STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO, 84-2553

) CASE NO. 84-2554

KATHERINE ZAVATTARO, d/b/a )

KIT'S BEAUTY SPOT, )

)

Respondent, )

and )

)

LINDA JONES, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Fort Lauderdale, Florida on August 16, 1984, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The appearances were as follows:

For Petitioner: Theodore R. Gay, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Respondent: Linda Jones 4701 Lions Road

Coconut Creek, Florida

Respondent: Katherine Zavattaro

(No appearance)

These cases arose on Petitioner's Administrative Complaints charging Respondent Linda Jones with practicing cosmetology without an active license in violation of Rule 21F-18.06(7), Florida Administrative Code (F.A.C.) and Sections 477.0265(1)(a) and 477.029(1)(a), Florida Statutes (1983)(F.S.), and Respondent Katherine Zavattaro with employing Jones to practice cosmetology when Jones did not have an active cosmetologist's license, in violation of Sections 477.0265(1)(b)2, and (1)(d) and 477.029(1)(c), F. S.

These proceedings were consolidated at hearing. In addition to the evidence presented, the parties were afforded the opportunity to late file any additional evidence indicating that Respondent Jones had timely renewed her license or had attempted to do so. Subsequent to hearing, Petitioner submitted

proposed findings of fact and conclusions of law. To the extent these proposed findings have not been adopted or otherwise incorporated herein, they are found to be subordinate, cumulative, immaterial, unnecessary or not supported by the evidence.

FINDINGS OF FACT

1. At all times material hereto, Katherine Zavattaro was licensed to practice cosmetology in the State of Florida, having been issued license number CL 0076721.

   
   

2. At all times material hereto, Katherine Zavattaro was licensed to operate a cosmetology salon named Kit's Beauty Spot and located at 3169 East Atlantic Boulevard, Pompano Beach, Florida.

   
   

3. On January 25, 1968, Linda Jones was issued Florida cosmetologist license number CL 0060025. This license was subject to a biennial renewal condition that required it to be renewed by June 30 of each even-numbered year. (See Rule 21F-18.06, F.A.C. quoted in pertinent part below).

   
   

4. On January 26, 1984, an inspector employed by Petitioner, observed Jones performing cosmetology services during a routine cosmetology salon inspection of Kit's Beauty Spot. Jones was unable to produce a current, active Florida cosmetologist license upon demand by the inspector.

   
   

5. The license posted at Jones' work station had expired on June 30, 1982. Jones told the inspector that she had mistakenly left her current license at home. However, a check of Petitioner's licensing records indicated that Jones had never renewed the license which expired on June 30, 1982. A further check of Petitioner's files subsequent to the hearing revealed no correspondence or other evidence which would support Jones' claim.

   
   

6. Jones testified under oath at hearing that in May, 1982, she applied to renew her Florida cosmetologist license. She further testified that around August, 1982, when she had not yet received her renewed license, she made a telephone call to Tallahassee, and was informed that her renewal application had not been received. She testified that in October or November, 1982, she reapplied to renew her cosmetologist license and that near the end of December, 1982, she received her renewed license.

   
   

7. Respondent Jones was unable to produce any documentary evidence to corroborate this testimony. She stated that she apparently lost the license as well as the money order receipt which would have supported her claim that she tendered the license renewal fee. Petitioner and Respondent Jones were given a further opportunity to search for evidence of license renewal or attempted renewal. However, no late-filed exhibits were submitted which would support Jones' testimony.

   
   

8. At all times material hereto, Katherine Zavattaro was the owner of Kit's Beauty Spot. In June, 1982, she hired Linda Jones to work there as a cosmetologist while Jones' license was still active. She did not require Jones to produce a current Florida cosmetologist license thereafter, and apparently relied on Jones' claim of renewal and her own knowledge that Jones had previously been employed at other cosmetology salons. Jones continued to work for Zavattaro as a cosmetologist at Kit's Beauty Spot, and was so employed at the time of Petitioner's inspection on January 26, 1984.

9. The conflicting evidence regarding Jones' licensure status is resolved against her. Respondent Jones' inability to produce any evidence to support her testimony that she had paid for and/or been issued a license, along, with the absence in Petitioner's public records of any evidence that such license had been applied for, paid for or issued, establish that Jones' testimony is a product of mistake or fabrication.

   
   

   CONCLUSIONS OF LAW

   
   

10. Rule 21F-18.06, F.A.C. provides in part:

    
    

    1. Any cosmetology license which is not renewed at the end of the biennium shall automatically revert to an inactive status

       . . . .

       * * *

       (7) A cosmetologist may not work with an inactive license. 1/

       
       

11. Section 477.0265, F.S. provides in part:

    
    

    1. It is unlawful for any person to:

       1. Engage in the practice of cosmetology without an active license as a cosmetologist issued by the department pursuant to the provisions of this chapter.

          
          

12. Section 477.029, F.S. provides in part:

    
    

    1. It is unlawful for any person to:

       1. Hold himself out as a cosmetologist

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

          
          

13. Under the above rule provisions, Respondent Linda Jones' license was "inactive" between July 1, 1982, and January 26, 1984, when Petitioner inspected her place of employment. The license became inactive through Respondent's negligent or intentional failure to renew said license.

    
    

14. The above statutory and rule provisions prohibit the practice of cosmetology without an active license. Respondent Jones did practice cosmetology between July 1, 1982 and January 26, 1984, without an active license and thus violated these provisions as charged in the Administrative Complaint.

    
    

15. Section 477.0265, F.S. provides in part:

    
    

    1. It is unlawful for any person to:

       * * *

       1. Own, operate, maintain, open, establish, conduct, or have charge of, either alone or with another person or persons, a cosmetology salon:

          * * *

          2. In which a person not licensed or registered as a cosmetologist is

          permitted to perform cosmetology services.

          * * *

          (d) Permit an employed person to engage in the practice of cosmetology unless such person holds a valid, active license as a cosmetologist.

          
          

16. Section 477.029, F.S. provides in part:

    
    

    1. It is unlawful for any person to:

       * * *

       (c) Permit an employed person to practice . . . cosmetology unless duly licensed as provided in this chapter.

       
       

17. Respondent Zavattaro is guilty of violating the above provisions as charged in the Administrative Complaint, in that she employed and permitted Linda Jones to practice cosmetology without an active license between July 1, 1982 and January 26, 1984. However, there was no evidence to indicate that she knowingly violated these provisions. Her negligence, if any, was in her failure to require Jones to produce the current license she claimed to possess.

    
    

18. Subsection 477.029(2), F.S. provides the following penalties for the violations herein charged:

1. Any person who violates the provisions of this section shall be subject to one or more of the following penalties, as deter- mined by the hoard:

   1. Revocation or suspension of any license or registration issued pursuant to this act.

   2. Issuance of a reprimand or censure.

   3. Imposition of an administrative fine not to exceed $500 for each count of separate offense.

   4. Placement on probation for a period of time and subject to such reasonable conditions as the board may specify.

   5. Refusal to certify to the department an applicant for licensure.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that Petitioner enter a Final Order fining Respondent Linda Jones $500, and issuing a reprimand to Respondent Katherine Zavattaro,

DONE and ENTERED this 13th day of September, 1984, in Tallahassee, Florida.

R. T. CARPENTER 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 13th day of September, 1984.

ENDNOTE

1/ This subsection was renumbered but otherwise unchanged by a rule revision of March 29, 1984.

COPIES FURNISHED:

Theodore R. Gay, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Linda Jones 4701 Lions Road

Coconut Creek, Florida

Katherine Zavattaro

3169 East Atlantic Boulevard Pompano Beach, Florida 33062

Myrtle Aase, Executive Director Board of Cosmetology

130 North Monroe Street Tallahassee, Florida 32301

Fred M. Roche, Secretary Department of Professional

Regulation

130 North Monrne Street Tallahassee, Florida 32301

Docket for Case No: 84-002553

Orders for Case No: 84-002553