STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2372

)

ELKE H. M. RICHEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a formal hearing in this case on November 15, 1983, in Jacksonville, Florida. No transcript was ordered. Counsel for the Petitioner submitted proposed findings of fact and conclusions of law, and these have been largely adopted and incorporated herein. Nothing has been received from or on behalf of the Respondent.

APPEARANCES

For Petitioner: Theodore R. Gay, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Elke H. M. Richey, in pro per

1790 State Road 13

Switzerland, Florida 32043

By Administrative Complaint filed on May 18, 1983, the Respondent was charged with performing cosmetology services without an active license in violation of Sections 477.029(1)(a) and 477.028(1)(b), Florida Statutes, and Rule 21F-18.06(7), Florida Administrative Code, and with operating a cosmetology salon without a current salon license in violation of Sections 477.029(1)(a) and 477.028(1)(b), Florida Statutes.

The Petitioner presented one witness, its license inspector, and the Respondent testified in her own behalf. Ten exhibits were offered and received in evidence.

FINDINGS OF FACT

1. On April 28, 1968, the Respondent, Elke H. M. Richey, was issued cosmetology license number CL 0060439 by the Florida Board of Cosmetology. The Respondent renewed this license as required until June 30, 1982. However, during the period from July 1, 1982, through January 10, 1983, the Respondent did not hold an active license to practice cosmetology.

2. On November 18, 1982, Agostino Lucente, an inspector employed by the Department of Professional Regulation, went to the premises of a business named Hair Fashions by Elke, located at 1790 State Road 13, Switzerland, Florida to conduct an inspection. This business was selected for inspection because it appeared on a list of cosmetology salons whose licenses were not current.

   
   

3. The Respondent was present during this inspection, and she admitted that she was the owner of the salon.

   
   

4. Although the Respondent was not actually observed performing any cosmetology services, the inspector observed the Respondent make appointments for such services by telephone and with persons who came in. In addition, there was on the premises equipment used in the practice of cosmetology such as hair dryers and shampoo stations, hair rollers, creams and lotions. There was an exterior sign advertising Hair Fashions by Elke, there were business cards available for distribution inside the premises, the salon was open for business and there was displayed an occupational license with the Respondent's name on it. This evidence supports a finding that the Respondent was engaged in the practice of cosmetology.

   
   

5. On November 24, 1980, the Florida Board of Cosmetology issued to the Respondent license number CE 0030890 for a cosmetology salon named Hair Fashions by Elke, located at 1790 State Road 13, Switzerland, Florida. This license expired on June 30, 1982, and it was not in effect when the Respondent's salon was inspected on November 18, 1982.

   
   

6. After the inspection of November 18, 1982, the Respondent attempted to renew her cosmetology license number CL 0060439 and her cosmetology salon license number CE 0030890. On January 11, 1983, the Board of Cosmetology issued a renewal of the Respondent's cosmetology license number CL 0060439, but it did not issue to the Respondent a renewal of her cosmetology salon license number CE 0030890, and the Respondent eventually sold Hair Fashions by Elke in August of 1983.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this case. Section 120.57(1) and Section 455.225(4), Florida Statutes.

   
   

8. Section 477.029(1), Florida Statutes, provides that it is unlawful for any person to:

   
   

   1. Hold himself out as a cosmetologist... unless duly licensed as provided in this chapter....

   2. Operate any... cosmetology salon unless it has been duly licensed as provided in this chapter,...

      
      

9. Section 477.028(1), Florida Statutes, provides in part as follows:

   
   

   (1) The board shall have the power to revoke or suspend the license of a cosmetologist... licensed under this chapter or to reprimand, censure, deny subsequent licensure of, or otherwise

   discipline a cosmetologist... licensed under this chapter in either of the following cases:

   (b) Upon proof that the holder of a license is guilty of... misconduct in the practice... of cosmetology.

   
   

10. Rule 21F-18.06, Florida Administrative Code, provides in part as follows:

    
    

    (1) Any cosmetology license which is not renewed at the end of the biennium shall automatically revert to an inactive status. Such license may be reactivated only if the license meets the other qualifications for reactivation...

    (7) A cosmetologist may not work with an inactive license.

    
    

11. Although the Respondent's cosmetology salon license number CE 0030890 bears an expiration date of June 30, 1982, an amendment to Rule 21F-20.05, Florida Administrative Code, provided that the license remained current and in full force and effect until October 31, 1982, when it expired and became inactive because the Respondent failed to renew it. Nevertheless, it was not in effect on November 18, 1982, when the salon was inspected. The Respondent is thus guilty of operating Hair Fashions by Elke as a cosmetology salon without a current salon license in violation of Section 477.029(1)(b), Florida Statutes, as alleged in count two of the Administrative Complaint.

    
    

12. Since the Respondent's cosmetology license was expired and thus had reverted to an inactive status between July 1, 1982, and January 10, 1983, she did not hold an active license at the time of the inspection on November 18, 1982. The Respondent is thus guilty of performing cosmetology services with an inactive license in violation of Rule 21F-18.06(7) Florida Administrative Code, and she is guilty of holding herself out as a cosmetologist without being duly licensed, in violation of Section 477.029(1)(a), Florida Statutes, as alleged in count one of the Administrative Complaint.

    
    

13. As alleged in both counts of the Administrative Complaint, the foregoing violations constitute a violation of Section 477.028(1)(b), Florida Statutes, as a misconduct in the practice of cosmetology.

    
    

14. In the post-hearing memorandum filed by counsel for the Petitioner, it is suggested that the penalty guidelines used by the Board of Cosmetology indicate that an administrative fine of $300 should be assessed as the penalty for count one and that a fine of $100 should be assessed for count two of the complaint. However, these penalty guidelines fail to take into consideration the fact that the Respondent made an effort to renew her cosmetology license and her cosmetology salon license, albeit subsequent to the November 18, 1982, inspection, and the fact that the Respondent is no longer practicing cosmetology or operating a salon. In these circumstances, where the licensee has discontinued the business activities for which she was licensed, a more appropriate penalty is a one year suspension of her cosmetology license on count one and a reprimand only on count two.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Elke H. M. Richey, be found guilty as

charged in the Administrative Complaint, and that license number CL 0060439 be suspended for one year as penalty for count one, and that the Board of Cosmetology issue a reprimand to the Respondent, Elke H. M. Richey, as penalty for count two.

THIS RECOMMENDED ORDER entered this 9th day of December, 1983.

WILLIAM B. THOMAS, 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 9th day of December, 1983.

COPIES FURNISHED:

Theodore R. Gay, Esquire

130 North Monroe Street Tallahassee, Florida 32301

Elke H. M. Richey 1790 State Road 13

Switzerland, Florida 32043

Myrtle Aase, Executive Director Department of Professional

Regulation - Board of Cosmetology

130 North Monroe Street Tallahassee, Florida 32301

Fred M. Roche, Secretary

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-002372

Orders for Case No: 83-002372