STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3387

)

PEGGY H. ALABISO, )

)

Respondent. )

)

RECOMMENDED ORDER

On August 5, 1992, a hearing was held pursuant to notice in the above- styled case by Stephen F. Dean designated Hearing Officer of the Division of Administrative Hearings. At the conclusion of the hearing, the parties did not request an extension to file proposed findings of fact. As of this date, a transcript has not been filed, and no notice has been given that one is being ordered. Therefore this Recommended Order is entered, and filings received after this date will not be considered.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Professional Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

For Respondent: Peggy H. Alabiso, pro se

9802-17 Baymeadows Road

Jacksonville, FL 32256 STATEMENT OF THE ISSUE

Whether the Respondent is guilty of practicing without a license?

PRELIMINARY STATEMENT

The Board of Cosmetology initiated action against the Respondent in DPR Case No. 90-13136 which was settled upon a stipulation. The Respondent was supposed to send the Department $250 every 30 days 120 days. The stipulation states,

Failure to pay the fine within the prescribed time will result in the suspension of the Respondent's license until the fine has been paid.

Subsequently, the Departments asserts it did not receive all the payments in accordance with the payment schedule in the stipulation. The department administratively suspended the Respondent's license on January 11, 1991, without

notice to the Respondent of the Department's intent to suspend the licensed with a point of entry prior to the suspension, or notice of the actual suspension after the Department acted. Thereafter, the Department received the annual renewal fee from the Respondent and reissued a license to her.

On January 4, 1992, the Respondent's establishment was inspected and the Respondent was observed practicing her occupation. The inspector advised the Respondent verbally her license was suspended. Based upon the inspector's observations, these changes of practicing while under suspension were brought against Respondent. The Respondent timely requested a formal hearing, and the matter was referred to the Division of Administrative Hearings.

FINDINGS OF FACT

1. The Respondent holds a current license #FT0502271 issued by Petitioner.

   
   

2. The Board's records reflect that the Respondent had entered into a stipulation with the Board which provided for the Respondent to pay the Board

   $250 every 30 days for 120 days, for a total of $1,000.

   
   

3. The Respondent paid the Board $750.

   
   

4. The Petitioner did not notify the Respondent in writing of the intent to impose a suspension for failure to pay the remaining fine in a timely manner and to advise her of her rights to a hearing on the Board's proposed action.

   
   

5. The records of the Petitioner show that the Respondent's license was suspended on November 1, 1991. The Board did not show it gave the Respondent notice of its intent to suspend or the suspension of her license.

   
   

6. An inspector observed the Respondent practicing after November 1, 1991. These charges arose from the Respondent practice after November 1, 1991.

   
   

7. The Respondent has filed for bankruptcy.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. This case was heard on August 5, 1992. As of this date, the parties have not filed a transcript, given notice of ordering a transcript, or filed proposed findings; therefore, this order is entered.

   
   

10. Section 120.57, Florida Statutes, provides that its provisions shall apply in all proceedings in which the substantial interests of a party are determined, unless the proceedings are exempt pursuant to Subsection (5) of that section. Subsection (5) addresses the interest of students in the state university system and is not applicable here. Unless waived by all parties, Subsection (1) of Section 120.57, supra, [formal proceedings] applies whenever there is a dispute issued of material fact. Subsection (2) of Section 120.57, supra, [informal proceedings] applies in all other cases.

    
    

11. The facts in this case reveal that the Department administratively suspended the license of the Respondent without notice to the Respondent and opportunity for the Respondent to reply or controvert the Department's action in

    any way. In fact, the record does not indicate the suspension was directed by the Board of Cosmetology. Further, under the terms of the stipulation, the suspension was indeterminate. Clearly, such an act is contrary to the provisions of Section 120.57, supra. Lastly, the record does not reveal that the Department gave notice in writing of the suspension after it acted to the Respondent. Therefore, the Respondent was not aware she was practicing without a license. Upon actual notice, the Respondent, who was entitled to minimal due process before the suspension, elected to continue to practice until her rights were exhausted. They will not be exhausted until the Board enters its Final Order on this Recommended Order.

    
    

12. The facts reveal that at all times complained of by the Board, the Respondent held a valid license improperly suspended by administrative action without the required due process proceeding required by the Florida Constitution and by Chapter 120, Florida Statutes.

    
    

13. The Department's suspension of Respondent's license contrary to law was not only void ab initio, but was not communicated to the Respondent until after the fact. After actual notice, the Respondent was entitled to continue practice until her case was heard on whether she was practicing without a license. Because the Department did not properly suspend the Respondent's license, she was not practicing without a license. Whether the Respondent is required to pay the money under the stipulation is not at issue in this proceeding. It may be part of the Respondent's pending bankruptcy, and no opinion on that issue is made.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is,

RECOMMENDED:

That the Administrative Complaint against the Respondent be dismissed. DONE and ENTERED this 26th day of August, 1992, in Tallahassee, Florida.

STEPHEN F. DEAN, 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 August, 1992.

COPIES FURNISHED:

Kaye Howerton, Executive Director Board of Cosmetology

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Charles F. Tunnicliff, Esquire Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Peggy H. Alabiso

9802-17 Baymeadows Road

Jacksonville, FL 32256

Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 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. 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: 92-003387

Orders for Case No: 92-003387