STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1937

)

KENNETH WELKER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case before Arnold H. Pollock, Hearing Officer with the Division of Administrative Hearings, in Orlando, Florida, on September 19, 1983. The issue for consideration was whether the Respondent's cosmetology license issued by the State of Florida should be disciplined because of misconduct alleged in the Administrative Complaint.

APPEARANCES

For Petitioner: Theodore R. Gay, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Kenneth Welker, pro se

887 Semoran Boulevard

Apopka, Florida 32703 BACKGROUND INFORMATION

By Administrative Complaint dated February 14, 1983, Petitioner alleges that Respondent practiced cosmetology with an expired license, employed another individual to practice cosmetology with an expired license, and operated a beauty salon with an expired license, all in violation of Chapter 477, Florida Statutes (1981), and Chapter 21F, Florida Administrative Code. On March 11, 1983, Respondent submitted an Election of Rights form in which he disputed the allegations and requested a formal hearing.

At the hearing, Petitioner presented the testimony of Valerie Flowers, Kenneth Welker, and Rhonda Welker, and submitted Petitioner's Exhibits 1 through

1. Respondent testified in his own behalf and presented the testimony of Mary Lou Welker.

   FINDINGS OF FACT

   
   

   1. Respondent, Kenneth Welker, operates a beauty salon, Coiffures by Kenneth, at 887 Semoran Boulevard, Apopka, Florida. He is licensed as a cosmetologist by the State of Florida under License No. CL0116059, and the salon holds License No. CE0033945.

      
      

   2. Respondent was initially licensed by the State of Florida on November 19, 1980. That license expired on June 30, 1982. The initial license for the salon was issued on January 7, 1981.

      
      

   3. On November 9, 1982, Valerie Flowers, an inspector for the Board of Cosmetology, acting on information received from the Board that Respondent's licenses had not been renewed, went to Respondent's salon, where she spoke with Respondent's wife, Mary Lou Welker. At the time, there were no customers in the salon, but Respondent, his daughter Rhonda, and Mrs. Welker were there.

      
      

   4. Ms. Flowers identified herself to Mrs. Welker, told her why she was there, and asked to see the licenses for the salon and all cosmetologists working there. When she examined them, she saw that three licenses, for the salon, for Kenneth Welker, and for Rhonda Welker, had expired on June 30, 1982. The salon was operating as a beauty salon on November 9, 1982, and had been since January 14, 1981. The expired licenses were posted in the shop.

      
      

   5. Mrs. Welker told Ms. Flowers that she had submitted the application for renewal of the salon license two days before the deadline, but the renewal application was not received in the office of the Board of Cosmetology nor was a new license issued as of the time of either inspection.

      
      

   6. The applications for renewal of the two cosmetologist's licenses for Kenneth Welker and Rhonda Welker had been submitted prior to the deadline, but, because both individuals only had eight hours of continuing professional education instead of the required 16 hours, the renewal applications were returned disapproved. Both Kenneth and Rhonda Welker completed the additional eight hours of required education between November 9, 1982, and the date of Ms. Flowers' follow-up visit on November 17, 1982.

      
      

   7. On the day of the follow-up visit, Ms. Flowers noticed several customers in the salon being worked on by both Kenneth and Rhonda Welker.

      
      

   8. Kenneth Welker's cosmetologist's license was reissued on December 9, 1982, and expires on June 30, 1984. Rhonda Welker's current license was issued on January 30, 1983, and expires on June 30, 1984.

      
      

   9. Respondent, Kenneth Welker, failed to secure the required 16 hours of continuing professional education on the honest but mistaken belief that he only needed eight hours' worth. He felt that since his license was initially issued for less than two full years, he would only need the eight hours of continuing education for one year, which he had.

      
      

   10. Prior to submitting the application for renewal of the salon license, Mrs. Welker called the Board of Cosmetology and was told that she need not file a new, complete application to renew an expired license, but misconstrued this as meaning the shop could continue operating with the expired license until the new one was issued. The Board's advice permitted renewal of an expired license by the filing of a renewal application, but, during the interim, the salon could not lawfully operate.

   11. Under the above circumstances, both the salon and Respondent Welker were operating without a valid license in effect. So was Rhonda Welker.

       
       

       CONCLUSIONS OF LAW

       
       

   12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

       
       

   13. In Count I, Petitioner alleges that Respondent, by practicing cosmetology with an inactive license, is guilty of a violation of Rule 21F- 18.06(7), Florida Administrative Code, by working with an inactive license and is, thereby, also guilty of a violation of Section 477.029(1)(a), Florida Statutes (1981).

       
       

   14. The rule cited above states simply and totally: "A cosmetologist may not work with an inactive license." Not withstanding that Respondent had submitted his renewal application, it had been turned down for lack of sufficient continuing education and, at the time of the inspections by Ms. Flowers, he was working with an inactive license in violation of the rule.

       
       

   15. The statutory provision cited, supra, states:

       
       

       1. It is unlawful for any person to:

          1. Hold himself out as a cosmetologist or cosmetology instructor unless duly licensed as provided in this chapter . . .

             
             

             Respondent was, in fact, holding himself out as a cosmetologist and was working as such though his license was, at the time, inactive. It had not been suspended, revoked, placed on probation, or otherwise disciplined, but was merely rendered inactive for failure to file an approved renewal application and pay the required fee. There is no indication that Respondent was unqualified or disqualified to practice cosmetology because of misconduct, fraud, incompetence, or any other circumstance of a like nature. What is shown is that he mistakenly failed to take sufficient additional training to meet the statutory requirement for renewal, a situation which he remedied within seven days of the first inspection. Therefore, he was not unlicensed as envisioned by the Legislature. His license, which remained undisciplined at the time, was merely inactive by operation of law -- a condition easily remedied by (1) the gaining of sufficient continuing education credits, and (2) the payment of a $25 fee as called for by Rule 21F-24.12, Florida Administrative Code.

             
             

   16. The intent of the Legislature in its passage of this statute is clearly defined in Section 477.012, Florida Statutes (1981), wherein the second sentence states:

       
       

       However, restrictions shall be imposed only to the extent necessary to protect the public from significant and discern- ible danger to health and not in a manner which will unreasonably affect the com- petitive market.

       
       

       To be sure, Respondent's license to practice cosmetology had become inactive, and his continuing to work as a cosmetologist, knowing that his license was

       inactive, is improper and constitutes misconduct as provided for in Section 477.028(1)(b), Florida Statutes (1981). However, it is of a minor nature, and in light of the stated purpose of the legislation as outlined above, the punishment should be minimal.

       
       

   17. In Count II, Respondent is alleged to have violated Section 477.029(1)(b), Florida Statutes (1981), by operating a cosmetology salon without a valid license. Here, the evidence indicates that Respondent, through his agent, knew of the requirement to renew the license and, in fact, submitted the renewal license application. However, because it was not acted upon in a timely fashion, if received, no renewal was forthcoming for several months. The fact that Respondent continued to operate the salon with the expired license, even having mistakenly understood verbal instructions from the Board to mean that a new, complete application was not required, constitutes a violation of Rule 21F- 20.05, Florida Administrative Code, and is misconduct as envisioned by the statute.

       
       

   18. In Count III, Respondent is alleged to have permitted an employed person to practice cosmetology without being licensed in violation of Section 477.028(2)(b), Florida Statutes (1981), which permits discipline for misconduct in the operation of a salon.

       
       

   19. Here, the situation with the license status of this employee is identical to that of Respondent. The employee's license, previously properly issued and never disciplined, had become inactive because of failure to renew. It cannot be reasonably said, in light of the relationship between the parties, that Respondent did not know of Rhonda's licensure situation. Just as it was minor misconduct for him to practice while his license was inactive, it was, similarly, minor misconduct for him to employ Rhonda as a cosmetologist when her license was inactive. Therefore, there is, again here, a violation of a most trivial nature. Taken together, this does not constitute grievous misconduct for which revocation, suspension, or even a heavy fine would be appropriate.

RECOMMENDATION

Based on the foregoing, it is, therefore, RECOMMENDED:

That Respondent be ordered to pay an administrative fine in the amount of

$200.

RECOMMENDED this 30th day of September, 1983, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 30th day of September, 1983.

COPIES FURNISHED:

Theodore R. Gay, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Kenneth Welker 887 Semoran Boulevard

Apopka, Florida 32703

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Ms. Myrtle Aase Executive Director Board of Cosmetology

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-001937

Orders for Case No: 83-001937