STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2664

) FERNANDO VARGAS NATAL, d/b/a ) FAHN HAIR/NAILS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case at Miami, Florida, on July 17, 1991 before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:

APPEARANCES

For Petitioner: Mr. Mark E. Harris, Paralegal

Department of Professional Regulation 1940 North Monroe

Tallahassee, Florida 32399-0792

For Respondent: Mr. Fernando Vargas Natal, pro se Fahn Hair/Nails

11921 South Dixie Highway, Suite 200

Miami, Florida 33156 and

Mr. Andrew H. Hand Fahn Hair/Nails

11921 South Dixie Highway, Suite 200

Miami, Florida 33156 STATEMENT OF THE ISSUES

The issue in this case is whether the Respondent violated Section 477.029(1)(c), Florida Statutes (1989), which prohibits the employment of an unlicensed individual in the practice of cosmetology.

PRELIMINARY STATEMENT

At the hearing on July 17, 1991, the Petitioner presented the testimony of one witness and offered four exhibits, all of which were received in evidence. On behalf of the Respondent, testimony was presented by two witnesses. The Respondent did not offer any exhibits.

Following the hearing, a transcript of the proceedings was filed with the Hearing Officer on August 7, 1991. The parties were allowed fifteen days from the filing of the transcript within which to file their proposed recommended orders. Both parties filed timely post-hearing submissions containing proposed findings of fact and conclusions of law. The parties' proposals have been carefully considered during the preparation of this Recommended Order. The proposed findings of fact submitted by both parties are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material, the Respondent Fernando Vargas Natal has been a licensed cosmetologist in the State of Florida, holding license number CL 009034.

   
   

2. At all times material, Fahn Hair/Nails has been licensed as a cosmetology salon in the State of Florida, holding license number CE 0053197.

   
   

3. At all times material, Samer Mace has been a registered nail specialist in the State of Florida, holding license number FV 0521832. Samer Mace was not licensed as a cosmetologist in the State of Florida at any time material to this case.

   
   

4. DPR investigator Sandra McKenzie, using the name "Linda," telephoned Fahn Hair/Nails on November 28, 1990, and made an appointment to have her hair done by Samer Mace at 2:00 p.m. on November 30, 1990. On the appointment books at Fahn Hair/Nails, Samer Mace was listed as "Sam."

   
   

5. Upon entering the business premises of Fahn Hair/Nails on November 30, 1990, at approximately 1:45 p.m., DPR investigator Richard Braun observed an appointment for "Linda" for hair services at 2:00 p.m. listed in the appointment book in the column for Sam." Investigator Braun also observed in the appointment book in the column for "Sam," other appointments scheduled that day for manicures, blow drys and washes.

   
   

6. When Fernando Vargas Natal was questioned about the allegations concerning Samer Mace's unlicensed cosmetology activities, Mr. Natal admitted to investigator Braun that Samer Mace had been providing hair services to customers at Fahn Hair/Nails.

   
   

7. When Samer Mace was questioned about the allegations concerning her unlicensed cosmetology activities, she admitted to investigator Braun that she had been providing hair services to customers while in the employ of the Respondent.

   
   

8. Fernando Vargas Natal was aware that, at all times material, Samer Mace was licensed only to perform manicures, and was not licensed to perform hair services.

   
   

   CONCLUSIONS OF LAW

   
   

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

10. In a case of this nature, the Petitioner has the burden of proving the charges set forth in the Administrative Complaint by clear and convincing evidence. The Petitioner has met that burden. Section 477.029(1)(c), Florida Statutes (1989), prohibits the employment of an unlicensed person in the practice of cosmetology, and authorizes the imposition of disciplinary penalties for a violation of the prohibition. The evidence clearly shows that the Respondent knowingly employed an unlicensed person in the practice of cosmetology and is, therefore, in violation of Section 477.029(1)(c), Florida Statutes (1989).

RECOMMENDATION

For all of the foregoing reasons, it is recommended that the Board of Cosmetology enter a Final Order in this case concluding that the Respondent has violated Section 477.029(1)(c), Florida Statutes (1989), and imposing an administrative penalty of a fine in the amount of $500.00.

DONE AND ENTERED at Tallahassee, Leon County, Florida, this 4th day of September, 1991.

MICHAEL M. PARRISH, 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 9th day of September, 1991.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-2664

The following are my specific rulings on all proposed findings of fact submitted by all parties. As a preface to the specific findings which follow it is noted that there is conflicting evidence on some of the relevant facts in this case. In resolving those conflicts I have, for the most part, found the testimony presented on behalf of the Petitioner to be more persuasive than the testimony presented on behalf of the Respondent.

Findings proposed by Petitioner:

The following paragraphs of the findings proposed by the

Petitioner are accepted in whole or in substance: 1, 2, 3, 6, 7, 8, 9, 10, 11,

and 12.

The following paragraphs of the findings proposed by the Petitioner are rejected as subordinate and unnecessary details: 4 and 5.

Findings proposed by Respondent:

The first sentence of the findings proposed by Respondent is rejected as contrary to the greater weight of the evidence. The second sentence of the findings proposed by Respondent is rejected as not supported by competent substantial evidence and as, in any event, irrelevant.

The third sentence of the findings proposed by Respondent

(the sentence incorporating the recommendation) is rejected as contrary to the greater weight of the evidence.

COPIES FURNISHED:

Ms. Myrtle Aase Executive Director Board of Cosmetology

Department of Professional Regulation 1940 North Monroe Street

Suite 60

Tallahassee, FL 32399-0792

Jack McRay, Esquire General Counsel

Department of Professional Regulation 1940 North Monroe Street

Suite 60

Tallahassee, FL 32399-0792

Mr. Mark E. Harris Paralegal

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Mr. Fernando Vargas Natal Fahn Hair/Nails

11921 South Dixie Highway, Suite 200

Miami, Florida 33156

Mr. Andrew H. Hand Fahn Hair/Nails

11921 South Dixie Highway, Suite 200

Miami, Florida 33156

Docket for Case No: 91-002664

Orders for Case No: 91-002664