STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-2445

)

MERLE NORMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, a final hearing was held in the above-styled cause in Leesburg, Florida on June 30, 1989, before the Honorable Diane Cleavinger, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented as follows:

For Petitioner: Cynthia Gelmine, Esquire

Department of Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0760

(904)488-0062

For Respondent: Catherine Shepherd, pro se

dba Merle Norman

1327 South 14th Street Leesburg, Florida 32748

STATEMENT OF THE ISSUES

Whether Respondent should be fined for alleged violations of Chapter 477, Florida Statutes, occurring prior to her licensure.

PRELIMINARY STATEMENT

This case arises from an Administrative Complaint filed by the Department of Professional Regulation, seeking to take disciplinary action against Catherine Shepherd, dba Merle Norman for the following violation of Chapter 477:

Section 477.029(1)(b) and (h), Florida Statutes, and Section 477.0265(1)(b)(1), Florida Statutes (1985), by operating a cosmetology salon without a current active cosmetology salon license.

At the hearing, Petitioner presented the testimony of one (1) witness and entered one (1) exhibit into evidence. Respondent testified in her own behalf and did not enter any exhibits into evidence.

Petitioner submitted its Proposed Recommended Order on July 7, 1989.

Respondent did not submit a Proposed Recommended Order. Petitioner's proposed Findings of Fact have been considered and utilized in the preparation of this Recommended Order except where the proposals were immaterial, cumulative or subordinate. Specific rulings on the Petitioner's proposed Findings of Fact are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, Catherine Shepherd, is the owner of a cosmetics studio named Merle Norman Cosmetics. The studio is located at 13275 South 14th Street, Leesburg, Florida 32748. Her primary business is the sale of cosmetics to the public. A very small portion of her business is nail sculpting. Except for the nail sculpting, Respondent is not otherwise subject to the strictures of Chapter 477, Florida Statutes.

   
   

2. Respondent, dba Merle Norman, is a licensed cosmetology salon in the State of Florida having been issued license number CE 0048712. Respondent obtained her license January 24, 1989, after Petitioner's investigator informed her that the law required her to have a cosmetology salon license in order to do nails at her establishment.

   
   

3. Prior to January 24, 1989, Respondent was not licensed as a cosmetology salon. When the cosmetology statutes were last adopted, Respondent was informed by the Board's investigator that she would have to employ a licensed cosmetologist in order to do nails at her studio. Respondent thence forward employed a licensed nail sculptor to perform this service. However, the Board's investigator did not inform Respondent that she was also required to have a cosmetology salon license to employ a licensed nail sculptor. She was, therefore, unaware that the law required such a license.

   
   

4. Respondent operated as a cosmetology salon without a license for approximately two years.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

6. Chapter 477.029(1) and (2), Florida Statutes, states the Board of Cosmetology has authority to impose an administrative fine on persons who engage in cosmetology and are unlicensed in the State of Florida.

   
   

7. Section 477.0265(1)(b)(1), Florida Statutes, authorizes disciplinary action for any persons who own, operate, maintain, open, establish, conduct, or have charge of, a cosmetology salon or specialty salon, which is not licensed under the provisions of this Chapter.

   
   

   Petitioner has shown by clear and convincing evidence that Respondent operated a cosmetology salon without a license. Respondent thereby violated Section 477.0265(1)(b)(1), Florida Statutes.

8. Section 477.029(1)(b), authorizes penalties for:

(b) operation of any school of cosmetology or cosmetology salon unless it has been duly licensed as provided in this Chapter.

Section 477.029(2), contains the penalties for violations of Chapter 477, Florida Statutes. Section 477.029(2), prescribes, revocation or suspension of license or registration, issuance of a reprimand or censure, imposition of a fine not to exceed $500, a reasonable probationary period, and/or refusal to certify an applicant for licensure. In this case, Respondent's violation was not intentional. Additionally, the violation was unknowingly committed and was immediately corrected when she was informed of the statute's requirement. In all other respects, Respondent complied with Chapter 477, Florida Statutes.

There was never any danger to the public due to Respondent's failure to have a salon license. In this case, the violation was of a technical requirement, only and was minimal in nature. The penalty for the violation should, therefore, be minimal and not the maximum amount of fine leviable under the law.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Cosmetology enter a Final Order fining the

Respondent one hundred dollars ($100.00).

DONE and ENTERED this 18th day of July, 1989, in Tallahassee, Florida.

DIANE CLEAVINGER

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 18th day of July, 1989.

APPENDIX CASE NO. 89-2445

The proposed facts contained in paragraphs 1, 2, 3 and 4 of Petitioner's proposed Findings of Fact are adopted, in substance, in so far as material.

The proposed facts contained in paragraphs 5 and 6 of Petitioner's proposed Findings of Fact are subordinate.

COPIES FURNISHED:

Cynthia Gelmine, Esquire Department of Professional Regulation

North wood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0760

(904) 488-0062

Catherine Shepherd dba Merle Norman

1327 South 14th Street Leesburg, Florida 32748

Ms. Myrtle Aase Executive Director

Department of Professional Regulation 1940 North Monroe Street Suite 60

Tallahassee, Florida 32390-0729

Kenneth Easley, Esquire

Department of Professional Regulation 1940 North Monroe Street

Suite 60

Tallahassee, Florida 32390-0729

Docket for Case No: 89-002445

Orders for Case No: 89-002445