STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2779

)

MARIE KETTLY PREZEAU, d/b/a )

KETTLY'S BEAUTY SALON, )

)

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

N-607

Rhode Building Phase 2

401 Northwest 2nd Avenue Miami, Florida 33128

For Respondent: Ms. Marie Kettly Prezeau, pro se

Kettly's Beauty Salon 8303 Northeast 2nd Avenue Miami, Florida 33137

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 formal hearing in this case the Petitioner presented the testimony of one witness and offered three exhibits, all of which were received in evidence. The Respondent, Marie Kettly Prezeau, testified on her own behalf, 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 are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material to this case the Respondent, Marie Kettly Prezeau, d/b/a Kettly's Beauty Salon, has been licensed to practice cosmetology and operate a cosmetology salon in the State of Florida, having previously been issued licenses numbered CL 0150329 and CE 0039773. At all times material to this case, the Respondent has owned and operated a cosmetology salon named Kettly's Beauty Salon which is located at 8303 Northeast 2nd Avenue, Miami, Florida, 33137.

   
   

2. On November 19, 1991, a routine inspection of Kettly's Beauty Salon was conducted by an inspector for the Department of Professional Regulation. Upon arrival at Kettley's Beauty Salon, the inspector found the door was locked and he had to knock in order to gain entrance to the licensed premises. The door to the beauty salon was opened by a person who was later identified as Ms. Marc Kettlyne. When the inspector entered the licensed premises, he observed six people inside the beauty salon; five people who appeared to be customers and Marc Kettlyne, who appeared to be in charge of the beauty salon. Two of the people who appeared to be customers were sitting in beauty chairs and the other three were sitting under driers. The owner of the beauty salon was not present when the inspector arrived.

   
   

3. The inspector had difficulty communicating with Ms. Marc Kettlyne because the latter did not appear to speak English. Through one of the customers who volunteered to serve as translator, the inspector explained who he was, stated the purpose of his visit, and made various inquiries of Ms. Marc Kettlyne. Shortly after the arrival of the inspector, Ms. Marc Kettlyne made a telephone call in a foreign language. The customer who served as the volunteer translator explained to the inspector that Ms. Kettlyne had made a phone call to the owner of the beauty salon.

   
   

4. The inspector waited in the beauty salon for approximately forty minutes before the owner of the beauty salon appeared. While he was waiting, the inspector saw Ms. Marc Kettlyne spraying a clear liquid on the hair of a customer and also saw her arranging the customer's hair in rollers. The inspector asked Ms. Marc Kettlyne to show him her cosmetology license. Ms. Kettlyne explained that she did not have a cosmetology license. The inspector then asked Ms. Kettlyne for identification. Ms. Kettlyne showed the inspector what appeared to be a valid Florida drivers license which showed her name to be Marc Kettlyne. Ms. Marc Kettlyne has never been licensed to practice cosmetology in the State of Florida.

   
   

5. When the Respondent finally arrived at the beauty salon, she became very confrontational and belligerent with the inspector. The Respondent denied that Ms. Marc Kettlyne ever performed any cosmetology services in the beauty salon. The Respondent also said that she herself had performed all of the cosmetology services on the five customers who were present when the inspector arrived, and that she had merely stepped out for a few minutes to pay a bill. 1/

   CONCLUSIONS OF LAW

   
   

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

   
   

7. 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.

      
      

8. The Respondent's act of allowing Ms. Marc Kettlyne to practice cosmetology in her beauty salon is a clear violation of Section 477.029(1)(c), Florida Statutes. With regard to the appropriate penalty for such a violation, the record does not contain evidence of any mitigating factors. To the contrary, the totality of the evidence suggests that this was a deliberate and intentional violation.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that the Board of Cosmetology issue a Final Order in this case concluding that the Respondent, Marie Kettly Prezeau, has violated Section 477.029(1)(c), Florida Statutes, and imposing a penalty consisting of a period of probation for one year and an administrative fine in the amount of $500.00.

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.

ENDNOTES

1/ The Respondent also repeated these denials and assertions during her testimony at hearing. I have not credited her testimony in this regard, because it is contrary to the greater weight of the evidence. In this regard it is specifically noted that the inspector actually observed Ms. Marc Kettlyne spraying and arranging a customer's hair.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-2779

The following are my specific rulings on the proposed findings of fact submitted by all parties.

Findings proposed by Petitioner:

Except as specifically noted below, the substance of all proposed findings of fact submitted by the Respondent has been accepted.

Paragraph 6: The third sentence is rejected because it is supported only by hearsay evidence that would not be admissible over objection in a civil action.

Paragraph 7: First sentence rejected as subordinate and unnecessary details. Second Sentence rejected because it is supported only by hearsay evidence that would not be admissible over objection in a civil action.

Findings proposed by Respondent:

(None submitted)

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, Florida 32399-0792

Ms. Marie Kettly Prezeau d/b/a Kettly's Beauty Salon 8303 Northeast 2nd Avenue Miami, Florida 33137

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.

Docket for Case No: 92-002779

Orders for Case No: 92-002779