STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1796

) JYLES R. GARMON d/b/a BLACKMORE ) BEAUTY SALON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on August 1, 1988, in Fort Lauderdale, Florida.

Petitioner Department of Professional Regulation, Board of Cosmetology, was represented by Tobi C. Pam, Attorney at Law, Tallahassee, Florida. Jyles R. Garmon appeared on his own behalf and on behalf of Blackmore Beauty Salon.

Petitioner filed an Administrative Complaint against the Respondent, and Respondent timely requested a formal hearing on the charges against him.

Accordingly, the issues for determination herein are whether Respondent is guilty of the allegations contained within the Administrative Complaint, and, if so, what disciplinary action should be taken against him, if any.

Petitioner presented the testimony of Leonard Baldwin. The Respondent testified on his own behalf and presented the testimony of Lela Frank.

Additionally, Petitioner's Exhibits numbered 1 and 2 and Respondent's Exhibit numbered 1 were admitted in evidence.

FINDINGS OF FACT

1. At all times material hereto, Respondent Jyles R. Garmon is and has been licensed to practice cosmetology and operate a cosmetology salon in the State of Florida, having been issued license numbers CL 0028487 and CE 0034472. At all times material hereto, Respondent has been the owner of the cosmetology salon known as Blackmore Beauty Salon located in Fort Lauderdale, Florida.

   
   

2. At Blackmore Beauty Salon, the brushes and combs are cleaned and dried with an electric dryer every night. Similarly, the sinks in the bathroom are cleaned and the work stations are wiped with a wet towel every night.

   
   

3. Clean combs and brushes are used for each customer visiting the salon. They are cleaned in a large sanitizing tub in the back of the salon. Additionally, the brush dryer contains formaldehyde tablets and formaldehyde tablets are kept in the drawers where the sanitized combs and brushes are stored.

4. The floors at the Blackmore are swept as soon as possible. Although the sinks are rinsed, some of tne chemicals used in the salon will stain the sinks. It is not possible to clean the stains in the sinks after each customer, but clorox is used regularly to remove the stains.

   
   

5. On January 21, 1987, Leonard Baldwin, an investigator for the Department of Professional Regulation, conducted the annual inspection of Blackmore Beauty Salon. His inspection report reflected that there were no problems or deficiencies.

   
   

6. On January 7, 1988, Baldwin again inspected the Blackmore Beauty Salon.

   
   

7. No evidence was offered as to any prior disciplinary actions against Respondent who has been licensed since July 1, 1957 or against the Blackmore Beauty Salon which has been licensed since April 5, 1983.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.

   
   

9. The Administrative Complaint charges Respondent with violating Rule 21F-20.02, Florida Administrative Code, and, therefore, sections 477.0265(1)(c) and 477.029(1)(i), Florida Statutes (1985).

   
   

10. Section 477.029(1)(i), Florida Statutes, authorizes the Board of Cosmetology to take disciplinary action against a licensee who violates or refuses ". . . to comply with any provision of this chapter or chapter 455 or a rule or final order of the board." Section 477.0265(1)(c), Florida Statutes, makes it unlawful to willfully or repeatedly violate the cosmetology act or any rule adopted by the Board.

    
    

11. Rule 21F-20.02, Florida Administrative Code, contains requirements for applications for registration of salons, sanitation requirements for salons, minimum space requirements, physical plant requirements, and physical space/employee ratio requirements for salons. The Administrative Complaint fails to put Respondent on notice as to the specific sections of Rule 21F-20.02 he is charged with violating. Further, Petitioner has failed to prove by clear and convincing evidence that Respondent has violated any of the varied provisions of that Rule.

    
    

12. The Administrative Complaint alleges that Respondent violated sanitation standards as revealed by the inspections of January 21, 1987, and January 7, 1988. Investigator Baldwin testified that his report of the January 21, 1987, inspection noted no deficiencies of any kind although deficiencies existed. Since he did not testify that he filed a false report, he cannot be heard to testify now that violations did exist. Further, he offered no specific testimony as to what the alleged deficiencies were.

    
    

13. As to the January 7, 1988, inspection, Petitioner failed to offer into evidence the inspection report, notes of the inspection if any exist, or any photographs showing the conditions of the salon at the time of the inspection. Further, no evidence was offered as to how long the investigator was present on the premises, whether the sinks which he alleged to have been stained had just

    been used and stained by a rinse used by a customer, or even whether there were any customers in the salon.

    
    

14. In short, the uncorroborated testimony of the investigator was too vague to allow disciplinary action to be taken. For example, he testified that personal items were found in a drawer with combs and brushes. However, he could not state what those personal items were and did not make any notes regarding them. Moreover, Rule 21F-20.002 does not prohibit personal items being kept in a drawer with combs and brushes. Rather, subsection (4)(e) prohibits storing sanitized articles and unsanitized articles in the same container.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is,

RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained in the Administrative Complaint and dismissing the Administrative Complaint filed against him.

DONE and RECOMMENDED this 31st day of August, 1988, at Tallahassee, Florida.

LINDA M. RIGOT, 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 31st day of August, 1988.

COPIES FURNISHED:

Myrtle Aase, Executive Director Board of Cosmetology

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Tobi C. Pam, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Jyles R. Garmon, II

1217 East Las Olas Boulevard Fort Lauderdale, Florida 33301

Bruce D. Lamb, General Counsel Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-001796

Orders for Case No: 88-001796