Findings Of Fact Respondent is a licensed cosmetologist in the state of Florida, holding license number CL-0167327. She makes her home at 882 Anita Avenue, Pensacola, Florida, along with her husband and children. Respondent works at a relative's beauty salon in another location. Respondent has been interested in hair weaving or braiding for several years. Hair weaving or braiding is done by hand, by intertwining strands of hair. No tools are used other than a needlelike instrument used for lifting up strands of hair and sewing in synthetic or human hair. An individual's hair is not treated with any type of chemical, nor is it cut or shampooed. Such manipulation of the hair is somewhat difficult and requires practice in order to weave hair well. On or about October 20, 1987, Lutrel M. Raboteaux, an investigator for the Board of Cosmetology, contacted Respondent regarding a complaint they had received about her from Denise Bryant. 1/ Mr. Raboteaux's investigation centered on whether Respondent was maintaining a cosmetology salon in her home. The only items Mr. Raboteaux found at Ms. Freeman's home were a broken chair type hair dryer and a couple of well used bottles of hair supplies for black hair. Ms. Freeman had been given the broken hair dryer. She had never used the dryer since it was not in working order. The bottles were for personal use and were only used by Ms. Freeman and her family. About two years ago, Respondent met Marie Smith. They became good friends. Through their friendship, Ms. Smith discovered that Ms. Freeman knew how to do hair weaving. Ms. Smith was interested in having her hair woven, and asked Respondent to weave her hair. Ms. Smith, in return for Respondent's weaving her hair, tutored one of Respondent's children. The hair weaving and tutoring took place at Ms. Freeman's home and consisted mostly of tightening the weave as Ms. Smith's hair grew. Ms. Smith viewed the hair weaving arrangement as more of a quid pro quo for tutoring Respondent's child. Respondent viewed the hair weaving arrangement on more of a friendship basis as a favor for a favor. Other than this one arrangement, Ms. Freeman would practice hair weaving on her family and some of her friends. They would ask her to weave their hair. As was the case with Ms. Smith, they would ask her to weave their hair and she would perform that task for them. Again as with Ms. Smith, Respondent would weave the hair of her friends at her home. She did not charge for her services. Any hair weaving that took place in Ms. Freeman's home was for free. She never received any money from the individuals she practiced on at her home. The only time she may have received anything was the tutoring swap described earlier involving Ms. Smith. Likewise, Ms. Freeman supplied no chemicals or other supplies necessary for her friends to get their hair woven. Her friends supplied those items at their own expense. Ms. Freeman's sole reason for weaving her friends' hair was to practice the art of hair weaving which she wished to specialize in. It is clear that Ms. Freeman never intended to operate a hair weaving business in her home and did not consider her home in anyway to be a beauty salon. Her home is not open to the public. Her home did not contain any equipment or chemicals used in a beauty salon. No evidence was presented that she keeps regular hours or appointments at her home. On the contrary, she in fact works at another beauty salon in Pensacola. Additionally, Ms. Freeman asked one of her teachers at a cosmetology school in Pensacola if it was all right for her to practice hair weaving at her home for free. She was informed that it was not against Florida Law and was otherwise completely unaware that there may be a problem with not having her home licensed as a salon.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED: That the complaint against Ms. Freeman be dismissed. DONE and ORDERED this 12th day of April, 1988, in Tallahassee, Florida. DIANE CLEAVINGER 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 12th day of April, 1988.
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 Arnaldo Odio, D.D.S. received his education and dental training in Cuba, completing dental school there in 1942. Thereafter he was in private practice with his uncle in Havana, Cuba for about 5 years following which he worked at a government tuberculosis hospital until he came to the United States in 1965. At the time of Dr. Odio's arrival in the United States, Florida, as well as most of the other states, did not allow applicants for dental licensure to qualify based upon graduation from a foreign dental school. Upon his arrival in the United States Odio operated a dental laboratory in the Miami area. He applied for admission to various U.S. dental schools but apparently was not accepted. In 1970-71 New York changed its law to permit foreign graduates to qualify for licensure and Odio made application, took the necessary tests, and was admitted to practice in New York. He is currently practicing dentistry in New York. Chapter 72-185 Laws of Florida, 1972, deleted the requirement that graduates of foreign dental schools must, prior to examination, graduate from a United States school and substituted the provision that an applicant graduating from a foreign dental school may qualify for the examination for licensure by passing the National Board of Dental Examiners' examination and exhibiting manual skills on a laboratory model to the satisfaction of the Board. The exhibition of manual skills is called the mannequin examination and consists of work done on extracted human teeth inserted in a model upon which the applicant performs dental work without risk of harm to a patient. Having passed the National Board in 1970 or 1971 Odio applied to take the mannequin examination in Florida. Only after successfully completing the mannequin examination is an applicant deemed qualified to sit for the licensure examination which is comprised of a written portion as well as a clinical portion where work is performed on live patients. There is currently no limit on the number of times an applicant may take the mannequin examination. Dr. Odio took the mannequin examinations in December 1974, March 1975, and December 1975 and was informed after each examination that he had failed to attain the minimum qualifying score. It is these failures Dr. Odio is here contesting. The examiners for the mannequin examination are selected from the eight members of the Board of Dental Examiners. Before instituting these mannequin examinations the Board consulted professionals in the field of examining procedures and followed the recommendations so received. The evening before each examination is given the examiners go through a training session in which they are shown dental work and each assigns a grade which they later defend at a group meeting against the grades assigned by other examiners. This process is repeated several times, after which the grades become more uniform. By this procedure divergences in examining techniques are minimized. Before the examination each applicant is given an instruction sheet in which the procedures to be followed, the work that must be performed, and the grading procedures are explained. Dr. Odio testified that he fully understood the steps he was required to complete, and which dental procedures were expected for each grade assigned. During the course of the examination, at the times taken by Odio, the applicant performed three basic procedures and received seven grades. The range of scores on each step graded is from 0 to 5, with a score of 3 representing a passing grade of 75 percentile. This scoring system was adopted as a result of the recommendations of the examining professionals employed to help set up the examination scoring procedures. Two examiners assign a grade for each procedure completed by an applicant. The mannequin examinations are conducted in a room similar to a teaching dental laboratory with work space for each applicant and the examiners at the front of the room. No time limit is set for each procedure, but the applicant is given the full working day from 8:30 A.M. to 6:00 P.M. with one hour off for lunch to complete the examination. As each of the steps upon which the applicant is graded is completed, he takes his mannequin to an examiner who, after examining the work done, assigns a grade. The applicant then must have the procedure graded by a second examiner. After the examinations are completed the original examination score sheets are forwarded to a grading service where the scores are totaled and the applicant advised of his score. Before the originals are sent the Board makes a xerox copy of each examination sheet in case the originals are subsequently lost or misplaced. This copy is retained by the Board. The examiners' scores for each procedure are averaged to obtain the applicant's grade on that procedure. A failing grade of 2 on one procedure could be offset by a grade of 4 on another procedure to attain a passing grade of 3. Since one score is assigned for the preparation of the tooth for filling and a second score assigned after the tooth has been filled, the filling would preclude reevaluation of the score assigned for preparation. Accordingly retention of the mannequins after the work was graded would serve no useful purpose. Following two of Dr. Odio's mannequin examinations he met with a member of the Board who went over the grade sheet with Dr. Odio to show how the final score was computed. Odio's testimony that these members could not advise specifically why he received a failing score would not be unexpected. The examiners occupy positions similar to judges in a talent show or in a figure skating competition where marks are assigned on observed performance. Certain performances would be expected to be found substandard and others excellent and a third party could not look at a score sheet and say why. On each grade sheet the various factors that are to be considered by the examiner are listed alongside each score box. Occasionally the examiner will place a check mark alongside the factor wherein he considered the applicant's work to be deficient. Petitioner presented a summary of the grades assigned at the mannequin examinations in March and December, 1975. These show that of the 25 examination scores of the 7 procedures graded (March 1975) the two examiners assigned different grades a total of 74 times. These grades varied by more than one point only 10 times. Similarly on the December 1975 mannequin examination, the examiners differed by 1 point or more 78 times, but on only 6 grades did they differ by more than one point. No particular significance to the variance of these scores was established. A quick perusal of Exhibit 2, the test sheets for the December 1975 examination indicates that approximately half of the applicants passed the examination. Once the examination grades are assigned and turned in by the examiner, no changes are made to these scores. The originals of the test scores for the December 1974 and March 1975 mannequin examinations could not be located by Respondent; however, the copies made before the exams were delivered for grading, were produced. The originals of the December 1975 exam sheet except for that of Dr. Odio were produced and a copy of Odio's December 1975 exam was admitted as Exhibit 3. Although Petitioner contends that Respondent erred in failing to maintain these originals for two years as required by the statutes, no prejudice to Petitioner resulting from this error was shown or that this contributed in any manner toward Petitioner's failure to pass these mannequin examinations. No evidence was presented to indicate that different standards were applied in grading Petitioner than were applied to all other applicants. Petitioner was approved to take the December 1976 mannequin exam but did not appear. He had received a stab wound in the hand shortly before the exam and did not have the dexterity needed to complete the exam at that time. Petitioner's proposed findings of fact are generally in agreement with the findings above except that some of Petitioner's proposed findings were not included in the Findings of Fact because they were not deemed material. In the Proposed Findings Petitioner emphasized the discrepancies in the grades assigned by the two examiners and showed that the two examiners grading each step of a mannequin exam were in agreement only some 55 percent of the time and not the 85 percent agreement sought by the board. A review of Dr. Leo Foster's testimony (Exhibit 8) reveals his testimony on p. 12 to be that the grading consistency sought was that the grade given by the two examiners be within one point of each other 85 percent of the time. In the exam in March 1975 where there were 10 differences of more than one point on 175 grades in exam scores given by the two examiners this equals approximately 94 percent agreement. On the December 1975 exam where there were only 6 grades assigned by the two examiners which were more than one point apart the agreement between examiners exceeded 96 percent.
The Issue Should Respondent receive a passing score on the practical portion of the Barber Examination given on January 13, 1997?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Examination for Licensure as a Barber is administered by the Department’s Bureau of Testing and consists of two parts: Part I, Written; and Part Two, Practical. Petitioner passed Part I and Part I is not in contention. The Candidate Information Booklet for the Barber Examination (Information Booklet) provides as follows: GRADING CRITERIA FOR THE PRACTICAL EXAMINATION The performance of each candidate on the examination is evaluated by two examiners. The score necessary to achieve a passing grade shall be no less than seventy-five (75) percent out of one hundred (100) percent based on the average of the examiners’ scores. This means that a candidate will receive all the possible points for a procedure if both examiners evaluate the candidate as performing the procedure. If one examiner evaluates the candidate as performing the procedure and one examiner evaluates the candidate as failing to perform the procedure, the candidate will receive half of the possible points for the procedure. If both examiners evaluate the candidate as failing to perform the procedure, the candidate will not receive any points for the procedure. Under Part II (Practical) the candidate is graded on the following procedures. The number in parentheses is the maximum number of points that the candidate can receive upon successfully completing each procedure. Sanitation and Patron Protection (25) Technique (10) Shampoo Service (10) Haircut (45) Chemical Service (10) Total possible points (100) Based on the Examination Grade Report the Petitioner received the following scores on the procedures listed above: Sanitation and Patron Protection 24 Technique 10 Shampoo Service 10 Haircut 5 Chemical Service 0 Total points received 49 Petitioner is contesting the grading of the Haircut procedure only. The following is the criteria to be rated under the Haircut procedure: B-8. Top is even and without holes, gaps, or steps. B-9. Top (horseshoe) blends with the sides and back. B-10. Front outline are even. B-11. Haircut is proportional and sides are equal in length. B-12. Sides and back are without holes, gaps, or steps B-13 Sides blend with the back. B-14. Sideburns and outline are even. B-15. Sideburns, outline and neckline are clean shaven. B-16. Neckline is properly tapered. Examiner Jerri Scott gave Petitioner credit for correctly performing Criteria B-10 and B-12 but determined that Petitioner had failed to properly perform criteria B-8, B-9, B-11, and B-13 through B-16. Examiner Char Feliciano determined that Petitioner had failed to properly perform criteria B-8 through B-16. During the hearing, the Department agreed to grant Petitioner full credit for B-10 and B-12 since there was some inconsistency in the examiners' grading which gave Petitioner 10 points on the Haircut procedure rather than the 5 points reported on the Examination Grade Report. This gave Petitioner a total score of 54 points out of a possible 100 points on the Practical part of the examination. Each examiner individually examined the haircut performed by Petitioner and determined, based on the criteria set forth in the Information Booklet and the Examiner's Grading Sheet, that Petitioner had failed to properly perform B-8, B-9, B-11, and B-13 through B-16 The evidence is clear that Petitioner failed to properly perform B-8, B-9, B-11, and B-13 through B-16 of the Practical part of the Barber Examination given on January 13, 1997, notwithstanding the testimony of Petitioner to the contrary which I find lacks credibility. Additionally, the evidence is clear that Petitioner failed to receive a passing score on the Practical part of the Barber Examination given on January 13, 1997.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order denying Petitioner's challenge to the Practical part of the Barber Examination given on January 13, 1997. DONE AND ENTERED this 10th day of July, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1998. COPIES FURNISHED: Joe Baker, Executive Director Board of Barbers Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Linda Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32299-0792 R. Beth Atchison Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 James Jenkins, Jr., pro se Post Office Box 4092 Lake Wales, Florida 33853-4092
The Issue Whether the Respondent's licenses, as a barber and for a barbershop in the State of Florida, should be suspended, revoked or otherwise disciplined for alleged violation of Chapter 476, Florida Statutes; violation of Section 476.204(1)(i), Florida Statutes, and Rule 21C-19.012, Florida Administrative Code, by failing to meet the minimum standards in the operation of a barbershop, as follows: Garbage not kept in closed container (Rule 21C-19.011(2)(b). Equipment not kept clean and sanitary (Rule 21C- 19.011(2)(e). Equipment not stored in clean, closed containers or cabinets (Rule 21C-19.011(11)(d).
Findings Of Fact The Respondent is a licensed barber and barbershop owner in the State of Florida, license numbers BB 19606 and BS8827. The Respondent is the owner of Ribault Barbershop, 6712 Van Gundy Road, Jacksonville, Florida 32208. (P-2; T- 8) On July 26, 1990, Gail Hand, a DPR inspector, inspected the Respondent's barbershop. At that time, she found the shelves, fixtures and counter tops at the barber stations were coated with black dust, dirt and hair, which, over time, had been scattered throughout the barbershop. In addition, the Respondent had two (2) combs, a pick and four (4) clipper attachments which were coated with a scum or a dark residue in a dirty liquid in a tray on the counter top. (P-3; T-8-9, 30) During the aforementioned inspection, Ms. Hand also found that the barbering equipment in the Respondent's barbershop, such as combs, brushes and picks, were not stored in a closed container. The Respondent had combs, clipper attachments, scissors, a brush and a pick on the counter top. Ms. Hand found no closed cabinet for storing tools. The Respondent indicated that he was unaware of this requirement. (P-3; T-9-10, 23 and 59) During this inspection, Ms. Hand noted the garbage was not kept in a closed container as required by Board rule. (P-3; T-10-11, 58). The fact that the Respondent's bathroom had an objectionable odor and that the Respondent failed to post the previous inspection sheet were not charged as violations. (P-3; T-10-12, 17-18, 20-21, 37) Ms. Linda Mantovani, another DPR inspector "informally" reinspected the Respondent's barbershop prior to Christmas of 1990. Ms. Mantovani checked the deficiencies Ms. Hand had noted in July of 1990. She found that the Respondent's barbershop still had no closed cabinet for storage of tools. Ms. Mantovani reviewed the inspection report with the Respondent and discussed his correction of the continuing violations. The windowsills and fans were cleaned, and the garbage was kept in a closed container. (T-38, 40-42, 46-47, 50-51)
Recommendation Regarding the last charge, the Respondent indicated that he had received conflicting guidance on this requirement from prior inspectors. It appeared that there may be some confusion about this requirement; however, after the initial inspection, the Respondent clearly was on notice. Because of the Respondent's interest and candor regarding the events and because some of the deficiencies were corrected, the fine proposed by the Department is reduced to $100 per violation. Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the Florida Board of Barbers enter a Final Order finding the Respondent guilty as charged in the Administrative Complaint and imposing a $300.00 administrative fine. DONE AND ENTERED this 11th day of April, 1991, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 11th day of April, 1991. COPIES FURNISHED: Myrtle Aase, Executive Director Barbers Board Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esq. General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Laura P. Gaffney, Esq. Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Michael Herrington 6712 Van Gundy Road Jacksonville, FL 32208
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
