STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-2456

)

JOHN ANICO'S SCHOOL OF )

HAIR DESIGN, )

)

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 June 29, 1989, in Tampa, Florida.

APPEARANCES

For Petitioner: Tobi C. Pam, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Vivian Rhodes

(corporate director)

2710 West Hillsborough Avenue Tampa, Florida 33614

STATEMENT OF ISSUES

The issue is whether respondent's license as a school of cosmetology should be disciplined for the reasons stated in the administrative complaint.

PRELIMINARY STATEMENT

By administrative complaint filed on February 7, 1989, petitioner, Department of Professional Regulation, Board of Cosmetology (Board), charged that respondent, John Amico's School of Hair Design, a licensed school of cosmetology, had violated Subsections 477.0265(1)(c) and 477.029(1), Florida Statutes (1987), and various rules promulgated by the Board. More particularly, the complaint alleged that during the course of two inspections performed in October 1988 a Board investigator found respondent using an unlicensed person as an instructor, operating the school without an adequate number of instructors, keeping the school in an unsanitary condition and without required equipment, allowing students to accept compensation for services, and failing to adhere to required record keeping requirements.

Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (1987). The matter was

referred by petitioner to the Division of Administrative Hearings on May 4, 1989 with a request that a hearing officer be assigned to conduct a formal hearing.

By notice of hearing dated May 24, 1989, the final hearing was scheduled on June 29, 1989, in Tampa, Florida. At petitioner's request, the matter was rescheduled to June 28, 1989, and again to June 29 at the same location.

At final hearing petitioner presented the testimony of Marjorie G. May, a former Board inspector, Adelee Lee, a former employee of respondent, and Steve Yovina, a Board inspector. Also, petitioner offered petitioner's exhibit 1 which was received in evidence. Respondent presented the testimony of Vivian Rhodes, a director of the corporation that owned the school. Rhodes was also allowed to represent the corporation as a qualified representative.

The transcript of hearing was filed on July 20, 1989. Proposed findings of fact and conclusion of law were filed by petitioner on August 4, 1989. A ruling on each proposed finding has been made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

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

1. At all times relevant hereto, respondent, John Amico's School of Hair Design, was a licensed school of cosmetology having been issued license number CT 0000307 by petitioner, Department of Professional Regulation, Board of Cosmetology (Board). Respondent operates a cosmetology school at three locations, including one at 2710 West Hillsborough Avenue, Tampa, Florida, which is the subject of this proceeding. It is unknown as to how long the school has been in operation.

   
   

2. On the afternoon of October 20, 1988, a Board inspector, Marjorie G. May, made an unannounced, routine visit to respondent's licensed premises for the purpose of determining whether the licensee was complying with Board rules. Upon entering the premises, May observed what she perceived to be an instructor "on the floor" supervising a number of students who were providing cosmetology services to clients. May counted twenty-two students on the premises at that time. As it turned out, the instructor was one Dahlia Graham, then an instructor trainee. This meant Graham was a licensed cosmetologist who was taking additional training to become an instructor. As such, she had to be under the direct and constant supervision of a licensed instructor and could not provide training or supervision to students without herself being supervised. There were no licensed instructors in the room with Graham. By allowing Graham to supervise the students in the manner observed on October 20, respondent contravened a Board rule.

   
   

3. May also observed one Adelee Lee sitting in a chair having her hair done. Lee was a licensed instructor at the school but, according to Lee, she had completed her shift at noon that day and had returned to the school that afternoon only for the purpose of having her hair done. May did not observe any other instructors on the premises. According to a Board rule, if a school has an average daily attendance during the preceding month of between sixteen and forty students, or is less than one year old, it must "provide" two instructors for the school. There was no evidence concerning the average daily attendance for the preceding month or establishing that the school, was less than one year old. However, the investigator interpreted the rule to mean that the number of required instructors was based upon the number of students observed on the

   premises at the time of the inspection. In this case, May observed twenty-two students and concluded that, under her interpretation of the rule, respondent was required to have two instructors at all times. There was no justification or explanation given for this deviation from the requirements of the rule.

   
   

4. May next performed an inspection of the school's equipment to determine whether the school was in compliance with Board requirements. She observed only four dryers in operable condition even though a Board rule requires a minimum of twelve. Further, she noted the school had only one facial chair and that, when others were needed, school personnel used shampoo chairs for that purpose. This was contrary to a Board rule that requires a school to have two facial chairs. The same violations had been found in a prior inspection conducted on June 14, 1988.

   
   

5. While inspecting the school's facilities, May found a drinking fountain not draining properly. Although she concluded that this violated an unspecified "requirement," she failed to cite any published rule that required a school to maintain all drinking fountains in good working order. She also noted that the school lavatory had no paper towels, poor lighting (a bulb had burned out) and improper ventilation. A Board rule requires that a lavatory have paper towels, adequate lighting and proper ventilation. There was insufficient evidence to establish that the toilet facilities were not in good working condition aid had an objectionable odor as noted in the investigator's October 20 report.

   
   

6. May did not review "school records" because an employee was unable to produce any. May believed they were maintained at another Tampa area school operated by respondent. A Board rule requires that student records be maintained on the licensed premises.

   
   

7. Although May was told by students that they occasionally received tips from clients, these declarations are hearsay in nature. However, both Lee and respondent's qualified representative acknowledged at hearing that this was a common practice prior to the October 20 inspection. Therefore, the hearsay statements have been considered for the purpose of supplementing and explaining this testimony. A Board rule prohibits students receiving "compensation," a "salary" or "commission" for their services. Based solely upon a conversation with the Board's executive director and legal counsel, the investigator construed the rule to mean that tips constituted compensation. There was no other justification or basis for this interpretation given.

   
   

8. A corporate director of the licensee, Vivian Rhodes, who was not present during the October 20 inspection, offered testimony to rebut the Board charges. First, she contended that another licensed instructor, Toni Heaton, was at the school on the afternoon of October 20 but was not seen by inspector May. Although Lee confirmed the presence of Heaton during the morning hours, there was no other proof to support the assertion that she was present that afternoon, and it is hereby rejected. Rhodes admitted that the school had only four operable dryers and one facial chair. However, she denied that the lavatory was not properly ventilated and pointed out that the fan did not operate unless the light switch was activated. As to the charge that there were no paper towels in the lavatory, she contended that clients often absconded with the paper towels, and once this was discovered, the towels were replaced. She added that the lavatory light bulb had just burned out and was replaced shortly after the inspection. These explanations were corroborated by Lee and are deemed to be credible. As to the charge that the water fountain did not drain properly, Rhodes acknowledged that it had a straw stuck in the drain but contended that disposable cups were available nearby. Rhodes also claimed that

   all necessary records were kept on the school's premises. However, they were not produced by school personnel on October 20, and it is reasonable to infer that such records were not on the premises that day. Finally, Rhodes pointed out, without contradiction, that it was a common practice in cosmetology schools for students to accept tips from clients since the Board had never advised that such a practice was illegal. Upon learning of the Board's interpretation of the rule, this practice ceased.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. Since respondent's professional license is at risk, the Board is obligated to prove the allegations in the administrative complaint by clear and convincing evidence. Ferris v. Turlington, 511 So. 2d 292 (Fla. 1987).

    
    

11. The administrative complaint alleges that respondent violated Subsections 477.0265(1)(c) and 477.029(1)(c) and (i), Florida Statutes (1987) by

    (a) using an unlicensed person as an instructor (Count I), (b) operating the school without an adequate number of instructors (Count II), (c) keeping the school in an unsanitary condition and without required equipment (Count III),

    1. allowing students to accept compensation for their services (Count IV), and

    2. failing to keep students' records on the school premises (Count V). Those statutory provisions read as follows:

       
       

       477.0265 Prohibited acts. -

       1. It is unlawful for any person to:

    * * *

    (c) Engage in willful or repeated violations of this chapter or of any rule adopted by the board.

    * * *

    477.029 Penalty. -

    (1) It is unlawful for any person to:

    * * *

    (c) Permit an employed person to practice or teach cosmetology or a specialty unless duly licensed or registered as provided in this chapter.

    * * *

    1. Violate or refuse to comply with any provision of this chapter or chapter 455 or a rule or final order of the board or the department.

       * * *

       
       

       In addition, respondent is charged with violating the following rules promulgated by the Board: 1/

       
       

       21F-21.003 Teaching and Instructing Staff.

       1. Schools of cosmetology shall be required to provide instructors based upon the average daily attendance for the preceding month ... as follows:

    * * *

    16 to 40 students - 2 instructors

    * * *

    (3) Cosmetology students and instructor trainees shall be under the constant

    supervision of an instructor. 21F-21.007 Equipment.

    (1) All private cosmetology schools shall have the following minimum equipment sufficient for student enrollment, maintained in good condition and working order at all times.

    * * *

    1. 12 dryers

    2. 2 facial chairs

    * * *

    1. Toilet facilities. Each cosmetology school shall provide adequate toilet facilities in accordance with the provisions in Chapters 10D-9 and 10D-10, F. A. C. Fixtures shall be kept clean, in good repair, free from objectionable odors, well lighted, and adequately ventilated. Toilet tissue and covered waste receptacles shall be provided.

    2. Each cosmetology school shall provide lavatories equipped with running water, hand cleansing materials, sanitary towels or other approved hand drying devices in accordance with the provisions of Chapters 10D-9 and

    10D-10, F. A. C. Lavatories, soap dispensers, hand drying devices, and all other components of the lavatories shall be kept clean and in good repair.

    21F-21.009 Compensation for Students. Instructor Trainees may receive compensation; cosmetology students shall not.

    * * *

    (2) Salary. No cosmetology student in a school of cosmetology is permitted to receive a salary or commission from the school in any form while enrolled in that school as a student.

    * * * 21F-21.016 Records.

    (1)There shall be on file for each student enrolled or reenrolled in a school for a cosmetology course, a specialty course, a post-graduate course, an instructor-trainee course, or additional hours of the following:

    1. An executed enrollment application.

    2. A form, wherein hours of instruction and services performed by the student are logged and initialed daily by the instructor.

    3. An executed hours and services form reporting the month's activities for all students enrolled. This form must reflect the average daily attendance of students for the school during the month reported.

    4. Such records shall be kept on file for a

    period of no less than five (5) years and shall be subject to inspection by the Department.

    * * *

    
    

12. As to Count I, the evidence reveals that Dahlia Graham, an instructor trainee, was teaching students on the date of investigator May's inspection. Since there were no licensed, on-duty instructors on the premises at that time, the charge has been sustained. In reaching this conclusion, the undersigned has relied upon subsection 477.029(1)(c) which makes it unlawful for a licensee to "permit an employed person to . . . teach cosmetology . . . unless duly licensed or registered as provided in this chapter." The statute is further interpreted by rule 21F- 21.003(3) which provides in part that "instructor trainees shall be under the constant supervision of an instructor." When read together, it is clear that the agency construes the general law as prohibiting an unsupervised instructor trainee from teaching students. Therefore, respondent has violated rule 21F-21.003(3) and subsections 477.029(1)(c) and (i).

    
    

13. Count II of the complaint alleges that, during an inspection on October 24, 1988, the investigator found respondent "operating the school without an adequate number of instructors." Initially, it is noted that investigator May testified only concerning her inspection on October 20. Even so, on that date she found only one licensed instructor on the premises, and that instructor was off-duty having her hair done. Rule 21F-21.003(1) requires that respondent "provide instructors based upon the average daily attendance for the preceding month" or that it provide two instructors if less than one year old. Notwithstanding these clear requirements, the investigator opined that the number of required instructors is based upon the number of students found on the premises at the time of inspection. However, such an interpretation is contrary to the plain language in the rule. The record does not show what the average daily attendance for the preceding month was, or if the school was less than a year old. Given these evidentiary shortcomings, and the requirement that clear and convincing evidence must support all charges, it is concluded that Count II must fail.

    
    

14. Count III is based upon a number of alleged sanitary and equipment violations noted by the investigator during the October 20 inspection. By clear and convincing evidence petitioner has shown that respondent did provide the required number of operable dryers (12) and facial chairs (2) as required by rule 21F-21.007(1)(c) and (d). This in turn constitutes a violation of subsection 477.029(1)(i) which makes it unlawful for any person to "violate . .

    . a rule . . . of the board." The cited conduct also violates subsection 477.0265(1)(c) since respondent engaged "in willful or repeated violation of . .

    . a rule." 2/ There is less than clear and convincing evidence that the toilet fixtures were not in good repair, free from objectionable odor and inadequately ventilated. As to the charge that the drinking fountain was not in good working order, petitioner has cited no specific rule that pertains to this subject and the undersigned was unable to find any such proscription. Finally, respondent's explanation that it replaced the paper towels as soon as they were found to be missing and that the lavatory light bulb burned out just prior to the inspection is accepted. Accordingly, the latter charges should be dismissed.

    
    

15. Count IV contends that respondent allowed students to accept compensation in violation of rule 21F-21.009. That rule prohibits students from accepting "compensation, . . . salary, or commission . . . in any form while enrolled in that school as a student." According to the testimony, the Board construes the rule as prohibiting students from accepting tips, but the only

    explanation for such an interpretation was that legal counsel and the executive director had told the investigator this was a proper construction of the rule. No other explanation or justification for that interpretation was given. Since the agency has the burden of explicating and defending all interpretations not readily apparent from the face of its rules, and the Board having failed to meet this burden, Count IV should be dismissed.

    
    

16. The final count alleges that respondent "had not met the record- keeping standards required by law." This allegation is based upon the October

    24 inspection, the results of which are not of record. However, the investigator testified without contradiction that she attempted to see the records on October 20 but could find none. Respondent's contention that the records were maintained on the premises is not deemed to be credible, and it is concluded that the charge has been sustained. By violating rule 21F-21.016, respondent has likewise violated subsection 477.029(1)(i) which makes it unlawful to violate a Board rule.

    
    

17. Rule 21F-30.001 provides suggested disciplinary guidelines to be followed whenever disciplinary action against a licensee is warranted. In this case, the record demonstrates that respondent has violated subsections 477.029(1)(c) and (i) and rules 21F-21.007(1)(c) and (d) and 21F-21.016. For violating a rule, and thereby also violating subsection 477.029(1)(i), the recommended penalty ranges from a reprimand or censure and a fine not to exceed

$500 per violation to revocation of the license. However, where the violation is found to be a repeated one, the usual fine is $500. For violating subsection 477.029(1)(c), the disciplinary guidelines refer to a host of situations involving an unlicensed person but none appear to apply to the use of an unsupervised instructor trainee. Therefore, the undersigned will treat the conduct as a violation of a board rule. Since respondent violated four rules, and two were repeat violations, a $1200 administrative fine, or $500 for each of the repeat violations and $100 each for the remaining two, is appropriate.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of the violations cited in the

Conclusions of Law portion of this Recommended Order and it pay a $1200 administrative fine. All other charges should be dismissed.

DONE and ORDERED this 10th day of August, 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 10th day of August, 1989.

ENDNOTES

1/ Paragraph 10 of the administrative complaint refers to a violation of rule 21F-20.002. However, it is assumed this citation is in error and that the Board intended to rely upon rule 21F-21.007 to support the alleged violations relating to equipment and the lavatory. Such an error is deemed to be harmless surplusage. Scharrer v. DPR, Division of Real Estate, 536 So.2d 320 (Fla. 3d DCA 1989).

2 This is because the same two violations were noted in an inspection conducted on June 18, 1988, or some four months earlier.

APPENDIX

Petitioner:

1. Covered in findings of fact 2 and 3.

2. Rejected as being contrary to the requirements of a Board rule. See finding of fact 3.

12-14. Covered in finding of fact 5. 15-16. Covered in finding of fact 4.

17. Rejected as being unnecessary. 18-19. Covered in finding of fact 7.

1. Covered in finding of fact 6.

2. Covered in finding of fact 8.

COPIES FURNISHED:

Tobi C. Pam, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, FL 32399-0792

Ms. Vivian Rhodes

2710 West Hillsborough Avenue Tampa, FL 33614

Myrtle Aase, Executive Director Board of Cosmetology

1940 North Monroe Street Tallahassee, FL 32399-0792

Kenneth D. Easley, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, FL 32399-0792

Docket for Case No: 89-002456

Orders for Case No: 89-002456