: The purpose of the rule amendment is to update the disciplinary rules to make them comply with requirements in Chapter 455, F.S., to establish new penalties for violations of statute and rule provisions, and to delete unnecessary rules.

 

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION

Barbers’ Board

RULE NOS.:RULE TITLES:

61G3-21.001Normal Penalty Ranges

61G3-21.002Aggravating and Mitigating Circumstances

61G3-21.003Repeat Violations

61G3-21.004Penalties Cumulative and Consecutive

61G3-21.006Probation

61G3-21.009Citations

61G3-21.010Revocation

61G3-21.012Notice of Non-Compliance

PURPOSE AND EFFECT: : The purpose of the rule amendment is to update the disciplinary rules to make them comply with requirements in Chapter 455, F.S., to establish new penalties for violations of statute and rule provisions, and to delete unnecessary rules.

SUMMARY: Disciplinary rules.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: Compliance with the new disciplinary guidelines does not impose cost. No person or interested party submitted additional information regarding the economic impact at that time.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 455.224, 455.225(3)(a), 455.2273, 476.064(4), 476.194(1)(b), 476.204(2) FS., Ch. 86-90, § 2, Laws of Florida.

LAW IMPLEMENTED: 455.224, 455.225(3), 455.227, 455.2273, 476.204(1)(h), (2) FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Robyn Barineau, Executive Director, Barbers’ Board, 2601 Blair Stone Road, Tallahassee, Florida 32399-0771.

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

Substantial rewording of Rule 64B1-9.001 follows. See Florida Administrative Code for present text.

61G3-21.001 Normal Penalty Ranges.

The following guidelines shall be used in disciplinary cases, absent aggravating or mitigating circumstances and subject to the other provisions of this chapter.  The disciplinary guidelines are based on a single count violation of each provision listed.  All penalties at the upper range of the sanctions set forth in the guidelines, such as suspension and revocation, include lesser penalties such as fine, probation or reprimand.  Penalties increase with the severity of the violation and number of repeat violations.  For the purposes of this rule, the descriptions of the violations in the table below are abbreviated and the statute or rule cited should be consulted for a complete description of the prohibited conduct.

 

VIOLATION	PENALTY RANGES
	FIRST VIOLATION	SECOND AND SUBSEQUENT VIOLATIONS
Section 476.194(1)(a), F.S.:  Practice barbering without an active license. (Section 476.204(1)(a), F.S.)	Fine not to exceed $250	Fine not to exceed $500 up to revocation
Section 476.194(1)(c), F.S.: Obtain or attempt to obtain a license for money other than the required fee or any other thing of value or by fraudulent misrepresentations.	Fine not to exceed $250 and revocation if a license is obtained in this manner	Fine not to exceed $500 and revocation if a license is obtained in this manner
Section 476.194(1)(d)1., F.S.: Own, operate, maintain, open, establish, conduct, or have charge of either alone or with another person or persons, a barbershop which is not licensed under the provisions of this chapter. (Sections 476.184 and 476.204(1)(b), F.S., and Rule 61G3-19.013, F.A.C.)	Fine not to exceed $250	Fine not to exceed $500 up to revocation
Section 476.194(1)(d)2., F.S.: Own, operate, maintain, open, establish, conduct, or have charge of either alone or with another person or persons, a barbershop in which a person not licensed as a barber is permitted to perform services.	Fine not to exceed $250	Fine not to exceed $500 up to revocation
Section 476.194(1)(e), F.S.: Use or attempt to use a license to practice barbering when said license is suspended or revoked. (Section 476.204(1)(g), F.S., applicable to  revoked license)	Fine not to exceed $250	Fine not to exceed $500 up to revocation
Section 476.204(1)(c), F.S.: Permitting an employed person to practice barbering unless duly licensed, or otherwise authorized, as provided in Chapter 476, F.S. (Section 476.194(1)(b), F.S.)	Fine not to exceed $250	Fine not to exceed $500  up to revocation
Section 476.204(1)(d), F.S.: Presenting as one’s own the license of another. Fine to both the unlicensed presentor and the licensed individual who permitted his license to be used in such manner.	Fine not to exceed $250	Fine not to exceed $500 up to revocation
Section 476.204(1)(e), F.S.: Giving false or forged evidence to the Department in order to obtain a license.	Denial of licensure or, alternatively, if license issued as a result of false information said license to be revoked	Denial of licensure or, alternatively, if license issued as a result of false information said license to be revoked and fine not to exceed $500
Section 476.204(1)(f), F.S.: Impersonating any other license holder. Fine to both the impersonator and the individual who permitted the impersonation of himself.	Fine not to exceed $250	Fine not to exceed $500 up to revocation
Section 476.204(1)(i), F.S.:  Violate or refuse to comply with: any provision  of Chapter 476 or Chapter 455, other than those listed in this rule; or, a rule of the Board, other than the rules listed in this rule; or, a final order of the Board.	Fine not to exceed $250	Fine not to exceed $500
Section 476.214(1)(a), F.S.: Gross malpractice or gross incompetency in the practice of barbering.	Fine not to exceed $250 and up to suspension	Fine not exceed $500 up to revocation
Section 476.214(1)(b), F.S.: Engaging in the practice of barbering while knowingly having an infectious or contagious disease.	Suspension of license until licensee can prove that he or she is no longer infectious or contagious	Fine not to exceed $500  up to revocation
Section 455.227(1)(a), F.S.: Making misleading, deceptive, or fraudulent representations in or related to the practice of barbering.	Fine not to exceed $250	Fine not to exceed $500 up to revocation
Section 455.227(1)(c), F.S.: Being convicted or found guilty of, or entering a plea of guilty or nolo contendere to, regardless of adjudication, a crime in any jurisdiction which relates to the practice of, or the ability to practice, a licensee’s profession.	Fine not to exceed $250 up to revocation	Fine not to exceed $500 up to revocation
Section 455.227(1)(e), F.S.: Failing to comply with the educational course requirements in Section 455.2228, F.S., for human immunodeficiency virus and acquired immune deficiency syndrome.	Revocation if license issued	Revocation if license issued
Section 455.227(1)(f), F.S.: Having a license or the authority to practice the regulated profession revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of any jurisdiction, including its agencies or subdivisions, for a violation that would constitute a violation under Florida law.	Denial of licensure up to revocation	Denial of licensure up to revocation
Section 455.227(1)(g), F.S.: Having been found liable in a civil proceeding for knowingly filing a false report or complaint with the department against another licensee.	Fine not to exceed $250 up to suspension	Fine not to exceed $500 up to revocation
Section 455.227(1)(h), F.S.: Attempting to obtain, obtaining or renewing a license to practice a profession by bribery, by fraudulent misrepresentation, or through an error of the Department or Board.	Denial of licensure or, alternatively, if license issued as a result of false information said license to be revoked	Denial of licensure or, alternatively, if license issued as a result of false information said license to be revoked and fine not to exceed $500.00
Section 455.227(1)(i), F.S.: Failing to report to the department any person who the licensee knows is in violation of Chapter 476, F.S., or the rules of the Board.	Fine not to exceed $250	Fine not to exceed $500
Section 455.227(1)(j), F.S.: Aiding, assisting, procuring, employing, or advising any unlicensed person or entity to practice barbering contrary to Chapter 476, F.S., or the rules of the Board.	Fine not to exceed $250	Fine not to exceed $500 up to revocation
Section 455.227(1)(k), F.S.: Failing to perform any statutory or legal obligation placed upon a licensee.	Fine not to exceed $250	Fine not to exceed $500 up to revocation
Section 455.227(1)(m), F.S.: employing a trick or scheme in or related to the practice of a profession.	Fine not to exceed $250	Fine not to exceed $500 up to revocation
Section 455.227(1)(n), F.S.: Exercising influence on the client for the purpose of financial gain of the licensee or a third party.	Fine not to exceed $250	Fine not to exceed $500 up to revocation
Section 455.227(1)(o), F.S.: Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities the licensee knows, or has reason to know, the licensee is not competent to perform.	Fine not to exceed $250 up to suspension	Fine not to exceed $500 up to revocation
Rule 61G3-19.009(1), F.A.C.: Display of barber’s license.	Fine not to exceed $50	Fine not to exceed $150 up to probation
Rule 61G3-19.009(2), F.A.C., Display of barbershop’s license.	Fine not to exceed $50	Fine not to exceed $150 up to probation
Rule 61G3-19.010(1), F.A.C.:  Arrangements for performing barber services outside a licensed shop.	Fine not to exceed $250	Fine not to exceed $500 up to suspension
Rule 61G3-19.010(2), F.A.C.:  Performing barber services outside a licensed shop.	Fine not to exceed $250	Fine not to exceed $500 up to suspension
Barbershop Requirements, Sanitation Violations -  Rules 61G3-19.011(2)(d)-(f), (3), (4), (7) - (11)(a)-(d), and (12) - (15), F.A.C.
One or two rule violations	Fine not to exceed $100	Repeated violation of any one or two  sanitary rules - Fine not to exceed $200 up to suspension
Three or more rule violations	Fine not to exceed $200	Repeated violation of any 3 or more of  the sanitation rules – Fine not to exceed $400 up to suspension
Barbershop Requirements, Safety, Code, and Structural Violations – Rules 61G3-19.011(2)(a)-(c), (6), and (15) – (22)(a)-(f), F.A.C.
One or two rule violations	Fine not to exceed $100	Repeated violation of any one or two safety, code, and structural violations – Fine not to exceed $200 up to suspension
Three or more rule violations	Fine not to exceed $200	Repeated violation of any three or more safety, code, and structural violations – Fine not to exceed $400 up to suspension
Rule 61G3-19.012, Posting of Barbershop Requirements.	Fine not to exceed $50	Fine not to exceed $150 up to probabtion

 

Rulemeking Authority 455.2273(1), 476.064(4) F.S. Law Implemented 455.227(1), (2), 455.2273(1), 476.204 F.S.

 

61G3-21.002 Aggravating and Mitigating Circumstances.

Circumstances which may be considered for the purposes of mitigation or aggravation of penalty shall include, but are not limited to, the following:

(1) Where licensee has relied upon the advice of a professional advisor, for example, an attorney or /accountant;.

(2) Where the address of the shop or the owner has been changed by the post office through no fault of the shop owner;.

(3) Where the salon or shop owner has relied upon the advice of a prior owner;.

(4) Infirmity Age or illness;.

(5) The danger to the public;.

(6) The number of complaints filed against the licensee;.

(7) The length of time the licensee has practiced;.

(8) The actual damage, physical or otherwise, to the licensee’s customer;.

(9) The deterrent effect of the penalty in Rule 61G3-21.001 versus the deterent effect of an enhanced or reduced penalty; imposed.

(10) The effect of the penalty upon the licensee’s livelihood;.

(11) Any efforts at rehabilitation;.

(12) Whether there was demonstrable intent of deceit; Any other mitigating or aggravating circumstances.

(13) Blatant disrespect for the law;

(14) Whether the licensee has had previous discipline imposed and the violations that resulted in the previous discipline; and

(15) Whether the license is on probation.

Rulemaking Authority 455.2273(3), 476.064(4) FS. Law Implemented 455.2273(3) FS. History–New 11-25-86, Formerly 21C-21.002, Amended 2-11-02,                        .

 

61G3-21.003 Repeat Violations.

Rulemaking Authority 476.064(4), 476.194(1)(b) FS., Ch. 86-90, § 2, Laws of Florida. Law Implemented 476.204(1)(h) FS., Ch. 86-90, § 2, Laws of Florida. History–New 11-25-86, Formerly 21C-21.003    Repealed.

 

61G3-21.004 Penalties Cumulative and Consecutive.

Rulemaking Authority 476.064(4) FS., Ch. 86-90, § 2, Laws of Florida. Law Implemented Ch. 86-90, § 2, Laws of Florida. History–New 11-25-86, Formerly 21C-21.004, Repealed.

 

61G3-21.006 Probation.

Rulemaking Authority 476.064(4) FS., Ch. 86-90, § 2, Laws of Florida. Law Implemented Ch. 86-90, § 2, Laws of Florida. History–New 11-25-86, Formerly 21C-21.006, Repealed.

 

Substantial rewording of Rule 61G3-21.009 follows.  See Florida Administrative Code for present text.

61G3-21.009 Citations.

(1) A citation and fine shall be issued for a violation of any of the provisions in this paragraph, except when a notice of non-compliance can be issued first, pursuant to Rule 61G3-21.012, F.A.C.  

(a) Practicing barbering with a license that has been delinquent or inactive for no more than 3 months in violation of Sections 476.194(1)(a), 476.204(1)(a), and 455.271(1), F.S.:  fine of $200.00; 

(b) Failure to post inspection report in violation of Rule 61G3-19.015(1), F.A.C.:  fine of $50.00;

(c) Failure to properly display barber’s license in violation of Rule 61G3-19.009(1), F.A.C. : fine of $50.00;

(d) Failure to properly display barbershop’s license in violation of Rule 61G3-19.009(2), F.A.C.: fine of $50.00;

(e) Failure to post the barbershop requirements listed in 61G3-19.011, F.A.C., in violation of Rule 61G3-19.012, F.A.C.: fine of $50.00;

(f) Failure to transfer ownership of barbershop license for not more than 3 months, in violation of paragraph 61G3-19.013, F.A.C.: fine of $200.00; 

(g) Failure to maintain a portable fire extinguisher, in violation of Rule 61G3-19.011(2)(c), F.A.C., provided the inspection is not more than 60 days overdue: fine of $100.00; and

(h) Failure to immediately deposit towels in the proper receptacle, in violation of Rule 61G3-19.011(13), F.A.C.: fine of $50.00.

(2) A citation and fine shall be issued for a first violation of any of the statutes and rules listed in this paragraph. 

(a) Operating a barbershop with a license that has been expired for no more than 3 months in violation of Section 476.194(1)(d)1., F.S.: fine of $200.00;

(b) Relocating a barbershop in violation of Sections 476.184(7) and 476.194(1)(d)1., F.S.: fine of $200.00;

(c) Performing barber services outside a licensed shop in violation of Rule 61G3-19.010, F.A.C.: fine of $200.00; and 

(d) A citation shall be issued for violation of any of the following safety, code, and structural provisions: Rules 61G3-19.011(2)(a)-(c), (6), and (15) – (22)(a)-(f), F.A.C.:  The fine for violation of any one of these provisions shall be $50.00.

(3) A citation shall not be issued if more than three of the violations listed in (1) and (2) occur during the same inspection.  

(4) At least three years must pass between the issuance of citations for violations of the same provision.

Rulemaking Authority 455.224(1), 476.064(4) FS. Law Implemented 455.224, 477.204 FS. History–New 1-19-92, Amended 3-22-92, 2-18-93, Formerly 21C-21.009, Amended 6-16-94, 9-22-94, 8-21-95, 2-14-96, 11-6-97, 5-13-01, 9-20-05, 12-2-09, 2-26-15,                   .

 

61G3-21.010 Revocation.

Unless otherwise provided in the by order of revocation, whenre the Board revokes any barber’s license, the revocation shall be permanent.  However, the person whose license was revoked may not reapply for relicensure as a barber for a period of after three (3) years.  Any mitigating and aggravating circumstances that exist at the time of revocation shall be evaluated to determine whether to alter the three (3) year waiting period.  If the former licensee reapplies, he or she shall satisfy the requirements for initial licensure in place at the time of reapplication, and shall after revocation and he or she must make a personal appearance before the Board, prior to relicensure.

Rulemaking Authority 455.227(5), 476.064(4), 476.204(2) FS. Law Implemented 455.227(3), 455.2273(3) 476.204(2) FS. History–New 2-18-93, Formerly 21C-21.010,                     .

 

61G3-21.012 Notice of Non-Compliance.

(1) The department shall provide a licensee with a notice of non-compliance for an initial offense of the rules and statutes listed below.

(a) Sections 476.194(1)(a) and 455.271(1), F.S.: Engaging in the practice of barbering with a license that has been delinquent or inactive for 30 days or less;.

(b) Section 455.271(1), F.S.: Engaging in the practice of barbering with a license that has been inactive for 30 days or less.

(b)(c)  Rule 61G3-19.015(1), F.A.C. – failure to post inspection report;.

(c)(d) Rule 61G3-19.009(1), F.A.C. – failure to properly laminate and display barber’s license; as long as license is current.

(d) Rule 61G3-19.009(2), F.A.C. – failure to properly display barbershop’s license;

(e) Rule 61G3-19.012, F.A.C. – failure to post the barbershop requirements listed in 61G3-19.011, F.A.C.; sanitation rules.

(f) Rule 61G3-19.013, F.A.C. – failure to transfer ownership ofn barbershop license for no more than , provided the transfer has not exceeded 30 days;.

(g) Rule 61G3-19.011(2)(c), F.A.C. – failure to maintain a portable fire extinguisher, provided the expiration date does not exceed 30 days; and.

(h) Rule 61G3-19.011(13), F.A.C. – failure to immediately deposit towels in the proper receptacle.

(2) No change.

Rulemaking Authority 455.225(3)(a), 476.064(4) FS. Law Implemented 455.225(3) FS. History–New 12-22-94, Amended 2-14-96, 5-1-96, 11-6-97, 11-25-09, 2-7-17, 12-27-17,      .

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Barbers’ Board

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Barbers’ Board

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: July 15, 2018

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: August 17, 2018