STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1797

)

STANTON M. SHAPIRO, )

d/b/a MANE EVENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on August 1, 1988, in Miami, Florida.

Petitioner Department of Professional Regulation, Board of Cosmetology, was represented by Tobi C. Pam, Attorney at Law, Tallahassee, Florida. Stanton M. Shapiro appeared on his own behalf and on behalf of Mane Event.

Petitioner filed an Administrative Complaint against the Respondent, and Respondent timely requested a formal hearing on the charges against him.

Accordingly, the issues for determination herein are whether Respondent is guilty of the allegations contained within the Administrative Complaint, and, if so, what disciplinary action should be taken against him, if any.

Petitioner presented the testimony of Richard Braun. The Respondent testified on his own behalf. Additionally, Petitioner's Exhibits numbered 1 and

2 were admitted in evidence.

FINDINGS OF FACT

1. At all times material hereto, Respondent Stanton M. Shapiro is and has been licensed to practice cosmetology and operate a cosmetology salon in the State of Florida, having been issued license numbers CL 0072012 and CE 0029409. At all times material hereto, Respondent has been the owner of the cosmetology salon known as Mane Event located in North Miami, Florida.

   
   

2. On January 20, 1988, Richard Braun, an inspector employed by Petitioner, visited the Mane Event for purposes of making an annual inspection. Respondent was not present at the salon during the inspection. No customers were present either.

   
   

3. When Braun entered the salon through the front door which was standing open, he saw a cat in the front of the salon. The salon is located next to a trailer park, and cats and dogs will wander into the salon when the front door is left standing open.

4. The only person in the salon while Braun was there was a lady named Louvenia. She is not an employee of the Mane Event or of Respondent. Rather, she is a person who for several months had come in to the salon on occasion to give manicures.

   
   

5. Braun asked Louvenia where Respondent kept his sanitized instruments and she pointed at some open wicker baskets. He also saw some combs and brushes lying on towels in the back of the salon.

   
   

6. Although Respondent's licenses were displayed in the salon, his photograph did not appear on them.

   
   

7. Respondent keeps his clean brushes in a sanitized container and uses a separate sterilizer for his combs. He keeps his dirty brushes in wicker baskets. A few years ago Respondent was "cited" for his procedures regarding clean and dirty brushes and thereafter corrected his procedures to comply with the Board's requirements. He has had no other prior regulatory problems.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.

   
   

9. The Administrative Complaint charges Respondent with violating rule 21F-20.02, Florida Administrative Code, and, therefore, sections 477.0265(1)(c) and 477.029(1)(i), Florida Statutes (1985).

   
   

10. Section 477.029(1)(i), Florida Statutes, authorizes the Board of Cosmetology to take disciplinary action against a licensee who violates or refuses ". . . to comply with any provision of this chapter or chapter 455 or a rule or final order of the board." Section 477.0265(1)(c), Florida Statutes, makes it unlawful to willfully or repeatedly violate the cosmetology act or any rule adopted by the Board.

    
    

11. Rule 21F-20.02, Florida Adninistrative Code, contains requirements for applications for registration of salons, sanitation requirements for salons, minimum space requirements, physical plant requirements, and physical space/employee ratio requirements for salons. The Administrative Complaint charges that Respondent violated that rule by having a cat present in the salon, by storing sanitized tools in open baskets, and by failing to have photographs on the licenses. Petitioner has failed to carry its burden of proof in this proceeding.

    
    

12. Although rule 21F-20.002(3)(2), Florida Administrative Code, prohibits allowing animals in a salon, Petitioner has failed to show that Respondent "allowed" the cat to be in the salon. Respondent was not present, and the door to the salon was standing open. No evidence was offered to show how long the cat was in the salon. Although Petitioner's inspector went to great lengths to testify as to habits of cats in general, and specifically his own cats, by explaining that cat hair on a loveseat nearby meant the cat had been in the salon for some time period, there is no showing that that cat hair was from that cat.

    
    

13. Similarly, Petitioner's hearsay testimony that someone pointed at some wicker baskets when asked where Respondent kept his combs and brushes falls short of that level of proof required for a regulatory board to discipline a

    licensee. There is no showing that Louvenia was in a position to know what Respondent's sanitation practices were, and no photographs were offered in evidence to show whether any combs or brushes in those baskets were sanitized or dirty.

    
    

14. Although Respondent admitted that he did not have his photograph attached to his licenses, the Administrative Complaint fails to cite any rule requiring that to be done. Rule 21F-20.002, Florida Administrative Code, is the only rule Respondent is charged with violating, and that rule is silent with regard to photographs on licenses.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained in the Administrative Complaint and dismissing the Administrative Complaint filed against him.

DONE and RECOMMENDED this 31st day of August, 1988, at Tallahassee, Florida.

LINDA M. RIGOT, 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 Administrative Hearings this 31st day of August, 1988.

COPIES FURNISHED:

Myrtle Aase, Executive Director Board of Cosmetoiogy

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Tobi C. Pam, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Stanton M. Shapiro c/o Mane Event

1987 N.E. 135th Street North Miami, Florida 33181

Bruce D. Lamb, General Counsel Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-001797

Orders for Case No: 88-001797