STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA STATE BOARD OF )

COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1065

)

ROBERT WINTERMUTE )

d/b/a ELIZABETH ARDEN )

340 Miracle Mile )

Coral Gables, Florida, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice to the parties, at Fort Lauderdale, Florida, on June 29, 1976, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Ronald C. LaFace, Esquire

Post Office Box 1752 Tallahassee, Florida

For Respondent: None

ISSUE PRESENTED

Respondent's alleged violation of Section 477.14(1) & 477.17, Florida Statutes.

Receipt of Administrative Complaint and Notice of Hearing was acknowledged by Respondent. (Exhibit 1)

FINDINGS OF FACT

1. On May 20, 1975, Respondent was employed at the Elizabeth Arden cosmetology salon, 340 Miracle Mile, Coral Gables, Florida. This salon operates under Certificate of Registration No. 21626 issued by Petitioner on May 8, 1975. Petitioner's inspector had seen an ad in the Miami Herald to the effect that Respondent was employed at that establishment and she was aware of the fact that he did not hold a current cosmetologist license. She visited him on May 20, 1975 and he stated at that time that he had applied for a license. The inspector checked with Petitioner's records personnel and discovered that his license had not been renewed at that time. (Testimony of Padrick)

   
   

2. Respondent submitted letters dated June 25, 1976 in which he stated that he had planned to attend his hearing but was unable to do so because of

   illness in the family. He further stated that he had been a licensed cosmetologist in the State of Florida for over 20 years, and previously one in Illinois for over six (6) years. He stated that he had severe medical problems and went out of the beauty field for approximately two years and when the job opportunity at Elizabeth Arden came along he forwarded a check for $35.00 to Petitioner to reinstate his cosmetology Certificate and that when Petitioner's inspector entered the shop on May 20, 1975, his new license had not yet been received. However, he did show her the check stub. They then jointly called Petitioner's Winter Haven office and he was advised that the check had not been received but that he should send a money order and his old license stub. He did so and his license was received on June 14, 1975. (Statement of Respondent)

   
   

   CONCLUSIONS OF LAW

   
   

3. In its Administrative Complaint Petitioner seeks to suspend or revoke Respondent's license number 23152 for engaging in the practice of cosmetology without having a current cosmetologist license on May 20, 1975, in violation of Section 477.14(1), Florida Statutes. That statutory provision requires every registered cosmetologist who continues an active practice to renew his Certificate of Registration every two years. Section 477.17 establishes fees for various Certificates of Registration and methods of renewing expired Certificates.

   
   

4. Petitioner's Administrative Complaint is fatally defective in that it seeks to take adverse action against a Certificate of Registration to operate a cosmetology salon which is held by Elizabeth Arden, Inc. and not by Respondent. Further it would be anomalous, even if Respondent's personal cosmetologist license had been the subject of a complaint, to have sought to suspend or revoke the same for practicing at a prior time without having a current cosmetologist license. Respondent's remedy would have been to seek judicial prosecution, if available and so desired with respect to the alleged statutory violation. Accordingly, it is concluded that the allegation against Respondent should be dismissed.

RECOMMENDATION

That the allegation against Respondent be dismissed.

DONE and ENTERED this 28th day of July, 1976, in Tallahassee, Florida.

THOMAS C. OLDHAM, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

COPIES FURNISHED:

Ronald C. LaFace, Esquire

P.O. Box 1752 Tallahassee, Florida

Robert Wintermute c/o Elizabeth Arden

340 Miracle Mile Coral Gables, Florida

Docket for Case No: 76-001065

Orders for Case No: 76-001065