STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2053

)

ADELINA PORTUONDO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings, by its duly designated Hearing Officer, Donald R. Alexander, on October 25, 1983, in Miami, Florida.

APPEARANCES

For Petitioner: Theodore R. Gay, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: No appearance.

BACKGROUND

By an administrative complaint filed on June 11, 1983, Petitioner, Department of Professional Regulation, Florida State Board of Cosmetology, has charged that Respondent, Adelina Portuondo, a licensed cosmetologist, violated various provisions of Chapter 477, Florida Statutes. In brief, it is alleged that Portuondo (1) operated a cosmetology salon in Miami Beach, Florida, without a license; and (2) permitted an employed person to practice cosmetology who was not duly licensed.

Portuondo disputed the allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. The matter was referred by Petitioner to the Division of Administrative Hearings on June 30, 1983, with a request that a Hearing Officer be assigned to conduct a hearing. By notice of hearing dated August 1, 1983, the final hearing was scheduled on October 25, 1983, in Miami, Florida.

At the final hearing, Petitioner presented the testimony of Steven Granowitz, a Department investigator; and Ronald Myers, Department investigation supervisor, and Petitioner's Exhibits 1 through 7; all were received in evidence.

There is no transcript of hearing. Proposed findings of fact and conclusions of law were filed by Petitioner on October 31, 1983, and have been

considered by the undersigned in the preparation of this order. Findings not included in this order were considered irrelevant to the issues, immaterial to the results reached, or were not supported by competent and substantial evidence.

The issue herein is whether Respondent should be disciplined for the alleged violations reflected in the administrative complaint.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Respondent, Adelina Portuondo, is the holder of License Number CL 0089302 issued by Petitioner, Department of Professional Regulation, Florida State Board of Cosmetology. The license authorizes Respondent to perform cosmetology services. She has held the license since 1976.

   
   

2. On or about December 24, 1982, a Department inspector visited the premises known as Delores Beauty Salon, located at 2214 Collins Avenue, Miami Beach, Florida. The visit was prompted by the fact that the Delores Beauty Salon was delinquent in renewing its license with Petitioner.

   
   

3. While conducting the inspection, the inspector observed two apparent employees working with customers in chairs. Before the inspector was able to check the license of one of them, a Latin male, who was performing cosmetology services on a client, the Latin male quickly departed the premises. The inspector was told the male's name was either "Jorge" or "Jose," but that no other information regarding that individual was available.

   
   

4. Respondent was not on the premises when the inspection was made, but, after being called from her other shop, she arrived a short time later. Portuondo advised the inspector that the male's name was "Jose," that he was there for a "tryout," had just arrived from Cuba and had been referred by someone at her other beauty salon. She also advised that she had just purchased the salon and was in the process of transferring ownership to her name.

   
   

5. At the time the inspection was made, Delores Beauty Shop held no current licenses to provide either cosmetology or barber services to the public.

   
   

6. The inspector then visited Respondent's other salon, Lena's of New York, and learned that the Latin male's name was actually Jose Bahamonde. Respondent told the inspector that Bahamonde was only a manager of the salon, whose duties included opening and closing the shop, cleaning and the like, but that he performed no professional services. Lena's of New York was apparently licensed by the Board as a cosmetology salon.

   
   

7. On April 5, 1983, a Department inspector again visited the beauty salon operated by Respondent at 2214 Collins Avenue, Miami Beach. Respondent had signs indicating the business was now being operated as Lina Beauty Salon II, Inc. The inspector found Bahamonde on the premises and told him it was illegal to practice cosmetology and barbering without appropriate licenses. Bahamonde told the inspector he had taken the examination and was awaiting the results. The inspector returned the next day, April 6, and found Bahamonde cutting a customer's hair. The Respondent was not present on the premises. After being called by telephone, Respondent arrived shortly thereafter and denied that Bahamonde was providing professional services. Instead, she claimed he was

   working as a cashier and cleaning up the premises. At that time, she also produced records to show she had purchased the salon on October 5, 1982.

   
   

8. Official Department records reflect that Bahamonde was issued cosmetology License No. CL 0141942 on July 26, 1983. Those records also reflect that as recent as October 20, 1983, Lina Beauty Salon II, Inc., held no active cosmetology or barbershop licenses. The records do indicate, however, that Respondent applied for a cosmetology salon license for the establishment in April, 1983, but the application was denied on May 9, 1983, on the ground it was incomplete. No license has been issued to Delores Beauty Salon, Inc., since its purchase by Respondent.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

10. In the administrative complaint, Respondent is charged with four violations. First, she is charged in two counts with operating a salon (Delores Beauty Salon and/or Lina Beauty Salon, II) without a license in violation of Subsections 477.028(2)(b) and 477.029(1)(b), Florida Statutes. Second, she is charged on two occasions with allowing an employed person (Jose Bahamonde) to practice cosmetology without being duly licensed in violation of Subsections 477.028(2)(b) and 477.029(1)(c), Florida Statutes.

    
    

11. The evidence reveals that Portuondo did indeed operate a cosmetology salon at 2214 Collins Avenue, Miami Beach, Florida, in December, 1982, and April, 1983, without a license from the State. Therefore, it is concluded that Respondent is guilty of violating Subsection 477.029(1)(b) Florida Statutes.

    
    

12. The evidence also reflects that in December, 1982, Respondent permitted an unlicensed employee to perform cosmetology services at her unlicensed premises (Delores Beauty Salon) and in April, 1983, permitted the same unlicensed employee to perform professional services at her licensed salon (Lena's of New York). Accordingly, it is concluded that Respondent's conduct in December, 1982, constitutes a violation of Subsection 477.029(1)(c), Florida Statutes, while the conduct in April, 1983, constitutes a violation of both Subsections 477.028(2)(b) and 477.029(1)(c), Florida Statutes. 1/

    
    

13. Petitioner suggests a $1,000 administrative fine for Respondent allowing Bahamonde to perform professional services on two occasions and a $300 administrative fine for Respondent operating her salon without a license during the period in question. Given the circumstances herein, a $250 fine for each violation is more appropriate, such fine to be paid within 30 days from the date of the final order rendered in this proceeding.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of violating Subsection

477.029(1)(b), Florida Statutes, in December, 1982, and April, 1983; violating Subsection 477.029(1)(c), Florida Statutes, in December, 1982; and violating Subsections 477.028(2)(b) and 477.029(1)(c), Florida Statutes, in April, 1983. It is further

RECOMMENDED that a $250 administrative fine be imposed on Respondent for each violation, for a total of $1,000, and that such fine be paid within thirty

(30) days of the date of the final order entered in this cause.

RECOMMENDED this 9th day of November, 1983, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 9th day of November, 1983.

ENDNOTE

1/ The use of an unlicensed employee at Respondent's licensed premises constituted "misconduct" within the meaning of Subsection 477.028(2)(b). However, the same is not true for similar conduct at Respondent's unlicensed premises because Subsection 477.028(2)(b) applies only to "misconduct in the operation of the salon . . . so licensed."

COPIES FURNISHED:

Theodore R. Gay, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Ms. Adelina Portuondo 728 S.W. 98th Place Miami, Florida 33174

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: 83-002053

Orders for Case No: 83-002053