STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL REGULATION, ) BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3808

)

VALENTINO MALLOGGI, d/b/a )

BIKINI UNISEX BEAUTY SALON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was hearing by William R. Cave, the assigned Hearing Officer of the Division of Administrative Hearings on May 6, 1985, in Ft. Lauderdale, Florida.

APPEARANCES

For Petitioner: Charles Tunnicliff, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Valentino Malloggi, Pro se

2500 East Hallandale Beach Boulevard Hallandale, Florida 33009

By Administrative Complaint dated October 16, 1984, and filed with the Division of Administrative Hearings on November 2, 1984, the Petitioner seeks to revoke, suspend or otherwise discipline the license of Valentino Malloggi as a licensed cosmetologist in the State of Florida. As grounds therefore, it is alleged that Respondent employed Mamie L. Thompson and Linda Marlowe to practice cosmetology without them being duly licensed as provided in Chapter 477, Florida Statutes, thereby violating Sections 477.0265 (1)(b)2, (1)(d) and 477.029(1)(c), Florida Statutes (1983).

In support of the charges, Petitioner presented the testimony of Alexa Arachy. Petitioner's Exhibits Nos. 1 through 17 were received into evidence.

Respondent, Valentino Malloggi testified on his own behalf. Respondent introduced no exhibits. Respondent was not represented by counsel.

Only the Petitioner submitted posthearing proposed findings of fact and conclusions of law pursuant to Section 120.57 (1)(b)(4), Florida Statutes (Supp. 1984). A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate cumulative, immaterial or unnecessary.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found:

1. At all times material to this proceeding, the Respondent has been licensed to practice cosmetology in the State of Florida, having been issued Florida cosmetology license, number CL 0057719.

   
   

2. At all times material to this proceeding, the Respondent had been the owner of a cosmetology salon named Bikini Unisex Beauty Salon, located at 2500 East Hallandale Beach Boulevard, Hallandale, Florida, although at the time of the hearing Respondent had sold his interest in Bikini Unisex Beauty Salon.

   
   

3. At all times material to this proceeding, the Respondent was licensed to operate the Bikini Unisex Beauty Salon as a cosmetology salon, having been issued Florida cosmetology salon license number, CE 0025617.

   
   

4. On September 7, 1984, Alexa Aracha (Aracha), an inspector employed by Petitioner, conducted a routine inspection at Bikini Unisex Beauty Salon to check for compliance with sanitation and licensure requirements.

   
   

5. At the time of the inspection, Mamie L. Thompson (Thompson) was shampooing the hair of a salon customer. Respondent has admitted that Thompson was employed by him, d/b/a Unisex Bikini Beauty Salon, as a cosmetologist the past fourteen (14) years. Thompson's cosmetology license, number CL 0031825, expired on June 30, 1984, and was not renewed until November 17, 1984. Although it appears that Thompson had completed the necessary hours of continuing education to have her license renewed, the record is clear that between July 1, 1984 and November 17, 1984 Thompson's cosmetology license, number CL 0031825, was in an inactive status. Respondent, due to Thompson's length of employment with him, did not check Thompson's license to see if it was current and was unaware that her license had expired.

   
   

6. At the time of the inspection, Linda S. Marlowe (Marlowe) was present in the salon but was not working. Respondent's appointment book indicated that Marlowe had scheduled appointments for the afternoon of the day of the inspection. Respondent admitted that Marlowe was employed by him, d/b/a Bikini Unisex Beauty Salon, as a cosmetologist, and had worked a couple of days just prior to the inspection. The record is clear that Marlowe's cosmetology license, number CL 0057700, expired June 30, 1984, and was not renewed until January 16, 1985. Although it appears that Marlowe had completed the necessary hours of continuing education to have her license renewed the record is clear that between July 1, 1984 and January 16, 1985 Marlowe's cosmetology license, number CL 0057700, was in an inactive status. The record shows that there had been sickness in Marlowe's family and due to this sickness, she did not have the necessary funds to renew her license. Again, due to Marlowe's length of employment with Respondent, Respondent did not check Marlowe's license to see if it was current and was unaware that her license had expired.

   
   

7. At all times material to this proceeding, Linda S. Marlowe and Mamie L. Thompson were not licensed to practice barbering in the State of Florida.

   
   

   CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings pursuant to Section 120.57(1), Florida Statutes.

   
   

9. The alleged misconduct of which Respondents' accused purportedly violates Sections 477.0265(1)(b)2, (1)(d) and 477.029(1)(c), Florida Statutes (1983). The provisions of Section 477.0265(1)(b)2, (1)(d), Florida Statutes (1983) are quoted below.

   
   

   1. It is unlawful for any person to:

      * * *

      (b) 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.

      
      

10. Any person who violates Section 477.0265, Florida Statutes (1983) is guilty of a misdemeanor in the second degree and punishable as provided in Sections 775.082, and 775.083 and 775.084, Florida Statutes (1983) or subject to the penalties under Section 477.029(2), Florida Statutes (1983) provided there is an allegation in the Administrative Complaint charging that person with such a violation under Section 477.029(1)(h), Florida Statutes (1983). However, in the instant case, there is no allegation in the Administrative Complaint charging the Respondent with a violation of Section 477.0265, Florida Statutes (1983) under Section 477.029(1)(h), Florida Statutes (1983). Therefore, he is not subject to the penalties imposed under Section 477.029(2), Florida Statutes (1983). Whether or not a person is guilty of a misdemeanor is not within the jurisdiction of this administrative forum.

    
    

11. Section 477.029(1)(c), Florida Statutes provides:

    
    

    (1) It is unlawful for any person to:

    1. Permit an employed person to practice or teach cosmetology unless duly licensed as provided in this chapter.

       
       

       Rule 21F-18.08(1), Florida Administrative Code provides in pertinent part:

       
       

       1. A cosmetologist shall review his or her license on or before June 30 of each biennial (even numbered) years....

    Rule 21F-18.06(1), and (3), Florida Administrative Code provides in pertinent part:

    
    

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

    * * *

    (3) A cosmetologist may not work with an inactive license.

    
    

12. The Petitioner has met its burden of proof by showing that Respondent violated Section 477.029(1)(c), Florida Statutes (1983) in that he "permit(ted)" two (2) "employed persons" who were not "duly licensed" to "practice cosmetology" in his salon.

    
    

13. Respondent contends that his actions were not intentional and, that in each case, the reason for failure to timely renew their licenses was justifiable. Intent is not necessary under this section of the statutes. However, the lack of intent and the reasons surrounding the failure of Thompson and Marlowe to timely renew their license may be a basis for mitigation of the penalty to be imposed and, particularly, when considering the length of time each of the two (2) employees have been licensed cosmetologists in the State of Florida without any apparent disciplinary actions against those licenses.

RECOMMENDATIONS

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the charge of violating Section 477.0265(1)(b)2., (1)(d), Florida Statutes (1983) be dismissed. It is further RECOMMENDED that Respondent be found guilty of the violation of Section 477.029(1)(c), Florida Statues (1983). For such violation, considering the mitigating circumstances surrounding the violation, it is RECOMMENDED that the Board of Cosmetology issue a letter of Reprimand to the Respondent.

Respectfully submitted and entered this 25th day of June, 1985, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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 25th day of June, 1985.

COPIES FURNISHED:

Charles Tunnicliff, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Valentino Malloggi Pro se

2500 E. Hallandale Beach Boulevard Hallandale, Florida 33009

Ms. Myrtle Aase Executive Director Board of Cosmetology

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, General Counsel Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 84-003808

Orders for Case No: 84-003808