Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: The Respondent, Donald H. Kirkby, is and has been at all times material hereto, a licensed barber in the State of Florida, having been issued License No. BB0018162 on September 16, 1965. The Respondent is and has been at all times material hereto, licensed to operate a barber shop in the State of Florida, having been issued License No. BS0006701. The Respondent owns and operates a barber shop which operates under the trade name, Mr. K's Groom Room, located at 88 East Blue Heron Boulevard, Riviera Beach, Florida. On April 27, 1984, Jean Robinson, an inspector for DPR, visited Mr. K's Groom Room for the purpose of performing an inspection. During the inspection, Ms. Robinson noted several conditions which she believed to be sanitation violations. Because there had been an organizational change in the manner in which barber shops were inspected, and because barber shops went uninspected for a period of approximately three years, Ms. Robinson chose not to note the violations on a departmental inspection form but explained the Barber Board sanitation rules and requirements to the Respondent, left Respondent a copy of the sanitation rules and instructed Respondent to post the rules. On April 17, 1985, Ms. Robinson once again visited Mr. K's Groom Room for the purpose of performing an inspection. During the inspection, Ms. Robinson noticed several deficiencies and violations. At the conclusion of her inspection, Ms. Robinson completed an "inspection form" wherein she specified the deficiencies and violations which she noticed. Ms. Robinson indicated that on the form that implements were being used from one patron to another without hair being removed, improper implement sanitation procedures were used and current rules of sanitation were not properly posted for the public. Both Ms. Robinson and the Respondent signed the inspection form. On February 18, 1986, Ms. Robinson returned to Mr. K's Groom Room to conduct a reinspection. While there, Ms. Robinson noticed that proper implement sanitation procedures were not being used. In particular, Ms. Robinson observed Paul Poma, one of Respondent's barber employees, use hair cutting implements on a customer that he had used on a previous customer without cleaning or sanitizing them in any way. Although Mr. Poma had an ultraviolet ray sanitizing device at his station, it was not being used. When Ms. Robinson inspected the sterilizer by flicking the on/off switch, the machine did not come on, even though the electrical plug was properly placed in the wall socket. Ms. Robinson further observed the Respondent use hair cutting implements on a new customer that he had used on a previous customer without sanitizing or cleaning the implements. During the inspection, Ms. Robinson looked around for the licenses, but could not find them. When Ms. Robinson asked Respondent where the licenses were, he pointed to a table in the corner of the shop. Ms. Robinson went over to the table but still did not see the licenses. The Respondent then went over to the table moved some magazines and telephone books around and pointed to the licenses, which were beneath a glass covered tabletop. Ms. Robinson looked around for the sanitation rules and noticed that they were posted on a wall but were partially obstructed from public view by other papers and announcements which were posted adjacent to them. At the conclusion of her inspection, Ms. Robinson completed another inspection form listing the violations and deficiencies observed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Respondent's license be placed on probation for a period of six (6) months and that an administrative fine of $500 be assessed. DONE and ORDERED this 29th day of December, 1986 in Tallahassee, Florida. W. MATTHEW STEVENSON 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 29th day of December, 1986. APPENDIX TO RECOMMENDED ORDER 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. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. Adopted in Findings of Fact 1 and 2. 2. Adopted in substance in Findings of Fact 4, 5 and 7. 3. Adopted in substance in Findings of Fact 4. 4. Adopted in substance in Findings of Fact 4. 5. Adopted in substance in Findings of Fact 6. 6. Adopted in substance in Findings of Fact 6. Adopted in substance in Findings of Fact 7. Partially adopted in Findings of Fact 7, 8, 9, 10 and 11. Although Ms. Robinson observed a great deal of hair on the floor, that point was not alleged in the Administrative Complaint. Adopted in substances in Finding of Fact 7. Adopted in substance in Finding of Fact 7. Rejected as subordinate. Rejected as subordinate. Rejected as subordinate. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Adopted in substance in Finding of Fact 6. COPIES FURNISHED: Lisa M. Bassett, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Donald H. Kirkby 88 East Blue Heron Boulevard Riviera Beach, Florida 33404 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Myrtle Aase, Executive Director Barbers Board Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
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 Should the Petitioner be licensed in Florida as a barber as a result of the examination for licensure given in December of 1987?
Findings Of Fact The Petitioner took the examination for licensure as a barber in December of 1987. Although she achieved a passing score on the written portion of the examination, she did not obtain a passing score on the practical portion of the examination. The practical portion of the examination is divided into five parts. The Petitioner challenges the grade she received in the scoring of the haircut. The maximum number of points a licensure candidate can receive on a haircut is 45 points. A review of Respondent's Exhibit B shows that the Petitioner received 18 points for her performance on Sections 2-k, 2-o, and 2-p of the exam. She does not contest the examiners' ratings on Sections 2-j and 2- m. She is concerned only with the scores she received on Sections 2-l and 2-n. When the Petitioner took the examination, John E. Lewis was the model she used to demonstrate her ability to give a "styled" haircut. During the hearing, John E. Lewis explained the following characteristics of his head and scalp line: Mr. Lewis' ears are not symmetrically located. One ear is placed significantly higher on his head than his other ear, which gives them different heights in relation to his facial features. In addition, the hair on the left side of his head grows much thicker than the hair on the right side of his head. As a result of these characteristics, an optical illusion is created which makes hair of identical length on both sides of the head appear to be longer on the left side. During the barber examination, two examiners checked the style line of the haircut under Section 2-l. On the criteria rating sheets, they commented that the left side of the style line appeared longer. In rating the hair on each side as to evenness and balance (Section 2-n), the examiners each noted that the left side was either longer or fuller. Because of these evaluations, the Petitioner did not receive any points in categories 2-i or 2-n in the examination. Cathy Maynard Frank, a Florida licensed barber who was awarded a silver medal in the 1986 World Championship of Barbers and who has placed second nationally, testified as an expert witness on behalf of the Petitioner. Ms. Frank had an opportunity to observe and professionally review the haircut a few hours after the examination. In her opinion, the hair on both sides (under Section 2-n) was as close as a barber could get them. If the Petitioner had cut the left side shorter to avoid the optical illusion of unevenness, the thicker hair on the left side would have stuck straight out. Ms. Frank generally agreed with the examiners' evaluations in the other categories which contributed to her credibility as an expert witness. Ronald Max Young testified as an expert witness on behalf of the Respondent. Mr. Young is a barber who has been licensed in Florida since 1972. He is a lead examiner for the state and has participated in the examination process for the last five years. Mr. Young testified that the examination contains the standard criteria necessary to meet the minimum requirements for licensing. The examiners look for an even haircut, evenly balanced all the way around. If a model is not fitting, that is the candidate's problem, not the examiners' problem. Mr. Young did not have an opportunity to examine the haircut given by the Petitioner during the practical examination. He was unable to comment on the specifics which had been commented upon by Ms. Frank. However, he did vouch for the qualifications and abilities of the two examiners who independently rated the Petitioner's performance.
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.
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 Whether Respondent Vernon C. Linton's license number 20365 should be revoked, annulled, withdrawn or suspended for teaching or attempting to teach barbering at a registered barber school without a certificate of registration as a registered barber teacher or a registered barber intern teacher issued by the Florida Barber's Sanitary Commission in violation of Section 476.01(2), F.S. Whether Respondent Leonard Nicholson's license number 18832 should be revoked, annulled, withdrawn or suspended for violation of Section 476.01(4), for operating a school of barbering without providing the required supervision, direction and management as the registered barber teacher of the school.
Findings Of Fact Upon stipulation of the parties the hearing of these two dockets, docket number 76-1031, Florida State Board of Barber's Sanitary Commission, Complainant, versus Vernon C. Linton, and docket number 76-1079, Florida State Board of Barber's Sanitary Commission versus Leonard Nicholson were consolidated and heard simultaneously On two occasions, one on the 20th day of March, 1976 and the other on the 23rd day of March, 1976, Mr. C. L. Jones, Inspector for the Florida Barber's Sanitary Commission entered the American School of Barber Styling, located at the Tallahassee Mall, Tallahassee, Florida, and found that the school, owned and operated by Respondent Leonard Nicholson, was being used by the Respondent, Vernon C. Linton, for the instruction of a student in the art of barbering. Mr. Leonard Nicholson holds a certificate as a registered barber teacher, but was not present on either March 20th or March 23rd at the time of the inspection Respondent Vernon C. Linton did not at that time hold a certificate as a registered barber teacher or registered barber intern teacher. Mr. Linton was issued a license as a qualified registered barber intern teacher subsequent to the inspection.
Findings Of Fact Except to the extent they are consistent with these Findings of Fact, the Department's proposed findings of fact are rejected as either not supported by competent, substantial evidence, contrary to the greater weight of the evidence or irrelevant. Linares, a resident of Miami, Florida, has been a licensed barber, having been issued License Number BB 0018163 at least between the dates of July 8, 1983, and March 2, 1984. (The license expires July 31, 1984.) During this time, Linares owned and operated Mr. Larry Hair Studio, located in Miami, under barbershop License Number BS 001515 (which also was in effect on these dates and expires July 31, 1984.) Linares has been licensed in Florida and has practiced barbering in Florida for 18 years. He has no record of ever before having been disciplined. When the Department's investigator appeared at the Barbershop for a routine inspection on July 8, 1983, the hair of approximately three or four customers was on the floor of the Barbershop around the two barber chairs in the shop. Linares was sitting in one of the chairs in the customer waiting area. No customers were being barbered at the time. The Barbers' Board has announced a policy that cut hair should be removed or at least be swept aside after every second customer. But there was no competent substantial and persuasive evidence that Linares' failure to do so constituted either a failure to eliminate all fire hazards or a failure to provide for safe and unobstructed human passage in the premises. The Board's policy was communicated to Linares on July 8, 1983. On July 8, 1983, Linares also had no wet sterilizing agent or any other means of sterilization of equipment available for use and was not sterilizing the equipment he was using. Finally, a combination of dirt and old soap from use over an extended period of time had accumulated on the bathroom fixtures of the bathroom in the Barbershop. The Department inspector advised Linares that the conditions just described were violations of the rules governing licensed barbers and that he would return to reinspect the Barbershop between 30 and 90 days later. The Department inspector returned on August 12, 1983. On his return, there again was hair from approximately four customers on the floor of the shop around the two barber chairs. However, on this occasion, both chairs were in use and there were customers waiting for haircuts. On August 12, 1983, Linares still was not sterilizing his equipment and had no wet sterilizing agent or other means of sterilization available for use. Finally, the bathroom fixtures still had an accumulation of dirt and old soap on August 12, 1983.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Barbers' Board reprimand Respondent, Lazaro V. Linares, d/b/a Mr. Larry Hair Studio, and impose an administrative fine in the amount of one hundred dollars ($100.00). DONE AND ENTERED this 28th day of March 1984 in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 28th day of March 1984. COPIES FURNISHED: Theodore R. Gay, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Lazaro V. Linares 7015 Biscayne Boulevard Miami, Florida 33138 Myrtle S. Aase, Executive Director Barbers' Board Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Petitioner has been licensed as a barber and as a cosmetologist for approximately the last 18 years. He holds a bachelor's degree in vocational education from the University of Central Florida. He has taught courses in barbering for a number of years at different schools. The July 1986 barber instructor examination was the first barber instructor examination administered in the State of Florida. Petitioner was eligible to take and did take the July 1986 barber instructor examination. Although he achieved a passing score on the written portion of that examination, he failed to obtain a passing score on the practical portion of the examination. Accordingly, Petitioner is deemed to have failed the entire examination. Approximately 30 days before the examination date, Petitioner received from Respondent a Notice to Appear containing both Petitioner's examination admission slip and detailed instructions and information regarding the administration of the examination and the contents of the examination itself. Regarding the practical portion of the examination, the information within the Notice to Appear advised Petitioner and the other candidates that the practical portion of the examination would consist of the preparation of a lesson plan and actual presentation of that lesson according to the candidate's own lesson plan. The Notice to Appear specified that there are seven categories of instruction as follows: Shampooing and Haircut Shave Permanent Wave Facials Coloring Sanitation and Sterilization Chemical Straightening The Notice to Appear explained that each candidate, before coming to the examination, should prepare at least one lesson plan for each category of instruction. At the examination site, each candidate would be assigned one of those seven categories of instruction. The candidate would then submit a lesson plan for a 30-minute lesson for the category assigned to that candidate at that time. The candidate would then present the lesson according to the lesson plan which that candidate submitted. The lesson could be either a demonstration or a lecture, and the candidate would be evaluated on the candidate's use of audio/visual aids during the lesson presentation. The Notice to Appear also includes a blank sample grade sheet so that the candidate is advised as to the specific 20 criteria by which the examiners judge the lesson plan and its presentation. The team of three examiners for the July 1986 barber instructor examination consisted of two licensed barber instructors and one educator, since the barber instructor examination is a teaching examination rather than a barbering examination. The examiners are prohibited from conferring or collaborating with each other in marking their individual grade sheets. When Petitioner arrived at the examination site for the practical portion of the examination, he was assigned the first category of instruction: Shampooing and Haircut. He turned in the lesson plan which he had previously prepared. His lesson plan covered only the topic of haircutting and stated that the time necessary for the lesson was one hour. All examiners agreed that Petitioner started his presentation at 3:05 p.m. and concluded it at 3:19 p.m. The percentage of agreement among the three examiners as to whether Petitioner met each of the 20 criteria in the practical portion of the examination is within the normal range of expectation for three evaluations performed independently.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED that a Final Order be entered finding that Petitioner failed to achieve a passing grade on the practical portion of the July 1986 barber instructor examination. DONE AND RECOMMENDED this 10th of June, 1987, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 10th day of June, 1987. COPIES FURNISHED: Mr. Frank Capostagno 3344 South Orange Blossom Trail Orlando, Florida 32207 Chester G. Senf, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van B. Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Myrtle Aase, Executive Director Board of Barbers 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether disciplinary action should be taken against Respondent’s barbershop license, based on violations of s. 476.194(1)(c), Florida Statutes, as alleged in the Administrative Complaint.
Findings Of Fact Respondent is and has been at all times material hereto, a licensed cosmetologist in the State of Florida, having been issued license number CL-0135324. Respondent is and has been at all times material hereto, the owner and operator of a barbershop which operates under the name Olga’s Beauty and Barber Shop. It has been issued license number BS-0009349 and is located in Ft. Pierce, Florida. Leonard Baldwin is an inspector for the Department of Business and Professional Regulation. As part of his statutory duties, he conducts routine inspections of barbershops. As part of his statutory duties, he conducted a routine inspection of Olga’s Beauty and Barber Shop on April 20, 1996. During the course of that inspection, Olga’s Beauty and Barber Shop was open for the business of performing barbering services to members of the public. The time of inspection was approximately 11:30 a.m. He observed an elderly man getting out of the barber’s chair with a fresh haircut. The customer paid Respondent for the service. The person behind the chair was given a tip. He also observed a man, subsequently identified as Javon Stewart, Respondent’s husband, standing behind the chair and placing the clippers in a drawer. The clippers were later determined to be warm. Javon Steward is not licensed to cut hair in Florida. During the course of the inspection, Mr. Baldwin prepared and presented a “Cease and Desist Agreement” to Javon Stewart. Javon Stewart signed the Cease and Desist Agreement and agreed not to engage in the practice of barbering until and unless he was licensed. On May 23, 1996, a reinspection was conducted. During the course of that inspection, Baldwin observed a customer seated in a barber chair inside the barbershop. He saw Javon Stewart with a pair of clippers in his hand standing directly behind the seated customer using the clippers on the customer’s neck. He observed the person “finishing up his customer, cleaning off the bottom of his neck.” The phrase “cleaning off the bottom of a neck” is a barbering term that refers to a person using a set of hair clippers to cut or trim a person’s hair from the back hairline to below the collar line. In this instance, “cleaning off” actually means “cutting or trimming” the hair. During the course of the second inspection, Baldwin observed the customer getting out of the chair, paying the Respondent for the haircut and giving Stewart a tip. Javon Stewart then put the clippers into a drawer. Baldwin immediately walked over to the drawer where the hair clippers were placed and picked them up. The clippers were warm, having just been used.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent be found guilty of violating Section 476.194(1)(c), Florida Statutes, by employing an unlicensed individual to engage in barbering services. It is further recommended that the Respondent be fined $500.00 (five hundred dollars) and issued a Cease and Desist Order. RECOMMENDED this 8th day of September, 1997, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 8th day of September, 1997. COPIES FURNISHED: James E. Manning, Esquire Department of Business and Professional Regulation Board of Barbers 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ms. Olga Gibb Olga’s Beauty & Barber Shop 1236 Avenue D Fort Pierce, Florida 34950 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Joe Baker Executive Director Board of Barbers Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
