STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Petitioner, )

vs. ) CASE NO. 92-3493

) NAIL TALK, INC., AND MARTINE ) DASSE d/b/a NAIL TALK, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a telephone conference final hearing in the above- styled matter was held on September 21, 1992, before Joyous D. Parrish, a designated Hearing Officer of the Division of Administrative Hearings. The parties were represented during the hearing as follows:

APPEARANCES

For Petitioner: Charles F. Tunnicliff

Bureau Chief

Department of Professional Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Huynh Win, Qualified Representative

Nail Talk, Inc. 1111 Alfred Drive

Orlando, Florida 32810 STATEMENT OF THE ISSUES

The central issue in this case is whether Respondents are guilty of the violation alleged in the administrative complaint dated May 19, 1992; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on May 19, 1992, when the Department of Professional Regulation, Board of Cosmetology (Department) filed an administrative complaint against the Respondents and alleged violations of Section 477.029(1)(a) Florida Statutes, and Rule 21F-20.002, Florida Administrative Code. More specifically, the complaint alleged that Respondents had violated the minimum sanitation standards for the operation of a cosmetology salon by allowing a dog to be present at the licensed location.

On June 2, 1992, the Respondent, Martine Dasse, on behalf of herself and the Respondent, Nail Talk, Inc., executed an election of rights that disputed

the allegations of fact contained in the administrative complaint and requested a formal hearing. The election of rights completed by Respondent Dasse provided, in part, the following handwritten statement: "1st-The dog was a puppy (1 pound) and she was on the lap of the customer. 2nd-The dog belong to the customer. 3rd-We did not know that no dog allow in the salon nail shop." The case was forwarded to the Division of Administrative Hearings for formal proceedings on June 10, 1992.

During the hearing, the Department presented the testimony of Sara Kimmig, former inspector for the Board of Cosmetology. The Department's exhibits numbered 1 through 5 were admitted into evidence. Mr. Win, who represented he was the former husband of the Respondent, Martine Dasse, was accepted without objection as a qualified representative for the Respondents.

The parties were granted ten days to file proposed recommended orders.

Neither party timely submitted a proposed order. A transcript of the proceedings has not been filed.

FINDINGS OF FACT

Based upon the testimony of the witness and the documentary evidence received at the hearing, the following findings of fact are made:

1. Respondent, Martine Dasse, whose license number is FT 0551203, is licensed to practice cosmetology and was, at all times material to the allegations of the administrative complaint, the licensee at a cosmetology salon known as Nail Talk.

   
   

2. Nail Talk Inc., d/b/a Nail Talk is a cosmetology salon, license number CE 0053836.

   
   

3. On March 11, 1992, Inspector Kimmig made a routine inspection of the Nail Talk premises and discovered a dog running freely throughout the salon. The dog was a small, brown and black, terrier-type animal.

   
   

4. When Inspector Kimmig questioned Respondent Dasse regarding the animal, Respondent advised that the dog's owner had temporarily left the pet at the salon. After Inspector Kimmig explained the violation to Respondent, the dog was removed from the salon.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

6. Rule 21F-20.002(c)4, Florida Administrative Code, provides:

   
   

   (c) Meet the safety and sanitary requirements as listed below and these requirements shall continue in full force and effect for the life of the salon:

   * * *

   4. Animals: No animals or pets shall be allowed in a salon except for trained animals to assist the hearing impaired, visually impaired, or the physically disabled.

7. The disciplinary guidelines found at Rule 21F-30.001, Florida Administrative Code, provide, in part:

   
   

   1. When the Board finds that any person has committed any of the acts set forth in Section 477.029(1), Florida Statutes, it shall issue a final order imposing appropriate penalties as

      recommended in the following disciplinary guidelines.

      * * *

      (j) Violating the safety and sanitary requirements of Section 21F-20.002(3)-(7), an administrative fine of $50 per violation if less than 3 violations are found to have occurred, or an administrative fine of $250 if

      3 or more violations are found to have occurred, or an administrative fine of $500.00 if 5 or more violations are found to have occurred at the time of this violation.

      
      

8. In this case, the Department has established by clear and convincing evidence that the Respondents violated the sanitation standards by allowing a dog to be in the licensed salon. That Respondents were reportedly unaware of the sanitation provisions does not excuse the violation.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Board of Cosmetology enter a final order finding the Respondents guilty of the violation alleged and imposing an administrative fine in the amount of $50.00 against each Respondent for a total of $100.00.

DONE and ENTERED this 26th day of October, 1992, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

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

COPIES FURNISHED TO:

CHARLES F TUNNICLIFF ESQ

DEPT OF PROFESSIONAL REGULATION 1940 N MONROE ST - STE 60 TALLAHASSEE FL 32399 0792

HUYNH WIN/QUALIFIED REPRESENTATIVE NAIL TALK INC

1111 AFRED DR

ORLANDO FL 32810

KAYE HOWERTON/EXECUTIVE DIRECTOR BOARD OF COSMETOLOGY

NORTHWOOD CENTRE - STE 60 1940 N MONROE ST TALLAHASSEE FL 32399 0790

JACK MCRAY/GENERAL COUNSEL

DEPT OF PROFESSIONAL REGULATION 1940 N MONROE ST - STE 60 TALLAHASSEE FL 32399 0792

MARTINE DASSE NAIL TALK INC 1111 ALFRED DR

ORLANDO FL 32810

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: 92-003493

Orders for Case No: 92-003493