STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) PROFESSIONAL REGULATION, BOARD ) OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2882

)

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. Toni M. Farmer, presently holds an active cosmetology license issued by Petitioner, License No. CL0062662, for the period July 19, 1982, through June 30, 1984.

   
   

2. Between May 6, 1980, and July 6, 1981, Farmer worked as a cosmetologist in a salon operated by Shear Pleasure, Inc., in Jacksonville, Duval County, Florida. Shear Pleasure, Inc., is the holder of License No. CE0027634.

3. Beginning July 13, 1981, to the present, farmer has worked as a cosmetologist in the salon, Josef and Charles, Inc., d/b/a Josef and Charles Styling Salon, License No. CE0022674, located in Orange Park, Florida.

   
   

4. When Farmer began her employment with Shear Pleasure she had a current and valid cosmetology license issued by Petitioner, which license expired June 30, 1980.

   
   

5. Around August 18, 1980, Farmer forwarded a cashier's check made payable to the Board of Cosmetology for purposes of renewing her delinquent cosmetology license.

   
   

6. Subsequent to the action on the part of Farmer and in the course of a routine inspection, Jewel Walker, an inspector for Petitioner, noted the fact of expiration of Farmer's license. This took place in 1980. When told that Petitioner had not responded to the renewal request, Walker instructed Farmer to post the indicia of payment of fees, i.e., a copy of the cashier's check of August, 1980, at Farmer's work station in the interim and to check the post office for any return of that cashier's check, due to the fact that Farmer had changed her mailing address following the transmittal of the cashier's check.

   
   

7. Farmer made other contacts with the Tallahassee, Florida, office of Petitioner to determine the status of her renewal in 1980.

   
   

8. In the beginning of 1981, Farmer spoke with Walker about the renewal, having failed to receive any notification confirming license renewal.

   
   

9. (In the course of these matters, Walker had indicated certain logistical problems that were taking place, reference license renewal for cosmetologists.)

   
   

10. The owner of Shear Pleasure, Inc., Fontaine LeMaistre, was aware of the efforts on the part of Farmer to obtain license renewal and allowed her to continue as an employee during her tenure.

    
    

11. When Farmer took a position with Josef and Charles, her employer was made aware of the fact that she did not have the license document and the employer was made aware of the efforts which Farmer had made to obtain the license.

    
    

12. On August 11, 1981, Farmer requested the Florida First National Bank of Jacksonville, which had issued the August 18, 1980, cashier's check to stop payment on that check, based upon the fact that the payee, Petitioner, had not cashed the check. This request was honored and on August 13, 1981, a cashier's check was issued to Toni M. Farmer in the like amount of thirty-five dollars ($35.00), which check was subsequently cashed by Farmer.

    
    

13. On May 12, 1982, Charles Coats, an investigator with Petitioner, made an inspection of the Orange Park business of Josef and Charles and discovered that Farmer was without a license. At that time, a copy of the original thirty- five dollar ($35.00) check written to the Board of Cosmetology was shown to Coats. Farmer related the circumstances involving efforts which she had made to obtain the license. Following this conversation, and specifically in June, 1982, Farmer maid the necessary fees and offered required credentials which allowed her license to be renewed, effective July 19, 1982.

    CONCLUSIONS OF LAW

    
    

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

    
    

15. The Administrative Complaint accuses the Respondent of allowing Toni

    M. Farmer 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.

    
    

16. Farmer worked as a cosmetologist in Respondent's salon at a time when her license was inactive and by doing so violated Rule 21F-18.06(7), Florida Administrative Code. As a consequence, Respondent, as Farmer, by allowing her to work with an inactive license, is guilty of misconduct in the operation of the salon within the meaning of Subsection 477.028(2)(b), Florida Statutes, and is subject to the penalties set forth in that provision. It does not suffice, in attempting to defend this action, that Farmer was in the process of trying to obtain a license renewal when her long-standing delinquency is taken into account. In the face of the knowledge of Farmer's license circumstance, Respondent failed to exercise due diligence in the operation of the salon.

    
    

17. 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). As stated in a companion decision involving Toni M. Farmer, 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 a part of the disciplinary process promoted through administrative complaint. Consequently, Petitioner's efforts to take disciplinary action through an administrative complaint directed to the Respondent on the basis of an allegation of violation of Subsection 477.029(i)(c), Florida Statutes, cannot be sustained.

RECOMMENDATION

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 authorizing the issuance of a letter of reprimand to the Respondent.

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. Those 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 Tallahassee, Florida 32301

Fontaine LeMaistre 4196 Herschel Street

Jacksonville, Florida 32210

Docket for Case No: 82-002882

Orders for Case No: 82-002882