STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) Case No. 05-2252PL

)

KARLINE RICKETTS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on September 9, 2005, by video teleconference with sites in West Palm Beach and Tallahassee, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

For Respondent: Karline Ricketts, pro se

1900 Okeechobee Boulevard, South 8A West Palm Beach, Florida 33409

STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed

against her, and, if so, what disciplinary action should be taken against her, if any.

PRELIMINARY STATEMENT

By Administrative Complaint filed August 26, 2004, the Department of Business and Professional Regulation charged Respondent Karline Ricketts with violating several statutes and rules regulating her conduct as a cosmetologist, and Respondent timely requested an administrative hearing on the allegations contained in the Administrative Complaint. This cause was thereafter transferred to the Division of Administrative Hearings to conduct the evidentiary proceeding.

The Department presented the testimony of Yvonne Grutka, and the Respondent testified on her own behalf. Additionally, the Department's Exhibits numbered 1-3 were admitted in evidence.

Only the Department submitted a proposed recommended order after the conclusion of the final hearing in this cause.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been licensed by the State of Florida as a cosmetologist, having been issued license number CL200634. At all times material hereto, her business, Karline's Beauty Spa of the Palm Beaches, has been

   a licensed cosmetology salon, having been issued license number CE74123.

2. On Friday, September 26, 2003, the Department's inspector Yvonne Grutka performed an inspection of Karline's Beauty Spa from 3:24 to 4:35 p.m. When she arrived, she noticed a pregnant woman styling a female client's hair with marcel irons. When the pregnant woman saw Grutka, she left her client and left the salon.

3. Grutka asked Respondent the identity of the pregnant woman, and Respondent told her the woman was Venus Pope. Respondent then showed Grutka a license with Venus Pope's photograph on it, but the picture did not look like the woman who had been styling the client's hair.

4. At first, Respondent represented that Venus Pope had gone to lunch and would return. Later, Respondent said the Pope had gone to pick up her children and would not return until the following Wednesday. However, Grutka checked the computer at the front desk and learned that Pope was scheduled to work the following day, Saturday, September 27.

5. Grutka subsequently returned to the salon when Pope was working. She asked the woman her name, and the woman identified herself as Venus Pope. Pope was not the pregnant woman who had been styling the female client's hair.

6. Grutka concluded that Respondent was interfering with her inspection by not properly identifying the pregnant woman who was styling hair.

7. Grutka noticed that various personal items and papers were located in the same open drawer in which sanitized combs and brushes were being stored. A blow dryer was also resting on the open drawer.

8. The salon's license and previous inspection sheet were not displayed within view of the front door, as required. In addition, the stylists' licenses with their photographs were not displayed at their workstations, as required. These violations were admitted by Respondent during the final hearing.

9. When Grutka arrived at the salon on September 26 Respondent was in her office in the back of the salon and was

   not "on the floor."

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. §§ 120.569 and 120.57(1), Fla. Stat.

11. The Department bears the burden of proving by clear and convincing evidence that Respondent committed the violations alleged in the Administrative Complaint filed in this cause. Dept. of Banking & Finance, Division of Securities & Investor Protection v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996).

12. The Administrative Complaint filed against Respondent contains four Counts. Count One charges Respondent with violating Section 477.0265(1)(b)2, Florida Statutes, by allowing an unlicensed person to perform cosmetology services. A person styling a client's hair, while performing the service, walked out of the salon upon seeing the Department's inspector enter the salon. Such behavior is, minimally, suspicious. In answer to the inspector's questions, Respondent falsely identified the person.

13. Respondent suggests that the person was a graduate of a cosmetology school and was, therefore, not required to be licensed. Respondent's suggestion is not credible. Section 477.019(4), Florida Statutes, does allow a graduate to perform services pending licensure, but such a person is required to perform those services under the supervision of a licensed cosmetologist. Since Respondent would not identify the person in question, however, her status as a graduate of a licensed cosmetology school cannot be proven. Further, Respondent admits she was not "on the floor" at the time. Therefore, Respondent could not have been supervising that person, and Respondent did not identify any licensed cosmetologist who was. Due to that person's strange behavior of leaving the salon while styling a client's hair, together with Respondent's false identification of that person, the evidence is clear and convincing that

    Respondent was allowing an unlicensed, unsupervised person to perform cosmetology services, as alleged in Count One.

14. Count Two charges Respondent with violating Section 477.029(1)(i), Florida Statutes, by violating the Board of Cosmetology's document display rules. Florida Administrative Code Rule 61G5-20.004(2) requires all individuals engaged in the practice of cosmetology to display at the individual's work station their current license. Similarly, Florida Administrative Code Rule 61G5-20.004(1)(a) and (b) requires holders of a salon license to display the salon's license and a copy of the most recent inspection sheet in a conspicuous place which is clearly visible to the general public upon entering the salon. Respondent admits she violated these Rules and, therefore, she violated Section 477.029(1)(i), Florida Statutes. Respondent's excuse that the cosmetologists she employs do not have a specific workstation is irrelevant; the Rule requires the cosmetologist's license to be displayed at whichever workstation the cosmetologist is using that day.

15. Count Three of the Administrative Complaint alleges that Respondent violated Section 477.029(1)(i), Florida Statutes, which prohibits violating the rules of the Board of Cosmetology. Florida Administrative Code Rule 61G5-20.002(2)(e) requires that disinfected items be stored in a clean, closed cabinet or container and that items that have not been

    disinfected shall not be stored in the same cabinet or container. During her inspection Respondent noted an open drawer containing both disinfected implements and personal items. By violating the Rule, Respondent also violated the statute.

16. Count Four charges Respondent with improperly interfering with an investigation or inspection, in violation of Section 455.227(1)(r), Florida Statutes, and, therefore, Section 477.029(1)(h), Florida Statutes. Respondent's false identification of the pregnant woman who was styling a client's hair could only have been intended to hide the woman's real identity and prevent the Department's inspector from verifying whether the woman was licensed or qualified under an exemption from licensure. As to this Count, as with the others, the Department has proven Respondent's guilt by clear and convincing evidence.

17. Section 477.029(2), Florida Statutes, provides the disciplinary penalties which can be assessed against a licensee for violations of Subsection (1). They include revocation or suspension, issuance of a reprimand or censure, imposition of an administrative fine not to exceed $500 for each count, and placement on probation for a period of time and with reasonable conditions. Respondent's misconduct does not justify the severe

    penalties of revocation or suspension, but it does require the imposition of a fine.

18. In its proposed recommended order, the Department recommends that Respondent be assessed a fine in the total amount of $1,300, without specifying the fine for each Count, and administrative costs, less costs associated with attorney's fees, in the amount of $171.89. As to the administrative costs, no evidence was offered as to any costs incurred by the Department, and, therefore, none can be awarded in this Recommended Order.

19. As to the administrative fine, the amount of $300 each is reasonable as to Counts Two and Three for Respondent's violation of the Board's display and sanitation rules. As to Counts One and Four, however, Respondent's employing an unlicensed person and giving false information to the inspector, the maximum fine as to each Count is appropriate. The administrative fine in this case, therefore, should be $1,600.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be entered finding Respondent guilty of the allegations contained in the Administrative Complaint filed against her and imposing an

administrative fine in the amount of $1,600 to be paid within 30 days of the date the final order is entered.

DONE AND ENTERED this 17th day of October, 2005, in Tallahassee, Leon County, Florida.

S

LINDA M. RIGOT

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2005.

COPIES FURNISHED:

Julie Malone, Executive Director Board of Cosmetology

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Leon Biegalski, General Counsel Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Karline Ricketts, pro se

1900 Okeechobee Boulevard, South 8A West Palm Beach, Florida 33409

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 05-002252PL

Orders for Case No: 05-002252PL