STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3870

)

PATRICIA SHIELDS, )

)

Respondent, )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on October 11, 1989, at Tampa, Florida.

APPEARANCES

For Petitioner: Jack L. McRay, Esquire

Department of Professional Regulation Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Patricia Shields, pro se

5607 21st Street

Tampa, Florida 33610 STATEMENT OF THE ISSUES

Whether Respondent practiced cosmetology without a current license and, if so, what is an appropriate penalty under the circumstances.

PRELIMINARY STATEMENT

By Administrative Complaint filed April 26, 1989, the Department of Professional Regulation, Petitioner, seeks to revoke, suspend, or otherwise discipline the license of Patricia Shields, Respondent, as a Cosmetologist. As grounds therefor, it is alleged that on or about February 2, 1989, Respondent was practicing cosmetology at a salon known as Main Street Hair in Tampa, Florida, without an active current license, and had been so practicing for approximately one month prior thereto. Respondent requested an administrative hearing to contest these allegations and the penalty proposed by Petitioner, and these proceedings followed.

At the hearing, Petitioner called two witnesses, Respondent testified on her own behalf, and four exhibits were admitted into evidence. The parties were given 10 days in which to submit proposed findings. There is no dispute in the

factual situation surrounding these charges, and proposed findings were not timely submitted.

FINDINGS OF FACT

1. On February 2, 1989, an inspector from the Department of Professional Regulation visited the Main Street Salon in Tampa and observed Patricia Shields, Respondent, alone in the salon practicing cosmetology. When he asked to see her license, Respondent presented the application for licensure which she had previously submitted to the Petitioner on September 2, 1988, and which was stamped received September 6, 1988.

   
   

2. This application was returned to Respondent with notation that she had to get a confirmation from the state officials in Massachusetts that she held a valid cosmetology license in Massachusetts.

   
   

3. After two attempts, Respondent received confirmation from Massachusetts that she held a valid cosmetology license in that state, and after November 15, 1988, Respondent submitted this information to the Department. This completed her application, including prescribed fees.

   
   

4. Subsequent to November 15, 1988, Respondent inquired of a local cosmetology school if she could work as a cosmetologist after submitting a completed application, but before receiving a Florida license, and was told that she could. She was told that graduates from the beauty school could lawfully work as cosmetologists after graduating and applying for license, but before receiving a valid Florida license. Since Respondent had more training (1000 hours) than did graduates from this cosmetology school and had actually practiced cosmetology since 1984, she did not deem it necessary to contact Petitioner to confirm her qualifications to work as a cosmetologist--and did not do so.

   
   

5. On February 3, 1989, license CL-0160553 was issued and mailed to Respondent licensing her to work as a cosmetologist in Florida (Exhibit 1). She received this license February 6, 1989, four days after the inspector had visited the Main Street Salon.

   
   

6. At the time of the inspector's visit, February 2, 1989, Respondent, at the instigation of the investigator, signed a Cease and Desist Agreement in which she agreed to cease and desist from any future violations of Chapters 455 and 477, Florida Statutes (Exhibit 3). No evidence was presented that Respondent violated the Cease and Desist Agreement.

   
   

7. Respondent frankly admitted that she had worked as a cosmetologist some five or six weeks before February 2, 1989, under the misapprehension that she could legally do so. Her primary objection here is to Petitioner's insistence that she pay a $500 penalty to retain her license.

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Section 477.019(5), Florida Statutes, provides:

   
   

   The board shall adopt rules specifying procedures for the licensure by enforce- ment of practitioners desiring to be licensed in this state who hold a current active license in another state or country

   and who have met qualifications substantially similar to, equivalent to, or greater than the qualifications required of applicants from this state.

   
   

10. Since Respondent was issued a license on February 3, 1989, it appears that she was qualified for licensure by endorsement.

    
    

11. Section 477.014, Florida Statutes, provides in pertinent part:

    
    

    . . . No person other than a duly licensed cosmetologist shall practice cosmetology

    . . . .

    
    

12. Since Respondent did not hold a valid current cosmetology license on February 2, 1989, she was in violation of the above-quoted statute.

    
    

13. From the evidence presented as contained in the above findings, it is clear that this is a far cry from a flagrant violation of the statute. Furthermore, under the circumstances here presented, a penalty of $500 appears grossly excessive. Here Respondent's violation certainly represented no danger to the public from the practice of cosmetology by an unqualified practitioner.

    
    

14. From the foregoing, it is concluded that Patricia Shields practiced cosmetology without a valid license as alleged but, under the circumstances, this violation was minor, and the result of Respondent receiving inaccurate information from a source one would expect to obtain accurate information.

RECOMMENDATION

It is recommended that Patricia Shields be found guilty of practicing cosmetology without a valid license and that she be issued a written admonition.

ENTERED this 30th day of October, 1989, in Tallahassee, Florida.

K. N. AYERS 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 October, 1989.

COPIES FURNISHED:

Jack L. McRay, Esquire Department of Professional

Regulation Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Patricia Shields 5607 21st Street

Tampa, Florida 33610

Myrtle Aase Executive Director Board of Cosmetology

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Kenneth D. Easley General Counsel

Department of Professional Regulation

Northwood Centre

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.: 0111687

DOAH CASE NO.: 89-3870

PATRICIA SHIELDS, LICENSE NO.: unlicensed

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 Officers 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 the first four paragraphs of the Recommended Order.

   
   

3. The Board specifically rejects the Conclusions of Law outlined in the last two paragraphs of the Recommended Order. The statements made by the Hearing Officer are inconsistent with Chapter 477, Florida Statutes, and the clear legislative intent stated in Section 477.012, Florida Statutes. Chapter 477.0265, Florida Statutes, states that it is unlawful for a person to practice

   cosmetology without a license. Chapters 477.028 and 477.029, Florida Statutes, grants the Board authority to discipline unlicensed activity.

   
   

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 the Recommended Order. The Board has adopted Disciplinary Guidelines for the adjudication of violations of Chapter 477, Florida Statutes. These Disciplinary Guidelines as set forth in Rule 21F-30, Florida Administrative Code delineate fines which are well within the amount allowable by Chapter 455.227(2), Florida Statutes; WHEREFORE:

IT IS ORDERED AND ADJUDGED:

Respondent shall pay an administrative fine of five hundred dollars ($500) 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 November, 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 PATRICIA SHIELDS, 5607 21st Street, Tampa, Florida 33610, 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: 89-003870

Orders for Case No: 89-003870