STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, FLORIDA STATE ) BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 77-764

) FLORIDA BEAUTY COLLEGE, INC. ) and HENRY DIXON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings at Suite 205, Conference Room, 6501 Arlington Expressway, Building "B", Jacksonville, Florida, at 9:00 A.M., April 20, 1978.

APPEARANCES

For Petitioner: Daniel J. Wiser, Esquire

Post Office Box 1752 Tallahassee, Florida 32302

For Respondent: Michael E. Seelie, Esquire

Suite 1103, Blackstone Building East Bay and Market Streets Jacksonville, Florida 32202

ISSUES

1. Whether or not during the period of April, 1975 until September, 1976, Florida Beauty College, Inc. and Henry Dixon, the President, Manager and Licensed Instructor, allowed an unlicensed person, namely one, Dennis R. Nevels, to teach at the school, in violation of Rule 21F-2.17(b), Florida Administrative Code and Section 477.08(1), Florida Statutes; thereby violating Section 477.15(7) and (9), Florida Statutes.

   
   

2. Whether or not during the period of April, 1975 until September, 1976, Florida Beauty College, Inc. and Henry Dixon, the President, Manager and Licensed Instructor, allowed an unlicensed person, namely one Cora Bracy, to teach at the school, in violation of Rule 21F-2.17(b), Florida Administrative Code and Section 477.08(1), Florida Statutes; thereby violating Section 477.15(7) and (9), Florida Statutes.

   
   

3. Whether or not during the period of April, 1975 until September, 1976, Florida Beauty College, Inc. and Henry Dixon, the President, Manager and Licensed Instructor, allowed an unlicensed person, namely one Renee Boren Hayes, to teach at the school, in violation of Rule 21F-2.17(b), Florida Administrative

   Code and Section 477.08(1), Florida Statutes; thereby violating Section 477.15(7) and (9), Florida Statutes.

   
   

4. Whether or not during the period of April, 1975 until September, 1976, Florida Beauty College, Inc. and Henry Dixon, the President, Manager and Licensed Instructor, allowed an unlicensed person, namely one, Annette Calloway, to teach at the school, in violation of Rule 21F-2.17(b), Florida Administrative Code and Section 477.08(1), Florida Statutes; thereby violating Section 477.15(7) and (9), Florida Statutes.

   
   

5. Whether or not on or about December 10, 1976, Florida Beauty College, Inc. and Henry Dixon as President, Manager and Licensed Instructor, allowed the school to operate on members of the public without any licensed instructor being present in violation of Rules 21F-2.24 and 21F-2.25, Florida Administrative Code; thereby violating Section 477.15(9), Florida Statutes, and Section 477.27(12), Florida Statutes.

   
   

6. Whether or not on or about September 4, 1976, Henry Dixon, was drinking and became publicly intoxicated during the day time hours at his school and in doing such violated Section 477.15(6) and (7), Florida Statutes.

   
   

7. Whether or not between September, 1976 and January, 1977, the students of the Respondent were not receiving experience and a receptionist in violation of Rule 21F-2.16, Florida Administrative Code; the school did not have an adequate library in violation of Rule 21F-2.20, Florida Administrative Code; the school did not have the required number of thermal units, heat caps or steamers, in violation of Rule 21F-2.07, Florida Administrative Code; the school did not have separate junior and senior departments in violation of Rules 21F-2.23, 21F-

   2.24 and 21F-2.25, Florida Administrative Code; the school did not have the required minimum equipment of six shampoo bowls and six manicure tables in violation of Rule 21F-2.08, Florida Administrative Code; and the Respondents had not posted their inspection rating sheets as required by Rule 21F-2.07, Florida Administrative Code; thereby violating Sections 477.08, 477.15(7), (8) and (9) and Section 477.27(8) and (12), Florida Statutes.

   
   

8. Whether or not during the period of April, 1975 until September, 1976, Florida Beauty College, Inc. and Henry Dixon, the President, Manager and Licensed Instructor, allowed an unlicensed person, namely one, A. J. Quentaro, to teach at the school, in violation of Rule 21F-2.17(b), Florida Administrative Code and Section 477.08(1), Florida Statutes; thereby violating Section 477.15(7) and (9), Florida Statutes.

   
   

9. Whether or not between September, 1976 and February, 1977, Florida Beauty College, Inc. and Henry Dixon as President, Manager and Licensed Instructor, failed to issue and post student permits and identification badges in spite of repeated warnings from the Board's inspector, and for that reason were in violation of Rule 21F-2.07(4), Rule 21F-2.25, and Rule 21F-2.28, Florida Administrative Code; thereby violating Sections 477.08, 477.15(7)(8) and (9), and 477.27(8) and (12), Florida Statutes.

   
   

10. Whether or not between the period September, 1976 and February, 1977, the Respondents allowed students without required hours to work unfettered on the public; misrepresented the amount of hours certain students had to members of the public, and posted on a bulletin board for the public to discern the names of certain students whom the Respondents favored; in violation of Rules 21F-2.23, 21F-2.24, 21F-2.25, 21F-2.28 and 21F-2.17(b), Florida Administrative

    Code, thereby violating Sections 477.08, 477.15(7), (8) and (9), 477.27(8) and

    1. , Florida Statutes.

       
       

       FINDINGS OF FACT

       
       

11. At all times pertinent to the administrative complaint, up to and including the date of the hearing in this cause, the Florida Beauty College, Inc. was the holder of license no. 043, held with the Florida State Board of Cosmetology, and Henry Dixon was licensed as an instructor by the Florida State Board of Cosmetology under license no. 22909. The licenses were held for the purpose of doing business in Jacksonville, Florida. From April, 1975 through February, 1977, the relevant periods in the administrative complaint, the Florida Beauty College, Inc. and Henry Dixon, as the President, Manager and a Licensed Instructor, operated a cosmetology school in Jacksonville, Florida.

    
    

12. In an effort to prove the allegations set forth in the administrative complaint the Petitioner offered the testimony of Linda Geiger and Brenda Gene Schwerm, former students of the Florida Beauty College, Inc. Part of their testimony pertained to counts 1 - 4 and count 8. These five counts alleged that Dennis R. Nevels, Cora Bracy, Renee Boren Hayes, Annette Calloway and A. J. Quentaro had been allowed by the Respondents to teach in the cosmetology school at a time when the aforementioned persons were unlicensed as instructors.

    
    

13. Ms. Geiger and Ms. Schwerm, collectively, gave testimony to the effect that on one or more occasions Novels, Bracy, Hayes, Calloway and Quentaro taught other students at the Florida Beauty College, with the permission of Henry Dixon, and at times his insistence, that the students attend sessions being taught by the five named individuals. This testimony of Ms. Geiger and Ms. Schwerm was opposed through the testimony of James Burdett and Cynthia Kinser, former students of the Florida Beauty College; and through the testimony of Michell Johnson, the daughter of Henry Dixon and a licensed instructor in the Florida Beauty College and Henry Dixon, one of the Respondents.

    
    

14. The testimony of Mr. Burdett, Ms. Kinser, Ms. Johnson and Mr. Dixon was to the effect that the students Nevels, Bracy, Hayes, Calloway and Quentaro never taught other students in the beauty college under the permission of Dixon or other members of the staff. Their recollection was that some of the named students; specifically Novels, Calloway and Quentaro demonstrated certain techniques used in the cutting of hair or the treatment of hair and other cosmetology needs.

    
    

15. In analyzing the competing points of view of the witnesses offered in the hearing, it should be noted that there is a clear and apparent interest on the part of Mr. Dixon the Respondent, and his daughter, Ms. Johnson, one of the instructors within the school. It should also be noted that Ms. Geiger had been suspended from the school on November 19, 1976 and had been dismayed by the dismissal of one Ken Branson, a licensed instructor at the school, whom she felt was a more qualified instructor than either Mr. Dixon or his daughter Ms. Johnson. Ms. Geiger had also been ostracized for filing a complaint against the school which lead to the present administrative complaint and was upset because she felt the necessity to apologize to the other students in the school at the time the complaint was made known. Ms. Schwerm was concerned about the dismissal of Mr. Branson and expressed this concern in terms of feeling that the quality of instruction had been lowered once Branson left the college. The background of the witnesses Burdett and Kinser lead to the conclusion that they had no apparent interest in the hearing. In view of all the facts on the question of whether or not the named individuals were teaching in the school, it

    is concluded that those individuals did not teach and at most only demonstrated certain techniques for the benefit of other students. Therefore, notwithstanding the fact that these named individuals, to wit: Nevels, Bracy, Hayes, Calloway and Quentaro, were not licensed instructors, there has been no violation of Rule 21F-2.17(b), Florida Administrative Code, and Section 477.08(1), Florida Statutes, to cause a violation of Sections 477.15(7) and (9), Florida Statutes, because neither the Florida Beauty College, Inc. or Henry Dixon, allowed any unlicensed person to teach at the school as alleged in counts 1 - 4 and 8.

    
    

16. In count 5, the administrative complaint accuses Florida Beauty College, Inc. and Henry Dixon of allowing the operation of the school in terms of the service to the public without any licensed instructor being present in violation of Rules 21F-2.24 and 21F-2.25, Florida Administrative Code, which allegedly constitutes a violation of Section 477.15(9), Florida Statutes and Section 477.27(12), Florida Statutes. The testimony in the hearing revealed that on a routine basis between 9:30 and 10:30 a.m., students with the requisite number of hours were allowed to service customers without any licensed instructor being directly in the room. Mr. Dixon was in the adjacent office which has an observation window, that would allow him to see the work being done by the students and to give necessary instructions.

    
    

17. The language of Rules 21F-2.24 and 21F-2.25, Florida Administrative Code reads as follows:

    
    

    21F-2.24 Health Certificates.

    A permanent health certificate showing results of a blood test and chest x-ray or equivalent respiratory communicable disease test must be submitted with each application for examination by any applicant.

    
    

    21F-2.25 Permit Cards (Student Identification)

    1. Identification cards will be issued for each student in school showing student's name, date of enrollment, permit number and classification. These cards are to be inserted in badges furnished by the school and worn on the student uniform at all times while attending school.

    2. If evening classes are held, permits for those attending each session should be posted separately and designated as "Day Class", "Evening Class" or "Part-time Class".

    
    

    An examination of the above cited provisions demonstrates that they do not pertain to the question of allowing unauthorized persons to operate on members of the public without a licensed instructor being in attendance. Therefore, those provisions do not apply to the facts.

    
    

18. Count 5 also charges a violation of Section 477.15(9), Florida Statutes, which imposes suspension or revocation for violations of any of the provisions of Section 477.23, Florida Statutes. A review of the provisions of Section 477.23, Florida Statutes, demonstrates that none of those provisions have application to an allegation of allowing unauthorized persons to operate on members of the public without licensed instructors being in attendance.

    Finally, count 5 alleges a violation of Section 477.27(12), Florida Statutes.

    This provision pertains to the penalties to be assessed for violations of any of the rules or regulations of the Petitioner. There have been no violations alleged or shown, consequently the penalties are not relevant.

    
    

19. Count 6 of the administrative complaint charges Henry Dixon with drinking and becoming publicly intoxicated during the daytime hours at his cosmetology school in violation of Section 477.15(6) and (7), Florida Statutes, those provisions state the following:

    
    

    477.15 Suspension or revocation of certificate; grounds.--

    The board may either refuse to issue, or renew, or may suspend or revoke any certificate of registration for any of the following causes:

    * * *

    1. Habitual drunkenness or habitual addiction to the use of morphine, cocaine or other habit- forming drugs;

    2. Immoral or unprofessional conduct;

    
    

20. The facts indicate that on September 4, 1976, while the business was still in operation and patrons were being attended, Henry Dixon came into the service part of the salon with a beer in his hand and was acting in a festive mood. The occasion of his actions was a party that was being held for the benefit of one of the students. Although there is some testimony that Dixon was getting intoxicated there is no showing that Mr. Dixon was in fact intoxicated. An analysis of this testimony leaves the impression that the Petitioner has failed to show any habitual drunkenness or addiction to morphine, cocaine or other habit-forming drugs, as alleged. Likewise, the conduct was not immoral. However, such conduct is unprofessional.

    
    

21. Count 7 of the administrative complaint has numerous provisions. The first of those provisions is a contention that the students in the college from September, 1976 to January, 1977 were not afforded an opportunity to receive experience as a receptionist in violation of Rule 21F-2.16, Florida Administrative Code. A complete review of the facts indicate that the students were given that opportunity and took advantage of such opportunity. Count 7 additionally accuses the school of not having an adequate library in violation of Rule 21F-2.220, Florida Administrative Code. A review of the facts indicates that there was sufficient literature available to the students to constitute a library within the meaning of provisions of the Florida Administrative Code.

    
    

22. One of the allegations set forth in count 7 pertains to the failure of the school to have the required number of thermal, heat caps or steamers, in violation of Rule 21F-2.07, Florida Administrative Code. There was no testimony offered to demonstrate a lack of those items of equipment; therefore there has been no violation shown of Rule 21F-2.07, Florida Administrative Code.

    
    

23. Count 7 contained a provision which claimed that there was no separate junior and senior departments in violation of Rules 21F-2.23, 21F-2.24 and 21F- 2.25, Florida Administrative Code. None of these provisions of the Florida Administrative Code pertain to the question of the requirement of separating junior and senior departments; nonetheless, the testimony reveals that the classes were divided into freshmen, junior and senior, with the freshmen being those students who had not obtained their necessary 200 hours which is a prerequisite to practicing on customers who are not members of the class or members of their immediate family.

24. Count 7 contains an additional allegation that there were insufficient numbers of shampoo bowls and manicure bowls in violation of Rule 21F-2.08, Florida Administrative Code. The testimony showed that there were eight shampoo bowls and six manicure tables and thereby were in compliance with the provisions of the Florida Administrative Code.

    
    

25. Finally, there was insufficient proof to establish the failure to post inspection rating sheets as allegedly required by Rule 21F-2.07, Florida Administrative Code. It should also be noted that Rule 21F-2.07, does not pertain to the requirement for posting of inspection rating sheets.

    
    

26. In summary, there have been no violations of Sections 477.08; 477.15(7), (8) and (9), and 477.27(8) and (12), Florida Statutes, as alleged in count 7.

    
    

27. Count 9 of the administrative complaint charged Florida Beauty College, Inc. and Henry Dixon with the failure to issue and post student permits and identification badges in spite of repeated warnings from the Board's inspector in violation of Rule 21F-2.07(4), Rule 21F-2.25 and Rule 21F-2.28, Florida Administrative Code. This was felt to constitute a violation of Sections 477.08, 477.15(7), (8) and (9) and 477.27(8) and (12), Florida Statutes. The facts in this cause demonstrate that in spite of an initial warning to the Respondents, a second inspection revealed that student permits were not posted on the second visit as required by Rule 21F-2.25, Florida Administrative Code. No other violation as alleged in count 9 is shown.

    
    

28. Count 10 of the administrative complaint charged that between September, 1976 and February, 1977 students were allowed unfettered on the public, and that the Respondents misrepresented the amount of hours certain students had to members of the public and in addition posted on the bulletin board for the public to discern, the names of certain students whom were favored by the Respondent; in violation of Rules 21F-2.23, 21F-2.24, 21F-2.25, 21F-2.28 and 21F-2.17(b), Florida Administrative Code, thereby violating Sections 477.08, 477.15(7), (8) and (9), 477.27(8) and (12), Florida Statutes. Certain testimony was offered by Ms. Geiger to the effect that students were allowed to work on the public who had less than 200 hours. In view of the opinion of the undersigned of the creditability of the witness Geiger, that testimony is rejected and no other showing was made to establish that students were allowed to administer to the needs of the public when those students were not duly qualified. There was no testimony to show that the names of students were posted on bulletin boards for the public to discern, thereby creating a favorable impression to the public about those certain students. Therefore there has been no showing of any violation of the Florida Administrative Code or Florida Statutes as set forth in count 10.

    
    

    CONCLUSIONS OF LAW

    
    

29. The Division of Administrative Hearings has jurisdiction in this cause.

    
    

30. A review of the allegations as set forth in counts 1 - 4 and count 8, in light of the testimony reveals that no violation of the Florida Administrative Code and Florida Statutes has been shown as heretofore alleged.

    
    

31. A review of the allegations as set forth in count 5 of the administrative complaint, in light of the testimony, reveals that no violation

    of the Florida Administrative Code and Florida Statutes has been shown as heretofore alleged.

    
    

32. A review of the allegations as set forth in count 6, in light of the testimony, reveals that Henry Dixon is guilty of unprofessional conduct as found in Section 477.15(7), Florida Statutes. No other violation has been shown.

    
    

33. A review of the allegations as set forth in count 7 of the administrative complaint, in light of the testimony, reveals that no violation of the Florida Administrative Code and Florida Statutes has been shown as heretofore alleged.

    
    

34. A review of the allegations as set forth in count 9 of the administrative complaint, in light of the testimony, reveals that Florida Beauty College, Inc. and Henry Dixon failed to post student permits as required by Rule 21F-2.25, Florida Administrative Code subsequent to being advised of the necessity to do so. No other violation of the Florida Administrative Code or Florida Statutes has been shown as alleged in count 9.

    
    

35. A review of the allegations as set forth in count 10, in light of the testimony, reveals that no violation of the Florida Administrative Code or Florida Statutes has been shown, as heretofore alleged.

RECOMMENDATION

For the violations as established against Florida Beauty College, Inc. license no. 043 and Henry Dixon, licensed instructor, license no. 22909, it is recommended that these Respondents be suspended for a period of two weeks. (This suspension recommendation would only pertain to the Florida Beauty College, Inc., license No. 043, if the Florida Beauty College, Inc. is still in operation at the time of the entry of the final order of the Petitioner).

DONE AND ENTERED this 10th day of May, 1978, in Tallahassee, Florida.

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

(904) 488-9675

COPIES FURNISHED:

Daniel J. Wiser, Esquire Post Office Box 1752 Tallahassee, Florida 32302

Michael Seelie, Esquire

Suite 1103, Blackstone Building East Bay and Market Streets Jacksonville, Florida 32202

Docket for Case No: 77-000764

Orders for Case No: 77-000764