STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF PROFESSIONAL REGULATION, ) BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-321

)

NOELLA C. PAPAGNO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on May 19, 1982, in Ft. Lauderdale, Florida. The hearing officially closed on June 4, 1982. 1/

APPEARANCES

For Petitioner: Drucilla E. Bell, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Noella C. Papagno, pro se

1312 Arthur Street

Hollywood, Florida 33019

ISSUE

Whether Respondent's cosmetology license should be suspended, revoked or whether Respondent should be disciplined for conduct, as a licensee, which will be set forth hereinafter in detail.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, the proposed memoranda and the entire record compiled herein, the following relevant facts are found:

1. Noella C. Papagno (herein sometimes referred to as Respondent) is a licensed cosmetologist under the laws of the State of Florida and has been issued License Number CL 0107656, which license is current through June, 1984. Respondent has been practicing cosmetology for approximately twenty-five (25) years and, prior to being licensed in Florida, was licensed to practice in Rhode Island. (Petitioner's Composite Exhibit No. 1.)

2. Richard Gloss has been employed in the Building and Zoning Department for the City of Dania, Florida, for the past two (2) years. On or about October 12, 1981, Gloss received a complaint that Respondent was operating a salon at one of the ticket booths located at the flea market, 1930 North Federal Highway in Dania Florida. Gloss made a routine inspection through the flea market and observed a sign in front of a ticket booth occupied by the Respondent where upon he approached Respondent and identified himself as an employee of the City of Dania in the Building and Zoning Department. After identifying himself, Gloss inquired of Respondent whether she was properly licensed to conduct a beauty salon. Prior thereto, Respondent had offered to cut his hair. Respondent admits to having offered to cut Gloss's hair and related that she had been cutting hair at that location for approximately two and one half (2 1/2) years and that she charged customers from $.50 to $4.00, depending on the length of their hair and the amount of time it took to cut it. She also explained that she had two (2) licenses -- her cosmetology license and a Broward County Council license -- in order to carry on this business. Respondent described in a very detailed manner her method of water hair cutting and she explained that she used no chemicals and did not attempt to perform any kind of chemical services. Additionally, Respondent testified that she suffers from various allergies and her physician has cautioned her to stay away from dust in beauty salons. (Respondent's Exhibits Nos. 4 and 7.)

   
   

3. In mitigation, Respondent offered the fact that she was providing a service which would not be otherwise available and that the equipment that she used is sanitized and that theme was no testimony offered by Petitioner of any ill effects by her operation at the subject facility. Finally, Respondent feels that the Board should grant her a specialty license, although she has not applied for a license based on her feelings that it would not be granted. [Testimony of Respondent and Edmund Gabler, a Broward County resident and customer of Respondent for approximately two (2) years.]

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57(1), Florida Statutes.

   
   

5. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

6. The authority of the Petitioner is derived from Chapter 477, Florida Statutes.

   
   

7. Respondent, a licensed cosmetologist, is subject to the guides of Chapter 477, Florida Statutes.

   
   

8. Subsection 477.013(5), Florida Statutes, defines cosmetology to include:

   
   

   The mechanical or chemical treatment of the head, face and scalp for aesthetic purposes, including but not limited to, hair shampooing, hair cutting, hair arranging, hair coloring, permanent waving, hair relaxing, or hair removing, for compensation. (Emphasis supplied.)

   Respondent's testimony and admissions herein reveal that her acts and conduct while situated at the subject ticket booth located at the flea market, 1930 North Federal Highway, Dania, Florida, amounts to the practice of cosmetology as defined in Subsection 477.013(5), Florida Statutes.

   
   

9. Chapter 477.025, Florida Statutes, provides in pertinent part that no cosmetology salon shall be permitted to operate without a license issued by (Petitioner). In this regard, Rule 21F-20.01, Florida Administrative Code, defines a cosmetology salon to be any establishment or place of business wherein the practice of cosmetology, as defined in Chapter 477.013(6), Florida Statutes (1978), is engaged. Accordingly, Respondent, by operating a cosmetology salon at the flea market without a duly issued license as provided in Chapter 477, amounts to a derivative violation of Chapter 477.028(1)(b), Florida Statutes, in that such acts amount to misconduct in the practice of cosmetology.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is hereby

RECOMMENDED:

That Respondent be placed on probation for a period of one (1) year, during which time she must comply with all provisions of Chapter 477, Florida Statutes, and rules promulgated thereunder, specifically including the proviso that she not practice cosmetology in an unlicensed location.

RECOMMENDED this 11th day of August, 1982, in Tallahassee, Florida.

JAMES E. BRADWELL, 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 11th day of August, 1982.

ENDNOTE

1/ Pursuant to leave, the parties were allowed through June 4, 1982, to submit proposed memoranda supportive of their respective positions. Said memoranda have been received and were considered by me in preparation of this Recommended Order. To the extent that the proposed findings and conclusions in said memoranda are not adopted in this Recommended Order, they were deemed irrelevant, immaterial or not otherwise supported by record evidence.

COPIES FURNISHED:

Drucilla E. Bell, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Ms. Noella C. Papagno 1312 Arthur Street

Hollywood, Florida 33019

Myrtle Aase, Executive Director Board of Cosmetology Department of Professional

Regulation

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: 82-000321

Orders for Case No: 82-000321