STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4385

)

KATHLEEN DeMARZO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case before

J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings, on October 5, 1990, in Vero Beach, Florida.

APPEARANCES

FOR PETITIONER: Laura P. Gaffney, Esquire

Senior Attorney

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

FOR RESPONDENT: Kathleen DeMarzo, Pro Se

286 31st Avenue, S.W. Vero Beach, Florida

STATEMENT OF THE ISSUES

The issue in this case is whether Respondent's license as a cosmetology specialist should be suspended, revoked, or otherwise disciplined for the alleged violation of Chapter 477, Florida Statutes, as set forth in the Administrative Complaint.

PRELIMINARY STATEMENT

In an Administrative Complaint dated April 13, 1990, the Petitioner has charged the Respondent, Kathleen DeMarzo, with operating a salon without a cosmetology salon license in violation of Sections 477.029(1)(b) and (h), Florida Statutes (1989) and Section 477.0265(1)(b)(1), Florida Statutes (1989). Respondent denied the allegations and requested a formal administrative hearing on the charges. The case was referred to the Division of Administrative Hearings which noticed and conducted the hearing.

At the hearing, Petitioner called two witnesses: Kathy Thomas, an occupational license clerk with the Indian River County Tax Department; and Daryl Fruth, an investigator employed by Petitioner. Petitioner offered seven exhibits into evidence, all of which were accepted. At Petitioner's request, official recognition has been taken of Chapter 477 Florida Statutes and Rule 21F, Florida Administrative Code.

Respondent testified on her own behalf, but did not offer any exhibits into evidence.

A transcript of the proceedings has been filed. At the conclusion of the hearing, both parties were advised of their right to file proposed findings of fact and conclusions of law prior to the entry of this Recommended Order.

Petitioner has filed a proposed recommended order in accordance with the schedule established at the conclusion of the hearing. No submittal has been received from the Respondent. A ruling on each of the Petitioner's proposed findings of fact is included in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent was licensed by the State of Florida, Board of Cosmetology, as a nail specialist having been issued license no. FV 513107. Respondent obtained her license by examination.

   
   

2. Respondent resides at 286 31st Avenue, Vero Beach, Florida.

   
   

3. Respondent has obtained an occupational license from Indian River County to operate as a manicurist, pedicurist or nail extension specialist out of her home. Respondent used her state license to obtain her occupational license from Indian River County.

   
   

4. Respondent has not obtained a salon license from the Board of Cosmetology.

   
   

5. There is no dispute that Respondent operates her business out of her home. However, there is a dispute as to exactly what services are performed there. Respondent testified that she does not and has never performed pedicures at her home. Instead, the only services she offers are foot massages and/or reflexology.

   
   

6. Petitioner's investigation of Respondent was initiated when an allegation was made that Respondent was practicing massage in her home without a license. Petitioner's investigator interviewed Respondent and contends that she admitted she was performing pedicures in her home. However, Respondent contends that she only advised the investigator that she "worked on people's feet" and that she has never performed a pedicure.

   
   

7. The evidence established that Respondent does not perform pedicures or other traditional cosmetology services out of her house. Respondent does perform foot massages and/or reflexology out of her house.

   
   

8. Respondent had previously practiced reflexology in another state. Upon moving to Florida, she tried to determine the legal steps necessary to continue her practice in this state. Since pedicure is defined in Chapter 477 to include massaging the feet, she sought a license for this specialty service. She has never sought to operate a traditional salon out of her house. Respondent did not think that she needed a salon license to work on people's feet.

9. In a Notice of Cease and Desist dated April 25, 1990, the Department of Professional Regulation has notified Respondent that engaging in the services of reflexology while not duly licensed by the Board of Massage constitutes the unlicensed practice of massage in violation of Section 480, Florida Statutes. The purported violation of Chapter 480 is not part of this proceeding.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties hereto pursuant to Section 120.57(1), Florida Statutes (1989).

    
    

11. The "specialty" services that fall within the jurisdiction of the Board of Cosmetology are set forth in Section 477.013, Florida Statutes (1989). Under Subsection 477.013(6)(b), a specialty for purposes of Chapter 477 includes "pedicuring, or the shaping, polishing, tinting, or cleansing of the nails of the feet and massaging or beautifying of the feet." (emphasis added)

    
    

12. A "specialty salon" is defined in Section 477.013(8), Florida Statutes, to mean "any place of business wherein the practice of one or all of the specialties as defined in Subsection (6) are engaged in or carried on."

13. Section 477.0265, Florida Statutes (1989), provides in pertinent part: 477.0265 Prohibited Acts-

    1. It is unlawful for any person to:

       
       

       (b) own, operate, maintain, open, establish, conduct or have charge of . . . , a cosmetology salon or specialty salon:

       
       

       1. Which is not licensed under the provisions of this chapter.

       
       

14. The evidence established that, while Respondent was not performing traditional pedicure functions such as polishing nails, etc., she was performing foot massages and reflexology out of her house. Those services constitute a specialty service under Chapter 477 and can only be offered through a licensed salon. Respondent mistakenly believed that, since the services she was offering were unique and did not require the usual trappings of a cosmetology salon, she did not need to obtain a salon license.

    
    

15. There is some question whether the services offered by Respondent are more properly regulated by the Board of Cosmetology or the Board of Massage. That issue is beyond the scope of this Recommended Order. Since Respondent chose to offer the services under the authority of Chapter 477, Florida Statutes, she must comply with the requirements of that chapter.

    
    

16. Under Section 477.029(1)(b) and (h), Florida Statutes (1989), it is unlawful for any person to operate any cosmetology salon unless it has been duly licensed as provided in Chapter 477. Since Respondent is not offering cosmetology services or operating a cosmetology salon, she has not violated that subsection. However, subsection (h) of that statute makes it unlawful to violate any provision of Section 477.0265. As set forth above, Respondent has violated Section 477.0265 by operating a specialty salon without a license.

17. Subsection 477.029(2), Florida Statutes, sets forth the penalties that can be imposed by the Board or the department for a violation of Section

    477.029. That statute authorizes the Board to revoke or suspend any license for registration, issue a reprimand or censure, impose an administrative fine not to exceed $500.00 for each count or separate offense, place the licensee on probation, or refuse to certify an applicant for licensure.

    
    

18. Chapter 21F-30, Florida Administrative Code, sets forth the disciplinary guidelines adopted by the Board. Rule 21F-30.001(b) sets forth a usual recommended penalty of an administrative fine of $500.00 for operating any cosmetology salon unless it has been duly licensed as provided in Chapter 477 or for operating an unlicensed salon within a residence. There is no disciplinary guideline for operating a specialty salon. Rule 21F-30.002(1) indicates that a licensee who performs cosmetology services in any location that does not possess and display a current and valid license should receive a Notice of Noncompliance for a first offense and a fine of $50.00 for a second offense. In this case, it is clear that Respondent was operating a very small operation that was not offering services traditionally considered to fall within the definition of cosmetology. There is no indication that the public health was in any way threatened because of sanitary violations, or otherwise.

    
    

19. Respondent was unaware of the requirement that she had to obtain a salon license to perform her foot massage services out of her house. While ignorance of the law is no excuse, it is a mitigating factor to be considered in this case. Therefore, it is concluded that the Petitioner's Proposed Recommendation of a $500.00 fine is too harsh.

RECOMMENDATION

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

finding Respondent guilty of a violation of Section 477.0265(1)(b)(1), and therefore, Section 477.029(h), issuing a reprimand and imposing a fine of

$50.00.

DONE and ENTERED this 20th day of December 1990, in Tallahassee, Florida.

J. STEPHEN MENTON 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 20th day of December 1990.

APPENDIX

Petitioner submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1. Adopted in substance in Finding of Fact 1

2. Adopted in pertinent part in Findings of Fact 6, 7 and 8

3. Adopted in pertinent part in Findings of Fact 3

4. Adopted in substance in Finding of Fact 4

5. Rejected as irrelevant

Copies Furnished To:

Laura P. Gaffney, Esquire Senior Attorney

Department of Professional Regulation Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Ms. Kathleen Demarzo

286 31st Avenue, S.W. Vero Beach, Florida

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation 1940 N. Monroe Street

Tallahassee, FL 32399-0729

Myrtle Aase Executive Director

Florida Department of Cosmetology 1940 North Monroe Street Tallahassee, Florida 32399-0792

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

BOARD OF COSMETOLOGY

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF COSMETOLOGY,

Petitioner,

-vs- CASE NO: 90-1468

DOAH NO: 90-4385 LICENSE NO.: FV 0513807

KATHLEEN DEMARZO,

Respondent.

/

ORDER

THIS MATTER came before the Board of Cosmetology for final action pursuant to section 120.57(1)(b)10, Florida Statutes, at a public meeting on February 18, 1991, in Tallahassee, Florida, for the purpose of considering the Recommended Order issued by the Hearing Officer in the above styled case. The Petitioner was represented by Tracey Hartman. The Respondent was duly notified of the hearing but was neither present nor represented by counsel at the hearing.

After a complete review of the record in this matter, including consideration of the Hearing Officer's Recommended Order (a copy of which is attached here to and incorporated herein by reference), written evidence (if any), and arguments of each party, the Board makes the following findings and conclusions:

FINDINGS OF FACT

1. The Hearing Officer's Findings of Fact are hereby approved, adopted, and incorporated herein.

   
   

2. There is competent, substantial evidence to support the Hearing Officer's findings of fact as adopted by the Board.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to the provisions of section 120.57(1), and Chapter 477, Florida Statutes.

   
   

2. The Hearing Officer's conclusions of law 1, 2, 3, 4, 5, 6, 8 and 9 are hereby approved, adopted, and incorporated herein. The Hearing Officers conclusion of law 7 is hereby amended to find the Respondent guilty of performing cosmetology specialty services in her residence without a salon

   license in violation of Sections 477.0265 and 477.029(1)(b) and (h), Florida Statutes. The Hearing Officer's conclusion of law 10 is hereby rejected because the Respondent was licensed by the Board of Cosmetology and, thus, should have known the limitations of her licensure.

   
   

3. There is competent, substantial evidence to support the Board's findings and conclusions.

PENALTY

IT IS THEREFORE ORDERED AND ADJUDGED:

The penalty recommended by the Hearing Officer is accepted.

Respondent shall pay an administrative fine in the amount of five hundred dollars ($500.00) to the Board. Said fine shall be paid within 30 days.

To assure payment of the fine, it is further ordered that all of Respondent's licensure to practice shall be suspended with the imposition of the suspension being stayed for 30 days. If the ordered fine is paid within that 30 day period, the suspension imposed shall not take effect. If the licensee does not pay the fine within the said period, then the suspension shall take effect immediately upon expiration of the stay, without additional notice to the Respondent, who shall be required to surrender all licenses issued by the Board to the investigator of the Department of Professional Regulation or to mail same to the Board offices. Upon payment of the fine after the 30 days, the suspension imposed shall be lifted.

This Order shall become effective upon filing with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 15 day of April , 1991.

BOARD OF COSMET0LOGY

Myrtle Aase Executive Director

NOTICE OF RIGHT TO JUDICIAL REVIEW

Pursuant to Section 120.59, Florida Statutes, any substantially affected person is hereby notified that they may appeal this Order by filing one copy of a notice of appeal with the clerk of the agency and by filing the filing fee and one copy of a notice of appeal with the District Court of Appeal within 30 days of the date this Order is filed.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by United States Mail to KATHLEEN DEMARZO, 286 31st Avenue, S.W., Vero Beach, Florida 32960, and by hand delivery to TRACEY HARTMAN, Senior Attorney, Department of Professional Regulation, Northwood Centre, 1940 North Monroe Street Tallahassee, Florida 32399-0792, by 5:00

P.M., this 15 day of April , 1991.

RUBY WARNER

Docket for Case No: 90-004385

Orders for Case No: 90-004385