STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 78-446

)

GEORGE ABRAIRA d/b/a )

HOUSE OF FASHIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Coral Gables, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on June 19, 1978.

APPEARANCES

For Petitioner: Daniel J. Wiser, Esquire

Post Office Box 1752 Tallahassee, Florida 12302

For Respondent: George Abraira, in propria persona 6135 Pierce Street

Hollywood, Florida 33024

By administrative complaint dated March 10, 1978, petitioner alleged that respondent "did allow the practice of cosmetology in [his] salon by one William

1. Reed, Jr., not licensed to practice cosmetology" and "did allow the practice of cosmetology to be performed in [his] salon without a master cosmetologist directly supervising and managing" all on December 2, 1977, in violation of provisions of Chapter 477, Florida Statutes (1977)

   
   

   FINDINGS OF FACT

   
   

   1. Shortly after ten on the morning of December 2, 1977, Jacob Rubin, an inspector in petitioner's employ, entered respondent's shop. There he found respondent, a registered cosmetologist who had arrived a minute or two earlier, and William E. Reed, who was washing his mothers hair. Respondent employs Mr. Reed as a wig stylist, not as a cosmetologist. Mr. Reed does not have a certificate of registration with petitioner.

      
      

   2. On December 2, 1977, Martha Abraira, master cosmetologist and wife of respondent, awoke with a headache. She had no appointments at respondent's shop until half past eleven and knew that her husband also had no appointments before then. He went ahead to the shop by himself. She arrived shortly after eleven in the morning. The shop hours are from ten in the morning until six in the evening.

      CONCLUSIONS OF LAW

      
      

   3. Section 477.15, Florida Statutes (1977), sets forth grounds for suspension or revocation of certificates of registration, including the "commission of any of the offenses described in Section 477.27." Section 477.15(8), Florida Statutes (1977). Section 477.27(2), Florida Statutes (1977), describes as an offense "[p]ermitting any person in one's employ . . . to practice . . . as a cosmetologist, unless that person has a certificate of registration." In addition, Section 477.27 Florida Statutes (1977), incorporates by reference the "provisions of Section 477.02" among which are:

      
      

      It is unlawful for any person .

      to hire or employ any person to engage

      in the practice of cosmetology as hereinafter defined, unless such person holds a valid, unexpired, and unrovoked certificate

      of registration as a registered master cosmetologist, registered cosmetologist, registered manicurist

      and pedicurist, or specialist or a permit to work . . . Section 477.02(7), Florida Statutes (1977).

      
      

      The evidence adduced in the present case failed to establish that Mr. Reed was practicing as a cosmetologist. Shampooing constitutes the practice of cosmetology only "when done for payment, and not solely for the possible sale of merchandise, or without payment, for the public generally." Section 477.03(1), Florida Statutes (1977). It cannot be inferred from the fact that Mr. Reed washed his mother's hair either that he expected payment or that his services were available to the public generally.

      
      

   4. Section 477.02(4), Florida Statutes (1977), provides that "[e]ach cosmetology salon shall be under the direct supervision of a registered master cosmetologist who shall be present in such salon at all reasonable times." In the present case, the evidence showed that the registered master cosmetologist arrived at work less than an hour and a half late on a day on which she was not well and reasonably believed there would be no practice of cosmetology in her absence. This does not constitute grounds for disciplinary action.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner dismiss the administrative complaint against respondent. DONE and ENTERED this 18th day of July, 1978, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

George Abraira d/b/a House of Fashions 6204 Johnson Street

Hollywood, Florida 33024

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

George Abraira, Jr.

6135 Pierce Street

Hollywood, Florida 33024

Docket for Case No: 78-000446

Orders for Case No: 78-000446