STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) Case NO. 89-3315

)

HATTIE NESBIT )

d/b/a NESBIT'S BEAUTY SALON, )

)

Respondent, )

)

RECOMMENDED ORDER

Pursuant to notice, this Matter came on for hearing in Jacksonville, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on August 30, 1989.

APPEARANCES

The parties were represented as follows:

For Petitioner: Tobi C. Pam

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Hattie Nesbit, pro se

5639 Saphist Circle North Jacksonville, Florida 32219

STATEMENT OF THE ISSUES

The issue at the hearing was whether Respondent's cosmetology salon license was subject to discipline for alleged violations of Chapter 477, Florida Statutes and the rules promulgated thereunder.

PRELIMINARY STATEMENT

On May 22, 1989, the Department of Professional Regulation filed a one count Administrative Complaint against Respondent and her beauty salon. The Administrative Complaint alleged that the Respondent was guilty of violating Rule 21F-20.002, Florida Administrative Code, and Subsections 477.0265(1)(c) and

1. (1)(i), Florida Statutes, on May 25, 1989 and February 21, 1989. Respondent requested a formal administrative hearing on the Department's complaint. The request for hearing was forwarded to the Division of Administrative Hearings.

   
   

   At the hearing, Petitioner presented three witnesses and offered into evidence one composite exhibit. Respondent testified in her own behalf and offered no exhibits into evidence. The Petitioner made an oral motion to amend

   the Administrative Complaint to dismiss the allegations in the complaint relating to May 25, 1989, and charge the Respondent with sanitation violations occurring only on February 21, 1989. The motion was granted and the case proceeded only on the violations alleged to have occurred on February 21, 1989.

   
   

   Petitioner filed its proposed recommended order on October 16, 1989. The transcript was filed on November 28, 1989. The Petitioner's proposed findings of fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cumulative or subordinate. Specific rulings on the Petitioner's proposals are contained in the Appendix to this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. The Respondent, Hattie Nesbit, is licensed to practice cosmetology in the State of Florida. The Respondent also holds a Florida cosmetology salon license for her beauty salon, Nesbit's Beauty Salon. 1/

      
      

   2. Ms. Nesbit works part-time at her salon. She employs two to three other very experienced licensed cosmetologists. The salon has four beauty stations. Ms. Nesbit's beauty station is the first station after entering the salon premises. The other employees occupy the other stations. They are aware of the Board's rules for the operation and sanitation of a beauty salon. Additionally, Respondent has the Board's sanitation rules posted on the wall of the salon. The salon in general is clean and well-kept.

      
      

   3. Eileen Thomas, the Petitioner's inspector, conducted a random inspection of the Respondent's salon on February 21, 1989. Ms. Nesbit was not present during the inspection.

      
      

   4. While there the inspector observed that the container for the deposit of hair was a garbage can located in the back room. The room was closed off from the beauty salon. At the time of the inspection the container had hair in it. The garbage can cover was not on the container and the lid was not located at the time of the inspection. The Board's rules provide that a lid must be kept on the container for the deposit of hair. Respondent's receptacle for the deposit of hair was not maintained in such a manner. Therefore, Respondent is subject to discipline under the Board's rules governing the maintenance of container for the deposit of hair.

      
      

   5. The inspector, also, observed Ms. Blount, one of the beauticians employed by Respondent, apply chemicals to a patron's hair without using a spatula. Since Ms. Nesbit was not present at the salon she was unaware of the employee's disregard of the Board's rule that all chemicals be applied with a spatula. However, the salon owner is the person responsible for the operation of the salon and is responsible for violations committed by the employees of the salon. Respondent's lack of knowledge only goes to mitigate the penalty which should be imposed for the employee's failure to observe the Board's rules. The evidence showed that Respondent had reasonably instructed her employees on sanitary procedure and required them to follow that procedure. Respondent posted the sanitation rules on the wall of the salon as a reminder of those rules. Respondent's violation is nominal. In light of these facts Respondent should receive a nominal penalty. A letter of reprimand would be an appropriate penalty for this type of violation.

      
      

   6. Additionally, the inspector observed that the wet sanitizers located in four of the stations at the salon were only one third to one half full of a

      sanitizing solution. A wet sanitizer is any type of container that is large enough to hold a sanitizing solution in which a comb or brush can be completely immersed for proper sanitation. In this case, the containers provided by Respondent were large enough to allow for the complete immersion of a comb or brush in a sanitizing solution. There were combs and brushes in the wet sanitizers at the four stations. Those combs and brushes were not completely immersed in the sanitizing solution because the solution was low.

      
      

   7. The Rule on the provision of wet sanitizers does not require that the containers be filled all the time. The rule only requires that the containers be large enough to allow for immersion. The Rule requires only that a comb or brush be immersed prior to its use. The Rule does not require that a comb or brush be immersed all of the time. In this case Respondent provided containers of the correct size. However, no evidence was presented that the Respondent's operators were using the combs or brushes in the wet sanitizers without first properly sanitizing them. The fact that the jars were low in solution at the limited point in time of the inspection does not clearly and convincingly support a conclusion that Respondent's operators were not utilizing proper sanitation procedures before the combs and brushes were used on a customer. Without evidence of such use Respondent cannot be guilty of a violation of the Board's rule on the provision of wet sanitizers and the sanitation of combs or brushes before their use.

      
      

      CONCLUSIONS OF LAW

      
      

   8. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Subsection 120.57(1), Florida Statutes.

      
      

   9. Section 477.029, Florida Statutes, empowers the Board of Cosmetology to discipline a person's salon or cosmetology license for violations of or refusals to comply with Chapters 477 and 455, Florida Statutes, a rule of the Board or a final order of the Board.

      
      

   10. Rule 21F-20, Florida Statutes, is the rule governing the licensing of cosmetologists and cosmetology salons. The rule contains requirements for sanitation in the operation of a cosmetology salon. The rule reads in pertinent part:

       
       

       Prior to opening a salon, the owner shall:

       . . . .

       1. Meet the safety and sanitary requirements as listed below and these requirements shall continue in full force and effect for the life of the salon:

          1. Ventilation and Cleanliness: Each salon shall be kept well ventilated. The walls shall be kept 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. No animals or pets shall be allowed in the salon except for seeing eye dogs for the deaf blind or disabled. Each salon which provides services for the extending or sculpturing of nails shall provide such services in a separate area which is adequately ventilated for the safe dispersion of all fumes resulting from the services.

             . . . .

       2. The following procedures shall be followed in salons utilizing the materials or instruments listed below:

          1. Linens: Each salon shall keep clean linens in a closed, dustproof cabinet. All soiled linens must be kept in a closed receptacle. Soiled linens may be kept in open containers if entirely separated from the area in which cosmetology services are rendered to the public. A sanitary towel or neck strip shall be placed around the patron's neck to avoid direct contact of the shampoo cape with the patron's skin.

          2. Containers: Salons must use containers for waving lotions and other preparations of such type as will prevent contamination of the unused portion. All creams shall be removed from containers by spatulas.

          3. Sterilization and Sanitation: 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 for adequate sanitizing practices. Combs or other instruments shall not be carried in pockets.

          4. Sanitizers: All salons shall be equipped with wet sanitizers, sufficient to allow for sanitizing practices.

             1. A wet sanitizer is any receptacle containing a disinfectant solution and large enough to allow for a complete immersion of the articles. A cover shall be provided.

                . . . .

                
                

   11. The Petitioner has the burden to prove by a preponderance of the evidence that Respondent committed the violations alleged in the administrative complaint. In this case Petitioner did not prove the allegations relating to the container for soiled linens and the provision of wet sanitizers. The evidence demonstrated that Respondent complied with both of these requirements. However, Petitioner did prove the violation relating to Respondent's employee's failure to use a spatula in removing a cream from a jar. Respondent is, therefore, subject to discipline for this violation.

       
       

   12. Section 477.029(2), Florida Statutes, contains the penalties the Board may impose on a licensee for violations of Chapter 477, Florida Statutes. Section 477.029(2) prescribes revocation or suspension of a license or registration, issuance of a reprimand or censure imposition of a fine not to exceed $500, a reasonable probationary period, and/or refusal to certify an applicant for licensure.

       
       

   13. Rule 21F-30.001 is the rule establishing the Board's guidelines for imposition of the penalties authorized in Chapter 477, Florida Statutes. The Rule reads in pertinent part:

       
       

       (1) When the Board finds that any person has committed any of the acts set forth in Section 477.029(1), Florida Statutes, it shall issue a final order imposing appropriate penalties as recommended

       in the following disciplinary guidelines.

       . . . .

       1. Violating or refusing to comply with any provision of Chapter 477, Florida Statutes, or Chapter 455 or a rule or final order of the Board. The usual recommended penalty shall be:

          1. for a violation of Chapter 477, Florida Statutes, the recommended penalty stated in this section for such violation;

          2. for a violation of Chapter 455, Florida Statutes, imposition of a penalty within the range stated in Section 455.227, Florida Statutes, for violation thereof;

          3. for a violation of a rule of the Board, the recommended penalty as stated in this section for such violation, and any further penalty deemed appropriate by the Board within the limits of 2lF- 30.001(5), F.A.C.;

       1. Violating the safety and sanitary requirements of Section 21F-20.002(3)-(7), F.A.C.. The usual recommended penalty shall be an administrative fine of $50 per violation if less than 3 violations are found to have occurred or an administrative fine of

          $250 if 3 or more violations are found to have occurred.

          1. In any case where a salon is found to be operating without sterilization equipment the Board shall impose an administrative fine of $250.

       . . . .

       (4) Based upon consideration of the following factors, the Board may impose disciplinary action other than the penalties recommended above:

       1. the severity of the offense;

       2. the danger to the public;

       3. the number of repetitions of the offense;

       4. the length of time since date of violation;

       5. the number of complaints filed against the licensee;

       6. the length of time the licensee or registrant has practiced;

       7. the actual damage, physical or otherwise, caused by the violation;

       8. the deterrent effect of the penalty imposed;

       9. the effect of the penalty imposed on the licensee's or on registrant's livelihood;

       10. any efforts at rehabilitation;

       the actual knowledge of the licensee or registrant pertaining to the violation;

       (1) attempts by the licensee or registrant to correct or stop violations or refusal by licensee to correct or stop violations;

       . . . .

       (p) any other mitigating or aggravating circumstances.

       . . . .

   14. In this case the recommended penalty for Respondent's failure to maintain a covered container for the deposit of hair and for Respondent's employee's failure to use a spatula to remove a cream product from a jar is $50. However in this instance Respondent had done all that she reasonably could to insure her employees followed the rules of the Board and had no knowledge that her employee was not using a spatula as required. In light of these mitigating circumstances the appropriate penalty which should be imposed for these violations is the issuance of a written reprimand to Respondent and the imposition of a $25 fine.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order reprimanding Respondent for

violation of Chapter 477, Florida Statutes and imposing a $25 fine.

DONE and ENTERED this 19th day of December, 1989, in Tallahassee, Florida.

DIANE CLEAVINGER

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 19th day of December, 1989.

ENDNOTE

1/ Respondent's cosmetology license is not subject to discipline in this matter. Only her cosmetology salon license is subject to any such discipline.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3315

1. The facts contained in paragraphs 1, 2, 4, 8, 9, 12 and 14 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material.

2. The facts contained in paragraphs 3, 6, 7, and 13 of Petitioner's Proposed Findings of Facts are subordinate.

3. The facts contained in paragraph 5 of Petitioner's Proposed Findings of Facts were not shown by the evidence.

4. The facts contained in paragraph 10 of Petitioner's Proposed Findings of Fact are rejected.

5. The facts contained in paragraph 11 of Petitioner's Proposed Findings of Fact are adopted in substance except as to the brushes' and combs' unsanitized condition.

COPIES FURNISHED:

Tobi C. Pam

Department of Professional Regulation

1940 N. Monroe Street Tallahassee, Florida 32399-0792

Hattie Nesbit, pro se 5639 Saphist Circle North

Jacksonville, Florida 32219

Ms. Myrtle Aase Executive Director

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Kenneth D. Easley, Esquire Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

BOARD OF COSMETOLOGY

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs DPR CASE NO.: 0111667

DOAH CASE NO.: 89-3315

HATTIE NESBITT D/B/A LICENSE NO.: CL 0021532 NESBITT'S BEAUTY SALON, CE 0020801

Respondent.

/

FINAL ORDER

THIS MATTER came before the Board of Cosmetology for final action pursuant to Section 120.57(1)(b)10, Florida Statutes, at a public meeting on January 22, 1990, in Orlando, Florida, for the purpose of considering the Hearing Officer's Recommended Order (a copy of which is attached hereto and incorporated herein by reference) in the above styled case. The Petitioner was represented by Tobi Pam, Esquire. The Respondent represented herself.

Upon consideration of the Hearing Officer's Recommended Order, the arguments of the parties, and a review of the complete record in this matter, the Board makes the following findings and conclusions:

FINDINGS OF FACT

1. The Hearing Officer's Findings of Fact are approved, adopted and incorporated herein.

   
   

2. There is competent substantial evidence to support the Hearing Officer's Findings of Fact as adopted by the Board.

CONCLUSIONS OF LAW

1. The Board has jurisdiction over this matter pursuant to the provisions of Section 120.57(1), and Chapter 477, Florida Statutes.

   
   

2. The Board accepts the Conclusions of Law set forth in paragraphs 1-6 of the Recommended Order.

   
   

3. The Board rejects paragraph 7 of the Conclusions of Law in the Recommended Order. The penalty stated in paragraph 7 is inconsistent with Rule 21F-30.001, the Disciplinary Guidelines cited in paragraph 6 of the Conclusions of Law. The Disciplinary Guidelines list each violation at $50 each.

   
   

4. There is competent substantial evidence to support the Conclusions of Law adopted by the Board.

PENALTY

The Recommended Penalty of the Hearing Officer is REJECTED based on the Board's rejection of the Hearing Officer's conclusion of law set forth in paragraph 7 of the Recommended Order in that the Hearing Officer misinterpreted the Disciplinary Guidelines and that the Board is the ultimate determiner of a question of law as it applied to Chapter 477, Florida Statutes; WHEREFORE:

IT IS ORDERED AND ADJUDGED:

Respondent shall pay one hundred dollars ($100) administrative fine payable to the Executive Director of the Board within 30 days from the date of this Final Order. This Order shall become effective upon filing with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 1st day of March, 1990.

BOARD OF COSMETOLOGY

Myrtle Aase Executive Director

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by United States Mail to HATTIE NESBITT D/B/A NESBITT'S BEAUTY SALON, 5639 Saphist Circle North, Jacksonville, Florida 32219, and by hand delivery to TOBI PAM, Staff Attorney, Department of Professional Regulation, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0750, by 5:00 P.M., this 1st day of March, 1990.

NOTICE OF RIGHT TO JUDICIAL REVIEW UNLESS WAIVED

A party who is substantially affected by this final order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the agency clerk of the Department of Professional Regulation and a second copy with filing fees to the District Court of Appeal within thirty (30) days of the date of the Final Order.

Docket for Case No: 89-003315

Orders for Case No: 89-003315