STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 87-5646

)

ELLOUISE O. ROSS, d/b/a )

ALL AROUND HAIR STYLIST, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case in Jacksonville, Florida, on March 4, 1988, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. At the hearing the parties were represented by the following counsel:

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire Chief Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: R. Lee Utley, Jr., Esquire

331 East Bay Street Jacksonville, Florida 32209

ISSUES AND INTRODUCTION

This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that the Respondent has violated Rule 21F-20.002, Florida Administrative Code, and Sections 477.0265(1)(c) and 477.029(1)(i), Florida Statutes (1985). At the hearing the Petitioner presented the testimony of two witnesses and offered one exhibit into evidence. Thereafter, the Respondent testified in her own behalf. At the conclusion of the evidentiary portion of the hearing, the parties advised the Hearing Officer that they did not intend to obtain a transcript of the proceedings. A deadline of 10 days from the date of the hearing was established for the submission of the parties' proposed recommended orders. The hearing concluded with the presentation of oral argument by counsel for both parties addressed primarily to the issue of the appropriate penalty. As of the date of this recommended order, neither party had filed a proposed recommended order.

FINDINGS OF FACT

1. The Respondent is licensed to practice cosmetology and to operate a cosmetology salon in the State of Florida, having been issued license numbers CL 0163833 and CE 0041166. At all times material hereto, the Respondent has been the owner of a cosmetology salon named All Around Hair Stylist, located at 5567 Moncrief Road, Jacksonville, Florida 32209.

   
   

2. An inspection of the premises of All Around Hair Stylist was conducted on August 29, 1987, by one of the Petitioner's inspectors. At that time the salon was in substantial disarray. Among the conditions in existence in the salon at that time were the following: The container for soiled linens contained trash other than linens. Bags of overflowing trash were in the service area and in the back of the premises. Hair was all over the back room floor that one had to pass through to get to the shampoo bowl and restroom. Food scraps were left in the back room. The salon had an objectionable odor. The floors were filthy and littered with hair, trash, dust, and dirt. The shampoo bowls were not clean. The door leading to the restroom had no handle and a rug jammed against the door made it very difficult to open. The restroom

   had a very unpleasant odor. There was a hole in the wooden floor. The pipes to the sink did not work properly and water from the sink would pour onto the floor. The restroom did not have a waste receptacle, paper towels, or soap.

   There was no ventilation in the restroom. The service area was quite cluttered. The brushes and combs were full of hair.

   
   

3. A reinspection was done on December 3, 1987. At that time there were still some shortcomings in the condition of the premises, but substantial improvements had been made. Shortly before the hearing, another reinspection was done. At the time of the second reinspection, the premises were "spotless."

   
   

4. Approximately a week or ten days before the August 29, 1987, inspection, the Respondent's premises were vandalized. The vandals broke into the building and once inside they broke the sink, the pipes to the sink, the water heater, and various other things in the salon. The vandals also made quite a mess inside the premises by doing such things as taking supplies out of drawers and dumping garbage on the floor. At the time of the August 29, 1987, inspection the Respondent had not yet been able to repair all of the damage caused by the vandals or clean up all of the mess caused by the vandals. The Respondent did not receive a settlement check from her insurance company until sometime after August 29, 1987, and due to her economic circumstances she was not able to begin to repair the damage caused by the vandals until she received the insurance settlement. Since August 29, 1987, the Respondent has repaired all of the damage to the premises and has made other substantial improvements to the premises. The Respondent's premises are in a low rent neighborhood. Many of her customers are in low income brackets. Accordingly, the Respondent charges lower than usual prices for her services and does not earn a large income from the business.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case. Sec. 120.57, Fla. Stat.

6. Section 477.0265(1)(c), Florida Statutes, provides that it is unlawful for any person to "[e]ngage in willful or repeated violations of this chapter [Chap. 477, Fla. Stat.] or of any rule adopted by the board." Section 477.0265(1), Florida Statutes, is a criminal statute, violation of which is punishable as a misdemeanor of the second degree.

   
   

7. Section 477.029(1)(i), Florida Statutes, provides that it is unlawful for any person to: "Violate or refuse to comply with any provision of this chapter [Chap. 477, Fla. Stat.] or chapter 455 or a rule or final order of the board or the department."

   
   

8. Rule 21F-20.002, Florida Administrative Code, contains extensive provisions regarding the cleanliness and sanitary standards that must be maintained in cosmetology salons. On August 29, 1987, the Respondent's cosmetology salon was in violation of several of those provisions by reason of the conditions described in Paragraph 2 of the findings of fact, above. By reason of being in violation of Rule 21F-20.002, Florida Administrative Code, the Respondent was also in violation of Section 477.029(1)(i), Florida Statutes, as alleged in the Administrative Complaint. (Whether the Respondent's violation of Rule 21F-20.002, Florida Administrative Code, is also a violation of Section 447.0265(1)(c), is irrelevant to the disposition of this case, because the Department of Professional Regulation is without statutory authority to prosecute criminal violations.)

   
   

9. Rule 21F-30.001, Florida Administrative Code, contains the disciplinary guidelines adopted by the Board of Cosmetology. Under those guidelines, for violation of the safety and sanitary requirements of Rule 21F-20.002, Florida Administrative Code, the usual recommended penalty is an administrative fine of

$50.00 per violation if less than three violations are found to have occurred or an administrative fine of $250.00 if three or more violations are found to have occurred. Subsection (4) of Rule 21F-30.001 lists additional factors which may be considered by the Board in addition to the general guidelines. Included in those factors are the following which appear to be particularly applicable here: the deterrent effect of the penalty, the effect of the penalty upon the licensee's or registrant's livelihood, and attempts by the licensee to correct the violations. A severe penalty is not necessary for its deterrent effect in this case, because the Respondent had already corrected most violations before she was served with the Administrative Complaint. A severe penalty would have a greater than usual impact on the Respondent's livelihood due to the limited amount of income produced by the business. Finally, a severe penalty is not necessary to promote corrective action, because all of the violations have been corrected.

RECOMMENDATION

Based on all of the foregoing, it is recommended that the Board of Cosmetology enter a final order in this case finding the Respondent guilty of violating Section 477.029(1)(i), Florida Statutes, and imposing a penalty consisting of a reprimand and an administrative fine in the total amount of one hundred dollars ($100.00)

DONE AND ENTERED this 18th day of March, 1988, at Tallahassee, Florida.

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1988.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Chief Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

R. Lee Utley, Jr., Esquire

331 East Bay Street Jacksonville, Florida 32202

Myrtle Aase, Executive Director Board of Cosmetology Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

William O'Neil General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-005646

Orders for Case No: 87-005646