STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) PROFESSIONAL REGULATION, )

(Board of Cosmetology) )

)

Petitioner, )

)

vs. ) CASE NO. 82-2881

)

SHEAR PLEASURE, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. The hearing was conducted on November 22, 1982, in the Richard P. Daniel Building, 111 Coast Line Drive East, Jacksonville, Florida. This Recommended Order is being entered following receipt and review of the transcript which was filed with the Division of Administrative Hearings on December 8, 1982. 1/

APPEARANCES

For Petitioner: Stephanie A. Daniel, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Fontaine LeMaistre

4196 Herschel Street

Jacksonville, Florida 32210 ISSUES

The issues here concern an Administrative Complaint brought by Petitioner against Respondent alleging that Respondent is guilty of misconduct within the meaning of Subsection 477.028(2) (b) , Florida Statutes, and has violated Subsection 477.029(1)(c), Florida Statutes, by allowing an employee to practice cosmetology without being duly licensed as provided by Chapter 477, Florida Statutes.

FINDINGS OF FACT

1. Larry F. Plogg, presently holds an active cosmetology license issued by Petitioner, License No. CL-0125370, for the period September 1, 1982, through June 30, 1984.

   
   

2. On May 11, 1982, Plogg began employment as a cosmetologist in a salon operated by Shear Pleasure, Inc., in Jacksonville, Duval County, Florida. This

   employment has been ongoing and continues to the present. Shear Pleasure, Inc., is the holder of License No. CE0027634, issued by Petitioner.

   
   

3. Plogg's licensure was by the process of endorsement, in that Plogg had acted as a licensed cosmetologist in the State of Georgia prior to his employment in Jacksonville, Florida.

   
   

4. On the date that Plogg was employed, Fontaine LeMaistre, owner of the Respondent salon, contacted Charles Coats, an investigator with Petitioner and inquired of him on the subject of Plogg's ability to assume his duties as a cosmetologist, pending the receipt of the Florida license by endorsement. Coats indicated that Plogg could begin his duties by posting an indication of the payment of fees for the issuance of the license, assuming that the application for license was otherwise proper. As contemplated by Coats, the posting of the indication of fee payment would serve as a temporary verification of pending licensure for purposes of any inspection of the salon on the question of employee licensure.

   
   

5. Plogg had mailed a money order in the amount of thirty-five dollars ($35.00) to Petitioner to obtain his license. The date of this money order was May 10, 1982. Sometime in July, 1982, Plogg contacted the Petitioner to ascertain the status of his license request, having not received his Florida license. he was told that nothing had been filed in furtherance of his licensure by endorsement and that he should send another application together with necessary money.

   
   

6. In complying with the instruction, Plogg filed another application form together with another money order on August 13, 1982.

   
   

7. Between August 13, 1982, and August 27, 1982, an inspection was made by an unidentified employee of the Petitioner. At that time, Plogg had copies of the original money order of May 10, 1982, and the subsequent money order of August 13, 1982, together with his Georgia license posted for inspection. Notwithstanding Coats' prior assurance, the indication of licensure was questioned by the inspector and apparently the absence of a Florida license being posted at Plogg's work station led to the promotion of the present Administrative Complaint.

   
   

8. Out of the circumstance of the inspection, Plogg became concerned about the status of his license request and spoke, by telephone, with Petitioner's employee in Tallahassee, Florida, and was told that he needed to submit another thirty-five dollars ($35.00) to gain licensure, in view of an increase in the fee requirement for licensure by endorsement. This was complied with by forwarding a money order on August 27, 1982, in the amount of thirty-five dollars ($35.00), leading to the aforementioned licensure by endorsement on September 1, 1982.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this action, pursuant to Subsection 120.57(1) and Chapter 455, Florida Statutes.

   
   

10. The Administrative Complaint accuses the Respondent of allowing Larry

    F. Plogg to practice cosmetology without being duly licensed as provided in Chapter 477, Florida Statutes. This, in turn, reputedly causes a violation of

    Subsection 477.028 (2)(b), Florida Statutes, in that Respondent is guilty of misconduct in the operation of its cosmetology salon.

    
    

11. While it is true that Plogg worked as a cosmetologist in Respondent's salon at a time when he had not received his Florida license document, he did so within the knowledge of and upon agreement of Investigator Coats to allow Plogg to post the money order copy indicating the efforts to receive the Florida license and the assurance that this act would be deemed acceptable in the event of some intervening inspection conducted to insure that employees of Respondent's salon were licensed. This temporary permission which had been given by Coats and communicated to Plogg and the owner of the Respondent salon was not without bounds; however, Plogg's efforts to follow up the status of his license request were reasonable and the date of issuance of the license is not so far removed from the time when Coats gave his permission to operate temporarily without benefit of the license, to cause a conclusion to be drawn that Respondent is guilty of misconduct in the operation of the salon within the meaning of Subsection 477.028(2)(b), Florida Statutes. In summary, the proof of that violation is not sufficient.

    
    

12. Respondent is also accused of violating Subsection 477.029(1)(c), Florida Statutes, which makes it unlawful for "any person" to have one of its employees practicing cosmetology unless duly licensed under Chapter 477, Florida Statutes. Further, at Subsection 477.029(2), Florida Statutes, "any person" who is found by the Board of Cosmetology to have violated that provision may be subject to a "civil penalty" of not more than five hundred dollars ($500.00).

    
    

13. It is determined as a matter of law that Section 477.029, Florida Statutes, is part of the civil law penalty apparatus granted to the Board involving "any person" and it is not part of the disciplinary process promoted through administrative complaint. Consequently, Petitioner's efforts to take disciplinary action through an administrative complaint directed at the Respondent on the basis of an allegation of violation of Subsection 477.029(1)(c), Florida Statutes, cannot be sustained.

Based upon a full consideration of the facts found, conclusions of law reached and being otherwise informed, it is

RECOMMENDED:

That a final order be entered dismissing this action.

DONE and ENTERED this 29th day of December, 1982, in Tallahassee, Florida.

CHARLES C. ADAMS, 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 29th day of December, 1982.

ENDNOTE

1/ The parties have offered proposals with the disposition of this case. These matters have been reviewed prior to the entry of the Recommended Order. To the extent that the proposals are consistent with the Recommended Order, they have been utilized. To the extent that the proposals are inconsistent with the Recommended Order, they are rejected.

COPIES FURNISHED:

Stephanie A. Daniel, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Myrtle Aase, Executive Director Board of Cosmetology

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street

Fontaine LeMaistre 4196 Herschel Street

Jacksonville, Florida 32210

Docket for Case No: 82-002881

Orders for Case No: 82-002881