STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2660

)

NIKKI GAMBER, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Sarasota, Florida on August 29, 1991, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mark E. Harris

Paralegal Specialist Department of Professional

Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Was not present and was not represented

by counsel.

STATEMENT OF THE ISSUES

The issue for consideration in this case was whether Respondent, Nikki Gamber, should be disciplined by the Board of Cosmetology for the matters set out in the Administrative Complaint.

PRELIMINARY MATTERS

By Administrative Complaint dated February 14, 1991, Charles F. Tunnicliff, for George Stuart, Secretary of theDepartment of Professional Regulation, on behalf of the Board of Cosmetology, sought to take disciplinary action against the Respondent herein, Nikki Gamber, for her operation of a cosmetology salon without a current active salon license, and because she allowed an employed person to act as a cosmetology specialist without being licensed, both in violation of Section 477.029(1), Florida Statutes.

On April 2, 1991, Respondent requested a formal hearing on the allegations and by letter dated April 28, 1991, the matter was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer. Only Petitioner responded to the Initial Order entered herein, and thereafter, by Notice of Hearing dated May 28, 1991, the undersigned set the matter for hearing in

Sarasota on August 29, 1991, at which time it was held as scheduled. Respondent did not appear for the hearing nor was she represented by counsel or other representative. The Notice of Hearing which the undersigned sent to the Respondent at the address on her Election of Rights Form, and that used on the Initial Order, was not returned undelivered. After waiting an additional 30 minutes beyond the scheduled hearing time, the undersigned directed the Petitioner to present its evidence in her absence.

Petitioner presented the testimony of Frank Paolella, an investigator for the Department, and introduced Petitioner's Exhibits 1 through 3. No transcript was provided and neither party submitted Proposed Findings of Fact.

FINDINGS OF FACT

1. On December 14, 1990, Frank Paolella, an investigator with the Department of Professional Regulation, went to Booth 85 in a Flea Market in Fort Myers, Florida, to investigate a complaint of unlicensed activity purportedly going on there. When he arrived, he asked for the owner, Ms. Gamber, who was present with an employee. He told her why he was there and since she was then working on someone's nails, waited for her to finish. While he was waiting, he observed Respondent's employee, Nikkae Jurgens, applying false nails to another customer. This involved sanding and buffing the client's natural nails before applying the false ones.

   
   

2. When he brought all this to the attention of the Respondent, she freely admitted she was engaged in unlawful activity but claimed she was not aware that Ms. Jurgens, who was only two feet away from her, was also doing it. When he brought it to her attention, Respondent said she would tell Ms. Jurgens to stop.

   
   

3. Ms. Jurgens indicated that she did not have any identification on her but that Respondent had it all. When Mr. Paolella asked Respondent for it, she said she would provide it later. When she did do so later, by phone, she also said that Ms. Jurgens had been working for her for about 7 to 10 days.

   
   

4. Mr. Paolella checked on the licensure status of both Respondent and Ms. Jurgens and determined that neither had a license to do this type or work, nor did either hold a salonlicense. The operation was a booth in a flea market - a counter with two chairs for clients. There was no sanitary equipment there, no disinfectant for implements, and no closed compartments for storing clean supplies and equipment.

   
   

5. Mr. Paolella's investigation revealed that Respondent's booth is open for business only on Fridays, Saturdays, and Sundays, but whenever he went there before December 14, 1990, she was never there. As of August 22, 1991, the owner of the Flea Market where Respondent had operated indicated she was no longer in business there.

   
   

6. Records of the Department show that Ms. Gamber held neither a cosmetologist's license or a cosmetology salon license during the time in question, nor did Ms. Jurgens, her employee. It is so found.

   
   

   CONCLUSIONS OF LAW

   
   

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

8. Petitioner has alleged that Respondent has violated Section 477.029(1)(b), Florida Statutes, by operating a cosmetology salon without a current active cosmetology salon license, and by allowing an unlicensed person to practice as a specialist, in violation of Section 477.029(1)(c), Florida Statutes.

   
   

9. Section 477.029(1), Florida Statutes makes it unlawful for any person

   to:

   
   

   1. Operate any cosmetology salon unless it has been duly licensed ..., and

      
      

   2. Permit an employed person to practice cosmetology or a specialty unless duly licensed or registered ....

   
   

10. The burden of proof is upon the Department to prove the Respondent's

    alleged misconduct by clear and convincing evidence, Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

11. The uncontroverted evidence of record shows that at the time alleged, the Respondent was operating what passed for a cosmetology salon, at least part time, at a Flea Market in Fort Myers, Florida. She was not licensed as a cosmetologist at the time, nor was the "salon" licensed either.

    
    

12. At the same time, she employed Ms. Jurgens, also an unlicensed individual, to practice cosmetology or a specialty thereof, the application of false nails, without being licensed either. In both particulars, the evidence is clear that Ms. Gamber was in violation of the terms of the statute.

    
    

13. Petitioner proposes to impose an administrative fine of $500.00 against Ms. Gamber for each of the two violations. Such penalty is within the limits of the statute and the Rules of the Department and appears to be appropriate under the circumstances.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that a Final Order be issued by the Board of Cosmetology imposing a fine of $500.00 for each of the two violations established as outlined in the Administrative Complaint filed herein.

RECOMMENDED in Tallahassee, Florida this 27th day of September, 1991.

ARNOLD H. POLLOCK

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 27th day of September, 1991.

COPIES FURNISHED:

Mark E. Harris Paralegal Specialist

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Nikki Gamber

P.O. Box 8155

Sarasota, Florida 34278

Jack McRay General Counsel

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Kaye Howerton Executive Director Board of Cosmetology Northwood Centre

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 within which to submit written exceptions. You should consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should b e filed with the agency which will issue the Final Order in this case.

Docket for Case No: 91-002660

Orders for Case No: 91-002660