STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3566

)

SHARON BURROWS d/b/a )

CELEBRITY BEAUTY SHOP, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer from the Division of Administrative Hearings, on August 30, 1990, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Michael Mone, Esquire

Department of Professional Regulation Suite 60, 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Sharon Burrows, pro se

3161 West Oakland Park Boulevard Fort Lauderdale, Florida 33311

STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against her, and, if so, what disciplinary action should be taken against her, if any.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent alleging that Respondent had violated several statutory and rule provisions regulating the practice of cosmetology. Respondent timely requested a formal hearing regarding the allegations contained within that Administrative Complaint, and this cause was transferred to the Division of Administrative Hearings for the conduct of a formal proceeding.

Petitioner presented the testimony of Leonard Baldwin, and Petitioner's Exhibits numbered 1, 2, and 4 were admitted in evidence. Additionally, Petitioner's request for official recognition of Chapter 21F-20, Florida Administrative Code, was granted. The Respondent testified on her own behalf and presented the testimony of Dian Lee.

Both parties submitted post-hearing proposed findings of fact. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1 At all times material hereto, Respondent Sharon Burrows has been the owner of Celebrity Beauty Salon, License No. CE 0044646.

1. On March 18, 1990, Petitioner conducted an inspection of Celebrity Beauty Salon. At the time, a customer was seated in each of the salon's two chairs. Flavie Atis was placing rollers in the hair of one of the customers.

   
   

2. Since no licensure was posted as to employee Atis, inquiry by the inspector revealed that Atis did not have a current license and was not performing services pursuant to an exemption while awaiting examination or having recently graduated from a school of cosmetology.

   
   

3. Placing rollers in a customer's hair is within the scope of the practice of cosmetology for which a license is required and is not within the scope of merely shampooing for which a license is not required.

   
   

4. At the time of the inspection, sanitary towels and neck strips were not being used for each patron and not all equipment was free of hair.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties in this case. Section 120.57(1), Florida Statutes (1989).

7. Sections 477.0265(1)(b)2., 477.0265(1)(d), 477.029(1)(c), and

477.029(1)(h), Florida Statutes, prohibit the employment of an unlicensed individual in the practice of cosmetology. Petitioner has met its burden of proving that Respondent is guilty of violating these statutes, as alleged in the Administrative Complaint filed against her.

1. Respondent testified that when she had hired Atis, Atis had advised her that she had pending an application to take the next cosmetology examination. Respondent did not verify that information with Petitioner. After the inspection on March 18, 1990, Respondent contacted Petitioner and found that Atis did not have an application to take the cosmetology examination pending. She dismissed Atis from her employment upon learning that information.

   
   

2. Rule 21F-20.002(4) (a), Florida Administrative Code, provides, in part, as follows: "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." Respondent explained that towels are not used around her patrons' necks during shampooing; however, no shampooing was being done at the time of the inspection. Further, Rule 21F-20.002(4)(d)2.a., Florida Administrative Code, requires that hair be first removed from combs and brushes before they are immersed in a sanitizing solution. Respondent brought with her to the final hearing one of the brushes she alleges was sanitized, was too old to be used on customers, but was still kept in the salon. The brush still had hair in it. Petitioner has met its burden of proving that Respondent has violated the

   foregoing rules of the Board. Accordingly, Petitioner has also proven that Respondent violated Section 477.029(1)(i), Florida Statutes, by violating a rule of the Board.

   
   

3. Petitioner has failed to prove, however, that Respondent is guilty of violating Section 477.0265(1)(c), Florida Statutes, which prohibits engaging in willful or repeated violations. Petitioner failed to prove that any of the foregoing violations is a repeated violation and further failed to prove that Respondent willfully violated the statutory and rule provisions governing the practice of cosmetology. The testimony was uncontroverted that Respondent was not present in the salon at the time that the inspection occurred and the violations of Chapters 477, Florida Statutes, and 21F-20, Florida Administrative Code, occurred. Similarly, Petitioner has failed to meet its burden of proving that Respondent failed to sanitize implements after use on each patron and that she failed to store cleansed and sanitized equipment in clean, closed cabinets and containers. Although both of these factual allegations appear in the Administrative Complaint, only the latter allegation appears in Petitioner's proposed Recommended Order. It appears that Petitioner has abandoned the former allegation by its failure to present evidence regarding that allegation at the final hearing and its failure to affirmatively argue that allegation in its proposed recommended order.

   
   

4. In its proposed recommended order, Petitioner recommends that an administrative fine in the amount of $250.00 be imposed against Respondent and that the Salon's license be placed on probation for a period of one year with two unannounced inspections, the costs of those inspections to be paid by the Respondent. Petitioner's recommendation of a $250.00 administrative fine and one year's probation is appropriate under the facts of this case. However, the additional condition of two unannounced inspections with the costs to be paid by the Respondent is not appropriate. Rule 21F-20.003, Florida Administrative Code, provides that at least one inspection shall be made annually by the Department. There does not appear to be any requirement that the inspection be other than unannounced. Accordingly, Petitioner already has the authority to conduct the two unannounced inspections. Further, no evidence was presented regarding the costs of the inspections required to be performed by Petitioner or as to how those costs would be determined or by whom.

RECOMMENDATION

Base upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of

violating the statutory and rule provisions set forth herein, imposing a $250.00 administrative fine against her, and placing her license on probation for a period of one year.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 25th day of October, 1990.

LINDA M. RIGOT

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 25th day of October, 1990.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-3566

1. Petitioner's proposed findings of fact numbered 1-7, 8(1), and 8(2), have been adopted either verbatim or in substance in this Recommended Order.

2. Petitioner's proposed finding of fact numbered 8(3) has been rejected as not being supported by the weight of the evidence in this cause.

3. Respondent's proposed finding of fact numbered 1 has been adopted either verbatim or in substance in this Recommended Order.

4. Respondent's proposed finding of fact numbered 2 has been rejected as being unnecessary for determination of the issues herein.

5. Respondent's proposed finding of fact numbered 3 has been rejected as not being supported by the weight of the evidence in this cause.

COPIES FURNISHED:

Michael Mone, Esquire

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Sharon Burrows

3161 West Oakland Park Boulevard Fort Lauderdale, Florida 33311

Kenneth Easley, Esquire General Counsel

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Myrtle Aase, Executive Director Department of Professional Regulation Board of Cosmetology

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 90-003566

Orders for Case No: 90-003566