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.
The Issue The issues for determination are whether Respondent violated Section 476.194(1)(c), Florida Statutes (1995), 1/ by hiring an unlicensed person to practice barbering and, if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to barbers. Petitioner is also responsible for regulating the practice of barbering on behalf of the state. Respondent is licensed as a barber. Respondent holds license number BS 0008619. On or before October 15, 1994, Respondent hired Mr. Eric A. McClenton to practice barbering in Respondent's barber shop. Mr. McClenton is not licensed as a barber. 2/ Respondent hired Mr. McClenton to perform barbering services as an independent contractor. Mr. McClenton paid Respondent $75 monthly for the use of one of the barber chairs in Respondent's shop and paid for his own equipment and supplies. Mr. McClenton performed barbering services within the meaning of Section 476.034(2). Mr. McClenton cut hair for approximately four months. He cut approximately 100 heads of hair for a fee of $6 or $7 a head. Respondent knew or should have known that Mr. McClenton was not licensed as a barber. Respondent allowed Mr. McClenton to cut hair before seeing Mr. McClenton's license. When Respondent hired Mr. McClenton, Respondent asked to see Mr. McClenton's license. Mr. McClenton verbally represented that he was licensed but used various excuses over time to delay or avoid showing his license to Respondent. Mr. McClenton never displayed a license by the chair he operated in Respondent's shop. Petitioner issued separate citations to Respondent and Mr. McClenton. Petitioner issued a citation to Respondent imposing a fine of $250. Respondent did not pay the fine.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Section 476.194(1)(c) and imposing an administrative fine of $250. RECOMMENDED this 14th day of August, 1996, in Tallahassee, Florida. DANIEL MANRY, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 1996.
The Issue 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 The issue for consideration in this matter is whether Respondent's license as a barber in Florida should be disciplined because of the matters set out in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Barber's Board, was the state agency responsible for the licensing of barbers and the regulation of the barbering profession in Florida. The Respondent, Ocie Phillips, Sr., and his sons, Ocie Phillips, Jr. and Kenneth Phillips, were all licensed as barbers in this state. On October 14, 1992, Leonard Baldwin, an inspector with the Department of Professional Regulation with responsibility for inspecting barber shops in Florida, entered Respondent's shop to conduct a routine, un-announced inspection. Only Kenneth Phillips was present at the time. During his inspection of Respondent's shop, Mr. Baldwin reportedly found several violations of the states sanitation standards applicable to Barber shops. These included: garbage was not kept in a clean closed container/receptacle. equipment was not maintained in a safe/ sanitary manner. cleaners/bacterial agents were not being regularly used. there was not one sink (lavatory) per two barber chairs. combs/brushes were not sanitized after each patron. wet sanitizers were not being utilized on the premises. all equipment was not kept free of hair, or cleansed, or sanitized. All cleansed/sanitized equipment was not being stored in a clean closed cabinet or container, and work areas/drawers for equipment storage only were not kept clean/sanitized. Mr. Baldwin also noted that the entire shop needed dusting and cleaning; the sinks were dirty; combs and brushes were being kept out on the back bar without sanitizing, as was other equipment; the display overhead needed cleaning; and the walls had clothes hanging on them. Mr. Phillips denies all of the allegations made by Mr. Baldwin. He and his sons all contend that the shop stays clean. He claims that the last inspector, Mr. Morganstern, who inspected on February 11, 1992, found no sanitary deficiencies at all. This shop and the Respondent were the subject of two prior disciplinary actions taken by the department for un-sanitary conditions discovered in inspections in January and May, 1991. As a result of the former, Mr. Phillips paid a fine of $500.00 and his license was suspended for 30 days, (stayed). As to the latter, he again paid a fine of $500.00. After paying these two fines, he claims, he determined he could not afford to pay any more and made a decided effort to have his shop conform to the state standards. Mr. Morganstern was the inspector in each of these two prior cases and he suggested that Mr. Phillips install new cabinets with space for storage in them. This was done at an expense of several thousand dollars. After the cabinets were complete, Mr. Baldwin conducted his inspection and charged Respondent with many of the same deficiencies previously identified by Mr. Morganstern. Mr. Baldwin claims that to the best of his recollection, the cabinets had not been installed by the time of his inspection, but he cannot be sure. Mr. Phillips and Kenneth both claim it was done before the inspection. Neither party is sure, however, and it is found that Petitioner has not established by clear and convincing evidence that the required cabinetry had not been done at the time of the inspection. Mr. Baldwin is also alleged to have orally observed on the October 14 visit that the shop looked "OK" but still was not right. Respondent presented a video recording of the interior of the shop which shows the new cabinets and sinks. It also shows storage space for towels and equipment. Kenneth Phillips, the only person in the shop when Mr. Baldwin came in to conduct his inspection before the shop was open on a Monday morning, claims he had not had a chance to clean the shop before Baldwin's arrival. He had been in church all the previous day, (Sunday), and had planned to do all that before the shop was opened for business. He had taken an AIDS prevention course previously and had learned there that it was important to sterilize instruments to prevent the spread of the disease. Nonetheless, Mr. Baldwin observed during his visit that the barbering utensils were scattered around and not in sterilizers, and his experience as a licensed barber, who has done this type of inspection for many years, tells him that the un-sanitary condition of the Respondent's shop was not a recent occurrence but had existed for some time. It is found, therefore, that sanitizers were not being used properly at the time of the inspection nor was garbage being properly stored as reflected on inspection form items 0210, 0215, 0216, 0224, 0225, and 0226. The remaining items, which are related to the construction of the storage cabinets, have not been proven to be violations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered in this case directing that the barber's license of Respondent, Ocie Phillips, Sr., be placed on probation for such a period and under such reasonable conditions as the board may deem appropriate. RECOMMENDED this 28 day of August, 1992, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 28 day of August, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-3025 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. FOR THE PETITIONER: - 3. Accepted and incorporated herein. Accepted and incorporated herein except that the word "the" before the work "sanitation" be changed to reflect "some." Accepted. Not a Finding of Fact but a recitation of testimony. Accepted. Not a Finding of Fact but a restatement of testimony. First sentence accepted. Second sentence rejected as not a Findings of Fact but a comment on the credibility of the evidence. Not a Finding of Fact but a comment on the credibility of the evidence. Accepted only as showing prior disciplinary record of the witnesses. & 13. Accepted and incorporater herein. 14. Not a Finding of Fact but a comment on the credibility of Respondent. COPIES FURNISHED: Christopher L. Hinson, CLA E. Renee Alsobrook, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ocie Phillips, Sr. 661 Northwest 15th Manor Pompano Beach, Florida 33060 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kaye Howerton Executive Director Barber's Board DPR 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Antonio Castellano has been a master barber for more than 30 years and has been continuously licensed as a barber in Florida since 1970 (Exhibit 1). The International Inn Barber Shop is located on the ground floor of the International Inn at 3705 Henderson Boulevard, Tampa, Florida, which is owned by William A. Watson. There are three barber chairs in this shop, and all fixtures in the barber shop are owned by Watson. The barber shop has been licensed by Watson since 1982. The last license issued to Watson for this shop was issued December 4, 1986 to expire September 30, 1988 (Exhibit 3). Since 1982, Watson has hired barbers to operate the shop on commission. However, this has not proved satisfactory, and Watson concluded to lease the shop and have the lessee responsible for the various licenses required. In carrying out this plan, a LEASE (Exhibit 5) was entered into between Watson and Respondent on July 31, 1987, which provided Castellano would be totally responsible for the operation of this shop and would obtain the necessary city and state licenses required. The lease commenced August 1, 1987. This barber shop was inspected on or about November 18, 1987, by Judy Denchfield, an inspector from the Department of Professional Regulation. When told by Respondent that he was the lessor, Denchfield, without looking at the lease and aware that the shop license issued to Watson was posted in the shop and had not expired, assumed Respondent was the owner of the shop for licensing purposes and cited Respondent for violating Sections 476.204(1)(b) and 476.194(1)(e)1, Florida Statutes. These proceedings duly followed.
The Issue The issues in these cases concern several administrative complaints brought by the State of Florida, Department of Professional Regulation against Respondent. In DOAH Case No. 89-4454/DPR Case No. 0093417, Respondent is alleged to have employed a number of individuals to practice as barber instructors who have not been licensed by the State of Florida. In addition, allegations were placed that Respondent had not met sanitation standards required by law; that barbering students and instructor trainees were not under the constant supervision of a licensed instructor; that insufficient numbers of instructors were provided based upon the preceding months' average daily attendance; that a current inspection rating sheet, as well as a copy of the sanitation rules were not displayed; that a full-time instructor statement of employment was not available; that students/school contracts were not available and that a drinking fountain of bottled water needed to be refilled, as revealed in an inspection of January 7, 1988. In DOAH Case No. 89-4453/DPR Case No. 0097551 pertaining to an inspection of April 8, 1988, Respondent is said to have employed a Calvin Gates to practice as a barber instructor without Gates having been issued a license from the State of Florida. Finally, DOAH Case No. 89- 4452/DPR Case No. 0108179 alleges that by inspection of November 17, 1988, it was revealed that Joseph Kaufmann had been employed to teach barbering by Respondent and was operating on an expired barber instructor's license, which had expired approximately August 1, 1988.
Findings Of Fact Respondent is a licensed barber school in the State of Florida which operated at 5863 University Boulevard W. and 4416 Brentwood Avenue in Jacksonville, Florida, at times significant to these administrative complaints. On January 7, 1988, Gail Hand, an inspector for Petitioner, inspected the Brentwood Avenue facility. This inspection was a routine quarterly inspection. The Jacksonville, Florida, operations of the Roffler Hair Design College are 50% owned by Stewart Arnett Smith, Sr. and 50% owned by Stewart Arnett Smith, Jr., his son. On January 7, 1988, Hand was accompanied in her inspection by Cheryl Baker, whom she understood to be the manager based upon Baker's remarks. In fact, Baker was a secretary; and the actual manager of the facility was an individual named Mattz, who was out ill on this date. Mattz, at that time, was a licensed barber instructor. Neither of the owners were in attendance at the commencement of the inspection. Arnett Smith, Jr. had left to go to his other facility on University Boulevard. He was summoned back to the Brentwood Avenue barber school to participate in the inspection. He arrived approximately 20 to 40 minutes later. During the inspection, Velma Chambers was observed by Hand to be seated in a classroom while a student spoke to the class. At this time, Chambers was an instructor trainee. She had entered into a contract with Respondent on May 14, 1987 to be completed by November 14, 1987 pertaining to 600 hours of course instruction directed toward her becoming a barber instructor. Nonetheless, beyond the date of November 14, 1987, she was still at the school in a capacity, which was other than a licensed instructor in Florida, and under these facts is found to have been a barber instructor trainee on this date. In addition, a work schedule for instructors at the facility, be they licensed barber instructors or instructor trainees, showed Chambers to be filling the role of instructor at the school. Although this schedule had not been prepared by the owners, it was provided to Hand by the younger Smith upon his arrival at Brentwood Avenue on the inspection date. Baker had also pointed Chambers out as being one of the instructors in the facility. Calvin Gates, who was on the floor in the Brentwood Avenue facility, was pointed out by Baker as the instructor on the floor. The floor is where services are given to the public, as distinguished from the classroom, where theory is taught. Gates was not a licensed barber instructor in Florida on the date in question. He, too, had entered into a contract to receive course work toward his instructor's license. His contract with Respondent commenced on September 15, 1987 to be consummated on March 15, 1988. A Dave Dison was found in a room where mannequins are kept and the students are allowed to practice. Dison was pointed out by Baker as being certified for the new students, and Baker commented that Dison's license was at the University Boulevard facility. This is taken to mean that Dison was a licensed barber instructor, whose license was not available at the Brentwood Avenue facility. Having considered the remarks of Baker made to Hand and the testimony of the younger Smith at hearing, it is unclear whether his employment was that of licensed instructor or as instructor trainee waiting a license examination to become a barber instructor. In either case, he had not been licensed by the State of Florida as a barber instructor on the date of the inspection. His name does not appear in the schedule of instructors; but on the date of inspection, he was observed instructing new students using mannequins. According to the investigative report, which comments are credited, the younger Smith admitted to Hand that Dison did not have a Florida license and that Dison had commented to Smith that he, Dison, was having problems with his license in Mississippi. Subsequent to the time of inspection, Dison was dismissed as an employee of Respondent. Terry B. Collier and Patricia Frances Wilson were shown on the schedule to have instructor duties related to the floor duty for Collier and classroom duty for Wilson. Shirley Johnson was shown as having unspecified duties from 9:00 a.m. to 1:00 p.m. on Thursday. None of these persons were in attendance on the date of inspection, nor did they have barber instructor licenses at that time. It can be fairly inferred that they were considered by Respondent to be instructor trainees. It cannot be fairly inferred that any knowledge which they might impart on some date other than the inspection date would be in a setting in which the ratio of students to licensed instructors was not in keeping with legal requirement or that they were allowed to pursue their duties as trainee instructors without appropriate supervision from licensed instructors. The process of teaching people to become instructors contemplates the opportunity for those persons to also instruct while undergoing their training. To be successful in an allegation of impropriety by Respondent, proof has to be offered that these persons were, on some date, allowed to instruct without appropriate supervision and in a situation in which the ratio of licensed instructors to students was inadequate. That was not shown as it pertains to the three trainee instructors not in attendance at the time of inspection. The fact that the younger Smith told Hand that he thought the instructor trainees could teach students and be counted as part of the required number of instructors does not change this impression. In addition to Mattz, who was out ill, an individual whose name is Parks was scheduled to work at the Brentwood Avenue facility on the inspection date. Parks was a licensed instructor at the time. He had left the building for some undisclosed reason before the time of the inspection. A Mr. Lewis was also a licensed instructor, who was scheduled to work at the Brentwood Avenue facility on that date; but he was not due in the facility until 1:00 p.m. and had not arrived at the time of the inspection. Although the younger Smith has an instructor's license, he was not performing the function of instructor on the inspection date and was not listed on the schedule of instructors. Effectively, this meant that although students were undergoing instruction, that instruction was being provided by persons who were not licensed instructors and under the supervision of licensed instructors. On the date of the inspection, Baker calculated the average daily attendance to be 105 students. She had some difficulty in arriving at this figure. The younger Smith spoke to Hand on January 11, 1988 by telephone in which he suggested that that figure of 105 should be corrected to 56, based upon some mistake made by the secretary. On January 15, 1988, a letter bearing the signature of Cheryl Baker was written concerning the average daily attendance in which it was reported that she had stated the attendance as 90 and that the correct daily attendance should be 59. Whatever the true figure, students were in attendance and they were not receiving instruction from licensed barber instructors. The inspection also revealed that the current inspection rating sheet and sanitation rules had not been posted or displayed. The explanation by Smith was that the facility had been recently painted and that they had not been put back in their usual place. Hand asked for a copy of the missing inspection rating sheet and sanitation rules but does not recall whether she was shown a copy of these items. The reason why the items pertaining to the current inspection rating sheet and sanitation rules were not produced, based upon Hand's recollection, was that they could not be found. On April 8, 1988, Hand returned to the Brentwood Avenue facility for further inspection and observed Gates teaching. On that occasion, he was introduced by Mattz as the other instructor on duty, with Mattz being one of the two instructors. Seventeen students were present at that time. Two instructors would have been needed to offer instruction to that many students. The average daily attendance on that date was 72 students. On that date, Gates was not licensed by the State of Florida as a barber instructor. On a later date, Hand spoke to the younger Smith about the inspection. On this occasion, Smith changed his point of view from the situation in which he had commented at the first inspection of January 17, 1988. In that earlier inspection, he had stated that he thought that trainees could teach students and be counted as the required number of instructors. In the discussion regarding the April 8, 1988 inspection, he indicated that he did not count instructor trainees as instructors and that Hand must have misunderstood his comments during the previous inspection. On the occasion of the inspection of April 8, 1988, Hand was provided confirmation of Gates' employment, which stated that he was employed as an instructor at the school. The younger Smith tried to explain the circumstance with Gates on the basis that Gates had already taken his barber instructor test and that he had been notified that he had failed and that he had to retake the test and had appealed it with success. All of this information is hearsay and not subject to use for fact finding. Regardless of the true situation of Gates' attempt to gain his barber instructor license, he did not have a license on April 8, 1988 and should not have been allowed to instruct and be counted in the census of licensed instructors. On November 17, 1988, Hand conducted a routine inspection of the University Boulevard West facility. She found Joseph Kaufmann practicing with an expired instructor's license which was displayed. Kaufmann told Hand that he had renewed his license in August of 1988 but that it was returned with a request for an additional $50.00 late fee. Respondent's Exhibit No. 3 admitted into evidence is a form dated August 2, 1988 pertaining to this license and states that the renewal and fee had been postmarked after the expiration date of July 31, 1988. As a consequence, the basic fee of $50.00 was being returned with the expectation that the request for relicensure should be resubmitted with a total amount of $100.00 being paid, $50.00 for the basic license and $50.00 for a penalty and for reinstatement. Respondent's Exhibit No. 3A admitted into evidence is another form dated December 1, 1988 from Petitioner which states that the renewal and check in the amount of $100.00 was being returned because the request was being processed and the enclosed check was, not required. Respondent's Exhibit No. 4 admitted into evidence is a copy of postmarks of August 1, 1988 purportedly from Kaufmann, and November 29, 1988, again, purportedly from Kaufmann. Respondent's Exhibit No. 2 admitted into evidence is a letter from Mr. Tunnicliff, as chief attorney for the Department of Professional Regulation, addressed to Kaufmann, in which it is indicated that any action against Kaufmann was being dismissed associated with the complaint that Kaufmann was practicing with an expired instructor's license. It indicates that although probable cause was believed to exist, that Kaufmann had violated practice standards, in light of the circumstances, it was determined to dismiss the action. This is said to have been based upon the perception that while Kaufmann was practicing with an expired license because of miscommunication between Kaufmann and the Barbers Board, there had been a delay in the renewal of the license. Respondent was notified by telephone on November 22, 1988 concerning the Kaufmann situation. The younger Smith told Hand in that telephone conversation that Kaufmann had renewed his license and had shown Respondent's representative, the younger Smith, a copy of a money order received. Kaufmann had told Hand that on August 1, 1988, he had resubmitted his basic fee with an additional $50.00. Kaufmann showed Hand a copy of a money order receipt with no date. He did not have any correspondence available that he had received from Petitioner concerning his renewal. Hand checked with the office of the Barbers Board on November 21, 1988 and was told that the license had not been renewed and no money had been received. Kaufmann told Hand on the inspection date that because of some problems with mail, they received his money and sent it back because it was late and said that he owed another $50.00 which coincides with the remarks of Respondent's Exhibit No. 3. By contrast, in the conversation of November 21, 1988 between Hand and the Barbers Board, Hand was being told that the Barbers Board had received no money. The younger Smith, with the indication of a money order being sent by Kaufmann to renew his barber instructor license and a remark that he had sent his money in and that he had not received the license renewal back, assumed that things were acceptable. The younger Smith also took solace in the fact that there are problems at times with license renewals, which have to be rectified. Nonetheless, it is evident that Kaufmann was operating as a licensed instructor on November 17, 1988 without having received his license renewal and under the auspice of a license that was being displayed and clearly showed that it was no longer in effect.
Recommendation Based upon the consideration of the facts and the Conclusions of Law, it is RECOMMENDED that a Final Order be entered which fines Respondent in the amount of $1,250.00 and entering a letter of reprimand in the disciplinary file associated with DOAH Case No. 89-4452/DPR Case No. 0108179. DONE and ORDERED this 31st day of October, 1989, in Tallahassee, Florida. CHARLES C. ADAMS, 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 31st day of October, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 89-4452, 89-4453, 89-4454 The following disposition is made of the proposed facts of the parties: Petitioner's Facts Paragraphs 1 through 3 are subordinate to facts found. Paragraph 4 is subordinate to facts found, except for its reference to the inspection date as being April 13, 1988. The inspection date was April 8, 1988. Paragraph 5 is subordinate to facts found as far as it is stated in the unnumbered page 4. It appears that some of the Proposed Recommended Order is missing to include the balance of the fact finding at an unnumbered page 5. Respondent's Facts The facts pertaining to DOAH Case No. 89-4452 are subordinate to facts found. The facts pertaining to DOAH Case No. 89-4453 are rejected. The documented information related to the Calvin Gates contract, which is Respondent's Exhibit No. 6 admitted into evidence, shows the conclusion of his training on March 15, 1988, before the inspection of April 8, 1988. The relevant fact is that Gates was not a licensed instructor on April 8, 1988. The comments pertaining to DOAH Case No. 89-4454, which refer to a letter of September 1, 1988 from Robert C. Kent, Esquire, have been taken into account in the fact finding in the Recommended Order. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Stewart Arnett Smith, Jr. 5110 University Boulevard West Jacksonville, Florida 32216 Samuel L. Ferguson, Executive Director Department of Education State Board of Independent Postsecondary Vocational, Technical Trade and Business Schools 209 Collins Building Tallahassee, Florida 32399-0400 Kenneth E. Easley, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Myrtle Aase, Executive Director Department of Professional Regulation Barbers Board 1940 North Monroe Street Tallahassee, Florida 32399-0792 Robert C. Kent, Esquire 1532 Atlantic Boulevard Post Office Box 10174 Jacksonville, Florida 32207 Charles S. Ruberg, Esquire Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue Should the Petitioner be licensed in Florida as a barber as a result of the examination for licensure given in December of 1987?
Findings Of Fact The Petitioner took the examination for licensure as a barber in December of 1987. Although she achieved a passing score on the written portion of the examination, she did not obtain a passing score on the practical portion of the examination. The practical portion of the examination is divided into five parts. The Petitioner challenges the grade she received in the scoring of the haircut. The maximum number of points a licensure candidate can receive on a haircut is 45 points. A review of Respondent's Exhibit B shows that the Petitioner received 18 points for her performance on Sections 2-k, 2-o, and 2-p of the exam. She does not contest the examiners' ratings on Sections 2-j and 2- m. She is concerned only with the scores she received on Sections 2-l and 2-n. When the Petitioner took the examination, John E. Lewis was the model she used to demonstrate her ability to give a "styled" haircut. During the hearing, John E. Lewis explained the following characteristics of his head and scalp line: Mr. Lewis' ears are not symmetrically located. One ear is placed significantly higher on his head than his other ear, which gives them different heights in relation to his facial features. In addition, the hair on the left side of his head grows much thicker than the hair on the right side of his head. As a result of these characteristics, an optical illusion is created which makes hair of identical length on both sides of the head appear to be longer on the left side. During the barber examination, two examiners checked the style line of the haircut under Section 2-l. On the criteria rating sheets, they commented that the left side of the style line appeared longer. In rating the hair on each side as to evenness and balance (Section 2-n), the examiners each noted that the left side was either longer or fuller. Because of these evaluations, the Petitioner did not receive any points in categories 2-i or 2-n in the examination. Cathy Maynard Frank, a Florida licensed barber who was awarded a silver medal in the 1986 World Championship of Barbers and who has placed second nationally, testified as an expert witness on behalf of the Petitioner. Ms. Frank had an opportunity to observe and professionally review the haircut a few hours after the examination. In her opinion, the hair on both sides (under Section 2-n) was as close as a barber could get them. If the Petitioner had cut the left side shorter to avoid the optical illusion of unevenness, the thicker hair on the left side would have stuck straight out. Ms. Frank generally agreed with the examiners' evaluations in the other categories which contributed to her credibility as an expert witness. Ronald Max Young testified as an expert witness on behalf of the Respondent. Mr. Young is a barber who has been licensed in Florida since 1972. He is a lead examiner for the state and has participated in the examination process for the last five years. Mr. Young testified that the examination contains the standard criteria necessary to meet the minimum requirements for licensing. The examiners look for an even haircut, evenly balanced all the way around. If a model is not fitting, that is the candidate's problem, not the examiners' problem. Mr. Young did not have an opportunity to examine the haircut given by the Petitioner during the practical examination. He was unable to comment on the specifics which had been commented upon by Ms. Frank. However, he did vouch for the qualifications and abilities of the two examiners who independently rated the Petitioner's performance.
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.
