STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL REGULATION) BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4705

)

DIANNA M. GENTILE, )

)

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was held before Veronica E. Donnelly, a duly designated Hearing Officer of the Division of Administrative Hearings, on October 31, 1990, in Sanford, Florida.

APPEARANCES

For Petitioner: Laura P. Gaffney, Esquire

Department of Professional Regulation

1940 N. Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Dianna M. Gentile, pro se

783 Gainsboro Street

Deltona, Florida 32725 STATEMENT OF THE ISSUES

Whether the Respondent held herself out as a cosmetologist and practiced cosmetology without a license from March 19, 1990 through April 17, 1990, in violation of Florida law.

What penalties should be imposed if the Respondent is found to have committed the alleged violations set forth in the Administrative Complaint.

PRELIMINARY STATEMENT

On June 18, 1990, the Petitioner, Department of Professional Regulation, Board of Cosmetology (the Department) filed an Administrative Complaint alleging the Respondent, Dianna M. Gentile (Gentile), violated Chapter 477, Florida Statutes. Essentially, the Respondent is charged with having worked as a cosmetologist in Florida without proper licensure. The Respondent contests the factual allegations contained in the complaint. A formal administrative hearing was requested by Respondent on July 10, 1990, and the case was referred to the Division of Administrative Hearings. The hearing took place on October 31, 1990.

During the hearing, the Department presented one witness and filed five exhibits. The Respondent allowed the exhibits to be placed into evidence without objection. At the close of the case-in-chief, the Respondent testified in own behalf.

A transcript of the proceeding was filed on November 13, 1990. The Respondent waived her opportunity to submit proposed findings of fact during the hearing. Rulings on the proposed findings submitted by the Department are in the Appendix of the Recommended Order.

FINDINGS OF FACT

1. The Petitioner is in the state agency charged with regulating the practice of cosmetology.

   
   

2. As of March 19, 1990, the Respondent had completed 1,043.5 hours of instruction in cosmetology at the Daytona Beach Community College. On this date, the school certified that the Respondent was competent to sit for examination. She was scheduled to complete another 156.5 hours of instruction by April 23, 1990, and was to graduate on that date.

   
   

3. The Respondent mailed her application for licensure by examination on March 19, 1990. The Respondent was advised by her instructor at the cosmetology school that her application to the Florida Board Cosmetology was a formal registration that would allow her to practice temporarily without a license. Based upon these representations of her instructor, she began cutting hair for salon customers on that date.

   
   

4. The appointment calendar for Head to Toe Salon, 200 North Woodland Boulevard, Deland, Florida, clearly demonstrates that Respondent provided cosmetology services to customers of the Head to Toe Salon on the following dates in 1990: March 19, 24, and 31; April 4, 10, and 17.

   
   

5. On April 17, 1990, a routine inspection of the Head to Toe Salon revealed that Respondent maintained a work station in the salon and had been providing unlicensed services to customers since March 19, 1990.

   
   

6. On May 30, 1990, the Respondent was issued License CL 0180631 by the Florida Board of Cosmetology.

   
   

   Mitigation

   
   

7. The Respondent did not have actual knowledge that she was violating Florida law when she practiced cosmetology without a license between March 19 and April 17, 1990.

   
   

8. Once she was advised of the offense, the Respondent ceased the practice immediately.

   
   

9. Prior to hearing, the Respondent purchased the salon. The expense of the purchase has placed a financial hardship upon Respondent. She does not anticipate a profit from the business for another two years.

   
   

10. The Respondent is frustrated because she was misinformed during her schooling about when she could begin work. However, she is willing to accept responsibility for her actions.

11. The Respondent is committed to making sure that nonlicensed activity does not occur in her salon in the future.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. Section 477.0265(1)(a), Florida Statutes, provides as follows, in pertinent part:

    
    

    1. It is unlawful for any person to:

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

       department pursuant to the provisions of this chapter.

       
       

14. Sections 477.029(1)(a) and (h), Florida Statutes, state:

    
    

    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 s.477.0265...

       
       

15. Based upon the evidence adduced at hearing, the Respondent held herself out as a cosmetologist prior to licensure, and engaged in the practice of cosmetology without a license. Her actions should be considered as one violation to avoid duplicity in the disciplinary action prosecuted by the Department.

    
    

16. The disciplinary guidelines for the Board of Cosmetology are found in Chapter 21F-30, Florida Administrative Code. The usual recommended penalty for improperly holding oneself out as a licensed or registered cosmetologist in violation of Section 477.029(1)(a), Florida Statutes, is an administrative fine of $500.00. This recommended penalty is found in Rule 21F-30.001(a)1., Florida Administrative Code.

    
    

17. The penalty recommended for practicing without a license is found in Rule 21F-30.001(2), which provides:

    
    

    When the Board finds that any person has committed any of the acts set forth in Section 477.0265(1), Florida Statutes, it shall also find that person to be in violation of Section 477.029(1)(h), Florida Statutes, and it shall

    issue a final order imposing appropriate penalties as recommended in the following disciplinary guidelines:

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

    issued by the Department pursuant to the provision of Chapter 477, Florida Statutes. The usual recommended penalty shall be:

    1. For an individual who has never been licensed or registered in Florida, an administrative fine of $500.00.

       
       

18. Under the guidelines, an appropriate penalty for the Respondent in this case would be the imposition of one administrative fine in the amount of

    $500.00. It makes no difference whether the Board elects to discipline her for holding herself out as a cosmetologist or for practicing without a license.

    
    

19. During the hearing, the Respondent testified that administrative fines would cause her undue hardship because she does not have the financial ability to pay fines at this stage of her professional practice. In consideration of this testimony and other mitigating factors set forth in the Findings of Fact, it is recommended that alternative penalties be considered under the authority of Rule 21F-30.001(5), Florida Administrative Code, and any fines imposed should be reduced to an amount below the penalties recommended by rule.

RECOMMENDATION

Based upon the foregoing, it is RECOMMENDED:

1. That the Respondent be found guilty of having violated Section 477.029(1)(a), Florida Statutes.

   
   

2. That a letter or reprimand be issued to the Respondent for this violation.

   
   

3. That the administrative fine be reduced to a total fine of $100.00. This may be paid within one year of the entry of the Final Order.

DONE and ENTERED this 10th day of December, 1990, in Tallahassee, Florida.

VERONICA E. DONNELLY

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 December, 1990.

APPENDIX TO RECOMMENDED ORDER CASE NO. 90-4705

Petitioner's proposed findings of fact are addressed as follows:

1. Accepted. See HO #6.

2. Accepted. See HO #2,#3,#4,#5 and #8.

Copies furnished to:

Laura P. Gaffney, Senior Attorney

Department of Professional Regulation Northwood Centre, Suite 60

1940 N. Monroe Street Tallahassee, Florida 32399-0792

Dianna K. Gentile 783 Gainsboro Street

Deltona, Florida 32725

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Myrtle Aase, Executive Director Board of Cosmetology

1940 North Monroe Street Tallahassee, Florida 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. 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: 90-004705

Orders for Case No: 90-004705