STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF COSMETOLOGY, )

DEPARTMENT OF PROFESSIONAL ) REGULATION, STATE OF FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1600

) LUELLA AND PORTER'S SCHOOL OF ) BEAUTY and LUELLA A. BAILEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held in Fort Lauderdale, Florida on July 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: No appearance

ISSUE

Whether disciplinary action should be taken against Respondents for alleged violations of Sections 455.277 and 477.028, Florida Statutes (1979).

PRELIMINARY STATEMENT

Respondent Luella and Porter's School of Beauty is a cosmetology school in Pompano Beach, Florida which has been issued License No. CT 0000056. Respondent Luella A. Bailey is a cosmetology instructor licensed under License No. IC 0031324. An Administrative Complaint dated May 28, 1981 was filed by Petitioner Department of Professional Regulation against the Respondents alleging that Respondent Bailey made fraudulent representations to a student in violation of Sections 455.227 and 477.028, Florida Statutes (1979). Respondents requested a formal administrative hearing but failed to appear at said hearing although notice of the hearing was afforded as required by Section 120.57(2), Florida Statutes (1979).

At the hearing Petitioner called two (2) witnesses, Bonnie Cohen and Sharon Cohen, and offered two (2) exhibits which were entered as evidence.

Petitioner submitted proposed findings of fact, a memorandum of law and a proposed recommended order, which 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 Luella and Porter's School of Beauty currently holds License No. CT 0000056 and is located at 316 NE First Street, Pompano Beach, Florida. Respondent Luella A. Bailey is an owner of the Respondent beauty school and currently holds License No. IC 0031324 as a cosmetology instructor.

   
   

2. In March of 1980 Respondent Bailey discussed a two week course of study in Esthetology given by the Respondent beauty school with Bonnie Cohen and her mother, Sharon Cohen. Bonnie Cohen and her mother were led to believe that the course, which involved the study of the face, the use of massage and water vapor and the use of various creams and oils would enable Bonnie Cohen to obtain a paid position in cosmetology salons performing facials.

   
   

3. Respondent Bailey suggested at least two places where Bonnie Cohen might obtain employment as a person trained to perform facials: Christine Valmy Salon and Palm Aire Spa Salon. Respondent Bailey knew or should have known that in order to perform facials in a cosmetology salon an employee must be certified as a cosmetologist. Respondent Luella and Porter's School of Beauty has been in business for a long period of time and is recognized as a reputable school.

   
   

4. Bonnie Cohen paid a fee of $500.00 and took the two week course given at Respondent school which began on March 18, 1980 and ended on March 28, 1980. She learned to massage areas of the face and neck, apply creams and chemicals used to clean and soften the skin, and learned how to apply treatments for various minor skin problems. Miss Cohen was awarded a certificate worded:

   
   

   "Esthetics - Scientific Facial Treatments and Skin Care Seminar. This certifies that Bonnie Cohen has parti- cipated in the Christine Valmy Seminar

   for Esthetics - Scientific Facial Treat- ments and Skin Care. Date, March, 1980."

   
   

   The certificate was signed "Christine Valmy by Luella Bailey."

   
   

5. In October of 1980, Bonnie Cohen sought employment at two cosmetology salons, Christine Valmy Salon and Palm Aire Spa Salon, both of which were recommended to her by Respondent Luella Bailey. The owner of the Palm Aire Spa Salon discussed employment with Bonnie Cohen and would have employed her, but when Miss Cohen produced the herein described certificate instead of a cosmetology license the owner of the salon would not employ her to perform facials. A cosmetology license is required for employment.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction of this matter and the parties thereto pursuant to Section 120.57, Florida Statutes.

   
   

7. "Cosmetology" is defined in Section 477.013(6), 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.

   
   

   The skills encompassed in the course Bonnie Cohen took from the Respondent beauty school is the practice of cosmetology as defined in the foregoing statute.

   
   

8. Section 455.227, Florida Statutes (1979), Grounds for discipline; penalties; enforcement.-- provides inter alia that the Hoard may discipline and may fine a licensee if the Board finds that the licensee has made misleading, deceptive, untrue or fraudulent representations in the practice of his profession. Section 477.028(1), Florida Statutes (1979), Disciplinary proceedings.-- provides inter alia that the Board of Cosmetology may discipline a cosmetologist or cosmetology instructor. Subsection (2) provides that the Board may revoke or suspend the license of a school of cosmetology and discipline the owner upon proof that the holder of the license is guilty of fraud, deceit or misconduct in the operation of the school.

   
   

9. Respondent Luella Bailey as a cosmetology instructor has violated the foregoing statutes by misleading and deceptive statements to a prospective student of Respondent Luella and Porter's School of Beauty. Respondent Bailey, as an owner of said school, has violated the foregoing statute by inducing a student to enroll in the school by deceptive statements as to future employment possibilities, which is misconduct in the operation of the school.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that a final order be entered censuring Respondent Luella Bailey and imposing on her as a licensee an administrative fine not to exceed

$1,000.00

In addition the Hearing Officer recommends that the license of Respondent Luella and Porter's School of Beauty be suspended for a period of six (6) months.

DONE and ORDERED this 21st day of August, 1981, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 21st day of August, 1981.

COPIES FURNISHED:

Drucilla E. Bell, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Luella & Porter's School of Beauty

316 NE First Street

Pompano Beach, Florida 33060

Ms. Luella A. Bailey 3200 NW 90th Avenue

Coral Springs, Florida 33065

Nancy Kelley Wittenberg, Secretary Department. of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

BOARD OF COSMETOLOGY

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF COSMETOLOGY,

Petitioner,

CASE NO.: 81-1600

vs. LICENSE NOS. CT0000056

IC0031324

LUELLA & PORTER'S SCHOOL OF BEAUTY AND LUELLA A. BAILEY

Respondents.

/

FINAL ORDER

On August 21, 1981 the duly appointed hearing officer in the above-styled cause completed and submitted to the Board and all parties a recommended order, a copy of which is attached as Exhibit A. On August 18, 1981, counsel for Respondent submitted a Motion for Rehearing, a copy of which is attached as Exhibit B. On September 10, 1981, counsel for Petitioner filed a response to the Motion for Rehearing, a copy of which is attached as Exhibit C.

Pursuant to Section 120.57(1)(b)(8), F.S., the parties were allowed ten days in which to submit written exceptions to the recommended order. On August 31, 1981, counsel for Respondent submitted Exceptions to the Recommended Order. Counsel for Petitioner did not submit exceptions. Pursuant to Section 455.225.

F.S. the Recommended Order came before the Board of Cosmetology for final agency/ action on this matter at a public hearing on October 19, 1981 in Tallahassee, Florida. The Board having considered the findings or tact, conclusions of law, and recommended penalty as contained within the Recommended Order as submitted by the hearing officer, together with the Motion for and Response to the Motion for Rehearing, and being otherwise fully advised, it is therefore:

ORDERED that Respondent's Motion for Rehearing be denied; that the hearing officer's findings of fact be adopted in toto by the Board; that insofar as the exceptions submitted by Respondent are inconsistent with findings of fact as submitted by the hearing officer, they are hereby rejected by the Board; that the hearing officer's conclusions of law regarding jurisdiction, the statutory definition of cosmetology, and disciplinary proceedings under Chapters 455 and 477, F.S. are adopted by the Board; that the hearing officer's conclusions of law concerning the Respondent's violation of Section 477.028(1), F.S. are rejected by the Board. It is further ORDERED that the hearing officer's recommended penalty is rejected in toto by the Board, with the result that no penalty shall be imposed on Respondent.

DONE AND ORDERED this 24th day of November, 1981.

BOARD OF COSMETOLOGY

DELBERT L. BAKER

Chairman

cc: Mary Ann Stiles, Esquire Deschler, Reed & Critchfield

555 South Federal Highway Boca Raton, Florida 33432

Luella Porter's School of Beauty

316 Northeast First Street Pompano 8each, Florida 35060

Docket for Case No: 81-001600

Orders for Case No: 81-001600