STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 83-901

) ENCHANTED MIRROR, INC., d/b/a ) AUGIE'S ENCHANTED MIRROR, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Orlando, Florida, on September 20, 1983. The issue for consideration was whether the Respondent's license to operate a cosmetology salon in the State of Florida should be suspended, revoked, or otherwise disciplined because of misconduct alleged in the Administrative Complaint.

APPEARANCES

For Petitioner: Theodore R. Gay, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: A. J. Stanton, Jr., Esquire

1400 Pan American Bank Building Orlando, Florida 32801

BACKGROUND INFORMATION

By an Administrative Complaint dated February 3, 1983, Petitioner alleged that Phillip Lillo, as Respondent, operated a beauty salon in Orlando, Florida, without a current active salon license. On February 28, 1983, Respondent Lillo denied the allegations and requested a formal hearing. Thereafter, the matter was set for hearing on July 20, 1983, but on July 18, 1983, Petitioner requested a continuance, which was granted until September 20, 1983. On August 8, 1983, Petitioner filed a Motion to Amend the Administrative Complaint, which motion was granted. When the amendment was filed, it listed Enchanted Mirror, Inc., d/b/a Augie's Enchanted Mirror as Respondent and removed former Respondent Lillo.

At the hearing, both parties orally stipulated to the removal of Lillo as Respondent and the substitution of the current Respondent, who waived service and indicated it was prepared to proceed with the hearing.

Petitioner called no witnesses and presented no evidence, preferring to rely on the Stipulation of Facts contained in the Prehearing Stipulation filed in this case on September 19, 1983. Respondent presented the testimony of Audrey Stanton, president of Respondent corporation.

FINDINGS OF FACT

1. Respondent, Enchanted Mirror, Inc., is licensed as a cosmetology salon under License No. CE0034033. Respondent owns and operates several beauty salons in central Florida and has for 30 years. Licenses for all salons except the one in question here were properly renewed and maintained.

   
   

2. License No. CE0022297 for a cosmetology salon was issued for Augie's Enchanted Mirror salon, located at 278 East Michigan Avenue, Orlando, Florida, on September 26, 1975.

   
   

3. In 1977, Respondent moved Augie's Enchanted Mirror to a new location at

   314 East Michigan Avenue, Orlando, Florida. When this move was made, Respondent did not obtain a new license for the salon at its new location, though it continued to operate the salon.

   
   

4. At all times from the time of original licensure in 1975, Respondent operated Augie's Enchanted Mirror as a cosmetology salon open to the public, with whom it did business as such.

   
   

5. Sometime between 1977 and 1979, License No. CE0022297 was removed from the records of the Department of Professional Regulation/Board of Cosmetology. In 1980, neither the Board of Cosmetology nor the Department of Professional Regulation mailed to Respondent a renewal notice for a cosmetology salon license for Augie's Enchanted Mirror.

   
   

6. However, routine inspections of the facility were made by inspectors of the Board of Cosmetology on September 13, 1978, and August 9, 1979. The report of the former inspection bears the 314 East Michigan Avenue address and that of the latter, the 298 East Michigan Avenue address. Therefore, though the records did not reflect the license and no renewal application forms were sent out, the Board was aware of the salon and inspected it, raising no question as to the license status until 1982 or 1983. The inspection of October 25, 1982, revealed a current license was not posted, but the inspection report of February 14, 1983, the "new establishment" inspection reveals the CE0034033 license number. Therefore, as late as October 25, 1982, the salon was operating without a current license as a result of the transfer from one location to another and the failure of the Board to send out renewal forms after 1980.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Petitioner contends that Respondent's removal of the salon from one location to another several doors away constitutes a violation of both the provisions of the 1977 Florida Statutes and the Rules of the Board of Cosmetology. Specifically cited in the Administrative Complaint are Sections 477.02(4) and 477.27(1), Florida Statutes (1977), as continued in effect by Section 477.029(1)(b), Florida Statutes (1978 Supp.).

   
   

8. It is certainly true that both rules cited state that a license is not transferable from either the original license to another from location to

   location without approval by the Department, but the former cited rule did not come into effect until May 30, 1979, and the latter until May 12, 1981. The move in question was made in 1977, before the rules went into effect.

   
   

9. Petitioner does not show when the current license was issued, but, as late as October 25, 1982, no current license was posted in the shop at 314 East Michigan. The inspection of February 14, 1983, after the date of the Administrative Complaint, shows the new license number and bears the notation "new license inspection;" Therefore, it becomes obvious the new license was issued in the interim, and for several years, Respondent operated without a valid and current license.

   
   

10. Since the rules did not come into play until 1979 at the earliest, they are irrelevant here. The question is whether Respondent's actions constitute misconduct under the 1977 statute and the 1978 Supplement. The 1977 statute merely states the license is "not transferable," which is somewhat vague as to application. The 1978 Supplement, however, clarifies the intent of the Legislature, wherein, at Section 477.025(7), effective on January 1, 1979, it is stated that:

    
    

    [The license] may be transferred from one location to another only upon approval by the department, which approval shall not be reasonably with- held.

    
    

11. It is obvious that, by enacting the 1978 Supplement in the above terms, the Legislature intended to close a regulatory hole that previously existed. In other words, in 1977, at the time the salon was moved, it was not necessary to secure the Department's permission to transfer the license, and the term "not transferable" pertained only to transfer from individual to individual. This is consistent with legitimate regulatory interest.

    
    

12. It is clear, then, that when the salon was moved in 1977, the transfer of the license to the new location was permissible, and the old license was valid in the new salon until its date of expiration. However, it did expire sometime in 1978 or later and was not renewed or replaced until sometime after October 25, 1982, when the new license was issued. As a result, Respondent was operating a salon without a valid, current license for a period of time, at least, as of October 25, 1982. This constitutes misconduct which is a violation of the statute as it existed in 1978 and at all times subsequent thereto. It is, however, a minor violation which does not merit serious disciplinary action, especially in light of Respondent's proper compliance with the licensing laws for an extended period prior to this time.

    
    

13. The parties have submitted posthearing legal memoranda which include proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law above. They have been otherwise rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.

RECOMMENDED ORDER

In light of the above, it is RECOMMENDED:

That Respondent pay an administrative fine of $50.

RECOMMENDED this 3rd day of October, 1983, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 3rd day of October, 1983.

COPIES FURNISHED:

Theodore R. Gay, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

A. J. Stanton, Jr., Esquire 1400 Pan American Bank Bldg. Orlando, Florida 32801

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Ms. Myrtle Aase Executive Director Board of Cosmetology

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-000901

Orders for Case No: 83-000901