STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 84-1445

)

MICHAEL HARRIS, )

)

Respondent. )

)

RECOMMENDED ORDER

For Petitioner: Theodore R. Gay, Esquire

Tallahassee, Florida For Respondent: No appearance.

A final hearing was held in this case in West Palm Beach on July 26, 1984.

Although the hearing was held at the time, on the date, and at the place duly noticed for final hearing neither respondent Michael Harris nor anyone on his behalf appeared. The final hearing therefore proceeded without him.

The issue in this case is whether the Board of Cosmetology should suspend, revoke or take other disciplinary action against the license of respondent, Michael Harris to practice cosmetology on the following grounds alleged in an Administrative Complaint filed against him by the petitioner, Department of Professional Regulation: (1) for operating a cosmetology salon without a current, active salon license in violation of Section 477.029(1)(b) and 477.028(2)(b), Florida Statutes (1983); (2) for practicing cosmetology and holding himself out to be cosmetologist without being duly licensed in violation of Section 477.029(1)(a) and 477.028(1)(b) Florida Statutes.

FINDINGS OF FACT

1. Respondent Michael Harris is a licensed cosmetologist having been issued license number CL 0104278. However, respondent's license has not been current from July 1, 1982 through at least July 24, 1984.

   
   

2. Prior to April 13, 1983, respondent acquired and began operating Northwood Barber Shop, a cosmetology salon located at 513 Northwood Road, West Palm Beach, Florida. However, respondent never obtained a cosmetology salon license to operate at the location and did not obtain a barber shop license from the Florida Barbers Board to operate at that location until December 2, 1983.

   
   

3. On or about April 13, 1983, respondent was operating Northwood Barber Shop. In addition, on or about April 13, 1983, respondent himself was practicing cosmetology and holding himself to be a cosmetologist without being duly licensed as a cosmetologist.

4. After December 2, 1983, respondent was lawfully operating the Northwood Barber Shop, having been issued a barber shop license by the Florida Barbers Board. However, on June 14, 1984, respondent again was practicing cosmetology and holding himself out to be a cosmetologist without being duly licensed.

   
   

5. Respondent did not raise or prove as a defense that he was licensed as a barber by the Florida Barbers Board on either April 13, 1983 or Jun 14, 1984. On the contrary, respondent's admissions to petitioner's inspector on those dates and other occasions affirmatively suggest that respondent was not licensed as a barber.

   
   

   CONCLUSIONS OF LAW

   
   

6. Section 477.029, Florida Statutes (1983), provides in pertinent part:

   
   

   1. It is unlawful for any person to:

      * * *

      (b) Operate any school of cosmetology or cosmetology saloon unless it has

      been duly licensed as provided in this chapter. . . .

      
      

7. Section 477.028, Florida Statute (1983) provides in pertinent part:

   
   

   (2) The Board shall have the power to revoke or suspend the license of a cosmetology salon or a school of cosmetology licensed under this chapter, to deny subsequent licensure of such saloon or school, or to reprimand, censure, or otherwise disciplined the owner of such saloon or school in either of the following cases:

   * * *

   (b) Upon proof that the holder of a license is guilty of fraud or deceit or of gross negligence, incompetency or misconduct in the operation of the salon or school so licensed.

   
   

8. There is no evidence that the Northwood Barber Shop was licensed as a cosmetology salon at any time. Therefore, the Board of Cosmetology has no jurisdiction to discipline respondent in his capacity as owner of the Northwood Barber Shop under 477.028(2)(b).

   
   

9. Section 477.029, Florida Statutes (1983), also provides in pertinent part:

   
   

   1. It is unlawful for any person to:

      1. Hold himself oat as a cosmetologist or a cosmetology instructor unless

         duly licensed as provided in this chapter....

         
         

         Section 477.028, Florida Statutes (1983) provides in pertinent part:

         (1) The Board shall have the power to revoke or suspend the license of a cosmetologist

         ...licensed under this chapter and to reprimand, censure, deny subsequent licensure of, or otherwise discipline a cosmetologist...licensed under this chapter...:

         * * *

      2. Upon proof that the holder of a license is guilty of fraud or deceit

         or of gross negligence, incompetency, or misconduct in the practice or instruction of cosmetology.

         
         

10. The evidence establishes that respondent practiced cosmetology and held himself out to be cosmetologist without a current license on April 13, 1983, as alleged in petitioner's Administrative Complaint, in violation of Sections 477.029(1)(a) and 477.028(1)(b), Florida Statutes (1983). For purposes of imposition of penalty, the evidence also establishes that respondent practiced cosmetology and held himself out to be a cosmetologist without a current license on at least one other occasion, i.e., on June 14, 1983.

    
    

11. In addition, the evidence establishes that respondent violated Section 477.029(1)(b), Florida Statutes (1983). This establishes another violation of Section 477.028(1)(b), Florida Statutes (1983).

    
    

12. In addition to other discipline, Section 477.029(2)(c) authorizes the Board of Cosmetology to impose an administrative fine not to exceed $500.00 for each count or separate offense. The first count of petitioner's administrative complaint was not proven, but petitioner proved two separate offenses under the second count. Therefore, the maximum fine for violation of the second count is

$1,000.00.

RECOMMENDATION

Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Board of Cosmetology impose upon respondent Michael Harris an administrative fine in the amount of $500.00.

Recommended this 4th day of September, 1984, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 4th day of September, 1984.

COPIES FURNISHED:

Theodore R. Gay, Esquire Department of Professional Regulation 130 North Monroe

130 North Monroe Street Tallahassee, Florida 32301

Mr. Michael Harris

513 Northwood Road

West Palm Beach, Florida 33407

Fred Roche, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Myrtle S. Aase, Executive Director Board of Cosmetology

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 84-001445

Orders for Case No: 84-001445