STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION (BOARD OF )

COSMETOLOGY), )

)

Petitioner, )

)

vs. ) CASE NO. 90-7651

) JUANA BLANCO, d/b/a BEAUTY ) SALON MAYELIN UNISEX, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on March 19, 1991, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Tracey S. Hartman, Esquire

Mark Harris, Qualified Representative Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Juana Blanco, pro se

520 Northeast 171st Terrace North Miami Beach, Florida 33162

STATEMENT OF THE ISSUES

1. Whether Respondent committed the offenses described in the Administrative Complaint?

   
   

2. If so, what penalty should be imposed?

PRELIMINARY STATEMENT

On July 26, 1990, the Department of Professional Regulation (Department) issued an Administrative Complaint alleging that Respondent had violated state law by practicing cosmetology without a cosmetology license and by operating a cosmetology salon without a cosmetology salon license. Respondent denied the allegations of wrongdoing advanced in the complaint and requested a formal hearing. On December 3, 1990, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct the hearing Respondent had requested.

At hearing, the Department presented the testimony of one witness, Charles

1. Frear, one of its inspectors. In addition to presenting Frear's testimony, the Department offered two exhibits into evidence, both of which were admitted by the Hearing Officer. Respondent testified on her own behalf. She also presented the testimony of an acquaintances, Carmen Montalvo, and offered three exhibits into evidence. Like the Department's exhibits, all of Respondent's exhibits were received into evidence.

   
   

   At the close of the evidentiary portion of the hearing, the Hearing Officer announced on the record that post-hearing submittals had to be filed no later than ten days after the Hearing Officer's receipt of the transcript of the hearing. The hearing transcript was received by the Hearing Officer on April 8, 1991. The Department timely filed a proposed recommended order on April 18, 1991. Petitioner's proposed recommended order contains proposed findings of fact. These proposed findings of fact have been carefully considered and are specifically addressed in the Appendix to this Recommended Order. To date, Respondent has not filed any post-hearing submittal.

   
   

   FINDINGS OF FACT

   
   

   Based upon the record evidence, the following Findings of Fact are made:

   
   

   1. Respondent is now, and has been at all times material hereto, the owner and operator of Beauty Salon Mayelin Unisex (Salon), a cosmetology salon located at 1442 Northeast 163rd Street in North Miami Beach, Florida.

      
      

   2. The Salon was first licensed by the Department on December 19, 1990.

      
      

   3. Respondent has never been licensed to practice cosmetology in the State of Florida. Her application for licensure is currently pending.

      
      

   4. Charles E. Frear is an inspector with the Department.

      
      

   5. On May 16, 1990, Frear went to 1442 Northeast 163rd Street with the intention of inspecting a licensed cosmetology salon operating under the name "Hair to Hair."

      
      

   6. When he arrived at the address, Frear noticed that the sign outside the establishment reflected that Beauty Salon Mayelin Unisex now occupied the premises.

      
      

   7. The Salon was open for business.

      
      

   8. Upon entering the Salon, Frear observed Respondent removing curlers from the hair of a customer who was seated in one of the chairs. 1/

      
      

   9. Frear asked Respondent to show him her license to practice cosmetology in the State of Florida. Respondent responded that she did not have such a license yet, but that she was scheduled to take the cosmetology licensure examination later that month.

      
      

   10. After learning from Respondent that she was the owner of the Salon, Frear asked to see the Salon's license. Respondent thereupon advised Frear that the Salon had not been licensed by the Department.

   11. Although she told Frear otherwise, Respondent was aware at the time that a Department-issued cosmetology salon license was required to operate the Salon.

       
       

   12. Frear gave Respondent an application form to fill out to obtain such a salon license.

       
       

   13. Respondent subsequently filled out the application form and submitted the completed form to the Department. Thereafter, she received License No. CE 0053509 from the Department to operate the Salon.

       
       

       CONCLUSIONS OF LAW

       
       

   14. The provisions of the Florida Cosmetology Act, which are found in Chapter 477, Florida Statutes, impose certain restrictions upon the practice of cosmetology in this state.

       
       

   15. "Cosmetology," as that term is used in Chapter 477, Florida Statutes, "means the mechanical or chemical treatment of the head, face, and scalp for aesthetic rather than medical purposes, including, but not limited to, hair shampooing, hair cutting, hair arranging, hair coloring, permanent waving, hair relaxing, hair removing, pedicuring, and manicuring, for compensation." Section 477.013(4), Fla. Stat.

       
       

   16. A "salon," as that term is used in Chapter 477, Florida Statutes, is any establishment or place of business where "cosmetology," as defined in Section 477.013(4), Florida Statutes, is practiced. Fla. Admin. Code Rule 21F- 20.001.

       
       

   17. Section 477.0265(1), Florida Statutes, provides as follows: It is unlawful for any person to:

       1. 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 pursuant to the provisions of this chapter.

          
          

       2. Own, operate, maintain, open, establish, conduct, or have charge of, either alone or with another person or persons, a cosmetology salon or specialty salon:

          
          

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

             
             

          2. In which a person not licensed or registered as a cosmetologist or a specialist is permitted to perform cosmetology services or any specialty.

   18. Section 477.029, Florida Statutes, provides in pertinent part as follows:

       
       

       1. It is unlawful for any person to:

          
          

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

             
             

          2. Operate any cosmetology salon unless it has been duly licensed as provided in this chapter.

          
          

          * * *

          
          

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

          
          

          * * *

          
          

       2. Any person who violates the provisions of this section shall be subject to one or more of the following penalties, as determined by the [B]oard [of Cosmetology]:

          
          

          1. Revocation or suspension of any license or registration issued pursuant to this chapter.

             
             

          2. Issuance of a reprimand or censure.

             
             

          3. Imposition of an administrative fine not to exceed $500 for each count or separate offense.

             
             

          4. Placement on probation for a period of time and subject to such reasonable conditions as the board may specify.

             
             

          5. Refusal to certify to the department an applicant for licensure.

       
       

   19. The Administrative Complaint issued in the instant case alleges that Respondent violated the foregoing provisions of Section 477.029(1), by practicing cosmetology without a cosmetology license and by operating a cosmetology salon, Beauty Salon Mayelin Unisex, that was not licensed by the Department. The evidence presented at hearing establishes Respondent's guilt of these alleged violations. Accordingly, Respondent is subject to one or more of the penalties set forth in Section 477.029(2), Florida Statutes.

       
       

   20. In determining what penalty or penalties should be imposed upon Respondent, it is necessary to consult Florida Administrative Code Rule 21F- 30.001, which contains the Board of Cosmetology's disciplinary guidelines. Cf. Williams v. Department of Transportation, 531 So.2d 994, 996 (Fla. 1st DCA 1988)(agency is required to comply with its disciplinary guidelines in taking disciplinary action against its employees).

   21. Florida Administrative Code Rule 21F-30.001 provides in pertinent part:

       
       

       1. When the Board finds that any person has committed any of the acts set forth in Section 477.029(1), Florida Statutes, it shall issue a final order imposing appropriate penalties as recommended in the disciplinary guidelines.

          
          

          1. Holding oneself out as a cosmetologist or specialist unless duly licensed or registered as provided in Chapter 477, Florida Statutes. The usual recommended penalty shall be:

             
             

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

             
             

             * * *

             
             

          2. Operating any cosmetology salon unless is has been duly licensed as provided in Chapter 477, Florida Statutes.

             
             

             1. For a salon which has never been licensed, or for operation of an unlicensed salon within a residence, an administrative fine of $500.00.

             
             

             * * *

             
             

             (h) Violating any provision of Section 477.0265, Section 477.028 or Section 455.227(1), Florida Statutes. The usual penalty shall be the

             penalty recommended in Subsections (2) and (3) below or Subsection (1)(i)2. below.

             
             

             * * *

             
             

       2. 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.

          
          

          1. 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 provisions 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;

             
             

             * * *

             
             

          2. Owning, operating, maintaining, opening, establishing, conducting, or having charge of, either alone or with another person or persons, a cosmetology salon or specialty salon which

       is not licensed or registered under the provisions of Chapter 477, Florida Statutes. The usual recommended penalty shall be an administrative fine of $50 per month or part of a month during which such operation has taken place up to a total of $500.

       
       

       * * *

       
       

       (4) Based upon consideration of the following factors, the Board may impose disciplinary action other than the penalties recommended above:

       
       

       1. the severity of the offense;

       2. the danger to the public;

       3. the number of repetitions of offenses;

       4. the length of time since date of violation;

       5. the number of complaints filed against the licensee;

       6. the length of time licensee or registrant has practiced;

       7. the actual damage, physical or otherwise, caused by the violation;

       8. the deterrent effect of the penalty imposed;

       9. the effect of the penalty upon the licensee's or registrant's livelihood;

       10. any efforts for rehabilitation;

       11. the actual knowledge of the licensee or registrant pertaining to the violation;

       12. attempts by licensee or registrant to correct or stop violations or refusal by licensee or registrant to correct or stop violations;

       13. related violations against a licensee or registrant in another state including findings of guilt or innocence, penalties imposed and penalties served;

       14. actual negligence of the licensee or registrant pertaining to any violations;

       15. penalties imposed for related offenses under Subsection (1) above;

       16. any other mitigating or aggravating circumstances.

   22. In its proposed recommended order, the Department argues that an administrative fine in the amount of $1,000 is the appropriate penalty to impose upon Respondent for having practiced cosmetology without a license and having operated a cosmetology salon that was not licensed by the Department. Having considered the facts of the instant case in light of the foregoing provisions of Florida Administrative Code Rule 21F-30.001, the Hearing Officer agrees with the Department that Respondent should be fined $1,000 for having committed these violations of state law.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Board of Cosmetology enter a final order (1) finding that Respondent committed the violations of law alleged in the instant Administrative Complaint; and (2) imposing upon Respondent an administrative fine in the amount of $1,000 for having committed these violations.

RECOMMENDED in Tallahassee, Leon County, Florida, this 24th day of April, 1991.

STUART M. LERNER

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 24th day of April, 1991.

ENDNOTES

1/ Respondent initially testified that the person seated in the chair was either her daughter or her sister. Upon further questioning, however, she stated that she did not "really remember" who was in the chair.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7651

The following are the Hearing Officer's specific rulings on the findings of fact proposed by the Department:

1-6. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

1. Rejected because it is more in the nature of a conclusion of law than a finding of fact.

2. Accepted and incorporated in substance.

3. Rejected because it is a summary of testimony rather than a finding of fact based upon such testimony.

COPIES FURNISHED:

Tracey S. Hartman, Esquire

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Juana Blanco

520 Northeast 171st Terrace North Miami Beach, Florida 33162

Myrtle Aase, Executive Director Board of Cosmetology

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Jack McRay, General Counsel Department of Professional Regulation 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. SOME AGENCIES ALLOW A LARGER PERIOD OF TIME 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: 90-007651

Orders for Case No: 90-007651