STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3075

)

AJL ENTERPRISES, d/b/a )

RENDEZVOUS BEAUTY SALON, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in St. Petersburg, Florida, on August 10, 1988, before Arnold H. Pollock, Hearing Officer. The issue for consideration was whether Respondent's license to operate a cosmetology salon in Florida should be disciplined because of the misconduct alleged in the Administrative Complaint filed herein.

APPEARANCES

Petitioner: Ronald L. Jones, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Respondent: Ruth E. Lucido

Secretary, AJL Enterprises 666 East Welch Causeway Madeira Beach, Florida 33708

BACKGROUND INFORMATION

On October 23, 1987, Charles F. Tunnicliff, Chief Attorney of the Professions Section, Department of Professional Regulation, on behalf of the Board of Cosmetology, (Board), filed an Administrative- Complaint in this case alleging that the Respondent was guilty of several violations of Chapter 21F,

F.A.C. and thereby, Section 477.29, Florida Statutes, by not maintaining full sanitation standards required by law for the operation of a cosmetology salon.

Respondent disputed the allegations against it and requested a formal hearing and on May 31, 1988, the file was forwarded to the Division of Administrative Hearings for the appointment of a Hearing Officer. On July 11, 1988, the undersigned set the case for hearing on August 10, 1988, at which time it was held as scheduled.

At the hearing, the Petitioner presented the testimony of Marjorie G. May, an investigator for the Department of Professional Regulation, but introduced no documentary evidence. Respondent presented tne testimony of Miciael J.

Gaudette, a beauty operator in the Respondent's Rendezvous Beauty Salon; Loretta

1. Chaffin, also an operator in that salon; and Ruth E. Lucido, Secretary of the Respondent Corporation. Respondent submitted Exhibit A which was received into evidence.

   
   

   No transcript of the hearing was furnished. Petitioner submitted proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. By stipulation, the parties agreed that at all times pertinent to the allegations contained herein, the Respondent, AJL Enterprises, was licensed by the State of Florida to operate a cosmetology salon under license Number CE0020026, and under that license, operated the Rendezvous Beauty Salon at 5804 28th Avenue South, Gulfport, Florida 33707. Petitioner was and is the state agency charged with regulating the practice of cosmetology in Florida.

      
      

   2. On February 26, 1986, Marjorie May, an inspector for the Department of Professional Regulation, entered the Rendezvous Beauty Salon for the purpose of conducting a routine inspection of the premises. She found the shop to be generally in "pretty good condition". However, in the back room where supplies were kept, she saw two or three live roaches. She also noted that one of the operators on duty, Albert Brewer, was not using a wet sanitizer for the brushes and combs he used. At that time, other employees in the shop were. She also noted that there was no soap in the bathroom. All ot these deficiencies, identified under the pertinent rules of the Board, were, at that time, brought to the attention of Loretta Chaffin, the shop manager, but Ms. Chaffin does not recall the conversation.

      
      

   3. On February 24, 1987, Ms. May again inspected the salon and again, the condition of the shop was "generally good." However, clean towels, stored on a shelf, were not covered so as to protect them from dust as is required. She also noted that at least one of the operators, Edith Diamond, failed to have a current picture affixed to her license. On this visit, Ms. May noted no roach infestation. She brought the discrepancies identified to the attention of Barbara Shaw, a stylist, in the absence of the manager.

      
      

   4. Ms. May went back to the salon on August 18, 1987 for a follow-up inspection. On this occasion, she again saw one or two roaches in the back room and in general, the condition of the shop was not as good as it had been previously. She noted, for example, that the upholstery on the back of nearly half the nine styling chairs had split three or four inches and the foam stuffing was visible. Towels on an open rack were uncovered again, and wet sanitizers were not being used by any operator at any station.

      
      

   5. The only person present in the salon at the time was Michael Gaudette, a new employee, (stylist), and Ms. May briefed him as to the discrepancies. Mr. Gaudette could give no reason for not using a sanitizer indicating instead that the combs and brushes were sanitized in the rear of the shop by being immersed in a cleansing solution contained in a plastic tub. The use of a coverable plastic tub is acceptable, however, the cleansing solution must be a bactericide and fungicide such as Barbacide. Mr. Gaudette, according to Ms. May, indicated that he was using Seabreeze, an astringent. At the hearing, Mr. Gaudette denied this as did Ms. Chaffin, who indicated that the procedure followed was to thoroughly comb out all brushes to remove any loose hair, wash them thoroughly in soap and water, and then immerse them in a solution of Barbacide for 10

      minutes. It is found that though a tub was being used, it had no cover and Mr. Gaudette's spontaneous statement about using Seabreeze is more credible than that of the manager, made in a disciplinary hearing, almost a year later.

      
      

   6. Ms. May also noted that Ms. Diamond's picture was still not current. However, each time she saw them, all licenses were current and appropriate. The only difficulty regarding the licenses was the failure by Ms. Diamond, and perhaps others, to have the required current picture.

      
      

   7. Ms. May went back to the Rendezvous Beauty Salon the day of the hearing and found that all discrepancies, with the exception of Ms. Diamond's picture, had been corrected. Evidence indicates as well, that an order had been entered on June 18, 1987, several months before the August inspection, to have the stylist chairs repaired and the delay was caused by the upholsterer. The salon is located in between a grocery store on one side and a delicatessen on the other. It is because of this that control of roaches on the premises is difficult. Efforts to control them, however, in place and operative, include monthly spraying by both Ms. Chaffin and monthly pest service by a professional exterminator. Though roach infestation may occur from time to time, it is not heavy.

      
      

      CONCLUSIONS OF LAW

      
      

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

      
      

   9. Petitioner has alleged that Respondent is in violation of various provisions of Rule 21F-20.002, F.A.C. which relate to the sanitary requirements of beauty salons. In a disciplinary case such as this, the Petitioner has the burden of proof to establish the deficiencies upon which it relies for action by clear and convincing evidence (Ferris. v. Turlington, 510 So.2d 292 (Fla. 1987).

      
      

   10. Section 477.029, Florida Statutes, authorizes the Board to discipline a licensee who:

       
       

       (1)(i) violate[s] or refuse[s] to comply with any provision of this chapter or a rule or final order of the board or department.

       
       

   11. Action may range from probation to revocation of the license.

       
       

   12. Rule 21F-20.002, sets forth the standards established by the Board for sanitation in cosmetology salons. These include:

       
       

       21F-20.002(3)(c): Each salon shall provide lavatories equipped with running water, hand cleansing materials, sanitary towels or other approved hand drying devices....

       21F-20.002(4)(a): Each salon shall keep clean linens in a closed, dustproof cabinet....

       21F-20.002(4)(c): The use of a brush, comb, or other article on more than one patron without being sanitized is prohibited. Each salon is required to

       have sufficient combs, brushes and implements to allow for adequate sanitizing....

       21F-20.002(4)(d): All salons shall be equipped with wet sanitizers, sufficient to allow for sanitizing practices.

       1. A wet sanitizer is any receptacle containing a disinfectant solution and large enough to allow for a complete immersion of the articles. A cover shall be provided.

       2. Sanitizing methods which are effective and approved for salons: First, clean articles with soap and water, completely immerse in a chemical solution as follows:

          1. Combs and brushes, remove hair first and immerse in 10% formalin;

          2. Metallic instrument, immerse in 25% formalin;

          3. Instruments with cutting edge, wipe with 70% alcohol; or

          4. Implements may be immersed in a Quaternary Ammonium Compound solution.

             21F-20.004: Licensees shall display for public viewing in a conspicuous place the following documents:

             * * * (2). Current licenses for

             cosmetologists and specialists employed therein. A photograph which is approximately 2" by 2" and less than two years old shall be attached to the displayed license of each cosmetologist and specialist employed in the salon.

             
             

   13. Here, the evidence demonstrated that on at least two occasions, Respondent violated Rule 21F-20.002(4)(a), by failing to keep clean linens in a closed, dustproof cabinet. The fact that the towels may recently have been delivered by the linen service and Respondent's employee had not had time to put them away, is not an excuse.

       
       

   14. Further, the evidence also demonstrates that on at least one occasions, Respondent failed to have soap in the lavatory in violation of Rule 21F-20.002(3)(c).

       
       

   15. The tub used for sanitizing the salon's instruments may, in the opinion of Ms. May, be satisfactory, but the Rule in question, 1lF- 20.002(4)(d)1, requires the receptacle be provided with a cover. One was not so provided and this failure constitutes a violation. By the same token, though Barbacide, the solution considered acceptable as a sanitizing agent was often used by Respondent, Mr. Gaudette's spontaneous admission of the use of Seabreeze, a non-qualifying substance, establishes that at least when he was on duty, that is what was used.

   16. The rips in the backs of some of the chairs, in so far as they permitted hair and dust to accumulate in the stuffing which could not readily be cleaned, constitute a violation of 21F-20.002(3)(a).

       
       

   17. Finally, though not in itself significant, the failure to Respondent to insure that Ms. Diamond had a current picture displayed on her license is still an actionable violation which can be considered along with those others relating to the more serious question of sanitation and health.

       
       

   18. To be sure, Respondent has made a substantial and successful effort to correct all identified deficiencies with the exception of Ms. Diamond's picture. Though disciplinary action is appropriate, in light of the fact that the major purpose of inspections of this nature is to protect the public health, and that purpose has been met here, such action taken in this case need not be severe.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that Respondent, AJL Enterprises, d/b/a Rendezvous Beauty Salon, be assessed an administrative fine of $250.00.

RECOMMENDED this 30th day of August, 1988, at Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 30th day of August, 1988.

APPENDIX TO RECOMMENDED ORDER IN CASE NUMBER 88-3075

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

FOR THE PETITIONER:

1. Accepted and incorporated herein

2. Accepted and incorporated herein

3. Accepted and incorporated herein

4. Accepted and incorporated herein

5. Accepted and incorporated herein

6. Accepted and incorporated herein

7. Accepted and incorporated herein

FOR THE RESPONDENT

None submitted

COPIES FURNISHED:

Ronald L. Jones, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, FL 32399-075O

Ruth E. Lucido

Secretary, AJL Enterprises 666 East Welch Causeway Madeira Beach, Florida 33708

Myrtle Aase, Executive Director Board of Cosmetology

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-003075

Orders for Case No: 88-003075