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
Findings Of Fact Based upon the entire record, the following findings of fact are determined: This case involves an appeal by petitioner, Marline Lewis, challenging the score she received on the September 1993 barber licensure examination. The examination is administered by the Department of Business and Professional Regulation on behalf of respondent, the Barbers' Board (Board). According to the examination grade report issued on September 29, 1993, petitioner received a grade of 69 on the practical portion of the examination. The Board requires a grade of at least 74.5 in order to be licensed. The barber examination consists of two parts: written and practical. The practical portion of the examination is in issue here and has five categories: haircut, permanent wave, shampoo, sanitation and technique. As clarified at hearing, petitioner contends that the examiners who assessed her performance did not assign a proper score on the haircut category, and that one examiner improperly gave her no credit on one item of the sanitation category. She also contends that there were conversations between two examiners during the examination that disrupted her concentration, and that other individuals entered the examination room and momentarily congregated around her work area. Petitioner took the practical portion of the examination on the afternoon of September 20, 1993, at Lively Vocational/Technical Center in Tallahassee, Florida. The examination room contained four work areas, one in each corner of the room, with each area having four work stations consisting of a mirror, chair, cabinet, counter and sink. Each candidate was assigned to one of the work stations. When petitioner took the examination, there were fourteen candidates, including herself. Each candidate was required to be accompanied by a model on whom the procedures could be performed. Petitioner brought her husband as a model. Four examiners were assigned the task of grading the fourteen candidates. The room was divided in half for testing purposes, and two examiners graded seven candidates at two work areas while the other two examiners graded the remaining seven candidates. Each set of examiners circulated around their assigned work areas so that they could observe and monitor the skills of the candidates. Thus, it was not possible for an examiner to observe a candidate for every moment during the entire examination. In petitioner's case, her examiners were Roland Bordelon and Jeri Scott, two licensed barber stylists with nine and eleven years experience, respectively, in grading the examination. According to examiner Scott, she always gave the benefit of the doubt to the candidate. On the other hand, examiner Bordelon said he tended to grade more rigidly. Before the examination, all examiners were given standardization training, which was designed to insure that the examiners graded in a "standardized" or consistent fashion. This training included the grading of live models during a simulated or mock examination. In addition, they reviewed a grader's manual which provided criteria and instructions on how to grade the examination. The examiners were told to grade independently of one another, and they were not to confer on the grades to be given a candidate. After the grading was completed, the two grades were compiled, and an overall grade was given the candidate. The haircut category contains nine separate items to be rated by the examiner. A maximum of forty-five points can be attained in this category. The sanitation category contains ten items with a maximum of twenty-five points. The examiner was required to give a "yes" or "no" score on each category, with a "yes" meaning full credit and a "no" meaning zero credit. This rating was then recorded contemporaneously on a scoring sheet. In the event a "no" score was given, the examiner was required to fill in a comments section on the scoring sheet which identified the basis for the negative rating. Finally, if one examiner gave a "yes" and the other a "no," the candidate received one-half credit on the item. In the haircut portion of the test, examiner Bordelon gave a "no" on items B-8, B-9, B-10, B-12, and B-14 while examiner Scott gave a "no" on items B-11, B-12, and B-15. In all other respects, the two were consistent in their grading. Their combined scores resulted in petitioner receiving a total grade of 24 out of 45 points. Petitioner contends that she successfully completed a taper haircut on her model and did not deserve to receive a "no" on so many items. She also questions the consistency of the examiners' grading. The more credible and persuasive evidence, however, is that the items were graded in a fair manner and that a number of deficiencies were noted in her performance. They included sides not proportional, holes in the sides and back, side burns not shaven, holes in the top, blending problems, and uneven outlines. Although the two examiners disagreed on several items, such inconsistencies were not shown to be unreasonable or illogical. Moreover, the scores are averaged to adjust for any potential bias by the examiners. In other words, the averaging process reduces the subjectivity of the examiner's scoring and takes into account the fact that one examiner may grade too leniently or too severe. Therefore, the grade given in the haircut category should not be changed. In the sanitation category of the examination, petitioner contests the "no" grade she received from examiner Bordelon on item B-1. That item requires a candidate to wash her hands before beginning the haircut. Examiner Scott stated that she did not see petitioner wash her hands, but since she did not observe petitioner every moment before the haircut began, she gave her the benefit of the doubt. Examiner Bordelon stated he did not observe petitioner wash her hands and thus gave her a "no." Since petitioner stated that she washed her hands prior to the beginning of the haircut, and examiner Bordelon did not testify that he had petitioner in his eyesight for every moment prior to the time she began cutting hair, it is found that petitioner should be given a "yes" rating on item B-1 and an additional two points. After adjusting her score, her total score is 71, or still less than the required 74.5. Besides her own testimony, petitioner presented the testimony of her former instructor, Terry Collier, who is a licensed barber stylist. Collier suggested that the examiners did not have sufficient experience and training in cutting the hair of African-Americans. From this premise, he drew the conclusion that the examiners likewise were insufficiently trained to judge the merits of a haircut given to a black model. The evidence shows, however, that during the past decade both examiners have graded numerous candidates who used black models. This is confirmed by the fact that approximately one-half of all test candidates and models are black. In addition, both examiners operate barbershops serving African-American clients. Finally, both Collier and the Board's witnesses agreed that subjective judgment calls must be made by the examiners while grading a candidate. Therefore, petitioner's contention regarding the qualifications of the examiners is deemed to be without merit. Finally, petitioner claims she was distracted by conversations between the two examiners during the examination. Both examiners denied discussing the merits of the candidate's skills, but admitted they made have engaged in "small talk" at various times, particularly during the permanent wave part of the examination, a category not in issue here. Also, petitioner stated that four or five unidentified persons came into the examination room during the examination and stood behind her for a few moments. This was confirmed by her husband. Even if these events occurred, however, all candidates would have been subjected to the same testing conditions and thus no candidate would have received an unfair advantage during the examination process. Moreoever, petitioner concedes that during the examination she never complained that she was being distracted. Therefore, petitioner is not entitled to relief on this ground.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Barbers' Board enter a final order changing petitioner's grade on the September 1993 barber stylist examination from 69 to 71. DONE AND ENTERED this 22nd day of June, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER 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 22nd day of June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6792 Petitioner: 1. Partially accepted in finding of fact 2. 2. Partially accepted in finding of fact 3. 3. Rejected as being unnecessary. 4. Partially accepted in finding of fact 7. 5. Partially accepted in finding of fact 6. 6. Partially accepted in finding of fact 1. Partially accepted in findings of fact 1 and 7. Partially accepted in finding of fact 3. 9-11. Partially accepted in finding of fact 4. 12-13. Partially accepted in finding of fact 7. 14-16. Partially accepted in finding of fact 6. 17-24. Partially accepted in finding of fact 7. 25-26. Partially accepted in finding of fact 5. 27-29. Partially accepted in finding of fact 10. 30-31. Partially accepted in finding of fact 7. 32. Rejected as being unnecessary. 33. Partially accepted in finding of fact 7. 34. Partially accepted in finding of fact 9. Respondent: 1. Partially accepted in finding of fact 2. 2. Partially accepted in finding of fact 3. 3. Partially accepted in finding of fact 2. 4. Rejected as being unnecessary. 5. Partially accepted in finding of fact 1. 6. Partially accepted in finding of fact 2. 7. Partially accepted in finding of fact 7. 8. Partially accepted in finding of fact 2. 9. Partially accepted in finding of fact 3. 10. Partially accepted in finding of fact 4. 11. Rejected as being unnecessary. 12. Partially accepted in finding of fact 6. 13-15. Partially accepted in finding of fact 7. 16. Partially accepted in finding of fact 9. 17. Partially accepted in finding of fact 7. 18-22. Partially accepted in finding of fact 10. 23-24. Rejected as being unnecessary. 25-26. Partially accepted in finding of fact 9. 27. Partially accepted in finding of fact 5. 28. Partially accepted in finding of fact 9. 29. Rejected as being unnecessary. 30. Partially accepted in finding of fact 4. 31. Partially accepted in finding of fact 8. NOTE: Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Suzanne Lee, Executive Director Barbers' Board 1940 North Monroe Street Tallahassee, FL 32399-0769 Jack L. McRay, Esquire 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Leatrice E. Williams, Esquire 604 Hogan Street Jacksonville, Florida 32202 W. Frederick Whitson, Esquire 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether Petitioner, Gary Cook, should have received a passing score on the Barber Practical Examination taken by him in November 1996.
Findings Of Fact On or about November 25, 1996, Petitioner, Gary Cook, took the Barber Practical Examination (hereinafter referred to as the "Exam"). The Exam was scored by two examiners: Geri Scott and Don Gibson. The Bureau of Testing of Respondent, the Department of Business and Professional Regulation (hereinafter referred to as the "Department") subsequently notified Mr. Cook that he had earned a total score of 70 on the Exam. A score of 75 is considered a passing grade. Mr. Cook was notified by the Department that he earned a total score of 14.00 points on the sanitation portion of the Exam. The maximum score which may be earned for the sanitation portion of the Exam is 25.00. On or about December 30, 1996, Mr. Cook requested a formal administrative hearing to contest the determination of his score on the Exam. Mr. Cook challenged his score on the sanitation portion of the Exam. The sanitation portion of the Exam consists of ten criteria for which points may be earned: Criteria Maximum Score Used proper linen setup for the shampoo 2 Properly stored clean and dirty linen during the shampoo 3 Washed hands before beginning the haircut 2 Used the proper linen setup for the haircut 3 During the haircut tools were replaced in sanitizer after each use 3 Properly stored clan and dirty linen during the haircut 2 Washed hands before beginning the permanent wave 2 Used the proper linen/cottonwrap setup for the permanent wave 3 Kept tools sanitized during the permanent wave 3 Properly stored clean and dirty linen during the permanent wave 2 TOTAL POSSIBLE POINTS 25 The criteria of the sanitation portion of the Exam are designated as "procedures" which candidates are required to meet during the Exam. If both examiners determine that a candidate carried out a procedure, the candidate is awarded the total available points for the procedure. If both examiners determine that a candidate did not carry out the procedure, the candidate is awarded no points for the procedure. Finally, if one examiner determines that a candidate carried out the procedure and the other examiner disagrees, the candidate is awarded half of the available points for the procedure. On the sanitation portion of the Exam Mr. Cook received no points for procedures B-2, C-2, and C-3. Mr. Cook received half the points available for procedures B-4 and C-4. Mr. Cook specifically alleged that he should have been awarded the maximum points for procedures B-2, B-4, C-2, C-3, and C-4. For procedure B-2, the examiners were to determine whether "[t]he candidate used the proper linen setup for the haircut." This procedure was worth a total of 3 points. Both examiners determined that Mr. Cook had not used the proper linen setup. For purposes of procedure B-2, the haircut includes shaving around the outline of the hair. Therefore, proper linen setup for the shave is a part of the haircut. Mr. Cook did not dispute the fact that he had not used the proper linen setup for the shave portion of the haircut. Mr. Cook suggested that the haircut portion of the Exam did not include the shave. The evidence failed to support this assertion. Rule 61GK3-16.001(7)(a)8., Florida Administrative Code, provides that a "haircut" for purposes of barber examinations includes a determination that "[s]ideburns, outline and neckline are clean shaven." See also, Page 7 of the Candidate Information Booklet, Respondent's Exhibit 3. Mr. Cook failed to prove that he fulfilled the requirements of procedure B-2. For procedure B-4, the examiners were to determine whether "[t]he candidate properly stored clean and dirty linen during the haircut." [Emphasis added] This procedure was worth a total of 2 points. One examiner determined that Mr. Cook had not met this criterion. Mr. Cook, therefore, was awarded 1 point for this procedure. The examiner that found that Mr. Cook had not performed procedure B-4 properly determined that Mr. Cook had placed a box of rubber gloves on a bar behind the area in which he was working. The Department has cited no authority which defines the term "linens" as including rubber gloves. The common definition of the term "linens" does not suggest that rubber gloves constitute linens. The term "linen" is defined as follows: 1 a : cloth made of flax and noted for its strength, coolness, and luster b : thread or yarn spun from flax 2 : clothing or household articles made of linen cloth or similar fabric3 : paper made from linen fibers or with a linen finish Webster's Ninth New Collegiate Dictionary 1984. Mr. Cook should have received full credit for procedure B-4. Therefore, Mr. Cook should have received one additional point on procedure B-4. For procedure C-2, the examiners were to determine whether "[t]he candidate used the proper linen/cotton wrap setup for the permanent wave." This procedure was worth a total of 3 points. Both examiners determined that Mr. Cook had not met this criterion. Both examiners determined that Mr. Cook had failed to use a proper cotton-wrap setup. Mr. Cook failed to explain what steps he undertook in setting up for the permanent wave. Mr. Cook, therefore, failed to prove that he fulfilled the requirements of procedure C-2. For procedure C-3, the examiners were to determine whether "[t]he candidate kept tools sanitized during the permanent wave." This procedure was worth a total of 3 points. Both examiners determined that Mr. Cook had not met this criterion. Both examiners determined that Mr. Cook had placed rods used for the permanent on the back bar. Mr. Cook failed to prove that the did not leave rods on the back bar while performing the permanent wave. Mr. Cook, therefore, failed to prove that he fulfilled the requirements of procedure C-3. For procedure C-4, the examiners were to determine whether "[t]he candidate properly stored clean and dirty linen during the permanent wave." This procedure was worth a total of 2 points. One examiner determined that Mr. Cook had not met this criterion. The examiner who found that Mr. Cook had not met this criterion determined that Mr. Cook had left end-wraps on the back bar. Mr. Cook failed to prove that he did not leave end- wraps on the back bar. Mr. Cook, therefore, failed to prove that he fulfilled the requirement of procedure C-4. All of the criteria for the sanitation portion of the Exam are listed in a Candidate Information Booklet for the Barber Examination. See page 6 of Respondent's Exhibit 3. The booklet also explains the scoring procedure. Mr. Cook proved that he should have been awarded one additional point on the sanitation portion of the Exam. Therefore, Mr. Cook earned a total score of 71 on the Exam. Mr. Cook's score is below a passing score of 75.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Business and Professional Regulation, Barbers Board, finding that Gary Cook should have received a total score of 71 on the Barbers Practical Examination of November 1996. DONE AND ENTERED this 2nd day of September, 1997, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1997. COPIES FURNISHED: Gary Cook 202 Mulberry Circle Crawfordville, Florida 32327 R. Beth Atchison, Assistant General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Joe Baker Department of Business and Professional Regulation Board of Barbers 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for consideration in this matter is whether Respondent's license as a barber in Florida should be disciplined because of the matters set out in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Barber's Board, was the state agency responsible for the licensing of barbers and the regulation of the barbering profession in Florida. The Respondent, Ocie Phillips, Sr., and his sons, Ocie Phillips, Jr. and Kenneth Phillips, were all licensed as barbers in this state. On October 14, 1992, Leonard Baldwin, an inspector with the Department of Professional Regulation with responsibility for inspecting barber shops in Florida, entered Respondent's shop to conduct a routine, un-announced inspection. Only Kenneth Phillips was present at the time. During his inspection of Respondent's shop, Mr. Baldwin reportedly found several violations of the states sanitation standards applicable to Barber shops. These included: garbage was not kept in a clean closed container/receptacle. equipment was not maintained in a safe/ sanitary manner. cleaners/bacterial agents were not being regularly used. there was not one sink (lavatory) per two barber chairs. combs/brushes were not sanitized after each patron. wet sanitizers were not being utilized on the premises. all equipment was not kept free of hair, or cleansed, or sanitized. All cleansed/sanitized equipment was not being stored in a clean closed cabinet or container, and work areas/drawers for equipment storage only were not kept clean/sanitized. Mr. Baldwin also noted that the entire shop needed dusting and cleaning; the sinks were dirty; combs and brushes were being kept out on the back bar without sanitizing, as was other equipment; the display overhead needed cleaning; and the walls had clothes hanging on them. Mr. Phillips denies all of the allegations made by Mr. Baldwin. He and his sons all contend that the shop stays clean. He claims that the last inspector, Mr. Morganstern, who inspected on February 11, 1992, found no sanitary deficiencies at all. This shop and the Respondent were the subject of two prior disciplinary actions taken by the department for un-sanitary conditions discovered in inspections in January and May, 1991. As a result of the former, Mr. Phillips paid a fine of $500.00 and his license was suspended for 30 days, (stayed). As to the latter, he again paid a fine of $500.00. After paying these two fines, he claims, he determined he could not afford to pay any more and made a decided effort to have his shop conform to the state standards. Mr. Morganstern was the inspector in each of these two prior cases and he suggested that Mr. Phillips install new cabinets with space for storage in them. This was done at an expense of several thousand dollars. After the cabinets were complete, Mr. Baldwin conducted his inspection and charged Respondent with many of the same deficiencies previously identified by Mr. Morganstern. Mr. Baldwin claims that to the best of his recollection, the cabinets had not been installed by the time of his inspection, but he cannot be sure. Mr. Phillips and Kenneth both claim it was done before the inspection. Neither party is sure, however, and it is found that Petitioner has not established by clear and convincing evidence that the required cabinetry had not been done at the time of the inspection. Mr. Baldwin is also alleged to have orally observed on the October 14 visit that the shop looked "OK" but still was not right. Respondent presented a video recording of the interior of the shop which shows the new cabinets and sinks. It also shows storage space for towels and equipment. Kenneth Phillips, the only person in the shop when Mr. Baldwin came in to conduct his inspection before the shop was open on a Monday morning, claims he had not had a chance to clean the shop before Baldwin's arrival. He had been in church all the previous day, (Sunday), and had planned to do all that before the shop was opened for business. He had taken an AIDS prevention course previously and had learned there that it was important to sterilize instruments to prevent the spread of the disease. Nonetheless, Mr. Baldwin observed during his visit that the barbering utensils were scattered around and not in sterilizers, and his experience as a licensed barber, who has done this type of inspection for many years, tells him that the un-sanitary condition of the Respondent's shop was not a recent occurrence but had existed for some time. It is found, therefore, that sanitizers were not being used properly at the time of the inspection nor was garbage being properly stored as reflected on inspection form items 0210, 0215, 0216, 0224, 0225, and 0226. The remaining items, which are related to the construction of the storage cabinets, have not been proven to be violations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered in this case directing that the barber's license of Respondent, Ocie Phillips, Sr., be placed on probation for such a period and under such reasonable conditions as the board may deem appropriate. RECOMMENDED this 28 day of August, 1992, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 28 day of August, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-3025 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact Submitted by the parties to this case. FOR THE PETITIONER: - 3. Accepted and incorporated herein. Accepted and incorporated herein except that the word "the" before the work "sanitation" be changed to reflect "some." Accepted. Not a Finding of Fact but a recitation of testimony. Accepted. Not a Finding of Fact but a restatement of testimony. First sentence accepted. Second sentence rejected as not a Findings of Fact but a comment on the credibility of the evidence. Not a Finding of Fact but a comment on the credibility of the evidence. Accepted only as showing prior disciplinary record of the witnesses. & 13. Accepted and incorporater herein. 14. Not a Finding of Fact but a comment on the credibility of Respondent. COPIES FURNISHED: Christopher L. Hinson, CLA E. Renee Alsobrook, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ocie Phillips, Sr. 661 Northwest 15th Manor Pompano Beach, Florida 33060 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kaye Howerton Executive Director Barber's Board DPR 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent Nancy Moss' cosmetology instructor's license should be suspended or revoked, or whether other disciplinary action should be taken by Petitioner against Respondent for alleged violation of Section 477.025(1), Florida Statutes (1980 Supplement), and Section 477.028(1)(b), Florida Statutes (1979).
Findings Of Fact On May 28, 1981 Petitioner Department of Professional Regulation, Board of Cosmetology filed an Administrative Complaint seeking to suspend or revoke or take other disciplinary action against Respondent Nancy Moss as licensee and against her license as a cosmetology instructor. The complaint charged Respondent Moss with three (3) counts of misconduct for holding herself out as a cosmetologist and a cosmetology instructor and for operating a cosmetology salon without being duly licensed. Respondent holds an inactive cosmetology instructor's license #1C 0083468. The inactive receipt was dated July 31, 1980 and expired June 30, 1981 (Petitioner's Exhibit 1). Respondent was the owner and operator of the American Hairstyling Academy, a barber school duly licensed by the State Board of Independent Post- Secondary Vocational, Technical, Trade and Business Schools during the time pertinent to this hearing. The school ceased operation on July 1, 1981. The Director of the State Board of Independent Post-Secondary Vocational, Technical, Trade and Business Schools, a witness for Petitioner, made an official visit to the American Hairstyling Academy on January 21, 1981. He saw a woman sitting in one (1) of the six (6) or seven (7) chairs in the facility with rollers in her hair and saw Respondent Moss performing a service on the woman's hair. After the Director had identified himself, Respondent gave him the American Hairstyling Academy school records to examine and then proceeded to complete her work on the woman's hair. The Director noticed a room with clothes hanging on racks and trinkets in a counter with a sign, "Boutique," near the door. The room had been previously designated as a classroom for the barber school. Before the Director left, one (1) other person entered the premises. (Transcript, pages 12 through 34.) The Supervisor I, Office of Investigative Services, Jacksonville, Region II, made an appointment for a shampoo and set with Respondent Moss on February 4, 1981 at the American Hairstyling Academy. She appeared at the designated time, and Moss performed the shampoo and set. The Supervisor saw a room in which clothes were hanging and saw an area beyond that room which was separated with a cloth curtain. Before the Supervisor left, one (1) other person entered the premises. The Supervisor paid for the hair service and left the school. (Transcript, pages 34 through 41.) An investigator for Petitioner saw two (2) women at the academy, one having her hair serviced and one (1) waiting for Moss. The investigator was told by Respondent that teaching was done at the school and that there were two students enrolled, but no student records were produced for her to examine. She saw no blackboards or what she recognized as a classroom. (Transcript, pages 41 through 51.) A witness for Respondent had his hair washed, conditioned and cut many times in Respondent's barber school by students. He has had the same service done by the Jacksonville Barber College. (Transcript, pages 62 through 67.) A former student stated that she attended the American Hairstyling Academy for two (2) months, and Respondent Moss supervised the work done by the students. She attended classes with five (5) other students in a classroom at the American Hairstyling Academy and checked out books from the library, but she did not complete the course. (Transcript, pages 67 through 71.) Respondent called another witness who had had students at the barber school work on her hair on approximately ten (10) different occasions, but Respondent Moss did not work on her hair. (Transcript, pages 71 through 74.) The Hearing Officer finds that the licensed barber school owned and operated by Respondent Moss prior to July 1, 1981 had a few students, six (6) or seven (7) chairs, a small area that was used by students and Respondent for instruction and a minimal library. The testimony and evidence presented by both parties show that Respondent Moss was a practicing barber in a licensed barber school. Her acts could also be classified as practicing cosmetology although she said she practiced barbering.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Administrative Complaint filed against the Respondent Nancy Moss be dismissed. DONE and ORDERED this 4th day of November, 1981, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the clerk of the Division of Administrative Hearings this 4th day of November, 1981. COPIES FURNISHED: Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Stanley B. Gelman, Esquire 207 Washington Street Jacksonville, Florida 32202 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
