STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2265

)

JAMES F. TOBIN, )

)

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 October 11, 1983, in Miami, Florida. Pursuant to leave, the parties were allowed through October 21, 1983, to submit memoranda supportive of their respective positions. Petitioner, by and through its counsel, has submitted a proposed Recommended Order which was considered by me in preparation of this Recommended Order. 1/

APPEARANCES

For Petitioner: Theodore R. Gay, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: James F. Tobin, pro se

17036 West Dixie Highway

North Miami Beach, Florida 33162 INTRODUCTION

On February 9, 1983, Petitioner filed its one-count administrative complaint against the Respondent alleging that he (Respondent) operated a cosmetology salon without a current active license in violation of Sections 477.029(1)(h) and 477. 028(1)(h), Florida Statutes. The Petitioner presented as its witnesses the Respondent, James F. Tobin, and Respondent's manager and sister, Ellen Mango. Respondent and Ms. Mango also testified on Respondent's behalf. Additionally, Petitioner offered the rebuttal testimony of its investigator, Dorsey Hayes. Petitioner offered Petitioner's Exhibits 1 through

5 which were received into evidence at the hearing.

ISSUE

The issue presented herein is whether or not the Respondent operated a cosmetology salon without a current active salon license.

FINDINGS OF FACT

1. Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, a post- hearing memorandum, and the entire record compiled herein, I hereby make the following relevant findings of fact.

   
   

2. Respondent, James F. Tobin, was at all times material herein licensed by the State of Florida to practice cosmetology and has been issued cosmetologist license number CL 0096393. (Petitioner's Exhibit 1)

   
   

3. During December, 1980, Respondent purchased a cosmetologist salon then named Sisters Two which is located at 17036 W. Dixie Highway, North Miami Beach, Florida. Respondent thereafter renamed the salon "All About Hair" and at all times subsequent to December, 1980, owned and operated All About Hair as a cosmetologist salon.

   
   

4. During July or August, 1981, Respondent submitted to the Petitioner an application for a cosmetology salon license for All About Hair enclosing therewith a check made payable to the Petitioner in the amount of $40.

   
   

5. On August 13, 1981, Petitioner received the application and on the following day, August 14, 1981, Petitioner cashed the Respondent's $40 check. The Department did not approve the application and on August 19, 1981 returned the application to Respondent together with a cover letter stating the following three reasons:

   
   

   1. The application was not accompanied by a diagram of the salon,

   2. The lease was not in the Respondent's name, and

   3. The application failed to specify the type of dry sanitizer that Respondent was using in the salon.

      
      

6. Upon receipt of the returned application from the Petitioner, the (Respondent) gave it to his mother for completion and for resubmittal to the Petitioner. A completed cosmetology salon license application form for All About Hair was not received by the Petitioner from Respondent until August 8, 1983. Upon receipt of the completed application, the Department issued its cosmetology salon license number CE 0035291 for All About Hair on September 10, 1983. (Petitioner's Exhibit 4)

   
   

7. Respondent, by and through its business manager, acknowledged that it never received from the Petitioner a cosmetology salon license in the name of All About Hair prior to September 8, 1983. Although the Respondent assumed that his mother immediately re-submitted the returned application to the Petitioner, other than the finding herein that the returned application was re-submitted to Petitioner on August 8, 1983, there was no direct testimony offered in support of that assumption.

   
   

8. On September 30, 1982, Petitioner's investigator and inspector, Dorsey Hayes, made a routine inspection of All About Hair. During the course of that inspection, inspector Hayes discovered a discrepancy between the salon named All About Hair and the license which it was operating under, Sisters Two. At no time prior to September 10, 1983, did the Respondent hold a valid current license for the cosmetology salon All About Hair.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Sections 120.57(1) and 455.225(4), Florida Statutes.

   
   

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

    
    

11. The authority of the Petitioner, Board of Cosmetology, is derived from Section 455.225(4), Florida Statutes.

    
    

12. Competent and substantial evidence was offered to establish that the Respondent, James F. Tobin, operated a cosmetology salon, All About Hair, located at 17036 W. Dixie Highway, North Miami Beach, Florida without a current active cosmetology salon license in violation of Sections 477.029(1)(b) and 477.028(1)(b), Florida Statutes.

    
    

13. The cosmetology salon license number CE 0026559, for Sisters Two, was not transferable to the Respondent at the time that Respondent became owner of the cosmetology salon in December of 1980. See Section 477.025(7), Florida Statutes and Rule Sections 21F-10.07 and 21F-20.06, Florida Administrative Code.

    
    

14. Finally, the negotiation of the check by the Petitioner upon receipt of the Respondent's 1981 cosmetology salon license application does not amount to an approval of said application but was rather a processing fee which was earned by the Petitioner upon efforts taken by the Petitioner to determine whether or not the Respondent's application should be approved or disapproved.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED that the Respondent shall pay an administrative fine to the Petitioner in the amount of $250 within thirty days of the date of the Final Order herein.

RECOMMENDED this 9th day of December, 1983, 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 9th day of December, 1983.

ENDNOTE

1/ To the extent that the proposed findings, etc. of the Petitioner's proposed Recommended Order are not incorporated in this Recommended Order, said proposed findings, etc. were deemed irrelevant, immaterial or not otherwise supported by record evidence.

COPIES FURNISHED:

Theodore R. Gay, Esquire

Department of Professional Regulation

130 N. Monroe Street Tallahassee, Florida 32301

James F. Tobin

17036 W. Dixie Highway

North Miami Beach, Florida 33162

Myrtle Aase Executive Director Board of Cosmetology

130 N. Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-002265

Orders for Case No: 83-002265