STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION (BOARD OF )

COSMETOLOGY), )

)

Petitioner, )

)

vs. ) CASE NO. 91-1083

)

ELIE BENDAVID, d/b/a )

BEST CUTS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on July 10, 1991, in Fort Lauderdale, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Roberta Fenner, Esquire

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Elie Bendavid, pro se

5331 West Atlantic Avenue Margate, Florida 33063

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 January 14, 1991, the Department of Professional Regulation (Department) issued an Administrative Complaint alleging that Respondent had violated state law by permitting an unlicensed person, Luis Villate, to practice cosmetology in Respondent's cosmetology salon. Respondent denied the allegations of wrongdoing advanced in the complaint and requested a formal hearing. On February 19, 1991, 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 two witnesses: Villate; and Louis Morganstern, one of the Department's inspectors. In addition to presenting the testimony of these witnesses, the Department offered three

exhibits into evidence. All three exhibits were admitted by the Hearing Officer. Respondent testified on his own behalf. He presented no other 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 August 1, 1991. The Department timely filed a proposed recommended order on Monday, August 12, 1991. Petitioner's proposed recommended order contains proposed findings of fact. After careful consideration, these proposed findings of fact have been accepted by the Hearing Officer and incorporated in substance, although not necessarily repeated verbatim, in 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 has been licensed to practice cosmetology in the State of Florida since August 13, 1979. He currently holds license number CL 0110182, which has an expiration date of June 30, 1992.

   
   

2. Respondent is now, and has been at all times material hereto, the owner and operator of Best Cuts, Inc. (Best Cuts), a licensed cosmetology salon located at 5331 West Atlantic Boulevard in Margate, Florida.

   
   

3. In late October, 1990 or early November, 1990, Luis Villate applied and interviewed for a hair stylist position at Best Cuts. During the interview, Respondent asked if Villate was licensed to practice cosmetology in the State of Florida. In response to this inquiry, Villate showed Respondent a completed State of Florida application for licensure by examination. The application contained a certification, dated January 6, 1990, and signed by the Educational Supervisor of the cosmetology school Villate had attended, that Villate met the educational and training requirements for eligibility to sit for the cosmetology licensure examination.

   
   

4. Following the interview, Respondent telephoned the Department's offices in Tallahassee to find out if there was any legal impediment to his hiring Villate to work as a hair stylist at Best Cuts. Respondent explained to the Department representative with whom he spoke that Villate had "all his hours" of schooling and training and that he had applied for a cosmetology license. The representative told Respondent that, if such were the circumstances, it would be permissible for Respondent to employ Villate at his salon. 1/

   
   

5. Respondent shortly thereafter hired Villate to work at Best Cuts. The representations made to him by the Department representative did not play a role in his decision to hire Villate. Because he desperately needed a competent hair stylist to work at the salon, he would have hired Villate even if he had been told that Villate's unlicensed status rendered him ineligible for lawful employment.

   
   

6. Villate remained an employee of Best Cuts for approximately two months, until December 4, 1991.

7. During the period of his employment, Villate cut, washed and blow dried customers' hair. At no time during this period was he licensed to practice cosmetology in the State of Florida.

   
   

8. The termination of Villate's employment with Best Cuts was precipitated by an inspection of the salon made by Louis Morganstern, an inspector with the Department, on December 3 and 4, 1990.

   
   

9. During the first day of his inspection, Morganstern observed Villate cutting the hair of a customer. Upon his return to the office, Morganstern ran a computer check on Villate, which revealed that Villate had taken and failed the licensure examination and therefore was still unlicensed.

   
   

10. The following day, at Morganstern's request, Villate signed a document agreeing to "cease and desist" from the practice of cosmetology in the State of Florida.

    
    

    CONCLUSIONS OF LAW

    
    

11. 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.

    
    

12. "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.

    
    

13. 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.

    
    

14. Section 477.0265(1), Florida Statutes, provides in pertinent part 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:

       * * *

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

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

    
    

    1. It is unlawful for any person to:

       * * *

       (c) Permit an employed person to practice cosmetology or a speciality unless duly licensed or registered as provided in this chapter.

       * * *

    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.

    
    

16. The licensure requirements prescribed by Chapter 477, Florida Statutes, are subject to certain statutory exemptions. These exemptions are set forth in Section 477.0135, Florida Statutes. Among the persons who are exempted by Section 477.0135, Florida Statutes, from the licensure requirements of Chapter 477, Florida Statutes, are the following:

    
    

    Graduates of licensed cosmetology schools or cosmetology programs offered in public school systems, which schools or programs are certified by the Department of Education, pending the result of the first licensing examination for which such graduates are eligible following graduation, provided such graduates shall practice under the supervision of a licensed cosmetologist in a licensed cosmetology salon. A graduate who fails the examination may continue to practice under the supervision of a licensed cosmetologist in a licensed cosmetology salon if he applies for the next available examination and until he receives the result of that examination. No graduate may continue to practice under this exemption if he fails the examination twice.

    
    

    Section 477.0135(1)(g), Fla. Stat.

    
    

17. A licensee charged with allowing an unlicensed person to practice cosmetologist in violation of Section 477.029(1)(c), Florida Statutes, who contends that the unlicensed person in question was exempt from the licensure

    requirements of Chapter 477, Florida Statutes, has the burden of proving the existence of the alleged exemption. See Terranova v. State, 474 So.2d 1206, 1208 (Fla. 2d DCA 1985)(defendant charged with operating as a roofing contractor without a license in violation of Section 489.127(1)(f), Florida Statutes, has burden of establishing that he was exempt from licensure requirements "since the exemptions are contained in a separate section" of Chapter 489, Florida Statutes).

    
    

18. The Administrative Complaint issued in the instant case alleges that Respondent violated Section 477.029(1)(c), by allowing an unlicensed employee of his salon, Luis Villate, to practice cosmetology. The evidence presented at hearing clearly and convincingly establishes that Respondent permitted Villate to practice cosmetology in his salon for approximately two months in late 1990, during which time Villate did not have a cosmetology license. Furthermore, while it appears that at some time in the past Villate may have been exempt from the licensure requirements of Chapter 477, Florida Statutes, by operation of Section 477.0135(1)(g), Florida Statutes, Respondent has failed to make an adequate showing that this exemption was still in effect during the two-month period that Villate worked for Respondent. Nor has Respondent demonstrated that any other provision of Section 477.0135, Florida Statutes, operated to exempt Villate from the licensure requirements of Chapter 477, Florida Statutes, during that two-month period. Accordingly, a finding should be made that Respondent is guilty of the offense charged in the Administrative Complaint and that he therefore is subject to one or more of the penalties set forth in Section 477.029(2), Florida Statutes. 2/

    
    

19. 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).

    
    

20. 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.

    * * *

    (c) Permitting an employed person to practice cosmetology or a speciality unless duly licensed or registered as provided in Chapter 477, Florida Statues, unless such employed person is exempted pursuant to Section 477.0135(8), F.S. The usual recommended penalty shall be:

    
    

    1. for employing an individual who has never been licensed or registered in Florida or who is not exempt, an administrative fine of $500;

       
       

    2. for employing an individual who failed to properly renew or whose exemption has terminated, an administrative fine of $50 per

    month or part of a month during which such individual was employed 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.

    
    

21. 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 concludes that an appropriate penalty for the offense committed by Respondent is the imposition of an administrative fine in the amount of $100.

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 violation of law alleged in the Administrative Complaint; and (2) imposing upon Respondent an administrative fine in the amount of $100 for having committed this violation.

RECOMMENDED in Tallahassee, Leon County, Florida, this 19th day of August, 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 19th day of August, 1991.

ENDNOTES

1/ The record is silent with respect to what the representative said, if anything, regarding how long Villate would be able to work for Respondent without obtaining a license.

2/ Respondent has not formally raised the defense of estoppel, although he did testify concerning the telephone conversation he had with the Department representative prior to hiring Villate. If such a defense were raised, the Hearing Officer would find it to be without merit inasmuch as the representations made by the Department representative during this telephone conversation appear to have been more in the nature of statements of law than statements of fact and, in any event, Respondent, by his own admission at hearing, did not take any action he otherwise would not have based upon these representations. See Austin v. Austin, 350 So.2d 102, 105 (Fla. 1st DCA 1977),

cert. denied, 357 So.2d 184 (Fla. 1978).

COPIES FURNISHED:

Roberta L. Fenner, Esquire

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Elie Bendavid

5331 West Atlantic Avenue Margate, Florida 33063

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: 91-001083

Orders for Case No: 91-001083