STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1938

)

RHONDA 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 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: Rhonda Welker, pro se

887 Semoran Boulevard

Apopka, Florida 32703 BACKGROUND INFORMATION

By Administrative Complaint dated February 14, 1983, Petitioner alleges that Respondent practiced cosmetology in the State of Florida with an expired license, 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 on which she disputed the allegation and requested a formal hearing.

At the hearing, Petitioner presented the testimony of Valerie Flowers, Kenneth Welker, and Respondent, and submitted Petitioner's Exhibits 1 and 4. Respondent testified in her own behalf.

FINDINGS OF FACT

1. Respondent, Rhonda Welker, is a licensed cosmetologist operating under License No. CL0116241. Her original license was issued on November 24, 1980, and expired on June 30, 1982.

2. On November 9, 1982, Respondent was employed as a cosmetologist, and acting as such, by Coiffures by Kenneth, a beauty salon owned and operated by Respondent's father and mother, located at 887 Semoran Boulevard, Apopka, Florida. At that time, her license had expired and was denied renewal by the Board because she had failed to take 16 additional hours of continuing professional education subsequent to issuance of her license, but instead had only taken eight. As a result, she did not meet the Board requirements for renewal of her license, which became inactive at the date of expiration.

   
   

3. When Valerie Flowers, an inspector for the Board of Cosmetology, performed her follow-up inspection of the salon where Respondent worked, on November 17, 1982, she observed Respondent styling a customer's hair. At this time, though Respondent had completed the required 16 hours of continuing professional education, her license had not yet been renewed.

   
   

4. Respondent Rhonda Welker's current license was issued on January 30, 1983, and expires on June 30, 1984. Respondent failed to secure the required 16 hours of continuing professional education on the honest but mistaken belief that she only needed eight hours' worth. She felt that since her licensure was initially issued for less than two full years, she would only need the eight hours of continuing education for one year, which she had.

   
   

5. Under the circumstances, Respondent, Rhonda Welker, was holding herself out as a cosmetologist when she did not have an active current Florida cosmetologist's license.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.

   
   

7. Petitioner alleges that Respondent, by holding herself out as a cosmetologist without possessing an active license, is guilty of violating Rule 21F-18.06(7), Florida Administrative Code, and thereby Section 477.029(1)(a), Florida Statutes (1981).

   
   

8. The rule cited above states simply and totally: "A cosmetologist may not work with an inactive license." Notwithstanding Respondent had submitted her renewal application, it had been turned down because of a lack of sufficient continuing education and, at the time of the inspection by Ms. Flowers, was working with an inactive license in violation of the rule.

   
   

9. The intent of the Legislature in its passage of the statute cited in the Administrative Complaint is clearly set out in Section 477.012, Florida Statutes (1981) wherein the second sentence states:

   
   

   However, restrictions shall be imposed only to the extent necessary to pro- tect the public from significant and discernible danger to health and not in a manner which will unreasonably affect the competitive market.

   
   

10. To be sure, Respondent was working as a cosmetologist with an inactive license in violation of the rule cited. However, her license had not been revoked, suspended, or in any other way 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 she failed through honest mistake to take sufficient additional training to meet the statutory requirement for renewal, a situation which she remedied within seven days of the first inspection.

    
    

11. This infraction is of a minor nature, and in light of the stated purpose of the legislation, as outlined above, the punishment should be minimal.

RECOMMENDATION

In light of the foregoing, it is, therefore, RECOMMENDED:

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

$50.

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

Ms. Rhonda 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: 83-001938

Orders for Case No: 83-001938