STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) PROFESSIONAL REGULATION, )

BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2931

)

TONI M. FARMER, )

)

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: Toni M. Farmer, pro se

44 Wells Road

Orange Park, Florida and

5837 Rithera Road

Jacksonville, Florida 32205 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(1)(b), Florida Statutes, and has violated Subsection 477.029(1)(a), Florida Statutes, by practicing cosmetology with an inactive license.

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. Count I of the Administrative Complaint accuses Respondent of violating Rule 21F-18.065(5), Florida Administrative Code, in that Respondent practiced cosmetology with an inactive license and thereby violated Subsection 477.028(1)(b), Florida Statutes, in that she was guilty of misconduct in the practice of cosmetology.

    
    

16. The facts in this case establish that between the period June 30, 1980, and the license renewal date, July 19, 1982, Respondent acted as a cosmetologist at a time when her license had expired. By operation of Rule 21F- 18.06, Florida Administrative Code, Farmer's license reverted to an inactive status on June 30, 1980, and in keeping with Rule 21F-18.06(5), Florida Administrative Code, that license could only be reactivated upon application with proof of requisite completion of continuing education courses. [Those courses were completed as evidenced by the renewal (reactivation) of the license on July 19, 1982.]

    
    

17. Contrary to the allegations set forth in the Administrative Complaint, a cosmetologist who cuts hair while her license is in an inactive status set forth in Rule 21F-18.06, Florida Administrative Code, has not violated Rule 21F- 10.06(5), Florida Administrative Code, which provision relates to license renewal, as opposed to penalties which may be assessed for operating with an inactive license; however, Rule 21F-18.06(7), Florida Administrative Code, prohibits a cosmetologist from working with an inactive license. Farmer did perform work as a cosmetologist while her license was in an inactive status by operation of law and she was sufficiently noticed of this allegation, through the Administrative Complaint, notwithstanding failure to refer to Rule 21F- 18.06(-7), Florida Administrative Code. By acting contrary to the Rule's provision, Respondent is guilty of misconduct within the meaning of Subsection 477.028(1)(b), Florida Statutes, and is subject to the penalties set forth therein, given the length of time in which Farmer operated without the benefit of a renewed license and having considered the responses made by Petitioner's employees to her dilemma, together with her efforts to obtain license renewal.

    
    

18. Count II accuses Respondent of violating Subsection 477.029(1)(a), Florida Statutes. This provision states:

    
    

    1. It is unlawful for any person to:

(a) Hold himself out as a cosmetologist or cosmetology instructor unless duly licensed as provided in this chapter, except that nothing herein shall be construed to prevent use of the title

"cosmetology instructor" by persons certified by the Department of Education to teach

in the public school system, or to

prevent employment of instructors in other government operated programs of cosmetology in Florida.

Without addressing the question of whether an inactive cosmetologist may "hold herself out" as a cosmetologist, it is concluded as a matter of law that this provision is part of a civil law penalty apparatus granted to the Board against any person" and is not part of the disciplinary process by administrative complaint. See Subsection 477.029(2), Florida Statutes. Therefore, Petitioner's attempts to take disciplinary action by administrative complaint directed to the license condition of Respondent, under the guise of Subsection 477.029, 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 which suspends the license of Respondent for a period of fifteen (15) days based upon the violation found in Count I and dismisses Count II.

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/ Counsel for Petitioner has offered a proposed recommended order. This matter has been reviewed prior to the entry of the Recommended Order. To the extent that the proposal is consistent with the Recommended Order, it has been utilized. To the extent that the proposal is inconsistent with the Recommended Order, it is rejected.

COPIES FURNISHED:

Stephanie A. Daniel, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Toni M. Farmer

44 Wells Road

Orange Park, Florida

Toni M. Farmer 5837 Rithera Road

Jacksonville, Florida 32205

Myrtle Aase, Executive Director Board of Cosmetology

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-002931

Orders for Case No: 82-002931