STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Petitioner,

vs.

CAMILO TORRES,

Respondent.

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) Case No. 06-1043

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case before Carolyn S. Holifield, Administrative Law Judge of the Division of Administrative Hearing, on August 16, 2006, by video teleconference at sites in Tampa and Tallahassee, Florida.

APPEARANCES

For Petitioner: Lee C. Hawley, Qualified Representative

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32303

For Respondent: (No Appearance)

STATEMENT OF THE ISSUE

Whether Respondent engaged in the practice of cosmetology or a specialty without an active license in violation of Section 477.0265, Florida Statutes (2005), and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On March 8, 2006, Petitioner, the Department of Business and Professional Regulation (Department), filed an Administrative Complaint, DBPR No. 2005-065557, against Respondent, Camilo Torres (Respondent). The Administrative Complaint alleged that Respondent engaged in the practice of cosmetology or a specialty without a license in violation of Section 477.0265, Florida Statutes (2005). Respondent timely challenged the allegation and requested a formal hearing. On or about March 23, 2006, the Department forwarded the matter to the Division of Administrative Hearings to conduct the hearing.

At hearing, the Department presented the testimony of one witness, John R. Miranda, an environmental health specialist for the Department. Petitioner's Exhibits 2, 3, and 4 were offered and admitted into evidence. As noted above, Respondent did not appear at the hearing, and no evidence or testimony was offered on his behalf.

At the request of the Department, the Administrative Law Judge took official recognition of Subsections 477.013(4) and 477.0265(1)(a), Florida Statutes (2005), and Florida Administrative Code Rule 61G5-18.0055.

A Transcript of the hearing was filed on August 21, 2006.

The Department filed its Proposed Recommended Order on

August 30, 2006. As of the date of this Recommended Order, Respondent has not filed a proposed recommended order.

FINDINGS OF FACT

Based on the evidence and the testimony of witness presented, and the record in this case, the following findings of fact are found:

1. At all times material hereto, Respondent was regulated by the Department.

2. Respondent's last know address and his address of record with the Department is 421 Champagne Lane, Brandon, Florida 33510. This is also the address written on the Election of Rights Form submitted to the Department in which Respondent requested a formal hearing.

3. At all times material hereto, John Miranda was employed by the Department as an environmental health specialist, where he has been working for approximately nine (9) years. As an environmental health specialist, Mr. Miranda conducts inspections for the Board of Cosmetology.

4. On December 14, 2005, Mr. Miranda conducted an inspection of the Eclips Barber Shop (Eclips) located at 1221 Kingsway Plaza, in Brandon, Florida.

5. During the inspection, Mr. Miranda observed Respondent cutting hair. However, when asked to do so, Respondent did not produce either a barber license or cosmetology license.

6. On December 14, 2005, Respondent was not licensed as either a barber or a cosmetologist.

7. Respondent was eligible to take the cosmetology examination on September 10, 2004. As of December 20, 2005, Respondent had successfully completed all parts of the cosmetology licensing examination.

8. Respondent was not licensed as a cosmetologist until more than three months after the December 14, 2005, inspection. Respondent was initially issued a cosmetology license, License No. CL 1183800, on or about March 31, 2006. That license is current and active, with an effective date of March 31, 2006, through October 31, 2007.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2005).

10. The Department has jurisdiction over Respondent pursuant to Chapters 455 and 477, Florida Statutes (2005).

11. Subsection 477.0265(1), Florida Statutes (2005), enumerates acts that are prohibited under Chapter 477, Florida Statutes (2005), and provides, in pertinent part, the following:

    Prohibited acts.--

    
    

    1. It is unlawful for any person to:

       (a) Engage in the in the practice of cosmetology or a specialty without an active license as a cosmetologist or registration as a specialist issued by the department pursuant to the provisions of this chapter.

       
       

12. Section 477.029, Florida Statutes (2005), establishes penalties for engaging in any of the acts enumerated in that section and for other specified statutory provisions, including Section 477.0265, Florida Statutes (2005).

13. Section 477.029, Florida Statutes (2005), provides, in pertinent part, the following:

    Penalty.--

    
    

    1. It is unlawful for any person to:

       
       

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       (h) Violate any provision of s. 455.227(1), s. 477.0265, or s. 477.028.

       
       

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    2. Any person who violates the provisions of this section shall be subject to one or more of the penalties as determined by the board:

       
       

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       (c) Imposition of an administrative fine not to exceed $500 for each count or separate offense.

       
       

14. In the instant case, the Department alleges that Respondent committed an act prohibited by Section 477.0265, Florida Statutes (2005), and seeks to impose an administrative fine. Accordingly, the Department has the burden of proving by

    clear and convincing evidence the allegations against Respondent. Department of Banking and Finance, Division of

    Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996).

15. The Department has met its burden of proof in this case.

16. The Department proved by clear and convincing evidence that Respondent engaged in the practice of cosmetology without a license as a cosmetologist.

RECOMMENDATION

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

RECOMMENDED that the Department of Business and Professional Regulation, enter a final order (1) finding that Respondent, Camilo Torres, engaged in the practice of cosmetology without a license, an act proscribed by Subsection 477.0265(1)(a), Florida Statutes (2005), and (2) imposing an administrative fine of $500 for that violation.

DONE AND ENTERED this 5th day of September, 2006, in Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

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 5th day of September, 2006.

COPIES FURNISHED:

Camilo Torres

421 Champagne Lane Brandon, Florida 33511

Lee C. Hawley

Charles Tunnicliff, Esquire Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32303

Josefina Tamayo, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

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: 06-001043

Orders for Case No: 06-001043