STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NOS. 90-6591

) 90-6593

NADINE ALICE WALKER d/b/a NADINE'S ) STYLING SALON and TRACY HUNT, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in these consolidated cases on January 10, 1991, in Tampa, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Chief Attorney

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondents: Nadine Alice Walker, pro se

Tracy Hunt, pro se STATEMENT OF THE ISSUES

1. Whether or not Respondent, Nadine Alice Walker, permitted an unlicensed individual to practice cosmetology in her licensed cosmetology salon, and, if so, what if any administrative penalty is appropriate.

   
   

2. Whether or not Respondent, Tracy Hunt, engaged in the practice of cosmetology without a license and, if so, what if any administrative penalty is appropriate.

PRELIMINARY STATEMENT

By two Administrative Complaints filed herein signed August 7, 1990, Petitioner, Department of Professional Regulation, Board of Cosmetology, seeks entry of an order imposing administrative fines and/or other permitted sanctions against Respondent, Tracy Hunt, for allegedly engaging in the practice of cosmetology without a license and against Respondent, Nadine Alice Walker, for permitting and/or employing an unlicensed person, to wit, Tracy Hunt, to practice cosmetology in a salon for which she was the license holder.

Respondents timely requested a formal hearing pursuant to Section 120.57(1), Florida Statutes, and on October 1, 1990, both cases were transferred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal administrative hearing. Following discovery, Petitioner filed a motion to consolidate these cases as they involve the same parties and grew out of the same factual allegations. Petitioner's motion to consolidate was granted and a consolidated hearing was held on January 10, 1991, as scheduled.

At the hearing, Respondents testified on their behalf and Petitioner presented the testimony of its inspector, Steve Yovino.

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, I hereby make the following relevant factual findings:

FINDINGS OF FACT

1. Petitioner, Department of Professional Regulation, Board of Cosmetology, is the state agency charged with regulating the practice of cosmetology pursuant to Section 20.30, Chapters 455 and 477, Florida Statutes.

   
   

2. Respondent, Nadine Alice Walker d/b/a Nadine's Styling Salon, is licensed to practice cosmetology and to operate a cosmetology salon, having been issued license number CL 0102000 and CE 0032562.

   
   

3. During times material hereto, Respondent Walker has been the owner/operator of a cosmetology salon named "Nadine's Styling Salon" located at 1014 East Cass Street, Tampa, Florida 33602.

   
   

4. Respondent Hunt, during times material, was not a licensed cosmetologist in Florida.

   
   

5. During a routine inspection of Respondent Walker's salon on June 16, 1990, inspector Steve Yovino, who is employed by Petitioner to conduct routine inspection of, inter alia, cosmetology salons to determine their compliance with Chapter 477, Florida Statutes, observed Respondent Hunt using an electric dryer to "blow dry" a customer's hair which she had shampooed. Respondent Hunt was compensated for her services.

   
   

6. On the day of the inspector's routine inspection of Respondent Walker's salon, it was the first day that Respondent Hunt had assisted Respondent Walker at Walker's styling salon.

   
   

7. Respondent Hunt is presently enrolled in a cosmetology school to become trained and licensed as a cosmetologist in Florida.

   
   

8. Respondent Walker engaged the services of Respondent Hunt to assist her in those duties in which an unlicensed cosmetologist can engage in, to wit, performing routine maintenance around the salon to include sweeping and cleaning the booth areas. Respondent Walker's aim was to assist Respondent Hunt in gaining experience in those areas of cosmetology which did not require a license.

   
   

9. Neither Respondent Hunt nor Respondent Walker have been the subject of prior disciplinary action by the Petitioner.

   CONCLUSIONS OF LAW

   
   

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

    
    

11. The authority of the Petitioner is derived from Chapter 477, Florida Statutes.

    
    

12. Cosmetology means the mechanical or chemical treatment of a head . . . including, but not limited to, hair, shampooing... . Section 477.013(5), Florida Statutes.

    
    

13. Clear and convincing evidence was offered herein to establish that on June 16, 1990, Respondent Nadine Alice Walker permitted Respondent Tracy Hunt to shampoo and blow dry a customer's hair in her licensed cosmetology salon while she (Respondent Hunt) was not licensed as a cosmetologist in violation of Section 477.02651(1),(2)(d) and Section 477.029(1)(c) and (h), Florida Statutes (1989).

    
    

14. Clear and convincing evidence was offered herein to establish that Respondent Tracy Hunt engaged in the practice of cosmetology without a license on June 16, 1990, to wit, shampooing and blow drying a customer's hair in violation of Sections 477.029(1)(a) and (h) and 477.0265(1)(a), Florida Statutes (1989).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:

1. Petitioner enter a Final Order imposing an administrative fine against Respondent Nadine Alice Walker in the amount of $100, payable to Petitioner within thirty (30) days of the entry of its Final Order and issue Respondent Nadine Alice Walker a letter of guidance.

   
   

2. Petitioner enter a Final Order imposing an administrative fine against Respondent Tracy Hunt in the amount of $100, payable to Petitioner within thirty

1. days of the entry of its Final Order and issue Respondent Tracy Hunt a letter of guidance. 1/

   
   

   RECOMMENDED this 28th day of February, 1991, in Tallahassee, Leon County, Florida.

   
   

   
   

   JAMES E. BRADWELL

   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

   28th day of February, 1991.

   
   

   ENDNOTE

   
   

   1/ This recommended penalty is in keeping with Petitioner's disciplinary guidelines in consideration of the mitigating factors in this case.

   
   

   COPIES FURNISHED:

   
   

   Charles F. Tunnicliff, Esquire Chief Attorney

   Department of Professional Regulation

   Northwood Centre, Suite 60 1940 North Monroe Street

   Tallahassee, Florida 32399-0792

   
   

   Nadine Alice Walker Nadine's Styling Salon 1014 Cass Street

   Tampa, Florida 33602

   
   

   Tracy Hunt

   8727 N. 50th Street, #H Tampa, Florida 33617

   
   

   Myrtle Aase, Executive Director Department of Professional

   Regulation

   Northwood Centre, Suite 60 1940 North Monroe Street

   Tallahassee, Florida 32399-0750

   
   

   Jack McRay, Esquire General Counsel

   Department of Professional Regulation

   Northwood Centre, Suite 60 1940 North Monroe Street

   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.

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

   AGENCY FINAL ORDER

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

   
   

   STATE OF FLORIDA

   DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF COSMETOLOGY

   
   

   
   

   DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF CLERK COSMETOLOGY,

   
   

   Petitioner,

   CASE NO: 90-007621

   -vs- DOAH NO: 90-6591

   LICENSE NO.: CL 102000

   NADINE ALICE WALKER DBA CE 32562 NADINE STYLING SALON,

   
   

   Respondent.

   /

   
   

   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 May 6, 1991, in Orlando, Florida, for the purpose of considering the Recommended Order issued by the Hearing Officer in the above styled case. The Petitioner was represented by Tracey Hartman. The Respondent was duly notified of the hearing but was neither present nor represented by counsel at the hearing.

   
   

   After a complete review of the record in this matter, including consideration of the Hearing Officer's Recommended Order (a copy of which is attached here to and incorporated herein by reference), written evidence (if any), and arguments of each party, the Board makes the following findings and conclusions:

   
   

   FINDINGS OF FACT

   
   

   1. The Hearing Officer's Findings of Fact are hereby 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 of this matter pursuant to the provisions of section 120.57(1), and Chapter 477, Florida Statutes.

   
   

2. The Hearing Officer's conclusions of law are hereby approved, adopted, and incorporated herein.

3. There is competent, substantial evidence to support the Board's findings and conclusions.

PENALTY

IT IS THEREFORE ORDERED AND ADJUDGED:

Although it mentions mitigating factors, the penalty recommended by the Hearing Officer is rejected because no mitigating evidence is specified to justify the reduced penalty.

Respondent shall pay an administrative fine in the amount of five hundred dollars ($500.00) to the Board. Said fine shall be paid within 30 days.

To assure payment of the fine, it is further ordered that all of Respondent's licensure to practice shall be suspended with the imposition of the suspension being stayed for 30 days. If the ordered fine is paid within that 30 day period, the suspension imposed shall not take effect. If the licensee does not pay the fine within the said period, then the suspension shall take effect immediately upon expiration of the stay, without additional notice to the Respondent, who shall be required to surrender all licenses issued by the Board to the investigator of the Department of Professional Regulation or to mail same to the Board offices. Upon payment of the fine after the 30 days, the suspension imposed shall be lifted.

This Order shall become effective upon filing with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 21st day of June, 1991.

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 NADINE ALICE WALKER, 1014 East Cass Street, Tampa, Florida 33602, and by hand delivery to TRACEY HARTMAN, Senior Attorney, Department of Professional Regulation, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0792, by 5:00 P.M., this 21st day of June, 1991.

Ruby Warner

NOTICE OF RIGHT TO JUDICIAL REVIEW

Pursuant to Section 120.59, Florida Statutes, any substantially affected person is hereby notified that they may appeal this Order by filing one copy of a notice of appeal with the clerk of the agency and by filing the filing fee and one copy of a notice of appeal with the District Court of Appeal within 30 days of the date this Order is filed.

Docket for Case No: 90-006591

Orders for Case No: 90-006591