STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 91-0901

)

RICHARD BYERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on May 21, 1991, in Fort Lauderdale, Florida, before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mark Harris

Qualified Representative Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Richard Byers, pro se,

9769 N.W. 20th Street

Coral Springs, Florida 33071 STATEMENT OF THE ISSUE

Whether Respondent's cosmetology license should be disciplined for the alleged violation of Chapter 477, Florida Statutes, as set forth in the Administrative Complaint.

PRELIMINARY STATEMENT

On September 27, 1990, the Department of Professional Regulation filed a one count Administrative Complaint against Respondent. The Administrative Complaint alleges that the Respondent was guilty of violating Rule 21F-20.002, Florida Administrative Code, and Sections 477.0265(1)(c), 477.029(1)(i) and 477.0265(1)(b)(1), Florida Statutes (1989), by failing to meet sanitation standards required by law as confirmed by an inspection on or about July 27, 1990. Respondent timely requested a hearing on the charges and the case was referred to the Division of Administrative Hearings which noticed and conducted the hearing.

At the hearing, Petitioner presented the testimony of one witness, Louis Morganstern, an inspector employed by Petitioner. Petitioner offered one exhibit into evidence, which was accepted without objection. Respondent testified on his own behalf, but offered no exhibits into evidence.

During the hearing, Petitioner presented evidence relating not only to the July 27, 1990 inspection, but also to a follow-up inspection which took place on August 6, 1990. The evidence established that, during the July 27 visit, the Department's investigator noted some minor violations, discussed them with Respondent and indicated to Respondent that steps should be taken to correct the violations. The inspector stated that he would return at a future date. The Department's investigator returned on August 6 and "wrote up" Respondent for the sanitary violations found on that date.

It was clear from the testimony presented at the hearing that both parties were proceeding under the assumption that the August 6, 1990 inspection was the basis for the disciplinary action sought in this case. After both parties had presented their evidence, the undersigned Hearing Officer raised the issue as to whether any disciplinary action could be taken with respect to the August 6 inspection since that visit is not specifically referred to in the Administrative Complaint. After raising this issue, Petitioner moved ore tenus to amend the Administrative Complaint to include the alleged deficiencies found during the August 6, 1990 inspection. That ore tenus motion was denied.

Subsequently, on June 3, 1991, Petitioner filed a written Motion to Amend Administrative Complaint. That Motion seeks to amend the charges to include the alleged violations found on August 6. On June 4, 1991, Respondent submitted a letter essentially arguing that the Administrative Complaint should be dismissed since it only referred to the July 27 visit and his work station was allegedly not cited for sanitation violations on that date.

After reviewing the transcript in this matter, it is clear that both parties expected and were prepared to address the sanitation violations written up during the August 6, 1990 visit. While the Administrative Complaint erroneously refers only to the July 27 inspection, it does not appear that either party was misled and everyone was aware of the factual allegations upon which disciplinary action was being sought. Section 120.60(7), Florida Statutes, requires reasonable notice to a licensee of the facts or conduct upon which the proposed disciplinary action is based. However, "a complaint filed by an administrative agency is not required to fulfill the technical niceties of a pleading filed in a court of law. Such an administrative complaint must only be specific enough to inform the accused with reasonable certainty of the nature of the charge." Seminole County Board of County Commissioners v. Long, 422 So.2d 938 (Fla. 5th DCA 1982) rev. denied, 431 So.2d 989 (Fla. 1983); Smith v.

Department of Health and Rehabilitative Services, 555 So.2d 1254 (Fla. 3rd DCA 1989); Cf. Hunter v. Department of Professional Regulation 458 So.2d 842 (Fla. 2nd DCA 1984). In Scharrer v. Department of Professional Regulation, 536 So.2d

320 (Fla. 3rd DCA 1988), a typographical error in an Administrative Complaint misciting the statutory subsection under which the licensee was subject to disciplinary action was held to be harmless surplusage where the licensee was not misled or prejudiced and was clearly aware of the acts being charged. While the mistake in the Administrative Complaint in this case was potentially more significant than the typographical error in Scharrer, it is clear that there was no prejudice to either party. The Respondent's testimony at the hearing established that he knew he was being charged with the violations that were found during the follow-up visit. Under these circumstances, it would be a waste of time and effort on the part of all concerned to dismiss this proceeding, require Petitioner to file another Administrative Complaint, and

then reschedule another formal hearing at which the evidence would be virtually identical to that presented in this case. Consequently, Petitioner's Motion to Amend Administrative Complaint is hereby granted.

However, the Administrative Complaint in this action sought disciplinary action in connection with only one of the two inspections. It is clear that all of the parties were under the impression that this Administrative proceeding was brought in connection with the August 6 inspection. It would be prejudicial to require Respondent to defend accusations related to both inspections as part of this proceeding. Therefore, the Administrative Complaint will be deemed amended to refer to only the August 6 visit. No disciplinary action can be imposed in this proceeding as a result of the first inspection.

A transcript of the proceeding has been filed. At the hearing, both parties were advised of their right to file proposed findings of fact and conclusions of law prior to the entry of a Recommended Order. On June 24, 1991, Petitioner filed a Notification indicating its intention to waive its right to submit a proposed recommended order. As indicated above, Respondent submitted a letter dated May 30, 1991, arguing that this proceeding should be dismissed because the Administrative Complaint only refers to the July 27 visit. That letter does not set forth any proposed findings of fact. No other post-hearing submittal has been received from Respondent.

FINDINGS OF FACT

Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made.

1. At all pertinent times, Respondent, Richard Byers, was a licensed cosmetologist in the State of Florida having been issued license No. CL0155765 in accordance with Chapter 477, Florida Statutes. At all pertinent times, Respondent was the manager of Today's Hair and Nails, a cosmetology salon located at 3936 West Hillsboro Blvd. Deerfield Beach, Florida (the "Salon").

   
   

2. A Department of Professional Regulation inspector visited the Salon on July 27, 1990. During that visit he noticed certain problems which he discussed with Respondent. Among the items discussed were the ventilation in the Salon and certain sanitary problems in the Salon. The evidence was inconclusive as to the specific sanitary problems found during that inspection. The investigator indicated that he would return to follow-up on those matters at a later date.

   
   

3. The Department's inspector returned to the Salon on August 6, 1990. Respondent was not working on that day. During the second visit, the Department's investigator noted that many of the problems discussed during the first visit had been corrected. For example, the ventilation had been improved and wet sanitizers were being utilized. However, some of the work stations, including Respondent's work station, were not clean. The countertop at Respondent's work station was cluttered and dirty and there were brushes with hair still in them. In addition, the drawer at Respondent's work station was not dry sanitized.

   
   

4. Respondent argues that, since he was not working on the day of the second inspection, he should not be charged with any sanitation violations on that day. Respondent contends that he would have cleaned up his work station and sanitized all equipment before beginning work on customers the next day when

   he returned. However, no adequate explanation was given for the uncleanliness of his work station over the weekend.

   
   

5. There is no evidence that any unsanitized equipment was used by Respondent on customers.

   
   

6. The evidence does not clearly and convincingly support a conclusion that Respondent was not utilizing proper sanitation procedures before the combs and brushes were used on a customer. Without evidence of such use, Respondent cannot be guilty of a violation of the Board's rule on the provision of wet sanitizers and the sanitation of combs or brushes before their use. However, the evidence did establish that Respondent did not cleanse, sanitize and store his implements in a clean closed cabinet until used as required by the Board's Rule.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. Section 477.029, Florida Statutes, empowers the Board of Cosmetology to discipline a licensee for violations of or refusals to comply with Chapters 477 and 455, Florida Statutes, a rule of the Board or a final order of the Board.

   
   

9. Rule 21F-20, Florida Administrative Code, contains requirements for sanitation in the practice of Cosmetology. The rule reads in pertinent part:

   
   

   Prior to opening a salon, the owner shall;

   
   

   1. Meet the safety and sanitary requirements as listed below and these requirements shall continue in full force and effect for the life of the salon:

      1. Ventilation and Cleanliness: Each salon shall be kept well ventilated. The walls, ceilings, furniture and equipment shall be kept clean and free from dust....

         
         

         * * *

         
         

   2. The following procedures shall be followed in salons utilizing the materials or instruments listed below:

      
      

      * * *

      
      

      1. Sterilization and Sanitation: The use of a brush, comb or other article on more than one patron without being sanitized is prohibited. Each salon is required to have sufficient combs, brushes and implements to allow for adequate sanitizing practices. Combs or other instruments shall not be carried in pockets.

      2. Sanitizers: All salons shall be equipped with wet sanitizers, sufficient to allow for sanitizing practices.

      
      

      1. Sanitizing methods which are effective and approved for salons: First, clean articles with soap and water, completely immerge in a chemical solution as follows:

         
         

         1. Combs and brushes, remove hair first and immerse in ten percent formlin; ...

      
      

      * * *

      
      

      (e) After cleansing and sanitizing, articles shall be stored in a clean, closed cabinet or container until used. Unsanitized articles such as pens, pencils, money, paper, mail, etc. shall not be kept in the same container or cabinet.

      
      

10. The Petitioner has the burden to prove by clear and convincing evidence that Respondent committed the violations alleged in the administrative complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). In this case, Petitioner did not prove the allegations that Respondent utilized implements on patrons that were not sanitized. However, Petitioner did prove Respondent failed to keep his work station clean and failed to store his implements in a sanitized area. Respondent, therefore, has violated Rule 21F-20.002(3)(a) and Rule 21F-20.002(4)(e) and is subject to discipline for these violations pursuant to Section 477.029(1)(i), Florida Statutes.

    
    

11. Section 477.029(2), Florida Statutes, contains the penalties the Board may impose on a licensee for violations of Chapter 477, Florida Statutes. Section 477.029(2) prescribes revocation or suspension of a license or registration, issuance of a reprimand or censure imposition of a fine not to exceed $500, a reasonable probationary period, and/or refusal to certify an applicant for licensure.

    
    

12. Rule 21F-30.001 sets forth the Board's guidelines for imposition of the penalties authorized in Chapter 477, Florida Statutes. The Rule reads 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 following disciplinary guidelines:

    
    

    * * *

    
    

    1. Violating or refusing to comply with any provision of Chapter 477, Florida Statutes, or Chapter 455 or a rule or final order of the Board. The usual recommended penalty shall be:

       1. for a violation of Chapter 477, Florida Statutes, the recommended penalty stated in this section for such violation;

       * * *

       
       

       1. for a violation of a rule of the Board, the recommended penalty as stated in this section for such violation, and any further penalty deemed appropriate by the Board within the limits of 21F-30.001(5), Florida Administrative Code.;

          * * *

    2. Violating the safety and sanitary requirements of Section 21F-20.002(3)-(7), Florida Administrative Code. The usual recommended penalty shall be an administrative fine of $50 per violation if less than three violations are found to have occurred or an administrative fine of $250 if 3 or more violations are found to have occurred....

    * * *

    1. 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 the offenses;

    4. the number of complaints filed against the licensee;

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

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

    7. the deterrent effect of the penalty imposed;

    8. the effect of the penalty imposed on the licensee's or registrant's livelihood;

    9. any efforts at rehabilitation;

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

    11. attempts by the licensee or registrant to correct or stop violations or refusal by licensee to correct or stop violations.

        * * *

    12. any other mitigating or aggravating circumstances. ...

    
    

13. In this case, the recommended penalty for Respondent's failure to maintain a clean work station is $50. This penalty is appropriate given all of the circumstances. Even though Respondent was not working on the day of the second inspection, Respondent was obligated to keep his work station clean and store his equipment in a sanitary place. While Respondent contends that his work station and equipment would have been cleaned and sanitized prior to the time he began work on the day following the second inspection, the rule also requires that implements be properly cleansed and stored when not in use.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board enter a final order reprimanding Respondent for violating Chapter 477, Florida Statutes and imposing a $50 fine.

RECOMMENDED in Tallahassee, Leon County, Florida, this 10th day of July, 1991.

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 10th day of July, 1991.

COPIES FURNISHED:

Mark E. Harris

Qualified Representative Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Richard Byers

9769 N. W. 20th Street

Coral Springs, Florida 33071

Richard Byers

c/o Today's Hair & Nails

3936 West Hillsboro Boulevard Deerfield Beach, Florida 33442

Myrtle Aase Executive Director

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Jack McRay, General Counsel Department of Professional

Regulation

1940 North Monroe Street Suite 60

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 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: 91-000901

Orders for Case No: 91-000901