STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, )

)

Petitioner, )

)

vs. ) CASE No. 88-6275

) TERRANCE JOHN CONLEY, d/b/a ) TERRY'S FOR MEN'S/WOMEN'S ) HAIR, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on April 5, 1989, in Bunnell, Florida.

APPEARANCES

For Petitioner: Charles Tunnicliff

Senior Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Terry John Conley, pro se

d/b/a Terry's for Men's/Womens' Hair

272 Palm Coast Highway Palm Coast, Florida 32307

INTRODUCTION

The Petitioner, the Department of Professional Regulation, filed an Administrative Complaint against the Respondent, Terry John Conley, d/b/a Terry's for Men's/Women's Hair, dated October 31, 1988. Mr. Conley executed an Election of Rights form disputing the allegations of fact contained in the Administrative Complaint and requesting a formal administrative hearing. The request for hearing was filed with the Division of Administrative Hearings on December 16, 1988.

At the formal hearing the Petitioner presented the testimony of Gail Hand.

The Petitioner also offered two exhibits. The exhibits were marked as DPR exhibits 1 and 2 and were accepted into evidence.

Mr. Conley testified on his own behalf and offered one exhibit. Mr.

Conley's exhibit was marked as Respondent's exhibit 1 and was accepted into evidence.

The parties represented at the conclusion of the formal hearing that they would not file proposed recommended orders.

ISSUE

Whether the Respondent, Terry John Conley, d/b/a Terry's for Men's/Women's Hair, should be disciplined for violating Section 477.029(1)(i), Florida Statutes (1985)?

FINDINGS OF FACT

1. At all times relevant to this proceeding the Respondent, Terry John Conley, was licensed to practice cosmetology and to operate a cosmetology salon in the State of Florida. Mr. Conley's license numbers are CL 0095556 and CE 0028208.

   
   

2. At all times relevant to this proceeding, Mr. Conley was the owner of a cosmetology salon known as Terry's for Men's/Women's Hair (hereinafter referred to as "Terry's"). Terry's is located at 272 Palm Coast Parkway, Palm Coast, Florida 32026.

   
   

3. On December 3, 1987, an employee of the Petitioner inspected Terry's. More than one of the drawers where employees of Terry's stored sanitized brushes and combs contained hair, coins, cards and medicine. Mr. Conley admitted that there may have been coins in the drawers and a little hair on brushes.

   
   

4. Two additional alleged violations were cited as a result of the December 3, 1987, inspection. These alleged violations were corrected as of the date of the next inspection of Terry's by the Petitioner.

   
   

5. On September 21, 1988, the same employee of the Petitioner that inspected Terry's on December 3, 1987, inspected Terry's again. During this inspection the inspector determined that the drawers where sanitized brushes and combs were stored were in a condition similar to their condition on December 3, 1987.

   
   

6. Additionally, the following additional conditions were discovered during the September 21, 1988, inspection:

   
   

   1. Hair rollers, and the trays where hair rollers were kept, contained an excessive amount of hair and dirt;

      
      

   2. The Petitioner's sanitation rules were not displayed for public viewing in a conspicuous place; and

      
      

   3. More than one of the five sanitizer jars for combs were not filled sufficiently-to cover all of the teeth of the combs. Mr. Conley admitted that the jars are refilled "every day or two."

      
      

7. The inspector also cited Terry's because one of the persons working at the shop had allegedly used clippers and scissors without sanitizing them. This alleged violation was not supported by the weight of the evidence.

8. Mr. Conley has been operating Terry's for eleven years. The cited violations of December 3, 1987, and September 21, 1988, are the first violations cited against Mr. Conley or Terry's.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).

   
   

10. The Petitioner is the agency charged with regulating the practice of cosmetology in the State of Florida. See Section 20.30 and Chapters 455 and 477, Florida Statutes. Pursuant to Section 477.029(1)(i), Florida Statutes, it is unlawful for any person to "[violate or refuse to comply with any provision of this chapter or chapter 455 or any rule or final order of the board or the department." In this case, Mr. Conley has been charged with having violated Rules 21F-20.002 and 21F-20.004, Florida Administrative Code.

    
    

11. In pertinent part, Rule 21F-20.002, Florida Administrative Code, provides the following:

    
    

    (4) The following procedures shall be followed in salons utilizing the materials or instruments listed below:

    
    

    1. Sterilization and Sanitation:

       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 practices...

       
       

    2. Sanitizers: 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....

       
       

    3. After cleaning and sanitizing, articles shall be stored in a clean, closed cabinet or container until used. Unsanitized articles such as pens, pencils, money, paper, mail, etc., shall not be kept in the same container or cabinet.

    
    

12. The evidence in this case failed to prove that an employee used clippers and scissors on customers without sanitizing them in violation of Rule 21F-20.002(4)(c), Florida Administrative Code, or any other portion of Rule 21F- 20.002, Florida Administrative Code.

    
    

13. The evidence did prove, however, that Mr. Conley violated Rule 21F- 20.002(4)(d), Florida Administrative Code. During the inspection of September

    21, 1988, the jars in which combs were stored did not have sufficient disinfectant solution to completely immerse the combs kept in them.

    
    

14. The evidence also proved that Mr. Conley violated Rule 21F- 20.002(4)(e), Florida Administrative Code. During the inspections of December 3, 1987, and September 21, 1988, the drawers in which brushes and combs were kept contained unsanitized articles such as hair, coins, cards and medicine. During the September 21, 1988, inspection, the trays on which hair rollers were stored were also found to contain hair and dirt.

    
    

15. Mr. Conley admitted that most of the acts for which Terry's was cited occurred. He disputed, however, whether those acts were, or should constitute, violations of the Petitioner's Rules. Mr. Conley argued in effect that it was impractical for him to effectively run his business and comply at all times to the exact letter of the Petitioner's Rules. Based upon the testimony of the person who inspected Terry's, the practicalities of operating a business were taken into account by the inspector. Terry's was not cited for "picky" violations. The violations were sufficient to constitute violations within the spirit, as well as the letter, of the Petitioner's Rules. More importantly, the Petitioner's Rules are mandatory; they must be complied with by all persons licensed by the Petitioner if they intend on serving the public.

    
    

16. Rule 21F-20.004, Florida Administrative Code, provides, in pertinent part, the following:

    
    

    Licensees shall display for public viewing in a conspicuous place the following documents:

    
    

    (4) A copy of the rules of sanitation adopted by the Board.

    
    

17. The evidence in this case proved that Mr. Conley violated this Rule on September 21, 1988. Again, Mr. Conley did not dispute that the rules of sanitation were not properly displayed. Mr. Conley merely indicated that he did not intentionally attempt to hide the rules of sanitation. That is not, however, the issue. The issue is whether Mr. Conley complied with the requirement of the Rule by displaying the rules of sanitation in a conspicuous place. The evidence proved that he did not so comply. He is therefore in violation of Rule 21F-20.004, Florida Administrative Code.

    
    

18. Based upon the foregoing, it is concluded that Mr. Conley has violated Rules 21F-20.002(4)(d) and (e), and 21F-20.004, Florida Administrative Code.

    Mr. Conley has therefore violated Section 477.029(1)(i), Florida Statutes.

    
    

19. Any person guilty of a violation of Section 477.029(1), Florida Statutes, may be subjected to one of the following penalties pursuant to Section 477.029(2), Florida Statutes:

    
    

    1. Revocation or suspension of any license or registration issued pursuant to this chapter.

       
       

    2. Issuance of a reprimand or censure.

    3. Imposition of an administrative fine not to exceed $500 for each count or separate offense.

       
       

    4. Placement on probation for a period of time and subject to such reasonable conditions as the board may specify.

       
       

    5. Refusal to certify to the department an applicant for licensure.

    
    

20. Rule 21F-30.001(1)(j), Florida Administrative Code, provides the following disciplinary guidelines when a person is found to have violated Section 477.029(1), Florida Statutes:

    
    

    (j) Violating the safety and sanitary requirements of Section 21F-20.002 (3)- (7), F.A.C. The usual recommended penalty shall be an administrative fine of $50 per violation if less than 3 violations are found to have occurred or an administrative fine of $250 if 3 or more violations are found to have occurred.

    
    

21. Mr. Conley has been found to have violated Section 477.029(1), Florida Statutes. Mr. Conley has violated two of the sanitary requirements of Rule 21F- 20.002(3)-(7), Florida Administrative Code: Rule 21F-20.002(4(d) and (e), Florida Administrative Code. He has also violated Rule 21F-20.004, Florida Administrative Code. Mr. Conley should, therefore, be required to pay an administrative fine of $150.00.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Terrance John Conley, d/b/a Terry's for Men's/Women's Hair

be found to have violated Rules 21F-20.002 and 21F-20.004, Florida

Administrative Code, in violation of Section 477.029(1)(i), Florida Statutes.

It is further

RECOMMENDED that Terrance John Conley, d/b/a Terry's for Men's/Women's Hair be required to pay an administrative fine of $150.00.

DONE and ENTERED this 10th day of April, 1989, in Tallahassee, Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1989.

COPIES FURNISHED:

Charles Tunnicliff Senior Attorney Tobi C. Pam

Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Terry John Conley

d/b/a Terry's for Men's/Women's Hair

272 Palm Coast Parkway Palm Coast, Florida 32307

Myrtle Aase Executive Director

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Kenneth Easley General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-006275

Orders for Case No: 88-006275