STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-2410

)

PALM-MIAMI BEACH ACADEMY )

OF BEAUTY CULTURE, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on July 7, 1988, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Ronald L. Jones, Esquire

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: John H. Duhig, Esquire

1133 City National Bank Bldg.

25 West Flagler Street Miami, Florida 33130-1770

BACKGROUND

By administrative complaint filed on March 30, 1988 petitioner, Department of Professional Regulation, Board of Cosmetology, alleged that respondent, Palm- Miami Beach Academy of Beauty Culture, Inc., a licensed cosmetology school, had violated various agency rules and statutes by failing to comply with certain recordkeeping requirements. More specifically, the complaint charged that, during a routine inspection conducted on January 12, 1988, an inspector found the following deficiencies: two instructors were not continuously maintained during the school's first year of operation, student/school contracts were not available and daily attendance records and monthly statements of student hours were not on file.

Respondent requested a formal hearing to contest these allegations. The matter was referred by petitioner to the Division of Administrative Hearings on May 16, 1988 with a request that a hearing officer be assigned to conduct a hearing.

By notice of hearing dated June 24, 1987 a final hearing was scheduled on July 7, 1988 in West Palm Beach, Florida. On July 5, 1988 the case was transferred from Hearing Officer James E. Bradwell to the undersigned.

At final hearing petitioner presented the testimony of Jean E. Robinson, a DPR inspector, and offered petitioner's exhibits 1-3. All exhibits were received into evidence. Respondent's owner, Hasan Shihada, testified on behalf of the school.

There is no transcript of hearing. Proposed findings of fact and conclusions of law were filed by petitioner on July 29, 1988. None were filed by respondent. A ruling on each proposed finding of fact is contained in the Appendix attached to this Recommended Order.

At issue is whether respondent's cosmetology school license should be disciplined for the reasons stated in the administrative complaint.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Respondent, Palm-Miami Beach Academy of Beauty Culture, Inc. (school), is licensed to operate a cosmetology school at 634 Belvedere Road, West Palm Beach, Florida. Official agency records reflect that respondent was assigned license number CT 0000333 by petitioner, Department of Professional Regulation, Board of Cosmetology (DPR or Board) effective August 14, 1987. The school's owner and president is Hasan Shihada, who has operated another licensed cosmetology school, Miami Beach Unisex Beauty School, Inc., in Miami Beach, Florida for almost ten years.

   
   

2. Shihada purchased the school in 1987 from Ena Salup, who previously operated the school under the name of Ena's Beauty School. Shihada considers the school to be a division of his Miami Beach facility although he understands that each school must be operated as a separate entity with its own license.

   
   

3. After being advised that a license number had been assigned to respondent, a DPR investigator, Jean Robinson, made an initial inspection of the facility on September 24, 1987. She returned several times that fall but never found the school open. After checking with the Board's office in Tallahassee to ascertain if the school had actually opened, Robinson learned that the school had sent the Board average daily attendance reports for the months of November and December, 1987. These reports reflected that twelve and five students, respectively, had attended the school during those two months. Robinson thereafter telephoned Shihada and made an appointment to meet him at the school on Tuesday, January 12, 1988. The purpose of the visit was to review the school's records and to otherwise verify that the licensee was in conformity with all Board regulations.

   
   

4. On January 12, 1988 Robinson met Shihada at the school. The school was closed but Shihada gave her access to the premises. Upon entering the premises, Robinson saw no students, cosmetology supplies or other evidence of an active operation. She also observed that the license of only one instructor was on the wall even though Board rules require that the school have two licensed instructors in its employ during the first year of operation. When Robinson asked to see the student records, Shihada called Salup, who had an office in an adjacent building. After Salup came to the school, she and Shihada retrieved a handful of 5x7 file cards which contained the names and addresses of a few students and the apparent payments made by them to the school. Only three of the names matched up with the names previously sent by respondent to the Board's

   Tallahassee office. There were also no student attendance records, executed student enrollment contracts or monthly statements of student hours. These records are required to be maintained by the licensee for all active students. When Robinson asked where the other student records were, Shihada and Salup spoke in Spanish and then Shihada advised Robinson that all files were at Salup's home. Robinson instructed Shihada to bring the student files to the DPR district office the following Monday. Before she left, Robinson gave Shihada a copy of the Board's rules and discussed the recordkeeping requirements imposed on a licensee.

   
   

5. When Shihada did not appear at the DPR offices the following Monday, Robinson telephoned Shihada. He told her that a robbery had occurred at his office and that all files had been stolen. He also stated he did not report the robbery to local police. At hearing, Shihada denied telling this to Robinson and maintained instead that the files were simply missing from his unlocked office. Both explanations are rejected as not being credible.

   
   

6. On May 24, 1988 Robinson returned to respondent's establishment to conduct a follow-up inspection. At that time, she reviewed the student records and found all files to be complete, although the school had only one full-time student. There was only one instructor on the premises, Angenorai Mathews, but the license of a second instructor, Earl Threats, was on the wall.

   
   

7. At hearing Shihada contended that, although he purchased the school in 1987, he authorized Ena Salup to continue operating the school until January, 1988. According to Shihada, he did not open the school for business until that month but still had no students. He attributed this to a lack of financial aid for potential students. As to the records mailed to Tallahassee in November and December, 1987, Shihada explained that Salup's employees had mailed these, and that the students reflected thereon were actually Salup's students who were permitted by Shihada to finish their courses without charge. As to the lack of records on January 12, 1988, Shihada contended that (a) the records were missing from his office, and (b) in any event, he had no students in January and therefore there was no need to maintain any records. Shihada claimed also that the school had three licensed instructors in January, 1988. However, there were no records to corroborate this assertion. Finally, he denied that Robinson ever requested to see the student files on her January 12, 1988 visit. This contention is rejected as not being credible.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1987).

   
   

9. According to the administrative complaint, respondent is charged with failing to comply "with all board standards as required for cosmetology schools in that two instructors were not continuously maintained during the school's first year of operation, student/school contracts were not available, and daily attendance records as well as monthly statement of student hours were not available." The complaint goes on to cite Rules 21F-21.003, 21F-21.012 and 21F- 21.016, Florida Administrative Code (1987), as the offended regulations and Subsections 477.0265(1)(c) and 477.029(1)(i), Florida Statutes (1987), as the contravened law. Because respondent's license is at risk, petitioner must prove these allegations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

10. At hearing respondent objected to the introduction into evidence of petitioner's exhibits 2 and 3 on the grounds (a) the documents contained matters testified to by a witness and were therefore inadmissible, and (b) the documents contained hearsay declarations. Exhibit 2 is a certified copy of a multi-paged investigative report based upon the January 12 inspection while exhibit 3 is a certified copy of a two page report covering the May 24 inspection. Both exhibits were received in evidence. Since the two exhibits are clearly hearsay in nature, it may be helpful to counsel to identify those portions of the exhibits that have been used or considered. Initially, it is noted that, to the extent the records contain hearsay not admissible in a civil trial, they have been used only where such declarations supplement or explain other competent evidence. Section 120.58(1)(a), F.S. (1987). Those portions of the exhibits which are copies of records mailed by respondent to the Board, and which, by law, are required to be maintained by the Board, are admissible as public records under Subsection 90.803(8), Florida Statutes (1987), or as admissions against interest under Subsection 90.803(18), Florida Statutes (1987). The certification of licensure is also admissible as a public record. Cf. Terranova

    v. State, 474 So.2d 1206 (Fla. 2nd DCA 1985)(certification of non-licensure of a contractor admissible under ss. 90.803(10) and 90.902, F.S.). Finally, the affidavits have been disregarded since they do not supplement or explain any competent evidence.

    
    

11. The statutes which are alleged to have been violated are Subsections 477.0265(1)(c) and 477.029(1)(i), Florida Statutes (1985). They read as follows:

    
    

    477.0265(1) It is unlawful for any person to:

    * * *

    (c) Engage in willful or repeated violations of this chapter or any rule adopted by the board.

    * * *

    477.029(1) It is unlawful for any person to:

    * * *

    1. Violate or refuse to comply with any provision of this chapter or chapter 455 or a rule or final order of the board or the department.

       
       

       The first provision requires that a violation be shown to be "willful" or "repeated." The second provision makes it unlawful for a licensee to violate any provision within Chapter 477 or any rule promulgated thereunder. The administrative regulations pertinent to this proceeding are as follows:

       
       

       21F-21.003 Teaching and Instructing Staff.

       1. Schools of cosmetology shall be required to provide instructors based upon the average daily attendance for the preceding month (excluding new schools who must have minimum of two instructors during the entire first year of operation as follows ...

    * * *

    21F-21.012 Student-School Contract. All private schools are required to execute a contract approved by the Department in duplicate between student and school. This contract must bear the signature of the

    school official and the student, or parent or guardian if the student is under eighteen years of age. A fully executed copy must be given to the student and the original retained by the school.

    
    

    21F-21.016 Records.

    1. There shall be on file for each student enrolled or reenrolled in a school for a cosmetology course, a specialty course, a post-graduate course, an instructor-trainee course, or additional hours of the following:

       1. An executed enrollment application.

       2. A form, wherein hours of instruction and services performed by the student are logged and initialed daily by the instructor.

       3. An executed hours and services form reporting the month's activities for all students enrolled. This form must reflect the average daily attendance of students for the school during the month reported.

       4. Such records shall be kept on file for a period of no less than five (5) years and

          shall be subject to inspection by the Department.

    2. Each school shall provide to the Department:

       1. A form verifying that the student has completed additional hours of training because of failure of the licensure examination.

       2. An executed hours and services form, provided by the Department, reporting the month's activities for all students enrolled. Said form must be submitted to the Department no later than the tenth (10th) of each month for the preceding month's activities. This form must reflect the average daily attendance of students for the school during the month reported.

    
    

12. The confusing aspect of this case is that Shihada advised the Board that his school was open for business but did not disclose he had no students. Indeed, for whatever reason, Shihada concocted an incredible story that his student files had been stolen when in fact he had no active students enrolled in the school. If the school had no students, there was no requirement that students records be maintained. The more persuasive evidence supports a conclusion that the school opened for business in January, 1988 and that it had no active students at that time. Therefore, respondent cannot be charged with failing to maintain contracts, attendance forms and monthly statements of student hours as of January 12, 1988. This portion of the complaint should accordingly be dismissed. 1/

    
    

13. Notwithstanding the lack of students, Shihada conceded that his school was open for business as of January 12, 1988. As such, he was obligated to have in his employ two licensed instructors as of that date. The more credible and persuasive evidence establishes clearly and convincingly that respondent had

    only one such instructor, and therefore the licensee violated Rule 21F- 21.003(1), Florida Administrative Code (1987). This also constitutes a violation of Subsection 477.029(1)(i), Florida Statutes (1987). However, the violation was not shown to be willful or repeated.

    
    

14. Through its counsel, the Board suggests the imposition of a $500 administrative fine. This penalty falls within the suggested guidelines contained in Rule 21F-30.001, Florida Administrative Code (1987), and is found to be appropriate.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Rule 21F-

21.003(1), Florida Administrative Code (1987), and Subsection 477.029(1)(i), Florida Statutes (1987), and that all other charges be dismissed. It is further recommended respondent pay a $500 fine within 30 days of date of Final Order.

DONE AND ORDERED this 1st day of August, 1988, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

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 2nd day of August, 1988.

ENDNOTE

1/ As to the fact that certain student records pertaining to the months of November and December, 1987, were filed by the previous owner, these reports may have been false. However, respondent was not charged with filing a false record or report.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2410

Petitioner:

1. Covered in finding of fact 1.

2. Covered in finding of fact 1.

3. Covered in finding of fact 3.

4. Covered in finding of fact 4.

COPIES FURNISHED:

Ronald L. Jones, Esquire

130 North Monroe Street Tallahassee, Florida 32399-0750

John H. Duhig, Esquire

1133 City National Bank Building

25 West Flagler Street Miami, Florida 33130-1770

Ms. Myrtle Aase Executive Director Board of Cosmetology

130 North Monroe Street Tallahassee, Florida 32399-0750

William O'Neil, Esquire General Counsel

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-002410

Orders for Case No: 88-002410