STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL REGULATION, ) BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) Case No. 85-4108

)

BERNARD D. FANFAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by William R. Cave, the assigned Hearing Office of the Division of Administrative Hearings, on March 26, 1986 in Miami, Florida.

APPEARANCES

For Petitioner: Jane A. Shaeffer, Esq.

Department of Professional Regulation

130 North Monroe Street Tallahassee, FL 32301

For Respondent: Bernard Fanfan, Pro Se

Palm Beauty Salon

1323 N. E. 178th Street North Miami Beach, FL 33162

By Administrative Complaint dated October 3, 1985 and filed with the Division of Administrative Hearings on December 4, 1985 the Petitioner seeks to revoke, suspend or otherwise discipline the license of Respondent Bernard D. Fanfan to operate a cosmetology salon in the State of Florida. As grounds therefor, it is alleged that Respondent employed Adelaide Baltazar and Myrtha Janvier to practice cosmetology without either of them being duly licensed as provided in Chapter 477, Florida Statutes, thereby violating Section 477.029(1)(c), Florida Statutes.

In support of the charges, Petitioner presented the testimony of Sharon Banks Geter and Anthony DeStro.

Petitioner's Exhibits 1 and 2 were received into evidence.

Respondent Fanfan testified on his own behalf but introduced no exhibits. Respondent Fanfan was not represented by counsel.

Only the Petitioner submitted posthearing Proposed Findings of Fact and Conclusions of Law. A ruling on each proposed finding of fact has been made as reflected in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material to this proceeding, the Respondent was the owner of Palm Beauty Salon located at 5084

   N.E. 2nd Avenue, Miami, Florida.

   
   

2. At all times material to this proceeding, Respondent Fanfan was licensed to operate Palm Beauty Salon as a cosmetology salon, having been issued Florida Cosmetology salon license number CE 0038205.

   
   

3. Respondent Fanfan was not licensed to practice cosmetology in the State of Florida at any time.

   
   

4. On August 19, 1985, Sharon Banks Geter (Geter), inspector for the Petitioner, inspected the Palm Beauty Salon and was accompanied by another inspector, Anthony Destro (Destro).

   
   

5. At the time of the inspection on August 19, 1985, Adelaide Baltazar (Baltazar) and Myrtha Janvier (Janvier) were found to be performing cosmetology services in the Palm Beauty Salon. However, the evidence was insufficient to prove that Baltazar and Janvier were employed by Respondent Fanfan.

   
   

6. Neither the Respondent nor Marie Herard (Herard) the manager of Palm Beauty Salon, were present when Geter and Destro inspected the Palm Beauty Salon on August 19, 1985.

   
   

7. At all times material to this proceeding, Baltazar and Janvier were not licensed to practice cosmetology 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 Respondent Fanfan is accused purportedly violates Section 477.029(1)(c), Florida Statutes which is quoted below:

   
   

   1. It is unlawful for any person to:

      
      

      * * *

      
      

      (c) Permit an employed person to practice or teach cosmetology or a speciality unless duly licensed as provided in this chapter. (Emphasis supplied).

      
      

10. The evidence was insufficient to show that Baltazar or Janvier, while not licensed to practice cosmetology, were employed by Respondent Fanfan, therefore, Petitioner has failed to meet its burden of proof that Respondent Fanfan permitted employed persons who were not duly licensed to practice cosmetology in the Palm Beauty Salon in violation of Section 477.029(1)(c), Florida Statutes as charged in the Administrative Complaint.

    
    

11. While Respondent Fanfan may be subject to discipline under Section 477.029(1)(h), Florida Statutes for violating the provisions of Section 477.0265, Florida Statutes as argued by Petitioner, there must be an allegation in the Administrative Complaint charging Respondent Fanfan with such a violation under Section 477.029(1)(h), Florida Statutes. In the instant case, Respondent Fanfan is not charged in the Administrative Complaint with a violation of Section 477.0265, Florida Statutes and, therefore, not subject to discipline under Section 477.029(1)(h), Florida Statutes.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that the Board of Cosmetology enter a final order DISMISSING the Administrative Complaint filed

against Respondent Fanfan.

Respectfully submitted and entered this 16th day of May, 1986, 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 16th day of May, 1986.

COPIES FURNISHED:

Jane Shaeffer, Esq. Department of Professional Regulation

130 North Monroe Street Tallahassee, F1 32301

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, F1 32301

Salvatore A. Carpino General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, F1 32301

Bernard D. Fanfan Palm Beauty Salon 1323 NE 178 Street

North Miami Beach, FL 33162

Myrtle Aase Executive Director

Department of Professional Regulation

130 North Monroe Street Tallahassee, FL 32301

APPENDIX

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Petitioner in this case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. Adopted in Finding of Fact 1.

2. Adopted in Finding of Fact 2.

3. Rejected as irrelevant and immaterial.

4. Rejected as irrelevant and immaterial.

5. Adopted in Findings of Fact 4 and 5.

6. Adopted in Finding of Fact 7.

Respondent Did Not Submit Any Proposed Findings of Fact

Docket for Case No: 85-004108

Orders for Case No: 85-004108