STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Petitioner,

vs.

REFLECTIONS BARBER SHOP AND BEAUTY SALON,

Respondent.

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) Case No. 07-2416

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RECOMMENDED ORDER

Pursuant to notice, this case was heard before Daniel M. Kilbride, Administrative Law Judge of the Division of Administrative Hearings, via video-teleconference from sites in Tampa and Tallahassee, Florida, on August 7, 2007.

APPEARANCES

For Petitioner: Elizabeth F. Duffy, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202 For Respondent: No Appearance

STATEMENT OF THE ISSUE

Whether Respondent, a cosmetology salon, permitted an unlicensed person to perform cosmetology services as alleged in the Administrative Complaint, dated April 24, 2007, and, if so,

what disciplinary action should be taken against Respondent's license.

PRELIMINARY STATEMENT

On April 24, 2007, Petitioner filed a five-count Administrative Complaint, against Respondent, Reflections Barber Shop and Beauty Salon, alleging violations of Chapter 477, Florida Statutes. Respondent timely disputed the allegations contained in the Administrative Complaint and petitioned for a formal administrative hearing. Thereafter, the case was transferred to the Division of Administrative Hearings ("DOAH") pursuant to Subsection 120.57(1), Florida Statutes (2006).1 A continuance was granted at the request of Petitioner, and re-set for August 7, 2007.

The hearing was conducted by video-teleconference between Tampa and Tallahassee. When Respondent failed to appear, a diligent search and inquiry was made, but Respondent's whereabouts could not be located. After a reasonable time, the hearing was convened, and Petitioner presented the testimony of one witness: John R. Miranda ("Miranda"), an inspector for Petitioner. Petitioner offered 17 exhibits, which were admitted into evidence.

The parties were given ten days from the filing of the transcript of the hearing in which to submit post-hearing submittals. Petitioner timely filed its Proposal on

September 4, 2007. Respondent has not filed its proposal as of the date of this Recommended Order.

FINDINGS OF FACT

Based on the evidence and the entire record in this proceeding, the following findings of fact are found:

1. At all times material hereto, Respondent was licensed and regulated by Petitioner, Department of Business and Professional Regulation, as a cosmetology salon owned by Immacula Evans.

2. Respondent is a licensed cosmetology salon, license number CE9966208, whose address of record with Petitioner is 11329 North Nebraska Avenue, Tampa, Florida 33612.

3. At all times material hereto, John R. Miranda was employed by the Petitioner as an Inspector.

4. On or about March 8, 2006, Miranda conducted an inspection of Respondent's establishment located at 11329 North Nebraska Avenue, Tampa, Florida. Miranda observed that an unidentified male was practicing cosmetology without a license. A citation was personally issued to Respondent's owner.

5. On or about March 17, 2006, Miranda conducted a re- inspection of Respondent's establishment. In the course of this inspection, Miranda observed that Pierre Elionze was practicing cosmetology without a license. A citation was issued to Respondent.

6. On or about March 24, 2006, Miranda conducted another inspection of Respondent's establishment. In the course of this inspection, Miranda observed that Dwight Booquet, Christine Marc, and Moveta S. Swalters were each practicing cosmetology without a license. A citation was issued to Respondent.

7. On or about June 7, 2006, Miranda conducted a further inspection of Respondent's establishment. In the course of the inspection, Miranda observed that Dwight Booquet was again practicing cosmetology without a license, and a citation was issued.

8. On or about July 29, 2006, Miranda conducted another inspection of Respondent's establishment. In the course of the inspection, Miranda observed that Dwight Booquet yet again practicing cosmetology without a license, and a citation was issued.

9. On or about August 11, 2006, Miranda conducted an inspection of Respondent's establishment. In the course of the inspection, Miranda observed that Dwight Booquet was again practicing cosmetology without a license, and a citation was issued.

10. Respondent has engaged in the unlawful and repeated violations of Subsection 477.0265(1), Florida Statutes, between March 8 and August 11, 2006.

    CONCLUSIONS OF LAW

    
    

11. Petitioner has jurisdiction over cosmetologists and the operation of cosmetology salons, pursuant to Section 20.165 and Chapter 477, Florida Statutes.

12. Subsection 477.0265(1)(b)2., Florida Statutes, states in pertinent part that:

    1. It is unlawful for any person to:

       
       

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       (b) Own, operate, maintain, open, establish, conduct, or have charge of, either alone or with another person or persons, a cosmetology salon or specialty salon:

       
       

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       2. In which a person not licensed or registered as a cosmetologist or a specialist is permitted to perform cosmetology services or any specialty.

       
       

13. Subsection 477.0265(1)(c), Florida Statutes, states in pertinent part that: "It is unlawful for any person to engage in willful or repeated violations of this chapter or of any rule adopted by the Board."

14. Respondent is subject to disciplinary action by Petitioner.

15. Subsection 455.227(2), Florida Statutes, provides that any licensee found guilty of violating Chapter 477, Florida Statutes, is subject to suspension, permanent revocation of

    license, restriction of practice, imposition of an administrative fine not to exceed $5,000, issuance of a reprimand, placement on probation, or any corrective action deemed necessary to remedy such violation.

16. Petitioner has the burden of proving by clear and convincing evidence the allegations contained in the Administrative Complaint against Respondent. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996).

17. Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So. 2d 112, at 116, fn.5 (Fla. 1st DCA 1989) described the clear and convincing evidence standard as:

    That standard has been described as follows: Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of [sic] conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    Citing Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

18. In addition, the disciplinary action may only be based upon the offenses specifically alleged in the Administrative

    Complaint. See Kinney v. Department of State, 501 So. 2d 129,

    
    

    133 (Fla. 5th DCA 1987); Sternberg v. Department of Professional

    
    

    Regulation, Board of Medical Examiners, 465 So. 2d 1324, 1325 (Fla. 1st DCA 1985); Hunter v. Department of Professional Regulation, 458 So. 2d 842, 844 (Fla. 2d DCA 1984).

19. Petitioner proved by clear and convincing evidence that Respondent violated Subsection 477.0265(1)(b)2, Florida Statutes, on four occasions by allowing unlicensed persons to perform cosmetology services in Respondent's establishment.

20. By allowing multiple persons, on four separate occasions, to engage in the willful and repeated violations of this section, after a citation was issued on each occasion, Respondent has committed an egregious and unlawful act.

RECOMMENDATION

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

RECOMMENDED that the Board of Cosmetology enter a final order revoking Respondent's cosmetology establishment license number CE 9966208, and impose an administrative fine in the amount of $5,000.

DONE AND ENTERED this 11th day of September, 2007, in Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

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 11th day of September, 2007.

ENDNOTE

1/ All references to Florida Statutes are to Florida Statutes (2006), unless otherwise indicated.

COPIES FURNISHED:

Elizabeth F. Duffy, Esquire Department of Business and Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

Evans A. Immacula Reflections Barber Shop &

Beauty Salon

4709 Bristol Bay Way Tampa, Florida 33619

Robyn Barineau, Executive Director Board of Cosmetology

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Ned Luczynski, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Nancy S. Terrel Hearing Officer

Office of the General Counsel 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: 07-002416

Orders for Case No: 07-002416