STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 84-0365

) IRIS HOUSTON & HOWARD HOUSTON, )

)

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 April 30, 1984, in Orlando, Florida.

APPEARANCES

For Petitioner: Theodore R. Gay, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondents: Iris Houston, pro se

Howard Houston, pro se 4752 Fontana Street

Orlando, Florida 32807 BACKGROUND

By an amended administrative complaint filed on September 16, 1983, Petitioner, Department of Professional Regulations, Florida State Board of Cosmetology, has charged that Respondents, Iris and Howard Houston, both licensed cosmetologists, violated certain provisions within Chapter 477, Florida Statutes. In brief, it is alleged that the Houstons operated a cosmetology salon in Orlando, Florida, without a current active license during the period of December 1982 to June 1983. For this, Petitioner seeks to take disciplinary action against Respondents.

The Houstons 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 January 30, 1984, with a request that a Hearing Officer be assigned to conduct a hearing. By notice of hearing dated March 2, 1984, the final hearing was scheduled on April 30, 1984, in Orlando, Florida.

At the final hearing, Petitioner presented the testimony of Valerie Flowers, a Department Investigator, and offered Petitioner's Exhibits 1 through 11; all were received in evidence. Respondent Howard Houston testified on his own behalf.

There is no transcript of hearing. Proposed findings of fact and conclusions of law were filed by Petitioner on May 7, 1984, 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 Respondents should be disciplined for the alleged violations reflected in the amended administrative complaint.

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

1. Respondent, Iris Houston, is the holder of License Number CL 053795 issued by Petitioner, Department of Professional Regulation, Florida State Board of Cosmetology. Respondent, Howard Houston, is the holder of License Number CL 0062722 also issued by Petitioner. The licenses authorize Respondents to perform cosmetology services. Iris had held a license since 1965 while Howard has been licensed since 1968.

   
   

2. On or about February 18, 1983, a Department inspector visited the premises known as Headlines Unlimited located at 3076 Curry Ford Road, Orlando, Florida. The visit was apparently prompted by the fact that Headlines Unlimited was not registered with Petitioner. Indeed, the official records of the State reveal that Headlines Unlimited has never held a cosmetology salon license or a barbershop license.

   
   

3. When she first entered the premises, the inspector observed Respondents providing cosmetology services to two customers. She found everything in order except Respondents could not produce a current salon license for Headlines Unlimited. Howard told her the salon had just reopened in December, 1982, and he had called Tallahassee for an application for licensure. However, he had not yet received the application. The inspector left him a new application form to use. Howard filled out the application and sent it to Tallahassee. It was returned at a later date because Howard had sent a personal check instead of a cashiers check.

   
   

4. The inspector returned on June 24, 1983, to deliver an administrative complaint against Respondents which had previously been undeliverable by mail. At that time the inspector again found the salon in operation but no salon license posted on the premises, and Respondents could not produce one. Howard told her he had sent in an application and check hut could not produce a cancelled check to verify his story. The inspector left another application form for Howard to use. Howard filled out a portion of the application, and then sent it to his mother, who owned the salon, for her to complete and mail to the Petitioner.

   
   

5. The inspector visited the premises a third time in November, 1983, but found the salon closed and a new business (unrelated to cosmetology) operating on the premises. By this time, an amended administrative complaint had been issued against Respondents which precipitated the instant proceeding.

6. The salon in question at 3076 Curry Ford Road has a lengthy and somewhat complicated history. Howard first started operating the business in 1978 when it was licensed under the name Shampoo Alley Beauty Salon. He became a partner in that business by assuming a financial obligation of a former partner. On an undisclosed date, the name was changed to Headlines Unlimited. Petitioner was never advised of the change in name or ownership. In September, 1981, Howard sold the business to his mother, Eleanor McLeroy, in order to keep his ex-wife from obtaining the assets of the business. The mother in turn sold the business to two individuals in July, 1982, but, when they defaulted on their payments, she repossessed the business in late 1982. Howard then operated his mother's business until it closed down in the fall of 1983. Iris worked there only a few hours each week, and it appears that one or two other cosmetologists may have rented chairs from time to time between December, 1982, and the fall of 1983.

   
   

7. The mother was responsible for payment of all bills of Headlines Unlimited and was the legal owner between December 1982, and June 1983. She resides in Tampa.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Respondents are charged with violating Subsection 477.029(1)(b), Florida Statutes, by operating a salon without a current active license. They are also charged with misconduct in the practice of cosmetology within the meaning of Subsection 477.028(1)(b), Florida Statutes.

   
   

10. The evidence disclosed that Headlines Unlimited did indeed operate as a cosmetology salon between December, 1982, and June 24, 1983, without a current active license. However, the business was legally owned by Howard Houston's mother, and it was her, not the Houstons, who violated the law. Therefore, this portion of the complaint should be dismissed.

    
    

11. The second portion of the complaint alleges that the Houstons are guilty of "misconduct in the practice of cosmetology", as proscribed by Subsection 477.028(1)(b). According to the amended administrative complaint, the "misconduct" is based exclusively upon Respondents operating a salon without a license. Since the underlying charge is without merit, the second charge must also fail. 1/

RECOMMENDATION

Based on the foregoing findings of fact and conclusive of law, it is Recommended that the amended administrative complaint filed against

Respondents be dismissed with prejudice.

DONE and entered this 23rd day of May, 1984, 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 23 day of May, 1984.

ENDNOTE

1/ Respondents may be guilty of misconduct by working in a salon business that they knew held no current license. However, they were not charged as such, and therefore it is too late to now discipline them for this action.

COPIES FURNISHED:

Theodore R. Gay, Esquire

130 North Monroe Street Tallahassee, Florida 32301

Iris and Howard Houston 4752 Fontana Street

Orlando, Florida 32807

Docket for Case No: 84-000365

Orders for Case No: 84-000365