Findings Of Fact The Petitioner holds a license to practice barbering which expired on July 31, 1978. At the time of the expiration of Petitioner's license Section 476.154, Florida Statutes was in effect which permitted licensees who retired from the practice of barbering to have their licenses restored upon the payment of a required restoration fee. Pursuant to Rule 21C-7.01, Florida Administrative Code, "retirement was defined to require written notification to the Barber Board and acknowledgement by the Board of said retirement. Rule 21C-7.01, Florida Administrative Code was promulated in conjunction with Rule 21C-7.02, Florida Administrative Code. rule 21c-7.02, Florida Administrative Code, encountered difficulties when questions were raised by the staff of the Joint Administrative Procedures Committee concerning the statutory authority of the Board to enact the rule. Both rules were filed with the Secretary of State on October 23, 1978, but never published in response to a request by the Board. Subsequent to the filing of the rules, the Board attempted to resolve the conflict between the Committee and the board over the rule. As a result of the Board's inability to resolve the conflict, the rules were repealed in June, 1980 without having been published in the Florida Administrative Code. At the time of the expiration of his license, Petitioner was of the belief that if he retired he could have his license reinstated upon payment of a restoration fee. The Petitioner did not notify the Board of his retirement nor did he receive notification from the Board that subsequent changes in Chapter 476, Florida Statutes would be interpreted by the Board to require reexamination of barbers holding expired licenses. The Petitioner has been a practicing barber for approximately 20 years and desires to again actively pursue his profession.
Findings Of Fact Victor Bosciglio and Marioe Guerra are not and never have been parties Respondent before the Division of Administrative Hearings, since no election of a Section 120.57(1) hearing has ever been filed by either of them. Respondent Robert L. Perez, Jr. is and at all times material has been the holder of a Florida barber license. At all times material hereto Perez was one of the owners of a barbershop called, "Tiffany's Hair Designers," hereafter, "Tiffany's." Tiffany's was originally owned by Perez, Bosciglio, and Guerra. The three initially applied for and obtained a barbershop license for establishment of Tiffany's in a house located at 1205 Hillsborough Avenue in Tampa, Florida, in December, 1980. Although there is some suggestion in Ms. Denchfield's testimony that barbershop license applications are normally accompanied by a proposed floor plan, neither application nor the license itself for Tiffany's was offered in evidence and so no condition of non-expansion or evidence of any other condition for granting the initial barbershop license has been established. The original Tiffany's Hair Designers was located in the house at that address and had ten ""stations" for shampoos, cuts, etc. Sometime in October 1984, the trio converted a loft area above what previously had been a freestanding building housing a downstairs garage and located at the same street address as the house. After the conversion, the loft accommodated 4 additional barber "stations." The house and garage are technically separate buildings which share a common street address, driveway, and parking area. They are on the same electric, water, and telephone bills and occupy a single parcel of land. The going through the original house building which continues to shelter the original 10 barber stations. The two buildings are operated as a single business entity, Tiffany's Hair Designers. At all times material, Tiffany's original barbershop license remained in full force and effect. It is unclear whether a series of DPR inspectors regularly inspected the two portions of Tiffany's between October 1984 and October 1985. Petitioner wishes the inference to be made that there may have been a legitimate gap in inspection schedule so that no inspector was aware of the loft conversion until October 1985. Respondent desires the inference to be drawn that a series of inspections of both portions of Tiffany's during this time period turned out favorably and no inspector found any violation by way of the three owners' failure to notify the Barber's Board of the loft conversion and failure to apply for a new barbershop license during that year. There is no conclusive proof to establish either theory. Ms. Denchfield was not the local inspector during this period, and Mr. Perez was not regularly on the premises since he was working at another shop during most of this period but it seems entirely clear that inspectors for the state were allowed complete and total access to both buildings, the loft was certainly not hidden from view, and no sanitation violations were discovered in either building. A routine inspection in October, 1985 resulted in the administrative complaint herein. Neither this inspection nor a subsequent one in March 1986 revealed any sanitary violations in either building. The parties concur that the purpose of initial and subsequent inspections of licensed barbershops is to protect consumers by ensuring adequate sanitary conditions. Inspector Denchfield found in March 1986 that the loft has all the equipment necessary under statutes and rules she administers to qualify as a separate shop without reliance on the main building. Perez knew that he was required to apply for a barbershop license to open a new shop or to relocate a shop "down the street," i.e. from one address to another, but he was initially under the belief that because the converted loft was located on the same parcel of land with the main building that a second barbershop license was not mandated. The Administrative Complaint was served in January, 1986. Respondent Perez purchased the entire premises and business venture by buying out Bosciglio and Guerra in January 1986, and immediately applied for a new barbershop license which would cover both portions of Tiffany's. It is admitted that prior to this new application no one affirmatively notified the Barber's Board of a new building or obtained a separate license for the loft building.
Recommendation That the Barber's Board enter a final order dismissing the Administrative Complaint as against Robert L. Perez Jr., and if it has not already done so, dispose of the charges against Marioe Guerra, Jr. and Victor Bosciglio in accord with Section 120.57(2), Florida Statutes. DONE and ORDERED this 18th day of July, 1986, in Tallahassee Florida 32301. ELLA JANE P. DAVIS 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 18th day of July, 1986.
The Issue The issue in this case is whether the Petitioner should be awarded additional points for the practical portion of the September 14, 1998, Barber Examination.
Findings Of Fact On September 14, 1998, Tana Shiver took the practical portion of the examination for licensure as a barber. A passing score for the practical portion of the examination is a 75. Ms. Shiver scored a 69. A passing score on the written portion of the examination is a 75. Ms. Shiver scored a 90. Essentially, the practical portion of the barber examination consists of a haircutting session. Approximately 10 candidates for licensure give haircuts under the observation of two examiners. The practical examination is scored on a scale of 100 points. Each grader completes a score sheet and the scores are averaged to provide a candidate’s final grade. Elements of the practical examination include haircut (45 points), technique (10 points), shampoo (10 points), sanitation (25 points), and chemical services (10 points). Ms. Shiver received the maximum number of points for technique, shampoo, and chemical services. Ms. Shiver received an average score of 15.50 points out of a possible total of 45 on the haircut. Ms. Shiver received a score of 23.50 points out of a possible total of 25 on sanitation. Ms. Shiver noted that there is substantial discrepancy between the examiners on numerous test items. There is no evidence that such scoring discrepancy is indicative of error by the examiners. Substantial scoring discrepancies can result from a "borderline" haircut. In this circumstance, individual opinions of examiners can differ as to the level of performance, which, though of marginal quality, is still acceptable. At the hearing, the examiners testified as to the training provided to examiners prior to testing sessions. With ten candidates simultaneously performing haircuts and only two examiners in the room, it is not possible for both examiners to see each candidate perform each procedure. Examiner no. 307 opined that if he did not observe a procedure being correctly performed, he assumed that it was not, and would award no credit. Examiner no. 209 testified that examiners are instructed to give candidates credit for items not observed even through they might have been performed incorrectly. Examiner no. 209’s testimony as to this issue is credited. Score sheet items B-1 through B-4 relate to the sanitation portion of the examination. Item B-1 states "[t]he candidate washed hands before beginning the haircut." Both examiners gave credit for this item. Item B-2 states "[t]he candidate used the proper linen setup for the haircut." Examiner no. 209 gave credit for this item. Examiner no. 307 gave no credit for this item, noting that the candidate "did not open collar." At the hearing, Examiner no. 307 testified that he did not give Ms. Shiver credit on item B-2 because he did not see her open the model’s collar. According to the training provided to the examiners, Ms. Shiver should have received credit from both examiners on item B-2. Item B-3 states "[d]uring the haircut, the candidate replaced tools in the sanitizer after each use." Both examiners gave credit for this item. Item B-4 states "[t]he candidate properly stored clean and dirty linen during the haircut." Both examiners gave credit for this item. Score sheet items B-5 through B-7 relate to the technique portion of the exam. Item B-5 states "[t]he candidate held and used all tools in a safe manner during the haircut." Both examiners gave credit for this item. Item B-6 states "[t]he model’s skin was not cut or pinched by clippers or other tools during the haircut." Both examiners gave credit for this item. Item B-7 states "[t]he candidate used the freehand technique when doing the haircut." Both examiners gave credit for this item. Items B-8 through B-16 are related to the haircut portion of the examination. Item B-8 states "[t]op is even and without holes, gaps, or steps." Neither of the examiners gave credit for this item. Examiner no. 209 noted "holes" and Examiner 307 noted "not even." Item B-9 states "[t]op (horseshoe) blends with the sides and back." Examiner no. 209 gave credit for this item. Examiner no. 307 gave no credit for this item, noting that the hair "did not blend." There is no evidence that either examiner erred in scoring this item. Item B-10 states "[f]ront outline is even." Neither of the examiners gave credit for this item. Examiner no. 209 noted "uneven" and Examiner 307 noted "not even." Item B-11 states "[h]aircut is proportional and sides are equal in length." Examiner no. 209 gave credit for this item. Examiner no. 307 gave no credit for this item, noting that the hair was "not proportional (and) not equal." There is no evidence that either examiner erred in scoring this item. Item B-12 states "[s]ides and back are without holes, gaps, or steps." Neither one of the examiners gave credit for this item. Examiner no. 209 noted "holes" and Examiner 307 noted "steps." Item B-13 states "[s]ides blend with back." Examiner no. 209 gave credit for this item. Examiner no. 307 gave no credit for this item, noting "sides too long." There is no evidence that either examiner erred in scoring this item. Item B-14 states "[s]ideburns and outlines are even." Examiner no. 209 gave no credit for this item, noting "around R. ear." Examiner no. 307 gave credit for this item. There is no evidence that either examiner erred in scoring this item. Item B-15 states "[s]ideburns, outline and neckline are clean shaven." Examiner no. 209 gave credit for this item. Examiner no. 307 gave no credit for this item, noting "not cleanly shaven." There is no evidence that either examiner erred in scoring this item. Item B-16 states "[n]eckline is properly tapered." Examiner no. 209 gave credit for this item. Examiner no. 307 gave no credit for this item, noting "not tapered." There is no evidence that either examiner erred in scoring this item. At the hearing, Ms. Shiver offered the testimony of the man whose hair she cut during the practical portion of the examination, and whose hair she has cut for approximately three years. He testified that neither examiner spent much time looking at the haircut after it was completed, and that only Examiner no. 307 actually touched his hair during the review of Ms. Shiver’s performance. He also testified that that his sideburns were uneven but that he was satisfied with the haircut.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation, Barber's Board, enter a final order: Allowing Tana Shiver to retake the practical portion of the barber examination at no cost, and Allowing Tana Shiver's passing score on the written portion to remain valid without reexamination. DONE AND ENTERED this 29th day of April, 1999, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 29th day of April, 1999. COPIES FURNISHED: Tana Shiver 2049 Old Gunn Highway Oddessa, Florida 33556 R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 William Woodyard, General Counsel Department of Business and 1940 North Monroe Street Tallahassee, Florida 32399-1007 Barber's Board Department of Business and 1940 North Monroe Street Tallahassee, Florida 32399-1007 All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to issue the Final Order in this case.
Findings Of Fact Joanne Fletcher answered the telephone the day Eddie Dingler called The Summit Men's Hair Barbershop (Summit I) asking for work. He said he was Roffler- and Sebring-trained and that he held barber's licenses both in Alabama and in Florida. Ms. Fletcher relayed this message to respondent Donald C. Allgood. At the time, Mr. Allgood was half-owner of The Summit IV, and respondent Don Pettis owned the other half. Mr. Allgood had no ownership interest in Summit I, which was licensed to Mr. Pettis. Petitioner's Exhibit No. 3. Mr. Allgood acted as a sort of manager at Summit I the two or three days of the week he spent there, even though he was technically an independent contractor, working on commissions. Respondents had worked with each other for some seven years. The parties stipulated that respondent Donald C. Allgood "is a barber having been issued license number BB 0021833" and that respondent Don Pettis "is a barber having been issued license number BB 0011546." One Monday morning Eddie Dingler appeared in person at Summit I and talked to respondent Allgood about employment. Mr. Allgood called respondent Pettis, then took Dingler to respondent Pettis's house, where Ron Pettis was also present. Dingler told this group that he was licensed both in Florida and in Alabama and that he was conversant with the Roffler and Sebring tonsorial techniques. He was specifically asked whether he had a Florida license, and he answered affirmatively. He was not asked to produce the license certificate itself or the wallet-sized card that licensed barbers are issued. Barbers are under no requirement to carry this card on their persons. Respondent Pettis asked respondent Allgood to observe Dingler cutting hair and to hire him if he cut hair satisfactorily. Dingler was engaged as a barber on a commission basis. He proved to be a highly competent hair stylist, and "excellent barber," from a technical standpoint. Posted in is station at Summit I was what appeared to be a valid Florida barber's license with Dingler's name and photograph: he was wearing eye, glasses and a yellow shirt. Aside from the respondents, five witnesses saw this barber's license, which was counterfeit. Petitioner's Exhibit No. 1. Respondent Pettis remembered noticing a number of plaques on the wall at Dingler's station in Summit I, including something that looked like Dingler's license. Mr. Allgood was unable to say that he had specifically seen Dingler's barber's license at any time before Dingler gathered up his things to leave after being discharged from employment. After Dingler had worked at Summit I for about three months respondent Allgood asked him if he would like to work Mondays (when Summit I was closed at Summit IV. Dingler was Interested and reported for work at Summit IV the following Monday. Michael NcNeill let him in the barbershop ,and noticed what appeared to be an official Florida barber's license among Dingler's effects. After Mr. McNeill had left the Summit IV premises, Dingler allegedly sexually assaulted a 17-year-old patron. When respondent Allgood learned of this, he told victim's father that he would fire Dingler and do what he could to see that Dingler's barber's license was revoked. Dingler was discharged the day after the alleged assault. In discussing the matter with a law enforcement officer, respondent Allgood suggested that the Department of Professional Regulation (DPR) be notified so that proceedings to revoke Dingler's barber's license could be instituted. On November 24, 1980, Mr. Allgood voluntarily presented himself for an interview by Charles Deckert, an investigator for DPR. He assumed Mr. Deckert was developing a case so that action against Dingler could be taken. He learned in the interview for the first time that Dingler had never been licensed in Florida as a barber or a registered barber's assistant, according to DPR's records. In preparing the foregoing findings of fact, petitioner's proposed findings of fact and memorandum of law and respondents' proposed order have been considered, and the proposed statement and findings of fact have been adopted in substance.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner refrain from taking action against respondents on account of this technical violation. DONE AND ENTERED this 28th day of June, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II 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 June, 1982. COPIES FURNISHED: Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Patricia Grinsted, Esquire Post Office Drawer 915 Shalimar, Florida 32579 Myrtle Aase Executive Director Barbars Board 130 North Monroe Street Tallahassee, Florida 32301 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
