STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA STATE BOARD OF )

COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1055

) ARVLE AND MALVEY SUE KISER d/b/a ) GOLDEN TOUCH COIFFEURS, 901 ) FILLMORE AVENUE, LEHIGH ACRES, ) FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter after due notice to the parties, at Fort Lauderdale, Florida, on June 29, 1976, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Ronald C. LaFace, Esquire

P.O. Box 1752 Tallahassee, Florida

For Respondent: None

ISSUE PRESENTED

Respondents' alleged violation of Section 477.02(6), Florida Statutes.

FINDINGS OF FACT

1. Respondents received a copy of the Administrative Complaint and Notice of Hearing as evidenced by receipt for certified mail. (Exhibit 1)

   
   

2. Respondents Arvle and Malvey Sue Kiser operate Golden Touch Coiffeurs, 901 Fillmore Avenue, Lehigh Acres, Florida under Certificate of Registration to operate a cosmetology salon No. 20014 issued by Petitioner on May 27, 1974.

   
   

3. On June 13, 1975, Petitioner's inspector visited Respondents' establishment and observed Pearl Raulerson Curry washing the hair of a patron. When asked if she had a Florida license to practice cosmetology, Curry responded that she did not have one. At that time Malvey Kiser informed the inspector that Curry was going to take the test for a license. Kiser knew that Curry didn't have one at that time. (Testimony of Rubin)

   
   

4. Respondent Malvey Sue Kiser submitted a written statement in which she claims that the law requiring a licensed person to perform specialist duties in

   a beauty salon is discriminatory because the same requirement is not imposed on persons performing the same services in barber shops. In her statement she acknowledged that she was aware that the employee Curry did not possess a current license when she was permitted to work in the salon, and that she hired Curry only after having made unavailing complaints of discrimination to various state officials and an attorney. The result was that she decided to challenge the law in question. She further states that she did not receive a quick and speedy hearing which, in turn, weakened her defense inasmuch as witnesses were no longer available. She also claims that the Notice of Violation given to her on June 13th was misleading in that it stated that failure to cure the alleged violation might result in additional disciplinary proceedings or other legal penalties. She therefore believed that if she complied by insuring that the employee became licensed there would be no further proceedings. (Statement of Malvey Kiser)

   
   

   CONCLUSIONS OF LAW

   
   

5. Petitioner seeks to suspend or revoke Respondents' Certificate of Registration to operate a cosmetology salon No. 20014 for allowing Pearl Raulerson Curry to practice cosmetology in their salon on June 13, 1975, without a valid Florida license in violation of Section 477.02(6), Florida Statutes.

   
   

6. Section 477.02(6) provides that it is unlawful for any person to hire or employ any person to engage in the practice of cosmetology unless such person holds a valid Certificate of Registration to practice cosmetology or a work permit issued by the Board. Section 477.03(1)(c) includes shampooing as one of the practices of cosmetology. The undisputed evidence establishes that Respondents' unlicensed employee Curry was shampooing the hair of a patron on June 13, 1975 in Respondents' salon. It is therefore, concluded that Respondents violated the aforesaid statutory provision.

   
   

7. Section 477.15(8) provides that the Board of Cosmetology may suspend or revoke any Certificate of Registration for the commission of any offense described in Section 477.27. Section 477.27(1) makes it an offense to violate any of the provisions of Section 477.02. Accordingly, Petitioner is authorized to take adverse action with respect to Respondents' Certificate of Registration.

   
   

8. Respondents' constitutional attacks against Chapter 477 cannot be addressed in this administrative proceeding and relief, if any, must be sought in a judicial forum.

   
   

9. Respondents claim that Notice of Violation issued by Petitioner's inspector on June 13, 1975, is misleading deserves some comment. The violation form notifies the alleged violator that he or she is violating specific provisions of Chapter 477, Florida Statutes governing the practice of cosmetology. It closes with the following statement. "You are hereby directed by the Florida State Board of Cosmetology, to comply forthwith to these cited sections. Failure to comply may result in additional disciplinary proceedings before the Board, and/or other appropriate penalties of the law." It is apparent that the foregoing wording could lull an alleged violator into the belief that if the offending practice was terminated no action would be taken in the matter. It reasonably could be interpreted as a warning notice or "cure" letter advising the offender to cease and desist from a particular practice, and that if he did not do so, sanctions might then be imposed. Although inartfully worded, the apparent intent of the Petitioner in the Notice of Violation is to advise that a continuing offense could produce sanctions additional to those authorized by the particular single violation. This is indicated by the use of

   the term "additional disciplinary proceedings before the Board". Although Petitioner might be well advised to revise this particular violation form in the future, it is not considered to deprive Petitioner of its right and duty to take action for the violation set forth in the notice.

   
   

10. Respondents also claim that they were deprived of a quick and speedy hearing which weakened their defense by the loss of available witnesses. Although procedural due process mandates that a licensing agency conduct disciplinary proceedings with reasonable dispatch to achieve the interests of justice, the mere fact that approximately a year elapsed from the date of Notice of Violation to service of the Administrative Complaint does not necessarily defeat the validity of consequent proceedings. It is incumbent upon Respondents to specifically show the manner in which they were materially prejudiced in preparing a defense by the delay. In this respect, the mere allegation of such prejudice without more is insufficient. It is noteworthy that Respondents did not attend the hearing nor present evidence in this regard. Accordingly, their unsubstantiated claim that witnesses were unavailable cannot be considered.

    
    

11. In assessing an appropriate penalty in this case, it is observed that Respondents' unlicensed employee nevertheless was qualified to act as a cosmetologist in that she previously had been licensed in Florida. The evidence indicates that she subsequently renewed her license after the alleged violation. Accordingly, it is considered that a written reprimand is sufficient in this matter.

RECOMMENDATION

That Respondents' Arvle and Malvey Sue Kiser be issued a written reprimand for violation of Section 477.02(6), Florida Statutes.

THOMAS C. OLDHAM

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Ronald C. LaFace, Esquire Arvle and Malvey Sue Kiser

P.O. Box 1752 c/o Golden Touch Coiffeurs

Tallahassee, Florida 901 Fillmore Avenue Lehigh Acres, Florida

Docket for Case No: 76-001055

Orders for Case No: 76-001055