STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES L. WESCOTT, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2886RX

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Respondent. )

)

SUMMARY FINAL ORDER

Pursuant to notice, the Petitioner's Motion for Summary Final Order was heard by William R. Cave, Hearing Officer, Division of Administrative Hearings on June 17, 1992 in Tallahassee, Florida.

APPEARANCES

For Petitioner: Paul Ezatoff, Esquire

106 East College Avenue Suite 1200

Tallahassee, Florida 32302-1877

For Respondent: William J. Bakstran, Esquire

Suite 1603, The Capitol Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

Whether existing Rule 21F-20.009, Florida Administrative Code, is, as a matter of law, an invalid exercise of delegated legislative authority.

PRELIMINARY STATEMENT

On May 11, 1992 the Petitioner filed his Petition To Determine Invalidity of Existing Rule, and the matter was scheduled for hearing on June 1, 1992. By stipulation of the parties the hearing was continued and rescheduled for July 2, 1992. On June 1, 1992 the Petitioner's Motion For Summary Final Order and Petitioner's Request for Oral Argument on Motion For Summary Final Order was filed. On June 4, 1992 the Board's Response To Petitioner's Motion For Summary Final Order was filed. On June the Petitioner filed his Motion To Expedite Discovery and Motion To Amend Petition. On June 8, 1992 the Respondent's Motion To Dismiss was filed and on June 10, 1992 the Board's Response In Opposition To Petitioner's Motion To Expedite Discovery and Board's Motion For Continuance was filed. At the hearing the parties advised the undersigned that the Respondent would withdraw its Motion to Dismiss and agree to amending the Petition to Determine Invalidity of Existing Rule for the purpose of correcting Petitioner's name to Charles L. Wescott, holding license no. CL 0108942. The Petition was amended to reflect Petitioner's name as Charles L. Wescott holding licence number CL 0108942. The parties stipulated to a discovery schedule. The hearing

scheduled for July 2, 1992 was continued and reschedule for July 27, 1992 to allow an orderly discovery schedule.

The parties presented their arguments on the Petitioner's Motion for Summary Final Order, and were given until 5:00 p.m. on June 19, 1992 to file any supplemental posthearing memoranda.

FINDINGS OF FACT

There were no findings of fact to be made.

CONCLUSIONS OF LAW

1. The Division of Administrative hearings has jurisdiction over the parties to, and the subject of, this proceeding.

   
   

2. The rule in dispute is Rule 21F-20.009 Florida Administrative Code (the Rule), which provides:

   
   

   21F-20.009 Smoking in Salons Prohibited.

   1. No salon owner shall permit any licensee, customer, or other person to ignite any flame or to smoke any type of tobacco product or other substance in the salon.

   2. No licensee shall proceed with any cosmetology or specialty service in a salon if any licensee, customer, or other person is igniting any flame or smoking any type of tobacco product or other substance in the salon.

   3. A first violation of this rule shall result in a penalty of $100. A second violation shall result in a penalty of $500. A third or subsequent violation shall result in suspension or revocation of licensure.

      
      

      The effective date of the Rule is November 17, 1991. However, upon the Rule being challenged by the Petitioner, the Board of Cosmetology (Board) at its June 7, 1992 meeting voted to direct the Department of Professional Regulation (Department) not to enforce the Rule until such time as a Final Order was issued.

      
      

3. The Petitioner has challenged the Rule on the basis, among other things, that the Board exceeded its statutory rulemaking authority in the promulgation and adoption of the Rule, in violation of Section 120.52(8), Florida Statutes. That section provides that a proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:

   
   

   1. the agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54;

   2. the agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7);

   3. the rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7);

   4. the rule is vague, fails to establish adequate

      standards for agency decisions, or vests unbridled discretion in the agency; or

   5. the rule is arbitrary or capricious.

   
   

4. The Board cites as specific authority for the Rule, Sections 477.016 and 477.025(2), Florida Statutes, which provide as follows:

   
   

   477.016 Rulemaking.--The board is authorized to adopt such rules not inconsistent with law as may be necessary to carry out the duties and authority conferred upon the board by this chapter.

   477.025 Cosmetology salons; specialty salons; requisites; licensure; inspection.--

   * * *

   (2) The board shall adopt rules governing the licensure and operation of salons and specialty salons and their facilities, personnel, safety and sanitary requirements, and the licensure application and granting process.

   
   

   Section 477.025(2) is also cited as the "law implemented" by rule. The legislative statement of purpose emphasizes that the Board's rulemaking powers are strictly limited to matters directly related to the practice of cosmetology:

   
   

   477.012 Purpose.--The Legislature recognizes that the practice of cosmetology involves the use of tools and chemicals which may be dangerous when applied improperly and, therefore, deems it necessary in the interest of public health to regulate the practice of cosmetology in this state. However, restrictions shall be imposed only to the extent necessary to protect the public from significant and discernible danger to health and not in a manner which will unreasonably affect the competitive market. Further, consumer protection for both health and economic matters shall be afforded the public through legal remedies provided for in this act.

   
   

5. An agency's construction of the statutes it administers is entitled to great weight and will not be overturned unless clearly erroneous. The agency is given broad discretion in the exercise of its lawful authority, with the burden placed on the Petitioner to demonstrate that a rule is arbitrary and capricious. Cataract Surgery Center v. Health Care Cost Containment Board, 581 So.2d 1359 (1 DCA Fla. 1991). However, there is a more stringent standard of review where the jurisdiction of an agency is in question. In Cataract Surgery Center, 581 So.2d at 1361, the court sets out the standard to be applied:

   
   

   An agency may not enlarge, modify, or contravene legislative pronouncements. [Citations omitted.] This court held in Florida League of Cities, Inc., v.

   Department of Insurance and Treasurer, 540 So.2d 850 (Fla. 1st DCA 1989), that proposed rules which expand the authority of the state agency beyond that established by the statutory scheme were invalid. Any attempt by an agency to extend or enlarge its jurisdiction beyond its statutory authority will be declared to be invalid. [Citations omitted.]

   Regulatory jurisdiction of an agency may only be exercised when authorized by law. [Citation omitted.] In determining whether the agency has enlarged upon its statutory authority, the court may look at the entire statutory framework as well as the specific provisions cited as statutory authority. [Citation omitted.]

   
   

6. When the Rule is read in pari materia with the entire statutory framework (Chapter 477, Florida Statutes) and particularly Sections 477.0265 (Prohibited acts), 477.028 (Disciplinary proceedings) and 477.029 (Penalties), Florida Statutes and earlier quoted Sections of Chapter 477, Florida Statutes, it is apparent that the Board has extended or enlarged its jurisdiction beyond the statutory authority of Chapter 477, Florida Statutes, granted the Board by the Legislature. The Board's powers are strictly limited to the promulgation and adoption of rules regulating the practice of cosmetology as defined by Section 477.013(4), Florida Statutes, and not the prohibition of any conduct which might take place in a salon. Furthermore, the Rule imposes supervisory duties on licensees and salon owners by requiring them to take responsibilities for the conduct of patrons and other persons in the salon. Such a requirement is clearly outside the scope of the regulation of the practice of cosmetology as envision by Chapter 477, Florida Statutes, and as such is clearly beyond the Board's statutory authority.

   
   

7. Assuming arguendo that Chapter 477, Florida Statutes grants the Board authority to adopt the Rule, it is preempted by the provisions of the Florida Clean Indoor Air Act, Chapter 386, Part II, Florida Statutes (the Act). Section 386.02, Florida Statutes, provides:

   
   

   386.202 Legislative intent.--The purpose of this act is to protect the public health, comfort, and environment by creating areas in public places and at public meetings that are reasonably free from tobacco smoke by providing a uniform statewide maximum code. This act shall not be interpreted to require the designation of smoking area. (e.s.)

   
   

8. The Act applies to salons since a salon would fall within the definition of "public place" as defined by Section 386.203(1)(s), Florida Statutes:

   
   

   1. "Public place" means the following enclosed, indoor areas used by the general public:

      * * *

      (s) Places of employment.

      
      

9. While Chapter 477, Florida Statutes, is designed to regulate the use of tools and chemicals in the practice of cosmetology in the interest of consumer protection, the Act is designed to provide statewide uniformity in the regulation of the smoking of tobacco products in public places.

   
   

10. Section 386.204, Florida Statutes establishes where smoking is prohibited in public places. Section 386.205, Florida Statutes establishes detailed regulation for designation of smoking areas, and provides in pertinent part as follows:

    
    

    1. Smoking areas may be designated by the persons in charge of a public place... .

       * * *

       1. In a workplace where there are smokers and nonsmokers, employers shall develop, implement, and post a policy regarding designation of smoking and nonsmoking areas. Such a policy shall take into consideration the proportion of smokers and nonsmokers. Employers who make reasonable efforts to develop, implement, and post such a policy shall be deemed in compliance. An entire area may be designated as a smoking area if all workers routinely assigned to work in that area at the same time agree.

       2. No more than one-half of the total square footage in a public place within a single enclosed indoor area used for a common purpose shall be reserved and designated as a smoking area, except that this provision shall not apply to employers who otherwise comply with this section... .

       3. A smoking area may not contain common facilities which are expected to be used by the public.

       
       

11. As emphasized by Section 386.209, Florida Statutes, the Act was intended to govern the regulation of smoking in public places and to supplant any contrary manner of regulation by any other unit of government to impose a different or more stringent requirement by expressly preempting the regulation of smoking to the state, and superseding any municipal or county ordinance on the subject.

    
    

12. Similarly, the state's concern about the potential health and fire risk allegedly pose by smoking is demonstrated by the Legislature's grant of enforcement authority to the Department of Health and Rehabilitative Services and the Division of Hotels and Restaurants of the Department of Business Regulation. And, to implement such enforcement, gave those agencies the authority to adopt, in consultation with the State Fire Marshal, rules specifying procedures to be followed in investigating complaints, defining the types of cases for which exemptions may be granted, and specifying procedures for appeals. Section 386.207(1), Florida Statutes. Unlike the Board, these agencies have the expertise and express authority to deal with health and fire issues. The Board contends that it is a state agency and therefore, not preempted by this language. However, had the Legislature intended to grant such authority to the Board it would have done so expressly.

    
    

13. The principles of statutory construction compels the conclusion that the Act completely governs the regulation of smoking and supersedes any contrary regulation. This conclusion is supported by the principle that a more specific statute expressly covering a subject (the Act) controls over another statute (Chapter 477, Florida Statutes) covering the same subject in more general terms, and the corollary principle that the last expression of legislative will is the law and, therefore, would prevail. Kiesel v. Graham, 388 So.2d 594, 595-596 (1 DCA Fla. 1980).

    
    

14. Rule 21F-20.009, Florida Administrative Code, is facially invalid as a matter of law, and there are no disputed issues of material fact in need of resolution through a formal hearing.

It is, therefore,

ORDERED that Rule 21F-20.009, Florida Administrative Code is an invalid exercise of delegated legislative authority and therefore, invalid. The Petition To Determine Invalidity Of Existing Rule is Granted.

DONE and ORDERED this 26th day of June, 1992, in Tallahassee, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of June , 1992.

COPIES FURNISHED:

Paul Ezatoff, Esquire

106 East College Avenue Suite 1200

Tallahassee, Florida 32302-1877

William J. Bakstran, Esquire Suite 1603, The Capitol Tallahassee, Florida 32399-1050

Kaye Howerton Executive Director Board of Cosmetology Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

Jack McRay General Counsel

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

Carroll Webb Executive Director

Administrative Procedures Committee Holland Building, Room 120 Tallahassee, FL 32399-1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 92-002886RX

Orders for Case No: 92-002886RX