STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2284

)

WOMEN'S EXCHANGE, d/b/a )

FINGERTIPS, )

)

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, on October 18, 1983, in Miami, Florida. The issue for consideration here was whether Respondent's license to operate a cosmetology salon in the State of Florida should be disciplined because of purported misconduct as 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: Joyce Hanks-Knox, Esquire

President, Women's Exchange, Inc. 1828 Northeast Fourth Avenue Miami, Florida 33142

BACKGROUND INFORMATION

On April 29, 1983, Petitioner filed an Administrative Complaint in this case alleging in two counts that in January, 1983, Respondent had been guilty of two incidents of misconduct by permitting unlicensed persons to practice cosmetology in its salon in violation of Sections 477.028(2)(b) and 477.029(1)(c), Florida Statutes (1981). Respondent submitted an Election of Rights form on May 24, 1983, in which it disputed the allegations and requested a hearing under Section 120.57(1), Florida Statutes (1981).

At the hearing, Petitioner presented the testimony of the investigator, Steven M. Granowitz, and that of Joyce Hanks-Knox, President of Respondent corporation, and Petitioner's Exhibits 1 through 7. Ms. Knox also testified for Respondent and submitted Respondent's Exhibit A.

FINDINGS OF FACT

1. At all times pertinent to this hearing, Respondent, Women's Exchange, Inc., possessed a valid Florida license to operate a cosmetology salon at 1828

   N.E. Fourth Avenue, Miami, Florida, under License No. CE 0032221, which license was issued on September 16, 1982, and expires on October 31, 1984.

   
   

2. On January 20, 1983, Steven M. Granowitz, an investigator for Petitioner, Department of Professional Regulation, Board of Cosmetology, entered Respondent's salon for a routine inspection. When he entered the salon, which was located in what appeared to be a home, he noticed it was quite busy. Customers were being waited on at all operator positions, and others were waiting their turn.

   
   

3. Upon entering the salon, Mr. Granowitz tried to find the manager to identify himself and present his credentials, but no manager was present, so he talked to the receptionist, showing her his credentials and advising her he was going to do an inspection. At first, he looked at the salon license and went to examine the four operators and their licenses. These licenses are required to be displayed prominently in the shop. None of the four operator stations were displaying licenses. Two operators indicated they had licenses, but did not have them present. Mr. Granowitz made a phone call to his board and verified that these two individuals, Yvonne Eberhart and Clara Ann Edden, were in fact licensed.

   
   

4. The two other individuals who he observed to be at operator stations with customers in the chairs, to whom they were applying curly perms, Jacqueline Dulippe and Jeanette Toussaint, were not licensed either by the Board of Cosmetology or Barbers' Board. He, admittedly, did not watch these two unlicensed operators during the entire period he was there. Consequently, it may well be that other licensed operators also worked on the same customers. There is no doubt in his mind, however, that what he observed these two do were cosmetology operations. Licenses are required to perform the work being performed by these two individuals, though not all functions in a cosmetology salon require a license.

   
   

5. When Mr. Granowitz discussed this situation shortly thereafter that day with Antonia Gary, one of the officers of Respondent corporation, in the salon, she indicated she was not the manager of the salon, that none of the corporate officers were involved in the day-to-day operation of the salon, and that she did not know these two individuals were not licensed. However, there was no claim that either had misrepresented their license status.

   
   

6. Joyce Ann Hanks-Knox, President of Women's Exchange, Inc., the corporation which owns the corporation which now owns Fingertips, the salon in question, admits that the license is in the name of Women's Exchange, Inc.

   There is no question, however, that Women's Exchange, Inc., holds the license in question for Fingertips and that the current Fingertips salon is that which is described in the license. She is not a licensed cosmetologist, and while she spends as much as 20 hours per week in the business of Women's Exchange, Inc., these duties do not include active management of the salon.

   
   

7. She further relates, however, that it has never been the policy of either the parent corporation or the management of Fingertips to permit unlicensed operators to work, unsupervised, on customers. She admits that both women in question worked at Fingertips and, in fact, one was hired by her. Their duties were to be trained as operators and to perform other small tasks

   within the salon, such as moving patrons from one area to another, cleaning the salon, and insuring that supplies were at the work stations as needed. They were also allowed to wash hair, but, in this apprentice program, nonlicensed personnel were not to give permanents or do anything else that could be considered cosmetology. All of the licensed operators knew what the apprentice program consisted of, its limitations, and that these two individuals were not licensed. As such, they should have stopped them from performing unauthorized tasks. Neither individual was hired as a cosmetologist, nor was she paid as a cosmetologist.

   
   

8. Since neither Ms. Knox nor Ms. Gary actively supervise the operation of the salon, since Mr. Granowitz could find no one there during his visit who admitted to being in charge, and since there was no evidence presented that there was any manager assigned to the salon, it is obvious that the salon was left, for the most part, to run itself without effective management supervision.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

   
   

10. In Counts I and II, Respondent corporation is charged with allowing unlicensed employees to practice cosmetology in its salon, in violation of Sections 477.020(2)(b) and 477.029(1)(c), Florida Statutes (1981). These statutory provisions state:

    
    

    Section 477.028(2)(b):

    
    

    The board shall have the power to revoke or suspend the license of a cosmetology salon or a school of cosmetology licensed under this chapter, to deny subsequent licen- sure of such salon or school, or to

    reprimand, censure, or otherwise disci- pline the owner of such salon or school in either of the following cases:

    1. Upon proof that the holder of a license is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the operation of the salon or school so licensed.

       
       

       Section 477.029(1)(c):

       
       

       It is unlawful for any person to:

    2. Permit an employed person to practice or teach cosmetology unless duly licensed as provided in this chapter.

       
       

       The only difference between the two counts is the identity of the unlicensed individuals.

       
       

11. Here, the evidence clearly shows that both individuals were unlicensed and, notwithstanding the contention of Ms. Knox that to do so was against Respondent's written policy, both unlicensed ladies were practicing cosmetology

    by administering a permanent wave to a customer when Petitioner's inspector was in the salon.

    
    

12. It may well be that this was done without the direction, express permission, or knowledge of either Ms. Knox or Ms. Gary. This does not constitute a defense, however, since it appears there was no direct management supervision over the operation of the salon by the Respondent, the parent corporation, and, clearly, it had a responsibility to do so. The lack of supervision displayed the laissez-faire management technique employed both join together to result in that degree of neglect of the salon operation which constitutes constructive permission. Consequently, the allegations in both counts have been established.

    
    

13. It is also clear that no one was injured by their misconduct, that it was not an intentional violation, and that neither revocation nor suspension is an appropriate penalty in this case.

    
    

14. The Petitioner has submitted a proposed recommended order which includes 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.

RECOMMENDATION

Based on the foregoing, it is, therefore, RECOMMENDED:

That Respondent corporation be reprimanded and pay an administrative fine of $250 for each count proven -- a total of $500.

DONE AND RECOMMENDED this 15th day of November, 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 15th day of November, 1983.

COPIES FURNISHED:

Theodore R. Gay, Esquire Mr. Fred Roche

Department of Professional Secretary

Regulation Department of Professional

130 North Monroe Street Regulation Tallahassee, Florida 32301 130 North Monroe Street

Tallahassee, Florida 32301

Joyce Hanks-Knox, Esquire President

Women's Exchange, Inc. 1828 N.E. Fourth Avenue Miami, Florida 33142

Ms. Myrtle Aase Executive Director Board of Cosmetology

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-002284

Orders for Case No: 83-002284