STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 81-300

)

HAIR AND COMPANY and ETTIE )

STUDNIK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held in Miami, Florida on April 22, 1981 before the undersigned Hearing Officer of the Division of Administrative Hearings, Department of Administration.

APPEARANCES

For Petitioner: Drucilla E. Bell, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Michael H. Weisser, Esquire

Skylake State Bank Building 1550 NE Miami Gardens Drive

North Miami Beach, Florida 3317 ISSUE

Whether disciplinary action should he taken against Respondents for alleged violations of Chapter 477, Florida Statutes (1979)

PRELIMINARY STATEMENT

Respondent Hair and Company is a cosmetology salon licensed under License No. CE 0024217. Ettie Studnik is the wife of the owner of said salon, a bookkeeper for the salon, and the manager of the salon in the absence of her husband. An Administrative Complaint dated September 30, 1980 was filed by Petitioner Department of Professional Regulation against Respondents alleging that unlicensed persons were permitted to practice cosmetology in the Respondent salon contrary to Chapter 477, Florida Statutes (1970). Respondent Ettie Studnik requested a formal administrative hearing. Petitioner called three (3) witnesses and offered one exhibit which was entered as evidence. Respondent called one witness.

Petitioner submitted proposed findings of fact, memoranda of law and a proposed recommended order. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.

FINDINGS OF FACT

1. Respondent Hair and Company currently holds License No. CE 0024217 and is a business at 1930 Hallandale Boulevard, Hallandale, Florida Respondent Ettie Studnik is the wife of the owner of Hair and Company and the bookkeeper and manager of the salon.

   
   

2. Three (3) employees of the Respondent salon, Elena Sirak, Jethsabel Morales and Arelis Penton, were not licensed cosmetologists during the period of time pertinent to this hearing between November, 1979 and February 20, 1980.

   
   

3. On November 27, 1979 an investigator employed by Petitioner Department, Providence J. Padrick, issued a notice of violation to Respondent Studnik for permitting an unlicensed person, Elena Sirak, to shampoo the heed of a paying customer. Sirak was also given a notice of violation. (Transcript, pages 10 through 12). Thereafter, upon a second inspection of the salon on February 20, 1980, Padrick found the same employee again giving a paying customer a shampoo. Two (2) other unlicensed persons employed by Respondent salon were also performing shampoos for paying customers. Padrick issued notices of violation to Morales and Penton, but Sirak left the salon before she could issue a second notice of violation to her. A second notice of violation was issued to Respondent Ettie Studnik as owner of the salon.

   
   

4. The three (3) unlicensed employees of the Respondent salon were students at local beauty schools and were employed by Respondent Studnik for cleaning the salon. They were permitted to shampoo customers at times when there were numerous customers waiting in the salon to he served. (Transcript, pages 11, 12. 27, 29. 32 and 33)

   
   

5. At the time of the first inspection in November, 1979 Padrick discussed the violation with Respondent Studnik, who represented herself as the owner of Hair and Company, and told her that unlicensed persons were not allowed to shampoo the paying customers. During the hearing the owner of Hair and Company, Neal Studnik, stated that Respondent Ettie Studnik is his wife and operates the salon in his absence. Respondent Studnik acted in behalf of the owner, under his supervision and with his consent at the time pertinent to the hearing.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction of this proceeding and the parties thereto pursuant to Section 120.57, Florida Statutes (1979), and Subsection 477.028 (3) , Florida Statutes (1979)

   
   

7. "Cosmetology" is defined in Subsection 477.013(0), Florida Statutes (1979), as:

   
   

   the mechanical or chemical treatment of the head, face and scalp for aesthetic rather than medical purposes, including but not limited to, hair shampooing, hair cutting, hair arranging,

   hair coloring, permanent waving, hair relaxing or hair removing, for compensation.

   
   

8. The hereinbefore named unlicensed employees of the Respondent salon were shampooing the hair of paying customers and therefore were practicing cosmetology, as defined in the foregoing statute.

   
   

9. Section 477.028, Florida Statutes (1979), Disciplinary Proceedings.-- provides in pertinent part:

   
   

   1. The board shall have the power to revoke or suspend the license of a cosmetology

      salon .. . to deny subsequent licensure of such salon or school, or to reprimand, censure, or otherwise discipline the owner of such salon or school in either of the following cases:

      1. Upon proof that the holder of a license is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the operation of the salon or school so licensed.

         
         

         Permitting unlicensed persons to shampoo hair for compensation is misconduct in the operation of a salon contrary to the foregoing statute. The Board of Cosmetology has the power to revoke or suspend the license of the Respondent salon and to discipline the owner.

         
         

10. Section 477.029, Florida Statutes (1979), provides in pertinent part:

    
    

    1. It is unlawful for any person to:

       1. Permit an employed person to practice or teach cosmetology unless duly licensed as provided in this chapter.

          
          

    2. Any person violating the provisions of this section shall he liable for a civil penalty, not to exceed $500, as determined by the board.

       
       

11. The owner of the Respondent salon can be fined by the Board of Cosmetology in an amount not to exceed 500 for permitting unlicensed persons on at least two (2) different occasions to shampoo hair in the salon, Hair and Company.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that a final order be entered censuring the owner of the Respondent Hair and Company and assessing a civil penalty not to exceed $500.00.

DONE and ORDERED this 24th day of June, 1981, in Tallahassee, Leon County, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1981.

COPIES FURNISHED:

Drucilla E Bell, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Michael H. Weisser, Esquire Skylake State Bank Building 1550 NE Miami Gardens Drive

North Miami Beach, Florida 33179

Nancy Kelley Wittenberg, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-000300

Orders for Case No: 81-000300