STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-223

)

PATRICIA STRANGE, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Panama City, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton II, on July 23, 1982. The parties were represented by counsel:

APPEARANCES

For Petitioner: Drucilla E. Bell, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Russell R. Stewart, Esquire

Post Office Box 2542

Panama City, Florida 32401

By administrative complaint dated November 23, 1981, petitioner alleged that respondent, a licensed cosmetologist, "on or about August 20, 1981 . . . operated a cosmetology salon, St. Lynn's Gallery of Hair Design at 2347 St.

Andrews Blvd., Panama City, Florida . . . [even though she] did not hold a current active salon license for St. Lynn's Gallery of Hair Design during August 1981" all in violation of "Section 477.029(1)(b), Florida Statutes . . . which, in turn, is a violation of Section 477.028(1)(b), Florida Statutes, in that Respondent is guilty of misconduct in the practice of cosmetology."

FINDINGS OF FACT

1. Patricia Strange began as a cosmetologist in North Carolina in 1966. Since October of 1977 she has practiced cosmetology in Panama City, Florida. The administrative complaint filed in the present case is the first complaint ever made by any public authority against her as a cosmetologist.

   
   

2. Ms. Strange holds cosmetology license No. CL0059441. Petitioner's Exhibit No. 1. On November 13, 1970, the State Board of Cosmetology issued a "Certificate of Registration To Operate A Cosmetology Salon," No. 14877, for Pat's Petite Beauty Salon, 1848 Beck Avenue, Panama City, Florida. Under this license, respondent Strange operated a beauty salon for ten or eleven years.

3. In early 1981, the building in which respondent operated her salon was sold, and she was asked to move the salon. She was given one month's notice that the salon lease, which expired April 30, 1981, would not be renewed.

   During the busy month that ensued, she effected a move to a new building at 2347 St. Andrews Boulevard in Panama City, where she opened for business under the name St. Lynn Gallery of Hair Design on the first Wednesday in May of 1981.

   
   

4. She inquired about her city occupational license and was told that she need not worry about getting another until her current occupational license expired. Respondent was unaware of any requirement to obtain a new salon license from petitioner, until August 20, 1981.

   
   

5. Charles I. Deckard, an investigator in petitioner's employ, called on respondent on August 20, 1981. When she showed him the salon license, he told her she needed to secure another license for the new location and issued a citation.

   
   

6. The very next day respondent closed her shop, telephoned petitioner's Tallahassee office to inquire what documents she would need to secure a new salon license, gathered up all such documents, and made the trip to Tallahassee. She took with her a $40 cashier's check in petitioner's favor, as payment for a new salon license, dated August 21, 1981. Respondent's Exhibit No. 2. Petitioner then issued a new cosmetology salon license to respondent for St. Lynn Gallery of Hair Design.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Board of Cosmetology has "the power to revoke or suspend the license of a cosmetologist . . . or to reprimand, censure, deny subsequent licensure of, or otherwise discipline a cosmetologist . . . [u]pon proof that the . . . license[e] is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice . . . of cosmetology." Section 477.028(1), Florida Statutes (1981). In the present case, petitioner has alleged that respondent was guilty of misconduct by operating an unlicensed cosmetology salon in violation of Section 477.029(1)(b), Florida Statutes (1981).

   
   

8. In a matter as grave as license revocation proceedings, the duty allegedly breached by the licensee must appear clearly from applicable statutes or rules or have a "substantial basis," Bowling v. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981), in the evidence. Disciplinary licensing proceedings like the present case are potentially license revocation proceedings, since the penalty for the infraction alleged lies within the discretion of the disciplining authority, if allegations of misconduct are established at the hearing. Florida Real Estate Commission v. Webb, 367 So.2d

   201 (Fla. 1979). License revocation proceedings have, indeed, been said to be "'penal' in nature." State ex rel. Vining v. Florida Real Estate Commission,

   281 So.2d 487, 491 (Fla. 1973); Kozerowitz v. Florida Real Estate Commission,

   289 So.2d 391 (Fla. 1974); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979)(reh. den. 1980)

   
   

9. At the formal hearing, petitioner had the burden to show by clear and convincing evidence that respondent committed the acts alleged in the administrative complaint. Walker v. State, 322 So.2d 612 (Fla. 3d DCA 1974); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966).

10. The evidence established and respondent admitted that she operated a cosmetology salon at a different location and under a different name than the location and the salon name specified in her license. Where not only the location but also the name of a cosmetology salon are changed, a new license is required. The facts do not reflect a simple change in location, as contemplated by Section 477.025(7), Florida Statutes (1981). In short, petitioner proved a violation of Section 477.029(1)(b), Florida Statutes (1981). Even though inadvertent, cf. Division of Pari-Mutuel Wagering, Department of Business Regulation v. Caple, 362 So.2d 1350 (Fla. 1978), respondent's conduct was a violation of the cosmetology practice act and amounts to misconduct within the meaning of Section 477.028(1)(b), Florida Statutes (1981).

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That the Board of Cosmetology reprimand respondent.

DONE AND ENTERED this 20th day of August, 1982, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 20th day of August, 1982.

COPIES FURNISHED:

Drucilla E. Bell, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Russell R. Stewart, Esquire Post Office Box 2542

Panama City, Florida 32401

Myrtle Aase, Executive Director Board of Cosmetology

130 North Monroe Street Tallahassee, Florida 32301

Samuel R. Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-000223

Orders for Case No: 82-000223