STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1576

) 81-1577

WILFRED'S ROMAR HAIRSTYLING ) ACADEMY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held in Orlando, Florida on July 29, 1981 before the undersigned Hearing Officer of the Division of Administrative Hearings, Department of Administration.

APPEARANCES

For Petitioner: Drucilla E. Bell, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Thomas Utke, General Manager

Wilfred's Romar Hairstyling Academy 1013 East Colonial Drive

Orlando, Florida 32807

ISSUE

Whether disciplinary action should be taken against the Respondent for alleged violations of Chapter 477, Florida Statutes, (1979)

PRELIMINARY STATEMENT

Respondent Wilfred's Romar Hairstyling Academy is a cosmetology school located at 1013 East Colonial Drive, Orlando, Florida. Two complaints were filed against Respondent by Petitioner Board of Cosmetology, one on May 8, 1981 and another on June 2, 1981. The complaints were based on teaching without proper supervision, students enrolled without permits and the size and accessibility of the dispensary. The Respondent requested an administrative hearing on both complaints. Prior to commencement of the hearing the Hearing Officer questioned Respondent's General Manager. Thomas Utke, and found that he was qualified to represent Respondent Wilfred's Romar Hairstyling Academy in the administrative hearing. Upon motion by Petitioner, agreed to by Respondent, the cases were consolidated for hearing. Petitioner presented one witness, and Respondent presented four (4) witnesses.

Petitioner filed a memorandum, and Respondent filed a proposed recommended order which were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.

FINDINGS OF FACT

1. Wilfred's Romar Hairstyling Academy is a cosmetology school, which has been issued license #CT0000228. In March of 1980 Ardie Collins, an investigator for Petitioner Board of Cosmetology, found teacher trainee Sumner instructing a theory class in Respondent school without direct supervision by a certified cosmetology instructor. On April 17, 1980 Collins found student instructor Bra noon teaching a theory class in Respondent school without direct supervision of a certified cosmetology instructor. On April 29, 1980 Collins found that nine

   (9) students of Respondent school had been enrolled in the school without student permits. On September 18, 1980 Collins observed a student teacher trainee teaching students basic training on mannequins in Respondent school without direct supervision of a licensed instructor. Respondent did not dispute the foregoing facts and suggested in its memorandum that a penalty, if any, should be a "written reprimand." Insufficient evidence was produced to show that Respondent had violated requirements as to size and accessibility of the dispensary.

   
   

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Section 120.57, Florida Statutes.

   
   

3. Section 477.028, Florida Statutes (1979), Disciplinary proceedings.-- provides:

   
   

   (2) The board shall have the power to revoke or suspend tide license of a cosmetology salon or a school of cosme- tology licensed under this chapter, to deny subsequent licensure of such salon or school, or to reprimand, censure, or otherwise discipline the owner of such salon or school in either of the follow- ing cases:

   (b) Upon proof that the holder-of

   a license is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the operation of the salon or school so licensed.

   
   

4. Rules 21F-7.02(4)(j) and 21F-8.03(3) , Florida Administrative Code, required at the time of the subject investigation that teaching by teacher trainees be under the direct supervision of a certified cosmetology instructor, and that all students be under tide supervision of an instructor. Rule 21F- 9.01, Florida Administrative Code, required all students to have a permit showing the name of the student and the name and address of the school. The foregoing rules were repealed October 30, 1980. Petitioner admitted the transgressions of the established rules in the operation of the licensed school. Such violations are "misconduct" as contemplated by the foregoing statute, which provides a range of disciplinary action from a reprimand to loss of licensure.

Cf. Hatfield v. New Mexico State Hoard of Regulation for Professional Engineers and hand Surveyors, 290 P2d 1077; 60 NM 242. Smith v. School Board of Leon County, Florida, 1st DCA, Case No. UU-369 (August 26, 1980) is distinguishable inasmuch as "misconduct" was defined by rule as a violation "so serious as to impair the individual's effectiveness in the school system." It is concluded that the actions of the Respondent school's personnel is "misconduct" of a less serious nature but contemplated by Section 477.028, supra.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that a final order be entered by the agency which reprimands Respondent school and places it on probation for a period of time not to exceed two (2) years with semiannual inspections.

DONE and ORDERED this 28th day of September, 1981, in Tallahassee, Leon County, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1981.

COPIES FURNISHED:

Drucilla E. Bell, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Thomas Utke, General Manager Wilfred's Romar Hairstyling

Academy

1013 East Colonial Drive Orlando, Florida 32807

Nancy Kelley Wittenberg, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF COSMETOLOGY

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF COSMETOLOGY,

Petitioner,

vs. CASE NO. 81-1576

81-1577

WILFRED'S ROMAR HAIRSTYLING ACADEMY,

Respondent.

/

FINAL ORDER

On September 28, 1981, the duly appointed Hearing Officer in the above- styled cause completed and submitted to the Board and all parties a Recommended Order. A copy of that Order is attached hereto as Exhibit A.

Pursuant to Section 120.57(1)(b)(8), Florida Statutes (1979), the parties were allowed ten (10) days in which to submit written Exceptions to the Recommended Order. Neither Petitioner nor Respondent submitted exceptions.

Pursuant to Section 455.225, F.S., the Recommended Order tame before the Board of Cosmetology at its meeting of October 19, 1981, in Tallahassee, Florida, for final agency action on this matter. Respondent was present at such meeting and spoke in his own behalf regarding mitigation of penalty. Having considered the Findings of Fact, Conclusions of Law, and Recommended Penalty, submitted herein, and being otherwise fully advised, it is therefore:

ORDERED that the Hearing Officer's Findings of Fact and Recommended Penalty are fully adopted by the Board, and further, that the Conclusions of Law as submitted by the Hearing Officer are adopted by the Board with specific rejection of the interpretation of Rule 21F-901, F.A.C. , regarding student permits arising from Count III of the Administrative Complaint This particular Conclusion of Law is rejected owing to the long-standing policy of this Board to allow students a certain period of time in which to obtain their student permit even after their enrollment in a cosmetology school. Excepting this specific rejection, the Findings of Fact, Conclusions of Law, and Recommended Penalty as submitted by the Hearing Officer are adopted as the final action of the Board.

The penalty in this case is that the Respondent school be reprimanded and placed on probation for a period of two(2) years during which time semiannual inspections by she Department are to be conducted.

DONE AND ORDERED this 24 day of November, 1981, in Tallahassee, Florida.

BOARD OF COSMETOLOGY

DELBERT L. BAKER

Chairman

Copies furnished to:

WILFRED'S ROMAR HAIRSTYLING ACADEMY

1013 East Colonial Drive Orlando, Florida 32807

Docket for Case No: 81-001576

Orders for Case No: 81-001576