STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2527

)

BONNIE J. WAGONER, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, in Sarasota, Florida, on November 10, 1983. The appearances were as follows:

APPEARANCES

For Petitioner: Theodore R. Gay, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Bonnie J. Wagoner, pro se

1714 Devanshire

Sarasota, Florida 33577

On April 12, 1983, the Petitioner filed a one count Administrative Complaint against the Respondent. In that complaint it is alleged that the Respondent had operated a cosmetology salon known as Bonnie's Boutique without a current active cosmetology salon license since approximately July 1, 1980. The Petitioner then alleges in its complaint that the subject operation, without proper licensure, allegedly constitutes a violation of Sections 477.028(1)(b) and 477.029(1)(b), Florida Statutes (1981). The petitioner seeks to suspend, revoke or take other disciplinary action against the Respondent's personal license to practice cosmetology on that basis. However, Section 477.029(1)(n) provides that it is unlawful to operate a cosmetology salon without a license and that the Board has authority to impose a civil penalty not to exceed $500 for such unlicensed operation. The petitioner thus seeks to impose such a civil penalty as well. Thus, the issue presented concerns whether the Respondent has operated a cosmetology salon without a license and is therefore subject to the disciplinary provisions of Sections 477.028(1)(b) and 477.029(1)(b) and (2), Florida Statutes.

At the hearing, the petitioner presented two witnesses and the Respondent presented herself as her own witness. Petitioner offered Exhibits 1 through 7, all of which were admitted into evidence. The Petitioner requested the opportunity to file proposed findings of fact and conclusions of law, which were timely filed November 21, 1983.

All proposed findings of fact, conclusions of law and supporting arguments have been considered. To the extent that the proposed findings and conclusions submitted are in accordance with the Findings, Conclusions and views stated herein, they have been accepted. To the extent that the proposed findings and conclusions are inconsistent herewith, they are rejected. Certain proposed findings and conclusions have been omitted as not relevant or as not necessary to a proper determination of the material issues presented. To the extent that the testimony of various witnesses is not in accord with the Findings herein, it is not credited. See, Sonny's Italian Restaurant v. Department of Business Regulation, 414 So.2d 1156, 1157 (Fla. 3rd DCA 1982); Sierra Club v. Orlando

Utilities Commission, 436 So.2d 383 (Fla. 5th DCA 1983).

FINDINGS OF FACT

1. The Respondent was licensed by the State of Florida to practice cosmetology, having been issued license number CL 0030044. On September 27, 1966, the Respondent was issued a cosmetology salon license numbered CE 0009517 authorizing the operation of a cosmetology salon called "Bonnie's Boutique," located at 426 South Pineapple Avenue, Sarasota, Florida, owned by the Respondent. The petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 477, Florida Statutes, as that relates to licensing and regulation of the activities and practices of cosmetologists and cosmetology salons.

   
   

2. After assuming ownership of, and obtaining licensure for the operation of a cosmetology salon, the Respondent began operating Bonnie's Boutique, She operated Bonnie's Boutique as a cosmetology salon until approximately June 30, 1980, when her cosmetology salon license became ripe for renewal. She was leasing the premises in which she operated her business, which lease continued through August of 1983. The Respondent failed to renew her cosmetology salon license number CE 0009517 after it expired on June 30, 1980. From that time until August, 1983, when the lease on the premises expired, the Respondent operated Bonnie's Boutique, albeit on a limited basis due to health problems, performing cosmetology services primarily for friends and relatives. Sometime in January, 1983, in the course of an investigation of the Respondent's activities with regard to the salon premises, it was discovered by petitioner's investigator that the Respondent was operating the cosmetology salon at the above address on at least an intermittent basis without a current cosmetology salon license. Due to health problems, the Respondent has never sought to operate a fully active cosmetology salon business since the expiration of her salon licensure on June 30, 1980. Aside from the subject action there has never been any other disciplinary proceeding instituted against the Respondent with regard to her licensure status.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings. Section 120.57(1), Florida Statutes (1981).

   
   

4. Pursuant to Section 477.025(8), Florida Statutes (Supp. 1978), as well as Rules 21F-10.08 and 21F-20.05, Florida Administrative Code, the Respondent's cosmetology salon license became subject to a biennial renewal requirement, with its first expiration date being June 30, 1980, at which time renewal was required. The Respondent clearly failed to renew her cosmetology salon license number CE 0009517 on or before that date. Her license thus became of no further

   force and effect by operation of law at that point. Section 477.029 provides pertinently as follows:

   
   

   1. It is unlawful for any person to:

      (h) Operate any school of cosmetology or cosmetology salon unless it has been duly licensed as provided in this chapter. . .

   2. Any person violating the provisions

of this section shall be liable for a civil penalty, not to exceed $500, as determined by the board.

There is no question that the evidence of record underlying the above Findings of Fact establishes that the Respondent did indeed operate Bonnie's Boutique as a cosmetology salon after June 30, 1980, albeit on a limited basis, consisting primarily of performing cosmetology services for friends and relatives. This constitutes a violation of Section 477.029(1)(b) as alleged in the Administrative Complaint. The Respondent by violating Section 477.029(1)(h), Florida Statutes, has been proven also to have violated Section 477.028(1)(b), Florida Statutes, which provides that the Board shall have the power to revoke, suspend or impose other disciplinary measures against the licensure status of a licensee upon proof that the holder of a license has been guilty of misconduct in the practice of cosmetology. By operating a cosmetology salon without a proper license when, by her previous licensure for her salon, the Respondent must be deemed to have been on notice of the requirement for that license. It must be concluded that she has, indeed, committed an act of misconduct in the practice of cosmetology for which the Board may impose the disciplinary measures enunciated in the section cited last above. However, in view of the fact that the Respondent was chronically ill during the period of time in question and was thus only intermittently operating her business without appropriate license; in view of her intention not to actively engage in the practice of cosmetology during the periods of time in question and in the future; and in view of the fact that she only intermittently opened her business to accommodate friends and relatives, and not the general public; a substantial penalty under these circumstances is not warranted.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, and the evidence of record, it is, therefore

RECOMMENDED:

That a Final Order be entered imposing the penalty of a reprimand on the Respondent Bonnie J. Wagoner.

DONE and ENTERED this 20th day of February, 1984, in Tallahassee, Florida.

P. MICHAEL RUFF 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 20th day of February, 184.

COPIES FURNISHED:

Theodore R. Gay, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Bonnie J. Wagoner 1714 Devanshire

Sarasota, Florida 33577

Myrtle Aase, Executive Director Board of Cosmetology Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred M. Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-002527

Orders for Case No: 83-002527