Chapter 476, Florida Statutes (2006). After investigation the Respondent, Chand Harris, was accused in the Administrative Complaint, with practicing barbering or operating, establishing, opening, or conducting a barber shop operation or business without proper licensure. Although properly served with a copy of the Notice of Hearing at his last known address of record, Mr. Harris failed to appear at the hearing. After waiting an appropriate period of time, the hearing was convened and the taking of evidence was initiated. Upon conclusion of the Petitioner's case the Respondent, Mr. Harris, had not yet appeared at the hearing and never did appear at hearing. Consequently, no evidence was adduced on behalf of the Respondent. There has been no communication with the Respondent either before or since the hearing and thus there is no known explanation for his failure to appear at the hearing. Robert M. Johnson is employed by the Department as an inspector. He has been thus employed for approximately three and one-half years. He has a four-year degree from Baptist College of Florida and is currently enrolled in basic law enforcement courses at Lake City Community College. He also received formal training from the Department upon beginning his employment and attends on-going training sessions. Mr. Johnson performs approximately 1,300 inspections annually. On November 3, 9, and 17, 2005, Mr. Johnson inspected the premises of a business known as "Trend Setterz." Mr. Johnson's investigation established, through his testimony, that the Respondent, Chand Harris, owned and controlled the establishment named Trend Setterz. It is located at 289 Marion Oaks Lane, Ocala, Florida 34473. Trend Setterz was not licensed as a barber shop by the Florida Barbers Board, but was operating as a barber shop. Mr. Johnson observed a substantial number of people having hair cuts performed in the Trend Setterz shop. During those inspections, Mr. Johnson observed Mr. Giscard Rousseau performing barbering services inside the Trend Setterz establishment. He specifically observed Mr. Rousseau cutting hair for compensation. He also overheard Mr. Rousseau telling at least one customer not to pay him in the presence of Mr. Johnson so he could not be accused of barbering for compensation without a license. Mr. Rousseau was not licensed as a barber by the Florida Barber's Board at the time of the inspections and with regard to the time period represented by the charges in the Administrative Complaint against the shop owner and operator, Mr. Harris. Later, after the pertinent time period represented by the charges in the Administrative Complaint, Mr. Rousseau indeed achieved licensure as a barber by the Florida Barber's Board, on September 12, 2006. That license is current and active through July 31, 2008. Chand Harris, however, as well as Trend Setterz, is not and never has been licensed by the Barber Board respectively as a barber or as a barber shop.
Recommendation 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 a final order be entered by the Florida Department of Business and Profession Regulation, Board of Barbers, finding the Respondent guilty of the charges in the Administrative Complaint and assessing an administrative penalty in the amount of $1,000.00, due and payable to the Barber Board, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days of the date a final order herein is filed with the agency clerk. DONE AND ENTERED this 7th day of May, 2007, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 7th day of May, 2007. COPIES FURNISHED: Tiffany A. Harrington, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Chand Harris 16330 Southwest 17th Avenue Ocala, Florida 34473 Robyn Barineau, Executive Director Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues for determination are whether Respondent violated Section 476.194(1)(c), Florida Statutes (1995), 1/ by hiring an unlicensed person to practice barbering and, if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to barbers. Petitioner is also responsible for regulating the practice of barbering on behalf of the state. Respondent is licensed as a barber. Respondent holds license number BS 0008619. On or before October 15, 1994, Respondent hired Mr. Eric A. McClenton to practice barbering in Respondent's barber shop. Mr. McClenton is not licensed as a barber. 2/ Respondent hired Mr. McClenton to perform barbering services as an independent contractor. Mr. McClenton paid Respondent $75 monthly for the use of one of the barber chairs in Respondent's shop and paid for his own equipment and supplies. Mr. McClenton performed barbering services within the meaning of Section 476.034(2). Mr. McClenton cut hair for approximately four months. He cut approximately 100 heads of hair for a fee of $6 or $7 a head. Respondent knew or should have known that Mr. McClenton was not licensed as a barber. Respondent allowed Mr. McClenton to cut hair before seeing Mr. McClenton's license. When Respondent hired Mr. McClenton, Respondent asked to see Mr. McClenton's license. Mr. McClenton verbally represented that he was licensed but used various excuses over time to delay or avoid showing his license to Respondent. Mr. McClenton never displayed a license by the chair he operated in Respondent's shop. Petitioner issued separate citations to Respondent and Mr. McClenton. Petitioner issued a citation to Respondent imposing a fine of $250. Respondent did not pay the fine.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Section 476.194(1)(c) and imposing an administrative fine of $250. RECOMMENDED this 14th day of August, 1996, in Tallahassee, Florida. DANIEL MANRY, 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 14th day of August, 1996.
The Issue The issues in these cases concern several administrative complaints brought by the State of Florida, Department of Professional Regulation against Respondent. In DOAH Case No. 89-4454/DPR Case No. 0093417, Respondent is alleged to have employed a number of individuals to practice as barber instructors who have not been licensed by the State of Florida. In addition, allegations were placed that Respondent had not met sanitation standards required by law; that barbering students and instructor trainees were not under the constant supervision of a licensed instructor; that insufficient numbers of instructors were provided based upon the preceding months' average daily attendance; that a current inspection rating sheet, as well as a copy of the sanitation rules were not displayed; that a full-time instructor statement of employment was not available; that students/school contracts were not available and that a drinking fountain of bottled water needed to be refilled, as revealed in an inspection of January 7, 1988. In DOAH Case No. 89-4453/DPR Case No. 0097551 pertaining to an inspection of April 8, 1988, Respondent is said to have employed a Calvin Gates to practice as a barber instructor without Gates having been issued a license from the State of Florida. Finally, DOAH Case No. 89- 4452/DPR Case No. 0108179 alleges that by inspection of November 17, 1988, it was revealed that Joseph Kaufmann had been employed to teach barbering by Respondent and was operating on an expired barber instructor's license, which had expired approximately August 1, 1988.
Findings Of Fact Respondent is a licensed barber school in the State of Florida which operated at 5863 University Boulevard W. and 4416 Brentwood Avenue in Jacksonville, Florida, at times significant to these administrative complaints. On January 7, 1988, Gail Hand, an inspector for Petitioner, inspected the Brentwood Avenue facility. This inspection was a routine quarterly inspection. The Jacksonville, Florida, operations of the Roffler Hair Design College are 50% owned by Stewart Arnett Smith, Sr. and 50% owned by Stewart Arnett Smith, Jr., his son. On January 7, 1988, Hand was accompanied in her inspection by Cheryl Baker, whom she understood to be the manager based upon Baker's remarks. In fact, Baker was a secretary; and the actual manager of the facility was an individual named Mattz, who was out ill on this date. Mattz, at that time, was a licensed barber instructor. Neither of the owners were in attendance at the commencement of the inspection. Arnett Smith, Jr. had left to go to his other facility on University Boulevard. He was summoned back to the Brentwood Avenue barber school to participate in the inspection. He arrived approximately 20 to 40 minutes later. During the inspection, Velma Chambers was observed by Hand to be seated in a classroom while a student spoke to the class. At this time, Chambers was an instructor trainee. She had entered into a contract with Respondent on May 14, 1987 to be completed by November 14, 1987 pertaining to 600 hours of course instruction directed toward her becoming a barber instructor. Nonetheless, beyond the date of November 14, 1987, she was still at the school in a capacity, which was other than a licensed instructor in Florida, and under these facts is found to have been a barber instructor trainee on this date. In addition, a work schedule for instructors at the facility, be they licensed barber instructors or instructor trainees, showed Chambers to be filling the role of instructor at the school. Although this schedule had not been prepared by the owners, it was provided to Hand by the younger Smith upon his arrival at Brentwood Avenue on the inspection date. Baker had also pointed Chambers out as being one of the instructors in the facility. Calvin Gates, who was on the floor in the Brentwood Avenue facility, was pointed out by Baker as the instructor on the floor. The floor is where services are given to the public, as distinguished from the classroom, where theory is taught. Gates was not a licensed barber instructor in Florida on the date in question. He, too, had entered into a contract to receive course work toward his instructor's license. His contract with Respondent commenced on September 15, 1987 to be consummated on March 15, 1988. A Dave Dison was found in a room where mannequins are kept and the students are allowed to practice. Dison was pointed out by Baker as being certified for the new students, and Baker commented that Dison's license was at the University Boulevard facility. This is taken to mean that Dison was a licensed barber instructor, whose license was not available at the Brentwood Avenue facility. Having considered the remarks of Baker made to Hand and the testimony of the younger Smith at hearing, it is unclear whether his employment was that of licensed instructor or as instructor trainee waiting a license examination to become a barber instructor. In either case, he had not been licensed by the State of Florida as a barber instructor on the date of the inspection. His name does not appear in the schedule of instructors; but on the date of inspection, he was observed instructing new students using mannequins. According to the investigative report, which comments are credited, the younger Smith admitted to Hand that Dison did not have a Florida license and that Dison had commented to Smith that he, Dison, was having problems with his license in Mississippi. Subsequent to the time of inspection, Dison was dismissed as an employee of Respondent. Terry B. Collier and Patricia Frances Wilson were shown on the schedule to have instructor duties related to the floor duty for Collier and classroom duty for Wilson. Shirley Johnson was shown as having unspecified duties from 9:00 a.m. to 1:00 p.m. on Thursday. None of these persons were in attendance on the date of inspection, nor did they have barber instructor licenses at that time. It can be fairly inferred that they were considered by Respondent to be instructor trainees. It cannot be fairly inferred that any knowledge which they might impart on some date other than the inspection date would be in a setting in which the ratio of students to licensed instructors was not in keeping with legal requirement or that they were allowed to pursue their duties as trainee instructors without appropriate supervision from licensed instructors. The process of teaching people to become instructors contemplates the opportunity for those persons to also instruct while undergoing their training. To be successful in an allegation of impropriety by Respondent, proof has to be offered that these persons were, on some date, allowed to instruct without appropriate supervision and in a situation in which the ratio of licensed instructors to students was inadequate. That was not shown as it pertains to the three trainee instructors not in attendance at the time of inspection. The fact that the younger Smith told Hand that he thought the instructor trainees could teach students and be counted as part of the required number of instructors does not change this impression. In addition to Mattz, who was out ill, an individual whose name is Parks was scheduled to work at the Brentwood Avenue facility on the inspection date. Parks was a licensed instructor at the time. He had left the building for some undisclosed reason before the time of the inspection. A Mr. Lewis was also a licensed instructor, who was scheduled to work at the Brentwood Avenue facility on that date; but he was not due in the facility until 1:00 p.m. and had not arrived at the time of the inspection. Although the younger Smith has an instructor's license, he was not performing the function of instructor on the inspection date and was not listed on the schedule of instructors. Effectively, this meant that although students were undergoing instruction, that instruction was being provided by persons who were not licensed instructors and under the supervision of licensed instructors. On the date of the inspection, Baker calculated the average daily attendance to be 105 students. She had some difficulty in arriving at this figure. The younger Smith spoke to Hand on January 11, 1988 by telephone in which he suggested that that figure of 105 should be corrected to 56, based upon some mistake made by the secretary. On January 15, 1988, a letter bearing the signature of Cheryl Baker was written concerning the average daily attendance in which it was reported that she had stated the attendance as 90 and that the correct daily attendance should be 59. Whatever the true figure, students were in attendance and they were not receiving instruction from licensed barber instructors. The inspection also revealed that the current inspection rating sheet and sanitation rules had not been posted or displayed. The explanation by Smith was that the facility had been recently painted and that they had not been put back in their usual place. Hand asked for a copy of the missing inspection rating sheet and sanitation rules but does not recall whether she was shown a copy of these items. The reason why the items pertaining to the current inspection rating sheet and sanitation rules were not produced, based upon Hand's recollection, was that they could not be found. On April 8, 1988, Hand returned to the Brentwood Avenue facility for further inspection and observed Gates teaching. On that occasion, he was introduced by Mattz as the other instructor on duty, with Mattz being one of the two instructors. Seventeen students were present at that time. Two instructors would have been needed to offer instruction to that many students. The average daily attendance on that date was 72 students. On that date, Gates was not licensed by the State of Florida as a barber instructor. On a later date, Hand spoke to the younger Smith about the inspection. On this occasion, Smith changed his point of view from the situation in which he had commented at the first inspection of January 17, 1988. In that earlier inspection, he had stated that he thought that trainees could teach students and be counted as the required number of instructors. In the discussion regarding the April 8, 1988 inspection, he indicated that he did not count instructor trainees as instructors and that Hand must have misunderstood his comments during the previous inspection. On the occasion of the inspection of April 8, 1988, Hand was provided confirmation of Gates' employment, which stated that he was employed as an instructor at the school. The younger Smith tried to explain the circumstance with Gates on the basis that Gates had already taken his barber instructor test and that he had been notified that he had failed and that he had to retake the test and had appealed it with success. All of this information is hearsay and not subject to use for fact finding. Regardless of the true situation of Gates' attempt to gain his barber instructor license, he did not have a license on April 8, 1988 and should not have been allowed to instruct and be counted in the census of licensed instructors. On November 17, 1988, Hand conducted a routine inspection of the University Boulevard West facility. She found Joseph Kaufmann practicing with an expired instructor's license which was displayed. Kaufmann told Hand that he had renewed his license in August of 1988 but that it was returned with a request for an additional $50.00 late fee. Respondent's Exhibit No. 3 admitted into evidence is a form dated August 2, 1988 pertaining to this license and states that the renewal and fee had been postmarked after the expiration date of July 31, 1988. As a consequence, the basic fee of $50.00 was being returned with the expectation that the request for relicensure should be resubmitted with a total amount of $100.00 being paid, $50.00 for the basic license and $50.00 for a penalty and for reinstatement. Respondent's Exhibit No. 3A admitted into evidence is another form dated December 1, 1988 from Petitioner which states that the renewal and check in the amount of $100.00 was being returned because the request was being processed and the enclosed check was, not required. Respondent's Exhibit No. 4 admitted into evidence is a copy of postmarks of August 1, 1988 purportedly from Kaufmann, and November 29, 1988, again, purportedly from Kaufmann. Respondent's Exhibit No. 2 admitted into evidence is a letter from Mr. Tunnicliff, as chief attorney for the Department of Professional Regulation, addressed to Kaufmann, in which it is indicated that any action against Kaufmann was being dismissed associated with the complaint that Kaufmann was practicing with an expired instructor's license. It indicates that although probable cause was believed to exist, that Kaufmann had violated practice standards, in light of the circumstances, it was determined to dismiss the action. This is said to have been based upon the perception that while Kaufmann was practicing with an expired license because of miscommunication between Kaufmann and the Barbers Board, there had been a delay in the renewal of the license. Respondent was notified by telephone on November 22, 1988 concerning the Kaufmann situation. The younger Smith told Hand in that telephone conversation that Kaufmann had renewed his license and had shown Respondent's representative, the younger Smith, a copy of a money order received. Kaufmann had told Hand that on August 1, 1988, he had resubmitted his basic fee with an additional $50.00. Kaufmann showed Hand a copy of a money order receipt with no date. He did not have any correspondence available that he had received from Petitioner concerning his renewal. Hand checked with the office of the Barbers Board on November 21, 1988 and was told that the license had not been renewed and no money had been received. Kaufmann told Hand on the inspection date that because of some problems with mail, they received his money and sent it back because it was late and said that he owed another $50.00 which coincides with the remarks of Respondent's Exhibit No. 3. By contrast, in the conversation of November 21, 1988 between Hand and the Barbers Board, Hand was being told that the Barbers Board had received no money. The younger Smith, with the indication of a money order being sent by Kaufmann to renew his barber instructor license and a remark that he had sent his money in and that he had not received the license renewal back, assumed that things were acceptable. The younger Smith also took solace in the fact that there are problems at times with license renewals, which have to be rectified. Nonetheless, it is evident that Kaufmann was operating as a licensed instructor on November 17, 1988 without having received his license renewal and under the auspice of a license that was being displayed and clearly showed that it was no longer in effect.
Recommendation Based upon the consideration of the facts and the Conclusions of Law, it is RECOMMENDED that a Final Order be entered which fines Respondent in the amount of $1,250.00 and entering a letter of reprimand in the disciplinary file associated with DOAH Case No. 89-4452/DPR Case No. 0108179. DONE and ORDERED this 31st day of October, 1989, in Tallahassee, Florida. CHARLES C. ADAMS, 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 31st day of October, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 89-4452, 89-4453, 89-4454 The following disposition is made of the proposed facts of the parties: Petitioner's Facts Paragraphs 1 through 3 are subordinate to facts found. Paragraph 4 is subordinate to facts found, except for its reference to the inspection date as being April 13, 1988. The inspection date was April 8, 1988. Paragraph 5 is subordinate to facts found as far as it is stated in the unnumbered page 4. It appears that some of the Proposed Recommended Order is missing to include the balance of the fact finding at an unnumbered page 5. Respondent's Facts The facts pertaining to DOAH Case No. 89-4452 are subordinate to facts found. The facts pertaining to DOAH Case No. 89-4453 are rejected. The documented information related to the Calvin Gates contract, which is Respondent's Exhibit No. 6 admitted into evidence, shows the conclusion of his training on March 15, 1988, before the inspection of April 8, 1988. The relevant fact is that Gates was not a licensed instructor on April 8, 1988. The comments pertaining to DOAH Case No. 89-4454, which refer to a letter of September 1, 1988 from Robert C. Kent, Esquire, have been taken into account in the fact finding in the Recommended Order. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Stewart Arnett Smith, Jr. 5110 University Boulevard West Jacksonville, Florida 32216 Samuel L. Ferguson, Executive Director Department of Education State Board of Independent Postsecondary Vocational, Technical Trade and Business Schools 209 Collins Building Tallahassee, Florida 32399-0400 Kenneth E. Easley, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Myrtle Aase, Executive Director Department of Professional Regulation Barbers Board 1940 North Monroe Street Tallahassee, Florida 32399-0792 Robert C. Kent, Esquire 1532 Atlantic Boulevard Post Office Box 10174 Jacksonville, Florida 32207 Charles S. Ruberg, Esquire Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
