STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY )

)

Petitioner, )

)

vs. ) CASE NO. 90-4761

) DEBBIE HOLCOMB, d/b/a DEBBIE'S ) DESIGNER NAILS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on December 6, 1990, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Laura P. Gaffney

Senior Attorney

Department of Professional Regulation Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792 For Respondent: No appearance

STATEMENT OF THE ISSUE

Whether the allegations of the Administrative Complaint are correct, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint, DPR Case #89-013656, filed June 18, 1990, the Petitioner alleged that the Respondent had, without appropriate licensure, engaged in certain activities. By Election of Rights form filed July 9, 1990, the Respondent requested formal administrative hearing. The Petitioner forwarded the request to the Division of Administrative Hearings which assigned a Hearing Officer and scheduled the formal proceeding.

Petitioner presented the testimony of Eileen Thomas and Geraldine Johnson, and had four exhibits admitted into evidence. Respondent did not appear and was not represented at the hearing.

A transcript of the hearing was filed on December 12, 1990. The Petitioner filed a proposed recommended order. The proposed findings of fact are ruled upon either directly or indirectly as reflected in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order.

FINDINGS OF FACT

1. An advertisement in the December 6, 1989 edition of the Beaches Shopping Guide indicated that "sculptured nail" services were available through "Debbie's Designer Nails". The advertisement contained a telephone number.

   
   

2. In response to the advertisement, Eileen Thomas, an investigator for the Petitioner, on February 23, 1990, called "Debbie's Designer Nails" at the phone number listed in the advertisement. Ms. Thomas spoke with a woman identified as "Debbie". During the conversation, Debbie informed Ms. Thomas that manicure services were available in either the customer's home or in Debbie's home, at a cost of twelve dollars. Debbie stated that she had been offering her services for approximately three months. At the close of the conversation, Ms. Thomas, using the name "Brenda", made an appointment for a manicure at Debbie's place of business on February 27, 1990.

   
   

3. On February 27, 1990, Geraldine Johnson, an employee of the Petitioner, arrived at the Respondent's residence and identified herself as "Brenda". The Respondent performed a manicure on Ms. Johnson, who paid the Respondent thirteen dollars for her services.

   
   

4. While the Respondent performed the manicure on Ms. Johnson, another woman arrived at the Respondent's home. The Respondent told Ms. Johnson that the woman had an appointment for nail sculpturing.

   
   

5. Before Ms. Johnson left the Respondent's home, the Respondent gave Ms. Johnson ten business cards and requested that Ms. Johnson distribute the cards to potential customers. The cards include the Respondent's name, the name of the business, the slogan "My House or Yours", the telephone number, and the types of manicure services available.

   
   

6. The Respondent is not a licensed cosmetologist in the State of Florida. The Respondent's business, "Debbie's Designer Nails", is not licensed as a cosmetology salon in the State of Florida.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. Cosmetology is defined to include manicure services. Section 477.013(4), Florida Statutes. A specialist, is defined to include a manicurist. Section 477.013(5) and (6) (a), Florida Statutes.

   
   

9. It is unlawful for any person to engage in the practice of cosmetology or a specialty without an active license as a cosmetologist or registration as a specialist with the Petitioner. Section 477.0265(1)(a), Florida Statutes. It is unlawful for any person to own, operate, maintain, open, establish, conduct,

   or have charge of, a cosmetology salon or a specialty salon, which is unlicensed, or which permits an unlicensed person to perform services. Section 477.0265(1)(b), Florida Statutes.

   
   

10. Section 477.029(2), Florida Statutes, provides the Petitioner with authority to impose penalties upon a person who violates a provision of the section. Section 477.929(1)(a), Florida Statutes, provides that it is unlawful for any person to hold herself out as a cosmetologist or specialist unless duly licensed by the Petitioner. Section 477.029(1)(b), Florida Statutes, provides that it is unlawful for any person to operate any cosmetology salon without license. Section 477.029(1)(h), Florida Statutes, provides that it is unlawful for any person to violate a provision of Section 477.0265.

    
    

11. The burden of proof lies with the Petitioner, who has met the burden. The Respondent is clearly guilty of violating the above-cited provisions of Chapter 477, Florida Statutes.

    
    

12. Chapter 21F-30, Florida Administrative Code, sets forth guidelines for the imposition of penalties in disciplinary cases. The recommended penalty for an unlicensed individual holding herself out as a cosmetologist or specialist is administrative fine of $500. Rule 21F-30.001(1)(a)1., Florida Administrative Code. The recommended penalty for operating an unlicensed cosmetology salon within a residence is an administrative fine of $500. Rule 21F-30.001(1)(b)1., Florida Administrative Code.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Florida Board of Cosmetology enter a Final Order imposing an administrative fine of one thousand dollars on the Respondent.

DONE and RECOMMENDED this 4th day of January, 1991, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAWM

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 1991.

APPENDIX CASE NO. 90-4761

The following constitute rulings on proposed findings of facts submitted by the parties.

Petitioner

The Petitioner's proposed findings of fact are accepted as modified in the Recommended Order except as follows:

3. The evidence did not establish that the Respondent actually placed the advertisement in the Beaches Shopping Guide.

Respondent

The Respondent submitted no proposed recommended order.

COPIES FURNISHED:

Laura P. Gaffney Senior Attorney

Department of Professional Regulation Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Debbie Holcomb

5856 Wiltshire Street

Jacksonville, Florida 32211

Myrtle Aase, Executive Director Board of Cosmetology

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 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 ten 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: 90-004761

Orders for Case No: 90-004761