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 As a result of the Board's inability to resolve the conflict, the rules were repealed in June, 1980 without having been published in the Florida Administrative Code.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.
The Issue Whether Respondent, Francisco Portes, violated Subsections 476.194(1)(a), 476.194(1)(e)1., and 476.194(1)(e)2., Florida Statutes (2003), and, if so, what disciplinary action should be imposed.
Findings Of Fact At all times material hereto, Respondent was unlicensed as a barber by the Department's Barbers' Board of the State of Florida. At all times material hereto, the name of the business located at 1447 North Pine Hills Road, Orlando, Florida (North Pine Hills address), was "Still Keeping It Real." That business was not licensed by Florida Barbers' Board.1/ The Department, though its employees, conducted a compliance sweep, and/or inspection, of the facility named "Still Keeping It Real" on February 7, 2004, after Petitioner received information that there was a "possible unlicensed barber shop or cosmetology salon" operating at that location. David Hogan, a regional program administrator with the Department, and two of the Department's employees participated in the compliance sweep and inspection. Mr. Hogan has been employed with the Department for approximately ten years, during which he has attended numerous training sessions provided by the Department. At all times material hereto, Mr. Hogan was certified as an investigator by the Council on Licensure Enforcement and Regulation by Eastern Kentucky University. On February 7, 2004, Mr. Hogan and the two inspectors initially conducted surveillance of the establishment located at the North Pine Hills address from a parking lot across the street from the establishment. There was a sign on the front of the building that said "Michael J's Still Keeping It Real" or "Michael J's Keeping It Real." During the 15 to 20 minutes that Mr. Hogan and the inspectors observed the establishment, there were a number of cars parked in the establishment's parking lot and a number of people were observed coming and going from the establishment. Based on the foregoing observations, Mr. Hogan and the inspectors believed that they had sufficient cause to enter the building. Once inside the establishment, Mr. Hogan conducted an inspection of the premises of "Still Keeping It Real." During the inspection, Mr. Hogan observed approximately four to six work stations, all of which had barbering and/or cosmetology implements set up at them. In a separate room at the establishment, there were also two more cosmetology stations. Mr. Hogan conducted an inspection of each of the work stations at the establishment. Although there were individuals at some of the work stations performing various barbering services on customers in the chairs in the work stations, no barber or cosmetology licenses were posted in any of the work stations. Upon request, with one exception, the individuals working at the various work stations would not produce identification. Moreover, none of the individuals working in the work stations produced either a cosmetologist license or barber license issued by the Department. Within five to ten minutes of Mr. Hogan's entering the establishment, all but one of the individuals working there and their customers left the premises. The only remaining individual working in the establishment completed the haircut he was giving his customer. After the haircut was completed, the customer paid the person who cut his hair and then left the establishment. As of February 7, 2004, the date of the inspection, Respondent had owned and operated the business establishment at the North Pine Hills address for approximately three months. The name of the business establishment located at the North Pine Hills address, immediately prior to Respondent's becoming the owner and operator of the business, was "Michael J's Keeping It Real." However, when Respondent took over the business, he named it "Still Keeping It Real." During the February 7, 2004, inspection, Respondent gave Mr. Hogan one of Respondent's business cards. Imprinted on the business card was the name of the business establishment, "Still Keeping It Real"; the address of the business, "1447 N. Pine Hills Road, Orlando, Florida"; and Respondent's name, "Frank Portes." The word "barber" was imprinted on the business card immediately below Respondent's name. Respondent testified that he performed services at "Still Keeping It Real" and that he did not have a barber's license at the time of the inspection. Although not licensed as a barber, Respondent mistakenly believed that because he had completed cosmetology school and registered for the cosmetology examination, he could work under the supervision of someone with a license. Respondent testified that he was working under the supervision of Michael J., the previous owner of the establishment, who, at the time of the inspection, still worked at the establishment. However, at the time of the inspection, Michael J. was not on the premises of the establishment. Furthermore, no evidence was presented at this proceeding to establish that Michael J. was licensed as either a barber or cosmetologist by the Department. Under limited circumstances, individuals who have graduated from cosmetology school may cut hair and perform other services included within the statutory definition of cosmetology prior to obtaining their cosmetology license, if they are supervised by a licensed cosmetologist. See §§ 477.013(4) and 477.019(4), Fla. Stat. (2003). However, graduates of cosmetology schools who have failed the cosmetology examination twice may not practice under the supervision provision in Subsection 477.019(4), Florida Statutes (2003). Respondent graduated from cosmetology school about two and a half years ago. After completing cosmetology school, Respondent took the cosmetology licensure examination twice, but failed to pass the examination. Because he was unsuccessful in passing the examination, Respondent planned to go back to cosmetology school for 200 more hours and then re-take the cosmetology licensure examination. A person who is licensed as a cosmetologist or properly working under the supervision of a licensed cosmetologist, may cut hair and perform other services included within the definition of both "barbering" and "cosmetology." (See Subsections 476.034(2) and 477.013(4), Florida Statutes (2003), which reflect that the definition of "cosmetology" encompasses many of the services also included in the definition of "barbering.") Respondent was ineligible to provide barbering services under either of the qualifying circumstances described in paragraph 18. First, based on Respondent's testimony, he was not licensed as either a barber or a cosmetologist. Second, despite Respondent's mistaken belief to the contrary, even if it is assumed that Michael J. was licensed and present on the premises at the time of the inspection, Respondent was ineligible to perform services under the supervision of a licensed person pursuant to Subsection 477.019(4), Florida Statutes (2003), because he had failed the licensure examination twice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, the Department of Business and Professional Regulation, enter a final order (1) finding that Respondent, Francisco Portes, engaged in acts proscribed by Subsections 476.194(1)(a), 476.194(1)(e)1., and 476.194(1)(e)2., Florida Statutes (2003); and (2) imposing an administrative fine of $500 for each violation for a total of $1,500. DONE AND ENTERED this 18th day of July, 2005, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 18th day of July, 2005.
The Issue The issue for disposition is whether William Engelleiter practiced cosmetology without a license, and if so, what action is appropriate.
Findings Of Fact Nita Spagnole is an investigator for the Department of Professional Regulation (DPR) in the Orlando, Florida office. On March 22, 1988, she visited the Apollo Hair Designs Salon in Melbourne, Florida, to gather affidavits for another case. William Engelleiter was in the salon and was pointed out to her as a cosmetologist. He was in the area, talking to a customer, watching TV and visiting with the other workers. She did not observe him working on hair or otherwise practicing cosmeto1ogy. Ms. Spagnole later pulled his name on the agency computer and learned that he did not have a license. William Engelleiter attended cosmetology school but did not pass the board examination. He is diabetic and frequently ill. He met the Blough's, the owners of Apollo Hair Design at a flea market. They were giving away free samples and said they needed a receptionist. Engelleiter was hired to work as a receptionist until he was able to pass the examination. He started work at Apollo on January 25, 1988, and was still employed as a receptionist in March, 1988. He left shortly later due to illness. From time to time at the salon, William Engelleiter did his mother's hair and worked on the owner's daughter and other cosmetologists, but he claims that he never received compensation for those services. His mother confirmed this. David Simon, a friend of Engelleiter's, went to the salon to buy a hairpiece. He wanted Engelleiter to get the commission but was told that he could not, because he was not a cosmetologist.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That the administrative complaint dated May 20, 1988 be dismissed. DONE and RECOMMENDED this 9th day of December, 1988, in Tallahassee, Florida. MARY CLARK 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, 1988. COPIES FURNISHED: Ronald L. Jones, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William R. Engelleiter 1964 McKinley Avenue Post Office Box 24A Melbourne Beach, Florida 32951 Myrtle Aase, Executive Director Board of Cosmetology Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue At issue in this proceeding is whether respondent committed the offenses set forth in the administrative complaint and, if so, what disciplinary action should be imposed.
Findings Of Fact Respondent, Angela Maria Wynter, has not, at any time material hereto, been licensed to practice cosmetology in the State of Florida. On January 25, 1992, during a routine inspection of Geta's Beauty Phase II, 19905 Northwest 2nd Avenue, Miami, Florida, respondent was observed "combing out" the dry hair of a woman seated in a beauty chair. When asked for her cosmetology license, respondent replied that she did not have one because she was only the shampoo girl. When informed that the services she was performing were beyond those of shampooing, which the inspector advised were limited to washing the hair and drying it with a towel, respondent ceased her activities and the customer moved to another chair where she was attended by a licensed person. 1/ Regarding respondent's employment at the salon, the proof demonstrates that she was employed to work Saturdays, at a rate of $30.00 a day, to shampoo customers' hair, and had been so employed for approximately three weeks before the subject inspection. In addition to shampooing hair, respondent's employment also included "combing out" customers' hair after it had been dried. Respondent was not, however, shown to have engaged in hair arranging or styling, as those terms are commonly used, nor was she shown to have engaged in hair cutting or other activities that might be perceived as the practice of cosmetology as defined by Section 477.013(4), Florida Statutes, discussed infra, or to have held herself out to the public as being available to perform such activities.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing the administrative complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 14th day of April 1993. WILLIAM J. KENDRICK 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 April 1993.
The Issue At issue is whether respondent committed the offenses alleged in the amended administrative complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Petitioner, Agency for Health Care Administration, Board of Medicine, is a state agency charged with the duty and responsibility of regulating the practice of dietetics and nutrition, including the prosecution of administrative complaints, pursuant to the laws of the State of Florida, in particular Section 20.42, Florida Statutes, Chapters 120, 455 and 468, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Jay D. Foster, is now and has been at all times pertinent to these proceedings a licensed nutrition counselor in the State of Florida, having been issued license number NC 0000273. Respondent conducts business through, and is a shareholder, officer and employee of, Body Chemistry Associates, Inc., a Florida corporation, with offices at 9155 Southwest 87th Avenue, Miami, Florida 33176. Pertinent to this case, respondent is the author of three brochures bearing the following titles: "Nutrition, Learning and Behavior " ("Brochure No. 1") [Petitioner's Exhibit 1]; "Toxic Metals: What they can mean to your health and well being" ("Brochure No. 3") [Petitioner's Exhibit 3]; and "Nutrition and the Chemistry of Arthritis" ("Brochure No. 4") [Petitioner's Exhibit 4].2 The parties stipulated, at hearing, that each of these brochures promoted the services and types of treatment respondent performed through the BodyChemTM Program, and were available in the waiting area of respondent's office. [TR., page 153]. By such stipulation, it is reasonable to infer, absent proof to the contrary (which was not forthcoming), that each brochure was available to the public upon entry to respondent's waiting area, and that the brochures were placed in such area with the intention of selling, offering to perform, or inducing members of the public to engage respondent to perform nutrition services. Petitioner has identified the following portion of Brochure No. 1 ("Nutrition, Learning and Behavior"), which it contends contains fraudulent, false, deceptive or misleading information: 3. HEAVY METAL TOXICITY: Lead, Mercury, Cadmium, and Aluminum can all be accurately tested for through a reliable Hair Analysis. By reliable, I mean tested at a reliable laboratory and interpreted by a qualified biochemist or physician. I personally know of 2 reliable hair testing laboratories in this country and have studied over 20,000 hair samples in the last decade. From this experience, I have come to the conclusion that hair analysis gives an extremely accurate indication of heavy metal build-up in the tissues of the body, as well as an indication of essential mineral excesses and deficiencies that we will talk about next. All of the toxic metals mentioned above can effect the brain and central nervous system in children and in adults. When these poisons are detected through hair analysis profile, a program of natural detoxification procedures can be started and as the metals come out, the symptoms begin to improve. We had one case study where an 18 month-old child was brought to our clinic because she could not walk. She wore braces on her legs, had pronated feet, and two pediatricians said that she was born with a "neurologic deficit". The doctors were not sure the child would ever walk, or be mentally retarded. We did a hair analysis on the child and found that she had over 5 times the adult level of Aluminum in her system! It turned out that her mother had been prescribed an antacid that contained Aluminum while she was pregnant with her daughter. The good news is that we put the little girl on a supplement program and she began to walk within 2-3 weeks! She also cut 8 teeth in 5 weeks and was running around and climbing over things within a month. So, the bottom line is that these metals can now be detected and removed through natural means. . . . [Emphasis added.] Brochure No. 3 ("Toxic Metals") observes, by way of introduction: In our modern, high-tech society, we are paying the price for convienence (sic)- in our foods, in our water, and in the rest of our enviornment (sic). Pollution, especially, heavy metal toxicity is now a common occurrence. The bad news is that many people, especially children are being effected, physically and mentally. The good news is that these poisons can be avoided, detected, and even removed from the body with natural means. The brochure then proceeds to discuss "3 common toxic metals" (lead, cadmium and aluminum), their source, the physical or mental disorders they cause, and their removal from the body. As with Brochure No. 1, Brochure No. 3 included the anecdote describing the child on whom "[w]e did a metal analysis of the . . . hair," discovered aluminum toxicity, treated through a "natural detoxification program," and her physical development rapidly improved. The brochure concludes: So, the bad news is that there are poisons in our environment that that (sic) can dramatically affect our health. The good news is that if these metals have found their way into our bodies, they can be detected and removed through a natural process of detoxification. [Emphasis added.] Brochure No. 4 ("Nutrition and the Chemistry of Arthritis") observes, by way of introduction: Arthritis is a complex disease, which can have many origins and of which there is no known cure. This purpose of this article is not to purport to have a new discovery for the cure of any type of arthritis, as I don't claim to have the cure, but rather, the reason for writing this article is education - to let people know about certain dietary, biochemical and nutritional facts which we have found can adversly (sic) affect arthritic symptoms and therefore some general safe guidelines to be aware of which might help reduce the symptoms. I will discuss several different subtopics under the general heading of this paper[.] Pertinent to this case, the brochure includes the following discussion regarding mineral imbalances: . . . When calcium is not taken with proper ratios of magnesium, manganese, zinc and other nutrients, it tends to deposit into the soft tissues. Calcified arthritic deposits can manifest, along with gall stones, kidney stones, bursitis, etc. When calcium deposits are detected, usually via a trace mineral analysis of hair, therapeutic nutritional formulas can be recommended to help your body throw off the deposits. [Emphasis added.] Here, petitioner contends that the statements contained in the brochures that hair analysis can detect a heavy metal build-up (of lead, mercury, cadmium and aluminum) in the tissues of the body, as well as an indication of essential mineral (calcium) excesses and deficiencies , and that once identified the problem can be addressed through therapeutic nutritional formulas, is false and misleading because there is no clinical correlation between hair tissue analysis and heavy metal build-up in the tissues of the body, or mineral (calcium) imbalance, and there is no course of dietary supplementation available to a nutritionist that will aid in the removal of heavy metals from the body. Petitioner further contends that the anecdote regarding the child, who was tested by hair analysis, was found to have "over 5 times the adult level of Aluminum in her system," and following a "natural detoxification program" rapidly improved, is false and misleading for the same reasons [i.e., the build-up of aluminum could not have been reliably detected by hair analysis and no course of dietary supplementation is available to a nutritionist to ameliorate the problem]. Petitioner also contends the anecdote was false and misleading because, if the aluminum build-up were the cause of neurologic damage, such damage would be permanent and not ameliorated by the removal of the aluminum. While the reliability of hair analysis as a means to detect the presence of a heavy metal build-up in the tissues of the body, as well as an indication of essential mineral imbalances, is subject to debate, the proof demonstrates that where, as here, norms or standards are shown to exist, a trace element analysis of the hair can provide a useful tool in the identification of heavy metal build-up and mineral imbalances. Contrasted with blood and urine analysis, the traditional clinical approach, where trace element concentrations are transient (related to the supply of elements in the previous hours or days), hair analysis, while offering no information on immediate levels, offers insight to the tissue level and what has been stored over a period of months. Consequently, given the proof in this case, it must be concluded that the statements contained in the brochures that hair analysis can detect the presence of a heavy metal build-up in the tissues of the body, as well as an indication of essential mineral imbalances, has not been shown to be false or misleading. Rather, hair analysis has been shown to be helpful or to offer useful information in assessing such matters. The next issue requiring resolution is whether petitioner has demonstrated, with the requisite degree of certainty, that the brochures are false and misleading because heavy metal build-ups in the tissues of the body, as well as mineral imbalances, cannot be ameliorated through a course of dietary supplementation or nutritional formulas. Considering the quality of the proof, it cannot be concluded with any degree of confidence that the brochures are false and misleading as petitioner suggests. Indeed, respondent presented persuasive proof that nutritional approaches are available to ameliorate such conditions, and petitioner did not meaningfully address, explain, or rebut such proof. [See, e.g., TR., page 249-251.] Finally, it is necessary to resolve whether petitioner's contention that the anecdote regarding the child who was tested by hair analysis, found to have "over 5 times the adult level of aluminum in her system," and following a "natural detoxification program" rapidly improved, is false and misleading. In addressing the anecdote, it is first observed, for the reasons heretofore noted, that petitioner's contention that the anecdote is false and misleading because a build-up of aluminum in the tissues of the body can not be reliably detected by hair analysis and no course of dietary supplementation is available to a nutritionist to ameliorate the problem has not been sustained. Next to be addressed is petitioner's contention that the anecdote is false and misleading because it infers that a neurologic deficit, caused by aluminum toxicity, can be ameliorated by the removal of the aluminum. According to petitioner, and its proof, any neurologic (brain) damage would be permanent, and any "major cure is not medically or physiologically possible." [Tr., page 27.] Turning to the anecdote at issue, it must be concluded that petitioner's reading is strained and that, reasonably read, the anecdote does not suggest that profound neurologic damage was or can be "cured," as petitioner's reading suggests. Moreover, petitioner's suggestion, and the proof offered to support it, that the sequelae of a neurologic insult are always permanent and not subject to improvement is, especially with regard to infants, rejected as contrary to the more credible proof. Reasonably read, the anecdote correctly observes that "toxic metals [such as aluminum] can effect the brain and central nervous system in children and adults." The symptoms or sequelae attributed to the child are consistent with aluminum toxicity, and even petitioner's expert (Dr. Hillman) conceded that the sequelae attributable to aluminum toxicity are reversible. [TR., page 66.] Moreover, improvement would be more likely in the very young. [TR., page 252-253.] Consequently, the proof fails to demonstrate that the anecdote is false or misleading as suggested by petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the amended administrative complaint be dismissed.DONE AND ENTERED this 18th day of April, 1997, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1997.
The Issue The issue in this case is whether Petitioner, Gary Cook, should have received a passing score on the Barber Practical Examination taken by him in November 1996.
Findings Of Fact On or about November 25, 1996, Petitioner, Gary Cook, took the Barber Practical Examination (hereinafter referred to as the "Exam"). The Exam was scored by two examiners: Geri Scott and Don Gibson. The Bureau of Testing of Respondent, the Department of Business and Professional Regulation (hereinafter referred to as the "Department") subsequently notified Mr. Cook that he had earned a total score of 70 on the Exam. A score of 75 is considered a passing grade. Mr. Cook was notified by the Department that he earned a total score of 14.00 points on the sanitation portion of the Exam. The maximum score which may be earned for the sanitation portion of the Exam is 25.00. On or about December 30, 1996, Mr. Cook requested a formal administrative hearing to contest the determination of his score on the Exam. Mr. Cook challenged his score on the sanitation portion of the Exam. The sanitation portion of the Exam consists of ten criteria for which points may be earned: Criteria Maximum Score Used proper linen setup for the shampoo 2 Properly stored clean and dirty linen during the shampoo 3 Washed hands before beginning the haircut 2 Used the proper linen setup for the haircut 3 During the haircut tools were replaced in sanitizer after each use 3 Properly stored clan and dirty linen during the haircut 2 Washed hands before beginning the permanent wave 2 Used the proper linen/cottonwrap setup for the permanent wave 3 Kept tools sanitized during the permanent wave 3 Properly stored clean and dirty linen during the permanent wave 2 TOTAL POSSIBLE POINTS 25 The criteria of the sanitation portion of the Exam are designated as "procedures" which candidates are required to meet during the Exam. If both examiners determine that a candidate carried out a procedure, the candidate is awarded the total available points for the procedure. If both examiners determine that a candidate did not carry out the procedure, the candidate is awarded no points for the procedure. Finally, if one examiner determines that a candidate carried out the procedure and the other examiner disagrees, the candidate is awarded half of the available points for the procedure. On the sanitation portion of the Exam Mr. Cook received no points for procedures B-2, C-2, and C-3. Mr. Cook received half the points available for procedures B-4 and C-4. Mr. Cook specifically alleged that he should have been awarded the maximum points for procedures B-2, B-4, C-2, C-3, and C-4. For procedure B-2, the examiners were to determine whether "[t]he candidate used the proper linen setup for the haircut." This procedure was worth a total of 3 points. Both examiners determined that Mr. Cook had not used the proper linen setup. For purposes of procedure B-2, the haircut includes shaving around the outline of the hair. Therefore, proper linen setup for the shave is a part of the haircut. Mr. Cook did not dispute the fact that he had not used the proper linen setup for the shave portion of the haircut. Mr. Cook suggested that the haircut portion of the Exam did not include the shave. The evidence failed to support this assertion. Rule 61GK3-16.001(7)(a)8., Florida Administrative Code, provides that a "haircut" for purposes of barber examinations includes a determination that "[s]ideburns, outline and neckline are clean shaven." See also, Page 7 of the Candidate Information Booklet, Respondent's Exhibit 3. Mr. Cook failed to prove that he fulfilled the requirements of procedure B-2. For procedure B-4, the examiners were to determine whether "[t]he candidate properly stored clean and dirty linen during the haircut." [Emphasis added] This procedure was worth a total of 2 points. One examiner determined that Mr. Cook had not met this criterion. Mr. Cook, therefore, was awarded 1 point for this procedure. The examiner that found that Mr. Cook had not performed procedure B-4 properly determined that Mr. Cook had placed a box of rubber gloves on a bar behind the area in which he was working. The Department has cited no authority which defines the term "linens" as including rubber gloves. The common definition of the term "linens" does not suggest that rubber gloves constitute linens. The term "linen" is defined as follows: 1 a : cloth made of flax and noted for its strength, coolness, and luster b : thread or yarn spun from flax 2 : clothing or household articles made of linen cloth or similar fabric3 : paper made from linen fibers or with a linen finish Webster's Ninth New Collegiate Dictionary 1984. Mr. Cook should have received full credit for procedure B-4. Therefore, Mr. Cook should have received one additional point on procedure B-4. For procedure C-2, the examiners were to determine whether "[t]he candidate used the proper linen/cotton wrap setup for the permanent wave." This procedure was worth a total of 3 points. Both examiners determined that Mr. Cook had not met this criterion. Both examiners determined that Mr. Cook had failed to use a proper cotton-wrap setup. Mr. Cook failed to explain what steps he undertook in setting up for the permanent wave. Mr. Cook, therefore, failed to prove that he fulfilled the requirements of procedure C-2. For procedure C-3, the examiners were to determine whether "[t]he candidate kept tools sanitized during the permanent wave." This procedure was worth a total of 3 points. Both examiners determined that Mr. Cook had not met this criterion. Both examiners determined that Mr. Cook had placed rods used for the permanent on the back bar. Mr. Cook failed to prove that the did not leave rods on the back bar while performing the permanent wave. Mr. Cook, therefore, failed to prove that he fulfilled the requirements of procedure C-3. For procedure C-4, the examiners were to determine whether "[t]he candidate properly stored clean and dirty linen during the permanent wave." This procedure was worth a total of 2 points. One examiner determined that Mr. Cook had not met this criterion. The examiner who found that Mr. Cook had not met this criterion determined that Mr. Cook had left end-wraps on the back bar. Mr. Cook failed to prove that he did not leave end- wraps on the back bar. Mr. Cook, therefore, failed to prove that he fulfilled the requirement of procedure C-4. All of the criteria for the sanitation portion of the Exam are listed in a Candidate Information Booklet for the Barber Examination. See page 6 of Respondent's Exhibit 3. The booklet also explains the scoring procedure. Mr. Cook proved that he should have been awarded one additional point on the sanitation portion of the Exam. Therefore, Mr. Cook earned a total score of 71 on the Exam. Mr. Cook's score is below a passing score of 75.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Business and Professional Regulation, Barbers Board, finding that Gary Cook should have received a total score of 71 on the Barbers Practical Examination of November 1996. DONE AND ENTERED this 2nd day of September, 1997, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1997. COPIES FURNISHED: Gary Cook 202 Mulberry Circle Crawfordville, Florida 32327 R. Beth Atchison, Assistant General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Joe Baker Department of Business and Professional Regulation Board of Barbers 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The 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.
Findings Of Fact The parties stipulated to the fact that the Petitioner has jurisdiction over both Respondents. In addition, Petitioner presented the licensing history of each Respondent which reflected that both possess current appropriate licenses. On March 4, 1985, Respondent, at his shop, accomplished a foil frosting on the complainant, Ms. Young, who had visited Respondent's shop for hair dressing services several times in the past. On each occasion, Respondent worked on her himself giving her over the period three permanent waves and four frostings. Ms. Young was familiar with the frosting process having had her hair done that way since 1967. There are several legitimate ways a hair frosting can be done. One is through a cap placed over the head with strands of hair pulled through small holes and bleached. In the foil frosting method, the affected strands of hair are isolated, bleach is applied, and the bleached hair is wrapped in a piece of foil until done. Frosting can be considered light, medium, or heavy, depending upon the amount of hair that is frosted. Ms. Young usually has a heavy frosting done. The last two times Respondent frosted her hair prior to the incident complained of here, Ms. Young contends her hair came out orange and red instead of blonde. She complained to Respondent about this both in person and by phone and Respondent allegedly told her he would correct the problem by first applying a dye to her hair and then frosting it. On the day in question, according to Ms. Young, Respondent did as he said he would and dyed her hair a deep brown. He then started to frost it even though she advised him at the time the dye had come out too dark. According to Ms. Young, Respondent told her not to worry about it. Ms. Young relates that Respondent left the bleach on her hair almost four hours. He checked her hair several times during that period but did nothing to stop the bleaching process. She contends she told Respondent that she was under the dryer too long but he either ignored her or told her to be quiet. After she became seriously concerned that her hair might be damaged, Ms. Young took herself out from under the dryer and began to remove the foil. At this point, she contends, Respondent came and took her to the wash area where he unwrapped the remaining foil packets and had Ms. Ayotte wash the bleach out of Ms. Young's hair. After this was done, Ms. Young was put back under the dryer and at this point, Ms. Young alleges, when she felt her hair, it had the consistency of taffy . She poked at it with a hair pick and found that large amounts of hair broke off each time she touched it. When she showed this to Respondent, he allegedly stated it was only dead ends coming off. At this point, convinced she would get no satisfaction from the Respondent, she paid him the charge for a frosting and left the shop. Respondent, she claims, refused to do anything more for her at the time but merely told her to go home and put a conditioner on her hair. According to Ms. Young, her hair continued to come out all evening each time she touched it which highly distressed and upset her, a state confirmed by her neighbor. By the following morning, she claims, she had accumulated seven or eight baggies of her hair which had come out. No matter how much she washed it and put conditioner on it, nothing helped and her hair continued to come out. The day after her visit to Respondent's shop, Ms. Young went to a beauty supply house where she was sold a vitamin treatment for her hair which she applied. Several days later she went to the beauty shop run by Ms. Kuhn where her hair was examined not only by Ms. Kuhn but also by Ms. Korman, both of whom concluded that her hair had been overly processed. She was given a procedure to follow for conditioning her hair which was trimmed back to a maximum length of two to three inches all over her head. Ms. Young indicates that the previous frostings she was given by Respondent were satisfactory as to hair texture if not as to color. However, she contends that the procedure he used on this occasion was different than that he used previously. She believes 75 percent of her hair had bleach applied to it. As a result of her dissatisfaction with Respondent, Ms. Young wrote a letter of complaint to DPR followed up by a formal complaint. The resultant file was forwarded to Ms. Markowitz, the local investigator, whose report was forwarded to Ms. Jimenez for consultation. Ms. Jimenez neither examined Ms. Young nor spoke with any of the witnesses involved but, based solely on her evaluation of the file only, which included Ms. Young's written statement, concluded Respondent was guilty of extreme negligence. She based her opinion on Ms. Young's recitation of the procedure followed by Respondent, and she readily admits that if the information given her was not accurate, her opinion would not be valid necessarily. Mr. Bannett does not deny applying a bleach solution to Ms. Young's hair and admits to having done each of her three previous frostings. He contends, however, that she was satisfied each time. 12 As a professional beautician, he has done thousands of frostings over the thirty or more years he has been in the business and has not experienced any problems until this time. He claims to work as a mechanic rather than as an artist in that he does a frosting the same way each time and does not deviate from his procedure. He believes that only through a routine can he effectively accomplish the process successfully. He categorically denies having dyed Ms. Young's hair before frosting it stating that to do so would have been counterproductive. It would require the bleaching of not only the natural hair color but also the dyed and would mean the bleach would have to stay on far too long. In a situation needing a color change, he puts the coloring on the hair remaining uncovered after the application of the foil packs. In a frosting Mr. Bannett starts at the bottom of the head applying the bleach and wrapping the treated area. He then does the sides the same way and works his way up to the top. It takes him about 20 to 25 minutes to accomplish all the treating and wrapping, after which he places the customer under the dryer for another 25 minutes. At that point, after 45 to 50 minutes, he checks the color of the hair. If it appears to be appropriate, he has the bleach washed from the customer's hair. If the color is not right, he replaces the wrapper and lets the bleach stay a little longer. Mr. Bannett contends that when he checked Ms. Young's hair it was right and Ms. Ayotte washed out the bleach. Not only Mr. Bannett, but also Ms. Ayotte and Ms. Ascola, both of whom were present and observed Ms. Young during the process contend she was happy with the result. They also deny that prior to the frosting Ms. Young's hair was orange or red. If Ms. Young was unhappy, they say, it was because of other matters because she left the shop happy with the way her hair looked when Mr. Bannett was through. Unfortunately, though Mr. Bannett indicates he routinely makes records of the service he gives each of his customers, if the customer does not return to the shop within a short period of time, he destroys them. Here, even though Ms. Markowitz interviewed him only slightly more than three months after the incident in question, the records had already been destroyed and he could not recall what was on them. As a result, his testimony is based solely on his limited recollection and his usual routine. It is most unlikely, however, that if Ms. Young were as unhappy as she relates, some other customer in the shop would not have overheard her discussions with Respondent or observed the state of her hair. She presented no evidence other than her own allegations as to what happened in the shop. The other evidence as to the cause of the damage was not incident specific. The over application could have been by anyone, including the complainant. On balance, therefore, it would appear that without question Mr. Bannett did a frosting of Ms. Young's hair on the date alleged. There is also no doubt that the hair was damaged by the improper application of chemicals to it. However, Petitioner has failed to conclusively show that it was Respondent who improperly applied these chemicals.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Administrative Complaint in this case against the Respondents Ronald Bannett and Style and Color of Sunrise, Inc., be dismissed. DONE and ORDERED this 10th day of November, 1986, at Tallahassee, Florida. ARNOLD H. POLLOCK 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 10th day of November, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1581 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 1-4 Accepted and incorporated. 5-8 Rejected as unproven. 9 Accepted and incorporated. Rulings on Proposed Findings of Fact Submitted by the Respondent Accepted and incorporated. Rejected as irrelevant to resolution of the issues of fact. 3&4 Rejected as recitations of the evidence and not findings of fact. 5 Rejected as commentary on the evidence and not as finding of fact. COPIES FURNISHED: Jane H. Shaeffer, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Robert Fogan, Esquire 2170 S.E. 17th Street Fort Lauderdale, Florida 33316 Myrtle Aase, Executive Director Board of Cosmetology 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
