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.
The Issue Whether Respondent violated Section 476.01(5), Florida Statutes, by employing persons to work as barbers who were unlicensed as barbers. Whether Respondent's license should be revoked, annulled, withdrawn or suspended for such alleged violation.
Findings Of Fact A notice of violation was served on Respondent, owner of the University Plaza Barber and Style Salon, charging him with violating Section 476.01(6), Florida Statutes, which statute prohibits any person to hire or employ any person to practice barbering without a valid certificate of registration. The Administrative Complaint served on Respondent charges Respondent: "You have employed unlicensed barbers or apprentices to work as barbers in your shop". The Respondent had people working in his shop not registered as barbers but who were registered as cosmetologists and who were working as cosmetologists. Respondent operates a single shop registered as a barber shop and as a registered cosmetologist shop. He is a licensed barber and a licensed master cosmetologist. At the time of the notice of violation the sign in the front of the shop indicated only barber shop. At the time of hearing the sign indicated barber and beauty salon retain center. At the time of the violation notice Respondent did not have a partition in his shop that separated the barber shop from the area in which the cosmetologists worked. At the time of hearing a partition was in existence. Respondent presently has two barber chairs in one partitioned-off area and an area in which six licensed cosmetologists work. Each partitioned area has a separate door but the shop itself has one door leading into a waiting room.
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 Based upon the entire record, the following findings of fact are determined: This case involves an appeal by petitioner, Marline Lewis, challenging the score she received on the September 1993 barber licensure examination. The examination is administered by the Department of Business and Professional Regulation on behalf of respondent, the Barbers' Board (Board). According to the examination grade report issued on September 29, 1993, petitioner received a grade of 69 on the practical portion of the examination. The Board requires a grade of at least 74.5 in order to be licensed. The barber examination consists of two parts: written and practical. The practical portion of the examination is in issue here and has five categories: haircut, permanent wave, shampoo, sanitation and technique. As clarified at hearing, petitioner contends that the examiners who assessed her performance did not assign a proper score on the haircut category, and that one examiner improperly gave her no credit on one item of the sanitation category. She also contends that there were conversations between two examiners during the examination that disrupted her concentration, and that other individuals entered the examination room and momentarily congregated around her work area. Petitioner took the practical portion of the examination on the afternoon of September 20, 1993, at Lively Vocational/Technical Center in Tallahassee, Florida. The examination room contained four work areas, one in each corner of the room, with each area having four work stations consisting of a mirror, chair, cabinet, counter and sink. Each candidate was assigned to one of the work stations. When petitioner took the examination, there were fourteen candidates, including herself. Each candidate was required to be accompanied by a model on whom the procedures could be performed. Petitioner brought her husband as a model. Four examiners were assigned the task of grading the fourteen candidates. The room was divided in half for testing purposes, and two examiners graded seven candidates at two work areas while the other two examiners graded the remaining seven candidates. Each set of examiners circulated around their assigned work areas so that they could observe and monitor the skills of the candidates. Thus, it was not possible for an examiner to observe a candidate for every moment during the entire examination. In petitioner's case, her examiners were Roland Bordelon and Jeri Scott, two licensed barber stylists with nine and eleven years experience, respectively, in grading the examination. According to examiner Scott, she always gave the benefit of the doubt to the candidate. On the other hand, examiner Bordelon said he tended to grade more rigidly. Before the examination, all examiners were given standardization training, which was designed to insure that the examiners graded in a "standardized" or consistent fashion. This training included the grading of live models during a simulated or mock examination. In addition, they reviewed a grader's manual which provided criteria and instructions on how to grade the examination. The examiners were told to grade independently of one another, and they were not to confer on the grades to be given a candidate. After the grading was completed, the two grades were compiled, and an overall grade was given the candidate. The haircut category contains nine separate items to be rated by the examiner. A maximum of forty-five points can be attained in this category. The sanitation category contains ten items with a maximum of twenty-five points. The examiner was required to give a "yes" or "no" score on each category, with a "yes" meaning full credit and a "no" meaning zero credit. This rating was then recorded contemporaneously on a scoring sheet. In the event a "no" score was given, the examiner was required to fill in a comments section on the scoring sheet which identified the basis for the negative rating. Finally, if one examiner gave a "yes" and the other a "no," the candidate received one-half credit on the item. In the haircut portion of the test, examiner Bordelon gave a "no" on items B-8, B-9, B-10, B-12, and B-14 while examiner Scott gave a "no" on items B-11, B-12, and B-15. In all other respects, the two were consistent in their grading. Their combined scores resulted in petitioner receiving a total grade of 24 out of 45 points. Petitioner contends that she successfully completed a taper haircut on her model and did not deserve to receive a "no" on so many items. She also questions the consistency of the examiners' grading. The more credible and persuasive evidence, however, is that the items were graded in a fair manner and that a number of deficiencies were noted in her performance. They included sides not proportional, holes in the sides and back, side burns not shaven, holes in the top, blending problems, and uneven outlines. Although the two examiners disagreed on several items, such inconsistencies were not shown to be unreasonable or illogical. Moreover, the scores are averaged to adjust for any potential bias by the examiners. In other words, the averaging process reduces the subjectivity of the examiner's scoring and takes into account the fact that one examiner may grade too leniently or too severe. Therefore, the grade given in the haircut category should not be changed. In the sanitation category of the examination, petitioner contests the "no" grade she received from examiner Bordelon on item B-1. That item requires a candidate to wash her hands before beginning the haircut. Examiner Scott stated that she did not see petitioner wash her hands, but since she did not observe petitioner every moment before the haircut began, she gave her the benefit of the doubt. Examiner Bordelon stated he did not observe petitioner wash her hands and thus gave her a "no." Since petitioner stated that she washed her hands prior to the beginning of the haircut, and examiner Bordelon did not testify that he had petitioner in his eyesight for every moment prior to the time she began cutting hair, it is found that petitioner should be given a "yes" rating on item B-1 and an additional two points. After adjusting her score, her total score is 71, or still less than the required 74.5. Besides her own testimony, petitioner presented the testimony of her former instructor, Terry Collier, who is a licensed barber stylist. Collier suggested that the examiners did not have sufficient experience and training in cutting the hair of African-Americans. From this premise, he drew the conclusion that the examiners likewise were insufficiently trained to judge the merits of a haircut given to a black model. The evidence shows, however, that during the past decade both examiners have graded numerous candidates who used black models. This is confirmed by the fact that approximately one-half of all test candidates and models are black. In addition, both examiners operate barbershops serving African-American clients. Finally, both Collier and the Board's witnesses agreed that subjective judgment calls must be made by the examiners while grading a candidate. Therefore, petitioner's contention regarding the qualifications of the examiners is deemed to be without merit. Finally, petitioner claims she was distracted by conversations between the two examiners during the examination. Both examiners denied discussing the merits of the candidate's skills, but admitted they made have engaged in "small talk" at various times, particularly during the permanent wave part of the examination, a category not in issue here. Also, petitioner stated that four or five unidentified persons came into the examination room during the examination and stood behind her for a few moments. This was confirmed by her husband. Even if these events occurred, however, all candidates would have been subjected to the same testing conditions and thus no candidate would have received an unfair advantage during the examination process. Moreoever, petitioner concedes that during the examination she never complained that she was being distracted. Therefore, petitioner is not entitled to relief on this ground.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Barbers' Board enter a final order changing petitioner's grade on the September 1993 barber stylist examination from 69 to 71. DONE AND ENTERED this 22nd day of June, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER 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 22nd day of June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6792 Petitioner: 1. Partially accepted in finding of fact 2. 2. Partially accepted in finding of fact 3. 3. Rejected as being unnecessary. 4. Partially accepted in finding of fact 7. 5. Partially accepted in finding of fact 6. 6. Partially accepted in finding of fact 1. Partially accepted in findings of fact 1 and 7. Partially accepted in finding of fact 3. 9-11. Partially accepted in finding of fact 4. 12-13. Partially accepted in finding of fact 7. 14-16. Partially accepted in finding of fact 6. 17-24. Partially accepted in finding of fact 7. 25-26. Partially accepted in finding of fact 5. 27-29. Partially accepted in finding of fact 10. 30-31. Partially accepted in finding of fact 7. 32. Rejected as being unnecessary. 33. Partially accepted in finding of fact 7. 34. Partially accepted in finding of fact 9. Respondent: 1. Partially accepted in finding of fact 2. 2. Partially accepted in finding of fact 3. 3. Partially accepted in finding of fact 2. 4. Rejected as being unnecessary. 5. Partially accepted in finding of fact 1. 6. Partially accepted in finding of fact 2. 7. Partially accepted in finding of fact 7. 8. Partially accepted in finding of fact 2. 9. Partially accepted in finding of fact 3. 10. Partially accepted in finding of fact 4. 11. Rejected as being unnecessary. 12. Partially accepted in finding of fact 6. 13-15. Partially accepted in finding of fact 7. 16. Partially accepted in finding of fact 9. 17. Partially accepted in finding of fact 7. 18-22. Partially accepted in finding of fact 10. 23-24. Rejected as being unnecessary. 25-26. Partially accepted in finding of fact 9. 27. Partially accepted in finding of fact 5. 28. Partially accepted in finding of fact 9. 29. Rejected as being unnecessary. 30. Partially accepted in finding of fact 4. 31. Partially accepted in finding of fact 8. NOTE: Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Suzanne Lee, Executive Director Barbers' Board 1940 North Monroe Street Tallahassee, FL 32399-0769 Jack L. McRay, Esquire 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Leatrice E. Williams, Esquire 604 Hogan Street Jacksonville, Florida 32202 W. Frederick Whitson, Esquire 1940 North Monroe Street Suite 60 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.
The Issue Whether the Master Barber Certificate and the City Barber Shop Certificate of Registration held by the Respondent W. R. Griffis should be revoked, annulled, withdrawn or suspended.
Findings Of Fact An Administrative Complaint was filed on the 22nd day of November, 1976, by P. W. Barker, Executive Director, Florida Barber Sanitary Commission, alleging: That Respondent allowed a dog in the barber shop in violation of Section 476.22(1)(g), Florida Statutes. The Respondent's shop had dirty floors in violation of Section 476.22(1)(h), Florida Statutes. The laboratories were dirty in violation of Section 476.22(1)(i), Florida Statutes. The supply storage room was dirty in violation of Section 476.22(1)(j). The shop was being operated with dirty neck dusters in violation of Section 476.22(1)(1)(6) and (8). Inspector Gordon N. Patterson, an employee of the Florida Barber Sanitary Commission had warned the Respondent on previous occasions that he must clean up his shop. The Administrative Complaint alleged that during the period July, August and September, 1976, the Respondent had been drinking intoxicating beverages and had performed unsatisfactory haircuts on customers as a result of this drinking. An affidavit of the Chief of Police confirms the allegations. At the hearing the Respondent admitted that he does drink, but that he never goes to the barber shop until several days after he has been drinking. The Respondent admitted that he had been ill and that his shop floors, laboratories and storage room had been dirty at times but that he intends to and at present is keeping his place very clean. The Respondent denied that he allowed a dog in his shop stating that a dog ran into his shop but was ejected shortly thereafter.
Recommendation Suspend the Master Barber Certificate No. 8195 and Shop Certificate of Registration of the City Barber Shop No. 2096 held by the Respondent for a period of time not to exceed six (6) months. DONE and ORDERED this 19th day of May, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: A. Ronald C. LaFace, Esquire 101 East College Avenue Tallahassee, Florida 32304 P. Wayne Barker, Executive Director Barber Sanitary Commission 108 West Pensacola Tallahassee, Florida 32304 Warren R. Griffis c/o City Barber Shop 127 West Broadway Fort Meade, Florida 33841
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 The Petitioner holds a license to practice barbering which expired on July 31, 1978. At the time of the expiration of Petitioner's license Section 476.154, Florida Statutes was in effect which permitted licensees who retired from the practice of barbering to have their licenses restored upon the payment of a required restoration fee. Pursuant to Rule 21C-7.01, Florida Administrative Code, "retirement was defined to require written notification to the Barber Board and acknowledgement by the Board of said retirement. Rule 21C-7.01, Florida Administrative Code was promulated in conjunction with Rule 21C-7.02, Florida Administrative Code. rule 21c-7.02, Florida Administrative Code, encountered difficulties when questions were raised by the staff of the Joint Administrative Procedures Committee concerning the statutory authority of the Board to enact the rule. Both rules were filed with the Secretary of State on October 23, 1978, but never published in response to a request by the Board. Subsequent to the filing of the rules, the Board attempted to resolve the conflict between the Committee and the board over the rule. As a result of the Board's inability to resolve the conflict, the rules were repealed in June, 1980 without having been published in the Florida Administrative Code. At the time of the expiration of his license, Petitioner was of the belief that if he retired he could have his license reinstated upon payment of a restoration fee. The Petitioner did not notify the Board of his retirement nor did he receive notification from the Board that subsequent changes in Chapter 476, Florida Statutes would be interpreted by the Board to require reexamination of barbers holding expired licenses. The Petitioner has been a practicing barber for approximately 20 years and desires to again actively pursue his profession.
