STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3689

)

BEFORE & AFTER, INC., d/b/a )

DESIGN OF MIAMI, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled case was held on January 8, 1988, in Miami, Florida, before Joyous Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0760

For Respondent: Frank E. Freeman, Esquire

2930 North East Second Court Miami, Florida 33137

(305) 576-5043

BACKGROUND AND PROCEDURAL MATTERS

This case began on April 7, 1986, when Petitioner filed an Administrative Complaint against Respondent. This complaint alleged Respondent to be in violation of Section 477.029(1)(b), Florida Statutes for operating a cosmetology salon without a current, active license. On April 25, 1986, Respondent answered the complaint, denied it was operating a cosmetology salon, and averred that it performs no services requiring licensure. On August 18, 1987, the case was forwarded to the Division of Administrative Hearings for formal proceedings.

At the hearing Petitioner presented the testimony of three witnesses: Providence Padrick, an investigator with the Department; Carmen Cannizzo, an employee at Design of Miami; and Ronald Myers, a Department employee.

Petitioner's exhibits 1 and 2 were admitted into evidence. Bernard R. Gaeta, the secretary/treasurer of Before & After, Inc., testified on behalf of the Respondent.

After the presentation of their cases, the parties waived the thirty day time mandate found in Rule 28-5.402, Florida Administrative Code. No transcript

of the proceedings was made. Petitioner filed a proposed recommended order which has been carefully considered in the preparation of this Recommended Order. Specific rulings on the proposed findings of fact are included in the attached Appendix. On February 29, 1988, Respondent filed a memorandum of law which has also been reviewed and considered in the preparation of this Recommended Order. At the hearing Respondent moved to suppress testimony resulting from an alleged illegal entry and search of Respondent's business property. Ruling on the motion to suppress was reserved to afford the parties an opportunity to brief the issue. As explained more fully below, the motion to suppress is denied.

ISSUE

The central issue in this cause is whether or not Respondent is guilty of violating Section 477.029(1)(b), Florida Statutes which prohibits the operation of a cosmetology salon without a current license.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact:

1. Respondent, Before & After, Inc. d/b/a Design of Miami, is not licensed as a cosmetology salon. Respondent does business at 8200 Biscayne Boulevard, Miami, Florida.

   
   

2. Bernard R. Gaeta is the secretary/treasurer of the Respondent corporation and was present at the business location on or about January 9, 1986.

   
   

3. On or about January 9, 1986, Providence Padrick went to the business location (8200 Biscayne Boulevard, Miami, Florida) in response to an advertisement for cosmetology services. The purpose of the visit was to inspect the premises regarding the services claimed by the ad. An individual known as Jerry Schrank shared space with Respondent and had been responsible for the ad in question.

   
   

4. When Ms. Padrick made the inspection she was attended by Mr. Gaeta who showed her the area used by Mr. Schrank. Additionally, Mr. Gaeta furnished Ms. Padrick with a brochure which outlined the services offered by Respondent. During her inspection of the Respondent's premises Ms. Padrick observed three or four shampoo bowls of the type normally used in cosmetology salons.

   
   

5. As a result of her inspection of Respondent's business premises, Ms. Padrick interviewed Carmen Cannizzo to determine what services were being performed by Respondent's employees. Ms. Cannizzo is a licensed cosmetologist employed on a salaried basis by the Respondent.

   
   

6. According to Ms. Cannizzo, Respondent sells hairpieces or wigs which are fitted and then attached to the customers' heads. Respondent uses two methods of wig or hairpiece attachment: weaving and taping. The weaving method requires the weaving of an anchor thread through the customer's natural hair which then holds the hairpiece in place once it is similarly secured to the woven thread. Regardless of the method of attachment, the customer's hair must be styled to blend in with the hairpiece. Customer preference and the amount of natural hair available determine which attachment method is used.

7. While it is not part of the fee charged by Respondent, Ms. Cannizzo will also trim a customer's hair or shampoo it upon request. Ms. Cannizzo has been directed not to perform these services but does so to augment the tips she receives.

   
   

8. Prior to the inspection of Respondent's business premises Ms. Padrick identified herself and her occupation to Mr. Gaeta. Ms. Padrick inspected the public areas of Respondent's business and, by invitation, an office area used by Mr. Gaeta.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

   
   

10. Section 477.029, Florida Statutes (1985) provides, in pertinent part:

    
    

    1. It is unlawful for any person to:

       * * *

       (b) Operate any school of cosmetology or cosmetology salon unless it has been duly licensed as provided in this chapter, except that nothing herein shall be construed to prevent the teaching of cosmetology within the public school system or through any other government-operated program in this state.

       * * *

    2. Any person who violates the provisions of this section shall be subject to one or more of the following penalties, as determined by the board:

       * * *

       (c) Imposition of an administrative fine not to exceed

       $500 for each count or separate offense.

       
       

11. Section 477.025, Florida Statutes (1985) provides, in pertinent part:

    
    

    No cosmetology salon or

    specialty salon shall be permitted to operate without a license issued by the department.

    * * *

    (9) The board is authorized to adopt rules governing the periodic inspection of cosmetology salons and specialty salons licensed under this chapter.

    
    

12. Rule 21F-20.001, Florida Administrative Code, defines cosmetology salon to be "any establishment or place of business wherein cosmetology as

    defined in Section 477.013(5), F.S., or any specialty defined in 477.013(7), F.S., is practiced for compensation. A salon must be at a fixed location."

13. Section 477.013(5), Florida Statutes (1985) provides: "Cosmetology" means the mechanical

    or chemical treatment of the head, face, and scalp for aesthetic rather than medical purposes, including, but not limited to, hair shampooing, hair cutting, hair arranging, hair coloring, permanent waving, hair relaxing, hair removing, pedicuring, and manicuring, for compensation.

    
    

14. Chapter 21F-22, Florida Administrative Code sets forth the curriculum components and minimal competency skills required for licensure under Chapter 477, Florida Statutes. Pertinent to this case is Rule 21F-22.010 Hair Arranging (styling) which provides, in relevant part:

    
    

    1. Objective: To arrange a client's hair into a style of the client choice through the development of dexterity, coordination and strength in creating designs and patterns in the hair.

    2. Learning Objective:

       * * *

       (k) To understand the variety of hairpieces and their uses.

    3. Performance Objectives:

       * * *

       (g) To clean, condition, shape, color and style various types of wigs and hairpieces.

       
       

15. Applying the outlined provisions to the case at issue it is clear Respondent offers cosmetology services at its Biscayne Boulevard premises. The weaving and styling of hairpieces to mesh with the customer's natural hair constitutes "hair arranging." Respondent does not dispute that it performs this service in connection with the attachment of its hairpieces.

    
    

16. Moreover, while services of hair shampooing and hair cutting are not done as a part of the hairpiece service, it is clear that Respondent encourages these services since customer shampoo bowls are available. Further, Respondent's employee offers these services in expectation of additional compensation.

    
    

17. Respondent argues that the information gathered by Ms. Padrick and offered at the hearing must be suppressed because it was obtained as a result of a "search" of Respondent's premises in violation of Article 1 Section 12 of the Florida Constitution and the Fourth Amendment to the Constitution of the United States. I find this argument without merit.

18. Rule 21F-20.003, Florida Administrative Code entitled Inspections provides:

    
    

    The department of Professional Regulation shall cause an inspection of all proposed salons to determine if all the requirements have been met. Each licensed salon shall be inspected at least annually by the Department. No person shall, for any reason intentionally, or directly inhibit an authorized representative of the Department from performing said inspections.

    
    

19. The constitutional prohibition argued by Respondent relates only to unreasonable searches. An expectation of privacy in a business setting is different from, and less than, what one expects in a home. A statutory scheme which allows the administrative inspection of a regulated business is not automatically invalid or unconstitutional. See: New York v. Burger, 107 S. Ct. 2636 (1987) and Donovan v. Dewey, 101 S. Ct. 2534 (1981).

    
    

20. The inspection performed by Ms. Padrick was in connection with an advertisement for cosmetology services governed by Chapter 477, Florida Statutes. The inspection was not made incidental to a criminal investigation. Additionally, a corporate officer was present and cooperated with the Department's agent. Respondent was under the mistaken belief that hairweaving did not require licensure. Respondent did not object to the inspection until Ms. Cannizzo disclosed she performed hair shampooing and hair cutting. These services undoubtedly require licensure.

    
    

21. The inspection performed by Ms. Padrick was within the authority contemplated by Chapter 477, Florida Statutes and was in fulfillment of her duties relating to the administration of a regulated business. The inspection occurred in a public facility with the Respondent's consent and participation. Respondent employs licensed cosmetologists and inspection of licensed facilities is both expected and required. Consequently, the inspection was both reasonable and lawful. Olson v. State, 287 So.2d 313 (Fla. 1973); Gehel v. State, 449 So.2d 423 (Fla. 2d DCA 1984); State v. Patterson, 444 So.2d 1168 (Fla. 4th DCA 1984); and Renbur Drugs, Inc. v. Florida Board of Pharmacy, 249 So.2d 698 (Fla. 3rd DCA 1971).

    
    

22. For the reasons set forth above Petitioner has proved by clear and convincing evidence that Respondent is guilty of operating as a cosmetology salon without a valid license.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That the Department of Professional Regulation, Board of Cosmetology enter a Final Order finding Respondent in violation of Section 477.029(1)(b), Florida Statutes and imposing an administrative fine in the amount of $500.00

DONE and RECOMMENDED this 11th day of March, 1988, in Tallahassee, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3689

Rulings on Petitioner's proposed findings of fact:

1. Paragraph 1 is accepted in finding of fact paragraph 1.

2. Paragraph 2 is rejected. Whether Respondent has been licensed as a salon in the past is unclear. That Respondent operates as a cosmetology salon is a question of law addressed in the conclusions.

3. Paragraph 3 is accepted. It should be noted, however, that all services described in the brochure may not be offered at the Respondent's business. Only those services found to be performed by Respondent are included in the findings of fact.

4. Paragraph 4 is accepted. See paragraph 3 above.

5. Paragraph 5 is accepted.

6. Paragraph 6 is accepted. Respondent does not dispute that it shampoos hairpieces for its customers.

7. Paragraph 7 is accepted.

8. Paragraphs 8, 9, and 10 are accepted.

Rulings on Respondent's proposed findings of fact: None submitted

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0760

Frank E. Freeman

2930 North East Second Court Miami, Florida 33137

Myrtle Aase, Executive Director Department of Professional Regulation Board of Cosmetology

130 North Monroe Street Tallahassee, Florida 32399-0760

William O'Neil General Counsel

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-003689

Orders for Case No: 87-003689