Findings Of Fact Redman is licensed to own a barbershop in the state of Florida, holding license No. BS-0001690 for Don's Sportsman Barber Shop at 1814 Dean Road, Jacksonville, Florida. Redman is licensed to practice barbering in the state of Florida, holding license No. BB-0018729. On November 25, 1988, Eileen Thomas, an inspector for DPR, made a routine inspection of Don's Sportsman Barber Shop. During the inspection, Ms. Thomas found an excessive amount of hair on the shop's floor and baseboards, around the barbering stations and chairs, and in the shampoo bowls. An extremely large amount of hair was found accumulated in the ultraviolet sanitizing cabinets; also, at least one of these cabinets was not closed. Ms. Thomas found that a grey-white buildup covered the black shampoo bowls and their faucets and that the shampoo bowls had hair in them. Ms. Thomas found that dust and grime was accumulated on the baseboards and on the containers of shampoo and tonic. Further, the clean towels were stored in an open container under a chair in the shampoo area and a bird was being kept in a cage in an opened room adjacent to the shampoo area. DPR presented testimony regarding inspections performed on May 23 and July 19, 1989. The Administrative Complaint contains no allegations of fact regarding these subsequent inspections and Redman was not charged with any violation for these inspections. Hence testimony regarding these subsequent inspections is irrelevant and no findings of fact are or can be made from this testimony. Jimmy Hicks and Glen Lowe are barbers who work in Redman's shop. They acknowledged that they do not sweep up the hair on the floor after each customer. Lowe acknowledged that there is hair in at least one of the shop's Barbercyde containers. Hicks acknowledged that he may leave brushes lying out instead of being in a closed clean container. Redman stated that he had kept a bird in the back room of the shop until this inspection, at which time he removed the bird. Redman also acknowledged that the doors to the ultraviolet sanitizing cabinets are not always closed and that the sinks in his barbershop contains a tremendous amount of buildup from the minerals in the water. Redman recognized that clean towels were kept in an open box under the shampoo chair until after this inspection, at which time he moved them to a closed container. When Redman and the other barbers in his shop sweep hair up from the floor, they place it in a box in the back room of the barbershop. Redman has been previously disciplined by the Barbers' Board in Case No. 0092898 (DOAH Case No. 88-1811) for failure to meet the sanitary requirements for a barbershop. That Final Order incorporated the Recommended Order wherein it was noted that Redman had a dog on the premises and that a rule prohibited pets in a barbershop.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Barbers' Board, enter a Final Order and therein Find Roy D. Redman guilty of the violations alleged in the Administrative Complaint; and Assess an administrative fine of $500.00 against Roy D. Redman. DONE and ENTERED this 21st day of September, 1989, in Tallahassee, Florida. DIANE K. KIESLING 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 21st day of September, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1518 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-7(1-7); 16- 20(9-13); 21(13); 24(14); and 25(15). Proposed findings of fact 8-15, 22, and 23 are rejected as being irrelevant to any charges contained in the Administrative Complaint. Proposed finding of fact 26 is unnecessary. COPIES FURNISHED: Charles F. Tunnicliff Chief Attorney Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Roy D. Redman 1814 Dean Road Jacksonville, FL 32216 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Myrtle Aase Executive Director Barbers' Board Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact Bart Sklansky is the President of Sunshine Hair Fashions, Inc., which is the owner of a salon operating under the name of Sunshine Scissors, located at 5568 Flamingo Road, cooper city, Florida. At all times material hereto, Sunshine Hair Fashions, Inc., was licensed by the State of Florida, to operate a cosmetology salon under License No. CE0040983, and the Sunshine Scissors Salon located at 5568 Flamingo Road, Cooper City, Florida operated under that license. Mr. Sklansky owns several other salons and he visits each location from time to time to oversee the operations. Petitioner was and is the state agency charged with regulating the practice of cosmetology in the State of Florida. On January 20, 1988, Leonard Baldwin, an inspector for the Department of Professional Regulation, entered the Sunshine Scissors Salon (hereinafter the "Salon") for the purpose of conducting a routine inspection of the premises. Mr. Baldwin has been an inspector for the Department of Professional Regulation for approximately four years. As part of his job, he inspects approximately 32 cosmetology salons per week and prepares a written inspection report reflecting his visit. He generally reviews those reports with the employees who are present. He will generally inspect a salon only once a year unless there are problems. At the time of Mr. Baldwin's inspection in January of 1988, the Salon was basically in good shape with the exception of the work station of one of the operators, Kenneth Hayman. The shop is professionally cleaned once a week and the employees make sure that the floors, mirrors and waiting areas are clean at all times. However, each individual operator is responsible for the cleanliness of his particular work station. While Mr. Hayman is not deliberately unsanitary, he is sometimes careless and needs constant prodding and reminders to keep his work station clean. As noted on his inspection report (Petitioner's Exhibit 3), Mr. Baldwin found certain conditions which he felt were unsatisfactory during his January 20, 1988 visit. Among the conditions he noted were the following: the back bar of at least one of the work stations was dirty and had excessive dust; there was excessive hair on the floor; combs and brushes from at least one of the work stations contained excessive hair; and it appeared that the implements and utensils from at least one work station were not being properly cleansed, sanitized, or stored. However, no direct testimony was presented as to the proper method for sanitizing or cleaning the implements and no evidence was presented as to how Respondent's procedures failed to meet the regulatory standards. Although Mr. Baldwin's investigation report (Exhibit 3) indicates as an additional deficiency that "sanitary towels/neck strips were not being placed around patrons necks," no explanation was given as to the basis for this noted deficiency and no direct testimony was offered to support this contention. All of these deficiencies, identified under the pertinent rules of the Board's, were brought to the attention of Pam Greco, one of the operators at the Salon. Bart Sklansky was not made aware of the deficiencies until several months later. He never noticed any problems during his visits to the Salon. On October 2, 1988, Mr. Baldwin again inspected the Salon. The general condition of the shop was satisfactory. However, the work station of Kenneth Hayman was again found deficient in certain areas. More specifically, the back bar area around this work station was dirty and it appeared that utensils may have been used on more than one patron without being sanitized. Mr. Baldwin did not explain how he reached this conclusion. After the second inspection, Mr. Hayman paid more attention to the cleanliness of his work station and kept it clean the majority of the time. However, on December 9, 1988, Mr. Baldwin against inspected the salon and noted similar deficiencies to those he found during the October 1988 inspection. Mr. Hayman's work station has never been the source of any customer complaints. Mr. Hayman has been informed that his work station must be kept clean and he has kept his work station clean since the last inspection.
Recommendation Based on all of the foregoing, it is RECOMMENDED that the Board of cosmetology enter a final order in this case finding the Respondent guilty of violating Section 477.029(1)(9), Florida Statutes, and imposing a penalty consisting of a reprimand and an administrative fine in the total amount of $100. DONE and ENTERED this 5th day of May, 1989, in Tallahassee, Florida. J. STEPHEN MENTON 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 5th day or May, 1989. COPIES FURNISHED: Tobi C. Pam Staff Attorney Department of Professional Regulation 130 N. Monroe Street Tallahassee, FL 32399-0750 Bart Sklansky Sunshine Hair Fashions Post Office Box 601667 North Miami Beach, FL 33160 Myrtle Aase Board of Cosmetology Department of Professional Regulation 130 N. Monroe Street Tallahassee, FL 32399-0750 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 N. Monroe Street Tallahassee, FL 32399-075010
Findings Of Fact Respondent Hair and Company currently holds License No. CE 0024217 and is a business at 1930 Hallandale Boulevard, Hallandale, Florida Respondent Ettie Studnik is the wife of the owner of Hair and Company and the bookkeeper and manager of the salon. Three (3) employees of the Respondent salon, Elena Sirak, Jethsabel Morales and Arelis Penton, were not licensed cosmetologists during the period of time pertinent to this hearing between November, 1979 and February 20, 1980. On November 27, 1979 an investigator employed by Petitioner Department, Providence J. Padrick, issued a notice of violation to Respondent Studnik for permitting an unlicensed person, Elena Sirak, to shampoo the heed of a paying customer. Sirak was also given a notice of violation. (Transcript, pages 10 through 12). Thereafter, upon a second inspection of the salon on February 20, 1980, Padrick found the same employee again giving a paying customer a shampoo. Two (2) other unlicensed persons employed by Respondent salon were also performing shampoos for paying customers. Padrick issued notices of violation to Morales and Penton, but Sirak left the salon before she could issue a second notice of violation to her. A second notice of violation was issued to Respondent Ettie Studnik as owner of the salon. The three (3) unlicensed employees of the Respondent salon were students at local beauty schools and were employed by Respondent Studnik for cleaning the salon. They were permitted to shampoo customers at times when there were numerous customers waiting in the salon to he served. (Transcript, pages 11, 12. 27, 29. 32 and 33) At the time of the first inspection in November, 1979 Padrick discussed the violation with Respondent Studnik, who represented herself as the owner of Hair and Company, and told her that unlicensed persons were not allowed to shampoo the paying customers. During the hearing the owner of Hair and Company, Neal Studnik, stated that Respondent Ettie Studnik is his wife and operates the salon in his absence. Respondent Studnik acted in behalf of the owner, under his supervision and with his consent at the time pertinent to the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that a final order be entered censuring the owner of the Respondent Hair and Company and assessing a civil penalty not to exceed $500.00. DONE and ORDERED this 24th day of June, 1981, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND 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 24th day of June, 1981. COPIES FURNISHED: Drucilla E Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Michael H. Weisser, Esquire Skylake State Bank Building 1550 NE Miami Gardens Drive North Miami Beach, Florida 33179 Nancy Kelley Wittenberg, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue As to DOAH Case 06-2329PL, whether Ms. Calix violated the provisions of Section 477.0265(1), Florida Statutes (2005),2 by engaging in the practice of cosmetology without an active license as alleged in the subject Administrative Complaint. As to DOAH Case 06-2330, whether Les Scissors Unisex Salon (Les Scissors) violated Section 477.0265(1)(b)2., Florida Statutes, by permitting an unlicensed person (Ms. Calix) perform cosmetology services as alleged in the subject Administrative Complaint.
Findings Of Fact At all times relevant to this proceeding, Les Scissors held Cosmetology Salon license number CE9961882 issued by the Board of Cosmetology. At all times relevant to this proceeding, Ms. Calix was the owner of Les Scissors. At no time relevant to this proceeding did Ms. Calix hold any license issued by the Board of Cosmetology. At all times relevant to this proceeding, Ms. Delrio was an inspector employed by Petitioner. On February 8, 2006, Ms. Delrio inspected the premises of Les Scissors. This inspection occurred during the noon hour. Ms. Delrio saw Ms. Calix giving a man a manicure. Ms. Delrio then testified to two statements made by the man she saw in Les Scissors. First, she testified that he told her that he was a customer. Second, she testified that he said that he was paying seven dollars for the manicure. This man was not identified by name by Ms. Delrio. Ms. Delrio did not see the man pay for his manicure. In February 2006, Ms. Calix was attending a school to become licensed as a cosmetologist. Ms. Calix testified that the man Ms. Delrio saw was not a customer, but he was a friend to whom she was giving a manicure in preparation for a test she was to take at her school. Ms. Calix denied that she charged her friend for the manicure. Ms. Calix testified that the licensed personnel of Les Scissors were out to lunch when the inspector came. Ms. Calix further testified that she used the noon hour to practice for the examination while she watched the premises. Mr. Tejeda testified that he came into Les Scissors toward the end of Ms. Delrio’s inspection. Mr. Tejeda testified that the man identified himself as a customer. There was a conflict in the evidence as to the status of the man receiving the manicure from Ms. Calix on the date of the inspection. The testimony of Ms. Delrio and Mr. Tejeda as to what the man in Les Scissors told them on February 6, 2006, is hearsay within the meaning of Section 90.801(1)(b), Florida Statutes.4 That hearsay evidence, standing alone, was insufficient to establish that the man was a customer or that he was obligated to pay for the manicure he was receiving.5 Moreover, the undersigned finds Ms. Calix’s explanation of the circumstances observed by the inspector and her supervisor to be credible. The conflict in the evidence is resolved by finding that Petitioner failed to prove that the man receiving the manicure from Ms. Calix at the time of the inspection was a customer, and Petitioner failed to prove that the man was obligated to pay for the manicure.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner dismiss both Administrative Complaints. DONE AND ENTERED this 10th day of October, 2006, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 10th day of October, 2006.
The Issue The issue in this case is whether Respondent's license as a cosmetology specialist should be suspended, revoked, or otherwise disciplined for the alleged violation of Chapter 477, Florida Statutes, as set forth in the Administrative Complaint.
Findings Of Fact At all times pertinent to this proceeding, Respondent was licensed by the State of Florida, Board of Cosmetology, as a nail specialist having been issued license no. FV 513107. Respondent obtained her license by examination. Respondent resides at 286 31st Avenue, Vero Beach, Florida. Respondent has obtained an occupational license from Indian River County to operate as a manicurist, pedicurist or nail extension specialist out of her home. Respondent used her state license to obtain her occupational license from Indian River County. Respondent has not obtained a salon license from the Board of Cosmetology. There is no dispute that Respondent operates her business out of her home. However, there is a dispute as to exactly what services are performed there. Respondent testified that she does not and has never performed pedicures at her home. Instead, the only services she offers are foot massages and/or reflexology. Petitioner's investigation of Respondent was initiated when an allegation was made that Respondent was practicing massage in her home without a license. Petitioner's investigator interviewed Respondent and contends that she admitted she was performing pedicures in her home. However, Respondent contends that she only advised the investigator that she "worked on people's feet" and that she has never performed a pedicure. The evidence established that Respondent does not perform pedicures or other traditional cosmetology services out of her house. Respondent does perform foot massages and/or reflexology out of her house. Respondent had previously practiced reflexology in another state. Upon moving to Florida, she tried to determine the legal steps necessary to continue her practice in this state. Since pedicure is defined in Chapter 477 to include massaging the feet, she sought a license for this specialty service. She has never sought to operate a traditional salon out of her house. Respondent did not think that she needed a salon license to work on people's feet. In a Notice of Cease and Desist dated April 25, 1990, the Department of Professional Regulation has notified Respondent that engaging in the services of reflexology while not duly licensed by the Board of Massage constitutes the unlicensed practice of massage in violation of Section 480, Florida Statutes. The purported violation of Chapter 480 is not part of this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Cosmetology enter a Final Order finding Respondent guilty of a violation of Section 477.0265(1)(b)(1), and therefore, Section 477.029(h), issuing a reprimand and imposing a fine of $50.00. DONE and ENTERED this 20th day of December 1990, in Tallahassee, Florida. J. STEPHEN MENTON 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 20th day of December 1990. APPENDIX Petitioner submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection Adopted in substance in Finding of Fact 1 Adopted in pertinent part in Findings of Fact 6, 7 and 8 Adopted in pertinent part in Findings of Fact 3 Adopted in substance in Finding of Fact 4 Rejected as irrelevant Copies Furnished To: Laura P. Gaffney, Esquire Senior Attorney Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Ms. Kathleen Demarzo 286 31st Avenue, S.W. Vero Beach, Florida Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0729 Myrtle Aase Executive Director Florida Department of Cosmetology 1940 North Monroe Street Tallahassee, Florida 32399-0792 =================================================================
The Issue The issues are whether Petitioner has sufficiently completed the requirements necessary to receive a license to practice orthotic fitting from the Board of Orthotists and Prosthetists and whether the Petitioner has violated section 468.809, Florida Statutes, by practicing orthotics without a license or registration.
Findings Of Fact 1. The two rules governing the requirements for licensure as on orthotic fitter in the state of Florida are found in section 469.803(5)(c), Florida Statutes (2010), and Florida Administrative Code Rule 64B14-4.110(1)(b). Section 468.803(5)(c) requires: (c) to be licensed as an orthotic fitter the applicant must pay a license fee not to exceed $500 and must have: A high school diploma or its equivalent; A minimum of 40 hours of training in orthotics education, as approved by the board; Two years of supervised experience in orthotics acquired after completion of the required education, as approved by the board; and Completed the mandatory courses. Petitioner requested information from the Board regarding the requirements for licensure and received a publication containing both chapter 468, Florida Statutes, Part XIV, and rule 64B14. He completed the prerequisite education required by section 468.803(5)(c), on June 22, 2009. However, Petitioner testified that he only reviewed the requirements identified in section 468.803(5)(c) and did not consider the definition of "experience" contained in rule 64B14-4.110(1), for applicants for licensure as an orthotic fitter. Florida Administrative Code Rule 64B14-4.110(1)(b) construes supervised "experience" to require an applicant to complete two years of experience in orthotics under the supervision of a Florida licensed orthotist. The two years of experience may only begin accruing after the applicant has successfully completed the requisite education courses. Petitioner applied for a license in orthotic fitting on November 22, 2010, only 17 months after the completion date of his educational courses. Assuming Petitioner started gaining experience immediately upon completion of his education courses, Petitioner was still seven months shy of the two years of experience required to obtain a license as an orthotic fitter. Petitioner testified at hearing regarding the orthotic experience gained prior to applying for licensure. According to his testimony, his experience consisted of activity more accurately described as assistance than experience. The experience described was limited to helping patients stand up, holding a measuring stick, assisting with paperwork, and explaining paperwork to the patient. Petitioner’s role involved little more than observing and occasionally assisting a licensed physical therapist. This is surely not what is meant by “experience in orthotics under the direct supervision of a Florida licensed orthotist,” as contemplated by rule 64B14- 4.110(1)(b). The assistance provided by Petitioner was performed under the supervision of a licensed physical therapist. While his actions, as described at hearing, did not meet the requirements for supervision specified by rule 64B14-9.110, they also did not rise to the level of unlicensed activity.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered by the Board of Orthotists and Prosthetists denying Petitioner’s application for licensure as an orthotic fitter. DONE AND ENTERED this 2nd day of August, 2011, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 2nd day of August, 2011. COPIES FURNISHED: Frank Edward Maloney, Jr., Esquire Macclenny City Attorney 445 East Macclenny Avenue, Suite 1 Macclenny, Florida 32063-2217 Lee Ann Gustafson, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-6536 Bruce Deterding, Executive Director Board of Orthotists and Prosthetists Department of Health 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-1701 Nicholas Romanello, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
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.
