STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1928

)

J. D. BASS & COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Jane C. Hayman, held a formal hearing in the above- styled case on June 14, 1989, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Tobi Pam, Esquire

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0729

For Respondent: Jerrold D. Bass, pro se

5579 North University Drive Lauderhill, Florida 33321

STATEMENT OF THE ISSUES

Whether the Respondent committed the offenses set forth in the Administrative Complaint filed in this case and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

By administrative complaint dated February 6, 1989, Petitioner charged that Respondent violated the provisions of Sections 477.0265(1)(c) and (d) and 477.029(1)(c), (h) and (i), Florida Statutes and the provisions of Rule 21F- 20.002, Florida Administrative Code. The gravamen of Petitioner's charges is the assertion that Respondent permitted the employment of and practice by an employee with an expired cosmetology license and that Respondent violated the sterilization and sanitation requirements of Petitioner.

At the hearing, Petitioner called one witness and offered three exhibits which were admitted into evidence. Respondent testified on his own behalf and offered the testimony one character witness.

A transcript of the hearing was not ordered, and the parties were granted leave until June 24, 1989, to file proposed findings of fact. Neither party elected to file proposed findings of fact.

FINDINGS OF FACT

1. At all times material hereto, Jerrold D. Bass was owner and president of J. D. Bass & Company, Inc., which held cosmetology license number CE 0040858.

   
   

2. On or around November 2, 1988, Respondent employed Mr. Thomas J. Tilelli to practice cosmetology. Mr. Tilelli's license to practice cosmetology had expired on approximately July 1, 1988.

   
   

3. On or around November 2, 1988, and , again, on or around January 6, 1989, combs and brushes were out on work stations at the salon. However, the proof fails to support the Petitioner's contention that combs and brushes were dirty and were used on more that one patron without sanitizing them between patrons. Rather, the combs and brushes were in use on each occasion and were not used on more than one patron of the salon without being sanitized between each patron.

   
   

4. On balance, the proof fails to demonstrate that Respondent committed any sanitary violations. But, by employing Mr. Tilelli with his expired license and by allowing him to practice without a valid license, Respondent did violate the provisions of the Florida Cosmetology Act.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

6. Section 477.029(1)(c), (h) and (i), Florida Statutes states the following:

   
   

   1. It is unlawful for any person to:

      (c) Permit an employed person to practice or teach cosmetology or a specialty unless duly licensed or registered a provided in this chapter.

      1. Violate an provision of s. 477.0265, s. 477.028, or s. 455.227(1).

      2. 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.

      
      

7. Section 477.0265(1)(c) and (d), Florida Statutes states that:

   
   

   1. It is unlawful for any person to:

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

      2. Permit an employed person to engage in the practice of cosmetology or of a specialty unless such person holds a valid, active license as a cosmetologist or registration as a specialist.

8. Rule 21F-20.002(4)(c), Florida Administrative Code provides:

   
   

   (4) The following procedures shall be followed in salons utilizing the material or instruments listed below:

   (c) Sterilization and Sanitation: The use of a brush, comb or other article on more than one patron without being sanitized is prohibited. . . .

   
   

9. Section 477.029(2), Florida Statutes states:

   
   

   1. 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:

      1. Revocation or suspension of any license or registration issued pursuant to this chapter.

      2. Issuance of a reprimand or censure.

      3. Imposition of an administrative fine not to exceed $500 for each count or separate offense.

      4. Placement on probation for a period of time and subject to such reasonable conditions as the board may specify.

      5. Refusal to certify to the department an applicant for licensure.

   
   

10. Under existing law, the burden is on Petitioner to demonstrate by clear and convincing evidence that Respondent violated the provisions of Sections 477.0265(1)(c) and (d) and 477.029(1)(c), (h) and (i), Florida Statutes, and the sterilization and sanitation requirements of Rule 21F-20.002, Florida Administrative Code. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). Here, Petitioner failed to sustain its burden as to Sections 477.0265(1)(c) and 477.029(1)(i), Florida Statutes, and as to Rule 21F-20.002, Florida Administrative Code. However, Respondent admitted to the alleged violation of Sections 477.026(1)(d) and 477.029(1)(c), Florida Statutes.

    
    

11. In arriving at an appropriate penalty in the instant case, consideration has been given to the disciplinary guidelines set forth in Rule 21F-30, Florida Administrative Code. Based on a balancing of such guidelines, an appropriate penalty in the instant case is found to be the imposition of an administrative fine of $200.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED the a final order be entered imposing on Respondent an

administrative fine of $200.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of June 1989.

JANE C. HAYMAN

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 30th day of June 1989.

COPIES FURNISHED:

Tobi Pam, Esquire

Department of Professional Regulation 1940 North Monroe Street

Suite 60

Tallahassee, Florida 32399-0729

Jerrold D. Bass

5579 North University Drive Lauderhill, Florida 33321

Myrtle Aase, Executive Director Board of Cosmetology

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0729

Docket for Case No: 89-001928

Orders for Case No: 89-001928