STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-5665

)

KRISTIE J. WHEATLEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on February 16, 1989, in St. Petersburg, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: No appearance

BACKGROUND

This matter arose when petitioner, Department of Professional Regulation, Board of Cosmetology, issued an administrative complaint on March 14, 1988 charging that respondent, Kristie J. Wheatley, had violated Chapter 477, Florida Statutes (1985) in several respects by engaging as a cosmetology specialist without being registered. Thereafter respondent requested a formal hearing under Subsection 120.57(1), Florida Statutes (1987) to contest the agency's action. The matter was referred by petitioner to the Division of Administrative Hearings on November 4, 1988 with a request that a hearing officer be assigned to conduct a hearing.

By notice of hearing dated December 5, 1988 a final hearing was scheduled on February 16, 1989 in New Port Richey, Florida. Venue in this cause was later changed to St. Petersburg, Florida. On December 13, 1988 the case was transferred from Hearing Officer K. N. Ayers to the undersigned. By order dated January 17, 1989 leave was granted for the Board to file an amended administrative complaint.

At final hearing, petitioner presented the testimony of Marge Lee May, then a DPR inspector, Rose Marie Fisher, a licensed cosmetologist, and Lawrence Fisher, also a licensed cosmetologist. It also offered petitioner's exhibits 1-

1. All exhibits were received in evidence. Respondent did not appear.

   There is no transcript of hearing. Petitioner waived its right to file proposed findings of fact and conclusions of law.

   
   

   The issue is whether respondent should be disciplined for the reasons set forth in the amended administrative complaint.

   
   

   Based upon all of the evidence, the following findings of fact are determined:

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner, Department of Professional Regulation, Board of Cosmetology (Board), is charged with the responsibility of regulating the practice of cosmetology. Among its responsibilities are the routine inspections of cosmetology salons to insure that all Board requirements are being met.

      
      

   2. On January 13, 1988 a Board inspector inspected the premises of From Hair on Etc., a licensed cosmetology salon in Clearwater, Florida. During the course of the inspection, the inspector observed a work station set up for respondent, Kristie J. Wheatley. The inspector also reviewed the salon's appointment book and noted manicure appointments for "Kristie" beginning around October 13, 1987 and continuing until January 19, 1988. However, the inspector did not find a license for respondent, and a subsequent search of Board records revealed that respondent was not registered with the Board.

      
      

   3. The inspector later talked with respondent by telephone. Respondent acknowledged that she had been employed as a manicurist at the salon since October 1987 and was not registered with the Board. She informed the inspector that she was unaware that the Board had begun enforcing a new law that required manicurists to be registered.

      
      

   4. According to owners of the salon, respondent performed manicure services in the salon for a three month period from October 1987 until January 1988. She was compensated for these services. In response to their inquiry as to her registration status, Wheatley told them she had filed an application for registration. Later on, she advised them the registration was at her home. When the owners learned from the inspector that respondent was not registered with the Board, her services were terminated.

      
      

      CONCLUSIONS OF LAW

      
      

   5. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1987).

      
      

   6. Since respondent has no professional license, petitioner need only prove the allegations in the amended administrative complaint by a preponderance of the evidence.

      
      

   7. Subsections 477.013(b) and (7), Florida Statutes, define a specialist and a specialty as follows:

      
      

      1. "Specialist" means any person holding a specialty registration in one or more of the specialties registered under this chapter.

      2. "Specialty" means the practice

         of one or more of the following:

         (a) Manicuring, or the cutting, polishing, tinting, coloring, cleansing, adding, or extending of the nails, and massaging of the hands. . .

         
         

   8. Respondent is charged with "practicing a cosmetology specialty without being duly licensed as provided in Chapter 477, Florida Statutes, since approximately October 13, 1987" and continuing through at least January 13, 1988. According to the amended complaint, this conduct violated Subsections 477.0265(1)(a), 477.029(1)(a) and 477.029(1)(h), Florida Statutes (1985). Those statutes make it unlawful for any person to (a) engage in the practice of a specialty without being registered, (b) hold oneself out as a specialist unless duly registered, and (c) violate any provision of section 477.0265. These allegations will be considered below.

      
      

   9. The preponderance of evidence reveals that from October 13, 1987 through January 13, 1988, respondent practiced a specialty of cosmetology (manicuring), held herself out as a registered specialist, and by doing so, violated a provision within subsection 477.0265. Therefore, the charges have been sustained.

      
      

   10. Subsection 477.029(2)(c), Florida Statutes (1987) authorizes the imposition of a fine not to exceed $500 for each count or separate offense. Petitioner, through counsel, has recommended the imposition of a $150 fine and that respondent not be permitted to register with the Board until such fine is paid. This penalty is appropriate under the circumstances.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that respondent be found guilty as charged in the amended administrative complaint, that she be assessed a $150 fine, and that she not be permitted to register with the Board until such fine is paid.

DONE and ENTERED this 24th day of February, 1989, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1989.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Professional

Regulation

130 North Monroe

Tallahassee, Florida 32399-0750

Kristie J. Wheatley 14194 Darts Drive

Fenton, MI 48430

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation

130 North Monroe

Tallahassee, Florida 32399-0750

Myrtle Aase, Executive Director Department of Professional

Regulation

Board of Cosmetology

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-005665

Orders for Case No: 88-005665