Judges: J. STEPHEN MENTON
Agency: Department of Business and Professional Regulation
Latest Update: May 05, 1989
Summary: Fine of $100 recommended for owner of salon after employee's work station was found to be dirty on three inspections
89-0548STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL REGULATION, ) BOARD OF COSMETOLOGY, )
)
Petitioner, )
)
vs. ) CASE NO. 89-0548
)
BART SKLANSKY d/b/a )
SUNSHINE HAIR FASHIONS, )
)
Respondent. )
)
RECOMMENDED ORDER
A hearing was held in this case in Ft. Lauderdale, Florida, on April 4, 1989, before J. Stephen Menton, the duly designated Hearing Officer from the Division of Administrative Hearings. The issue for consideration was whether respondent's license to operate a cosmetology salon in Florida should be disciplined because of the violations alleged in the Amended Administrative complaint filed herein.
Petitioner, Department of Professional Regulation, Board of cosmetology (hereinafter the "Board"), was represented by Tobi C. Pam, Attorney at Law, Tallahassee, Florida. Bart Sklansky appeared on his own behalf and on behalf of Sunshine Hair Fashions.
BACKGROUND
This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that the Respondent has violated Rule 21F-20.002, Florida Administrative Code, and Sections 477.0265(1)(c), and 477.029(1)(i), Florida Statutes. At the hearing, Petitioner presented the testimony of Leonard Baldwin (an investigator for the Department of Professional Regulation) and offered four exhibits into evidence which were accepted without objection. Thereafter, the Respondent testified on his own behalf and also presented the testimony of Pam Greco, a beauty operator in Respondent's Sunshine Scissors Hair Salon. Respondent did not offer any exhibits into evidence.
At the conclusion of the evidentiary portion of the hearing, the parties advised the hearing officer that they did not intend to obtain a transcript of the proceedings and no transcript of the hearing was furnished. A deadline of ten (10) days from the date of the hearing was established for submission of proposed recommended orders by the parties. As of the date of this recommended order, neither party has filed a proposed recommended order.
FINDINGS OF FACT
Bart Sklansky is the President of Sunshine Hair Fashions, Inc., which is the owner of a salon operating under the name of Sunshine Scissors, located
at 5568 Flamingo Road, cooper city, Florida. At all times material hereto, Sunshine Hair Fashions, Inc., was licensed by the State of Florida, to operate a cosmetology salon under License No. CE0040983, and the Sunshine Scissors Salon located at 5568 Flamingo Road, Cooper City, Florida operated under that license. Mr. Sklansky owns several other salons and he visits each location from time to time to oversee the operations.
Petitioner was and is the state agency charged with regulating the practice of cosmetology in the State of Florida.
On January 20, 1988, Leonard Baldwin, an inspector for the Department of Professional Regulation, entered the Sunshine Scissors Salon (hereinafter the "Salon") for the purpose of conducting a routine inspection of the premises.
Mr. Baldwin has been an inspector for the Department of Professional Regulation for approximately four years. As part of his job, he inspects approximately 32 cosmetology salons per week and prepares a written inspection report reflecting his visit. He generally reviews those reports with the employees who are present. He will generally inspect a salon only once a year unless there are problems.
At the time of Mr. Baldwin's inspection in January of 1988, the Salon was basically in good shape with the exception of the work station of one of the operators, Kenneth Hayman.
The shop is professionally cleaned once a week and the employees make sure that the floors, mirrors and waiting areas are clean at all times.
However, each individual operator is responsible for the cleanliness of his particular work station. While Mr. Hayman is not deliberately unsanitary, he is sometimes careless and needs constant prodding and reminders to keep his work station clean.
As noted on his inspection report (Petitioner's Exhibit 3), Mr. Baldwin found certain conditions which he felt were unsatisfactory during his January 20, 1988 visit. Among the conditions he noted were the following: the back bar of at least one of the work stations was dirty and had excessive dust; there was excessive hair on the floor; combs and brushes from at least one of the work stations contained excessive hair; and it appeared that the implements and utensils from at least one work station were not being properly cleansed, sanitized, or stored. However, no direct testimony was presented as to the proper method for sanitizing or cleaning the implements and no evidence was presented as to how Respondent's procedures failed to meet the regulatory standards.
Although Mr. Baldwin's investigation report (Exhibit 3) indicates as an additional deficiency that "sanitary towels/neck strips were not being placed around patrons necks," no explanation was given as to the basis for this noted deficiency and no direct testimony was offered to support this contention.
All of these deficiencies, identified under the pertinent rules of the Board's, were brought to the attention of Pam Greco, one of the operators at the Salon. Bart Sklansky was not made aware of the deficiencies until several months later. He never noticed any problems during his visits to the Salon.
On October 2, 1988, Mr. Baldwin again inspected the Salon. The general condition of the shop was satisfactory. However, the work station of Kenneth Hayman was again found deficient in certain areas. More specifically,
the back bar area around this work station was dirty and it appeared that utensils may have been used on more than one patron without being sanitized. Mr. Baldwin did not explain how he reached this conclusion.
After the second inspection, Mr. Hayman paid more attention to the cleanliness of his work station and kept it clean the majority of the time. However, on December 9, 1988, Mr. Baldwin against inspected the salon and noted similar deficiencies to those he found during the October 1988 inspection.
Mr. Hayman's work station has never been the source of any customer complaints. Mr. Hayman has been informed that his work station must be kept clean and he has kept his work station clean since the last inspection.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1), Florida Statutes.
Petitioner has alleged that respondent is in violation of various provisions of Rule 21F-20.002, Florida Administrative code, and therefore, Sections 477.0265(1)(c) and 477.029(1)(i), Florida Statutes (1987).
Rule 21F-20.002, sets forth the standards established by the Board for sanitation in cosmetology salons. These standards include:
21F-20.002(4)(a)
... a sanitary towel or neck strip
shall be placed around the patron's neck to avoid direct contact of the shampoo cape with a patron's skin.
21F-20.002(4)(c)
The use of a brush, comb, or other article on more than one patron without being sanitized is prohibited. Each salon is required to have sufficient combs, brushes, and implements to allow adequate sanitizing practices.
21F-20.002(4)(e)
After cleansing and sanitizing, articles shall be stored in a clean closed cabinet or container until used.
21F-20.002(3)(a)
the walls, ceilings, furniture and equipment shall be clean and free from dust. Hair must not be allowed to accumulate on the floor of the salon.
Hair must be deposited in a closed container.
Section 477.029(1)(i), Florida Statutes, authorizes the Board 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 or Department." Section 477.0265(1)(c), Florida Statutes, makes it unlawful to wilfully or repeatedly violate the cosmetology act or any rule adopted by the Board.
In a disciplinary case such as this, the petitioner has the burden of proof to establish the deficiencies upon which it relies for action by clear and convincing evidence. Ferris vs. Turlington, 510 So.2d 292 (Fla. 1987).
The Amended Administrative complaint filed by Petitioner refers only to the January 20, 1988 inspection and deficiencies found during that inspection. Thus, although Petitioner submitted evidence regarding two subsequent inspections, any deficiencies noted during those subsequent inspections cannot serve as the basis for disciplinary action in this case. Rule 28-6.009(2)(b), Florida Administrative Code.
In subparagraph 3(1) of the Amended Administrative complaint, Petitioner charges that on January 20, 1988 "the back bar and floor was littered with excessive hair." The evidence demonstrated that the work station of one of the operators was unsatisfactorily clean on that date. As such, Respondent violated Rule 21F-20.002(3)(a).
In subparagraph 3(2) of the Amended Administrative complaint, Petitioner alleges that Respondent failed to use neck strips around patron's necks. While such deficiency is noted on the inspection report submitted as Exhibit 3, no direct testimony was offered as to how many patrons were involved or to otherwise explain the basis for this allegation. Thus, petitioner has failed to prove this allegation by clear and convincing evidence.
In subparagraphs 3(3), 3(4), and 3(5) Petitioner contends that Respondent's "implements were not being properly sanitized", "combs and brushes contained excessive hair," and "articles and containers to store such articles were littered with excessive hair." The evidence demonstrated that some of the implements, articles and containers at the work station of one of the operators contained excessive hair. No direct testimony was offered regarding the sanitation methods that were used or were not used. At most, petitioner has demonstrated a violation of 21F-20.002(4)(d)(e).
In sum, on January 20, 1988, the Respondent's cosmetology salon was in violation of some provisions of Rule 21F-20.002, Florida Administrative Code, by reason of the conditions prescribed in paragraphs 3 through 6 of the Findings of Fact above. As a result, Respondent was also in violation of Section 477.029(1)(i), Florida Statutes, as alleged in the Amended Administrative complaint. (Whether respondent is also in violation of Section 477.0265(1)(c), is irrelevant to the disposition of this case because the Department of Professional Regulation is without statutory authority to prosecute criminal violations.)
Rule 21F-30.001, Florida Administrative Code, contains the disciplinary guidelines adopted by the Board of cosmetology. Under those guidelines, for violation of the safety and sanitary requirements of Rule 21F- 20.002, Florida Administrative code, the usual recommended penalty is an administrative fine of $50 par violation if less than three violations are found to have occurred or an administrative fine of $250 if three or more violations are found to have occurred. Subsection (4) of Rule 21F-30.001 lists additional factors which may be considered by the Board in imposing penalties. Included in those factors are the following which appear to be particularly applicable here: The severity of the offense, the danger to the public, and attempts by the licensee to correct the violations. A severe penalty does not appear appropriate with respect to the January 20, 1989 violations because (a) the violations appear to be related to one particular operator within the salon; (b) the existence of a problem with that particular operator was not brought to the
attention of the owner until these proceedings were commenced and the owner has indicated an intent to more closely monitor the situation to prevent further violations by the particular operator (While the alleged deficiencies were discussed with the on-site employees at the time of the inspection, Mr. Sklansky was not informed of the problems until much later. While this delay does not justify the failure to take immediate correction action by the licensee, the evidence does reflect that attention was given to the situation after it was brought to the owner's attention); and (c) it appears that the conditions complained about have been improved.
RECOMMENDATION
Based on all of the foregoing, it is
RECOMMENDED that the Board of cosmetology enter a final order in this case finding the Respondent guilty of violating Section 477.029(1)(9), Florida Statutes, and imposing a penalty consisting of a reprimand and an administrative fine in the total amount of $100.
DONE and ENTERED this 5th day of May, 1989, in Tallahassee, Florida.
J. STEPHEN MENTON Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 5th day or May, 1989.
COPIES FURNISHED:
Tobi C. Pam Staff Attorney
Department of Professional Regulation
130 N. Monroe Street Tallahassee, FL 32399-0750
Bart Sklansky
Sunshine Hair Fashions Post Office Box 601667
North Miami Beach, FL 33160
Myrtle Aase
Board of Cosmetology
Department of Professional Regulation
130 N. Monroe Street Tallahassee, FL 32399-0750
Kenneth E. Easley, Esquire General Counsel
Department of Professional Regulation
130 N. Monroe Street Tallahassee, FL 32399-075010
Docket for Case No: 89-000548
Orders for Case No: 89-000548
| Issue Date |
Document |
Summary |
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Aug. 29, 1989 |
Agency Final Order
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|
|
May 05, 1989 |
Recommended Order
|
Fine of $100 recommended for owner of salon after employee's work station was found to be dirty on three inspections
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