STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-5971

)

GLADYS KARNITZ, d/b/a )

A TOTAL IMAGE SALON, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Destin, Florida before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on April 21, 1989. Respondent did not appear. Petitioner appeared through counsel:

Tobi C. Pam

130 North Monroe Street Tallahassee, Florida 32399-0750

By administrative complaint filed September 19, 1988, petitioner Department of Professional Regulation (DPR) alleged that respondent holds "license number CL 0075512 and CE 0041778 ... [and] at all times material ... has been the owner of a cosmetology salon named A Total Image Salon and located at 5003 Highway 98, East Destin, Florida"; that respondent employed Donna Blackburn for approximately two months preceding August 11, 1988 "to practice a cosmetology specialty without being duly licensed ... [thereby] violating Section 477.0265(1)(b)(2) and (d) and 477.029(1)(c) and (h), Florida Statutes (1985)"; and that respondent employed Sheila Masters for three weeks "to practice a cosmetology specialty without being duly licensed ... [thereby]

violating Section 477.0265(1)(b)(2) and (d) and 477.029(1)(c) and (h), Florida Statutes (1985)."

ISSUE

Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?

FINDINGS OF FACT

1. Since August 24, 1972, Gladys Karnitz has held cosmetology license No. CL- 0075512. Petitioner's Exhibit No. 1. During this period, she has been registered to practice cosmetology in Florida as a master cosmetologist. Id. On June 13, 1986, Ms. Karnitz obtained salon license No. CE-0041778 for a 1600- square foot facility in a shopping center in Destin, A Total Image Salon. Petitioner's Exhibit No. 2.

2. From January to March of 1988, Donna Blackburn, known then as Donna Stack, worked as a receptionist in A Total Image Salon. After Gladys Karnitz spent a day teaching her how to perform manicures, pedicures and waxing, she asked Ms. Blackburn to render these services to the salon's patrons, even though she knew Ms. Blackburn was not licensed by the Board of Cosmetology.

3. Ms. Blackburn agreed to and did perform manicures, pedicures, and waxing for salon clients on numerous occasions during the three months she worked there. Clients paid the salon for her services, and sometimes gave Ms. Blackburn tips.

4. In April of 1988, Sheila Masters worked two or three weeks as a salaried employee for Gladys Karnitz at A Total Image Salon. She performed manicures and "nail sculptures" for salon customers who paid the salon for her services. Gladys Karnitz knew Sheila Masters was unlicensed, and that their arrangement was unlawful. She told Ms. Masters that she could "get her out of it," if they were caught, because she knew somebody.

5. When DPR's L. M. Rabiteau and W.D. Taylor investigated, as a result of an anonymous complaint that Ms. Karnitz was employing unlicensed persons, she delayed producing appointment books until she had altered them in an effort to conceal appointments for Ms. Blackburn's services.

6. Eventually she admitted hiring Ms. Masters, which she characterized as acting as a "good Samaritan." She claimed Ms. Masters had told her she was licensed and would bring her license in. In fact, Ms. Karnitz was well aware that Ms. Masters had no license.

CONCLUSIONS OF LAW

The Board of Cosmetology has "the power to revoke or suspend the license of a cosmetologist . . . or otherwise discipline a cosmetologist . . . [who has been] guilty of aiding, assisting, procuring or advising any unlicensed person to practice as a cosmetologist." Section 477.028(1)(c), Florida Statutes (1987). Fraud, deceit or "misconduct in the practice . . . of cosmetology or a specialty," Section 477.028(1)(b), Florida Statutes (1987), are other grounds for disciplinary

action by the Board. No person may "[o]wn, operate, maintain, [or] open, . . . a salon . . . [i]n which a person not licensed or registered as a cosmetologist or a specialist is permitted to perform cosmetology or any specialty," Section 477.0265(b)2., Florida Statutes (1987), nor permit an unlicensed employee "to engage in the practice of cosmetology or of a specialty." Section 477.0265(d), Florida Statutes (1987). A penalty is mandatory in such cases. Section 477.029(1)(c) and (2), Florida Statutes (1987). Although the administrative complaint alleged violations of 1985 statutory provisions, existing law does not differ materially. See Drury v. Harding, 461 So.2d 104, 108 (Fla. 1984); Solloway v, Department of Professional Regulation, 421 So.2d 573 (3d DCA 1982) rev. den. 430 So.2d 452 (Fla. 1983).

License revocation proceedings have been said to be "'penal' in nature." State ex rel. Vining vs. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla.

1973); Kozerowitz vs. Florida Real Estate Commission, 289 So.2d 391 (Fla. 1974); Bach vs. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979) (reh. den. 1980). Strict procedural protections apply in disciplinary cases, and the prosecuting agency's burden is to prove its case clearly and convincingly. Ferris vs. Turlington, 510 So.2d 292 (Fla. 1987). See Addington vs. Texas, 441U.S. 426 (1979); Ferris vs. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986); Anheuser-Busch, Inc. vs. Department of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1981); Walker vs. State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid vs. Florida

Real Estate Commission, 188 So.2d 846, 851 (Fla. 2nd DCA 1966). A licensee's breach of duty justifies revocation only if the duty has a "substantial basis," Bowling vs. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981) in the evidence, unless applicable statutes and rules create a clear duty, which the evidence shows has been breached. Here petitioner has carried its burden. By rule, the Board of Cosmetology has established as "the usual recommended penalty" an administrative fine of $500 "for employing an individual who has never been licensed or registered in Florida." Rule 21F-30.001(c)1., Florida Administrative Code. Respondent's dishonesty make a more severe punishment appropriate here.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That the Board of Cosmetology impose an administrative fine of $1,000 and suspend respondent's license for 180 days.

DONE and ENTERED this day of June, 1989, in Tallahassee, Florida.

Robert T. Benton, II Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Copies furnished:

Filed with the Clerk of the Division of Administrative Hearings this day of June, 1989.

Tobi C. Pam, Esquire Department of Professional

Regulation

1940 North Monroe Street Tallahassee, FL 32399-0729

Gladys Karnitz c/o A Total Salon

5003 Highway 98 East

Destin, FL 32541

Kenneth E. Easley, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0729

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

1940 North Monroe Street Tallahassee, FL 32399-0729

Docket for Case No: 88-005971

Orders for Case No: 88-005971