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.
Findings Of Fact Victor Bosciglio and Marioe Guerra are not and never have been parties Respondent before the Division of Administrative Hearings, since no election of a Section 120.57(1) hearing has ever been filed by either of them. Respondent Robert L. Perez, Jr. is and at all times material has been the holder of a Florida barber license. At all times material hereto Perez was one of the owners of a barbershop called, "Tiffany's Hair Designers," hereafter, "Tiffany's." Tiffany's was originally owned by Perez, Bosciglio, and Guerra. The three initially applied for and obtained a barbershop license for establishment of Tiffany's in a house located at 1205 Hillsborough Avenue in Tampa, Florida, in December, 1980. Although there is some suggestion in Ms. Denchfield's testimony that barbershop license applications are normally accompanied by a proposed floor plan, neither application nor the license itself for Tiffany's was offered in evidence and so no condition of non-expansion or evidence of any other condition for granting the initial barbershop license has been established. The original Tiffany's Hair Designers was located in the house at that address and had ten ""stations" for shampoos, cuts, etc. Sometime in October 1984, the trio converted a loft area above what previously had been a freestanding building housing a downstairs garage and located at the same street address as the house. After the conversion, the loft accommodated 4 additional barber "stations." The house and garage are technically separate buildings which share a common street address, driveway, and parking area. They are on the same electric, water, and telephone bills and occupy a single parcel of land. The going through the original house building which continues to shelter the original 10 barber stations. The two buildings are operated as a single business entity, Tiffany's Hair Designers. At all times material, Tiffany's original barbershop license remained in full force and effect. It is unclear whether a series of DPR inspectors regularly inspected the two portions of Tiffany's between October 1984 and October 1985. Petitioner wishes the inference to be made that there may have been a legitimate gap in inspection schedule so that no inspector was aware of the loft conversion until October 1985. Respondent desires the inference to be drawn that a series of inspections of both portions of Tiffany's during this time period turned out favorably and no inspector found any violation by way of the three owners' failure to notify the Barber's Board of the loft conversion and failure to apply for a new barbershop license during that year. There is no conclusive proof to establish either theory. Ms. Denchfield was not the local inspector during this period, and Mr. Perez was not regularly on the premises since he was working at another shop during most of this period but it seems entirely clear that inspectors for the state were allowed complete and total access to both buildings, the loft was certainly not hidden from view, and no sanitation violations were discovered in either building. A routine inspection in October, 1985 resulted in the administrative complaint herein. Neither this inspection nor a subsequent one in March 1986 revealed any sanitary violations in either building. The parties concur that the purpose of initial and subsequent inspections of licensed barbershops is to protect consumers by ensuring adequate sanitary conditions. Inspector Denchfield found in March 1986 that the loft has all the equipment necessary under statutes and rules she administers to qualify as a separate shop without reliance on the main building. Perez knew that he was required to apply for a barbershop license to open a new shop or to relocate a shop "down the street," i.e. from one address to another, but he was initially under the belief that because the converted loft was located on the same parcel of land with the main building that a second barbershop license was not mandated. The Administrative Complaint was served in January, 1986. Respondent Perez purchased the entire premises and business venture by buying out Bosciglio and Guerra in January 1986, and immediately applied for a new barbershop license which would cover both portions of Tiffany's. It is admitted that prior to this new application no one affirmatively notified the Barber's Board of a new building or obtained a separate license for the loft building.
Recommendation That the Barber's Board enter a final order dismissing the Administrative Complaint as against Robert L. Perez Jr., and if it has not already done so, dispose of the charges against Marioe Guerra, Jr. and Victor Bosciglio in accord with Section 120.57(2), Florida Statutes. DONE and ORDERED this 18th day of July, 1986, in Tallahassee Florida 32301. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1986.
Findings Of Fact Mr. R. H. Carswell, the Respondent, is the owner-operator and manager of Carswell's Marina Barber Shop, City Marina, Panama City, Florida. The subject shop has a sign denoting the fact that there is a beauty shop and a barber shop in the building. (a) A floor plan has been submitted to the Florida State Board of Barbers' Sanitary Commission as required by Section 472.24(6), Florida Statutes, to partition a barber shop section from a beauty shop section. No approval of said plan has been issued in writing. A plexiglass partition separates the barber area from the cosmetology area. There was a person working in subject barber shop who is a licensed cosmetologist but is not licensed as a barber. This person has been practicing the art of cosmetology. There are persons working in subject barber shop who are not practicing the art of barbering.
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 The issues to be resolved in this proceeding concern whether the Respondent owned, operated, maintained, established, or conducted a barbering business and barber shop for purposes of the requirements delineated in Section 476.194, Florida Statutes.
Findings Of Fact The Petitioner is an Agency of the State of Florida charged, as pertinent hereto, with regulating the licensure of barbers, the licensure of barber shop establishments and the practice of barbering, and the operation of barber shops, pursuant to Chapter 476, Florida Statutes (2006). After investigation the Respondent, Chand Harris, was accused in the Administrative Complaint, with practicing barbering or operating, establishing, opening, or conducting a barber shop operation or business without proper licensure. Although properly served with a copy of the Notice of Hearing at his last known address of record, Mr. Harris failed to appear at the hearing. After waiting an appropriate period of time, the hearing was convened and the taking of evidence was initiated. Upon conclusion of the Petitioner's case the Respondent, Mr. Harris, had not yet appeared at the hearing and never did appear at hearing. Consequently, no evidence was adduced on behalf of the Respondent. There has been no communication with the Respondent either before or since the hearing and thus there is no known explanation for his failure to appear at the hearing. Robert M. Johnson is employed by the Department as an inspector. He has been thus employed for approximately three and one-half years. He has a four-year degree from Baptist College of Florida and is currently enrolled in basic law enforcement courses at Lake City Community College. He also received formal training from the Department upon beginning his employment and attends on-going training sessions. Mr. Johnson performs approximately 1,300 inspections annually. On November 3, 9, and 17, 2005, Mr. Johnson inspected the premises of a business known as "Trend Setterz." Mr. Johnson's investigation established, through his testimony, that the Respondent, Chand Harris, owned and controlled the establishment named Trend Setterz. It is located at 289 Marion Oaks Lane, Ocala, Florida 34473. Trend Setterz was not licensed as a barber shop by the Florida Barbers Board, but was operating as a barber shop. Mr. Johnson observed a substantial number of people having hair cuts performed in the Trend Setterz shop. During those inspections, Mr. Johnson observed Mr. Giscard Rousseau performing barbering services inside the Trend Setterz establishment. He specifically observed Mr. Rousseau cutting hair for compensation. He also overheard Mr. Rousseau telling at least one customer not to pay him in the presence of Mr. Johnson so he could not be accused of barbering for compensation without a license. Mr. Rousseau was not licensed as a barber by the Florida Barber's Board at the time of the inspections and with regard to the time period represented by the charges in the Administrative Complaint against the shop owner and operator, Mr. Harris. Later, after the pertinent time period represented by the charges in the Administrative Complaint, Mr. Rousseau indeed achieved licensure as a barber by the Florida Barber's Board, on September 12, 2006. That license is current and active through July 31, 2008. Chand Harris, however, as well as Trend Setterz, is not and never has been licensed by the Barber Board respectively as a barber or as a barber shop.
Recommendation 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 a final order be entered by the Florida Department of Business and Profession Regulation, Board of Barbers, finding the Respondent guilty of the charges in the Administrative Complaint and assessing an administrative penalty in the amount of $1,000.00, due and payable to the Barber Board, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days of the date a final order herein is filed with the agency clerk. DONE AND ENTERED this 7th day of May, 2007, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 7th day of May, 2007. COPIES FURNISHED: Tiffany A. Harrington, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Chand Harris 16330 Southwest 17th Avenue Ocala, Florida 34473 Robyn Barineau, Executive Director Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what penalties should be imposed on Respondent.
Findings Of Fact Petitioner is the state agency charged with the regulation of barbering and the inspection of barbershops in the state of Florida pursuant to chapter 476, Florida Statutes. At all times material hereto, Archibald was licensed as a barber in the state of Florida under license number BB8890016. At all times material hereto, Fresh Cut Barbershop ("barbershop") was licensed as a barbershop in the state of Florida under license number 1077801. At all times material hereto, Archibald was an owner and operator of the barbershop. On February 9, 2012, the barbershop was located within a shopping plaza at 6574 Northwest Selvitz Road, Port St. Lucie, Florida. On February 9, 2012, a routine inspection of the barbershop was conducted by Ms. Yvonne Grutka, a trained and experienced inspector employed by Petitioner. Ms. Grutka has been employed by Petitioner as an Environmental Health Specialist for approximately 17 years, performing approximately 1,200-1,400 annual inspections. Due to the nature of the allegations of the Administrative Complaint, the physical layout of the barbershop, including the specific locations of the front entrance, work stations, and waiting area, is important to a clear understanding and resolution of the issues. However, insufficient evidence was presented at hearing in this regard. Moreover, insufficient evidence was presented as to the number of barbers who worked at the barbershop (and thus number of personal licenses); the identities of the barbers; where specifically within the barbershop they worked; and whether the barbers who worked at the barbershop were independent contractors or employees of the business. The scant evidence presented at hearing demonstrates that on February 9, 2012, the premises upon which the barbershop was physically located was leased from the owner of the shopping plaza. A separate beauty supply business, which was owned by Archibald's ex-wife, was located at the front of the leased premises. The barbershop was located in a smaller area at the back of the leased premises. Both businesses were accessible to customers through a single entry door at the front of the leased space where the beauty supply store was located. Petitioner failed to clearly and convincingly establish that the barbershop was open for business during the February 9, 2012, inspection. During Ms. Grutka's February 9, 2012, inspection, the only persons present at the barbershop were Archibald and another unidentified barber. No evidence was presented that this "other barber" was affiliated with the barbershop in any way. No physical description of this person or his/her clothing was provided. It could be that this barber was just visiting, and was unaffiliated with the barbershop. No customers were present. The time of commencement and duration of the inspection is unknown. On the date of the February 9, 2012, inspection, the property upon which the barbershop was located was in foreclosure. As a result, Archibald was planning to vacate the premises and move the barbershop to another location. During the inspection, boxes of items were on the floor, and other items were removed from walls, evidencing Archibald's intent to vacate the premises. Archibald was present on the date of the inspection. Archibald testified he is unsure whether the barbershop was open for business on February 9, 2012, because of his intent to vacate the building. On rebuttal, Ms. Grutka did not "recall" whether she "saw boxes or not." When asked specifically whether she recalled Archibald saying that he was in the process of moving, Ms. Grutka merely replied: "No. He may have. I really don't recall."1/ With respect to the allegation regarding the improper display of personal licenses, Ms. Grutka testified on direct examination that during the February 9, 2012, inspection, she did not observe personal licenses posted with both the photograph and lamination. She testified that the licenses had the photograph or the lamination on "it, but one of the items was missing." However, no evidence was presented by Petitioner on direct examination as to the specific location of the alleged lack of personal licenses, or the number or identities of the licensees for which personal licenses were purportedly not properly displayed. It was only on cross-examination that Ms. Grutka referred to Archibald's personal license, at which time she testified merely that she recalled seeing his personal license located in the "back" of the premises. Archibald testified that he believes the license was displayed in the barbershop area, which was located in the "back end" of the building. Importantly, Ms. Grutka never testified specifically that Archibald's license was improperly displayed in any way. In sum, Petitioner failed to prove by clear and convincing evidence that Respondent's personal license, or, for that matter, the personal licenses of any other barbers who worked at the barbershop were improperly displayed. With respect to the issues of the display of the barbershop license, rules of sanitation, and most recent inspection report, Ms. Grutka testified that during the February 9, 2012, inspection, she did not observe a barbershop license displayed visibly within view of the "front door," or the rules of sanitation, health, and safety visibly within view of the "front door" or "waiting area." Nor did Ms. Grutka observe the most recent inspection form prior to the February 9, 2012, inspection displayed within view of the "front entrance" or the "waiting area." According to Ms. Grutka, she did not observe the barbershop license and rules of sanitation, health, and safety, anywhere at the barbershop on the day of the inspection. However, Ms. Grutka's testimony is unreliable and cannot be credited because of insufficient evidence of the physical layout of the premises. In fact, Ms. Grutka testified that she could not recall whether the "waiting area" was in the front of the building, the back of the building, or in both areas. Moreover, Ms. Grutka did not "recall" if the most recent inspection report was posted anywhere else in the barbershop. The unreliability of Ms. Grutka's testimony is further demonstrated through the following exchange, which occurred during Archibald's cross-examination of her: Q: Questions for - - You said you never seen any of our license or anything in the back end? A: Yes, they were up - - not in the back. Your personal licenses I remember, you know, were in the back, but I don't recall the inspection sheet and stuff being moved to the back of the shop " Further undercutting the reliability of Ms. Grutka's testimony is her statement that the rule regarding the display of a barbershop license requires that the license be visibly within view of the front door. Contrary to Ms. Grutka's testimony, rule 61G3-19.009(2) states that "[t]he shop license shall be displayed within view of the front entrance or in the waiting area." Apparently, Ms. Grutka did not even consider whether the license was displayed in the "waiting area," because she could not identify the location of the "waiting area." Moreover, Ms. Grutka testified that she wrote in the report that the shop license was not "anywhere to be found in the shop." However, a review of the inspection report does not support her testimony. In fact, a section within the inspection report titled: "Remarks," was left blank. Nothing was written in the inspection report indicating that the shop license was nowhere in the barbershop. In sum, there is insufficient clear and convincing evidence to conclude that the barbershop license, rules of sanitation, or most recent inspection report were not properly displayed. Finally, during the February 9, 2012, inspection, Ms. Grutka testified she did not observe a recent sticker on the portable fire extinguisher indicating that it had been inspected. According to Ms. Grutka, portable fire extinguishers must be inspected on an annual basis, "as per the Fire Marshall, and they would have a sticker on them indicating that they had been inspected." At hearing, Archibald did not admit to the allegations of the Administrative Complaint. Rather, Archibald persuasively explained that if personal and business licenses and the rules of sanitation and most recent inspection report were not displayed during the February 9, 2012, inspection, it was because the property was in foreclosure, items had been removed from the walls, items were placed in boxes, and he was planning on moving the barbershop to another location. In fact, the barbershop vacated the premises sometime in 2013, and relocated to another shopping plaza. At the conclusion of the February 9, 2012, inspection, Ms. Grutka prepared and signed an inspection report indicating the violations noted in the report, and she informed Archibald of the alleged violations. Archibald acknowledged his receipt of the report. No evidence was presented indicating that a follow-up inspection of the barbershop was ever scheduled or occurred. No citation has ever been issued for the February 9, 2012, inspection. No evidence was presented establishing a prior history of persistent or flagrant violations of the same nature as those alleged in the Administrative Complaint. The evidence at hearing established that even if personal and business licenses, the rules of sanitation, and the most recent inspection report were not properly displayed on the date of the February 9, 2012, inspection, it was an isolated incident.2/ Importantly, the facts adduced at hearing do not clearly and convincingly establish that Archibald personally engaged in any misconduct resulting in the five charges which are the subject of the Administrative Complaint. The evidence failed to establish, clearly and convincingly, that Archibald personally committed, or is personally culpable for, a disciplinary offense which is the subject of the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent not guilty on all counts of the Administrative Complaint. DONE AND ENTERED this 26th day of February, 2014, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 2014.
Findings Of Fact On May 5, 1953 Petitioner issued barbershop license number BS0007761 to Respondent for the operation of Mr. S. Haircuttery, a barbershop located at 17846 South Dixie Highway, Miami, Florida. Petitioner's letter to Respondent dated May 5, 1983 states, "All persons employed as barbers or barber assistants are required to have a current and valid license." Respondent has maintained his license and operated Mr. S. Haircuttery, as owner, at all times material hereto. On October 16, 1984 Bettye C. Rogers, an inspector employed by Petitioner, entered Mr. S. Haircuttery to inspect the premises. The barbershop was very clean and sanitary, and had all required equipment. Ms. Rogers observed a person, later identified as Marietta Thompson, cutting a customer's hair. Upon inquiry it was determined that Marietta Thompson was not licensed at the time by the Barbers' Board or the Board of Cosmetology. Respondent admits that Marietta Thompson was not licensed at the time of the inspection. He points out, however, that her employment of four days was immediately terminated, and that she had been referred to him by a cosmetology school as a person who had passed her cosmetology exam and was just waiting to receive her license. Respondent has been licensed as a barber in Florida for approximately twenty years and as a cosmetologist for approximately seven years. During that time he has owned and operated four licensed shops and employed approximately fifteen licensed employees at his shops. The evidence establishes that the incident involving Marietta Thompson is Petitioner's only violation of the applicable licensing laws during the time he has been licensed. Marietta Thompson was employed by Respondent from October 13 to October 16, 1984. In making the above findings of fact, proposed findings submitted by Petitioner pursuant to Section 120.57(1)(b)4, F.S., have been considered. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings have been rejected as subordinate, cumulative, immaterial or unnecessary.
Recommendation Based upon the foregoing, it is recommended that petitioner issue a Final Order which imposes a reprimand against Respondent's barber shop license number BS0007761. DONE and ENTERED this 2nd day of April, 1985 at Tallahassee, Florida. DONALD D. CONN 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 2nd day of April, 1985
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 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
Findings Of Fact Albert Ackerstein is a currently licensed barber holding license number BB 0009065, and was so licensed at all times relevant to this proceeding. Albert's Barber Shop is a currently licensed barber shop holding license number BS 0001976, and was so licensed at all times relevant. Mario Burchianti was hired by Albert Ackerstein as a barber in 1977 when he held a current valid barber license and continued to work as a barber in Albert's Barber Shop until November, 1980, when he was dismissed for not having a current valid barber license. Mario Burchianti's barber license expired in 1978 due to his failure to renew. In order to obtain a new barber's license, he took the barber exam in September, 1980 and passed said barber exam in December, 1980. A license check performed by the Department of Professional Regulation in July, 1980 revealed one violation: Mr. Burchianti was unlicensed. A follow up license check performed by the Department in September, 1980, revealed the same violation. Mr. Ackerstein, who was unaware of the violation, became aware of the problem through the Department in October or November, 1980 and thereupon dismissed Mr. Burchianti. Petitioner's follow up investigation conducted in August, 1981 revealed no violation of any kind.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a final order fining each Respondent one hundred dollars. DONE and ENTERED this 28th day of April, 1982 at Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1982. COPIES FURNISHED: Drucilla E. Bell, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Adam Kurlander, Esquire Zedeck and Kurlander Post Office Box 600429 North Miami Beach, Florida 33162 Samuel R. Shorstein Secretary Old Courthouse Square Building 130 North Monroe Street Tallahassee, Florida 32301 Myrtle Aase Executive Director Board of Barbers Old Courthouse Square Building 130 North Monroe Street Tallahassee, Florida 32301
