STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2675

) ARLED CORP., d/b/a CADRIS HAIR ) DESIGN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case at Miami, Florida, on July 10, 1992, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances at the hearing were as follows:

APPEARANCES

For Petitioner: Theodore R. Gay, Esquire

Department of Professional Regulation Rhode Building Phase 2

401 Northwest 2nd Avenue, N-607 Miami, Florida 33128

For Respondent: Ms. Gladys Scheer, President

Arled Corp., d/b/a Cadris Hair Design 13635 Southwest 26th Street

Miami, Florida 33175-6377 STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent has violated Section 477.029(1)(c), Florida Statutes, by employing an unlicensed person to practice cosmetology.

PRELIMINARY STATEMENT

At the hearing in this case the Petitioner presented the testimony of one witness and offered three exhibits, all of which were received in evidence. Ms. Gladys Sheer testified on behalf of the Respondent corporation, of which she is the president, but did not call any other witnesses and did not offer any exhibits. At the conclusion of the hearing the Petitioner stated that it would be ordering a transcript of the proceedings and requested that the parties be allowed 10 days from the filing of the transcript within which to file their respective proposed recommended orders. The request was granted. On July 17, 1992, the transcript of the hearing was filed with the Hearing Officer.

Thereafter, the Petitioner filed a proposed recommended order containing

proposed findings of fact and conclusions of law. As of the date of this Recommended Order, the Respondent has not filed any post-hearing document. All proposed findings of fact submitted by the Petitioner have been accepted in substance in the Findings of Fact which follow.

FINDINGS OF FACT

1. At all times material to this case, the Respondent, Arled Corp., d/b/a Cadris Hair Design, has been licensed to operate a cosmetology salon in the State of Florida, having previously been issued license number CE 0046212. At all times material to this case, the Respondent corporation has been the owner and operator of a cosmetology salon known as Cadris Hair Design, which is located at 13635 Southwest 26th Street, Miami, Florida 33175-6377.

   
   

2. On December 26, 1991, during the course of a routine inspection, an inspector employed by the Department of Professional Regulation discovered that Liliam de la Portilla was practicing a cosmetology specialty on the licensed premises without having a valid license to practice a cosmetology specialty. Further investigation revealed that Liliam de la Portilla had been practicing a cosmetology specialty on a regular basis on the licensed premises since approximately the middle of September of 1991. Liliam de la Portilla has previously been licensed to practice a cosmetology specialty, but her last license expired on June 30, 1990. During the period from the middle of September of 1991 through December 26, 1991, Liliam de la Portilla did not have a valid license to practice a cosmetology specialty in the State of Florida.

   
   

3. Ms. Gladys Scheer is, and was at all material times, the president of and owner of Arled Corporation. Ms. Scheer granted permission for Liliam de la Portilla to practice a cosmetology specialty on the premises of Cadris Hair Design. Liliam de la Portilla was not an employee of Cadris Hair Design, but merely paid rent for the right to practice a cosmetology specialty on the premises of Cadris Hair Design.

   
   

4. Ms. Gladys Scheer has known Liliam de la Portilla for approximately ten years. Ms. Scheer knew that Liliam de la Portilla had previously been licensed to practice a cosmetology specialty and assumed, but did not verify, that Liliam de la Portilla was still licensed. In September of 1991 when Ms. Scheer first allowed Liliam de la Portilla to practice a cosmetology specialty on the premises of Cadris Hair Design, she was not aware that Liliam de la Portilla's license had expired. Following the inspection on December 26, 1991, Ms. Gladys Scheer told Liliam de la Portilla that the latter could no longer practice a cosmetology specialty on the premises of Cadris Hair Design until such time as she was properly licensed.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter of, and the parties to, this proceeding. Sec. 120.57(1), Fla. Stat.

   
   

6. Section 477.029(1)(c), Florida Statutes, reads as follows in pertinent part:

   
   

   1. It is unlawful for any person to:

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

7. It is clear from the facts recited above that the Respondent, acting and by and through its president, Ms. Gladys Scheer, permitted an unlicensed person to practice a cosmetology specialty in violation of Section 477.029(1)(c), Florida Statutes. With regard to the appropriate penalty for such violation, it is noted by way of mitigation that the violation appears to have been inadvertent, rather than intentional or willful. Although Ms. Gladys Scheer was mistaken in her assumption that Liliam de la Portilla had an active license, it was, nevertheless, a reasonable assumption in view of Ms. Scheer's knowledge of Liliam de la Portilla's previous practice of a cosmetology specialty. It is further noted that Ms. Scheer acted responsibly by prohibiting further practice at her salon by Liliam de la Portilla once she was made aware that Liliam de la Portilla's license was expired. These mitigating factors do not exempt the Respondent from the imposition of a penalty, but they do compel a conclusion that only a modest penalty is appropriate.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that the Board of Cosmetology enter a Final Order concluding that the Respondent is guilty of violating Section 477.029(1)(c), Florida Statutes, and imposing a penalty consisting of a reprimand and an administrative fine in the amount of $100.00.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of August 1992.

MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SC 278-9675

Filed with the Clerk of the Division of Administrative Hearings this

3rd day of August 1992.

COPIES FURNISHED:

Theodore R. Gay, Esquire N-607

Rhode Building Phase 2

401 Northwest 2nd Avenue Miami, Florida 33128

Charles F. Tunnicliff, Bureau Chief Department of Professional

Regulation Suite 60

1940 North Monroe Street Tallahassee, FL 32399-0792

Ms. Gladys Scheer, President Cadris Hair Design

13635 Southwest 26th Street Miami, Florida 33175-6377

Kaye Howerton, 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 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.

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

BOARD OF COSMETOLOGY

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF COSMETOLOGY,

Petitioner,

-vs- CASE NO: 92-00537

DOAH NO: 92-2675

ARLED CORP. DBA CADRIS LICENSE NO.: CE0046212 HAIR DESIGN,

Respondent.

/

ORDER

THIS MATTER came before the Board of Cosmetology for final action pursuant to Section 120.57(1)(b)10, Florida Statutes, at a public meeting on October 4, 1992, in Key West, Florida, for the purpose of considering the Recommended Order issued by the Hearing Officer in the above styled case. The Petitioner was represented by Douglas Sunshine. The Respondent was duly notified of the hearing but was neither present nor represented by counsel.

After a review of the complete record in this matter, including consideration of the Hearing Officer's Recommended Order (a copy of which is attached hereto and incorporated herein by reference), written evidence (if any), and the arguments of each party, the Board makes the following findings and conclusions:

FINDINGS OF FACT

1. The Hearing Officer's Findings of Fact are hereby approved, adopted, and incorporated herein.

   
   

2. There is competent, substantial evidence to support the hearing officer's findings of fact as adopted by the Board.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1), and Chapter 477, Florida Statutes.

   
   

2. The Hearing Officer's conclusions of law are hereby approved, adopted and incorporated herein.

   
   

3. There is competent, substantial evidence to support the Board's findings and conclusions.

PENALTY

IT IS THEREFORE ORDERED AND ADJUDGED:

The penalty recommended by the Hearing Officer is rejected.

Respondent shall pay an administrative fine in the amount of (two hundred fifty dollars) $250.00 to the Board. Said fine shall be paid within thirty (30) days.

To assure payment of the fine, it is further ordered that all of Respondent's licensure to practice shall be suspended with the imposition of the suspension being stayed for thirty (30) days. If the ordered fine is paid within that thirty (30) day period, the suspension imposed shall not take effect. Upon payment of the fine after the thirty (30) days, the suspension imposed shall be lifted. If the licensee does not pay the fine within the said period, then the suspension shall take effect immediately upon expiration of the stay, without additional notice to the Respondent, who shall be required to surrender all licenses is sued by the Board to the investigator of the Department of Professional Regulation or shall mail same to the Board offices.

Upon payment of the fine after the 30 days, the suspension imposed shall be lifted.

This Order shall become effective upon filing with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 18th day of November, 1992.

BOARD OF COSMETOLOGY

Suzanne Lee Executive Director

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by United States Mail to Ms. Gladys Scheer, President, Arled Corp., 13635 S.W. 26th Street, Miami, Florida 33175-6377; Mr. Michael M. Parrish, Hearing Officer, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; and by hand delivery to Douglas Sunshine, Staff Attorney, Department of Professional Regulation, Northwood Center, 1940 North Monroe Street, Tallahassee, Florida 32399-0750, by 5:00 P.M., this 18th day of November, 1992.

Ruby Warner

NOTICE OF RIGHT TO JUDICIAL REVIEW

Pursuant to Section 120.59, Florida Statutes, any substantially affected person is hereby notified that they may appeal this Order by filing one copy of a notice of appeal with the clerk of the agency and by filing the filing fee and one copy of a notice of appeal with the District Court of Appeal within thirty

(30) days of the date this Order is filed.

Docket for Case No: 92-002675

Orders for Case No: 92-002675