STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1317

)

LOUISE R. MILLS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted in this matter on May 25, 1983, in Lakeland, Florida.

APPEARANCES

For Petitioner: Theodore R. Gay,

Tallahassee, Florida,

For Respondent: appeared on her own behalf

On or about February 14, 1983, the Department of Professional Regulation issued a one-count Administrative Complaint against the Respondent. It is alleged in the Complaint that the Respondent operated a cosmetology salon without a current active salon license from July 1, 1980, until December 3, 1982. The final hearing was scheduled by notice dated May 6, 1983.

The Petitioner called Leslie Schwartz, formerly an inspector with the Department, as its only witness. The Respondent testified as a witness on her own behalf and called the following additional witnesses: Frank Neumann, a salesman for a beauty supply company; and Jan Verdi, a cosmetologist who has worked in the Respondent's office. Hearing Officer's Exhibit 1, Petitioner's Exhibits 1 through 3, and Respondent's Exhibits 1 through 3 were offered into evidence and received.

The Petitioner has submitted a proposed recommended order. The findings of fact and conclusions of law and the proposed recommended order have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law which follow. They have been otherwise rejected as not supported by the evidence, contrary to the better weight of the evidence, irrelevant to the issues, or legally erroneous.

ISSUES

The issues to be resolved in this proceeding are whether the Respondent has committed violations of Florida statutes relating to the operation of a cosmetology salon, and, if so, what penalty should be imposed by the Board of

Cosmetology. Petitioner contends that the Respondent was properly notified of her responsibility to renew her cosmetology salon license and that she failed to do so. Respondent contends that she was never properly notified of this new statutory responsibility.

FINDINGS OF FACT

1. At all times material to this proceeding, the Respondent has been licensed as a cosmetologist in the State of Florida. She holds License No. CL- 0071047 issued by the Board of Cosmetology. For many years, and at all times material to this proceeding, the Respondent has owned and operated a cosmetology salon named "Ramona's Beauty Salon." The salon is located at 130 Dixie Highway, Auburndale, Florida. The salon has, at all material times, been open for business and doing business with the general public as a cosmetology salon.

   
   

2. Prior to July 1, 1980, cosmetology salons were required to be registered with the Board of Cosmetology; however, there was no requirement that the registration, once obtained, be renewed. Registration of a salon was permanent. In 1978, the Legislature amended provisions of law relating to registration of cosmetology salons. Effective July 1, 1980, cosmetology salons were required to have renewed their salon license and to renew it again every two years.

   
   

3. Because of the change in the law which imposed a new obligation to renew the registration for a salon, the Board of Cosmetology endeavored to advise its licensees of the obligation to renew the salon registration. In March, 1980, the Board mailed a newsletter to its salon licensees advising them about the change in the law. In May, 1980, the Board mailed renewal cards to its licensees. The cards were to be filled out and returned to the Board with the appropriate fee. The Board endeavored to send these notices to its salon licensees at their currently registered addresses. The address that the Board had for the Respondent's salon was the proper one.

   
   

4. The Respondent did not receive the notices. The evidence does not reveal whether this was the result of the Board's not forwarding them to her, an error on the part of the postal service, or an error by the Respondent. The precise system that the Board used to assure that the notices were properly forwarded to its licensees was not made a part of the record. The evidence is insufficient to establish why the Respondent did not receive the notices.

   
   

5. Prior to 1979, the Board of Cosmetology inspected the premises of its licensees on at least an annual basis. Typically, inspections were conducted more frequently than that. When the Legislature reorganized the Department of Professional Regulation, these periodic inspections ceased during the transition period. The Respondent's salon was inspected in September, 1979. It was not inspected again, however, until December, 1982. The Board endeavored to help apprise its licensees of the need to renew salon licenses by having its inspectors inform the licensees during inspections. Since the Respondent's salon was not inspected during that period, she did not receive the benefit of that advice.

   
   

6. The Respondent's salon had been registered with the Board since 1971. She never had any reason to believe that she needed to renew her salon's registration until sometime in 1981. The Respondent's daughter was attending a cosmetology school and heard that salon licenses needed to be renewed, and passed this information on to her mother. Her mother called a representative of the Board at the Winter Haven office. Prior to the reorganization, the Board

   maintained its principal offices in Winter Haven. Thereafter the offices were moved to Tallahassee, but the testing function continued to be administered from the Winter Haven office. The person who the Respondent talked to at the Winter Haven office advised her that she would be receiving registration forms from Tallahassee and that she did not need to take any action until she received those forms.

   
   

7. The Respondent attended continuing education programs during the period following the change in the registration requirement. At none of these programs was she advised of the new obligation to renew the salon license.

   
   

8. On December 3, 1982, an inspector with the Department of Professional Regulation inspected the Respondent's salon. The inspector observed that the salon license had not been renewed. The Respondent was advised of her responsibility to obtain a current registration for the salon, and she took immediate steps to accomplish that. Her salon is now properly registered.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. Sections 120.57(1), 120.60, Florida Statutes.

   
   

10. The Petitioner is seeking to impose a civil penalty against the Respondent. Petitioner has the burden of proof to establish that the Respondent has committed some offense that would justify the imposition of a penalty.

    
    

11. Under Section 477.029(1)(b), it is unlawful for any person to operate a cosmetology salon unless it has been duly licensed. Prior to July 1, 1980, the registration of a cosmetology salon was permanent. Through Chapter 78-253, Laws of Florida (1978), the Board of Cosmetology was authorized to adopt rules requiring renewal of registration for cosmetology salons. See: Section 477.025(8), Florida Statutes. In accordance with this authority, the Board adopted Rule 21F-20.05, Florida Administrative Code. The rule required that all salons renew their registration on or before June 30 of each biennial year.

    This obligation first came into effect on June 30, 1980.

    
    

12. Since the requirement for renewal of cosmetology salon registration was a sharp departure from the prior system, it was incumbent upon the Board to notify its salon licensees of the new obligation. The Board undertook to accomplish that. Its efforts with respect to the Respondent were unsuccessful. The Respondent did not receive notice of her obligation to renew her registration until December, 1982. Petitioner has failed to establish that its procedures were sufficient to assure that the proper notices were forwarded to all licensees. The evidence does reveal that the Respondent did not receive the notices. Accordingly, the Petitioner has failed to establish an essential element of its case.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby,

RECOMMENDED:

That a Final Order be entered by the Board of Cosmetology dismissing the Administrative Complaint filed against Respondent, Louise R. Mills.

RECOMMENDED this 14th day of July, 1983, in Tallahassee, Florida.

G. STEVEN PFEIFFER Assistant Director

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 14th day of July, 1983.

COPIES FURNISHED:

Theodore R. Gay, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Louise R. Mills

130 Dixie Highway Auburndale, Florida 33823

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Myrtle Aase, Executive Director Florida Board of Cosmetology Old Courthouse Square Building

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-001317

Orders for Case No: 83-001317