STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Petitioner, )

) CASE NOS. 90-1581

vs. ) 90-1582

) A DAZZLES HAIR DESIGNERS and ) NORIS QUINTANA, )

)

Respondents. )

)

RECOMMENDED ORDER

The final hearing in this case was held on January 25, 1991, in Miami, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michael Mone', Esquire

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Nicholas Montano

A Dazzles Hair Designers 7317 Miami Lakes Drive Miami Lakes, Florida 33010

STATEMENT OF THE ISSUE

The issue in this case is whether disciplinary action should be taken against the licenses of A Dazzles Hair Designers and Noris Quintana (Respondents) based upon violations of Sections 477.029(1)(a) and (h), and 477.0265(1)(a), Florida Statutes, as alleged in the Administrative Complaint filed against Respondents in this case.

PRELIMINARY STATEMENT

At the hearing, the Department of Professional Regulation (Department) called Richard J. Braun, investigator, to testify, and introduced three exhibits. Nicholas Montano was accepted as a qualified representative on behalf of the Respondents, and thereafter, Montano testified on behalf of the Respondents. One exhibit was received on behalf of the Respondents.

No transcript of the final hearing was filed, and the parties waived the filing of proposed recommended orders.

FINDINGS OF FACT

1. At all times material hereto, Nicholas Montano has been the owner and operator of a cosmetology salon named A Dazzles Hair Designers located at 7317 Miami Lakes Drive, Miami Lakes, Florida, which has been issued license number CE-0041059.

   
   

2. Noris Quintana has been employed, at all times material hereto, at A Dazzles Hair Designers. She is not licensed as a cosmetologist in the State of Florida, but has been issued specialty license number FV-0510891 under the provisions of Section 477.013(6)(a) and (b), Florida Statutes, which authorizes the holder thereof to perform manicures and pedicures, but not facial services as described in Section 477.013(6)(c), Florida Statutes. Respondents do not dispute this limitation on Quintana's specialty license.

   
   

3. The Department is the state agency with responsibility to file and prosecute administrative complaints alleging violations of Chapters 455 and 477, Florida Statutes, in accordance with Chapter 120, Florida Statutes.

   
   

4. There is no evidence in the record of any prior license disciplinary action involving Respondents.

   
   

5. On or about September 22, 1989, the Department's investigator, Richard

   J. Braun, conducted an inspection of A Dazzles Hair Designers and observed Noris Quintana, an employee at A Dazzles Hair Designers, remove wax or some other facial compound from a customer's face. Nicholas Montano and Noris Quintana admitted that Quintana did remove wax from the customer's face on the day when Braun conducted his inspection. Therefore, it is clear that Quintana was performing facial services for this client.

   
   

6. Subsequent to the facts involved in this case, all facial chairs have been removed from A Dazzles Hair Designers, and wax facials are no longer performed at this salon. On or about July 28, 1990, an inspection of the salon was conducted by another inspector of the Department, and at that time it was found that all cosmetologists and specialists were properly and currently licensed for the activities in which they were engaged.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Section 120.57(1), Florida Statutes. Since this is a case in which the Department is seeking to discipline the Respondents' licenses, and could thereby adversely affect their ability to continue to practice cosmetology and specialty services, the Department has the burden of establishing the basis for license disciplinary action by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). In order to meet this clear and convincing standard, "The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of conviction, without hesitancy, as to the truth of the allegations sought to be established." Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So.2d 112, 116 at n.5 (Fla. 1st DCA 1989), citing Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

8. The Department has charged Respondents with violating Sections 477.029(1)(a) and (h), Florida Statutes, and Section 477.0265(1)(a), Florida Statutes, which provide in pertinent part, as follows:

   
   

   Section 477.0265 Prohibited acts.--

   
   

   1. It is unlawful for any person to:

      
      

      (a) Engage in the practice of cosmetology or a specialty without an active license as a cosmetologist or registration as a

      specialist issued by the department . . . .

      
      

      Section 477.029 Penalty.--

      
      

      (1) It is unlawful for any person to:

      
      

      (a) Hold himself out as a cosmetologist or specialist unless duly licensed or registered as provided in this chapter.

      * * *

      (h) Violate any provision of Section 477.0265, Section 477.028, or Section 455.227(1).

      
      

9. The Department has proven by clear and convincing evidence that Respondent Noris Quintana holds a specialty license which authorizes her to perform manicures and pedicures, but which does not authorize her to perform facial services. Section 477.013(6), Florida Statutes. Further, it was established by the requisite standard of proof that Respondents were in violation of the above-cited statutory provisions on September 22, 1989, when the Department's investigator, Richard J. Braun, observed her performing a facial for a customer at A Dazzles Hair Designers, a service which is beyond the authorized scope of her license.

   
   

10. In recommending the appropriate penalty for this violation of Chapter 477, Florida Statutes, the nature of Respondents' violation must be considered, along with the disciplinary guidelines established by the Board of Cosmetology in Chapter 21F-30, Florida Administrative Code. This is the Respondents' first violation of Chapter 477, and corrective action has been taken which will prevent the recurrence of the violation established in this case.

RECOMMENDATION

Based upon the foregoing, it is recommended that the Board of Cosmetology enter a Final Order imposing an administrative fine of $200 on the Respondent A Dazzles Hair Designers, and an administrative fine of $125 on Noris Quintana.

RECOMMENDED this 13th day of February 1991 in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 13th day of February 1991.

COPIES FURNISHED:

Michael Mone', Esquire 1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

Nicholas Montano

A Dazzles Hair Designers 7317 Miami Lakes Drive Miami Lakes, FL 33014

Noris Quintana 7060 West 2nd Lane

Hialeah, FL 33014-5314

Jack McRay, Esquire General Counsel

1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

Myrtle Aase, Executive Director Board of Cosmetology

Northwood Centre

1940 North Monroe Street Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 90-001581

Orders for Case No: 90-001581